Taming Gatekeepers – But Which Ones?

The allegedly entrenched positions of certain dominant companies in the digital economy and the alleged inability of antitrust enforcement to prevent potential anticompetitive conduct by these firms have led several European jurisdictions to consider an overhaul of their competition policy approach. A common theme is giving competition authorities or newly created digital agencies the power to regulate firms with gatekeeper status. This article discusses the criteria that have been proposed in the EU, UK, and Germany for identifying the firms, or gatekeepers, that are to be subject to such regulation. It also highlights advantages and disadvantages of different approaches as well as challenges for practitioners in their implementation, and discusses some potentially far-reaching consequences due to inconsistencies in the proposed criteria across jurisdictions.

By Can Çeliktemur, Arnd H. Klein, Vivek Mani & Marc Rysman¹

I. INTRODUCTION

There has been extensive commentary on the allegedly entrenched positions of GAFA – Google, Amazon, Facebook, and Apple – and the inability of ex post enforcement of competition law to prevent potential anticompetitive conduct by these firms.² Several European jurisdictions are currently considering an overhaul of their competition policy approach towards dominant companies in the digital economy. A common theme is that competition authorities or newly created digital markets agencies could be given the power to regulate dominan