Antitrust governance in an era of rapid change

Abstract

This study examines the potential for commitments-centred antitrust intervention in the digital economy. The ‘traditional approach’ advocates for a hands-off, light-weighted antitrust intervention when it comes to innovative, fast-moving markets. However, if we want to avoid a digital repeat of the cartelization and monopolization practices that made competition laws necessary at the time of their inception, enforcers should not remain inert. Commitments constitute an enforcement mechanism that is sensitive to the concerns of the traditional approach, while they enable enforcers to address swiftly and effectively competition problems. If such an enforcement tool is to play a role in antitrust governance of digital markets, a ‘threshold challenge’ should be tackled: First, do commitments lead to the abandonment of the struggle for the law or do they enhance legal clarity? Second, could commitments give rise to differential treatment of similar cases and, subsequently, undermine the predictable application of the law? These questions relate to two essential rule-of-law principles: legal clarity and legal certainty. I delve into Samsung commitments to assess the relationship between commitments and legal clarity. By unraveling the Booking.com saga I explore whether antitrust enforcers could dis-coordinate and impair legal certainty when they use this enforcement tool. The main argument presented here is that commitments are in practice in line with legal clarity and certainty, therefore they are at least an eligible candidate for antitrust intervention in digital markets.