Edited by Björn Lundqvist and Michal S. Gal
Chapter 11: Antitrust governance in an era of rapid change
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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