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This article describes proposed changes to European competition law (UK and EU) as applied to the technology sector and digital businesses in particular. The changes fall into two camps. First, addressing issues not traditionally a part of the competition lexicon but using laws that look and feel like competition laws. Second, applying existing competition law more aggressively, compared to application to other sectors and compared to the historic approach. These changes are influenced by and influence policy debates occurring in the United States, at the OECD and elsewhere. Advocating a change in approach is the key message of the book Competition is killing us1 by Michel Meagher published in September 2020. Meagher argues that
competition is about ensuring that the benefits of the market system accrue to consumers. Corporate governance is about ensuring that those benefits accrue to specified stakeholders. Competition authorities now find themselves operating in the gray [sic] area between the two.2
There is arguably a common line in thinking to this book from the earlier publication in the Yale Law Journal in 2016 of an article by Lina Khan entitled ‘Amazon’s Antitrust Paradox’3. Khan’s article can be used as a reference point for a voice for change in the US antitrust community and the emergence of what has been called the ‘hipster antitrust’ movement.
Part I of this article describes the historical context to the current form of competition law, noting the emphasis placed on consumer welfare, although European competition law has always had a broader ambit of considerations. Part II identifies the changes that are applied or proposed to apply to the technology sector and provides some critique of the proposals. Part III offers some general observations concerning the issue of different competition rules for different sectors, definitional challenges raised by some of the changes, the issue of conflation of competition goals and other goals, and the likely need to go beyond traditional (economic) analysis of competition law to include other non-economic goals. The conclusion in Part IV identifies it is understandable why change is proposed. However, there should be a rigorous normative and conceptual framework to support any changes in order to avoid negatives. A broadening of the analysis of the issues, to enable these changes...