Separation of Powers and Antitrust: On Common Grounds?

Abstract

The separation of powers principle and antitrust both relate to power and notably deal with the concentration of power. Both occupy center stage in our challenging times, but their respective histories differ and their interactions have never been examined. Even though one relates first and foremost to state power and the other to economic power, they may indeed interact in two ways, especially in an era that sees an unprecedented accumulation, by a few firms of the digital economy, not only of economic power but also of political power.

On the one hand, separation of powers-type considerations may be used in antitrust matters. The concentration of power in one company, including the power to adopt rules which set standards for an industry and have a broad impact in society, raises questions which are similar to some at the heart of the separation of powers principle. Antitrust may establish requirements for checks and balances within or for a firm. The latter may even have to abandon the control over the content of important principles, rules or codes.

On the other hand, the concentration of power in dominant or monopoly firms whose platforms or search engines have become part of the political and electoral process means a partial rethinking of the separation of powers principle. Non-discriminatory access to these firms’ services and products allowing the targeting of voters becomes an important issue in this context. Antitrust may play a role in this respect and help preserve or rebuild some trust in democracy, though this should be considered as one of its rather indirect goals. In this regard, some separation between “data power” and political power may result from the intervention of antitrust authorities. Antitrust may thus contribute to some form of separation of powers in a data era and, ultimately, to trust.

Keywords: Separation of Powers, Antitrust, Digitalization, Data Power