FROM CONSUMER WELFARE TO FAIRNESS: A FUNCTIONAL
FRAMEWORK FOR CONTROLLING DIGITAL MARKETS AND
BEYOND UNDER EU COMPETITION LAW

Abstract

This thesis examines the growing tension between the consumer welfare standard and the emerging emphasis on fairness in the enforcement of EU competition law, particularly in the context of digital platform markets. While consumer welfare has become the dominant analytical benchmark in EU competition policy, this thesis argues that price-centred welfare analysis increasingly fails to capture competitive harms in digital environments characterised by zero-priced services, data-driven network effects, multi-sided markets, and ecosystem control. In response to these limitations, fairness has gained prominence in enforcement discourse and legislative initiatives, most notably through the Digital Markets Act (DMA), which elevates fairness and contestability to autonomous regulatory objectives.

Against this backdrop, the thesis advances the central argument that fairness should not be treated as a competing normative goal that displaces consumer welfare, nor as an abstract regulatory value detached from competition law doctrine. Instead, it proposes reconceptualising fairness as a functional analytical tool capable of supplementing consumer welfare analysis within Article 102 TFEU, particularly where traditional price-based indicators of harm are ineffective.

Methodologically, the thesis adopts a mixed approach combining doctrinal and comparative legal analysis, regulatory-policy assessment, empirical text-mining, and normative framework design. It first demonstrates the structural inadequacy of consumer welfare reasoning in digital markets. It then empirically traces the rise of fairness rhetoric through a computational analysis of European Commission decisions, national competition authority cases, and EU court judgments, showing that fairness considerations are already implicitly embedded in enforcement practice.

Building on these findings, the thesis develops a three-stage functional fairness framework. The framework consists of: (i) a proportionality-based, four-step fairness test designed to integrate fairness into Article 102 TFEU analysis in a structured and predictable manner; (ii) a behaviour catalogue linking recurring platform strategies to presumptive remedies; and (iii) a single gateway rule aimed at allocating cases between the DMA and Article 102 TFEU to prevent duplicative proceedings and double jeopardy risks. The framework is further tested through illustrative scenarios and shown to be adaptable beyond digital platform markets.

Overall, the thesis contributes a coherent analytical and institutional model that reconciles consumer welfare and fairness within EU competition law, offering a principled alternative to fragmented enforcement and parallel regulatory regimes.