By: Kevin Coates (21st Century Competition)
The competition rules are commonly referred to as an ex-post instrument; regulation is frequently referred to as ex-ante. The public consultations on the proposed New Competition Tool and the Ex Ante Regulation that are part of the Digital Services discussions both seem to regard competition enforcement as ex-post intervention and regulation as ex-ante.
I know that a lot of people use these terms (and I’m sure I’ve used these terms myself), but they’re neither accurate nor particularly helpful to the discussion.
The competition rules are laid out in general terms in the Treaty. The Commission has taken prohibition decisions: these generally condemn past behaviour and are rightly regarded as ex-post intervention. But these decisions also establish precedents which guide companies in their future conduct.
The Commission has also issued block exemptions with specific do’s and don’ts, and written extensive guidance with examples of good and bad behaviour. Court rulings also establish precedents that guide future conduct. And private practitioners spend a lot of time advising clients on what they need to do to operate within the rules.
There is therefore a substantial part of competition law that is there to guide companies as to how they can comply with the rules in the future. The object is to guide future behaviour. This aspect of competition law is undeniably ex-ante…
Featured News
Walmex Awaits Antitrust Ruling as Mexican Regulator Probes Alleged Practices
Oct 8, 2024 by
CPI
Crypto.com Sues SEC, Alleging Regulatory Overreach in Crypto Industry
Oct 8, 2024 by
CPI
Elite US Universities Face New Antitrust Suit Over Financial Aid Practices
Oct 8, 2024 by
CPI
Kirkland & Ellis Strengthens Antitrust Practice with New Partner from FTC
Oct 8, 2024 by
CPI
TikTok Hit with Lawsuits from 13 US States and DC
Oct 8, 2024 by
CPI
Antitrust Mix by CPI
Antitrust Chronicle® – Refusal to Deal
Sep 27, 2024 by
CPI
Antitrust’s Refusal-to-Deal Doctrine: The Emperor Has No Clothes
Sep 27, 2024 by
Erik Hovenkamp
Why All Antitrust Claims are Refusal to Deal Claims and What that Means for Policy
Sep 27, 2024 by
Ramsi Woodcock
The Aspen Misadventure
Sep 27, 2024 by
Roger Blair & Holly P. Stidham
Refusal to Deal in Antitrust Law: Evolving Jurisprudence and Business Justifications in the Align Technology Case
Sep 27, 2024 by
Timothy Hsieh