Controlling market power in the digital economy: The EU and Asian approaches

Since the turn of the millennium, digitalisation has not only radically changed economies across the world but also allowed for the rise and proliferation of digital platforms. While clearly adaptable, a perception has emerged that existing competition laws are inadequate to accommodate tech giants’ unique market positions and market power, feeding calls to not rely solely on these. The European Union (EU) has replied by adopting the Digital Markets Act (DMA), allowing for the designation of digital gatekeepers based on turnover and user numbers. In contrast, Asian countries like Korea and Japan have opted to rely on the notion of ‘superior bargaining power’ to check market power in the digital realm. While serving the same objective, the Asian approach differs by replacing the need to identify dominance as a precondition for enforcement actions. In contrast, the DMA will be applicable on an ex-ante basis but allow for concurrent policing under traditional competition law ex-post. This paper explores the matter of market power in the digital sphere and the different paths chosen to control it in Europe and Asia, focusing on the example of Korea with respect to the latter. Through a comparative study, we conclude that they are perhaps less different than initially perceived, diverging mostly in their form rather than their content or reach. However, the DMA also serves to suppress the proliferation of national legislation thwarting the European Single Market and debasing competition law. The latter could be a consequence of pressing competition laws to accommodate the special particularities of the digital economy.