Ensuring Swift Enforcement In Digital Markets

• Jurisdiction: European Union,United States,Federal
• Law Firm: Preiskel & Co
• Subject Matter: Antitrust/Competition Law, Government, Public Sector, Antitrust, EU Competition , Constitutional & Administrative Law
• Author: Tim Cowen and Rachel Machado
• Published date: 27 April 2023

The issue - digital markets require swift enforcement¹

The Government accepts that swift enforcement is critical in fast-moving digital markets². Without it smaller players are pushed out quickly, market concentration rises and innovation and entry are more difficult. Markets then don't work well for consumers because prices rise and quality suffers.

The EU, USA, Australian and UK Governments all recognise something must be done. New laws have been passed or are being prepared. All of which contemplate "ex-ante" enforcement. However, how will law enforcement work "more swiftly" than at present?

Current administrative and court systems

Swift interlocutory injunctions can and are typically available in a matter of days from the High Court or other similar Courts elsewhere. There are three basic guidelines used by the courts when assessing whether an interim order will be issued:

• Is there a serious issue to be tried?
• Are damages likely to be an adequate remedy for the claimant or (via the cross-undertaking in damages) for the respondent?
• If so, what is the balance of convenience?

In both private actions and administrative competition cases, actionable harm has to be identified, causation proved, and evidence adduced showing dominance. In private actions this all has to be obtained by claimants who are required to prove their cases. There are two main issues here for private litigants:

1. dominant tech companies have most if not all the necessary evidence: and
2. dependence on tech platforms for future business. Few can afford to be invisible on Google Search or Amazon Market Place, or not be listed in Google or Apple's App Stores.

This makes bringing private actions difficult. However, the public system overcomes the information deficit through investigatory powers and can be used instead. Claimants can be complainants to ensure anonymity.

The remaining problem is administrative law interim relief orders which take a lot longer than interlocutory injunctions available in the court system. This isn't because authorities are slower than Courts.

The Administrative Law system: Orders for interim relief take months not days

When the current administrative law system is used, it takes time. For example, at the EU level, the flagship EU antitrust cases against Microsoft³, Intel⁴, and Google⁵ each took over 10 years to determine. The UK has taken very few such enforcement cases as they were in the exclave jurisdiction of the EU Commission⁶ until recently:

• The fastest...