342 The Antitrust Bulletin 67(2)
but also exceed the existing competition law framework. Centered on the work of a Digital Markets Unit
(DMU) located within the U.K. competition agency, the Competition and Markets Authority (CMA), the
new regime is intended to “pro-actively shape the behavior of digital firms with significant and far-
reaching market power, by making clear how they are expected to behave.”3 Although the United
Kingdom is not unique in its plans to enact more demanding ex ante regulation of large digital firms, it
was a notable early advocate of such an approach, premised on an explicit regulatory commitment to
so-called pro-competition. This contribution explores the notion of pro-competition regulation, by locat-
ing the anticipated digital regime within the distinctive context of the United Kingdom’s competition
system and beyond, and by considering its potential to provide a more effective response to the per-
ceived competition problems of digital markets.
The DMU and pro-competition regime have their origins in a 2019 report prepared by an independent
Digital Competition Expert Panel (DCEP) for the U.K. Government, titled “Unlocking Digital
Competition,” but known colloquially as the Furman Report.4 The Furman Report pitched its prescrip-
tions as lying between two policy extremes: rejecting both the argument that effective competition is
impossible in digital sectors (which would support a regulatory approach of overreaching the market
mechanism through a category of utility-type regulation) and that existing levels of competition are
perfectly adequate (so that no further regulatory intervention would be required).5 The Furman Report’s
pro-competition proposals thus adopted the undergirding logic of conventional competition law—that it
is preferable to support and enhance competition dynamics, rather than to supplant them with top-down
regulation—but anticipated a rather more interventionist prospective approach. In doing so, it implicitly
endorsed concerns about the effectiveness of “more economic” approaches to competition law,6 while
nonetheless reflecting well-established criticism of more static varieties of regulation—the latter being
a particularly acute concern in the dynamic context of the digital economy. The object of this article is
to gain a more nuanced understanding of how the concept of pro-competition is reflected within this
regulatory balancing exercise, and what this means in practice for the digital economy.
The article is structured as follows. Section II sets the scene by examining the specific competition
issues that arise within the digital economy, through the lens of the analysis of the Furman Report.
Section III sketches the proposed structure and anticipated functions of the DMU, the finer details of
which remain unsettled at the time of writing. Section IV explores more directly the notion of pro-
competition regulation, assessing the proposals by comparison with both the current competition law
and sector-specific regulatory frameworks within the United Kingdom. Section V concludes briefly.
II. Setting the Scene: The Distinctiveness of Digital Markets
It is a truism of contemporary competition policy that a well-functioning digital economy has the
potential to deliver extraordinary benefits to consumers,7 but that such advantages are unlikely to be
3. Department for Business, Energy and Industrial Strategy (BEIS) and Department for Digital, Culture, Media and Sport
(DCMS), A New Pro-competition Regime for Digital Markets, CP 489 (July 2021), https://assets.publishing.service.gov.
after “Digital Markets Consultation,” para. 17.
4. The Digital Competition Expert Panel (DCEP) was chaired by Professor Jason Furman, hence the report’s better-known
5. Furman Report, at 2.
6. A useful discussion of the so-called more economic approach to competition law is Anne C. Witt, The European Court of
Justice and the More Economic Approach to EU Competition Law—Is the Tide Turning? 64 Antitrust Bull. 172 (2019);
considering criticisms of this approach, see Pablo Ibáñez Colomo, Whatever Happened to the “More Economics-Based
Approach”? 11 J. Eur. CompEt. lAw prACt. 473 (2020).
7. Furman Report, paras. 1.13–1.23, cited the provision of valuable services to consumers (often at no monetary cost),
enhanced efficiency and growth within the U.K. and global economy, and greater innovation as benefits brought by the