Competition Law for the Digital Economy
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Competition Law for the Digital Economy

Edited by Björn Lundqvist and Michal S. Gal

The digital economy is gradually gaining traction through a variety of recent technological developments, including the introduction of the Internet of things, artificial intelligence and markets for data. This innovative book contains contributions from leading competition law scholars who map out and investigate the anti-competitive effects that are developing in the digital economy.
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Chapter 11: Antitrust governance in an era of rapid change

Stavros Makris

Abstract

This chapter examines the potential for commitments-centred antitrust intervention in the digital economy. Despite the urges for a minimal antitrust when it comes to innovative, fast-moving markets (the ‘hands-off approach’), there is a rising awareness that digital markets cannot always deliver optimal results without antitrust. Commitments are sensitive to the institutional concerns of the hands-off approach, while simultaneously allowing for a precise, swift and effective intervention in digital markets. However, before opting for commitments, a two-fold question should be tackled: do commitments obscure the law or enhance legal clarity? Could commitments give rise to differential treatment of similar cases, and undermine legal certainty? Legal clarity and legal certainty set a ‘threshold challenge’ to commitments and serve as a benchmark for assessing their use. I investigate the relationship between commitments and legal clarity by focusing on the Samsung commitments. By unravelling the Booking.com saga, I explore whether commitments lead to divergences that impair legal certainty. The analysis concludes by noting that commitments meet the threshold challenge, and, thus, might prove a useful tool for antitrust governance of digital markets.

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