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.
There is, of course, ex-post control, either because companies haven’t followed the guidance, or because a particular type of conduct is not covered in the guidance or precedent. But to describe the competition rules as ex-post tools is overly simplistic.
The same is true about calling regulation ex-ante. Regulation does not arrive out of nowhere. A civil servant or parliamentarian sitting in their office does not suddenly think, “today I’ll regulate the telecoms sector”. (Well, hopefully not.)
Regulation comes about by people looking at how something is operating and concluding that it would in some way be better if it operated differently. So the legislature regulates. Sometimes by setting out detailed rules, sometimes by setting out more general objectives for an enforcement agency – such as a sector regulator – to enforce. Sometimes a combination of the two.
And, at least in the EU, if the regulation looks like it needs updating in light of further experience, it is relatively easy to do. Energy, and arguably to an even greater extent telecoms, went through multiple revisions to the regulatory regime, adapting the regimes to new circumstances and a new understanding of the past.
There’s no particularly important legal point here, other than if we’re going to have a debate on the relative merits of a competition and a regulatory approach, let’s not confuse things by describing the regimes as ex-post and ex-ante.