Platform Regulation in Europe - Per Se Rules to the Rescue?

Abstract

Mainstream competition law has failed to protect competition in core digital platform markets. This is partially due to enforcement agencies' current commitment to proving the investigated conduct's actual effects on competition and consumer welfare on the basis of in-depth assessments of each case's individual circumstances before intervening in the market. While reducing the likelihood of erroneously prohibiting conduct that is not actually harmful, this approach is too time- and resource-consuming to protect competition in digital markets prone to tipping. This contribution argues that well-designed per se rules offer a promising alternative. Against this background, it critically assesses how three emerging European models of platform regulation (the draft EU Digital Markets Act, the draft UK Pro-Competition Regime, and the German Digitalisation Act) balance the objectives of ensuring time- and cost-effective enforcement, avoiding enforcement errors, and maximizing legal certainty for platforms. It concludes that the UK model currently promises to strike the best balance between these competing aims.