Competition Policy for the Digital Era

A number of recent reports and studies has discussed the need for competition law reform in the digital era, in particular with a view to exclusionary conduct by digital platforms and with a view to data access. While these reports share a common analysis, they diverge in their recommendations: Can we handle the new challenges on the basis of the existing set of competition rules? Do we need a new set of tests of abuse? Or do we need to shift from ex post competition law enforcement to ex ante regulation? In this article, we compare the reports. In particular, we discuss the need to shift from an effects-based analysis to “by object” prohibitions for dominant digital platforms, the need to promote data portability and interoperability, and the need for procedural reform, namely for a voluntary notification procedure for novel forms of cooperation. We conclude with some remarks on the need to adjust the enforcement style in light of the uncertainties of the digital era.

Heike Schweitzer & Robert Welker¹

I. INTRODUCTION

The digital economy poses new conceptual challenges for competition policy. A number of recent reports and studies concur in this finding.² In a novel way, the digital economy is characterized by extreme returns to scale, positive network externalities that can prevent a superior platform from displacing an established incumbent, and a novel role for data as a crucial input to many online services,