Competition Law Enforcement at a Crossroad: Setting Enforcement Priorities in the Era of Digital Markets

With increasing pressure on competition authorities to tackle various economic and social issues, the way in which competition authorities select their cases for enforcement efforts (“priority setting”) carries immense socio-economic consequences for both economies and citizens’ welfare. This is especially true with respect to digital markets, where the introduction of new regulatory and policy frameworks necessitates pro-active, flexible and highly discretionary enforcement. As a result, while setting enforcement priorities has always been a complex and multifaceted task, digital markets introduce distinct challenges to the established legal frameworks and traditional constitutional safeguards that guide priority-setting in competition law enforcement. Especially because the process of priority-setting often slips through the legal and constitutional safeguards that could delineate administrative discretion, the emergence of digital markets raises crucial issues about the criteria of intervention and the substantive focus of selection criteria. Moreover, the regulatory issues these markets exhibit, push for a shift away from the consumer welfare standard for prioritisation, which has been the narrowly defined focus of many jurisdictions’ competition law enforcement over the past decades, towards broader economic and social considerations.

This editorial examines how the challenges associated with digital markets influence – or should influence – the decision-making processes of competition authorities when setting enforcement priorities for the digital era.