A little over 25 years since its establishment, Italy’s Antitrust Authority – hailed by those attending this national roundtable as an indubitable success story – was characterized as facing new challenges linked to profound changes that have impacted on the entire economic system. Cited among these were ever-greater global integration, a new dialectic between the real and financial spheres of the economy, and, above all, a complete rethinking of value-creation models due to the increasing digitalization of every aspect of human lives.
The extent of the changes brought about by the digital transformation of the economy was seen as giving rise to a sense of being only in the early stages of a new and sweeping revolution, which eludes thorough understanding or even precise definitions. The concept of a market (and not just a relevant market for antitrust purposes) would seem to be less clearly recognizable than in the past. It was further suggested that platforms – key players in the digital scenario – have proved just as difficult to capture in all-encompassing definitions. In particular, the conventional distinctions between incumbents and new entrants do not serve so well as they once did as reliable conceptual benchmarks, given that new entrants capable of successfully adopting disruptive innovation models can quickly become incumbents, in a particularly fluid scenario of competition between monopolies.
At the same time, it was noted that the potential of the digital economy as a tool for increasing social wellbeing and creating positive externalities is perceived as being so evident as to make it desirable, in the view of many, that there be a push to promote the digital development of all public mechanisms for intervening in markets, including the antitrust regime. The participants thus felt that an issue arises which concerns knowledge, but also values and regulation.
It was submitted that, in these circumstances, a question emerges regarding whether it is necessary to reconsider the objectives underpinning antitrust intervention. In particular, it would seem appropriate to ask whether a range of other objectives should rightfully be included within the scope of application of competition law rather than exclusively focusing on consumer welfare. Accordingly, the traditional differences over the interpretation of the objectives of antitrust measures were viewed as tending to widen in the presence of the previously enumerated factors of change. While on the one hand it was acknowledged that European competition rules have always incorporated objectives (associated with industrial policy) that go beyond consumer welfare in the strict sense, on the other it was not seen as a foregone conclusion that the antitrust regime should be tasked with promoting digitalization, nor that it is an effective vehicle for pursuing that objective. One view that was widely endorsed, however, was that the best contribution that antitrust enforcement can make towards stimulating the digital economy is by removing all barriers that prevent competitive dynamics from fully unfolding, whether such barriers stem from anti-competitive behavior, or whether they are the result of ill-advised legislative measures that restrict competition. Indeed, it was stressed that more pervasive measures would risk interfering with innovative dynamics that are still poorly understood and not readily predictable.
Separate but equally important issues were seen as arising in respect of another aspect of the interplay between antitrust rules and the digital economy. In particular, the participants emphasized the need to consider whether changes should be made to the form and mechanisms of antitrust intervention in an economy that is becoming increasingly digitalized. While it was conceded that the latter seem for the most part capable of responding to the new challenges faced, albeit with some appropriate adjustments, the fact remains that the time required for them to be applied properly does match the rapid pace of evolution of technology and the market. In this regard, it was felt that several solutions would be worth considering, namely: increased resort to the hitherto little-used mechanism of provisional or interim measures, a greater reliance on remedial measures, and even the introduction of institutional innovation in the form of bolstering soft law mechanisms such as guidelines.
Lastly, it was observed that the global and digitalized scenario raises the question of the need for a better division of labor and for more effective cooperation between the various agencies tasked with enforcement, both at the European and the international level.