By: Kevin Coates (21st Century Competition)
The competition rules are commonly referred to as an ex-post instrument; regulation is frequently referred to as ex-ante. The public consultations on the proposed New Competition Tool and the Ex Ante Regulation that are part of the Digital Services discussions both seem to regard competition enforcement as ex-post intervention and regulation as ex-ante.
I know that a lot of people use these terms (and I’m sure I’ve used these terms myself), but they’re neither accurate nor particularly helpful to the discussion.
The competition rules are laid out in general terms in the Treaty. The Commission has taken prohibition decisions: these generally condemn past behaviour and are rightly regarded as ex-post intervention. But these decisions also establish precedents which guide companies in their future conduct. The Commission has also issued block exemptions with specific do’s and don’ts, and written extensive guidance with examples of good and bad behaviour. Court rulings also establish precedents that guide future conduct. And private practitioners spend a lot of time advising clients on what they need to do to operate within the rules.
There is therefore a substantial part of competition law that is there to guide companies as to how they can comply with the rules in the future. The object is to guide future behaviour. This aspect of competition law is undeniably ex-ante…