Abstract
The United Kingdom, like many jurisdictions, is introducing more demanding ex ante regulation for the digital economy. Centered on the work of a Digital Markets Unit located within the existing copetition authority, the U.K. proposals are defined by an explicit commitment to “pro-competition” regulation. This article traces the evolution and emerging design of the forthcoming U.K. regime. It then explores the notion of pro-competition regulation in greater detail. While the concept increasingly transcends its domestic origins, this article argues that the balancing act between conventional competition law and traditional regulation that it reflects can be fully understood only when located within the distinctive circumstances of the wider U.K. regulatory landscape.
[D]igital markets will only work well if they are supported with strong pro-competition policies that open up opportunities for innovation, and counter the forces that can lead to high concentration and a single winner.
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I. Introduction
Regulating the digital economy is the focal point of the most vigorous and prominent competition policy debates today. Although reasonable scholars and policymakers continue to debate the finer details of how best to do so, there is “growing consensus” 2 that more ought to be done, and that this should or must transcend conventional modes of competition enforcement. In the United Kingdom, this is reflected in ambitious plans to enact a sector-specific regulatory regime for the digital economy, to not only augment but also exceed the existing competition law framework. Centered on the work of a Digital Markets Unit (DMU) located within the U.K. competition agency, the Competition and Markets Authority (CMA), the new regime is intended to “pro-actively shape the behavior of digital firms with significant and far-reaching market power, by making clear how they are expected to behave.” 3 Although the United Kingdom is not unique in its plans to enact more demanding ex ante regulation of large digital firms, it was a notable early advocate of such an approach, premised on an explicit regulatory commitment to so-called pro-competition. This contribution explores the notion of pro-competition regulation, by locating the anticipated digital regime within the distinctive context of the United Kingdom’s competition system and beyond, and by considering its potential to provide a more effective response to the perceived competition problems of digital markets.
The DMU and pro-competition regime have their origins in a 2019 report prepared by an independent Digital Competition Expert Panel (DCEP) for the U.K. Government, titled “Unlocking Digital Competition,” but known colloquially as the Furman Report. 4 The Furman Report pitched its prescriptions as lying between two policy extremes: rejecting both the argument that effective competition is impossible in digital sectors (which would support a regulatory approach of overreaching the market mechanism through a category of utility-type regulation) and that existing levels of competition are perfectly adequate (so that no further regulatory intervention would be required). 5 The Furman Report’s pro-competition proposals thus adopted the undergirding logic of conventional competition law—that it is preferable to support and enhance competition dynamics, rather than to supplant them with top-down regulation—but anticipated a rather more interventionist prospective approach. In doing so, it implicitly endorsed concerns about the effectiveness of “more economic” approaches to competition law, 6 while nonetheless reflecting well-established criticism of more static varieties of regulation—the latter being a particularly acute concern in the dynamic context of the digital economy. The object of this article is to gain a more nuanced understanding of how the concept of pro-competition is reflected within this regulatory balancing exercise, and what this means in practice for the digital economy.
The article is structured as follows. Section II sets the scene by examining the specific competition issues that arise within the digital economy, through the lens of the analysis of the Furman Report. Section III sketches the proposed structure and anticipated functions of the DMU, the finer details of which remain unsettled at the time of writing. Section IV explores more directly the notion of pro-competition regulation, assessing the proposals by comparison with both the current competition law and sector-specific regulatory frameworks within the United Kingdom. Section V concludes briefly.
II. Setting the Scene: The Distinctiveness of Digital Markets
It is a truism of contemporary competition policy that a well-functioning digital economy has the potential to deliver extraordinary benefits to consumers, 7 but that such advantages are unlikely to be realized absent intervention to correct certain dysfunctional market dynamics. In short, the crux of the concern is that digital sectors tend inherently and inexorably toward concentration, resulting in market structures populated by only a handful of huge and powerful “Big Tech” giants. The particular features of digital markets have been explored comprehensively in a series of influential policy reports in recent years. 8 The Furman Report constituted the principal U.K. contribution to this lively debate and the springboard for the regulatory proposals that have followed. In this section, we outline briefly the market features highlighted in Chapter 1 of the Furman Report specifically, on the basis that the pro-competition regime that it has initiated is intended, it might be assumed, to address these concerns.
The terms of reference establishing the DCEP asked it “to consider the potential opportunities and challenges the emerging digital economy may pose for competition and pro-competition policy.” 9 The Furman Report declined to define the digital economy as such but focused its attention on “areas where the intensive use of digital technology is central to the business models of the firms that operate primarily within them and where this raises challenges for competition.” 10 It nonetheless identified online platforms as being “central” in this context. 11 This, moreover, implicated two frequent characteristics of online platform markets: zero-monetary upfront costs for consumers coupled with the centrality of big data within the business models utilized. 12
Excessive concentration in digital markets was the key regulatory concern identified. The Report considered, in particular, problems of concentration in online search, social media, digital advertising, mobile operating system and app store, online marketplace, and high-technology consumer hardware markets. 13 Yet despite differences across sectors, the Report identified a more overarching problem of concentration within the digital economy as a whole, noting that “[w]here competition does exist in digital markets, this is frequently between a small subset of the five largest digital companies.” 14 These are the so-called GAFAM: Google, Amazon, Facebook, Apple, and Microsoft.
The Furman Report then examined the causes of concentration in digital markets. It began by identifying three factors, which are well recognized as “key characteristics of the digital economy” 15 : economies of scale and scope, the central role of data and the advantage this provides to incumbents, and network effects.
First, economies of scale arise where there are high upfront costs to entering a market segment, coupled with low or near-zero costs to add additional users. 16 Although not unique to digital markets, the extent to which they can be achieved in this context has been described as “extreme,” 17 thus providing incumbents with significant competitive advantages and facilitating concentration on a global scale. 18 Economies of scope arise where costs can be reduced, or product quality increased, by operating in multiple adjacent market segments. 19 The propensity of the digital economy to accommodate economies of scope is a key reason for the emergence of digital ecosystems, whereby the largest digital companies successfully provide a host of complementary products and services in addition to their core business activities. 20
Second, the accumulation and use of data on consumer behavior is considered to constitute a particularly high barrier to entry into digital markets. 21 It permits incumbents, on one hand, to improve the quality of the products that they provide while, on the other hand, to achieve more effective monetization through, for example, targeted advertising strategies. 22 Access to commercially sensitive data may also facilitate self-preferencing strategies by vertically integrated incumbents. 23
Finally, digital platform markets in particular see strong network effects, both direct and indirect, which make platforms more valuable to existing user and thus more attractive to prospective users as they grow. 24 These network effects are a key driver of the “winner-take-all” competitive dynamics that are considered characteristic of digital markets.
Beyond these central features, the Furman Report highlighted a number of additional aspects of digital markets that informed the DCEP’s regulatory thinking. In markets where consumers might credibly prefer to multi-home, that is, use multiple services simultaneously, the Furman Report noted barriers to doing so, including loss of personal data, loss of reputation, anticompetitive terms, technical barriers, tying of services, and, most basically, consumer inertia.
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Financing for new entrants may be especially difficult in certain digital segments, thus favoring large incumbents who can self-finance.
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The Furman Report emphasized, moreover, the potentially detrimental
Yet the
Market power is, of course, the primary target of the conventional competition rules, and recent enforcement activity against Big Tech actors demonstrates that digital dominance can attract scrutiny from a unilateral conduct perspective. 32 Yet the Furman Report, like equivalent investigations elsewhere, emphasized the extent to which digital market power, particularly in the context of online platforms, can generate wider spillover effects.
As these markets are frequently important routes to market, or gateways for other firms, such platforms are then able to act as a gatekeeper between businesses and their prospective customers. This gives the platforms three distinct forms of power: the ability to control access and charge high fees; the ability to manipulate rankings or prominence; and the ability to control reputations. A strong concern . . . is where a dominant platform has such a strategic market status, with buyers or sellers dependent on them in some form.
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It is the latter notion, of large digital undertakings that specifically hold
Finally, competition cases in the digital economy sometimes struggle to make the leap from demonstrating a distortion or absence of competition, to establishing concrete harm to consumers. The Furman Report acknowledged that concentrated markets may nonetheless generate efficient outcomes.
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It argued, however, that efficiencies trump effective competition only where consumers “receive a sufficient share of the benefits.”
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The Furman Report then outlined potential consumer harms which, it implied, justify more robust regulatory intervention. These encompassed
III. “Pro-competition” for the Digital Economy: The DMU
Having made the case for beefed-up regulation within the digital economy, Chapter 2 of the Furman Report considered its optimal shape. Specifically, the Furman Report set out (fairly high-level) proposals for “pro-competition measures . . . [which] would actively build competition into digital markets upfront.” 40 The term “pro-competition” was not, in fact, an independent choice of the DCEP: as noted, the terms of reference establishing the panel drew a distinction, from the outset, between “competition and pro-competition policy,” 41 albeit without elaborating upon the latter. In the Furman Report, as explained in greater detail in Section IV, the term denotes regulatory approaches that go beyond the classic ex post tort/crime structure of the traditional competition rules, yet which (at least purport to) make greater use of market forces than conventional utilities regulation. In this section, we outline the recommendations of the Furman Report with respect to this new pro-competition regime and explain how these are reflected in the developing regulatory framework.
The crux of the proposed pro-competition regime hinges on the creation of a “pro-competition digital markets unit, tasked with securing competition, innovation, and beneficial outcomes for consumers and businesses.” 42 Although the Furman Report was agnostic as to its precise institutional form, 43 the DMU was envisaged as a sector-specific market supervisory agency for the digital economy, with two key distinguishing elements 44 : possessing regulatory powers that extend beyond the existing competition law regime, and providing a joined-up approach to digital market problems to replace the current fragmented treatment across several existing regulatory agencies. 45
The Furman Report identified three specific strands to the DMU’s anticipated regulatory powers, although the precise details were sketched in somewhat abstract terms. As explained in the preceding section, the Furman Report focused its attention on the particular policy concerns raised by large digital firms holding so-called SMS. Similarly, what is arguably its key recommendation—the development and implementation by the DMU of a digital platform code of conduct—is restricted in its application to the activities of firms having an ex ante designation of such SMS.
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Three high-level principles to inform the code of conduct were identified, although the Report was explicit that these were “a first draft only,” and likely “to evolve and be refined, and added to.”
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Intended specifically to protect
The recommendations of the Furman Report, published in March 2019, were immediately endorsed, “strongly,” by the CMA, which supported the creation of the DMU and suggested that the CMA itself could have a “potential role” in its operation. 52 Specifically, the CMA accepted that conventional competition enforcement alone is “no longer enough” to ensure effective competition in digital markets. It argued, nonetheless, that any new ex ante regime should “complement, rather than replace, existing [antitrust] approaches.” 53
In July 2019, the CMA published a new Digital Markets Strategy, 54 reflecting both an enhanced commitment to tackling digital market problems and an acknowledgment of the particular enforcement “challenges” 55 that it faces in this area. The strategic aims articulated encompassed more or less the full spectrum of the CMA’s then existing activities and beyond: from capacity building, to effective and efficient use of established competition tools, adaptation of those tools to the particular issues raised by digital economy market problems, the development of better digital-focused remedies, and even the potential need for additional regulation. 56 The Strategy was “refreshed” in February 2021: the revised document effectively restates the earlier aims, while updating the CMA’s priority work schedule in light of the evolving regulatory landscape. 57
In tandem with the Digital Markets Strategy, the CMA in July 2019 launched a market study into online platforms and digital advertising. 58 The need for such a review had been suggested by policymakers on various previous occasions. 59 It was also a central plank of the recommendations of the Furman Report. The latter identified a series of potential competition issues relating to the digital advertising sector, but concluded that proper consideration of these concerns fell outside the scope of the DCEP’s review. 60 The final report of the Digital Advertising Study 61 —a slightly less comprehensive form of sector inquiry than the market investigation reference (MIR) procedure, considered further below—focused on the activities of the two largest online advertising providers in the United Kingdom, namely, Google and Facebook. Like the approach of the Furman Report, the Digital Advertising Study identified market features that inhibit effective competition in the search, social media, and digital advertising sectors, including network effects and economies of scale; the profound effects of default behavior by consumers, including its manipulation by incumbent platforms; unequal access to user data; a lack of transparency around decision making; and the centrality both of ecosystems and vertical integration. These generate entrenched market power for the incumbent platforms, the negative effects of which encompass a variety of consumer harms: from classic “antitrust” injuries such as higher prices, lower choice, and lower innovation, to wider societal damage to data privacy and media plurality.
Because these problems are “so wide ranging and self-reinforcing,”
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the Digital Advertising Study concluded, as the Furman Report had done, that the CMA’s existing powers are insufficient to address them. There is, rather, an “urgent case for significant new legislation.”
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Yet the CMA felt no need to reinvent the wheel in devising an alternative regulatory solution: instead, it endorsed the proposed pro-competition regulatory regime for online platforms, implemented through the DMU. This would comprise a binding code of conduct for platforms with SMS, as recommended by the Furman Report. Moreover, building upon proposals in the Furman Report for specific remedies regarding the DMU’s suggested data mobility and data openness functions,
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the Digital Advertising Study recommended that the DMU furthermore be empowered to introduce discrete “pro-competitive interventions” in distinct markets. These would aim at addressing “the sources of market power and other market failures . . . by tackling issues on both the demand and supply side of the markets.”
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It summarized the rationale for this two-pronged approach as follows: A key benefit of behavioral interventions (the first category) as enshrined in the code is that they allow for considerable flexibility in tackling problems as they arise, which is an important consideration in the rapidly-changing markets that we have reviewed. In contrast, the benefit of pro-competitive interventions (the second category) is that they provide for the possibility of solving problems at source, reducing the need for ongoing and costly regulatory controls and potentially in the long run leading to platforms no longer meeting the criteria for SMS designation.
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The Digital Advertising Study nonetheless acknowledged that the second category of regulatory interventions had the potential to “change the nature of competition in fundamental ways,” and thus necessitated careful design and, in particular, “close attention to the potential costs and unintended consequences.” 67 It then considered in detail the possible powers that might be given to the DMU across both first and second categories of regulation, recommending inter alia powers to restrict defaults and monetization, to mandate access to data and interoperability, to improve consumer choice over use of personal data, to impose “fairness by design” requirements, and, perhaps most contentiously, to implement ownership, operational, and/or data separation requirements for platforms. 68
The outcome of any market study includes the possibility of a full-scale market investigation where significant competition problems have been identified and the CMA considers it appropriate to make use of the substantial remedial powers available following an MIR. The CMA took the view that the statutory test allowing for an MIR, governed by the Enterprise Act 2002, was probably met in the circumstances. 69 It chose not to exercise its discretion to make a reference, however, being influenced in particular by regulatory developments occurring in tandem with the market study. These included, most specifically, the fact that the U.K. Government in its March 2020 Budget accepted unconditionally all of the strategic recommendations of the Furman Report, 70 which included the creation of the DMU. To assist this, moreover, the Government established a Digital Markets Taskforce (DMT), led by the CMA working with other interested regulators, to advise on the design and implementation of the anticipated pro-competition regime. 71 This work was ongoing at the time of publication of the Digital Advertising Study; the DMT published its recommendations in December 2020 (hereafter “DMT Advice”). 72
Much of the DMT Advice corresponds broadly to the approaches of the Furman Report and findings of the Digital Advertising Study. Although it briefly reconsidered the benefits and challenges posed in competition terms by the growth of the digital economy,
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the DMT took the view that “the case for an
We thus come to present shape of the Government’s proposals for digital markets. In November 2020, responding to the online advertising market study and pending the publication of the DMT Advice, the Government formally announced its plans to adopt a pro-competition regime, centered around a new regulatory agency, the DMU. 79 This agency was established on a non-statutory basis in April 2021. 80 The intention is to put it on a statutory footing in tandem with the legislation required for the regulatory regime itself, and to house the DMU within the CMA. 81 In its non-statutory “shadow” 82 guise, the DMU is entrusted with assisting in the design and creation of the anticipated pro-competition regime; as a statutory body, it will be responsible for its administration. In accepting the need for a new regulatory regime anchored in the work of the DMU, the Government committed to consult on “the form and function” of the latter. 83 A public consultation (hereafter “Digital Markets Consultation”) ran from July to October 2021; at the time of writing, the Government is analyzing the feedback received and considering the final shape of its regulatory proposals. 84
The Digital Markets Consultation takes as a given that a pro-competitive regime, administered by the DMU and focused on the activities of digital firms with SMS, is to be established; it is only the details of that regime that are open to comment. The Digital Markets Consultation opens with a set of practical questions regarding the funding of the DMU, its interaction with other regulators (a point considered further at the end of the next section), and, responding to a recommendation contained within the DMT Advice, the possibility of giving the DMU a wider market monitoring function over and above its enforcement role within the pro-competition regime. 85
It then addresses the SMS concept which, as noted previously, is anticipated to act as threshold criterion for the regime. That is, the demanding requirements of the pro-competition framework will apply only where a firm has already been designated by the DMU as holding
To determine whether a relevant “activity” exists, the Digital Market Consultation proposes to eschew any formal market definition exercise as would be required, inter alia, in an abuse of dominance case taken under Chapter 2 of the Competition Act 1998.
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It does so on the basis that market definition is both unnecessary and likely to introduce inefficiencies to the designation process
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; the reluctance to embrace traditional market definition tools may also reflect concerns about their comparative ineffectiveness in the digital economy context.
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The Digital Markets Consultation instead proposes to limit application of this threshold concept to “activities where digital technologies are a ‘core component’ of the products and services provided as part of that activity.”
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This is a rather more narrow definition than that advocated in the DMT Advice, which suggested that it should encompass “any situation where digital technologies are
Yet the pro-competition regime, as discussed, is not intended to apply to any and all firms that use digital technologies as a core component of their business activities. Instead, the SMS concept, first introduced in the Furman Report, provides the key regulatory determinant. The Digital Markets Consultation follows the DMT Advice in proposing to ground the SMS concept in a finding of “substantial and entrenched market power in at least one [relevant] activity.” 95 This means that the firm’s market position “must be established and unlikely to change in the foreseeable future.” 96 This, moreover, must provide the firm with a “strategic position,” namely, “a position where the effects of its market power are likely to be particularly widespread or significant.” 97 To determine whether such a position exists, the Digital Markets Consultation suggests four criteria that the DMU should consider, 98 which together provide a fairly comprehensive tour d’horizon of the competition policy concerns raised by digital platforms. These are whether the firm concerned has achieved very significant size or scale in the activity; whether it acts as a gateway, namely, as an important access point to consumers 99 ; whether it can reinforce its market power in that activity or leverage it into other activities; and whether it can use the activity to determine the “rules of the game” within a relevant market segment. In this regard, the Digital Markets Consultation similarly follows the DMT Advice, with one exception: the latter suggested a fifth criterion, namely, whether the activity has “significant impacts on markets that may have broader social or cultural importance.” 100 As explained later in this section, the Digital Markets Consultation has chosen to ground the pro-competition regime solely in competition-oriented considerations, even if it goes beyond the traditional format of competition law as such. The implications of this are considered in the following section.
The DMT Advice argued that the task of designating an entity as having SMS should be treated as “an expert regulatory judgment, both as to whether the criteria for designation are met and whether it is appropriate to designate a firm.”
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Consistent with this perspective, the suggested methodology set out in the Digital Markets Consultation rejects a “mechanistic approach” based on “quantitative thresholds.”
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Instead, it envisages a more context-specific “in the round”
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assessment, making use of “a range of qualitative and quantitative evidence to ensure designation decisions are appropriate and justifiable.”
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This contrasts, most notably, with the proposed approach of the EU’s DMA, which would ground designation as a gatekeeper falling within the purview of the Act principally in a series of quantitative criteria.
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In doing so, the Digital Markets Consultation rejects the notion, implicit in the DMA proposal, that the sheer size of a digital undertaking legitimates the imposing of significant restraints on its freedom of business action: that is, big is not
Nonetheless, though a quantitative approach is rejected, the Digital Markets Consultation follows the DMT Advice in suggesting factors that should inform how the DMU approaches the exercise of its expert regulatory judgment and, in particular, how it prioritizes designation assessments. Three criteria have been identified: the firm’s revenue, the nature of the digital activity undertaken, and whether an existing regulatory regime is better placed to address the perceived harm.
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The question of revenue, of course,
Finally, designation as a firm with SMS is not open-ended in nature. Again following the DMT Advice,
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the Digital Markets Consultation suggests that it should last for five years before review.
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This reflects the fact that, even within the highly dynamic context of the digital economy, the SMS concept implies that the firm concerned already has market power that is not merely substantial but also entrenched.
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Nonetheless, it is anticipated that firms should be able to challenge an existing designation where a “material change” means that it “is no longer
Designation is, of course, merely the start of the regulatory process. Once designated, firms with SMS will become subject to a legally binding ex ante code of conduct, intended “to manage the effects” of their market power.
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As noted, the Digital Markets Consultation starts from the position that the case for such a regime in the digital context has already, definitively, been made, and the Government has accepted as much.
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Moreover, as the DMT Advice recognized, the United Kingdom is far from unique here, with equivalent efforts in many jurisdictions worldwide. The extent to which this remarkable regulatory consensus will prove welfare-enhancing in the longer term remains to be seen. It is indisputable that many aspects of the digital economy—such as tax control, labor law, or responsibility for fake news or hate speech—are chronically (and many would argue, shamefully) under-regulated at present. Yet when it comes to the question of whether an ostensible pro-competition regime is likely to be beneficial in
The current proposal envisages a code comprising of (a relatively small number of) high-level objectives, coupled with a series of more granular legally binding principles to direct firm behavior. 121 The Digital Market Consultation proposes three key objectives, 122 expressly taken from the CMA’s digital advertising market study, 123 which also echo the guiding objectives identified in the Furman Report. 124 These are “fair trading” obligations, aimed at preventing the exploitation of users; “open choice” rules, to ensure that users can move freely between digital providers; and “trust and transparency” requirements, to assist users in making informed and effective choices. 125
These objectives are then to be operationalized in the form of more detailed principles. The Digital Markets Consultation is eloquent and convincing in articulating what the optimal regulatory design would, ideally, entail. The specific behavioral requirements should be “evidence-driven and targeted, preventing harmful behavior without limiting positive or benign behavior”; offer “clarity and consistency” while “minimizing complexity and burden on stakeholders”; and be “flexible and forward-looking in order to adapt to digital markets . . . without dampening innovation.” 126 Yet a cynic might argue that this concise account of regulatory best practice somewhat begs the question, insofar as the Digital Markets Consultation pays relatively little attention to the discrete principles to be implemented. 127 Instead, it concentrates on the prior question of the design of the regulatory framework, identifying three potential options.
The first option 128 would be for a highly differentiated regulatory regime, which is individually customized to the distinct characteristics and market circumstances of each designated firm. The mandatory rules would thus be unique to each firm and would be developed and updated by the DMU in consultation with stakeholders rather than set out in the underpinning legislation. The Digital Markets Consultation acknowledges that the closely tailored nature of the regime would be well placed to deliver regulatory obligations that are both effective and proportionate. Nonetheless, it queries the potential heterogeneity of the resulting regime, with implicit attendant concerns about its administrability.
The second option
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is to mirror the proposed approach of the DMA, namely, to specify in the relevant legislation a set of binding (if necessarily somewhat abstract) rules to be applicable to
Thus, the third option, 132 which is perhaps unsurprisingly the approach advocated by the Digital Markets Consultation, seeks to chart a middle course between the extreme individualism of the first option and the pretense of universality of the second. It would comprise a set of generally applicable high-level rules, set out in legislation, complemented by legally binding firm-specific requirements developed by the DMU as needed. The individualized rules would be tailored to the specific harms anticipated to result from the particular position of SMS as identified during the designation process. The Digital Markets Consultation argues that such an approach best marries the contrasting concerns of flexibility and clarity within the regulatory framework.
In this regard, the Digital Markets Consultation draws an explicit parallel to the Section 19a tool introduced in Germany in January 2021. 133 The amendment addresses very large digital firms that are held by the national competition authority, the Bundeskartellamt, to be of “paramount significance for competition across markets.” 134 Following such a finding, the Bundeskartellamt is empowered to prohibit the firm concerned from engaging in any or all of seven specified practices, including self-preferencing, denial of interoperability or data portability, and the use of data to raise barriers to entry. The Section 19a tool thus enables the ex ante regulation of large platforms to “shut the stable door before the horse has bolted” in competition terms, 135 a standpoint that surely bears some resemblance to the pro-competition notion. Notably, the Section 19a tool has been described as “a testing ground for digital platform regulation,” which will enable policymakers elsewhere to “watch and learn from the wanted and unwanted effects of the Bundeskartellamt’s future 19a interventions.” 136
Implementation of the code, whatever the model adopted, is considered briefly in the Digital Markets Consultation. It is anticipated that the principles will apply only to a firm’s designated activity, with one exception: the firm cannot make changes to non-designated activities that might serve to entrench its market power in the designated activity, unless that change generates “significant benefits.” 137 The Digital Markets Consultation does not specify to whom the benefits must accrue, though purely private profits are surely unlikely to qualify. Where the code principles are established in legislation—Option 2 or 3—the Digital Markets Consultation suggests that a power should exist to amend these by secondary legislation, to avoid the problem of possible regulatory lag. 138 The DMU will also, it is anticipated, be empowered to issue (non-legally binding) guidance to firms to assist compliance with code requirements. 139 Enforcement of the code by the DMU would comprise both code orders, which mandate specific behavioral changes by regulated firms to remedy findings of breach, and interim code orders, which would enable the DMU to intervene temporarily where a breach is suspected but has not yet been formally established. 140 The proposed latter power links to a greater contemporary focus on the use of interim measures to preserve competition in the fast-moving digital economy. 141 The approach suggested in the Digital Markets Consultation is notably broad in scope. It would permit the DMU to introduce interim code orders merely on the basis that it “has reason to suspect” a code breach and which could be justified on a broad “public interest” basis. 142 Yet if the past experience of the U.K. competition framework is a good indication of the approach to implementation of the digital code of conduct, the flexibility suggested by the public interest standard is unlikely to lead to a flood of interim measures in practice. 143 Indeed, the very limited use made of interim measures in enforcement practice to date is currently the target of proposed reform efforts to the U.K. competition framework more generally. 144
Pro-competitive interventions comprise the second prong of the pro-competition framework. These will be targeted at the “root causes” 145 of the substantial and entrenched market power identified initially at the designation stage. The Digital Markets Consultation endorses the complementary relationship between the code of conduct and pro-competitive intervention powers foreseen in the digital advertising study: the former aimed at preventing the harmful behavior that can follow from the presence of market power, the latter at weakening its existence. 146 The current proposal follows the DMT Advice in allowing the DMU a “broad discretion” as to the choice of appropriate remedies, rather than constraining it to a predefined list of available measures. 147 The quite reasonable rationale is the ever-evolving nature of digital markets and thus potential digital market problem: the regulatory regime should not require a precommitment today to the tools necessary to meet the challenges of tomorrow’s technology and business models. 148
Yet the DMT Advice warned against empowering the DMU to impose full ownership separation on designated firms, expressly on the basis of the “significance” of such a remedy. 149 Instead, it argued that ownership (as opposed to operational or structural) separation should remain solely in the province of the CMA following a market investigation. Should the DMU consider ownership separation to be necessary, it would be required instead to refer or recommend the issue for market investigation. 150 This proposal is somewhat troubling: by limiting the ostensibly weightier remedy of full separation to the market investigation procedure, this arguably implies a greater likelihood of corner-cutting and unreliability in the DMU’s decision making in comparison. This is despite the fact that the DMT acknowledged that pro-competitive interventions should be evidence-based, targeted, and proportionate, 151 and that CMA decision making under the market investigation procedure 152 is subject to the same judicial review standard that the DMT has advocated for DMU decision making. 153 The Digital Markets Consultation offers no view on whether full ownership separation should be available to the DMU, instead simply opening the question to respondents. 154
The pro-competitive intervention power coincides with the market investigation tool in a further dimension, insofar as it is anticipated that the legal standard for action will be the same under both. 155 This requires the identification of an “adverse effect of competition” (AEC) stemming from current market features. 156 The Digital Markets Consultation has rejected the advice of the DMT to supplement the existing AEC standard with a reference to adverse effects on consumers in the alternative, 157 arguing that the notion of competition as utilized in the AEC standard is broad enough to already encompass consumer harm, “albeit through a competition lens.” 158 The considerable overlap with the existing economy-wide market investigation power raises a fairly reasonable question about whether a sector-specific intervention power is really required; this point is considered in the next section.
The proposed pro-competition regime for digital markets comprises a third prong, namely, certain changes to the United Kingdom’s merger control framework, which would apply specifically to digital firms designated as having SMS. 159 As merger control will remain within the remit of the merger control division of the CMA rather than the DMU, these changes are largely beyond the scope of this article. Several brief observations can be made, however. The first is that the United Kingdom’s existing merger regime is both voluntary and non-suspensory in nature, making it something of an international outlier considering the mandatory approach in many equivalent jurisdictions. The proposed changes would bridge this gap in the digital economy at least by imposing mandatory reporting requirements and, potentially, mandatory review obligations for a subset of transactions. The revisions also coincide with efforts to make more general amendments to the U.K. merger regime, with respect to both jurisdiction and procedures. 160
Second, the focus on merger control aligns with a particular concern that mergers have been used strategically by large digital companies to harm competition in the digital economy. Yet these transactions have largely evaded scrutiny by virtue of the fact that jurisdiction typically rests on the merging parties’ turnover rather than transaction value. 161 Moreover, the “substantial lessening of competition” (SLC) or equivalent standard applied in most jurisdictions including the United Kingdom may fail to account for the harm to potential competition that results, 162 as illustrated inter alia by an ex post assessment of U.K. merger practice in digital markets. 163 The Digital Market Consultation addresses this latter concern by proposing a lower threshold for intervention in SMS merger cases, from a balance-of-probabilities approach to instead demonstrating a “realistic prospect” that a SLC will arise from the transaction. 164
Finally, one of the more intriguing aspects of the DMT Advice, from an antitrust perspective, was its wider view of the appropriate objectives of a regulatory regime that aims expressly to achieve pro-competition in digital markets. Specifically, the DMT Advice recommended that the new regime should seek “to further the interests of consumers
The Digital Markets Consultation, however, has disregarded the proposed reference to citizen interests within the statutory duty of the DMU, arguing instead that the agency’s objectives should be “as lean and as simple as possible.” 168 In particular, it expressed concern that a duty to take account of wider interests might detract from the DMU’s principal focus of promoting competition in digital markets. 169 It nonetheless acknowledged that the concept of consumer benefit can itself be construed quite broadly. 170 It has thus asked respondents whether and to what extent the DMU should be empowered to engage with an (undefined) range of “wider policy issues that interact with competition in digital markets.” 171
IV: “Pro-competition” in Practice: Between Competition Law and Regulation
The preceding section traced the contours of the proposed pro-competition regime for digital markets in the United Kingdom. This penultimate section considers more closely the meaning of pro-competition regulation. Pro-competition is not an established term of art within either the U.K. regulatory landscape or in competition policy more generally. Moreover, its usage in the U.K. digital context pre-dates any decisions regarding the design of or even the need for a specific regulatory regime. 172 What is remarkable, nonetheless, is the extent to which the term has gained traction and prominence, now essentially serving as a shorthand for a new regulatory model pitched between conventional competition law and more traditional regulation. Moreover, while the United Kingdom is not alone in attempting to implement new forms of digital market regulation—for instance, two closely competing models, the EU’s DMA and Germany’s Section 19a tool, were discussed above 173 —the language of pro-competition appears to have escaped its origins to have wider resonance in this context. 174 Our starting point here is not that the pro-competition concept is particularly consequential in itself, nor that the proposed U.K. regime is unique in its aims or methods. Instead, by locating the pro-competition regime in the space between simple competition enforcement and more traditional regulation in the United Kingdom, our aim is to gain a deeper understanding of how such hybrid regulation is intended to operate—and to consider briefly the extent to which it is likely to succeed.
A few preliminary observations are necessary. Competition and pro-competition policy sound like synonyms—as like, for instance, flammable and inflammable—and, indeed, the purpose of the DMU, ultimately, is “to promote competition and competitive outcomes.”
175
Yet the Furman Report was clear that pro-competition denotes “a new approach,” distinct from the “core conventional competition tools.”
176
In particular, pro-competition is intended to move beyond the focus of the latter on conduct and concentrations: To make competition effective [in digital markets] requires policy that . . . creates space for businesses to start, compete and grow alongside and around the big platforms. This can be achieved through a pro-competition approach that sets rules and standards to change how a digital market works and creates new opportunities for competition, innovation and consumer choice.
177
Yet the repeated emphasis, not merely on regulation but on
A. “A New Approach”: Pro-Competition beyond Conventional Competition Law
The first question is thus, if competition and pro-competition policy really are distinct, what are the differences? As noted, the Furman Report was clear that the regulatory framework it advocated was not an example of competition law as such. Indeed, beyond the pro-competition regime considered in its Chapter 2, the report recommended quite separately a series of changes to the existing competition framework in its Chapter 3. Even with these changes, however, the Furman Report took the view that competition law alone was insufficient to achieve the desired regulatory objectives for digital markets, and, moreover, that any attempt to modify the existing competition framework even further was inadvisable, insofar as this might “have unintended and undesirable side effects.” 181
The United Kingdom has had statutory competition rules since the mid-twentieth century. 182 With the Competition Act of 1998, it adopted a modernized framework that essentially replicates Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU), in the guise of the Chapter I and II prohibitions. As of 2014, the CMA is the principal public competition enforcement agency. It has powers to find infringements of Chapters I and II, to pursue criminal proceedings against cartel behavior, to exercise merger control functions, and to conduct market studies and investigations which can culminate in wide-ranging remedies to address market features that adversely affect competition. The CMA is widely recognized as a world-leading competition agency, and the Furman Report advocated for greater efforts to promote the U.K. competition framework, with the CMA at its heart, as a model for best practice in digital markets. 183
Yet specifically as an antitrust enforcer, the CMA has faced criticism about the slowness of its decision making and the comparatively small number of cases that it pursues compared with equivalent-sized and -resourced peer agencies. A National Audit Office (NAO) review in 2016 suggested that an absence of statutory deadlines in antitrust cases, coupled with a fear of being overturned on appeal, may contribute to an excess of caution and delay in the CMA’s decision-making processes. 184 It suggested, in particular, that the United Kingdom has a reputation as “the best jurisdiction in the world to defend a competition case.” 185 Although the NAO failed to interrogate this claim, it is undoubtedly true that review courts in the United Kingdom engage in robust scrutiny and that commercial litigation costs are high. The attendant vulnerability to subsequent legal challenge may, according to the NAO, contribute to excessive “risk aversion” on the part of the CMA. 186 A 2019 government review of reforms introduced by the Enterprise and Regulation Reform Act 2013 (ERRA 2013) concluded that some improvement had been seen in terms of increasing the number and speed of competition cases pursued, but that, in substantive terms, any positive impact had been small. 187 The sloganeering report of the Penrose Review, published in February 2021, took a similar tack, calling generically for “faster, better competition decisions” to be taken by the CMA. 188
There is, thus, a persistent skepticism of the nimbleness of the CMA as an antitrust enforcer. The concern is not that the U.K. authority lacks either the skills or capacity to successfully execute complex high-quality competition cases, but rather that it takes an excessively long time to do so and completes an unacceptably small number of investigations. This orthodoxy was repeated in the Furman Report. Despite framing at least the indirect consumer harms associated with digital platforms largely in terms of completed or ongoing antitrust cases, 189 the Furman Report was clear in its conclusion that “traditional competition law tools” were insufficient to address the identified competition issues. 190 Justifying this stance, it suggested, inter alia, that conventional competition law “moves too slowly.” 191 While it might be argued that justice delayed is justice denied in any competition law context, such concerns may moreover be particularly acute in the digital economy, where innovation plays a central role, and where there is a long-standing fear that markets may move too quickly for competition authorities to fully get to grips with their underlying dynamics.
These concerns about the
Accordingly, the U.K. competition framework already provides for the possibility of proactive pro-competition intervention in markets that are perceived to not be working well, without any need to anchor such intervention in an identified antitrust violation. 196 Yet, although the interventionist power of the MIR regime extends beyond the parameters of the Chapter I and II prohibitions, it is subject to much the same rigor—and thus, a critic might argue, the same unwieldiness—in institutional terms. Investigations take up to two years to complete, with additional time to implement any required remedies, and this is before any potential legal challenge by affected parties. They are, moreover, normally preceded by a market study, which takes another year. 197 Both processes are highly resource-intensive from the CMA’s perspective, with a concern that it is reluctant to open and complete a sufficient number of investigations as a result. Notably, when the European Commission suggested adopting a broadly similar tool to allow case-specific targeted intervention in digital markets beyond the confines of Articles 101 and 102 TFEU, 198 commentators highlighted the U.K. experience as evidence that such a “new competition tool” might prove less nimble and thus less effective than anticipated in practice. 199
A second concern raised by the Furman Report about the use of competition enforcement to police digital markets is that any completed investigation “resolves only issues narrowly focused on a specific case.” It thus typically fails to establish “clear and generalizable rules and principles to give businesses certainty about the boundaries of acceptable competition conduct.” 200 This objection, which stems from competition law’s tort/crime-structured character, is hardly unique to the United Kingdom as an antitrust jurisdiction. Moreover, and in particular in common law systems, it is arguably somewhat overblown, insofar as the existing decisional practice functions to more or less delimit the parameters of acceptable commercial behavior.
Yet, insofar as contemporary competition law is increasingly effects-based and thus context-specific, this introduces a greater degree of ex ante ambiguity as to whether a particular practice is likely to violate the rules on the facts. While many would argue that this makes for better enforcement through a reduced likelihood of socially harmful false-positive findings, it sacrifices the certainty and deterrent benefits of clear prohibitions. The anticipated approach of the DMA is thus instructive. It takes as its starting point a series of theories of harm derived from existing antitrust practice; yet divorces these from any need to demonstrate either existing market power (relying instead on the gatekeeper notion as a broad proxy) or resulting harm to competition or consumers.
Concerns about the essentially ad hoc nature of competition regulation may find even greater purchase in the context of the digital economy, to the extent that many of the problematic practices under scrutiny by competition enforcers today are essentially novel in nature. Accordingly, although the argument can often be made that a progressive development of the existing case law supports the conclusion that conduct breaches the competition rules, this point will not have been definitively established in advance. Take, for instance, the issue of self-preferencing. Although the European Commission in its infringement decision in
Moreover, conduct-focused competition rules—in the United Kingdom, the Chapter I and II prohibitions—require, quite obviously, anticompetition
Nonetheless, as discussed, the U.K. competition framework Relying on this model alone, under the powers currently available, is not sufficient in digital markets when technologies change but market power is durable. Specific rules imposed as a remedy following a market investigation may quickly go out of date. What is instead needed is an ongoing, dynamic counterparty to market participants, adjusting solutions in response to innovations and market dynamics.
213
Interestingly, given the Furman Report’s specific reference to “the powers currently available,” the remedial powers of the CMA under the MIR regime are being reviewed at present in tandem with the public consultation on the digital markets regime. Specifically, the Government has proposed to introduce greater flexibility as to when remedies can be imposed 214 or binding commitments in lieu be accepted 215 ; to allow for the use of interim measures at any stage during market studies and investigations 216 ; and, crucially, to improve the versatility and effectiveness of remedies by, inter alia, requiring businesses to participate in implementation trials, and giving the CMA enhanced powers to monitor and where necessary vary existing remedies. 217 The proposals seem like positive steps toward achieving a more nimble, responsive set of market inquiry tools. Yet their possible introduction in parallel with a sector-specific regime for digital markets raises an obvious question: in that case, are the innovations of the latter designed to address limitations within the generalist competition framework that will no longer exist? Perhaps the clearest added value of a sector-specific framework in that instance is thus its shorter time frame 218 ; yet when one factors in the time required for the initial designation exercise, even this advantage loses much of its edge. 219
Finally, it is worth revisiting the disputed question of the anticipated goals of the pro-competition regime. It was explained above that, whereas the DMT recommended that the DMU be given a fairly expansive statutory duty to further the interests of “consumers and citizens,” the Digital Markets Consultation has preferred a lean and simple focus on consumer interests alone.
220
Moreover, though fair trading is mooted as one of three high-level objectives of the code of conduct, fairness is not a distinct goal in and of itself for the regime.
221
The decision to limit the DMU’s purpose to a conventional competition/consumer focus supports a conceptualization of pro-competition regulation as a type of “competition law plus,” which aims at the same sort of market benefits but goes beyond the confines of the established competition rules. Yet this approach is complicated by the fact that the emergence of Big Tech monopolies has prompted a somewhat existential reckoning
B. Concurrency: Balancing Competition Law and Sector-Specific Regulation
Yet to properly appreciate the relationship between competition law and more interventionist market regulation in the United Kingdom, it is insufficient to consider the enforcement activities of the CMA alone. For decades, various sector regulators have exercised
The concurrency regime, which has seen limited replication elsewhere, has its origins in the Littlechild Report that preceded the privatization of British Telecom in the mid-1980s. 225 The report, which considered the optimal regulatory framework to supervise the privatized utility, worked from the assumption that telecommunications markets would inexorably open to the forces of competition over time. It thus concluded that the sector regulator to be created should be equipped not only with classic regulatory powers, like rate-making and imposing access obligations, but also with more competition-focused tools, on the basis that regulation was merely “holding the fort” until free competition arrived. 226 As more sectors were privatized and liberalized, this unusual framework of concurrent competition jurisdiction was similarly extended, including into regulated areas beyond the classic utilities markets. Today, nine sector regulators hold concurrent powers to enforce the Chapter I and II prohibitions within their regulatory spheres. 227 Moreover, the not-uncontentious decision to retain concurrency after the passage of the Competition Act 1998 means that sector regulators are now expected to perform law enforcement-type roles in regulated markets alongside their classic regulatory functions.
The United Kingdom’s exceptional concurrency regime has not been a particular success. Previously, the competition authority tended to defer to regulators within their specific market segments, while regulators themselves tended to under-utilize their competition powers. The upshot was a chronic absence of competition enforcement in regulated markets. Legislative efforts were made within ERRA 2013 to require sector regulators to make greater use of their competition powers, and there has been a measurable uptick in the level of competition enforcement in regulated markets by both regulators and the CMA. Yet the absolute number of antitrust cases taken in regulated sectors remains modest. The reasons for this are not fully understood. A 2019 government report suggested that it might be attributed, variously, to a comparative absence of antitrust issues arising in regulated markets, or to lingering preferences for regulatory solutions among regulators, or to a lack of resources or skills on their part to enforce the competition rules. 228
Yet what is perhaps most remarkable about the United Kingdom’s concurrency regime is that, despite consistent evidence that it has failed to live up to its promise in practice, there appears to be an unshakeable commitment to its retention, improvement, and indeed expansion. The orthodoxy is that competition and regulation are complementary rather than mutually exclusive phenomena. 229 Yet the notion that the latter merely “holds the fort” for the former remains prevalent, with efforts to speed along this process gathering steam after ERRA 2013 in particular. It is thus easier to appreciate the emphasis on pro-competition within the digital markets regime if one understands the enduring faith in the superiority of competition over regulation, in theory if not so successfully in practice, within the United Kingdom’s broader market regulatory landscape.
The question whether to apply the concurrency framework to the incoming digital markets regime nonetheless marks an interesting point of disagreement between the DMT Advice and Digital Markets Consultation, which suggests slightly different approaches to the relationship between pro-competition and “ordinary” regulation. Strictly speaking, the question of concurrency in its conventional understanding is moot, insofar as the anticipated sector-specific regulator, the DMU, is to be located within the existing competition authority, the CMA.
230
Yet the DMT Advice recommended extending the
Each viewpoint offers a slightly different take on the notion of pro-competition regulation. Both set up a dichotomy between pro-competition regulation, on one hand, and the regulators’ more traditional (
The Digital Markets Consultation similarly accepts the need for coordination between existing sector-specific regulation and the pro-competition regime,
238
yet it specifies no preference for the latter. Most obviously, when deciding whether to conduct the threshold SMS assessment, the approach advocated in the Digital Markets Consultation would permit the DMU to “deprioritise” designation of a firm, that is, exercise its discretion
V. Conclusion
The regulation of the digital economy is undergoing momentous changes at present, in the United Kingdom and elsewhere, from a competition perspective and beyond. While the finer details of the U.K. regime remain to be settled, it appears inevitable that more interventionist regulation is on its way, at least for the largest and most powerful platforms. Yet old habits die hard in a jurisdiction where the superiority of competition over regulation has long been a tenet of faith and a key organizing principle for policymakers. Accordingly, though the U.K. regime will involve a powerful display of public coercive power, the aim emphatically is not to replace market forces indefinitely but rather to foster (some might say force) these where they currently do not or cannot exist. Hence,
Footnotes
Declaration of Conflicting Interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article.
1.
2.
3.
4.
The Digital Competition Expert Panel (DCEP) was chaired by Professor Jason Furman, hence the report’s better-known title.
5.
Furman Report, at 2.
6.
A useful discussion of the so-called more economic approach to competition law is Anne C. Witt,
7.
Furman Report, paras. 1.13–1.23, cited the provision of valuable services to consumers (often at no monetary cost), enhanced efficiency and growth within the U.K. and global economy, and greater innovation as benefits brought by the digital economy.
8.
Prominent examples, besides the Furman Report, include European Commission,
10.
Furman Report, para. 1.26.
11.
12.
13.
14.
15.
So described in Competition Policy for the Digital Era, at 2.
16.
Furman Report, para. 1.68.
17.
Competition Policy for the Digital Era, at 2.
18.
Furman Report, para. 1.69.
19.
20.
See, for example, Frederic Jenny,
21.
Furman Report, paras. 1.72 & 1.79.
22.
23.
24.
25.
26.
27.
28.
29.
30.
31.
32.
This includes a high-prolife trio of infringement decisions taken against Google by the European Commission (Cases AT.39740—Google Search (Shopping), Decision of June 27, 2017; AT.40099—Google Android, Decision of July 18, 2018; and AT.40411—Google Search (AdSense), Decision of Mar 20, 2019), and ongoing cases taken by the U.S. Department of Justice and Federal Trade Commission taken against Google (see DOJ Press Release 20-1124, 
), respectively.
33.
Furman Report, para. 1.117.
34.
35.
36.
37.
38.
39.
40.
41.
42.
Furman Report, at 55, Strategic Recommendation A.
43.
44.
45.
The Furman Report, para. 2.8, lists the United Kingdom’s telecommunications regulator, the Office of Communications (Ofcom); its data protection supervisor, the Information Commissioner’s Office; and the Competition and Markets Authority (CMA).
46.
47.
48.
49.
The concept of co-regulation is subject to varying definitions; a useful primer on its potential meaning(s) in the U.K. context is to be found in BEIS, Designing Self- and Co-regulation Initiatives: Evidence on Best Practices. A literature review, BEIS Research Paper Number 2019/025, Oct 2019.
50.
Furman Report, para. 2.37.
51.
52.
53.
55.
56.
58.
59.
Furman Report, para. 3.195.
60.
61.
62.
63.
64.
65.
Digital Advertising Study, para. 7.16.
66.
67.
68.
69.
Digital Advertising Study, para. 9.30.
70.
72.
73.
74.
75.
76.
77.
78.
Digital Markets Consultation, Executive Summary, para. 4.
79.
Advertising Study Response.
81.
83.
Advertising Study Response, para. 22.
84.
85.
Digital Markets Consultation, paras. 33–48.
86.
87.
See Section IV for further details of the United Kingdom’s competition law framework.
88.
Digital Markets Consultation, para. 54.
89.
See, for example, the discussion in Competition Policy for the Digital Era, at 42–50.
90.
Digital Markets Consultation, para. 59.
91.
DMT Advice, para. 4.16 (emphasis added).
92.
93.
Digital Markets Consultation, para. 57.
94.
95.
96.
Digital Markets Consultation, para. 65.
97.
98.
Digital Markets Consultation, para. 68.
99.
The “gatekeeper” concept is also the threshold criterion for application of the proposed European Union (EU)-level digital regulatory regime, the Digital Markets Act (DMA): see European Commission, Proposal for a Regulation of the European Parliament and of the Council on contestable and fair markets in the digital sector (DMA) (COM(2020) 842 final), hereafter “DMA Proposal,” Draft Chapter II.
100.
DMT Advice, para. 4.19.
101.
102.
Digital Markets Consultation, para. 72.
103.
104.
105.
Namely, the European Economic Area-wide annual turnover of the undertaking concerned or its market capitalization, coupled with the number of business and end users that it services: see DMA Proposal, Draft Article 3.
106.
Digital Markets Consultation, para. 72.
107.
See, for example, Pablo Ibáñez Colomo,
108.
Digital Markets Consultation, para. 72.
109.
110.
111.
DMT Advice, para. 4.23.
112.
Digital Markets Consultation, para. 77.
113.
DMT Advice, para. 4.24.
114.
Digital Markets Consultation, para. 77.
115.
DMT Advice, para. 4.28.
116.
Digital Markets Consultation, para. 78.
117.
DMT Advice, para. 4.28.
118.
Digital Markets Consultation, para. 78 (emphasis added).
119.
120.
121.
122.
123.
Digital Advertising Study, paras. 7.74–7.89.
124.
125.
Digital Markets Consultation, para. 83.
126.
127.
A series of “proposed principles” is displayed in Figure 4 of the Digital Markets Consultation. However, document makes no attempt to explain either the requirements of each principle or the regulatory rationale behind any of them.
128.
Digital Markets Consultation, paras. 86–87.
129.
130.
A rather idiosyncratic list of “concrete” examples and evidence for each of the proposed obligations in the DMA is provided in European Commission Staff Working Document, Impact Assessment Report accompanying the Proposal for a Regulation of the European Parliament and of the Council on contestable and fair markets in the digital sector (DMA) (SWD(2020) 364 final), Table 2, 53–60.
131.
132.
Digital Markets Consultation, para. 90.
133.
The discussion here is based on Jens-Uwe Franck and Martin Peitz,
134.
In Jan 2022, the Bundeskartellamt made its first finding of paramount market significance against Google: see Bundeskartellamt Press Release, .
135.
136.
Franck and Peitz,
137.
Digital Markets Consultation, para. 93.
138.
139.
140.
141.
See, for example, Despoina Mantzari,
142.
Digital Markets Consultation, para. 100.
143.
The public interest rationale was provided for in Section 35 of the Competition Act 1998. As the recent public consultation on potential improvements to the U.K. competition framework makes clear, there has been a notable absence of interim measures decisions despite this provision: see BEIS, , hereafter “Reforming Competition Policy Consultation,” paras. 1.165–1.169.
144.
145.
Digital Markets Consultation, para. 102.
146.
147.
Digital Markets Consultation, para. 112; endorsing the approach of the DMT Advice, para. 4.67.
148.
Digital Markets Consultation, para. 113.
149.
DMT Advice, para. 4.70.
150.
151.
152.
Governed by Section 179(4) of the Enterprise Act 2002.
153.
DMT Advice, paras. 4.114–4.117.
154.
Digital Markets Consultation, para. 114.
155.
156.
Governed, in the context of market investigations, by Section 134 of the Enterprise Act 2002.
157.
DMT Advice, para. 4.76.
158.
Digital Markets Consultation, para. 116.
159.
160.
Reforming Competition Policy Consultation, paras. 1.89-1.128.
161.
See, for example, Competition Policy for the Digital Era, Chapter 6, and Furman Report, Chapter 3.
162.
163.
164.
Digital Markets Consultation, paras. 187–91.
165.
167.
168.
Digital Markets Consultation, para. 31.
169.
170.
171.
172.
173.
A more comprehensive comparative assessment of the three regimes can be found in Anne C. Witt,
174.
See, for example, Simonetta Vezzoso,
175.
Digital Markets Consultation, para. 26.
176.
Furman Report, at 8.
177.
178.
Reflected, most clearly and almost comically, in the progressive ramping up of the “One In, One Out” policy for regulatory rules, introduced in 2010, to a “One In, Two Out” approach in 2012, and “One In, Three Out” in 2015. A useful summary of these developments can be found on the Understanding Regulation Blog, .
179.
For a critique of the relationship between the current Conservative Government and the United Kingdom’s right-wing press, see Sara Badawi, .
180.
Furman Report, para. 2.12.
181.
182.
Restrictive Trade Practices Act 1956.
183.
Furman Report, at 16.
184.
National Audit Office, .
185.
186.
187.
188.
189.
190.
Furman Report, para. 2.2.
191.
192.
Enterprise Act 2002, Section 134(1).
193.
Enterprise Act 2002, Section 134(2).
194.
Enterprise Act 2002, Section 134(4). See also the “duty to remedy” outlined in S.138.
195.
See, for example, Competition Commission, BAA Airports Market Investigation. A report on the supply of airport services by BAA in the UK, Mar 19, 2009.
196.
For instance, the Reforming Competition Policy Consultation, para. 1.54, describes the market investigation reference (MIR) procedure as comprising “powerful procompetitive tools.”
197.
198.
199.
See, for example, Amelia Fletcher,
200.
Furman Report, para. 2.8.
201.
Case AT.39740—Google Search (Shopping), Decision of June 27, 2017, para. 649.
202.
Speech of Margrete Vestager, Competition and the digital economy, June 3, 2019.
203.
Pursuant to Section 60 of the Competition Act 1998, U.K. courts were required to interpret Chapter II in a manner “consistent” to the Article 102 TFEU (Treaty on the Functioning of the European Union) case law. Although, post-Brexit, this obligation has been removed under the new Section 60A of the 1998 Act, the Chapter II jurisprudence has yet to diverge from the EU exemplar.
204.
Case C-322/81 Michelin v Commission EU:C:1983:313, para. 10.
205.
See, for example, Marina Lao,
206.
Case C-89/85 Ahlström Osakeyhtiö and Others v Commission (“Woodpulp”) EU:C:1993:120.
207.
DMT Advice, para. 4.65.
208.
A point developed further by the author previously in
209.
210.
Furman Report, para. 2.107.
211.
212.
213.
214.
Reforming Competition Policy Consultation, paras. 1.58–1.67.
215.
216.
217.
218.
It is anticipated that pro-competitive interventions will be subject to either a nine- or twelfth-month statutory deadline: Digital Markets Consultation, para. 121.
219.
A concern also raised by
220.
221.
Contrast, for instance, the DMA, which expressly pursues fairness as a stand-alone aim, which is argued to be “complementary to, but different from” the objectives of Articles 101 and 102 TFEU: see DMA Proposal, Draft Recital 10.
222.
223.
224.
The discussion in this subsection draws on previous work by this author,
225.
226.
227.
Civil Aviation Authority, Ofcom, Gas and Electricity Markets Authority, Financial Conduct Authority (FCA), Payment Systems Regulator, Office of Rail and Road, Water Services Regulation Authority, Northern Ireland Authority for Utility Regulation, and National Health Service (NHS) Improvement.
228.
BEIS Review, at 49–50.
229.
Competition and Markets Authority, Regulation and Competition: A Review of the Evidence (CMA111), Jan 2020, para. 2.2.
230.
In this regard, and moreover coupled with its consumer protection functions, the CMA is beginning to resemble a “super-regulator”: see Peter Alexiadis & Caio Mario da Silva Pereiro Neto, ;jsessionid=639AFC70B23C57B3961987647764D210, 28–33.
231.
Specifically, Ofcom and FCA.
232.
DMT Advice, para. 6.12.
233.
234.
235.
Digital Markets Consultation, para. 42.
236.
237.
DMT Advice, para. 6.15.
238.
Digital Markets Consultation, paras. 35–44.
239.
240.
DMT Advice, para. 7.4.