Now that both the EU and China have established comprehensive legal regimes on AIPD, the question arises as to whether current legal regimes can effectively tackle anti-competitive AIPD. To answer this question, this chapter establishes a theoretical framework that provides benchmarks to evaluate the effectiveness of the current legal regimes in the EU and China. Within the theoretical framework, optimal deterrence (measured by a cost-benefit analysis model to minimise error costs and enforcement costs) serves as a benchmark for the evaluation. In addition to these interrelated economic considerations, retributive justice and corrective justice are also taken into account. A comparative law and economics analysis of the EU and China is conducted to evaluate the effectiveness of current legal regimes in addressing undesirable types of AIPD. Based on the comparative law and economics analysis in the EU and China, both share common characteristics in their legal regimes and enforcement mechanisms for tackling competition concerns caused by AIPD. The EU and China both have dual competition law enforcement systems in a decentralised model to deter and punish infringement of abuse of dominance. This enforcement system operates ex-post and imposes legal liabilities to terminate and deter infringement in the market. However, the enforcement systems of the EU and China do not seem to be optimal because of (1) the inadequate deterrence created by the ex-post assessment model, the few choices of sanctions and the low fines in competition law; (2) error costs of false negatives and false positives in private and public enforcement; and (3) high administrative costs to detect, prosecute and punish infringement on enforcers, along with information costs, litigation costs and human resources expenses on undertakings and victims. There are also differences between the EU and China in terms of legal regimes of the jurisdictions and different goals pursued in competition law. Those differences may lead to different tradeoffs in competition law enforcement, which requires further examination. Since AIPD can be employed by both dominant and non-dominant undertakings, the EU and China also establish frameworks to tackle it based on rules beyond competition law. These rules in the EU and China deal with the three phases of AIPD, which include (1) the collection and use of consumers’ personal information, (2) the prediction of consumers’ willingness to pay and (3) the application of discriminatory pricing. In general, data protection rules can serve as an ex-ante measure to regulate the collection and processing of consumer data, which can prevent the prediction of consumers’ willingness to pay. As a complement to indirect consumer protection in competition law, consumer protection rules can provide a direct remedy to protect consumer welfare in the case of damages caused by AIPD. Beyond that, rules on fair competition protection can capture AIPD in general. In the digital era, legislative changes and active enforcement of these rules demonstrate the proactive attitudes of the EU and China to address concerns caused by misbehaviours, including AIPD. Close cooperation in the enforcement of those rules would contribute to achieving the goal of optimal deterrence. Nevertheless, the regulatory attitude of the EU seems to be more active in the enforcement of data protection rules and fair protection rules compared to China, which may influence the effectiveness of these rules. The EU and China have different rule-making models regarding consumer protection rules, which may also affect in the enforcement of AIPD-related rules. Although infringements at different stages of AIPD can be dealt with by competition law and beyond, it is important to note that these legal instruments have different goals, which may sometimes conflict with each other. Therefore, a detailed case-by-case analysis may be required to balance different values during legal enforcement to tackle anti-competitive and welfare-reducing AIPD. It is also possible to exclude cases that directly infringe data protection and/or consumer protection law from competition law so that competition law can focus specifically on competition on the merits.

A Comparative Analysis of Legal Regimes to Tackle Anti-competitive AIPD in the EU and China

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发表日期：

2025年

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Qian Li

摘要

Now that both the EU and China have established comprehensive legal regimes on AIPD, the question arises as to whether current legal regimes can effectively tackle anti-competitive AIPD. To answer this question, this chapter establishes a theoretical framework that provides benchmarks to evaluate the effectiveness of the current legal regimes in the EU and China. Within the theoretical framework, optimal deterrence (measured by a cost-benefit analysis model to minimise error costs and enforcement costs) serves as a benchmark for the evaluation. In addition to these interrelated economic considerations, retributive justice and corrective justice are also taken into account. A comparative law and economics analysis of the EU and China is conducted to evaluate the effectiveness of current legal regimes in addressing undesirable types of AIPD. Based on the comparative law and economics analysis in the EU and China, both share common characteristics in their legal regimes and enforcement mechanisms for tackling competition concerns caused by AIPD. The EU and China both have dual competition law enforcement systems in a decentralised model to deter and punish infringement of abuse of dominance. This enforcement system operates ex-post and imposes legal liabilities to terminate and deter infringement in the market. However, the enforcement systems of the EU and China do not seem to be optimal because of (1) the inadequate deterrence created by the ex-post assessment model, the few choices of sanctions and the low fines in competition law; (2) error costs of false negatives and false positives in private and public enforcement; and (3) high administrative costs to detect, prosecute and punish infringement on enforcers, along with information costs, litigation costs and human resources expenses on undertakings and victims. There are also differences between the EU and China in terms of legal regimes of the jurisdictions and different goals pursued in competition law. Those differences may lead to different tradeoffs in competition law enforcement, which requires further examination. Since AIPD can be employed by both dominant and non-dominant undertakings, the EU and China also establish frameworks to tackle it based on rules beyond competition law. These rules in the EU and China deal with the three phases of AIPD, which include (1) the collection and use of consumers’ personal information, (2) the prediction of consumers’ willingness to pay and (3) the application of discriminatory pricing. In general, data protection rules can serve as an ex-ante measure to regulate the collection and processing of consumer data, which can prevent the prediction of consumers’ willingness to pay. As a complement to indirect consumer protection in competition law, consumer protection rules can provide a direct remedy to protect consumer welfare in the case of damages caused by AIPD. Beyond that, rules on fair competition protection can capture AIPD in general. In the digital era, legislative changes and active enforcement of these rules demonstrate the proactive attitudes of the EU and China to address concerns caused by misbehaviours, including AIPD. Close cooperation in the enforcement of those rules would contribute to achieving the goal of optimal deterrence. Nevertheless, the regulatory attitude of the EU seems to be more active in the enforcement of data protection rules and fair protection rules compared to China, which may influence the effectiveness of these rules. The EU and China have different rule-making models regarding consumer protection rules, which may also affect in the enforcement of AIPD-related rules. Although infringements at different stages of AIPD can be dealt with by competition law and beyond, it is important to note that these legal instruments have different goals, which may sometimes conflict with each other. Therefore, a detailed case-by-case analysis may be required to balance different values during legal enforcement to tackle anti-competitive and welfare-reducing AIPD. It is also possible to exclude cases that directly infringe data protection and/or consumer protection law from competition law so that competition law can focus specifically on competition on the merits.