COMPETITION LEGISLATION TOWARDS DIGITAL PLATFORMS: CHOICE BETWEEN ANTITRUST AND REGULATION

Abstract

The article analyzes recent developments in competition policy regarding digital platforms and their ecosystems. The goal is to evaluate the newly adopted laws and their drafts in the light of experience  in regulating essential facilities (natural monopolies in the network industries). We contrast the arguments and suggestions of recent academic and expert publications with evaluation of the effects of non-discriminatory access enforcement. Both ex-post antitrust enforcement and ex-ante regulation regarding digital platforms have their own limitations. Proponents of wider application of ex-ante regulatory rules underestimate and often neglect regulatory cost as well as negative externalities of regulatory interventions. Empirical evaluation of regulatory effects during three decades shows that both costs and negative externalities are likely and relatively high. At the same time, recent academic and expert discussion underestimate the opportunities to develop targeted norms that would provide clients of digital platforms with additional rights and opportunities, and restrict market power of platforms without specific ex-ante regulation.