Competition Policy in Digital: A New Consensus?

Yesterday, we held in Brussels a conference on "Competition Policy in Digital Markets: A New Consensus?". Bottom line after a full day: as Professor Pablo Ibanez said, we are at a "starting point". Though there are pressing demands on enforcers to act, all panelists agreed that there is a lot of complexity in digital, and we will need time to understand all the issues.

In his Keynote, Sir Christopher Bellamy mentioned 4 possible routes: (1) modify/tweak some rules; (2) radical approach as with data portability, mobility and interoperability; (3) regulate like in credit card charges with perverse effect of preventing emergence of EU player; (4) do nothing and let technology march on.

Panel 1 on state of play after the digital competition reports came out with clear conclusions. The panel ruled out routes (4) do nothing (2) radical reform. The general feeling was that we should stick with our system of antitrust and we do not want to break it by overreach. The panel expressed preference for route (1). The tools we have are the right ones, we just need to use them and be smarter, that is alert to new theories of harm and up to speed on how the tech sector works. The panel also expressed support to route (3), ie regulation. There, a two tier set of instruments was discussed: one tier applicable to everyone, so as to set personal rights (democracy; GDPR; media plurality; hate speech etc); and a second one only applicable to bigger players - those with SMP.

Panel 2 on "killer mergers" came with straightforward messages too: to start, pharma is not digital. Besides, "killer" is a bad term for analytical purposes. And there is still a lot of uncertainty on the occurrence of socially harmful deals at levels of magnitude. More information to agencies on M&A with startups is a good idea.

Panel 3 on data sharing, interoperability and portability stressed that this is definitely an area where things should be moving, but not necessarily to create horizontal competition to search engines, social networks and other platforms. Rather the panel seemed more supportive of using data sharing to allow complementors in markets. Clearly, regulation seems a better approach than antitrust. One panelist mentioned support to creation of public sector operators that would provide services with strong public goods dimension (eg, privacy). The panel did not support micropayments to users for data, as insignificant and unpractical. Assistance to infomediaries business models could help.

Panel 4 on competition and regulation sent words of warning. The boundary between antitrust and regulation is elusive, and easy to cross. Though regulation might be needed once we feel confident to abstractly generalize that conduct leads to systematic harm, the panel was quite clear that competition law is not about adressing dominance in itself, or lower levels of market power like bottleneck power, superior bargaining power or other. The idea of imposing competition law obligations on "platforms as regulators" has little support in case-law. Currently, claims to that effect are "speculative" said one member of the panel, and will likely not pass muster in Court.

So, to the question "a new consensus?", the answer seems to be: not so fast