16- The path to a coherent enforcement in the digital ecosystem: protecting markets, societies, democracy
For a long period, the authorities responsible for the digital ecosystem have applied their respective laws in strict isolation from one another, an approach which did not support the understanding of market dynamics and the detection of practices of common concern to competition law, data protection and consumer protection. With harms being unnoticed, data-driven markets have tipped to a level of concentration and dominance by few players, now acknowledged in the EU law-making.
A Digital Clearinghouse was established with a view to create an informal forum of discussion and facilitate cooperation and information sharing. Consensus has since then grown that (mis)use of personal data and privacy-intrusive behaviours can have a meaning under competition law and generate harm, to consumers, societies and democracies. Competition authorities have increasingly given relevance of privacy and personal data protection considerations in their competition assessment.
Despite some important developments, authorities are still in not a good place when it comes to successfully integrate privacy and data protection considerations into theories of harm in competition law, or when it comes to attach concrete relevance to respect or valorisation of privacy and data protection values and rules as competitive advantage for the market. Some invoke under-enforcement of the GDPR, the absence of an institutionalised channel for information sharing, or the ne bis in idem principle among the main obstacles to a factual cooperation among authorities, and to the mutual integration or cross-fertilisation of each fields’ toolbox.
This panel aims to answer questions such as: are regulators still guarding their own fences, overlooking the benefits of coordinated/ integrated approach? Are the alleged obstacles to cooperation of a legal or political/societal nature? Could we imagine, in 30 years from now, the need for a single digital regulator to come into existence for Europe? Do we need a stronger enforcement of data protection rules in also support of the call for more cooperation, and vice-versa? What should Europe do with the philosophy behind the Digital Clearinghouse?
Alexandre de Streel
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