To Regulate or Not to Regulate Big Tech
6 Pages Posted: 23 Mar 2020
Date Written: February 17, 2020
Whether to continue relying on existing competition rules in the digital sector, or instead seek new competences and dedicated legislation, is the question for competition authorities in Europe. Several prominent reports (some at the request of those authorities) have posited this as the natural "evolution" of competition law. At this point, it may therefore be tempting to prepare for regulation and shuffle off the uncertainty that currently surrounds competition enforcement. This paper nevertheless asks if we should pause before overhauling a system that has served the EU well for many decades — even if only for the digital sector. Theory holds that principle-based rules are best suited to face novel situations, and that characterization fits the open-ended prohibitions of Articles 101 and 102 TFEU and merger control’s standard of "significant impediment to effective competition". The current discussion therefore shows a lack of trust in principle-based rules rather than a proved substantive gap. We suggest this is due to two factors: stepping outside the comfort of the Commission guidance, which has for long specified those principles to some degree, and the relatively early stage of the process of administrative and case law refinement of such principles to the digital context. The paper will show that, despite promising signs, it will take some time until competition principles are fleshed out for the digital sector. This path is more uncertain than regulation, and particularly dependent on the outcome of the judicial review of Commission decisions. It does, however, have the advantage of a tried-and-tested method to achieve administrative and judicial coherence. Importantly, our purpose is not to reject regulation that could complement this enforcement, in particular when it would serve public interests like the creation of a level-playing field or the protection of plurality and diversity. By analyzing the role of as-efficient competitors and innovation competition, we show how proactive competition enforcement can capture the specificities of digital markets.
Keywords: Competition Law; Digital Platforms; Innovation Competition; As-Efficient Competitor Test
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