New Times for Competition Policy in Europe: the Challenge of Digital Markets

Abstract

European competition policy is in the midst of a fundamental transformation. The ongoing tectonic movements are in every way comparable in relevance to the modernisation era and the rise of the ‘more economics-based approach’, which took o two decades ago. The winds of change will impact on the substantive aspects of the law, the institutions through which it is enforced and the very philosophy underpinning the system. The implications are not easy to calibrate at present, but the direction of travel is clear. Over the past 20 years, enforcement has been marked by caution and the emphasis on the speci c circumstances of each case. By contrast, the emerging ethos favours fast and decisive action to match the pace of change in online markets. In relative terms, this new incarnation of competition policy is less concerned with minimising errors. In addition, it does not seem to shy away from the administration of complex remedies—the very remedies that had long been con ned to exceptional circumstances. Although the reorientation of the discipline can be witnessed across the board, the focus has been placed, by and large, on digital markets. Online platforms—due not only to their sheer power but also to the economic features of the markets in which they operate—are deemed to demand an ad hoc set of rules. The adoption of sectorspeci c regimes (both at the EU andMember States’ level) is the single most visible manifestation of the new competition policy. Enforcement will no longer rely exclusively on Articles 101 and 102 TFEU (and their national counterparts). These sectoral initiatives are the best rationalised as a hybrid between competition law and traditional forms of economic regulation. Like the former, they are a response to (even a codi cation of) a number of concerns that have been examined by competition authorities. Like the latter, they provide for a number of ex ante duties without requiring an assessment of object or e ect of the underlying practices. Formally speaking, sector-speci c regimes have been presented both as an adjustment of competition law and