Tackling challenges posed by the digital economy : is regulation the missing counterpart to competition law?

Abstract

An often and widely raised question in Competition Law is whether traditional practices and Competition Law tools are sufficiently effective and appropriate for the new digital economy. This issue has been heavily debated over the past years. Whilst some argue that the current framework is capable of adaptation for the new digital era, others are of the opinion that modifications thereto and the introduction of new regulatory tools are necessary. The developments which have taken place within the digital economy have evidently created many challenges for the application of Competition Law rules and their effectiveness, primarily due to the fact that these rules were originally enacted taking into account the characteristics of the traditional non-digital economy. This has led to many divergent views as to which path Competition Law should take in the near future whilst keeping in mind that the adaptation and development of competition law and policy is crucial to maintain markets of a competitive nature. The current framework applies a mainly ex post approach to competition law infringements. However, due to the challenges competition law rules face when applied to the digital economy, it has been debated whether an ex ante approach would be complementary. On 15 December, 2020, the Commission proposed a Digital Markets Act as a new Regulation in its attempt to solve the problems competition law rules are facing. This proposed Act has been heavily scrutinised and subject to criticisms from all around the world. Nonetheless, its provisions reveal the Commission’s determination to resolve problems which have surfaced over recent years. This dissertation provides an analysis on the current debate as to what best suits the competition law framework – ex ante regulation, ex post competition law, or a combination of both. It also delves into the Digital Markets Act, analysing whether it can really be considered as a remedy to the problem.