It has long been thought that fairness in European Consumer Law would be achieved by relying on information as a remedy and expecting the average consumer to keep businesses in check by voting with their feet. This monograph argues that the way consumer law operates today promises a lot but does not deliver enough. It struggles to avoid harm being caused to consumers and it struggles to repair the harm after the event. To achieve fairness, solutions need to be found elsewhere. Consumer Theories of Harm offers an alternative model to assess where and how consumer detriment may occur and solutions to prevent it. It shows that a more confident use of economic theory will allow practitioners to demonstrate how a poor standard of professional diligence lies at the heart of consumer harm. The book provides both theoretical and practical examples of how to combine existing law with economic theory to improve case outcomes. The book shows how public enforcers can move beyond the dominant transparency paradigm to an approach where firms have a positive duty to treat consumers fairly and shape their commercial offers in a way that prevents consumers from making mistakes. Over time, this 'fairness-by-design' approach will emerge as the only acceptable way to compete.

It has long been thought that fairness in European Consumer Law would be achieved by relying on information as a remedy and expecting the average consumer to keep businesses in check by voting with their feet. This monograph argues that the way consumer law operates today promises a lot but does not deliver enough. It struggles to avoid harm being caused to consumers and it struggles to repair the harm after the event. To achieve fairness, solutions need to be found elsewhere. Consumer Theories of Harm offers an alternative model to assess where and how consumer detriment may occur and solutions to prevent it. It shows that a more confident use of economic theory will allow practitioners to demonstrate how a poor standard of professional diligence lies at the heart of consumer harm. The book provides both theoretical and practical examples of how to combine existing law with economic theory to improve case outcomes. The book shows how public enforcers can move beyond the dominant transparency paradigm to an approach where firms have a positive duty to treat consumers fairly and shape their commercial offers in a way that prevents consumers from making mistakes. Over time, this 'fairness-by-design' approach will emerge as the only acceptable way to compete.

This book chapter, published in 2002, argues that courts decide antitrust cases based mainly on their perception of the “obvious” effects of the practices at issue on consumers. Courts must rely on both theory and evidence in resolving antitrust cases, but the persuasiveness of theoretical predictions depends in large part on the determinacy of their implications for consumers. Theories of liability are often too restrictive in their assumptions and markets are often too complex to allow confident predictions that a practice that obviously benefits consumers in the short run will ultimately hurt them in the long run, or vice versa.

The most important book on antitrust ever written. It shows how antitrust suits adversely affect the consumer by encouraging a costly form of protection for inefficient and uncompetitive small businesses.

The part of the economy that depends, directly or indirectly, fully or partially, on the flow and analysis of data is growing of importance2. Data-driven businesses are spilling over from the online to the offline economy, changing traditional industries. They are set to become pervasive in the coming decade, with the rise of the industrial internet, the development and adoption of AI, and the advent of new, more advanced networks. As a result, it is not surprising to find that antitrust enforcement in data markets is rising, and the nature of it is in part changing. This raises different issues that are relevant for competition policy in general, antitrust enforcement and consumer protection. Firstly, alongside traditional theories of harm, new theories of harm are being tested. Some of the recent enforcement cases based on privacy degradation aim at detecting whether or not some platforms have abused their dominance and exploited their customers in the form of data harvesting which goes behind what is permitted ("data exploitation"). Due to the unique nature of data markets and its economics, these new theories of harm rise issues with respect to remedies that are worth considering further. This working paper focuses on the first aspect, namely to consider whether new exploitative theories of harm based on privacy degradation are plausible...

This edited volume covers the challenges currently faced by consumer law in Europe and the United States, ranging from fundamental theoretical questions, such as what goals consumer law should pursue, to practical questions raised by disclosure requirements, the General Data Protection Regulation and technology advancements. With governments around the world enacting powerful new regulations concerning consumers, consumer law has become an important topic in the economic analysis of law. Intended to protect consumers, these regulations typically seek to do so by giving them tools to make better decisions, or by limiting the consequences of their bad decisions. Legal scholars are divided, however, regarding the efficacy and effects of these regulations; some call for certain policies to be abolished, while others support a regulatory expansion.

This report assesses the possible role of a New Competition Tool (NCT) consisting of a market investigation instrument endowed with broad remedies, when a market suffers from competition problems and infringement cases under 101 TFEU and 102 TFEU would be infeasible or ineffective. The report lays out a number of theories of harm, that is, reasons why certain market features or behavior by market participants may lead to consumer harm compared to a relevant counterfactual. The report identifies theories of harm (i) in markets in which none of the firms is dominant and (ii) in markets with a dominant firm but article 102 TFEU is not effective or applicable or there may be a dominant firm in the future. It also argues that the European Commission should look for simple measures as "intervention triggers" for a market investigation under the NCT and identifies some possible triggers. While some of the identified harms are more likely or more pronounced in digital markets, a presumption that the NCT primarily addresses competition problems in digital markets is misguided. Finally, when sector regulation is, in principle, applicable, the NCT is seen as filling a gap between standard competition tools and sector regulation.