Rethinking power and competition in the digital era: conference report

Recently, a growing presence of commercial digital technology firms can be observed in various social and political domains: think about social media platforms affecting election outcomes and (big) technology corporations supplying employment or education ‘solutions’, facilitating biomedical research, building smart cities and combatting climate change, or providing precision farming technologies. Such, mainly market-driven developments raise several challenges, not only those related to the functioning of the markets, but also those that pertain to broader, societal considerations of access and justice, for example. Moreover, these developments pose important legal-doctrinal questions that have increasingly been troubling competition law scholars (and policy-makers) among others: for example, how to ensure societally-desirable data-driven innovation, what are the boundaries of (digital) markets and competition law, and can – and should – competition law enforcement take on board objectives beyond economic efficiency, like fundamental rights, democracy, sustainability, or fighting inequality, and how could this be done in practice.

Dealing with these and other similar queries was the main aim of the ‘Digital Technologies, Public Policy, and Competition Law’ conference, which took place on 1 and 2 June in Rotterdam, the Netherlands. To set the scene, the excellent keynote address of Anna Gerbrandy introduced modern bigness, a notion that denotes a new type of power of big tech companies as a combined construct governing economy and society. She further discussed how rethinking and finding new ways to talk about power (in competition law) could help us discern and tackle the harmful effects of modern bigness, which also go beyond ‘the market’, and shape counter-power measures.

Conference panels that followed addressed conceptual and practical questions related to manifestations of power and competition on digital markets and beyond, as well as implications of the above-mentioned developments for various sectors. To begin, Natalia Moreno Belloso touched upon the trade-offs in EU competition law, both those related to efficiency and those beyond it that can interplay with other public policy interests; a debate that has been rekindled with the rise of digital platforms. Further, in her presentation Najah Itani suggested that competition law, in relation to big tech companies, should be integrated with human rights and public policy goals like non-discrimination, transparency, accountability, and participation. Also discussing the objectives of competition policy, but offering a perspective from the Gulf Cooperation Council countries, Nora Ziba Memeti examined the (in)coherence of economic and non-economic goals prescribed within competition laws and the challenges faced in dealing with digital markets by competition authorities.

Furthermore, Yannick Leen and Sanne Taekema embedded European competition law into a broader rule of law context, putting forward a rule of law theory suitable to address private power of big tech firms and its (arbitrary) exercise. In their contribution, Giulia Schneider and Yane Svetiev offered a study on EU’s digital regulation and data governance in light of complexity of interests and discussed several emerging regulatory tools and techniques, while Emanuele Fazio discussed competition law in the context of digital transition, highlighting the tensions regarding the interpretation and application of competition rules and to the degree of centralisation concerning the enforcement mechanisms. Next, Selcukhan Ünekbaş offered a provocation on protecting less efficient competitors in relation to the law protecting up-and-coming rivals to facilitate innovation and ensure equality of opportunity.

In terms of particular issues or technologies and public policy considerations, several were looked into: Beata Mäihäniemi focused on autonomy, dark patterns, and choice architecture in the digital context and a possible competition law response, whereas Laura Frederika Lalikova argued for regulating (some) big tech firms, by virtue of their characteristics, as public services. Staying in the digital realm, Rebecca Lin delved into the impact of culture on the assumptions and theories underpinning antitrust laws and explored trust and consumer behaviours on digital platforms, and Qihan Xu examined blockchain, its potential competitive concerns, and what problems this technology might bring to EU competition law. Reaching into a more ‘tangible’ world, Pauline Phoa addressed digital platforms and vertical integration in the agricultural sector and outlined a regulatory response against the disrupted power dynamics in the agri-food chain, while Pratiksha Ashok tackled India’s approach to the circular economy and its economic development plans, discussing it in the context of competition law and its possible role in achieving a more sustainable future.

A big part of conference was dedicated specifically to innovation on and regulation of the digital markets and platforms. We had a privilege to have Ana Malheiro from DG Competition at the European Commission talk us through the evolution of the Digital Markets Act (DMA). In her talk, she discussed the DMA as an internal market regulatory instrument that will exist in addition to competition law and the applicable obligations for the gatekeeper platforms. Particularly welcome was her insight on the new forms of cooperation heralded by the DMA between enforcement authorities and the companies in question.

In the panel dedicated to the same topic, Oles Andriychuk first outlined the contours of the emerging digital competition law and regulation through a comparative analysis of the DMA and the proposed UK (DMCC) regimes. Two presentations then focused on particular aspects of the relationships the platforms have with their users: Alessia Sophia D’Amico focused on the DMA prohibition for gatekeepers to accumulate and cross-use personal data, unless they receive users’ consent, pointing out that in this regard, the DMA suffers from the same shortcomings as the GDPR, and discussing its merit to curb gatekeepers’ market power. Then, Samuel Scandola focused on the asymmetries between and the bargaining power of online platforms over their business users and suggested a reconsideration of Article 102 TFEU to address platform-to-business relationships. To conclude, Jasper van den Boom offered a novel understanding of platform ecosystems and suggested progressive ecosystem regulation in order to stimulate competition and innovation.

Thanks to the above-mentioned speakers, panel discussants (Ioannis Kampourakis, Friso Bostoen, Pim Jansen, Inge Graef, and Catalin Rusu), and the audience, the two days showcased fascinating multidisciplinary research, utilising both empirical and theoretical approaches, and featured engaging discussions on (if and) how can competition law adapt to disruptions posed by digital technologies, while balancing public and private interests. In addition to the European perspective, the conference included valuable inputs from other regions, like MENA and the Gulf Countries, India, and UK, as well. As such, it was a lively and inspiring event that highlighted the need to rethink our approach to (digital) power and some of the pertinent tensions and synergies between competition law and other policies in the digital era.

Acknowledgements: The conference was organised by María Campo Comba and Tjaša Petročnik, as a collaboration between two Law Sector Plans that are funded by the Dutch Ministry of Education, Culture, and Science: Digital Legal Studies on one hand and The Public-Private Challenge on the other. In addition, we are grateful for the financial support by the Erasmus Center for Economic and Financial Governance.