we are dealing with economic agents competing in the market with the economic agents who have been harmed. The fact that we are not dealing with an act between competitors raises serious doubts as to the applicability of the traditional unfair competition regime to such behavior. In this regime, as we have seen above, acts by competing economic agents, bound by a duty to act fairly, are punished, and not those by third parties, consumers, or others who are not acting in competition in the market. On the other hand, we note that Regulation (EU) 2019/1150 of the European Parliament and of the Council, specifically on promoting fairness and transparency for business users of online intermediation services, as well as the Digital Markets Act, establishes not only duties of loyalty in the design of these rating mechanisms, but also enshrines the right to effective means of redress against unfair practices. We may therefore question whether the principles of fairness and transparency resulting from the aforementioned regulations alter the scope of unfair competition law. In other words, consider whether the way in which digital platforms construct these rankings falls within the scope of unfair competition, even in relation to economic agents that are not in competition with the digital platform itself, particularly when these rankings are based exclusively on user comments. In the case of online intermediation service providers, the issue is all the more relevant given the larger market share covered by these services due to the aforementioned network effect, which is expressly reinforced in recital (61) of the Digital Markets Act, which states “The value of online search engines to their respective business users and end users increases as the total number of such users increases.” Therefore, the violation of these duties to act fairly, transparently, and impartially carries an increased risk of negative impact on free competition and, consequently, on the functioning of the market. However, we believe that, in this case, the protection of fair competition falls within the scope of competition law, as a mechanism that requires economic agents to adopt behaviors that are consistent with the preservation of an open market that goes beyond mere direct competitive relations. This falls within its objectives of ensuring the “proper functioning of the internal market” and “transparency, fairness, and effective remedies” for the benefit of professional users and end users of digital service providers covered by these regulations. 580 PEDRO DIAS VENÂNCIO
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