Brussels Effect? Convergence and Divergence on Platform Regulation in Transatlantic Competition Policy

The merits of ex ante regulation have sparked intense debate on both sides of the Atlantic. But their potential challenge to consistent Transatlantic competition policy and market regulation requires further consideration. The potential introduction of myriad new regulation and enforcement regimes across Europe, Germany, the UK, the U.S., and other jurisdictions is likely to put significant strain on an area of competition policy that has otherwise seen signs of increasing convergence. We explore here both the risk regulatory divergence on digital markets and the degree to which such divergence is likely to result in regulatory conflict or impose practical costs on market participants.

By Will Leslie & John Eichlin^[1]

Large digital platforms have captured the zeitgeist of current competition policy. The introduction of ex ante regulation for the sector represents one of the most significant changes in competition policy in decades. This proposed regulation is far from consistent, however, covering a slew of enacted and proposed legislation with a variety of mechanisms for achieving a myriad of policy goals. Its introduction is also expected to trigger a wave of litigation as market participants adjust to the new regulatory environment.^[2]

Of the many challenges, the risk of regulatory divergence has so far received little scrutiny. It carries, however, real practical significance. Competition regulators have over the last three decades sought to strengthen c