- Aurelien Portuese, “Precautionary Antitrust: A Precautionary Tale in European Competition Policy,” in Law and Economics of Regulation, edited by Mathis, et al. (Springer International Publishing, 2021), DOI: 10.1007/978-3-030-70530-5.
European competition policy applied to digital markets is at a turning point: New regulatory tools are under consideration and traditional antitrust analysis is altered given the new business realities embodied by tech platforms. These envisaged new solutions together with novel antitrust enforcement is justified, on one side, as the appropriate means to overcome the error of under-enforcement of competition policy in digital markets whereas, on the other side, some criticize this new approach as erring in over-enforcement. Both claims that the other side is erring in its antitrust analysis are unsatisfactory. Each stance does not err, but rather, epitomize preferences towards regulation.
This chapter argues and evidences that the new approach advocated by the European Commission for competition enforcement towards digital markets illustrates a preference for precaution. In the vein of the precautionary principle, the Commission's perspective reveals a precautionary antitrust enforcement. It is neither a policy error nor a legal flaw — it is a regulatory preference for precaution over innovation and disruption. After having introduced the precautionary principle (Sect. 1 ), this chapter defines precautionary antitrust and evidences it so that it becomes apparent that the European competition policy towards digital markets have adopted a regulatory preference leaning in favor of precaution over innovation (Sect. 2 ). We then conclude on our suggested explanatory framework as a guiding principle in the foreseeable trends in European and American antitrust enforcements (Sect. 3 ).