Reshaping Digital Competition: The New Platform Regulations and the Future of Modern Antitrust

Abstract

This article reflects on the way in which the new initiatives to regulate powerful online platforms in the European Union, the United States, the United Kingdom, and Germany challenge well-established fundamentals of modern antitrust and thereby reshape the future of competition law. It shows that the new platform regulations set in motion a profound transformation of modern antitrust law that operates along four parameters. First, the new platform regulations unsettle the long-standing baseline assumption that the maximization of consumer welfare constitutes competition law’s core mission. Second, the new instruments repudiate the orthodox understanding of error costs that advocates under-enforcement as the optimal standard of intervention in innovation-driven markets. Third, by relying primarily on rule-like presumptions as legal commands to regulate digital competition, the new platform regulations reverse the trend toward an increasingly inductive mode of analysis that characterized modern antitrust under the “more economic” or “effects-based” approach. Fourth, the new platform regulations also fundamentally diverge from a purely probabilistic standard of proof which requires the showing that impugned conduct is more likely than not to cause anticompetitive harm. The reconfiguration of modern antitrust along these four vectors, the article concludes, foreshadows a new, more inclusive model of innovation and growth in digital markets.