Unfair platform practices, often bordering on the illegally anticompetitive, harm all members of society, stifle innovation and employment and make European consumers and advertisers dependent on platforms headquartered in jurisdictions with less consumer and competition protection.
The road to justice for businesses who have suffered from illegal abusive behavior by major or dominant platforms is long and expensive. Few can afford the costs and risks of taking legal action and have the breath to see it through until an uncertain end, which can take a decade or longer. Justice delayed is justice denied.
With the few but substantial fines levied in big competition cases, the European Commission should fund hiring as much expert staff as necessary, to quickly resolve any complaints, for example in the in the fast-moving digital market, within months, not years.
In the wider public interest fines should not only be levied by the Commission where abuse of dominance has been found but simple means established for victims to claim and swiftly receive damages, without having to fund extended legal procedures and battle in national courts for more years at their own risk.
Wrongdoers often gain from the extended procedure and continue to accumulate an invincible market power and harvest substantial profits, which often exceed the fine if ultimately any is even imposed or paid.
A more meaningful deterrent to prevent abusive business practices would be penalties or damages stripping the wrongdoer of its ill-gotten gains or personally targeting the responsible decision-makers. Damages can in some cases be brought in some states for unjust enrichment – but the position is less than clear-cut and the basic principle is that damages are only available to compensate those harmed. Given the significance of anticompetitive practices to the economy, and the structure and functioning of markets to society more generally, as already recognised in some states’ sanctions toward cartel cases, sanctions in abuse of dominance cases could be aligned, with criminal sanctions applicable to both, in suitable cases.
Increasing the scope for recovery of profits illegally gained and increasing sanctions on individuals would support compliance and make managers and directors think twice before doing damage. Otherwise, we have laws on the books that are worth breaking.
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