European Researcher Network on Fairness in Digital Markets and Artificial Intelligence (FIDMA) Research Directives and Priorities
Behrang Kianzad, 1 Fabrizio Esposito, 2 3
FIDMA treats fairness as essential to market legitimacy and departs from the notion of equitable exchange regarding transactions. It is entirely possible, desirable, and sustainable, that laws governing market activity pursue the dual aim of individual and societal gain in a manner conducive to social cohesion where the legal foundations of capitalism and political economy since time immemorial have pursued such dual objective. 4
A market order that tolerates disproportionate advantage enabled through abuse of market power, exploitative pricing, or structurally one-sided exchange again due to market power or network effects corrodes both legal legitimacy and the conditions of competitive process which is the main bedrock and the ultimate engine behind market transactions, a matter on which both Adam Smith and Karl Marx agree. 5
The end goal in the competitive process is to increase consumer welfare, 6 and true consumer welfare at that, as opposed to the total welfare pursued by neoliberal and Chicagoan schools of thought. Neither wealth maximization, 7 nor unsustainable consumption, can bring about a sustainable and equitable economic development, as the ever-more concentrated markets 8 and ever-increasing rents going from consumers to quasi-monopolist suppliers demonstrate. 9 Much of this development has been enabled by the dominance of a certain school of law and economics, 10 affecting major swaths of law, policy and enforcement, backed by industry lobbyists. 11 Despite many of the core assumptions, and predictions, of the said school have been void within the scientific community, those ideas are still hegemonic in many contexts. 12
Recent years have witnessed a growing academic, legal and economic opposition to the said influence, in face of real-world data and modern economic-behavioral insights which demonstrate that people have an intrinsic preference for fairness in transactions, 13 which wreaks havoc on basic economic models departing from the notions of total welfare or wealth maximization. Fairness can be modelled, measured and operationalized, 14 and fairness has since time immemorial been a moral, economic and legal concept relating to market exchanges. 15 Still, the challenge remains to define fairness alongside sound and familiar legal-dogmatic and legal-economic methods so that competition authorities, judges and practitioners can be assisted in using models which offers more than simply efficiency and utility maximization decrees.
For FIDMA, fairness is neither a subjective, sentimental concept, nor a mere rhetorical, value-signaling redistributive concern either ex-ante or ex post. It is constitutive of what allows market transactions to claim public justification and pursue the goal of consumer welfare, but also, consumer autonomy and consumer sovereignty.
These Research Directives and Priorities are future-oriented in a strict sense: not merely reactive to digital markets and AI, but capable of setting the terms on which fairness, exploitation, and equitable exchange are analyzed in the investigation of the laws and regulations aimed at Fairness in Digital Markets and Artificial Intelligence (“FIDMA Law”).
These Research Directives and Priorities proceeds from a simple but demanding
commitment:
Fairness must be made operational without being emptied of its normative force.
This commitment implies both conceptual discipline and institutional courage. Asking whether one should do with or without fairness in market law is not the correct question, as such a question denies that fairness has been at the heart of the European Integration project since the Treaty of Rome and, even more fundamentally, it is at the heart of Western market reflection since Ancient Greece, Roman Law, Scholastic thought and so on.
The correct and pressing question is how fairness should be defined, evidenced, and enforced, and how market law should be reconstructed recognizing that fairness is one of its building blocks. To this end, FIDMA endorses and recommends the following research directives in the investigation of FIDMA Law:
I. Research on FIDMA Law should challenge neoliberal and Chicago-school ideology
II. Clarify the relation between ‘fairness’, ‘consumer sovereignty’ and ‘consumer welfare’
III. FIDMA Law shall be coherent, practical, and effective
For each directive, a list of research priorities is suggested.
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I. Research on FIDMA Law should challenge neoliberal and Chicago-school ideology
Neoliberal and Chicago-school ideology places excessive trust in the capacity of market processes to deliver socially desirable outcomes and departs from the dual notion that in contrast to fairness, economic efficiency is an “objective”, “calculable” and “rational” policy aim for law and economics, and further, that people routinely prioritize (and should prioritize) utility and wealth maximization when engaging in economic activity. Neither of the claims are able to pass a basic ‘smell test’ to quote Ioannis Lianos, Ariel Ezrachi, Maurice Stucke, Paul Krugman, Joseph Stiglitz, John May and so on, all of whom are anything but “crazy Bolsheviks”, to quote said Ezrachi and Stucke, but rather have devoted all their lives to study and improve market economies. 16
This ideology has delivered a “20th Century Synthesis” 17 that has contributed to the ongoing polycrisis. Moreover, this ideology clearly distorts the content of EU legal doctrines 18 and in many instances, run counter to the statutory black letter of the Union Law and settled jurisprudence of the European Court of Justice. The old mainstream academic view on excessive pricing is a prime example of such influence, where enforcement of the law against excessive pricing was deemed by Chicagoan influenced scholars and jurists to wreak havoc on the main engine of market economy, namely the free determination of pricing. As a full decade of intensive enforcement against excessive pricing in the e.g. pharmaceutical sector demonstrates, such fears have not come to materialize. EU competition law has long been filtered by so-called “mainstream economics” scholars through assumptions that privilege efficiency, output, and wealth maximization are the only “values” or policy objectives to purse, while goals such as fairness, distribution, and enforcement agasint naked exploitation have been marginalized.
The long Chicago-influence encoded a normative preference for limited intervention, market self-correction, and skepticism toward naked exploitative abuse, even where legal texts and social expectations pointed in another direction. The More Economic Approach commitment to prioritize exclusionary practices over exploitative due to the latter alleged higher difficulty epitomizes this process in the EU, 19 an approach which never was fully endorsed by neither the CJEU, nor the legal service of the European Commission, which already at inception of the 2008 Guidance on the Commission’s enforcement priorities for exclusionary conduct by dominant firms declared it not be bound by it.
The intellectual hegemony of the 20th-Century Synthesis has also strongly influenced EU private law research. The belief that EU consumer law instrumentalizes consumers to the goal of creating the Internal Market is an example of the capacity of this perspective to influence also those who reject its normative implications. A similar phenomenon can be observed with the unduly equalization of the EU law average consumer with the rational choice theory homo oeconomicus, which reverts to the influence of the Chicagoan wealth maximization and total welfare approach.
As famously held by Milton Friedman, only a theory can beat a theory, and although
there are a myriad of initiatives challenging the Chicagoan approach, the challenge remains to create a more unified theory and critique.
Research priorities:
1. Intellectual genealogy and empirical demonstration. Trace, and more importantly, empirically demonstrate, how neoliberal ideas and the Chicago School, became dominant in academic analysis and enforcement, and identify the points where EU legal tradition diverged from or resisted that trajectory.
2. Critique of core assumptions. Identify certain cases and test the assumptions of perfect rationality, market self-correction, and the clean separation of efficiency from fairness against behavioral economics, empirical industrial organization, and legal doctrine.
3. Rediscovery of the European political economy tradition. Connect FIDMA Law with traditions that treat markets as institutional orders shaped by rights, reciprocity, and limits on domination, including e.g. Kantian and Aristotelian, but also modern thinkers such as Calabresi and Sunstein.
4. Fairness as an internal market principle. Develop the argument that fairness is neither a hollow, subjective, normative concept, nor an after-the-fact redistributive concern, but a constitutive principle of legitimate equitable exchange, especially in markets marked by gatekeeper power, dependency, lock-in, data asymmetries, and exploitative leverage.
5. Paradigm reconstruction. Articulate a 21st Century Synthesis combining equitable
exchange, proportional advantage, and non-exploitative market structure with
other aims such as innovation and efficiency.
II. Clarify the relation between ‘fairness’, ‘consumer sovereignty’ and ‘consumer welfare’
The terms ‘fairness’, ‘consumer sovereignty’ and ‘consumer welfare’ are too often assumed to refer to conflicting ideas. This view is an obstacle to the creation of simple conceptual frameworks. Moreover, it ignore the fact that each of these terms refers to essentially contested concepts 20 with multiple conception that can be in complex semantic and justificatory relationships. 21
Conceptions of fairness. Fairness is a multilayered concept. Fairness concerns can be vertical (between undertakings and consumers or workers), horizontal (between competitors or among consumers affected by crosssubsidisation), and publicinterest concerns. 22 In competition law, fairness is primarily a structural commitment, centered on the idea of competition on the merits; 23 unfairness arises whenever undertakings rely on market power, collusion, exclusion, or exploitation rather than genuine efficiencies: markets are fair when actors win through merit, when weaker market participants (consumers, workers) are not exploited, and when broader social goals—embedded in the EU’s social market economy—are respected. 24
In contract law, fairness is primarily a relational commitment, centered on the idea of equality in exchange; 25 different theories offer different grounds and specifications of this idea. A recent survey opposed freedombased views (which see fairness mainly as voluntary agreement and noninterference) to consequentialist, Kantian, Rawlsian, capabilitiesbased, and republican views. 26 Notably, the relevance of fairness for competition law has been often met with high degrees of skepticism. 27
Conceptions of consumer sovereignty. Consumer sovereignty can be understood through three progressively richer conceptions: taste sovereignty, will sovereignty, and interest sovereignty. 28
Taste sovereignty treats consumers as sovereign whenever producers satisfy their expressed preferences, aligning with total welfare views questioning neither whether choices promote welfare nor how welfare is distributed with producers. 29
Will sovereignty instead grounds sovereignty in consumers’ deliberate choices and incorporates obligations such as internalizing social costs and preventing monopoly rents. 30
The most demanding account, interestsovereignty, holds that consumers are sovereign when market outcomes are guided by the interests consumers have the moral obligation to take into account, allowing for justified limits on choice and recognizing the legitimate role of institutions in protecting those interests. 31 Notably, under the idealized conditions of perfect competition models, the three conceptions overlap and minimal regulatory intervention is necessary.
Conceptions of consumer welfare. Consumer welfare is also a concept that is easily mischaracterized. It begins with a commitment to maximising the welfare of consumers, understood broadly to include not only prices but also quality, range, service, and innovation. 32
Like consumer sovereignty, consumer welfare maximization is crucially an asymmetrical standard: it privileges consumers in the relevant market while disregarding the interests of producers, suppliers, workers, and even consumers in other markets; thus, this standard incorporates a distributional sensitivity that total welfare does not have.
At the same time, it ignores a series of socially relevant concerns, which will need therefore to be balanced against consumer welfare. The literature and practice include both reductionist and distortive readings of this concept. A reductionist reading privileges price and quantity effects—allegedly for being easier to prove. 33 Another one stresses the importance of preserving consumer choice. 34 Another issue regards the relationship between the effects on intermediate and final consumers. 35 The ‘Chicago Trap’ laid down by Bork 36 turns ‘consumer welfare’ into a Trojan Horse for total welfare maximization. 37
Research priorities:
6. Conceptual clarification. Distinguish fairness from mere political rhetoric and define its components: value, reciprocity, proportionality, non-exploitation, and institutional legitimacy.
7. Epistemic translation (I). Identify the conditions under which fairness can be used interchangeably with other normative concepts, with particular attention being paid to consumer sovereignty and consumer welfare.
8. Structural integration. Reflect on the possibility that apparently irreconcilable concepts can be placed in justificatory relations.
III. FIDMA Law shall be coherent, practical and effective
The core institutional challenge for lawmakers, practitioners, judges and academics is offering a coherent, practical and effective interpretation of the principle within emerging markets and market practices.
Digital law shall be coherent. Coherence is a foundational quality of normative systems. For digital law this means, first of all, that time-honored notions of fair exchange should be used for assessing new economic activities, mindful in particular of the higher granularity allowed by technology, which implies that systematic microaggressions may build up socially alarming aggregate harm (eg, algorithmic recommendations and price personalization). 38 Coherence is fundamental not only from a normative point of view, but also institutionally. Coherence is particularly challenging to achieve in relation to fairness: being an essentially contested concept, fairness can lead to incoherent decisions by relevant authorities and courts.
Coherent FIDMA Law is necessary to ensure that what is prohibited offline is prohibited also online. This commitment—often expressed in terms of technological neutrality—derives from the duty of equal treatment between economic agents and is essential to ensure a level playing field and safeguard the competitive process. FIDMA Law shall be practical and effective. The principle of effectiveness, derived from the Charter and the right to an effective judicial protection, has settled as a pivotal instrument of transformation and adaptation in EU law. 39 It is also central in EU policy-making (Fitness Checks, fit-fort-purpose). The digital world is no exception. To be effective, FIDMA Law must be practical: FIDMA Law must rely on doctrinal tests that can be reliably applied even if the application is evidentiary demanding. 40 Taking effectiveness seriously also requires a recalibration of the attention paid to substance vis-a-vis enforcement. In particular, more attention needs to be paid to enforcement mechanisms. Few economic agents will take substantive frameworks seriously unless they are baked up by credible enforcement mechanisms, why despite a tidal wave of digital regulations, few cases are seen where end-users or smaller competitors have been able to avail themselves of the emerging regulations, which casts serious doubt on the effectiveness and enforceability of the said regulations.
Research priorities:
9. Doctrinal mapping. Map how fairness already appears in EU market law (eg, Articles 101 and 102 TFEU, the UCTD, the UCPD, the P2B Regulation, the DSA, the DMA, and national rules on just price, laesio enormis, economic dependence and exploitative abuse).
10. Comparative mapping. Compare how fairness already appears in EU market law with how it appears in functional equivalents outside the EU.
11. Epistemic translation (II). Identify the conditions under which terms coming from different disciplines (eg, dark patterns; digital vulnerability) can be incorporated into the relevant legal doctrines.
12. Operationalisation. Develop practical benchmarks for identifying unfairness, including cost-plus analysis, pre-crisis or pre-lock-in prices, comparator markets, disproportionate margin analysis, lack of transparency, and imbalance-of- obligations tests.
13. Evidentiary discipline. Clarify what counts as persuasive evidentiary strategy of unfairness, how theories of harm emerge and how they rely on factors such as market structure, dependency, switching constraints, demand inelasticity, abnormal mark-ups, durable wealth transfer, heuristics and biases, as well as the types of evidence that is needed to prove said factors.
14. Remedy architecture. Complement standards of fair conduct with remedies that authorities and courts can actually use, such as: price reductions, disgorgement, interoperability duties, no-retaliation obligations, structural separation where needed, and forward-looking compliance standards, predictable criteria for the quantification of fines and damages (following the example of Regulation 261/2004).
15. Enforcement reform. Priorities in this area include: reforming collective redress to include opt-out mechanisms, sensible class construction requirements and a friendly environment to profit-based logics; structured enforcement and coordination mechanisms between public authorities to avoid ne bis in idem defenses.
1 Founder, European Researcher Network on Fairness in Digital Markets and AI (FIDMA); Senior Researcher, Department of Global Political Studies, Malmö University.
2 Co-Founder, FIDMA; Associate Professor in Private Law at the NOVA School of Law.
4 “A Neo-Kantian Approach to Competition Law? – The Re-Emergence of Fairness in Antitrust Law & Policy,” in Inframarginalism and Internet, ed. Ramsi Woodcock (Cambridge University Press, 2024); Ioannis Lianos, “Competition Law as a Form of Social Regulation,” The Antitrust Bulletin 65, no. 1 (2020): 3–86; Joseph Stiglitz, “Towards a Broader View of Competition Policy,” in Competition Policy for the New Era: Insights from the BRICS Countries, ed. Tembinkosi Bonakele et al. (Oxford University Press, 2017).
5 Matthias P. Hühn, “Adam Smith’s Philosophy of Science: Economics as Moral Imagination,” Journal of Business Ethics 155, no. 1 (2019): 1–15; Mark D. White, “With All Due Respect: A Kantian Approach to Economics,” in The Oxford Handbook of Ethics and Economics, by Mark D. White, ed. Mark D. White (Oxford University Press, 2019.
6 Viktor J. Vanberg, “Consumer Welfare, Total Welfare and Economic Freedom – On the Normative Foundations of Competition Policy,” in Competition Policy and the Economic Approach: Foundations and Limitations, ed. Josef Drexl et al. (Edward Elgar Publishing, 2011).
7 Ronald M. Dworkin, “Is Wealth a Value?,” The Journal of Legal Studies 9, no. 2, (1980): 191–226; Anthony T. Kronman, “Wealth Maximization as a Normative Principle,” The Journal of Legal Studies 9, no. 2 (1980): 227–42.
8 Pauline Affeldt et al., “Market Concentration in Europe: Evidence from Antitrust Markets,” Deutsches Institut Für Wirtschaftsforschung, DIW Berlin Discussion Paper No. 1930, 2021; Jan De Loecker et al., “The Rise of Market Power and the Macroeconomic Implications*,” The Quarterly Journal of Economics 135, no. 2 (2020).
9 Behrang Kianzad, “The Giant Awakens: Law and Economics of Excessive Pricing During the COVID-19 Crisis,” in Law and Economics of the Coronavirus Crisis, vol. 13, ed. Klaus Mathis and Avishalom Tor, Economic Analysis of Law in European Legal Scholarship (Springer International Publishing, 2022).
10 Robert Pitofsky, How the Chicago School Overshot the Mark : The Efect of Conservative Economic Analysis on U. S. Antitrust (Oxford University Press, Incorporated, 2008).
11 Dzmitry Bartalevich, “The Influence of the Chicago School on the Commission’s Guidelines, Notices and Block Exemption Regulations in EU Competition Policy: The Influence of the Chicago School,” JCMS: Journal of Common Market Studies 54, no. 2 (2016): 267–83.
12 Maurice E. Stucke and Ariel Ezrachi, Competition Overdose: How Free Market Mythology Transformed Us from Citizen Kings to Market Servants (Harper Business, 2020);
13 Domen Malc et al., “Exploring Price Fairness Perceptions and Their Influence on Consumer Behavior,” Journal of Business Research 69, no. 9 (2016): 3693–97; Daniel Kahneman et al., “Fairness as a Constraint on Profit Seeking: Entitlements in the Market,” The American Economic Review 76, no. 4 (1986): 728–41.
14 Lee Ann Fennell and Richard H. McAdams, eds., Fairness in Law and Economics, Economic Approaches to Law Series (Edward Elgar Publishing, 2013); Alexander W. Cappelen and Bertil Tungodden, eds., The Economics of Fairness, The International Library of Critical Writings in Economics Series (Edward Elgar Publishing, 2019).
15 Oswald von Nell-Breuning, “The Concept of Just Price,” Review of Social Economy 8, no. 2 (1950): 111–22; Daryl Koehn and Barry Wilbratte, “A Defense of a Thomistic Concept of the Just Price,” Business Ethics Quarterly 22, no. 3 (2012): 501–26; Behrang Kianzad, What Makes A Price (Un)Fair)? Excessive Pharmaceutical Pricing in European Competition Law (Det Juridiske Fakultet, København, 2022).
16 Stucke and Ezrachi, Competition Overdose: How Free Market Mythology Transformed Us from Citizen Kings to Market Servants.
17 J Britton-Purdy and others, ‘Building a Law-and-Political-Economy Framework: Beyond the Twentieth-Century Synthesis’ (2020) 129 The Yale Law Journal 1784; K Thelen, Attention, Shoppers!: American Retail Capitalism and the Origins of the Amazon Economy (Princeton University Press 2025).
18 F Esposito, The Consumer Welfare Hypothesis in Law and Economics: Towards a Synthesis for the 21st Century (Edward Elgar Publishing 2022).
19 Kianzad B, ‘Are Excessive Pricing Cases Few and Far between? A Quantitative Analysis of Fifty Years of European Jurisprudence 1971–2021’ (2023) 2023(3) Concurrences Review 0.
20 WB Gallie, ‘Essentially Contested Concepts’ (1956) 56 Proceedings of the Aristotelian Society 167.
21 F Esposito, ‘On the Analytical Strategies for Law and Political Economy Research: Structural Integration and Epistemic Translation Are Better than Isolationism to Study the Legal-Economic Nexus’ (2026) European Law Open 1.
22 F Ducci and M Trebilcock, ‘The Revival of Fairness Discourse in Competition Policy’ (2019) 64 The Antitrust Bulletin 79.
23 Judgment of 21 September 2023, Romaqua Group SA, C-510/22, EU:C:2023:694, paragraph 33; A Pera, ‘Fairness, Competition on the Merits and Article 102’ (2022) 18 European Competition Journal 229.
24 F Esposito, ‘Fairness and Equal Distribution of Wealth’, forthcoming in Elgar Competition Law Encyclopedia.
25 J Gordley, ‘Equality in Exchange’ (1981) 69 California Law Review 1587.
26 M W Hesselink, Justifying Contract in Europe: Political Philosophies of European Contract Law (Oxford University Press 2021).
27 Recently, for example, G Colangelo, ‘In Fairness We (Should Not) Trust: The Duplicity of the EU Competition Policy Mantra in Digital Markets’ (2023) 68 The Antitrust Bulletin 618.
28 F Esposito, ‘Consumer Sovereignty and Efficiency’ Encyclopedia of Law and Economics (Springer2025).
29 A Schwartz, ‘Proposals for Products Liability Reform: A Theoretical Synthesis’ (1988) 97 The Yale Law Journal 353.
30 WH Hutt, ‘The Concept of Consumers’ Sovereignty’ (1940) 50 The Economic Journal 66.
31 P Penz, Consumer Sovereignty and Human Interest (Cambridge University Press 1986).
32 OECD, The Consumer Welfare Standard – Advantages and Disadvantages Compared to Alternative Standards, OECD Competition Policy Roundtable Background Note (2023), www.oecd.org/daf/competition/consumer-welfare-standard-advantages-and disadvantages-to-alternative-standards-2023.pdf.
33 H Hovenkamp, ‘The Slogans and Goals of Antitrust Law’ (2023) 25 New York University Journal of Legislation and Public Policy 705.
34 NW Averitt and RH Lande, ‘Consumer Sovereignty: A Unified Theory of Antitrust and Consumer Protection Law’ (1997) 65(3) Antitrust Law Journal 713.
35 Compare L Iannos and C Milliou, ‘Advantages and Disadvantages of Competition Policy Standards’, CLES Policy Papers Series 1/2024 with Judgment of 12 May 2022, Servizio Elettrico Nazionale and Others, C-377/20, paragraph 41.
36 RH Bork, The Antitrust Paradox. A Policy at War with Itself (Basic Books 1978). DA Crane, ‘The Tempting of Antitrust: Robert Bork and the Goals of Antitrust Policy’ (2014) 79 Antitrust Law Journal 835.
37 D Hildebrand, The Role of Economic Analysis in EU Competition Law: The European School (Kluwer Law International 2016).
38 F Esposito and M Grochowski, ‘Introduction: Algorithmic Price Personalization: From Laesio Enormis to Laesio Algorithmica?’ in F Esposito and M Grochowski (eds), The Cambridge Handbook of Algorithmic Price Personalization and the Law (Cambridge University Press 2025).
39 C Mak, ‘Rights and Remedies. Article 47 EUCFR and Effective Judicial Protection in European Private Law Matters’ in H-W Micklitz (ed), Collected Courses EUI Summer School ‘The Constitutionalization of European Private Law (Oxford University Press) 242.
40 D Mantzari, ‘Regulating FRAND Access to App Stores under the DMA’ (2026) Journal of Competition Law & Economics nhag001.
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FIDMA endorses these research directives and priorities because they are very likely to strongly contribute to the meaningful connection between research, law making and enforcement in the governance of digital activities through FIDMA Law.