Fair Private Governance for the Platform Economy: EU Competition and Contract Law Applied to Standard Terms

Posted: 8 Jun 2021

See all articles by Jacobien W. Rutgers

Jacobien W. Rutgers

VU University Amsterdam - Faculty of Law

Wolf Sauter

Vrije Universiteit Amsterdam - Faculty of Law; Tilburg Law and Economics Center (TILEC); Netherlands Authority for Consumers and Markets (ACM)

Date Written: June 1, 2021

Abstract

In recent years a platform economy has emerged that is dominated by undertakings such as Google, Amazon, Facebook, Apple and Microsoft. They have established a form of private governance vis-à-vis their consumers and customers by means of standard terms that create a risk of exploitation. This trend clashes with the internal market effort of the EU that is predicated on consumer rights and fair competition to address market failures such as market power, information asymmetry and asymmetrical contractual dependency. In this article we examine how the resulting tensions can be addressed by means of EU competition and contract law. This is based on enforcing fairness by requiring (i) the implementation of proportionality – balancing interests – and (ii) respect of the duty of care, in the sense of compliance by design. Jointly this can be seen as an expression of accountability that needs to be made explicit. Apart from pre-existing case law and legislation we take into account the December 2020 Commission proposals for platform regulation, as well as behavioral insights into consumer behavior.

Keywords: competition law, contract law, platform economy, standard terms

JEL Classification: K12, K21

Suggested Citation

Rutgers, Jacobien W. and Sauter, Wolf and Sauter, Wolf, Fair Private Governance for the Platform Economy: EU Competition and Contract Law Applied to Standard Terms (June 1, 2021). Available at SSRN: https://ssrn.com/abstract=3859941 or http://dx.doi.org/10.2139/ssrn.3859941

Jacobien W. Rutgers (Contact Author)

VU University Amsterdam - Faculty of Law ( email )

De Boelelaan 1105
1081 HV Amsterdam
Netherlands

Wolf Sauter

Vrije Universiteit Amsterdam - Faculty of Law ( email )

Netherlands

Tilburg Law and Economics Center (TILEC) ( email )

Warandelaan 2
Tilburg, 5000 LE
Netherlands

Netherlands Authority for Consumers and Markets (ACM) ( email )

PO Box 16326
2500 BH The Hague
Netherlands

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