Three steps to stay ahead of ever-evolving antitrust regulations in digital markets

Digital antitrust is having a moment. Antitrust cases against tech giants are being discussed on talk shows and podcasts and in connection with buzzwords like "Big Tech" or "Big Data" have even made it onto morning news programmes. Authorities and policymakers around the world are publicly debating the introduction of additional rules to strengthen enforcement in digital markets. In Europe, various changes to the legal framework of antitrust enforcement are already underway, most notably the Digital Markets Act passed in mid-2022, which sets out a strict set of rules of conduct that apply directly to gatekeeper platforms.

The new changes do not only affect mega-cap tech companies like Google, Amazon, Meta and Apple. All online service providers that have a significant number of users or offer critical or systemically relevant services must be prepared for the new wave of regulation that's coming. In addition, all companies supplying or using online services should consider the risks and opportunities that the new rules will bring, for example in terms of interoperability and data access.

The following three steps should help ensure that the upcoming regulatory challenges are targeted correctly:

Step 1: Build awareness

Competition authorities are increasingly likely to scrutinise practices that have not been targeted before. In the absence of decisional guidance, companies will need to build an awareness of competition law, consider it in their business decisions and know when to consult competition lawyers. This is especially important when it comes to the question of whether certain transactions are subject to merger control. Already in 2021, the European Commission issued a guidance paper encouraging the competition authorities of EU Member States to refer potentially anticompetitive transactions to the European Commission that would otherwise escape review because they do not meet national merger control thresholds.[1] This approach is particularly focused on capturing tech transactions that fall below national thresholds but could nonetheless harm competition.

Another example would be the Meta/Giphy merger in which the UK Competition and Markets Authority concluded that Meta's acquisition of Giphy would reduce competition between social media platforms, even though Giphy has no sales, assets, direct customers or employees in the UK, and required Meta to sell Giphy.[2] Given this apparent unpredictability of merger proceedings, it may be advisable to contact the authorities for pre-notification discussions, even if, at least at first glance, no merger control thresholds are met.

Step 2: Adopt synchronised compliance rules

Collaboration on a global scale is key not only to address the rapidly evolving regulatory framework for digital markets, but also to all aspects of corporate compliance strategies. Companies need to focus on ensuring a broader and interdisciplinary approach across their compliance teams. One of the biggest challenges will be to keep track of all the new rules and the growing interplay between digital antitrust regulation, data privacy and consumer protection law.

Step 3: Be prepared

The new era of antitrust enforcement will not be free of geopolitical conflicts and uncertainty about the shape of digital ecosystems. It is therefore unclear whether all companies will be able to design their business operations in a compliant manner while maintaining the competitiveness and market relevance of their products and services. To some degree, adaption will be necessary to address these new challenges. The expectation (or indeed hope) is that in the next years the many legislative proposals and staggered implementation timelines start to provide more clarity. It remains to be seen whether they will lead to competitive digital markets or a completely different digital landscape.

[1]     See Commission Guidance on the application of the referral mechanism set out in Article 22 of the Merger Regulation to certain categories of cases C(2021) 1959 final.

[2]     See https://www.gov.uk/government/news/cma-orders-meta-to-sell-giphy.  

author: Anna Sofia Reumann