Error Costs, Platform Regulation, and Democracy

Abstract

Competition law has long favoured an error-cost framework that advocates for non-intervention under the assumption that market power self-corrects but judicial errors do not. The prevalence of monopolies in today’s digital markets—and competition law’s inability to tackle them—has shown this framework to be misguided. In this context, the New Platform Regulations (NPRs) were crafted to foster fair and contestable digital markets. Although these instruments differ across jurisdictions, they share a common feature: a precautionary error-cost framework that permits intervention to protect competition before harm occurs. This article examines how the NPRs’ precautionary approach to error costs allows the competition regime to pursue the value of democracy, alongside others. Building on historical and theoretical accounts of the competition–democracy nexus, it identifies three mechanisms through which a precautionary error cost framework, as adopted by the NPRs, can pursue democratic ideals: ensuring that powerful firms do not exist beyond regulatory control, shielding consumers from domination by platform monopolies through contestable markets that protect consumer choice, and reclaiming the role of ‘architecting’ markets from private actors as to reflect the public interest.

I. INTRODUCTION

If competition law enforcers are required to make decisions based on imperfect information in complex cases, should they err on the side of over-enforcement or under-enforcement? For decades, judges and regulators have relied on error-cost reasoning to determine the shape of competition law rules, and it follows, the frequency of antitrust intervention.¹ Since at least the 1970s, the dominant framework for assessing the varying costs created by different types of enforcement errors has been drawn from law-and-economics scholarship,² including, most influentially, the work of Frank Easterbrook.³ In brief, these scholars argued that competition law should develop under-inclusive rules to protect the efficiencies of market competition from the inefficiencies of government intervention. A preference for under-enforcement was justified by a probabilistic, game-theoretic approach to measuring error costs: whereas false negatives were automatically corrected by the ‘self-destructive’ tendencies of monopoly⁴ and entry by firms with ‘successful new method[s] of making and distributing’ products, false positives were institutionalized through precedent, perpetuating inefficiency until later judicial correction.⁵ For Easterbrook, this required competition law to adopt a ‘bias in favor of business practices’ through a laissez-faire error-cost framework.⁶

This reasoning made its way into European competition law during what Ahlborn and Padilla termed the ‘Brussels consensus’⁷ in the early 2000s, during which the Commission progressively adopted the ‘more economic approach’. As Ibáñez Colomo argues,⁸ The European Commission and Court of Justice embraced the logic of the laissez-faire error-cost framework to fashion increasingly restrictive legal tests for a wide range of competition infringements⁹—sometimes with explicit reference to Easterbrook¹⁰—reflecting the prevailing consensus that ‘[false positive] errors in competition decisions concerning unilateral conduct involve a much larger cost for the society than [false negative] errors’.¹¹ As a result, competition enforcers have seen their hands tied by this framework’s ‘anti-enforcement bias’,¹² which has proven problematic for regulators seeking to tackle the increasing frequency and magnitude of anticompetitive conduct and subsequent consumer harm taking place on contemporary digital markets,¹³ now dominated by a few large platforms.¹⁴

Consequently, competition lawyers have become increasingly concerned with the multidimensional power of large firms in the digital economy, which have acquired a ‘regulatory role [determining] the rules according to which their users, including consumers, business users, and providers of complementary services, interact’.¹⁵ This power transcends the conventional distinction between economic and political power, endowing platforms with the ability to make value-laden policy judgements that structure economic, social, and political lives of their consumers.¹⁶ As courts have come to recognize, curbing the dynamics that lead to platform power and consolidation in fast-growing digital markets ‘requires action before the anticompetitive effects of that strategy are realized’—something that has proven rarely, if ever, possible to justify under competition law's conventional laissez-faire error-cost framework.

This issue has caught the attention of public actors and spurred a wave of legislation aiming to create new instruments, often conceptually distinct but complementary to competition law, to tackle the issue. We collectively refer to them as the New Platform Regulations (NPRs).¹⁷ These include the EU’s Digital Markets Act (DMA),¹⁸ the UK’s Digital Markets, Competition and Consumers Act (DMCCA),¹⁹ Section 19a of the German Competition Act (GWB),²⁰ Article 33 of the Italian 2021 annual competition law,²¹ as well as proposals for similar laws in Brazil²² and Australia,²³ and beyond. These laws have not adopted the conventional ex post mechanism of competition law enforcement. Instead, they provide oversight ex ante, through presumptions of illegality for certain behaviours,²⁴ a burden of proof that has been shifted from the authority to ‘gatekeeper’ firms, and bright line rules without, for the most part, an efficiency defence.²⁵ Given this vastly different administrative and mechanistic ordering, the NPRs should be understood to operate with a recalibrated, ‘precautionary’ error-cost framework, under which enforcement ‘errs on the side of intervention to preserve the contestability of market power’.²⁶

The error-cost framework has traditionally been understood as a doctrinal tool that confines competition law intervention to the preservation of economic efficiency. The emergence of the NPRs has challenged this conception, resurfacing the role that the error-cost framework can play in competition enforcement’s pursuit of the value of democracy. The purpose of this article is to explore how.

We proceed in two parts. Section II examines the competition–democracy nexus—competition law’s historic role of supporting democracy and fostering democratic ideals—to create a framework with which to assess the democratic character of competition law, competition-adjacent regulation, and their doctrines. Section III applies this framework to the NPRs by highlighting three ways in which, aided by a precautionary error-cost framework, they can foster democracy as part of the competition regime: by enabling more competition intervention, by furthering consumer choice through the freedom to compete, and by allowing regulators to shape markets as to embody fundamental social values. Section IV concludes by suggesting that these mechanisms, through a precautionary error-cost framework, should also make their way back into ordinary competition law, in line with its history of protecting and promoting democracy.

II. COMPETITION LAW AND DEMOCRACY

Competition law, in Europe and the United States especially, has a long history of seeking to further the twin projects of economic and political democracy.²⁷ This positive relationship between competition law and democracy is referred to as the ‘competition–democracy nexus’. From the outset of American antitrust law, the Sherman Act was understood to serve to curb excessive concentrations of economic power ‘repugnant to the instincts of a free people’ and ‘odious to our form of government’.²⁸ In Europe, leading Ordoliberals—particularly Ernst-Joachim Mestmäcker— warned of the ‘unfreedom’ brought about by concentrated economic power,²⁹ a concern that became influential in the early jurisprudential development of European competition law.³⁰ The competition–democracy nexus is understood to have a quasi-constitutional basis in Europe,³¹ as scholars³² and courts³³ have interpreted European competition provisions in light of the wider objectives pursued in the Treaties, including the value of democracy enshrined in Article 2 of the Treaty on European Union (TEU).³⁴

Over time, different conceptions of this relationship have emerged. Below, we identify the three main mechanisms through which the competition law has been understood to support democracy: protecting democracy from political influence, enabling consumer choice, and ensuring non-domination on markets. We then introduce another facet of the competition–democracy nexus, the democratic legitimacy of competition law and regulation. Finally, this section considers the place of the error-cost framework in the competition–democracy nexus.

A. Protecting Democracy from Political Influence

At its narrowest, the relationship between competition and democracy is conceived as being one oriented chiefly around powerful firms enjoying undue influence over political processes. The broad focus of this view is that market concentration could allow such firms to ‘influence opinions and set the political agenda’,³⁵ converting economic power directly into political power.³⁶ Most scholarship in this vein is concerned with the ways in which a lack of competition can lead directly to undemocratic outcomes. For example, powerful media firms may be able to influence the sources of information that citizens use to make voting decisions. Along these lines, Ezrachi and Robertson write that ‘competition [law] enforcement [can play] an important role in safeguarding the marketplace of ideas by supporting rivalry and choice, and targeting abusive exclusions and manipulations’.³⁷

The increasing personalizability of media services in light of the rise of digital technology exacerbates this concern, not least because it opens up the possibility that citizens may live in a ‘private information universe’,³⁸ where, rather than a ‘healthy varied diet’ of media consumption, citizens may only consume content that fits their existing dispositions.³⁹ This dynamic can have a ‘centrifugal’ effect on social cohesion,⁴⁰ where ‘mass audiences’ are fragmented ‘into a huge number of isolated [] publics’.⁴¹ A connected strand of scholarship has emphasized the panoptic nature of Big Tech firms when it comes to their ability to profile the political leanings of vast numbers of consumers and later target them (as voters) with political advertising.⁴² Empirical experiments, both in the laboratory and in the wild,⁴³ have shown such fears to be justified, since Big Tech firms can ‘affect our world view’ by manipulating the content that is most popular on their platforms.⁴⁴ To this end, the General Court recently emphasized, in Google Android, that a lack of alternatives to Google Search was ‘detrimental to the interest of consumers in having more than one source for obtaining information on the internet’ and therefore not commensurate with ‘plurality in a democratic society’.⁴⁵

Other concerns about the integrity of the political process and democracy focus on the second- and third-order effects that market competition can have on democracy.⁴⁶ One such mechanism is the intersection between economic power and political lobbying power, as evidenced by a growing body of empirical research in economics and political science.⁴⁷ Similarly, the U.S. House of Representatives’ Investigation of Competition in Digital Markets, highlighted how the business models of smaller newspapers, broadcast stations, and news agencies are being squeezed by a ‘growing asymmetry of power’ between themselves and dominant online platforms.⁴⁸ Online platforms, acting as gateways to websites such as news agencies, possess significant control over the distribution and monetization of news online, including the share of revenue that goes to publishers themselves.⁴⁹ This, alongside other factors, has enabled the widespread decline of local journalism in the US,⁵⁰ with a ‘profoundly negative effect on American democracy and civic life’.⁵¹ The same concern has been voiced in other jurisdictions, including in Australia⁵² and the United Kingdom.⁵³

B. Enabling Democracy through Consumer Choice

The ‘minimalist’ core of the democratic ideal can be understood as government ‘not fall[ing] permanently to a faction’.⁵⁴ In the political sphere, careful constitutional design combined with naturally occurring phenomena such as anti-incumbency bias in voting patterns work to ensure that the power to govern in Western democracies is continually contested.⁵⁵ It follows that markets that lack contestability also impinge on the quality of a society’s economic democracy. While often understood in terms of worker participation in firm decision-making,⁵⁶ economic democracy can also refer to a wider concept where structural features of markets and other economic institutions function as an ‘antidote to economic power’.⁵⁷ In this sense, Johanisova and Wolf link economic democracy with economic freedom, understood as the ability of citizens to choose what and how to consume.⁵⁸

The ability of consumers to choose the firms with which they transact from a ‘meaningful range of options’⁵⁹ is supposedly a key source of legitimacy when it comes to firm decision-making; consumers are free to switch to a competitor when dissatisfied.⁶⁰ This same mechanism—as argued by Hayek—also helps shape the development of markets, as firms seek to make business decisions to satisfy consumers, and consumers differentially transact with the firms that have the most competitive offer.⁶¹ As we will discuss later, the concentrated nature of today’s digital markets have allowed Big Tech firms to escape the disciplining constraints imposed by effective competition. As such, these firms have been observed to slowly degrade the quality of their products in a bid to cut costs and extract more value from captive consumers, a move that Doctorow has termed ‘enshittification’.⁶²

Consumer choice is therefore an important vehicle for economic democracy, if a limited one because wealthier consumers may find themselves better able to exercise choice than poorer ones. Market-mediated decision-making has been recognized as plutocratic for this reason.⁶³ Thus, while it is important to remember that consumer choice alone does not fulfil the normative requirements to realize economic democracy, it can nevertheless contribute to the wider democratic political-economic project by underwriting consumers’ ability to vote with their feet.

C. Fostering Democracy through Non-domination

A third view links competition law and democracy through the concept of ‘republican liberty’.⁶⁴ Republican liberty is a Roman concept oriented around the master–slave relationship,⁶⁵ where freedom is considered as the condition of not being subject to the ‘arbitrary power of someone else’, a state known as non-domination.⁶⁶ This concept of domination is not consequentialist in nature: it applies regardless of whether the arbitrary power is used in practice. Instead, an individual’s exposure to arbitrary control is what qualifies them as dominated.⁶⁷ This feature, among others, distinguishes republican liberty from negative liberty, which is ‘merely concerned with the absence of actual or likely interference’.⁶⁸ Likewise, while the concept of negative liberty is hostile to all interference, republican liberty recognizes that some interference may not be dominating, so long as it is not arbitrary; for instance, when it is bound by the rule of law.⁶⁹ The concept of domination should be distinguished from that of dominance in EU competition law, not least because while the latter pertains to an undertaking’s freedom from constraint from its competitors and from its consumers,⁷⁰ the former relates the ability of a powerful agent to arbitrarily interfere in the affairs of another.⁷¹

Particularly clear instances of domination can be observed in today's digital markets, where a handful of large platforms dominate the internet. As expert reports in the EU and the UK have highlighted, once a platform has attained a dominant position, it can retain it almost indefinitely through a combination of network effects, leveraging, a lack of interoperability, switching costs, and, in some cases, deliberate anticompetitive conduct.⁷² As a result of these dynamics of incontestability, dominant platforms have acquired a ‘regulatory role [determining] the rules according to which their users, including consumers, business users and providers of complementary services, interact’.⁷³ This control can result in a ‘prevalence of fear’ among those who rely on platforms for the ‘success of their business and their economic livelihood’ yet remain subject to those same platforms’ ‘unaccountable and arbitrary power’.⁷⁴ This power to dominate transcends the conventional distinction between the economic and political spheres, endowing platforms with the ability—unconstrained by the demos—to exercise value judgements that structure our economic, social, and political lives.⁷⁵

In this way, dominant firms can be considered as oases of private power,⁷⁶ functioning essentially as private governments within their sphere of influence.⁷⁷ This perspective highlights their capacity to wield significant power over others within their domain. Scholarship operationalizing the concept of republican liberty within competition law builds on this understanding to derive three insights. First, that dominant firms may, as a result of this local monopoly of power, be able to ‘interfere with other market participants at whim’.⁷⁸ Second, that competition law has historically pursued non-domination in markets.⁷⁹ Third, that by preventing relationships of ‘domination’ from developing on markets, competition helps ensure that economic power is diffused.⁸⁰ A central mechanism by which economic power is diffused is that of market contestability because the potential for entry of new businesses prevents the entrenchment of unbalanced power dynamics on markets. Absent contestability, markets inhere a form of private ‘unfreedom’, where powerful economic entities can dominate less powerful ones by virtue of being in a superior bargaining position and not subject to competitive constraint.⁸¹ The connection between contestability and non-domination is made plain the Court of Justice’s decision in Continental Can, which concluded that Article 102 of the Treaty on the Functioning of the European Union (TFEU) should protect ‘effective competition’,⁸² a concept later elaborated on to mean an ‘effective competitive structure’.⁸³ This structural approach sought to create a ‘cage of rules to tame dominant behemoths’ underpinned by this democratic notion of ‘non-domination’.⁸⁴

D. Democratic Legitimacy

A different facet of the competition–democracy nexus is the democratic legitimacy of competition law and regulation. This concept asks if decision-making authority, whether public or private, is sufficiently constrained by ‘the demos’, regardless of its institutional form or context. Following Scharpf and Schmidt, we consider three facets of legitimacy.⁸⁵ Output legitimacy pertains to the effectiveness of the governance as measured by a normative evaluation of the achieved outcomes.⁸⁶ Input legitimacy focuses on whether governance mechanisms act responsively in the interests of the governed. Finally, throughput legitimacy concerns the quality and accountability of the decision-making processes that translate the legitimate inputs of decision-making to the desired or observed outcomes that are reached.

The democratic legitimacy derived from pursuing the competition-democracy nexus in the legislative and doctrinal spheres should be distinguished from the legitimacy of competition authorities themselves. Our argument is that competition law and regulation creates a stronger form of democratic legitimacy when it adopts a precautionary error-cost framework as opposed to a laissez-faire one. The possible tension between the independence and democratic legitimacy of competition authorities is the subject of an important debate, but our focus lies exclusively on content-driven forms of competition law and regulation’s democratic legitimacy.

The legitimacy framework allows for the source of democratic authority, the demos, to be separated from the means in which power is exercised. This separation allows for an analysis, independent of the medium or mechanism, of the various ways through which the NPRs can further democracy. We employ the legitimacy framework to evaluate the democratic character of the ways in which the NPRs evolve the conventional logics and means of competition enforcement. We explore three such mechanisms in Section III.

E. Error Costs and Democracy

In sum, the democratic function of competition law has been recognized by both courts and scholars as a core feature of the competition regime in liberal democracies stretching back to the adoption of the very first competition laws. The ‘democracy’ sustained by competition law, as the analysis above demonstrates, does not refer to a specific institutional form. Rather, what this section has shown is that competition law can nurture and protect various democratic ideals—whether popular sovereignty, consumer autonomy, or non-domination—that are normatively desirable, and often necessary, features of a healthy democracy. These values do not form the basis of theories of harm. Rather, they are embedded into the competition regime and guide its development, instead of playing a role in determining cases directly. Since ‘democracy talk is cheap’,⁸⁷ there is a risk that conversations about democracy in competition law fail to sufficiently specify what the competition–democracy nexus entails. It is therefore critical to articulate which democratic values competition law can uphold and through which mechanisms today’s evolving tools of competition enforcement remain aligned with its foundational commitment to democracy.

The purpose of this article is to operationalize this framework on a doctrinal level by applying it to the competition regime’s approach to error costs. The literature on error-cost frameworks has overwhelmingly been concerned with applying economic principles to determine, whether theoretically or empirically, the optimal scope of competition law intervention. However, choosing the appropriate level of antitrust enforcement is not devoid of non-economic considerations. As Deutscher has suggested, the error-cost framework lies at the centre of the competition–democracy nexus.⁸⁸ This has been made plain by the contrasting frameworks that underlie competition law and the NPRs, respectively.

The precautionary error-cost framework of the NPRs was explicitly understood by its architects to serve a democratic function.⁸⁹ Despite the frequency of this pro-democracy rhetoric in support of the NPRs, the precise democratic ideals fostered by the adoption of the NPRs remain largely under-specified. Below, we identify three concrete mechanisms through which the NPRs’ precautionary approach to error costs strengthens the competition–democracy nexus. First, by ensuring that digital monopolies do not exist beyond regulatory control. Second, by protecting consumers from domination by monopolies through the defence of consumer choice. Third, by reclaiming the role of ‘architecting’ markets from private actors as to reflect the public interest. In light of these three mechanisms, the democratic deficit of laissez-faire framework adopted by competition law at the turn of the century appears in stark relief.

The purpose of analyzing about error costs through the lens of the competition–democracy nexus is twofold. First, it illustrates the ways in which the largely historical and theoretical competition–democracy scholarship can be operationalized on a doctrinal level, detailing how the consideration of competition law’s democratic function as one of its first principles can shape the design of competition law doctrine. Second, it expounds on how a polycentric competition law can reconcile and pursue multiple values and further multiple aims at once. Indeed, competition lawyers must fully articulate the various purposes of a doctrine for them to become commensurable with each other in a practical sense. When it comes to error costs, neither the democracy-enhancing role nor the efficiency-maximizing function should obscure or exclude the other; both are normatively desirable ends for competition law to pursue, and their precedence will vary in different contexts. In this way, this article contributes to the growing scholarship exploring the polycentricity of competition law.

III. THE EMERGENCE OF THE NEW PLATFORM REGULATIONS

The NPRs emerged in the context of competition authorities seeking to find ways to ‘shut the stable door before the horse has bolted’,⁹⁰ as anticompetitive practices on digital markets increased in both frequency and magnitude, and previous attempts to remedy them had largely failed.⁹¹ As a result, the NPRs were generally designed to be conceptually distinct yet complementary instruments to competition law, although the precise nature of this relationship varies across jurisdictions. Some NPRs, like those adopted by Germany⁹² and Italy,⁹³ explicitly extend existing competition law frameworks, whereas others, like the DMA⁹⁴ and DMCCA,⁹⁵ operate independently from them. Regardless of their institutional configuration, both competition law and NPRs are part of a broader competition regime; a set of tools with largely overlapping goals, enforcement institutions, and normative foundations.

The unity of the competition regime is apparent from several angles. First, both competition law and NPRs are typically enforced by the same competition authorities, even if there may be a division of labour within those authorities.⁹⁶ Second, competition law has long been held to have a regulatory flavour.⁹⁷ As Ibáñez Colomo has written, the role of competition authorities is sometimes ‘not fundamentally different from that of a utilities regulator’,⁹⁸ such as when imposing duty to deal obligations or requiring that firms ‘redesign [their] products and/or [alter their] business model’.⁹⁹ Given the rise of competition regulation and the regulatory nature of competition law, Bietti has recently advanced a move ‘away from disciplinary categories’ between competition law and regulation, and towards an ‘experimentalist approach’, which sees competition law and digital market regulation as converging.¹⁰⁰ Lastly, the NPRs were all legislated within the context of the wider competition regime. For instance, notes released by the UK government explaining the context of the DMCCA highlight how the Competition and Markets Authority’s State of Competition Report had found that ‘competition [across all markets] may have weakened over the previous two decades’, and that since the 2008 financial crisis, market concentration had increased, markups had risen, and ‘the biggest firms had been able to maintain their leading positions for longer.’¹⁰¹ It was in light of declining competition across the board that the UK government, among several others, saw fit to create an ex ante regime of digital competition, alongside other changes in its existing competition law.

Considering the NPRs as part of a wider competition regime opens up the possibility that they could constitute a form of regulatory experimentation.¹⁰² This logic would see the NPRs as a testbed for novel legal and institutional tools—such as a recalibrated error-cost framework—to be applied in a real-world setting, without taking the risk of altering the foundations of conventional competition law. It is also prudent to examine how such ideas, if effective, could be later used to guide the development of competition law.

In that spirit, this article contends that by overturning the laissez-faire vision of error costs, the NPRs open the door to the reinvigoration of the competition–democracy nexus in ordinary competition law, to mirror and build on the democratic function of the NPRs. In our view, the legislation of the NPRs, and their explicitly democratic function, has served to reaffirm the importance of the competition–democracy nexus as a cardinal value across the whole the competition regime. This provides competition law with both a mandate and a roadmap for the revitalization of its commitment to democracy, accomplished by moving (back) towards a more precautionary approach to error costs.

This section proceeds in three parts. It details first, how the NPRs have moved beyond the conventional error-cost framework and its normative preference for laissez-faire competition law. As a result, the NPRs enable top-down regulation over digital markets by re-subjecting platform monopolies to state intervention. Second, we consider how the NPRs reify bottom-up democracy through ex ante rules that facilitate consumer choice creating a countervailing force against ‘domination’ to protect a republican concept of liberty in digital markets. Third, we suggest the NPRs may transcend the error-cost framework altogether, moving from market fixing to market shaping, where digital markets are deliberately designed to be contestable, subject to public oversight, and, ultimately, more democratic.

A. The NPRs Facilitate State Intervention

Underpinning the NPRs is a recalibrated error-cost framework. Traditionally, arguments for rejecting the laissez-faire error-cost logic have challenged it on its own terms. Scholars have argued that the model of perfect competition on which Easterbrook relied is flawed,¹⁰³ that his assumptions about the consequences of false-positive errors over time are overstated because markets rarely self-correct through entry,¹⁰⁴ and that inefficient judicial precedents do not necessarily generate higher costs than the exercise of market power.¹⁰⁵ Others have also argued that the economic properties of digital markets, as well as the increased frequency and scale of anticompetitive harms that can occur on them,¹⁰⁶ have rendered the laissez-faire error-cost framework model obsolete.¹⁰⁷ In short, the assumptions underlying Easterbrook’s arguments in The Limits of Antitrust have ‘fallen into disrepute’.¹⁰⁸

The error-cost framework is not however, as some arguments suggest,¹⁰⁹ merely an ‘empirical procedure’ in simple need of an update. Rather, it relies on political assumptions about the legitimacy of government intervention, whose ‘liberty’ to prioritize, and the purpose of competition enforcement. In this way, the laissez-faire framework institutionalizes a normative vision of markets that weakens competition law’s ability to serve the common good and thus to maintain its output legitimacy. These assumptions are the product of their time and the politics of the ‘Brussels consensus’.¹¹⁰ Our argument is that the NPRs overturn the normative vision underlying the laissez-faire error-cost framework. Through democratic means (legislation), they create a parallel regulatory regime in digital markets explicitly designed to pursue polycentric values, including that of democracy. This section describes three ways in which the old model of error costs weakens the competition–democracy nexus and threatens the legitimacy of competition law in a post-neoliberal world, before considering two ways that the NPRs’ precautionary error-cost framework serves to strengthen the value of democracy in competition enforcement.

First, the laissez-faire error-cost framework relies on a vision of markets as self-correcting phenomena, which naturally produces optimal outcomes. Easterbrook’s model assumes that government intervention is likelier to create deadweight loss than efficiency gains and thus calls the legitimacy of competition law intervention into question. In so doing, it places the determination of market outcomes outside of the scope of popular control, entrenching a fictitious market–politics divide, and institutionalizing a predilection to protect the ‘free market’ into the structure of the case law.

This perspective is out of touch with the reality of how markets are made in the digital era. Big Tech firms have increasingly amassed ‘architectural power’—the ability to reconfigure the structure and set the rules of digital markets to their own advantage, often by integrating them into larger ecosystems.¹¹¹ This ability to structure the terms of competition endows digital monopolies with a ‘regulatory function’.¹¹² Rather than acting solely as competitors, Big Tech firms ‘create’ and ‘shape’ markets,¹¹³ with the ability to pick winners and losers, and to make value-laden policy decisions. In this context, Easterbrook’s arguments for a disempowering error-cost framework to preserve the self-correcting outcomes of markets appear inadequate. Indeed, rather than making space for markets to rectify themselves, the conventional error-cost framework cedes market governance to digital platforms, which only serves to entrench their power.

The fundamental mismatch between the vision of markets underpinning the laissez-faire error-cost framework and their modern reality threatens the democratic legitimacy of competition law and regulation in three ways. First, the laissez-faire framework limits competition intervention and leaves the direction of market development to be determined by self-interested digital monopolies, with little oversight from public authorities acting on behalf of the public good. This prevents competition law from acting as a countervailing force to the accumulation of private economic power, entrenching a democratic deficit on digital markets under the guise of a normatively charged ‘technocracy’.¹¹⁴ It does so by relying on a faulty theoretical model that compromises the quality and accuracy of competition law’s decision-making process, harming its throughput legitimacy. The NPRs allow for a reconsideration of this model of markets, and as we argue below, represent a public reclaiming of the ability to shape digital markets given the reality of how they are constituted.

Second, this vision of markets threatens the output legitimacy of competition law by entrenching a balancing of interests that systematically favors firms over consumers. The laissez-faire model assumes that efficiency losses following erroneous government intervention are ‘stickier’ than those perpetuated by private actors absent intervention, and therefore prefers the latter over the former.¹¹⁵ As a result, the burdens of these inefficiencies are systematically placed on the shoulders of consumers during the process of self-correction through entry, during which the alleged perpetrator firm can use its ill-gotten dominant position to extract supracompetitive surplus. The distributional consequences of this framework, often ignored, are stark: by protecting firms over the interests of consumers, it legitimizes the transfer of wealth from consumers to firms who acquire a temporary monopoly through anticompetitive means. Through this mechanism, the error-cost framework plays a larger part in the decline of economic democracy because it enables market structures that facilitate the extraction of value from consumers to firms, and which contribute to economic inequality as a result.¹¹⁶ By sanctioning these distortions to the way in which resources are distributed, the adoption of a laissez-faire approach to error costs has prevented competition law from acting in the direct interest of consumers and weakened its output legitimacy.

Third, by allocating welfare losses in situations of anticompetitive conduct, error-cost frameworks in competition enforcement are also engaged in the balancing of competing visions of liberty. Easterbrook’s model protects from ‘unfreedom’—freedom from government intervention—under the theory that the state is likelier to create deadweight loss by intervening than the market will create on its own. However, this theory has normative consequences that threaten competition law’s ability to create market outcomes that can serve the common good. There is a growing consensus about the original relationship between competition law and democracy, which have long been linked through a conception of ‘republican liberty’.¹¹⁷ Instead of Easterbrook’s negative understanding of freedom, the ‘republican liberty’ that competition law originally sought to protect requires keeping economic power contestable to prevent relationships of domination from developing on markets. Contestability is necessary because markets generally fail to self-correct in the way assumed by laissez-faire error-cost models, entrenching unbalanced power dynamics between consumers and suppliers on markets. A lack of contestability therefore creates a form of private, rather than public, ‘unfreedom’. Creating ‘republican liberty’ on markets thus underwrites the function of competition enforcement as an anti-domination tool. By choosing the liberty of firms engaged in anticompetitive conduct at the expense of the ‘republican liberty’ of consumers in the market, the laissez-faire error-cost framework threatens the output legitimacy of competition enforcement and biases enforcement away from the interests of consumers.

In these three respects, the laissez-faire error-cost framework stacks the deck against competition intervention and consequently threatens the democratic legitimacy of competition law. The values underlying the laissez-faire model held a broad consensus in the early 2000s and were incorporated into competition law as a legitimate reflection of public values and expert opinion through incremental development during the 'Brussels consensus'.¹¹⁸ Nevertheless, academic and political opinion has evolved away from this view, especially in light of the concentration of digital markets that has occurred in recent years. Today, the laissez-faire error-cost framework is increasingly recognized to be misaligned with competition law’s pursuit of the common good, hence why it has been supplanted by the precautionary approach of the NPRs.

The NPRs’ precautionary error-cost framework enables democratically legitimate state intervention in markets where it would otherwise not take place under the laissez-faire approach. This occurs primarily by shifting the burden of proof away from competition authorities,¹¹⁹ reducing or eliminating the possibility for efficiencies defences,¹²⁰ and through presumptions of anticompetitive harm.¹²¹ Unlike its predecessor, this framework is thus not solely an efficiency-maximizing enterprise:¹²² rather, it is part of a broader movement to reinject a more plural set of values, including that of democracy, into digital markets.¹²³ Lowering the bar for intervention in markets allows for competition enforcers to pursue democratic ideals in two ways, by enhancing the democratic legitimacy of competition intervention and by strengthening the democratic legitimacy of markets themselves.

First, the precautionary approach promotes the output legitimacy of competition law's internal processes by reclaiming the ability to determine the values that direct market intervention and enabling states to play a larger role in determining market outcomes. Intervention, in the words of former Commissioner Vestager, represents ‘the willingness for [liberal democracies] to say “we will reign this in, we will make sure that the market is open and contestable”’, thus ensuring that markets cannot be ordered by ungoverned private power.¹²⁴ This argument assumes that state intervention, accomplished through the medium of competition authorities, is itself democratically legitimate. A hurdle to this view is that competition authorities are technocratic institutions not directly subject to democratic oversight or accountability, even if authorities are often subject to some measure of political oversight.¹²⁵ Indeed, courts have historically pushed back against instances of undue political influence over competition authorities,¹²⁶ which scholars have highlighted as an increasingly pressing issue in certain jurisdictions.¹²⁷

Whereas the debate over the democratic legitimacy of competition enforcement is a broader one, our claim is limited to arguing that the NPRs’ precautionary error-cost framework supports democratic values more than the laissez-faire approach does. Although competition regulators are not necessarily democratic per se, they are more democratic than those subject to obligations under the NPRs: Big Tech firms. Unlike profit-motivated firms, which may dominate less powerful market participants and arbitrarily intervene in their affairs,¹²⁸ competition authorities are bound to pursue publicly determined mandates, enforce statutes, and do so in a manner subject to judicial review. Furthermore, intervention stemming from a precautionary error-cost framework carries additional input legitimacy derived from the recent legislative assent of the NPRs, which non-intervention under a laissez-faire approach—adopted without a legislative mandate—cannot match.¹²⁹

The second way in which the precautionary error-cost framework fosters democracy is by enhancing the output legitimacy of markets themselves. By facilitating intervention that contests non-democratic relations of domination once they have formed in markets, the NPRs underwrite the freedom of consumers to choose which firms to transact with and the freedom of businesses to compete. This argument is further developed below.

B. The NPRs Facilitate Consumer Choice

The second mechanism by which the NPRs can be understood to be fostering democracy through a precautionary approach to error costs is through the promotion of consumer choice as a means of bottom-up decision-making. The ‘minimalist’ core of the democratic ideal can be understood as government ‘not fall[ing] permanently to a faction’,¹³⁰ and in the political sphere, careful constitutional design combined with naturally occurring phenomena such as anti-incumbency bias in voting patterns work to ensure that the power to govern in Western democracies is continually contested.¹³¹ On the contrary, the digital economy is characterized by firms that are ‘structurally extremely difficult to challenge or contest’,¹³² both in the sense of competition in the market, where companies vie for a larger market share, and competition for the market, where companies strive to dominate a given market.

The lack of contestability in digital markets has knock-on effects for the quality of economic democracy. Here, as discussed above, we understand economic democracy as a wide concept where markets act as institutions of antipower,¹³³ rather than in its more narrow sense of the ability for workers to participate business decisions.¹³⁴ The connection between consumer choice and this understanding of economic democracy is made plain in Deutscher’s scholarship on republican non-domination in competition law, which shows how competition law supports democracy by promoting consumer choice and acting to disperse concentrations of economic power.¹³⁵ Concern with concentrations of economic power is clearly reflected in the drafting of the NPRs, for instance, Recital 4 of the DMA discusses ‘serious imbalances in bargaining power’ in digital markets, and a concomitant risk of ‘unfair practices and conditions for business users [and] end users’.¹³⁶

The case brought by Germany’s Federal Cartel Office (FCO) against Meta serves as an illustrative example of how a lack of choice deprives consumers of the ability to express their preferences on a market.¹³⁷ The FCO found that many consumers were essentially locked-in to Facebook because of a combination of network effects and a lack of interoperability, allowing the authority to conclude that consent for data processing was not ‘freely given’. Meta, which derives most of its revenue from behavioural advertising dependent on the processing of such data, was therefore found to have committed an exploitative abuse of its dominant position by forcing consumers to consent to excessive data collection.¹³⁸

On markets dominated by powerful firms, the lack of consumers’ freedom to choose is mirrored by a lack of freedom to compete on behalf of businesses.¹³⁹ Historically, competition law not only aimed to disperse economic power and protect against domination, but also to protect competitors, with the twin goals of first ensuring that, in the long run, powerful firms constantly operated under some degree of competitive constraint,¹⁴⁰ and second, safeguarding the right of economic agents to compete.¹⁴¹ These points remain relevant to modern competition policy. Innovation, for instance, suffers when entrepreneurs cannot even enter markets in the first place.¹⁴² In fact, the opposite is now true; rather than entrants being too small to succeed, concerns are being raised in the finance scholarship that Big Tech firms are ‘too big to fail’ in the sense that their market capitalization is so large that governments may be forced to step in and protect their business models from disruptions in the interests of financial stability.¹⁴³

A lack of choice and contestability means that modern digital markets, dominated by platforms that function as ‘citadels of private power’,¹⁴⁴ have become particularly undemocratic. They are governed by ‘Big Men’¹⁴⁵ unconstrained by market discipline, and impose decisions on a captive population of consumers.¹⁴⁶ Consumers on monopolistic digital platforms have little say in the content of the rules to which they are subject on those platforms. The ability of consumers to choose which firms to transact with from a ‘meaningful range of options’¹⁴⁷ is supposed to be a key source of legitimacy when it comes to firm decision-making; consumers can always switch to a competitor if they are unhappy.¹⁴⁸ This same mechanism also helps shape the development of markets, as firms seek to make business decisions to satisfy consumers;¹⁴⁹ in a market with several, or indeed many, choices for which firms to transact with, consumers could ‘vote with their feet’ by choosing to transact with the firms that they prefer the most. This mechanism shapes the direction of markets, ensuring that they are responsive to consumer preferences (that is, the demos).¹⁵⁰ The failure of the competition regime to maintain contestable digital markets, denying consumers such a choice, has therefore harmed its input legitimacy. Likewise, the same lack of choice has also harmed the output legitimacy of the competition regime because large platforms then do not risk losing market share if they make unpopular business decisions. As described above, platforms are then free to‘enshittify’ their product offering in order to extract more value from consumers, and do so free from market discipline.¹⁵¹

The NPRs seek to foster market contestability through a two-step approach. First, they limit their scope to only the most powerful digital firms by means of legal categorization; using criteria such as market share or the number of active users to identify ‘gatekeepers’ or firms with ‘strategic market status’.¹⁵² Second, after having identified the firms with this status, the NPRs seek to enable democracy from the bottom-up by creating rules that facilitate consumer choice, thus providing a countervailing force to the economic power of incumbents.¹⁵³ In other words, the NPRs first identify firms with a structural capacity for domination, and then attempt to offer ways for less powerful economic actors to escape said domination. There are several such mechanisms that the NPRs use to achieve this. They contain provisions that positively enable consumer choice, such as Article 6 and Article 7 DMA, which aim to ensure that gatekeepers’ services are interoperable with those of their rivals,¹⁵⁴ facilitate consumer switching such as by ensuring that default settings can be easily changed¹⁵⁵ or enabling data portability.¹⁵⁶ They also contain provisions to safeguard existing consumer choice. For instance, Article 6 DMA imposes several obligations on gatekeepers to prevent them from leveraging their power between markets, and thus precluding competition on the merits.¹⁵⁷ Likewise, the UK’s DMCC Act contains obligations and requirements for firms with strategic market status,¹⁵⁸ which are drafted to meet fair dealing¹⁵⁹ and open choice objectives.¹⁶⁰

Hence, the NPRs are aimed squarely at the lack of consumer choice in digital markets. They do this in a context where both competition scholarship and competition agencies are paying more attention to questions of power, long left unattended within the discipline.¹⁶¹ These gaps in competition law reflect the underlying value structures that were embedded, as discussed above, during the law’s more economic turn. Foremost among these values was economic efficiency, as prioritized by the conventional error-cost framework. Competition law was willing to tolerate monopoly, which it considered to be transient, on the basis that erroneous intervention would risk inducing efficiency losses that would be hard to reverse.¹⁶² However, the NPRs recognize that the laissez-faire approach to error costs contains a hidden assumption: concentrated markets must be contestable if they are to self-correct. Consequently, they situate cost minimization as subordinate to market contestability and consumer choice, which are elevated to the status of core values relevant to the regulation of market competition.¹⁶³ Political figures instrumental in shaping the NPRs have made this clear by stressing how the new laws are designed to promote a bottom-up approach to democracy. Former Commissioner Vestager, for example, framed the DMA explicitly as part of the Commission’s work to ‘preserve democracy and pluralism in our societies’ by keeping ‘markets open and contestable’.¹⁶⁴

These insights make plain a key legislative purpose the NPRs. They seek to shore up the function of the competition regime as a mechanism to tame the ‘ouroboros-self-destructive’ nature of competition, whereby the winners of the competitive process must be prevented from using their gains to inhibit future challengers.¹⁶⁵ Just as there are laws that prevent incumbent governments from influencing the outcome of future political contests,¹⁶⁶ the NPRs perform a similar role when it comes to preventing incumbent firms from influencing the outcome of economic competition. The NPRs seek to ensure that firms in the digital sphere should constantly be subject to the bottom-up logic of market competition. They aim to ensure yesterday’s winners do not compromise today’s fair competition, harming economic democracy in the process.

The focus on consumer choice and market contestability is made apparent by the way in which the NPRs are currently enforced. In the first non-compliance proceedings opened by the Commission under the DMA, each area of contention relates to consumer choice in some respect.¹⁶⁷ The Commission is concerned that Apple and Alphabet are in breach of their obligations under Article 5(4) DMA because they impose anti-steering provisions that attempt to prevent consumers from choosing to make purchases either directly from app developers or through a third-party store, as opposed to through the gatekeeper’s own store. In effect, these provisions attempt to deny consumers the choice of which platform to transact on. The Commission is also considering whether Apple’s choice screens, default settings and un-installable applications contravene Article 6(3) DMA and ‘prevent[] users from truly exercising their choice of services’. This is in addition to its investigation of self-preferencing in Alphabet’s search result rankings, a practice that the General Court explicitly linked to a ‘limitation of internet users’ choice’ in Google Shopping.¹⁶⁸

C. The NPRs Facilitate Market Shaping

The third mechanism through which the NPRs’ error-cost framework can foster democracy lies in how their recalibrated error-cost framework not only enables state intervention in markets, but also permits a wider range of intervention. The very existence of ‘gatekeeper’ firms can be considered as being contingent on the legal context in which they operate; competition law’s focus on efficiency and its reluctance to implement structural remedies have provided a fertile environment for the establishment of platform monopolies.¹⁶⁹ After all, if competition law had been sufficiently effective at policing digital markets, the NPRs may not have become necessary.¹⁷⁰ As discussed above, the exact inter-relation between the NPRs and ordinary competition law varies on a case-by-case basis. Yet notwithstanding the finer details of their legislative implementation, the emergence of the NPRs can be traced back to the ineffectiveness of ordinary competition law when tackling the accumulation and abuse of dominance in digital markets, and a recognition that the regulatory philosophy behind the competition regime must move beyond the flawed assumptions of the laissez-faire thinking.

In that vein, and as discussed above, the NPRs have not been solely motivated by the rise of Big Tech. Similar dynamics of dominance and market concentration are playing out across other industries, especially those part of the ‘intangible’ economy and in ‘regulated industries’, such as telecoms.¹⁷¹ As such, the ‘tech exceptionalist’ view of the NPRs, which would see platform companies as fundamentally different from other firms, is not entirely convincing.¹⁷² Given the open nature of both market competition and the laws crafted to help guide it, some uncertainty as to how authorities should best operate the competition regime is natural.¹⁷³ In that light, we consider the NPRs not only to be a sector-specific outgrowth of the competition laws, but also a form of regulatory experimentation,¹⁷⁴ which may yield useful legal and institutional ‘moves’ that can be imported back into ordinary competition law in the future. In other words, the quirks of digital markets and the ineffectiveness of applying conventional competition law to them provided an ideal opportunity for the NPRs to not only address market-specific issues, but also to be used as a testbed for some of the core assumptions of competition law to be re-examined.

Two key assumptions of the conventional error-cost framework are repudiated by the NPRs. First, that all firm conduct can be labelled as either pro- or anticompetitive in the eyes of competition law. Indeed, The Limits of Antitrust is full of references to such dichotomies,¹⁷⁵ although in practice, many courts have not accepted such a binary distinction between pro- and anticompetitive effects in competition law, preferring instead to examine how conduct may simultaneously intensify one dimension of competition while limiting another.¹⁷⁶ Regardless, the NPRs clearly depart from this binary view of firm conduct being necessarily either pro- or anticompetitive. The NPRs do define some behaviour as anticompetitive, namely when ‘gatekeepers’ or firms with ‘strategic market status’ fail to adhere to the new obligations and prohibitions. Yet, in identifying certain structural positions as problematic enough to justify certain presumptions of anticompetitive harm, the NPRs also define a liminal zone between the labels of procompetitive and anticompetitive that departs from the conventional binary.

Second, the NPRs refute the idea that ‘failing’ markets—those that are not maximally efficient—can be ‘fixed’. The NPRs do not constitute a set of remedies aimed at fixing digital markets once and for all. Rather, they seek to slowly but durably address issues of market power by taking a longer term restructuring approach that aims to facilitate contestability and keep markets open.¹⁷⁷ Owing to the unpredictability of digital markets, and an uncertainty as to what kind of remedies will be effective at achieving the goals of competition authorities, the NPRs contain open-ended provisions for structural intervention such as Article 18 DMA¹⁷⁸ and the ‘pro-competition intervention’ instrument in the DMCC.¹⁷⁹ This allows for authorities to ‘discover’ the best public outcomes empirically through an iterative process of experimentation; if a remedy or obligation appears to be ineffective, then agencies have enough latitude to modify their approach. This process need not create undue risks to economic efficiency: Lancieri and Pereira Neto propose a two-level error-cost framework for such cases, in which high levels of risk in enforcement are offset by lower levels of risk in remedy design, and vice versa.¹⁸⁰ Following these guidelines would bolster the throughput legitimacy of competition law by pairing ‘frontier’ cases that involve more unknowns with safer remedies more certain to produce the intended effects.

Both the notion that conduct is either pro- or anticompetitive, and the idea that markets can be ‘fixed’ reflect a fundamental assumption that there exists a ‘correct’ market ordering to be reified. Such a view is utopian, in the sense that it reasons from first principles to deduct axiomatically that such a market ordering exists.¹⁷⁷ Markets, as social systems, are ‘open’; they have no predetermined end state for competition law to use as a reference.¹⁷⁸ Adopting the premise that markets cannot be modelled as closed systems, spurred on by the competition issues endemic in the digital economy and related industries, has led to the start of an ‘epistemic revision’ of competition law,¹⁷⁹ of which the NPRs can play an important part.¹⁸⁰ This epistemic revision incorporates how market competition is tightly intertwined with other public policies,¹⁸¹ that cases may be affected by circumstances external to competition law, and the notion of competition law’s polyvalence in the sense that there is not one singular source ‘truth’ about markets.¹⁸²

Thus, the modern, polycentric, and polyvalent competition regime—having moved on from the ‘thin diet of efficiency’¹⁸³ and now able to inhere multiple simultaneous rationalities and truths—acknowledges the many and incommensurable values that may be sought through competition law, competition regulation, and policy.¹⁸⁴ Such a view does not yield a well-defined set of ‘efficient’ market equilibria, but rather a complex set of trade-offs inherent in the normative evaluation of any given market ordering. In such a context, the conventional error-cost framework appears limiting. The NPRs therefore transcend the market ‘fixing’ approach of the conventional error-cost framework by shifting towards a dialectical approach, which places a high value on fairness, market contestability, and an ultimately democratic vision of digital markets.

Thus, instead of adopting the ‘fixing’ approach of conventional competition law, the NPRs are more aligned with the notion that competitive markets are made, as opposed to found. Rather than capitulating the design of digital markets to Big Tech firms as the current approach favours, they embrace a proactive approach,¹⁸⁵ which seeks to actively ‘shape’ the direction in which digital markets evolve by putting forward a positive vision for how they should develop.¹⁸⁶ For instance, in a European context, competition authorities may seek to restructure markets to be more commensurable with the rights accorded to individuals by the Charter of Fundamental Rights of the European Union (CFR), in accordance with Amato’s observation that liberal democracies must walk the line between allowing businesses to trade freely as an expression of fundamental freedom, while being conscious of the risk that private power, ‘a power devoid of legitimation and dangerously capable of infringing [both public and private freedoms]’, could limit those same freedoms.¹⁸⁷ There are many suggestions in the literature for how a ‘shaping’ approach to digital markets could strike a better balance of fundamental rights, considering the large concentrations of private power observed in contemporary (digital) markets. For instance, Fukuyama’s suggestion of an interoperability layer for content moderation could further rights to freedom of expression and non-discrimination (Articles 11 and 21 CFR),¹⁸⁸ Davies and Georgieva have suggested affording consumers a choice of which advertising service should monetize their usage of the internet in accordance with rights to privacy and data protection (Articles 7 and 8 CFR),¹⁸⁹ and several of the NPRs contain provisions that prevent exclusionary conduct, and thus underwrite the right to the freedom to conduct business (Article 16 CFR).¹⁹⁰

The wide potential inherent in remedy design and the possibility of structural intervention as facilitated, for example, by Article 18 DMA pertaining to cases of systemic non-compliance by gatekeepers¹⁹¹ certainly leaves open the possibility of a more overt market shaping approach in the future. With regard to the DMCCA, the potential for market shaping is even greater. The legislation allows the Competition and Markets Authority’s Digital Markets Unit to make Pro-Competitive Interventions (PCIs) in markets, where following an investigation, the authority would have powers to impose essentially any remedies.¹⁹² Given the broad scope of the Act, the scope for market shaping may be limited only by the political-economic power of the UK’s regulatory authority vis-a-vis large tech firms.¹⁹³ Furthermore, the Act contains relatively open-ended provisions that would grant regulators broad latitude to engage in market shaping and regulatory experimentation. In particular, s.49(3) DMCCA permits PCIs on a trial basis for the purpose of ‘assisting the CMA in establishing requirements that would be effective in remedying, mitigating or preventing’ any adverse effects on competition or detrimental side effects that the intervention could bring about.¹⁹⁴ The availability of such a tool could allow UK regulators to take a trial-and-error approach and ‘feel’ their way towards a market-ordering with both input and output legitimacy.

Even though the NPRs are still in the dawn of their enforcement, the political impetus behind them is clear. They embody a vision in which legislation provides a check on the self-reinforcing power dynamics that dominate digital markets today, while underwriting the competitive process by safeguarding consumer choice and promoting market contestability. As such, the NPRs should be construed as longer-term project to shape digital markets, as to be more democratically legitimate and in line with a thick notion of public value.¹⁹⁵

IV. CONCLUSION

The laissez-faire error-cost framework unduly restrains competition law intervention without appropriate justification. In this context of a disempowered competition law, jurisdictions around the world began to create a complementary set of tools designed to regulate the entrenched dominance of Big Tech firms in digital markets, the New Platform Regulations (NPRs). Whilst the specifics of these instruments differ across jurisdictions, they share a common feature: a reversal of competition law’s traditional conception of error costs in favor of a precautionary error-cost framework.

This shift, and the more rigorous intervention it allows, has often been justified by the economic features of digital markets readily enabling dominance, and a growing political concern for the protection of consumer choice. The purpose of this article is to highlight another reason for competition regulation to prefer a precautionary error-cost framework: democracy. The modes of democracy sustained by the NPRs do not refer to any specific institutional forms, but a commitment to the ideals of political and economic democracy. We have identified three mechanisms through which such ideals can be pursued: ensuring that digital monopolies do not exist beyond regulatory control, shielding consumers from domination by monopolies through the protection of consumer choice, and reclaiming the role of ‘architecting’ markets from private actors as to reflect the public interest. Through these three mechanisms, the NPRs have rekindled the competition–democracy nexus and, in the process, strengthened the democratic legitimacy of the competition regime.

In this way, the NPRs take an ‘integrated approach’ to the pursuit of democracy, meaning their democratic objectives are woven into the fabric of the instruments themselves.¹⁹⁶ The ‘democracy deficit’ of contemporary competition law appears in stark relief in comparison.¹⁹⁷ Nevertheless, competition law should not cede its historical project of serving as a ‘democratic tool’ to the NPRs.¹⁹⁸ So far, competition–democracy scholarship has principally been concerned with developing a historical and theoretical account of why competition law should be enforced in service of democracy. The ambition of this article has been to explore how. The approach of the NPRs—where the pursuit of democratic ideals is not the basis of specific theories of harm, but at the heart of the overarching purpose of the instrument itself—is one towards which competition law should also converge. As such, the three democracy-fostering mechanisms discussed in this article should not be confined to the NPRs. Instead, they should become practical tools with which the wider competition regime—competition law included—endeavours to rebuild the competition–democracy nexus.

Acknowledgements

We thank the participants of the Symposium on Enforcement Trends and Gaps in the DMA hosted by Article 19, the LPE Summer Academy 2024 at Glasgow University, the University of Oxford 2024 Competition Law PhD Conference, the 2024 Competition Law and Policy Workshop: A Foresight Approach at UCL, the 2024 Power in a Digitalized World and Modern Bigness Conference at Utrecht University, and the Work in Progress forum at University College London’s Faculty of Laws for their valuable insights. We also thank three anonymous reviewers for their helpful comments.

Footnotes

Author notes