Antitrust Governance in an Era of Rapid Change

Antitrust Governance in an Era of Rapid Change

By Stavros Makris

Abstract:     The present article uses the digital economy as a canvass to draw the strengths and the pitfalls of commitments, as a sui generis tool of modern EU antitrust governance. Are commitments an appropriate device for enforcing competition norms in the complex, fast-moving and constantly changing digital markets? This question raises a twofold problem. First, do commitments lead to the abandonment of the struggle for law and infuse uncertainty or do they enhance legal clarity? Second, could commitments give rise to differential treatment of similar cases and, thus, undermine the Rule of Law by triggering coordination problems between antitrust enforcers? To address these questions, after examining the main features of digital economy, I explain in what sense commitments constitute an element of modern antitrust intervention. Against this background, I explore whether the Samsung commitments provided an outcome compatible with legal clarity and legal certainty as fundamental components of the Rule of Law. Next, the Booking.com saga is used as a case study for assessing how different antitrust enforcers could coordinate or fail to do so within a system of network-based governance. The aim of the paper is to evaluate how commitments have worked so far in digital markets.

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