数字市场中的竞争政策：七国集团司法管辖区事前和事后工具的综合效应

THE COMBINED EFFECT OF EX ANTE ANDEX POST INSTRUMENTS IN G7 JURISDICTIONS This work is published under theresponsibility of the Secretary-General of the OECD. The opinionsexpressed and arguments employed herein do not necessarily reflect the official views of the Membercountries of the OECD. This document, as well as any data and map included herein, are without prejudice to the status of orsovereignty over any territory, to the delimitation of international frontiers and boundaries and to the nameof any territory, city or area. Cover illustration: ©TU IS| iStock-Getty Images Plus. © OECD 2024 The use of this work, whether digital or print, is governed by the Terms and Conditions to be found athttps://www.oecd.org/termsandconditions. 1Introduction In recent years, regulators have become increasingly concerned about large digital platforms’ marketpower and their growing influencewithin and beyond therespectivemarkets. A number of expert studiesand the perception that competition law enforcement wasnotaseffective in solving digital competitionconcerns spurred the debateaboutwhether and, if so,how to regulate, and proposals to intervene withexanteregulation multiplied(see also(OECD, 2021[1])). In thiscontext,in 2022the OECD Competition Division was entrustedbyGermany’s G7 presidencywiththe task of compiling an inventory of proposed or enacted legislative reforms thatweredeveloped toaddress digital competition issues in G7 jurisdictions (hereinafter, the “Inventory”1). The aim of the detailedInventory is to provide an objective comparison of “exante” regulations in digital markets in selectedjurisdictions, based on their status, scope, institutional setting and content.In addition, an analytical note2wasprepared to accompany the Inventoryand assist the reader in understanding its content, while drawingsome high-level findings. This work continued to develop in 2023 under Japan’s presidency, expanding tonon-G7 jurisdictions as well. Currently, while some jurisdictions are debating the most effective way to move ahead with digitalregulation, and others deal with the implementation of their recent reforms,3competition authoritiescontinue to tackle concerns around digital platforms’conduct through traditional expost enforcement. This note, prepared for the 2024Joint Competition Policy Makers and Enforcers Summitunder the Italianpresidency in continuity with previous work, aims at expanding the scope of the analysis by consideringthe combined effect of exante and expost instruments,4in order to provide a pictureof how G7jurisdictions are addressing large platforms’ use (and misuse) of market power. Following the 2023 analysis of convergences and divergences between the various regulatory regimesproposed to date, this exercise focuses instead on the substance of the key competition concerns at theheart of multi-jurisdictional efforts in digital markets, and on the patterns that can be identified in terms ofboth platforms’ conduct and enforcement activities in G7 countries. The following chapters analyse a number of recent antitrust cases, to understand what conducts havebeen deemed most problematic and have been the focus of competition authorities thus far, and whatremedies were implemented to address the concerns. These trends and patterns are then observed inlight of the prohibitions and obligations contained in recent exante reforms, in order to appraise thecomplementarities and overlaps between the two types of instruments.Further,the note aims at gatheringpreliminary evidence around large platforms’ compliance strategies and whether extraterritorial effects arearising, to shed some light on the global implications of national enforcement activity in digital markets. For the purpose of this note, cases were selected according to a number of criteria: the jurisdiction, limitingthe scope to G7 countries and EU; the timeframe, considering investigations opened from2015 onwardsin order to frame the exercise; the entity, looking mainly at those digital platforms to which the exanteregulations implemented thus far would apply. The remainder of this note, based exclusively on publicly available information as of September 1st2024,is structured as follows. Chapter 2will focuson lessons from traditional enforcement against selecteddigitalplatforms, with regard to aspects that are also covered in the applicableexanteregulations, to gaininsight on how the most problematic conducts are captured, patterns of anticompetitive behavioursacross jurisdictionsand the types of remedies imposed to address them. Chapter 3 will provide insights on whethercompanies’ compliance efforts, in response to both new regulations andremedies imposed in enforcementcases,aretailored andlimited to the jurisdiction at stake orif extraterritorial effects can be identified.Chapter 4 concludes. 2The combined effect of exante andexpost instruments Alongside the development of new rules for digital marketsin certain jurisdictions,G7auth