From Just Price to Resilient Markets - Unfair Pricing and Digital Market Abuses in EU Competition Law and Policy

Abstract

For decades, antitrust lawyers were cautioned against invoking “Fairness” in competition law and economics analysis. However, fairness has long underpinned market regulation, from ancient laws like the Code of Hammurabi to modern rules against unfair pricing and exploitation, such as Article 102 Treaty on the Functioning of the European Union. Historically, societies have imposed limits on excessive pricing and abuse of market power, especially during times of scarcity and crisis.

In today’s digital economy, traditional ex post enforcement, such as cases against Google, Meta, Amazon or Apple, often struggles to keep pace with rapid market developments and leads to lengthy investigations at times lasting decades. This lag has spurred calls for ex ante regulatory frameworks, with fairness and equitable exchange re-emerging as guiding principles. Recent EU legislative efforts, including the Digital Markets Act (DMA), explicitly emphasize fairness already in their title, aiming for contestable markets and equitable value distribution.

The COVID-19 pandemic further reignited debates over unfair pricing, revealing tensions between neoclassical economic models and fairness-oriented enforcement grounded in real-world conditions. These developments mark a broader shift: the reintroduction and evolution of fairness within regulatory instruments such as the DMA, the AI Act, the Data Act and so on.

This paper argues that the reintegration of fairness offers a necessary corrective to outdated legal-economic paradigms displaying an undue influence over Union law, and calls for rethinking of competition law and policy to meet the challenges of crisis-prone digital and global antitrust enforcement, especially in light of legal-historic and behavioural economic perspectives on unfair pricing.

Following a brief introduction, framing the problem of unfair pricing and exploitative abuses, as well as the crisis of neoclassical economics paired with COVID-19 crisis, the second section investigates the said crisis in light of Union competition law and policy and legal-historic perspectives on unfair pricing and the role of the Sovereign. The third section depicts some legal-economic approaches to the matter of fairness and fairness in pricing. The fourth section recasts an empirical inquiry into European approaches to unfair pricing during COVID-19 crisis as a proxy. The fifth section connects the ex-ante regulation of fairness, with ex-post approaches to unfair pricing within Union competition law. The sixth section concludes.