TechREG® Chronicle – Ex Ante Regulations

Dear Readers,

Classically, the competition rules are known as an ex post instrument, whereas (sectoral) regulation is known as ex ante. In reality, however, the lines between the two categories are frequently blurred. Ex ante competition rules are laid out in general terms in legislation (in the EU, in the Treaty, Regulations, and Guidelines issued by the EU Commission; and in the U.S., in Acts of Congress and the various guidelines issued by the FCC, FTC, and DOJ, among others). Competition authorities (and judges) take decisions that establish past behavior as having infringed those rules or not (and such decisions are typically regarded as ex post). 

Yet these decisions and judgments establish precedents and conventions that can reasonably be deemed to then form part of the corpus of ex ante rules, which are then used by companies and their advisors to guide their future advice and actions. As such, both ex ante rules proper and ex post actions by the authorities, in some sense, form part of a broader set of ex ante guidance for corporations in their commercial conduct.

That said, recently, particularly in the context of the regulation of the “platform economy” (including notably the EU Digital Markets and Digital Services Acts, and similar initiatives worldwide) the question of ex ante regulation proper has been gaining greater prominence. There has also been an evolution in the respective roles of ex ante regulation v. ex post competition enforcement i