Pro-competition Regulation in the Digital Economy: The United Kingdom’s Digital Markets Unit

I. Introduction

Regulating the digital economy is the focal point of the most vigorous and prominent competition policy debates today. Although reasonable scholars and policymakers continue to debate the finer details of how best to do so, there is “growing consensus” ² that more ought to be done, and that this should or must transcend conventional modes of competition enforcement. In the United Kingdom, this is reflected in ambitious plans to enact a sector-specific regulatory regime for the digital economy, to not only augment but also exceed the existing competition law framework. Centered on the work of a Digital Markets Unit (DMU) located within the U.K. competition agency, the Competition and Markets Authority (CMA), the new regime is intended to “pro-actively shape the behavior of digital firms with significant and far-reaching market power, by making clear how they are expected to behave.” ³ Although the United Kingdom is not unique in its plans to enact more demanding ex ante regulation of large digital firms, it was a notable early advocate of such an approach, premised on an explicit regulatory commitment to so-called pro-competition. This contribution explores the notion of pro-competition regulation, by locating the anticipated digital regime within the distinctive context of the United Kingdom’s competition system and beyond, and by considering its potential to provide a more effective response to the perceived competition problems of digital markets.

The DMU and pro-competition regime have their origins in a 2019 report prepared by an independent Digital Competition Expert Panel (DCEP) for the U.K. Government, titled “Unlocking Digital Competition,” but known colloquially as the Furman Report. ⁴ The Furman Report pitched its prescriptions as lying between two policy extremes: rejecting both the argument that effective competition is impossible in digital sectors (which would support a regulatory approach of overreaching the market mechanism through a category of utility-type regulation) and that existing levels of competition are perfectly adequate (so that no further regulatory intervention would be required). ⁵ The Furman Report’s pro-competition proposals thus adopted the undergirding logic of conventional competition law—that it is preferable to support and enhance competition dynamics, rather than to supplant them with top-down regulation—but anticipated a rather more interventionist prospective approach. In doing so, it implicitly endorsed concerns about the effectiveness of “more economic” approaches to competition law, ⁶ while nonetheless reflecting well-established criticism of more static varieties of regulation—the latter being a particularly acute concern in the dynamic context of the digital economy. The object of this article is to gain a more nuanced understanding of how the concept of pro-competition is reflected within this regulatory balancing exercise, and what this means in practice for the digital economy.

The article is structured as follows. Section II sets the scene by examining the specific competition issues that arise within the digital economy, through the lens of the analysis of the Furman Report. Section III sketches the proposed structure and anticipated functions of the DMU, the finer details of which remain unsettled at the time of writing. Section IV explores more directly the notion of pro-competition regulation, assessing the proposals by comparison with both the current competition law and sector-specific regulatory frameworks within the United Kingdom. Section V concludes briefly.

II. Setting the Scene: The Distinctiveness of Digital Markets

It is a truism of contemporary competition policy that a well-functioning digital economy has the potential to deliver extraordinary benefits to consumers, ⁷ but that such advantages are unlikely to be realized absent intervention to correct certain dysfunctional market dynamics. In short, the crux of the concern is that digital sectors tend inherently and inexorably toward concentration, resulting in market structures populated by only a handful of huge and powerful “Big Tech” giants. The particular features of digital markets have been explored comprehensively in a series of influential policy reports in recent years. ⁸ The Furman Report constituted the principal U.K. contribution to this lively debate and the springboard for the regulatory proposals that have followed. In this section, we outline briefly the market features highlighted in Chapter 1 of the Furman Report specifically, on the basis that the pro-competition regime that it has initiated is intended, it might be assumed, to address these concerns.

The terms of reference establishing the DCEP asked it “to consider the potential opportunities and challenges the emerging digital economy may pose for competition and pro-competition policy.” ⁹ The Furman Report declined to define the digital economy as such but focused its attention on “areas where the intensive use of digital technology is central to the business models of the firms that operate primarily within them and where this raises challenges for competition.” ¹⁰ It nonetheless identified online platforms as being “central” in this context. ¹¹ This, moreover, implicated two frequent characteristics of online platform markets: zero-monetary upfront costs for consumers coupled with the centrality of big data within the business models utilized. ¹²

Excessive concentration in digital markets was the key regulatory concern identified. The Report considered, in particular, problems of concentration in online search, social media, digital advertising, mobile operating system and app store, online marketplace, and high-technology consumer hardware markets. ¹³ Yet despite differences across sectors, the Report identified a more overarching problem of concentration within the digital economy as a whole, noting that “[w]here competition does exist in digital markets, this is frequently between a small subset of the five largest digital companies.” ¹⁴ These are the so-called GAFAM: Google, Amazon, Facebook, Apple, and Microsoft.

The Furman Report then examined the causes of concentration in digital markets. It began by identifying three factors, which are well recognized as “key characteristics of the digital economy” ¹⁵ : economies of scale and scope, the central role of data and the advantage this provides to incumbents, and network effects.

First, economies of scale arise where there are high upfront costs to entering a market segment, coupled with low or near-zero costs to add additional users. ¹⁶ Although not unique to digital markets, the extent to which they can be achieved in this context has been described as “extreme,” ¹⁷ thus providing incumbents with significant competitive advantages and facilitating concentration on a global scale. ¹⁸ Economies of scope arise where costs can be reduced, or product quality increased, by operating in multiple adjacent market segments. ¹⁹ The propensity of the digital economy to accommodate economies of scope is a key reason for the emergence of digital ecosystems, whereby the largest digital companies successfully provide a host of complementary products and services in addition to their core business activities. ²⁰

Second, the accumulation and use of data on consumer behavior is considered to constitute a particularly high barrier to entry into digital markets. ²¹ It permits incumbents, on one hand, to improve the quality of the products that they provide while, on the other hand, to achieve more effective monetization through, for example, targeted advertising strategies. ²² Access to commercially sensitive data may also facilitate self-preferencing strategies by vertically integrated incumbents. ²³

Finally, digital platform markets in particular see strong network effects, both direct and indirect, which make platforms more valuable to existing user and thus more attractive to prospective users as they grow. ²⁴ These network effects are a key driver of the “winner-take-all” competitive dynamics that are considered characteristic of digital markets.

Beyond these central features, the Furman Report highlighted a number of additional aspects of digital markets that informed the DCEP’s regulatory thinking. In markets where consumers might credibly prefer to multi-home, that is, use multiple services simultaneously, the Furman Report noted barriers to doing so, including loss of personal data, loss of reputation, anticompetitive terms, technical barriers, tying of services, and, most basically, consumer inertia. ²⁵ Financing for new entrants may be especially difficult in certain digital segments, thus favoring large incumbents who can self-finance. ²⁶ The Furman Report emphasized, moreover, the potentially detrimental cumulative effects of the identified features within digital markets. ²⁷ It nonetheless acknowledged that the positions of significant market power that are often encountered are rarely solely attributable to bad behavior and/or the idiosyncrasies of digital markets, noting that the success of Big Tech giants like Amazon and Google can be attributed at least in part to the development of products that consumers value highly. ²⁸

Yet the persistence of market power in the digital economy is an acute concern from a competition policy perspective. While transient market power may constitute a legitimate reward for successful innovation, the current structure of the digital economy provides limited scope for new competition for the market going forward. ²⁹ The Furman Report noted evidence of digital market power that has in fact persisted for a decade or more, the scale of dominance achieved by the tech giants today, the fact that product personalization premised on the exploitation of user data has become a central feature of many digital economy markets, the importance of ecosystems, and strategic investment by incumbent digital operators to protect their market position and diminish opportunities for new entry. ³⁰ The Furman Report thus concluded that “[t]he barriers to entry that exist in established digital platform markets mean that they cannot generally be considered freely contestable, and as such the largest incumbents’ positions are not imminently under threat.” ³¹

Market power is, of course, the primary target of the conventional competition rules, and recent enforcement activity against Big Tech actors demonstrates that digital dominance can attract scrutiny from a unilateral conduct perspective. ³² Yet the Furman Report, like equivalent investigations elsewhere, emphasized the extent to which digital market power, particularly in the context of online platforms, can generate wider spillover effects.

As these markets are frequently important routes to market, or gateways for other firms, such platforms are then able to act as a gatekeeper between businesses and their prospective customers. This gives the platforms three distinct forms of power: the ability to control access and charge high fees; the ability to manipulate rankings or prominence; and the ability to control reputations. A strong concern . . . is where a dominant platform has such a strategic market status, with buyers or sellers dependent on them in some form. ³³

It is the latter notion, of large digital undertakings that specifically hold strategic market status (SMS), which comprises the core of the pro-competition regime to be implemented by the DMU, as explored further below.

Finally, competition cases in the digital economy sometimes struggle to make the leap from demonstrating a distortion or absence of competition, to establishing concrete harm to consumers. The Furman Report acknowledged that concentrated markets may nonetheless generate efficient outcomes. ³⁴ It argued, however, that efficiencies trump effective competition only where consumers “receive a sufficient share of the benefits.” ³⁵ The Furman Report then outlined potential consumer harms which, it implied, justify more robust regulatory intervention. These encompassed direct consumer impacts—in particular, misuse of consumer data and harm to privacy, construed as equivalent to reductions in product quality ³⁶ —and indirect impacts, which follow from the harm inflicted upon competing firms, resulting in a less competitive innovative digital sector overall. ³⁷ The Furman Report identified various mechanisms by which indirect harm might arise, all of which have been subject to competition enforcement to some extent in other antitrust jurisdictions: unfair terms for business users of platforms, unfair access to consumers through platforms, unfair restrictions on the use of alternative platforms, and anticompetitive merger activity. ³⁸ While the Furman Report stopped short of laying claim to actual consumer harm as a result, the strong implication was that disadvantageous outcomes for consumers were at least likely absent greater regulatory intervention in digital markets. ³⁹

III. “Pro-competition” for the Digital Economy: The DMU

Having made the case for beefed-up regulation within the digital economy, Chapter 2 of the Furman Report considered its optimal shape. Specifically, the Furman Report set out (fairly high-level) proposals for “pro-competition measures . . . [which] would actively build competition into digital markets upfront.” ⁴⁰ The term “pro-competition” was not, in fact, an independent choice of the DCEP: as noted, the terms of reference establishing the panel drew a distinction, from the outset, between “competition and pro-competition policy,” ⁴¹ albeit without elaborating upon the latter. In the Furman Report, as explained in greater detail in Section IV, the term denotes regulatory approaches that go beyond the classic ex post tort/crime structure of the traditional competition rules, yet which (at least purport to) make greater use of market forces than conventional utilities regulation. In this section, we outline the recommendations of the Furman Report with respect to this new pro-competition regime and explain how these are reflected in the developing regulatory framework.

The crux of the proposed pro-competition regime hinges on the creation of a “pro-competition digital markets unit, tasked with securing competition, innovation, and beneficial outcomes for consumers and businesses.” ⁴² Although the Furman Report was agnostic as to its precise institutional form, ⁴³ the DMU was envisaged as a sector-specific market supervisory agency for the digital economy, with two key distinguishing elements ⁴⁴ : possessing regulatory powers that extend beyond the existing competition law regime, and providing a joined-up approach to digital market problems to replace the current fragmented treatment across several existing regulatory agencies. ⁴⁵

The Furman Report identified three specific strands to the DMU’s anticipated regulatory powers, although the precise details were sketched in somewhat abstract terms. As explained in the preceding section, the Furman Report focused its attention on the particular policy concerns raised by large digital firms holding so-called SMS. Similarly, what is arguably its key recommendation—the development and implementation by the DMU of a digital platform code of conduct—is restricted in its application to the activities of firms having an ex ante designation of such SMS. ⁴⁶ Three high-level principles to inform the code of conduct were identified, although the Report was explicit that these were “a first draft only,” and likely “to evolve and be refined, and added to.” ⁴⁷ Intended specifically to protect business users of digital platforms, these undergirding principles are, first, the provision of access on a fair, consistent, and transparent basis; second, fair, consistent, and transparent treatment when using the platforms, that is, in terms of prominence, rankings, and reviews; and third, an absence of restrictions on multi-homing by business users. ⁴⁸ Yet in contradistinction to the approach of the European Union’s (EU) Digital Markets Act (DMA), discussed below, the Furman Report did not anticipate a top-down determination of the precise requirements of the code by policymakers alone. Instead, it advocated for a co-regulation-type approach, ⁴⁹ whereby these details would be set “collaboratively” by the DMU in tandem with industry representatives, consumer groups, and other stakeholders. ⁵⁰ In addition, two further principal functions were foreseen for the DMU: facilitating greater personal data mobility and systems with open standards, and the pursuit of enhanced “data openness,” that is., data sharing, by platforms. ⁵¹

The recommendations of the Furman Report, published in March 2019, were immediately endorsed, “strongly,” by the CMA, which supported the creation of the DMU and suggested that the CMA itself could have a “potential role” in its operation. ⁵² Specifically, the CMA accepted that conventional competition enforcement alone is “no longer enough” to ensure effective competition in digital markets. It argued, nonetheless, that any new ex ante regime should “complement, rather than replace, existing [antitrust] approaches.” ⁵³

In July 2019, the CMA published a new Digital Markets Strategy, ⁵⁴ reflecting both an enhanced commitment to tackling digital market problems and an acknowledgment of the particular enforcement “challenges” ⁵⁵ that it faces in this area. The strategic aims articulated encompassed more or less the full spectrum of the CMA’s then existing activities and beyond: from capacity building, to effective and efficient use of established competition tools, adaptation of those tools to the particular issues raised by digital economy market problems, the development of better digital-focused remedies, and even the potential need for additional regulation. ⁵⁶ The Strategy was “refreshed” in February 2021: the revised document effectively restates the earlier aims, while updating the CMA’s priority work schedule in light of the evolving regulatory landscape. ⁵⁷

In tandem with the Digital Markets Strategy, the CMA in July 2019 launched a market study into online platforms and digital advertising. ⁵⁸ The need for such a review had been suggested by policymakers on various previous occasions. ⁵⁹ It was also a central plank of the recommendations of the Furman Report. The latter identified a series of potential competition issues relating to the digital advertising sector, but concluded that proper consideration of these concerns fell outside the scope of the DCEP’s review. ⁶⁰ The final report of the Digital Advertising Study ⁶¹ —a slightly less comprehensive form of sector inquiry than the market investigation reference (MIR) procedure, considered further below—focused on the activities of the two largest online advertising providers in the United Kingdom, namely, Google and Facebook. Like the approach of the Furman Report, the Digital Advertising Study identified market features that inhibit effective competition in the search, social media, and digital advertising sectors, including network effects and economies of scale; the profound effects of default behavior by consumers, including its manipulation by incumbent platforms; unequal access to user data; a lack of transparency around decision making; and the centrality both of ecosystems and vertical integration. These generate entrenched market power for the incumbent platforms, the negative effects of which encompass a variety of consumer harms: from classic “antitrust” injuries such as higher prices, lower choice, and lower innovation, to wider societal damage to data privacy and media plurality.

Because these problems are “so wide ranging and self-reinforcing,” ⁶² the Digital Advertising Study concluded, as the Furman Report had done, that the CMA’s existing powers are insufficient to address them. There is, rather, an “urgent case for significant new legislation.” ⁶³ Yet the CMA felt no need to reinvent the wheel in devising an alternative regulatory solution: instead, it endorsed the proposed pro-competition regulatory regime for online platforms, implemented through the DMU. This would comprise a binding code of conduct for platforms with SMS, as recommended by the Furman Report. Moreover, building upon proposals in the Furman Report for specific remedies regarding the DMU’s suggested data mobility and data openness functions, ⁶⁴ the Digital Advertising Study recommended that the DMU furthermore be empowered to introduce discrete “pro-competitive interventions” in distinct markets. These would aim at addressing “the sources of market power and other market failures . . . by tackling issues on both the demand and supply side of the markets.” ⁶⁵ It summarized the rationale for this two-pronged approach as follows:

A key benefit of behavioral interventions (the first category) as enshrined in the code is that they allow for considerable flexibility in tackling problems as they arise, which is an important consideration in the rapidly-changing markets that we have reviewed. In contrast, the benefit of pro-competitive interventions (the second category) is that they provide for the possibility of solving problems at source, reducing the need for ongoing and costly regulatory controls and potentially in the long run leading to platforms no longer meeting the criteria for SMS designation. ⁶⁶

The Digital Advertising Study nonetheless acknowledged that the second category of regulatory interventions had the potential to “change the nature of competition in fundamental ways,” and thus necessitated careful design and, in particular, “close attention to the potential costs and unintended consequences.” ⁶⁷ It then considered in detail the possible powers that might be given to the DMU across both first and second categories of regulation, recommending inter alia powers to restrict defaults and monetization, to mandate access to data and interoperability, to improve consumer choice over use of personal data, to impose “fairness by design” requirements, and, perhaps most contentiously, to implement ownership, operational, and/or data separation requirements for platforms. ⁶⁸

The outcome of any market study includes the possibility of a full-scale market investigation where significant competition problems have been identified and the CMA considers it appropriate to make use of the substantial remedial powers available following an MIR. The CMA took the view that the statutory test allowing for an MIR, governed by the Enterprise Act 2002, was probably met in the circumstances. ⁶⁹ It chose not to exercise its discretion to make a reference, however, being influenced in particular by regulatory developments occurring in tandem with the market study. These included, most specifically, the fact that the U.K. Government in its March 2020 Budget accepted unconditionally all of the strategic recommendations of the Furman Report, ⁷⁰ which included the creation of the DMU. To assist this, moreover, the Government established a Digital Markets Taskforce (DMT), led by the CMA working with other interested regulators, to advise on the design and implementation of the anticipated pro-competition regime. ⁷¹ This work was ongoing at the time of publication of the Digital Advertising Study; the DMT published its recommendations in December 2020 (hereafter “DMT Advice”). ⁷²

Much of the DMT Advice corresponds broadly to the approaches of the Furman Report and findings of the Digital Advertising Study. Although it briefly reconsidered the benefits and challenges posed in competition terms by the growth of the digital economy, ⁷³ the DMT took the view that “the case for an ex ante regime in digital markets has been made.” ⁷⁴ Again, the DMT placed the establishment of a specific regulatory agency, once more referred to as the DMU, at the crux of such a regime. Moreover, the DMT endorsed the approach of limiting application of the anticipated pro-competition framework merely to “the most powerful digital firms,” ⁷⁵ adopting the Furman Report language of SMS as the appropriate benchmark. ⁷⁶ The DMT was explicit that its “expectation is that only a small number of digital firms are likely to meet the SMS test.” ⁷⁷ Firms designated as holding SMS would be subject to a three-pronged set of regulatory measures: the code of conduct, the possibility of pro-competitive interventions, and more demanding merger control rules to enable closer scrutiny of transactions involving large digital actors. As the DMT Advice has informed, to a large extent, the subsequent public consultation on proposals for a new pro-competition regime for digital markets, ⁷⁸ its specific details are considered below.

We thus come to present shape of the Government’s proposals for digital markets. In November 2020, responding to the online advertising market study and pending the publication of the DMT Advice, the Government formally announced its plans to adopt a pro-competition regime, centered around a new regulatory agency, the DMU. ⁷⁹ This agency was established on a non-statutory basis in April 2021. ⁸⁰ The intention is to put it on a statutory footing in tandem with the legislation required for the regulatory regime itself, and to house the DMU within the CMA. ⁸¹ In its non-statutory “shadow” ⁸² guise, the DMU is entrusted with assisting in the design and creation of the anticipated pro-competition regime; as a statutory body, it will be responsible for its administration. In accepting the need for a new regulatory regime anchored in the work of the DMU, the Government committed to consult on “the form and function” of the latter. ⁸³ A public consultation (hereafter “Digital Markets Consultation”) ran from July to October 2021; at the time of writing, the Government is analyzing the feedback received and considering the final shape of its regulatory proposals. ⁸⁴

The Digital Markets Consultation takes as a given that a pro-competitive regime, administered by the DMU and focused on the activities of digital firms with SMS, is to be established; it is only the details of that regime that are open to comment. The Digital Markets Consultation opens with a set of practical questions regarding the funding of the DMU, its interaction with other regulators (a point considered further at the end of the next section), and, responding to a recommendation contained within the DMT Advice, the possibility of giving the DMU a wider market monitoring function over and above its enforcement role within the pro-competition regime. ⁸⁵

It then addresses the SMS concept which, as noted previously, is anticipated to act as threshold criterion for the regime. That is, the demanding requirements of the pro-competition framework will apply only where a firm has already been designated by the DMU as holding significant market power in relation to at least one relevant activity, which moreover provides it with a so-called strategic position. ⁸⁶ This approach accords, broadly, with the recommendations of both the Furman Report and the DMT Advice.

To determine whether a relevant “activity” exists, the Digital Market Consultation proposes to eschew any formal market definition exercise as would be required, inter alia, in an abuse of dominance case taken under Chapter 2 of the Competition Act 1998. ⁸⁷ It does so on the basis that market definition is both unnecessary and likely to introduce inefficiencies to the designation process ⁸⁸ ; the reluctance to embrace traditional market definition tools may also reflect concerns about their comparative ineffectiveness in the digital economy context. ⁸⁹ The Digital Markets Consultation instead proposes to limit application of this threshold concept to “activities where digital technologies are a ‘core component’ of the products and services provided as part of that activity.” ⁹⁰ This is a rather more narrow definition than that advocated in the DMT Advice, which suggested that it should encompass “any situation where digital technologies are material to the products and services provided as part of the activity.” ⁹¹ The DMT Advice argued that this would provide an “appropriate focus” on relevant digital market problems, “without creating an inflexible regime.” ⁹² The Digital Markets Consultation, however, raised concern that this somewhat vague and expansive definition might result in a regime that is both “too broad” and which provides “insufficient clarity for stakeholders.” ⁹³ Conversely, the Digital Markets Consultation rejects the superficially more precise and pertinent notion of “digital platform activities,” on the basis that, despite frequent popular usage, it lacks a clear and settled definition, and could conceivably prove to be under-inclusive in practice. ⁹⁴

Yet the pro-competition regime, as discussed, is not intended to apply to any and all firms that use digital technologies as a core component of their business activities. Instead, the SMS concept, first introduced in the Furman Report, provides the key regulatory determinant. The Digital Markets Consultation follows the DMT Advice in proposing to ground the SMS concept in a finding of “substantial and entrenched market power in at least one [relevant] activity.” ⁹⁵ This means that the firm’s market position “must be established and unlikely to change in the foreseeable future.” ⁹⁶ This, moreover, must provide the firm with a “strategic position,” namely, “a position where the effects of its market power are likely to be particularly widespread or significant.” ⁹⁷ To determine whether such a position exists, the Digital Markets Consultation suggests four criteria that the DMU should consider, ⁹⁸ which together provide a fairly comprehensive tour d’horizon of the competition policy concerns raised by digital platforms. These are whether the firm concerned has achieved very significant size or scale in the activity; whether it acts as a gateway, namely, as an important access point to consumers ⁹⁹ ; whether it can reinforce its market power in that activity or leverage it into other activities; and whether it can use the activity to determine the “rules of the game” within a relevant market segment. In this regard, the Digital Markets Consultation similarly follows the DMT Advice, with one exception: the latter suggested a fifth criterion, namely, whether the activity has “significant impacts on markets that may have broader social or cultural importance.” ¹⁰⁰ As explained later in this section, the Digital Markets Consultation has chosen to ground the pro-competition regime solely in competition-oriented considerations, even if it goes beyond the traditional format of competition law as such. The implications of this are considered in the following section.

The DMT Advice argued that the task of designating an entity as having SMS should be treated as “an expert regulatory judgment, both as to whether the criteria for designation are met and whether it is appropriate to designate a firm.” ¹⁰¹ Consistent with this perspective, the suggested methodology set out in the Digital Markets Consultation rejects a “mechanistic approach” based on “quantitative thresholds.” ¹⁰² Instead, it envisages a more context-specific “in the round” ¹⁰³ assessment, making use of “a range of qualitative and quantitative evidence to ensure designation decisions are appropriate and justifiable.” ¹⁰⁴ This contrasts, most notably, with the proposed approach of the EU’s DMA, which would ground designation as a gatekeeper falling within the purview of the Act principally in a series of quantitative criteria. ¹⁰⁵ In doing so, the Digital Markets Consultation rejects the notion, implicit in the DMA proposal, that the sheer size of a digital undertaking legitimates the imposing of significant restraints on its freedom of business action: that is, big is not necessarily bad from this viewpoint. It thus highlights the risk of “insufficiently nuanced” ¹⁰⁶ outcomes where the designation assessment is conducted primarily by means of quantitative criteria that provide at best a rough proxy for SMS, echoing concerns that have been raised in respect of the approach of the DMA. ¹⁰⁷ Yet the assertion that the holistic approach advocated in the Digital Markets Consultation is likely to prove less “burdensome” ¹⁰⁸ than a wholly quantitative approach seems naïve. This is particularly the case insofar as it anticipates that the SMS designation process will look a lot like the CMA’s market study/market investigation process—which, as discussed below, is hardly burden-free in its demands on the agency.

Nonetheless, though a quantitative approach is rejected, the Digital Markets Consultation follows the DMT Advice in suggesting factors that should inform how the DMU approaches the exercise of its expert regulatory judgment and, in particular, how it prioritizes designation assessments. Three criteria have been identified: the firm’s revenue, the nature of the digital activity undertaken, and whether an existing regulatory regime is better placed to address the perceived harm. ¹⁰⁹ The question of revenue, of course, is quantitative in nature: but both the DMT Advice and the Digital Markets Consultation are clear that revenue in this context serves only to identify prospective candidates for designation, rather than being determinative of the exercise itself. ¹¹⁰ In this regard, the DMT suggested a relevant figure of £1 billion in annual U.K. revenue, ideally complemented by annual global revenues in excess of £25 billion. ¹¹¹ The Digital Markets Consultation, by contrast, leaves open the question of precisely how high a level of revenue should merit prioritization, asking instead whether a U.K.-focused or worldwide revenue approach would be more appropriate. ¹¹² Interestingly, the DMT suggested that these prioritization rules should lie within the control of the DMU, taking the shape of formal guidance that could nonetheless be “updated as digital markets evolve.” ¹¹³ The Digital Markets Consultation, conversely, anticipates legally binding (and thus, one presumes, rather less flexible) prioritization rules to which the DMU “must have regard” when deciding which undertakings to consider for designation and why. ¹¹⁴

Finally, designation as a firm with SMS is not open-ended in nature. Again following the DMT Advice, ¹¹⁵ the Digital Markets Consultation suggests that it should last for five years before review. ¹¹⁶ This reflects the fact that, even within the highly dynamic context of the digital economy, the SMS concept implies that the firm concerned already has market power that is not merely substantial but also entrenched. ¹¹⁷ Nonetheless, it is anticipated that firms should be able to challenge an existing designation where a “material change” means that it “is no longer appropriate.” ¹¹⁸ The Digital Markets Consultation is vague at this point, however, leaving it unclear whether a designated firm could simply appeal to the DMU’s regulatory discretion on the basis of changed circumstances or instead would have to show that the statutory test for designation was no longer satisfied on the facts.

Designation is, of course, merely the start of the regulatory process. Once designated, firms with SMS will become subject to a legally binding ex ante code of conduct, intended “to manage the effects” of their market power. ¹¹⁹ As noted, the Digital Markets Consultation starts from the position that the case for such a regime in the digital context has already, definitively, been made, and the Government has accepted as much. ¹²⁰ Moreover, as the DMT Advice recognized, the United Kingdom is far from unique here, with equivalent efforts in many jurisdictions worldwide. The extent to which this remarkable regulatory consensus will prove welfare-enhancing in the longer term remains to be seen. It is indisputable that many aspects of the digital economy—such as tax control, labor law, or responsibility for fake news or hate speech—are chronically (and many would argue, shamefully) under-regulated at present. Yet when it comes to the question of whether an ostensible pro-competition regime is likely to be beneficial in competition terms, the devil is very much in the detail. It is in this regard that the Digital Market Consultation is least prescriptive and arguably most ambivalent.

The current proposal envisages a code comprising of (a relatively small number of) high-level objectives, coupled with a series of more granular legally binding principles to direct firm behavior. ¹²¹ The Digital Market Consultation proposes three key objectives, ¹²² expressly taken from the CMA’s digital advertising market study, ¹²³ which also echo the guiding objectives identified in the Furman Report. ¹²⁴ These are “fair trading” obligations, aimed at preventing the exploitation of users; “open choice” rules, to ensure that users can move freely between digital providers; and “trust and transparency” requirements, to assist users in making informed and effective choices. ¹²⁵

These objectives are then to be operationalized in the form of more detailed principles. The Digital Markets Consultation is eloquent and convincing in articulating what the optimal regulatory design would, ideally, entail. The specific behavioral requirements should be “evidence-driven and targeted, preventing harmful behavior without limiting positive or benign behavior”; offer “clarity and consistency” while “minimizing complexity and burden on stakeholders”; and be “flexible and forward-looking in order to adapt to digital markets . . . without dampening innovation.” ¹²⁶ Yet a cynic might argue that this concise account of regulatory best practice somewhat begs the question, insofar as the Digital Markets Consultation pays relatively little attention to the discrete principles to be implemented. ¹²⁷ Instead, it concentrates on the prior question of the design of the regulatory framework, identifying three potential options.

The first option ¹²⁸ would be for a highly differentiated regulatory regime, which is individually customized to the distinct characteristics and market circumstances of each designated firm. The mandatory rules would thus be unique to each firm and would be developed and updated by the DMU in consultation with stakeholders rather than set out in the underpinning legislation. The Digital Markets Consultation acknowledges that the closely tailored nature of the regime would be well placed to deliver regulatory obligations that are both effective and proportionate. Nonetheless, it queries the potential heterogeneity of the resulting regime, with implicit attendant concerns about its administrability.

The second option ¹²⁹ is to mirror the proposed approach of the DMA, namely, to specify in the relevant legislation a set of binding (if necessarily somewhat abstract) rules to be applicable to all designated firms. The role of the DMU would thus be simply to enforce these rules against regulated actors. The principal benefits of this approach are clarity and simplicity, with the same clearly identified obligations applicable to all SMS firms. The downsides, according to the Digital Markets Consultation, would be an absence of specificity and thus an absence of clarity about the relevant regulatory obligations of each individual firm, the risk of over-regulation of certain firms, and a lack of flexibility in adapting the rules to changing market circumstances. There is also the rather critical question, linking back to the comparative absence of granular detail provided in the Digital Markets Consultation, of how such a universally applicable list of relevant rules can be developed in the first place. The DMA proposal seems to pluck its list of proscribed activities and mandatory obligations more or less from thin air, informed by prior antitrust enforcement practice yet divorcing the relevant theories of harm from either any finding of market dominance or cognizable consumer detriment. ¹³⁰ This is about as far as possible from the collaborative mode of regulation originally envisaged by the Furman Report, ¹³¹ and does not seem particularly promising as a way to yield effective regulatory results.

Thus, the third option, ¹³² which is perhaps unsurprisingly the approach advocated by the Digital Markets Consultation, seeks to chart a middle course between the extreme individualism of the first option and the pretense of universality of the second. It would comprise a set of generally applicable high-level rules, set out in legislation, complemented by legally binding firm-specific requirements developed by the DMU as needed. The individualized rules would be tailored to the specific harms anticipated to result from the particular position of SMS as identified during the designation process. The Digital Markets Consultation argues that such an approach best marries the contrasting concerns of flexibility and clarity within the regulatory framework.

In this regard, the Digital Markets Consultation draws an explicit parallel to the Section 19a tool introduced in Germany in January 2021. ¹³³ The amendment addresses very large digital firms that are held by the national competition authority, the Bundeskartellamt, to be of “paramount significance for competition across markets.” ¹³⁴ Following such a finding, the Bundeskartellamt is empowered to prohibit the firm concerned from engaging in any or all of seven specified practices, including self-preferencing, denial of interoperability or data portability, and the use of data to raise barriers to entry. The Section 19a tool thus enables the ex ante regulation of large platforms to “shut the stable door before the horse has bolted” in competition terms, ¹³⁵ a standpoint that surely bears some resemblance to the pro-competition notion. Notably, the Section 19a tool has been described as “a testing ground for digital platform regulation,” which will enable policymakers elsewhere to “watch and learn from the wanted and unwanted effects of the Bundeskartellamt’s future 19a interventions.” ¹³⁶

Implementation of the code, whatever the model adopted, is considered briefly in the Digital Markets Consultation. It is anticipated that the principles will apply only to a firm’s designated activity, with one exception: the firm cannot make changes to non-designated activities that might serve to entrench its market power in the designated activity, unless that change generates “significant benefits.” ¹³⁷ The Digital Markets Consultation does not specify to whom the benefits must accrue, though purely private profits are surely unlikely to qualify. Where the code principles are established in legislation—Option 2 or 3—the Digital Markets Consultation suggests that a power should exist to amend these by secondary legislation, to avoid the problem of possible regulatory lag. ¹³⁸ The DMU will also, it is anticipated, be empowered to issue (non-legally binding) guidance to firms to assist compliance with code requirements. ¹³⁹ Enforcement of the code by the DMU would comprise both code orders, which mandate specific behavioral changes by regulated firms to remedy findings of breach, and interim code orders, which would enable the DMU to intervene temporarily where a breach is suspected but has not yet been formally established. ¹⁴⁰ The proposed latter power links to a greater contemporary focus on the use of interim measures to preserve competition in the fast-moving digital economy. ¹⁴¹ The approach suggested in the Digital Markets Consultation is notably broad in scope. It would permit the DMU to introduce interim code orders merely on the basis that it “has reason to suspect” a code breach and which could be justified on a broad “public interest” basis. ¹⁴² Yet if the past experience of the U.K. competition framework is a good indication of the approach to implementation of the digital code of conduct, the flexibility suggested by the public interest standard is unlikely to lead to a flood of interim measures in practice. ¹⁴³ Indeed, the very limited use made of interim measures in enforcement practice to date is currently the target of proposed reform efforts to the U.K. competition framework more generally. ¹⁴⁴

Pro-competitive interventions comprise the second prong of the pro-competition framework. These will be targeted at the “root causes” ¹⁴⁵ of the substantial and entrenched market power identified initially at the designation stage. The Digital Markets Consultation endorses the complementary relationship between the code of conduct and pro-competitive intervention powers foreseen in the digital advertising study: the former aimed at preventing the harmful behavior that can follow from the presence of market power, the latter at weakening its existence. ¹⁴⁶ The current proposal follows the DMT Advice in allowing the DMU a “broad discretion” as to the choice of appropriate remedies, rather than constraining it to a predefined list of available measures. ¹⁴⁷ The quite reasonable rationale is the ever-evolving nature of digital markets and thus potential digital market problem: the regulatory regime should not require a precommitment today to the tools necessary to meet the challenges of tomorrow’s technology and business models. ¹⁴⁸

Yet the DMT Advice warned against empowering the DMU to impose full ownership separation on designated firms, expressly on the basis of the “significance” of such a remedy. ¹⁴⁹ Instead, it argued that ownership (as opposed to operational or structural) separation should remain solely in the province of the CMA following a market investigation. Should the DMU consider ownership separation to be necessary, it would be required instead to refer or recommend the issue for market investigation. ¹⁵⁰ This proposal is somewhat troubling: by limiting the ostensibly weightier remedy of full separation to the market investigation procedure, this arguably implies a greater likelihood of corner-cutting and unreliability in the DMU’s decision making in comparison. This is despite the fact that the DMT acknowledged that pro-competitive interventions should be evidence-based, targeted, and proportionate, ¹⁵¹ and that CMA decision making under the market investigation procedure ¹⁵² is subject to the same judicial review standard that the DMT has advocated for DMU decision making. ¹⁵³ The Digital Markets Consultation offers no view on whether full ownership separation should be available to the DMU, instead simply opening the question to respondents. ¹⁵⁴

The pro-competitive intervention power coincides with the market investigation tool in a further dimension, insofar as it is anticipated that the legal standard for action will be the same under both. ¹⁵⁵ This requires the identification of an “adverse effect of competition” (AEC) stemming from current market features. ¹⁵⁶ The Digital Markets Consultation has rejected the advice of the DMT to supplement the existing AEC standard with a reference to adverse effects on consumers in the alternative, ¹⁵⁷ arguing that the notion of competition as utilized in the AEC standard is broad enough to already encompass consumer harm, “albeit through a competition lens.” ¹⁵⁸ The considerable overlap with the existing economy-wide market investigation power raises a fairly reasonable question about whether a sector-specific intervention power is really required; this point is considered in the next section.

The proposed pro-competition regime for digital markets comprises a third prong, namely, certain changes to the United Kingdom’s merger control framework, which would apply specifically to digital firms designated as having SMS. ¹⁵⁹ As merger control will remain within the remit of the merger control division of the CMA rather than the DMU, these changes are largely beyond the scope of this article. Several brief observations can be made, however. The first is that the United Kingdom’s existing merger regime is both voluntary and non-suspensory in nature, making it something of an international outlier considering the mandatory approach in many equivalent jurisdictions. The proposed changes would bridge this gap in the digital economy at least by imposing mandatory reporting requirements and, potentially, mandatory review obligations for a subset of transactions. The revisions also coincide with efforts to make more general amendments to the U.K. merger regime, with respect to both jurisdiction and procedures. ¹⁶⁰

Second, the focus on merger control aligns with a particular concern that mergers have been used strategically by large digital companies to harm competition in the digital economy. Yet these transactions have largely evaded scrutiny by virtue of the fact that jurisdiction typically rests on the merging parties’ turnover rather than transaction value. ¹⁶¹ Moreover, the “substantial lessening of competition” (SLC) or equivalent standard applied in most jurisdictions including the United Kingdom may fail to account for the harm to potential competition that results, ¹⁶² as illustrated inter alia by an ex post assessment of U.K. merger practice in digital markets. ¹⁶³ The Digital Market Consultation addresses this latter concern by proposing a lower threshold for intervention in SMS merger cases, from a balance-of-probabilities approach to instead demonstrating a “realistic prospect” that a SLC will arise from the transaction. ¹⁶⁴

Finally, one of the more intriguing aspects of the DMT Advice, from an antitrust perspective, was its wider view of the appropriate objectives of a regulatory regime that aims expressly to achieve pro-competition in digital markets. Specifically, the DMT Advice recommended that the new regime should seek “to further the interests of consumers and citizens in digital markets by promoting competition and innovation.” ¹⁶⁵ By differentiating citizens from consumers, and by recognizing both the need and scope within the proposed pro-competition framework to further the interests of each category, the DMT Advice reflects contemporary concern about the extent to which entrenched market power in the digital economy can have wider negative spillovers in noneconomic societal terms. In this regard, the DMT had emphasized that the pro-competition regime would be located within a broader shifting regulatory landscape for the digital economy, including the recommendations of the Cairncross Review into sustainable journalism in the United Kingdom ¹⁶⁶ and forthcoming legislation to regulate online harms. ¹⁶⁷

The Digital Markets Consultation, however, has disregarded the proposed reference to citizen interests within the statutory duty of the DMU, arguing instead that the agency’s objectives should be “as lean and as simple as possible.” ¹⁶⁸ In particular, it expressed concern that a duty to take account of wider interests might detract from the DMU’s principal focus of promoting competition in digital markets. ¹⁶⁹ It nonetheless acknowledged that the concept of consumer benefit can itself be construed quite broadly. ¹⁷⁰ It has thus asked respondents whether and to what extent the DMU should be empowered to engage with an (undefined) range of “wider policy issues that interact with competition in digital markets.” ¹⁷¹

IV: “Pro-competition” in Practice: Between Competition Law and Regulation

The preceding section traced the contours of the proposed pro-competition regime for digital markets in the United Kingdom. This penultimate section considers more closely the meaning of pro-competition regulation. Pro-competition is not an established term of art within either the U.K. regulatory landscape or in competition policy more generally. Moreover, its usage in the U.K. digital context pre-dates any decisions regarding the design of or even the need for a specific regulatory regime. ¹⁷² What is remarkable, nonetheless, is the extent to which the term has gained traction and prominence, now essentially serving as a shorthand for a new regulatory model pitched between conventional competition law and more traditional regulation. Moreover, while the United Kingdom is not alone in attempting to implement new forms of digital market regulation—for instance, two closely competing models, the EU’s DMA and Germany’s Section 19a tool, were discussed above ¹⁷³ —the language of pro-competition appears to have escaped its origins to have wider resonance in this context. ¹⁷⁴ Our starting point here is not that the pro-competition concept is particularly consequential in itself, nor that the proposed U.K. regime is unique in its aims or methods. Instead, by locating the pro-competition regime in the space between simple competition enforcement and more traditional regulation in the United Kingdom, our aim is to gain a deeper understanding of how such hybrid regulation is intended to operate—and to consider briefly the extent to which it is likely to succeed.

A few preliminary observations are necessary. Competition and pro-competition policy sound like synonyms—as like, for instance, flammable and inflammable—and, indeed, the purpose of the DMU, ultimately, is “to promote competition and competitive outcomes.” ¹⁷⁵ Yet the Furman Report was clear that pro-competition denotes “a new approach,” distinct from the “core conventional competition tools.” ¹⁷⁶ In particular, pro-competition is intended to move beyond the focus of the latter on conduct and concentrations:

To make competition effective [in digital markets] requires policy that . . . creates space for businesses to start, compete and grow alongside and around the big platforms. This can be achieved through a pro-competition approach that sets rules and standards to change how a digital market works and creates new opportunities for competition, innovation and consumer choice. ¹⁷⁷

Yet the repeated emphasis, not merely on regulation but on pro-competition regulation for the digital economy, must surely be regarded as an attempt to distinguish the forthcoming regime from more classical, and from certain perspectives more inherently suspect, forms of market regulation. This perhaps explains the otherwise surprising enthusiasm of the current U.K. Government for a novel set of “burdens on business,” being categorically committed elsewhere to rolling back the regulatory state. ¹⁷⁸ (A more cynical explanation is this Government’s unusual relationship with certain elements of the traditional media. ¹⁷⁹ ) Moreover, the United Kingdom is no stranger to innovation and originality in the regulatory sphere: as the Furman Report noted quite correctly, “the UK has led the way in developing frameworks of rules, structures and enforceable norms which have allowed competition to flourish where it otherwise would not.” ¹⁸⁰ Pro-competition is merely another development in this evolving regulatory landscape; what remains to be seen is how it can and should be distinguished from what has gone before.

V. Conclusion

The regulation of the digital economy is undergoing momentous changes at present, in the United Kingdom and elsewhere, from a competition perspective and beyond. While the finer details of the U.K. regime remain to be settled, it appears inevitable that more interventionist regulation is on its way, at least for the largest and most powerful platforms. Yet old habits die hard in a jurisdiction where the superiority of competition over regulation has long been a tenet of faith and a key organizing principle for policymakers. Accordingly, though the U.K. regime will involve a powerful display of public coercive power, the aim emphatically is not to replace market forces indefinitely but rather to foster (some might say force) these where they currently do not or cannot exist. Hence, pro-competition regulation, the United Kingdom’s attempt to “lead the way” ²⁴⁰ in crafting an effective solution to what are inherently transnational market problems. While the language of pro-competition regulation increasingly appears to transcend its domestic origins, ²⁴¹ this article has suggested that the balancing act between conventional competition law and traditional regulation that is reflected in the forthcoming regime can only be fully understood when located within the distinctive circumstances of the wider U.K. regulatory landscape. Whether an effective digital supervisory framework can be implemented of course remains to be seen: we are on the cusp of a grand experiment in new methods of regulation, applied to comparatively novel markets and business models—and targeting some of the most powerful companies on earth. With the United Kingdom’s pro-competition regime entering an increasingly crowded regulatory arena, all is to play for.