Precautionary Antitrust: The Changing Nature of Competition Law

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The sudden antitrust activism in the United States follows an aggressive stance in the European Union. Europeans have pioneered the techlash with numerous lawsuits.9 Announced in December 2020, the E.U. will soon adopt the Digital Markets Act (DMA).10 This new regulation inherently endorses the precautionary logic: With the reversed burden of proof and a shift from ex-post to ex -ante rules of competition aimed at prohibiting potentially proinnovation conduct, the DMA prioritizes regulation over innovation.11 In other words, it ensures precaution on disruption, hence inhibiting innovation incentives and capabilities at the expense of consumers and progress and the benefit of more incremental competition and of the preservation of an idealized market structure. As we discuss and evidence in this article, the underlying logic for this transatlantic approach for a more aggressive antitrust enforcement and reforms signal a precautionary approach to competition: the risk-averse precautionary principle takes hold on antitrust enforcement. While European precautionary antitrust has mainly materialized in Europe with a shift from ex-post to ex-ante rules of competition with the Digital Markets Act, American precautionary antitrust has mainly materialized through some antitrust bills, but most importantly through the use of Section 5 of the Federal Trade Commission Act which may be weaponized to adopt ex-ante rules of competition. With the precautionary approach to antitrust, the relationship between antitrust and innovation is dramatically changed.