Selcukhan Unekbas (European University Institute – Department of Law) has posted “Competition, Privacy, and Justifications: Invoking Privacy to Justify Abusive Conduct under Article 102 TFEU” (Journal of Law, Market & Innovation, forthcoming) on SSRN. Here is the abstract:
This Article aims to delineate the extent to which potentially anticompetitive behavior that simultaneously improve user privacy are cognizable as efficiencies or objective justifications within the context of unilateral conduct cases in European competition law. After mapping the existing literature, it moves on to discuss whether the decisional guidance of the European Commission, as well as the case law of the Union Courts, allow the invocation of privacy as proper grounds to mount a defense against abusive practices. In order to concretize the theoretical discussions, the Article focuses on two recent and highly-relevant developments: Apple’s App-Tracking Transparency initiative, and Google’s unveiling of the Privacy Sandbox. It finds that the state of the law pertaining to the second stage of an abuse case is underdeveloped and is in need of clarification. Nevertheless, considering the recent developments surrounding European competition law in general, and the digital transformation in particular, both efficiencies and objective justifications are likely to find room for application in the digital economy. Whereas efficiencies must be evaluated within the context of substantive symmetry, legal coherence, and economic considerations in a manner that caters to consumer choice, objective justifications may give rise to unintended consequences resulting from judicial and legislative developments. Overall, it is apparent that the case law provides valuable insights as to the implementation of efficiency arguments and objective justifications, but the concepts are nonetheless in need of further analysis vis-à-vis the latest jurisprudence and legislative developments. In that regard, the Article highlights several points of potential contention in the near future.