Regulation in the Digital Economy. Is Ex-Ante Regulation of 'Gatekeepers' An Efficient and Fair Solution?

Abstract

The European Commission (hereinafter “the Commission”) recently released two Inception Impact Assessments (IIA) and public consultations on a possible new competition tool and a possible ex-ante regulation of large online platforms (so-called “gatekeepers”). After the publication of many reports on the topic “competition law in the digital economy”, the Commission is ready to act by adapting its antitrust law and by regulating large digital players before the end of the year (Q4-2020). To regulate or not to regulate is not anymore a Shakespearian issue. A regulation is inevitable. If the why seems obvious the how is still an open question. Should the regulation be symmetric (applicable to all firms equally) or asymmetric (applicable only to large online platforms against objective criteria)? From a law and economics point of view, an ex-ante asymmetric regulation may not only be inefficient but also unfair. Section I provides a brief summary of why a regulation is necessary and section 2 explains why an ex-ante asymmetric regulation is not an efficient and fair solution.