The Neo-Antitrust. Between Ends and Means

Abstract

The article deals with some of the challenges of antitrust agencies when confronting the new world in which private power has increased and has eroded the space and rights of consumers in new ways. In particular, the so-called monopoly power of Big Tech is now exercised upon the costumers not by raising prices or reducing output, but by subjecting them to treatments that may violate their rights, something that does not necessarily break antitrust rules.

In such a scenario, movements, such as Neo-Antitrust, argue in favor of a stronger degree of intervention, in order to come back to the original goals and are in favor of a new reading of antitrust rules, yet none of these rules nor the tools of antitrust authorities have actually been changed. While the Neo-antitrust invokes new recipes, the author underlines the flexibility of competition law – flexibility that gives the law a particular strength and allows it to address new phenomena, such as novel positions of power - but also the need for a cautious approach. Antitrust is a significant component of our legal orders, but it cannot assume the entire burden of countering any new manifestation of private power (for instance the power over unaware consumers' data). Indeed, the ends we read in antitrust cannot change the means established by the law to pursue them: the tools at our disposal can be adapted over time, but the rule of law does not allow judicial and administrative authorities to freely expand the means for the sake of whatever noble and even constitutional end.