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Synthèse
Fayrouze Masmi-Dazi introduced the debate and recalled that although there has been extensive work on the regulation of big tech, the question as to whether it is relevant to do so remains heavily debated. Indeed, specific rules already govern sparsely at least some of the issues that we want to address – unfair or unbalanced commercial terms, good faith in negotiations and of course antitrust offences such as abuses of dominance or economic dependency. All these debates and studies have provided us with various insights, and we have now collected a lot of intellectual and theoretical resources. The digital economy has brought new challenges to competition and therefore requires such regulation at least from a European perspective. Now that we are heading towards regulation, it is necessary to answer several key questions. First, one should address the issue of how to regulate – from sector-specific rules to mandatory guiding principles or more prescriptive rules governing specific behaviours or market structures under the supervision of coordination of authorities or a single dedicated digital regulator by member State. Second, it is necessary to identify precisely what we wish to regulate – is it a business model somehow articulated around the collection and possible retention of data out of which a power that goes beyond market power arises, as opposed to a selected number of companies or specific activities. To answer these questions, it is necessary to reflect on the nature of power that is targeted by the regulation. The exercise proves difficult for big tech since their influence goes beyond a given relevant market as we traditionally define it, but also because competition authorities struggle to enforce the actual rules and have not yet had the opportunity or ability to directly investigate raw data, algorithms or processes of these companies. As shown by the General Data Protection Regulation as well as the Directive on Neighbouring Rights, such asymmetry of information with public bodies may generate underestimated negative effects from policy design and a competition perspective. These debates require contributions from the legislator, lawyers, economists and market players. But reflecting on a digital regulation without ensuring the ability to enforce it with the help of data scientists and corresponding investigative powers might prove inefficient. It is relevant to observe that some national competition authorities have created specialised services dedicated to the digital economy (the British Competition and Markets Authority (“CMA”) and the French Competition Authority (“FCA”) with scientific resources.
