On the Application Logic of Asymmetrical Obligations in Pro-Competition Regulation of Digital Platform Markets
The co-existence of dynamic competition and static market power is the new norm in digital platform markets.On the one hand,platform or ecosystem operators compete with each other across markets through platform envelopment,commoditization,and value inversion;but on the other hand,those operators usually have established incumbencies in one or more platform markets,where they tend to lock in users and engage in exploitative abuses of dominance.Although theoretically sound for the most part,the traditional,ex post approach to preserving competition has largely failed to account for this new norm in practice:first,the conventional ways of defining relevant markets and finding dominance have largely been rendered irrelevant in the presence of cross-platform markets dynamic competition.Second,there are severe inadequacies and blind spots in the traditional methods of analyzing competitive harms.Third,it is increasingly difficult to design effective remedies for competitive harms in platform markets.In light of the new competition realities and the shortcomings of ex post antitrust,competition authorities around the world are trying to pivot towards ex ante pro-competition regulation,where they impose asymmetrical behavioral obligations on certain dominant or super-dominant platform operators without having to find illegal conduct beforehand.Against the backdrop of this ex-post-to-ex-ante regulatory shift,this article analyzes these asymmetrical obligations,including their legal rationales and their practical implementation.Using the methods of law and economics literature review,critical case analysis,and legal provisions categorization from a China-EU comparative law perspective,this article finds that these asymmetrical obligations,although regulatory in nature,do not seek to replace competition with direct government control.Instead,they serve the same function as antitrust enforcement to increase competition,albeit in a more interventionist manner.To that end,these asymmetrical obligations can be guided by two alternative but complementary rationales:preempting further competitive harms resulting from abuses of dominance,and restoring market competition that has already been damaged.On this basis,this article moves on to critically appraising the current legislations and implementation practices in the EU and China,and finds that the second approach is seriously overlooked in practice and poorly supported by existing enforcement mechanisms.To enhance the looming ex ante pro-competition regulatory framework and optimize the application of pro-competition asymmetrical obligations,this article suggests that the key is to adopt more well-thought-of asymmetrical obligations under the competition-restoration rationale.Additionally,it provides some advices for institutional and procedural arrangements for adopting and implementing such asymmetrical obligations.This article contributes to the scholarship from the following three aspects.First,it identifies and bridges the gap between"conceptualizing regulation as an end"and"conceptualizing regulation as a means"in the literature.Second,it critically studies,from a comparative perspective,the existing asymmetrical obligations legislations and the on-going regulatory developments in the EU and China,thereby adding valuable insights to the universal topic of competition protection in platform markets.Last but not least,this article offers systematic and theoretically sound recommendations to competition policymakers who seek to devise better pro-competition regulations in the digital age.
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