The event will focus on crucial areas such as digital platforms, investment in electronic communications infrastructures, Standard Essential Patents (SEPs), and Artificial Intelligence (AI).
Concept
In the English language, the word 'fair' carries a dual meaning. As an adjective, it signifies a state free from bias, dishonesty, injustice, and unequal treatment. Conversely, as a noun, a 'fair' refers to a temporary marketplace where buyers and sellers exchange goods.
Fairness and the market are interconnected concepts that have been extensively debated by philosophers since the work of St. Thomas Aquinas on 'aequitas.' These discussions revolve around the definition of a 'fair price' and what constitutes a 'fair market.'
Within the context of EU law, 'fairness' is increasingly being invoked across various policy domains to address perceived imbalances among different stakeholders. The aim is to promote 'aequitas', in the words of St. Thomas, or fairness among market players.
One pertinent example is the ongoing debate surrounding fair sharing in investments for new telecom networks. Additionally, fairness forms the underlying rationale behind the recent EU Commission proposal for a Regulation on Standard Essential Patents (SEP). In both policy areas, considerations of fairness are invoked to justify the redistribution of resources between telecom operators and online platforms, as well as between SEP holders and implementers.
In the realm of competition policy, 'fairness' is a well-known concept. Article 101(3) of the Treaty of the Functioning of the European Union (TFEU) states that an anti-competitive agreement can only be justified if consumers receive a 'fair' share of the benefits resulting from the agreement. Similarly, Article 102(a) TFEU prohibits dominant firms from imposing 'unfair purchase or selling prices or other unfair trading conditions' on their customers. Despite the unchanged wording of Articles 101 and 102 TFEU since the Treaty of Rome, 'fairness' has remained a somewhat obscure and vague concept. With the advent of a more effects-based approach in EU competition policy, the emphasis on safeguarding consumers' welfare has progressively overshadowed the concept of fairness. However, in recent years, 'fairness' has regained attention.
On one hand, the EU Commission and numerous National Competition Authorities (NCAs) have investigated an increasing number of cases involving exploitative abuses of dominance. These cases examine whether the pricing or contractual clauses imposed by dominant firms on their customers breach 'fair' market practices. Secondly, 'fairness' is a key objective in the emerging sector regulation of digital platforms. Both the 2022 Digital Markets Act (DMA) and the 2019 Platform-to-Business (P2B) Regulation aim to promote fairness. In these regulations, 'fairness' pertains to the behavior that platforms should exhibit towards end-users and business users. Additionally, there is a question of whether and to what extent platform behavior towards competitors (i.e., inter-platform competition) can be evaluated through fairness considerations.
Finally, 'fairness' can also be seen as an underlying objective of the proposed Artificial Intelligence (AI) Act. In machine learning, fairness entails addressing algorithmic bias in automated decision processes that rely on machine learning models. Decisions made by computers after a machine-learning process may be deemed 'unfair' if they are based on sensitive variables. The AI Act proposal seeks to foster fair usage of generative AI systems by prohibiting specific AI practices and introducing a monitoring system for high-risk AI systems.
The 2023 Autumn Conference of the Centre for a Digital Society will provide an ideal platform for discussing the meaning of 'fairness' in EU competition policy and sector regulation within the digital sector. Key questions to be explored include the existence of a comprehensive definition of fairness applicable across different areas, the long-term implications of fairness as a political slogan, and the enforceability of fairness alongside the traditional goal of consumers' welfare.
Practical information
We are pleased to offer a hybrid format for the conference, allowing invited speakers to join us physically at the EUI campus in Florence, while the audience can participate via Zoom free of charge. A limited number of attendees will have the opportunity to join us in person, with a registration fee of €150 covering refreshments. Please note that travel and accommodation expenses in Florence are not included in the registration fee. Additionally, participants of the 2023 Patent Licensing Academy and the 2023 Autumn Competition School may attend the conference in person, free of charge.