Benefits and Limitations of a Behaviourally Informed Regulatory Framework for Digital Markets

Abstract

This contribution makes a case for a regulatory framework for digital markets, with an individualised approach to analysis (and potential prohibition) of the behaviour of an individual addressee with set ex ante rules. It builds on discussions of two modern day trends in competition law and regulation: competition in digital markets and the question of a behaviourally informed approach to law and regulation. While the former is the natural result of the growth of the digital economy, it turned out to be a formidable challenge for both competition authorities and, later on, legislators. The latter has been a topic discussed in academic literature, an approach mentioned in several recent communications of the European Commission, and arguably a fact of life in recent competition enforcement. The contribution argues that introducing new regulation may contribute to a decrease in the uncertainty of enforcement and help solve certain issues related to the difficulty in finding clear cut legal tests for some conducts on the digital markets. In cases where regulation interferes with cases of behavioural exploitation, its benefits could be jeopardised by introducing ex ante rules that do not allow an individualised approach. For that reason, it is argued that rules on conduct that can foreseeably entail behavioural exploitation allow for specification by way of decision or some other suitable form of individualisation.

Keywords: competition law, behavioural economics, regulation, behaviouralism, theory of harm