The foundations of the separation of powers principle and those of antitrust present an actual and renewed interest, as we are currently witnessing a resurgence of non-economic concerns in the antitrust literature. This observation especially relates to the United States, but many issues raised in this country are also relevant in other jurisdictions. Several key provisions of antitrust national laws or European treaties are rather vague, leaving broad room for interpretation, and have remained unchanged in substance for decades, which may open a connection between the political content of antitrust viewed historically and prospectively; to a certain extent, the ball is now in the court of agencies and courts. The concentration of power in the digital era constitutes the starting point of the analysis, which continues with the observation that some digital platforms have significant political power and ends with the idea that such platforms have become important or even fundamental parts of the digital infrastructure of democracy.

This essay approaches David Tracy’s theme of conversation (‘which animates … the whole posture and method of Tracy’s career’) primarily as social and civil practice. Tracy’s Plurality and Ambiguity (1987) is brought into conversation with present-day cultural critic Sherry Turkle regarding how digitalised communications magnify the ‘interruptions’ of plurality and ambiguity that Tracy suggested mark all conversation. Some early critics suggested that Plurality and Ambiguity: (1) insufficiently considered the ambiguities of one’s interlocutors in conversation; and (2) ignored imperatives for some participants to resist powerful others’ framings of the rational task. Here, our digital situation can help highlight how deep down plurality and ambiguity stretch within any given conversation; as well as how socially fragile and crucial this phenomenon of conversation is. The world of deliberately designed digital platforms highlights how there is always some particular design to ‘the table’ at which conversation participants convene. Theology must learn the necessity of building a culture of genuine theological conversation by means of deliberate and detailed design decisions.

The separation of powers principle and antitrust both relate to power and, notably, deal with the concentration of power. However, they are usually conceptualized, analyzed, and promoted separately. Separation of powers primarily refers to branches of government or to the main functions of the state and, in this respect, to public or state power or powers, while the economic power of private or, to a lesser extent, public firms is at the core of antitrust. Though appealing, this distinction is not clear-cut. These powers interact with one another. The concentration of politico-economic power in one or a few hands also raises fundamental issues in a democracy. Currently, and in the future, special attention must be given to the fact that a few digital platforms contribute to the digital infrastructure of democracy.

The digital economy raises important concerns relating to the concentration of economic-political power and, consequently, to the separation of powers in a broad sense, or more narrowly to checks and balances. Several recent or proposed pieces of legislation, especially in Australia, the European Union, Germany, India, Japan, South Korea, the United Kingdom, and the United States aim at tackling some issues posed by large digital platforms. These recent or proposed pieces of legislation all address important issues in the digital economy, and some of them could contribute to reduce entrenched market concentration, however, to a degree that remains to be defined. The most comprehensive set of bills from this perspective was introduced in the U.S. Congress during the last two years. However, even in this country, the concentration of politico-economic power in a few firms and the control of the digital infrastructure of democracy by them would remain widely unregulated, as in other countries, should Congress pass the proposed bills.

Describes the characteristics of digital platforms and the debates about the need for regulation of such platforms. Also sets out the policies that have been introduced in different jurisdictions

I introduce the question of what digital technology is – why it is so powerful, why it is different in kind from other media – by focusing on the convergence of two themes. First: Regarded as a tool, digital technology does not really do anything; it does not straightforwardly act on the material world. Unlike steam engines or wheels, it performs no particular physical task. Its scope of action is unspecified and unrestricted. Second: It is a social technology. Its appeal does not reside only in its instrumental means and uses, but in its power to connect us into a single global nervous system. This is in part because information technology is a technology of intentional responses. By responding to us in terms of information and by making our responses themselves the subject of measurement, digital devices engage us personally and in kind. These features thus represent the twin promises of total effectiveness and total responsiveness; that is, digital technology is both a new tool for measurement and a new medium of being in touch with others. It is this synthesis of measurement with medium – of quantitative analysis with social reality – that is most distinctive and transformative about it.

This paper delves into the ways in which EU competition law affects the right of workers to organize and combine with each other and act, collectively, in the furtherance of their rights and interests at work, in particular by means of collective agreements concluded with one or more employers. It begins by opposing the limited ‘labour exemption’ contained in the recent competition caselaw and contrasts that with a more traditional ‘labour law’ approach, that would typically see collective bargaining as a fundamental, and universal, labour rights to be enjoyed by all workers, or in the alternative will have to integrate the asymmetry of bargaining power between labour and digital monopsonies. We put forward a more nuanced and balanced approach, by reference to the concept of ‘predominantly personal work’, that could act as the new watershed concept around which labour rights and competition law could define their respective fields of operation and which may already inspire the recent Commission’s proposals enabling self-employed without employees (“solo self-employed”) to access the right to bargain collectively on a number of issues with digital platforms.

Chapter 1 introduces the reader to the book’s topic and the existing debates which the book addresses. It also frames the book’s scope and research questions and explains the methodology and the selection of specific countries. The meaning ofthe principal concepts is explained.

This chapter analyses the relationship among competition law and the various sectoral regulatory regimes making up the EU body of economic regulation, at the systemic, substantive and institutional level. In the light thereof and of experience with comparable tools in other jurisdictions, it makes recommendations regarding the interplay between market investigations and sector-specific regulation. In our opinion, market investigations could easily be integrated in the existing body of EU economic regulation. At the systemic level, this new instrument should have a horizontal scope and hence be applicable to regulated sectors, to usefully close eventual regulatory gaps. At the substantive level, it should rest on economic knowledge and methodology, in line with existing EU economic regulation, yet without being straitjacketed within specific competition law analysis. At the institutional level, a close transversal cooperation between the Commission and the relevant NRA(s) is needed at every stage of a market investigation implementation, if and when it is applied in regulated sectors.

With new forms of private power in the Algorithmic Society – a bottom-up approach could help next to the top-down approach taken by Constitutional States. This chapter investigates to what extent principles of consumer law can serve as leverage when artificial intelligence (AI) used for mutual transactions on digital platforms leads to adverse consequences for consumers. Constitutional States are keen to advance the digital transformation. They look to find a balance between promoting innovation and freedom of contract with robust consumer protection. Following an introduction of technology notions, this Chapter explores whether the use of machine learning, AI and automated decision making (ADM) in private law transactions creates a dichotomy between digital platforms and consumer protection regulation. What is left of principles of contract law, if contracts are almost completely automated and the negotiations process leaves no room for divergence? Which legal principles could serve to provide trust to private individuals in the pre-contractual and the contractual phase of transactions on AI-driven digital platforms? The author discusses a toolkit for regulators to empower the weaker parties on algorithmic-driven digital platforms, in the contract negotiations and the governance phase. Given the extensive body of European consumer regulation, this Chapter applies EU regulation.

This chapter explains the phenomenon of digitisation and the terminology that comes with it. It provides an insight into how digitisation has changed the way in which business is conducted. The chapter elaborates on the different kinds of digital platforms and how they have allowed for the creation of new business models. The term ‘digital products’ is explained and the chapter elaborates on the classification debate surrounding this term. WTO Members have taken divergent positions on whether to classify digital products as either goods or services. This chapter explains the EU-US juxtaposition in this debate and provides insights into the best way to approach the classification of these products. The chapter additionally elaborates on data flows and their increased prevalence in international trade. The relevance of data flows to the assessment of digital services trade is explained. Finally, the chapter provides a brief introduction into the functioning of the Internet, to provide readers with an understanding of the technical background to the phenomenon of ‘digitisation’.