Precautionary Antitrust: A Precautionary Tale in European Competition Policy
GAICIL Insights
European competition policy toward digital markets is at a turning point. One side says enforcement erred by doing too little; the other says new tools err by doing too much. The chapter argues neither side is making an error: each reflects a preference about regulation.
Europe’s new approach, it shows, embodies a regulatory preference for precaution over innovation and disruption. That framework explains a good deal about how Europe is now approaching AI.
Abstract
European competition policy applied to digital markets is at a turning point: new regulatory tools are under consideration and traditional antitrust analysis is altered given the new business realities embodied by tech platforms. These envisaged new solutions together with novel antitrust enforcement is justified, on one side, as the appropriate mean to overcome the error of under-enforcement of competition policy in digital markets whereas, on the other side, some criticize this new approach as erring in over-enforcement. Both claims that the other side is erring in its antitrust analysis are unsatisfactory. Each stance does not err, but rather, epitomise preferences towards regulation. This chapter argues and evidences that the new approach advocated by the European Commission for competition enforcement towards digital markets illustrates a preference for precaution. In the vein of the precautionary principle, the Commission’s perspective reveals a precautionary antitrust enforcement. It is neither a policy error nor a legal flaw—it is a regulatory preference for precaution over innovation and disruption. After having Introduced the Precautionary Principle (Sect. 1 ), this chapter defines Precautionary Antitrust and evidences it so that it becomes apparent that the European competition policy towards digital markets have adopted a regulatory preference leaning in favour of precaution over innovation (Sect. 2 ). We then conclude on our suggested explanatory framework as a guiding principle in the foreseeable trends in European and American antitrust enforcements (Sect. 3 ).1
Takeaway
“It is neither a policy error nor a legal flaw—it is a regulatory preference for precaution over innovation and disruption.”
Quoted verbatim from the author’s abstract.
Notes
- Aurelien Portuese, Precautionary Antitrust: A Precautionary Tale in European Competition Policy, in Law and Economics of Regulation 203 (Klaus Mathis & Avishalom Tor eds., Springer 2021), https://doi.org/10.1007/978-3-030-70530-5_10. Abstract quoted verbatim from the publisher’s page, https://link.springer.com/chapter/10.1007/978-3-030-70530-5_10. ↩
Cite as: Aurelien Portuese, Precautionary Antitrust: A Precautionary Tale in European Competition Policy, in Law and Economics of Regulation 203 (Klaus Mathis & Avishalom Tor eds., Springer 2021), https://doi.org/10.1007/978-3-030-70530-5_10
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