Letter from the Editor, by Assimakis Komninos[1]
Dear Readers,
The advent of ex ante rules to deal with digital platforms – whether we call them “regulation” or “competition” is not so important – poses the inescapable problem of international conflicts of resolution and the demand for international coherence and cooperation. On October 12, 2022, the Digital Markets Act (“DMA”) will be published in the Official Journal of the EU and as of February 2024 (at the earliest), the DMA substantive obligations will be binding on “gatekeepers” designated by the European Commission. Elsewhere, such as in Germany, the UK, and Korea, such rules are already in existence or about to be introduced. The issue of international cooperation has already been posed in the relevant fora (ICN, OECD, etc.).
Not surprisingly, the G7 has taken interest with the area and the G7 digital ministers’ declaration in May 2022 refers to the aim to “further deepen cooperation, in particular through existing international and multilateral fora, on digital competition issues including with regards to platforms regulation and its implementation.” While doing so, the concrete objective is to compile a comprehensive overview of legislative approaches “in order to improve mutual understanding of relevant frameworks and rules in the G7, with a view to fostering greater coordination to support competitive digital markets.” Indeed, in the following days, a further G7 meeting will be held “to facilitate an exchange on enforcement and policy approaches related to competition in digital markets” and encourage “the continued exchange of information and experiences among G7 competition authorities.”[2]
All this shows that the present CPI special issue is very timely. The contributors of this CPI special issue are all particularly well placed to take a position on the question of the international impact of ex ante rules and of the possible cooperation in the digital area. Some are more optimistic than others are but they all recognize that some form of international cooperation is absolutely necessary.
I do not believe that the difference of substantive legal standards is an obstacle to such cooperation, although clearly divergence is not good for businesses and consumers alike. Of course, procedural and jurisdictional obstacles abound. As Harry First put it 25 years ago, “the dark side of antitrust harmonization has always been procedure, not the substantive rules of antitrust.”[3] Irrespective of whether substance or procedure is the main problem, the issue remains how to deal with the proliferation of ex ante rules and regulatory intervention and enforcement in this area.
Reading the contributions, one immediately realizes that there are no easy solutions. First, we have an issue of coherence among different legislative regimes and, second, an issue of divergence of specific regulatory interventions vis-à-vis conduct and practices that are essentially global.
Perhaps the solution is a practical one: The coherence problem can be alleviated by the de facto abstention from legislating when other jurisdictions have already legislated or by simply modelling closely the domestic rules on one of the existing legislative models. Similarly, the divergence of results problem can be resolved in practice by enforcers in one jurisdiction showing a degree of deference of enforcers in another jurisdiction, which are already dealing with a particular digital case – Frédéric Jenny calls this “enhanced cooperation.” In any event, we have to welcome that all these issues are now seriously discussed.
I hope that this CPI special issue is a useful contribution to the discussion.
Sincerely, Assimakis Komninos & the CPI Team[4]
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[1] Partner, White & Case LLP; Visiting professor at Panthéon-Assas University Paris II.
[2] See Ministerial Declaration of G7 Digital Ministers’ meeting, 11 May 2022, paras 25-29.
[3] See Harry First, “Towards an International Common Law of Competition,” in: Zäch (Ed.), Towards WTO Competition Rules, Key Issues and Comments on the WTO Report (1998) on Trade and Competition (Kluwer Law International, 1999), p. 96.
[4] CPI thanks White & Case for their sponsorship of this issue of the Antitrust Chronicle. Sponsoring an issue of the Chronicle entails the suggestion of a specific topic or theme for discussion in a given publication. CPI determines whether the suggestion merits a dedicated conversation, as is the case with the current issue of the Chronicle. As always, CPI takes steps to ensure that the viewpoints relevant to a balanced debate are invited to participate and that the quality of our content maintains our high standards.
