Evolution to Ex-ante Competition Law A Reflection on the New Rules for Dealing with Anti-Competitive Practices in Digital Platforms

Bahadori Jahromi, Ali; Farahani, Mohammad Sadegh

doi:10.48308/eclr.2025.236715.1077

Evolution to Ex-ante Competition Law A Reflection on the New Rules for Dealing with Anti-Competitive Practices in Digital Platforms

Document Type : Original Article

Authors

Ali Bahadori Jahromi ¹ ^¶

mohammad sadegh farahani ²

¹ Assistant Professor, Faculty of Law, Tarbiat Modares University, Tehran, Iran.

² Post-Doctoral Researcher, Faculty of Law, Tarbiat Modares University, Tehran, Iran Corresponding Author Email: m.farahani@modares.ac.ir

https://doi.org/10.48308/eclr.2025.236715.1077

Abstract

The emergence of new concepts such as "extremely dynamic market", "its increasing concentration and exclusivity", "irreversibility of competition", "dual nature of the platform" and "difficulty of proving a claim" in the platform ecosystem, the traditional system of dealing with anti-competitive behavior in this field has faced serious challenges. By using library studies and adopting an analytical-descriptive method, in order to find the answer to the question of what are the new criteria for dealing with anti-competitive practices of digital platforms, it has concluded that a significant part of the inefficiency of traditional criteria in this field returns to the centrality of the "therapeutic and retrospective" approach that governs them. Accordingly, the main solution to overcome the challenges is to complete the traditional criteria by applying "Proactive and forward-looking" criteria. The criteria in the field of "practice" from the path of "setting behavioral standards" and "providing experimental algorithmic transparency", in the structural field from the path of "structural determination of the platform" and "resetting the structural nature of the platform" and finally in the judicial field from the path of "changing and facilitating the burden of proof" and "prior limitation of the right to defense" can be implemented

Keywords

Digital Economy

Algorithm

Market

Platform

Competition Law

Artificial Intelligence

References

Books
1. A group of Researchers under the Supervision of Seyyed Mahmoud Hashemi Shahroudi, Encyclopedia of Jurisprudence According to the Religion of the Ahl al-Bayt (peace be upon them), Vol. 6, Qom: Institute of the Encyclopedia of Islamic Jurisprudence on the Religion of the Ahl al-Bayt (peace be upon them), 1426 AH. (in Persian)
2. Fahimi, Azizollah, Principles and Scope of the Principle of Authenticity in Transactions, Qom: Qom University, 2017. (in Persian)
3. Katouzian, Naser, Proof and Reason for Proof, Vol. 2, Tehran: Mizan, 2014. (in Persian)
4. Mohaqq Damad, Seyyed Mustafa, Rules of Jurisprudence, Vol. 4, Tehran: Islamic Sciences Publishing Center, 1406 AH. (in Persian)
5. Rahbari, Ebrahim and Vahid, Hassani Sangani, Competition Law in the Field of Intellectual Property, Vol.2, Tehran: Samt, 2019. (in Persian)
6. Shams, Abdullah, Civil Procedure (Basic Course), Vol. 3, Tehran: Drak, 2014. (in Persian)
Articles
1. Alishahi Qalejooghi, Abolfazl and Mahdieh Maali, “Conflict and Justification of the Reversal of the Burden of Proof in Money Laundering with the Principles and Rules of Jurisprudence”, Islamic Law and Jurisprudence Research, Vol. 18, No. 68, 2017, pp. 101-119. (in Persian)
https://doi.org/10.22034/ijrj.2022.694912
1. Bahadori Jahromi, Ali, Mohammad Sadeq Farahani, Mohammad Mehdi Jafarian, Reza Ghasemipour, “New Anti-Competitive Practices in Cyberspace Platforms”, Public Law Studies, Vol. 52, No. 78, 1403, pp. 421-392. (in Persian) https://doi.org/10.22059/jplsq.2024.370291.3540
2. Bailey, David, “Rule of Reason”, In Global Dictionary of Competition Law, Concurrences, 2002, pp. 758-768.
3. Broulík, Jan, “Preventing Anticompetitive Conduct Directly and Indirectly: Accuracy versus Predictability”, The Antitrust Bulletin. Vol. 64, No. 1, 2019, pp. 115-127. https://doi.org/10.1177/0003603X18822611/
4. Cabral, Sandro, Lazzarini, Sergio & Furquim, Azevedo, “Private Entrepreneurs in Public Services: A Longitudinal Examination of Outsourcing and Statization of Prisons”, Strategic Entrepreneurship Journal, Vol. 7, No. 1, 2013, pp. 6-25. https://doi.org/10.1002/sej.1149/
5. Cappai, Marco & Colangelo, Giuseppe, “Navigating the Platform Age: the ‘More Regulatory Approach’ to Antitrust Law in the EU and the U.S.”, Stanford-Vienna TTLF, 2020, Vol. 55, No. 1, pp. 1-35.
http://dx.doi.org/10.2139/ssrn.3572629/
1. Evans, David & Schmalensee, Richard, “Applying the Rule of Reason to Two–Sided Platform Businesses”, University of Miami Business Law Review, Vol. 26, No. 1, 2018, pp. 1-16.
2. Ennis, Sean. & Fletcher, Amelia, “Developing International Perspectives on Digital Competition Policy”, Centre for Competition Policy and Norwich Business School, University of East Anglia, Vol. 1, No. 20-05, 2020, 1-21. http://dx.doi.org/10.2139/ssrn.3565491/
3. Fabiana, Diporto, & Maggiolino. Mariatereza, “Algorithmic Information Disclosure by Regulators and Competition Authorities”, Global Jurist. Vol. 19, No. 2, 2019, pp. 1-33. http://dx.doi.org/10.2139/ssrn.3363169/
4. Farahani, Mohammad Sadeq, Abbasali Kadkhodaei and Vali Rostami, “Competition Law in Digital Platforms; The Necessity of Revisiting Traditional Rules”, Public Law Research, Vol. 25, No. 79, 1402, pp. 40-7. (in Persian) https://doi.org/10.22054/qjpl.2023.63811.2683
5. Franck, Jens-Uwe. & Petiz, Martin, “Digital Platforms and the New 19a Tool in the German Competition Act”, Journal of European Competition Law & Practice, Vol. 12, No. 7, 2021, pp. 513-528.
https://doi.org/10.1093/jeclap/lpab055 /
1. Jackson, Eoen, “Upping the (Ex) Ante - Digital Competition Reform in the Era of Google Shopping”, Plassey Law Review, Vol. 2, No.7, 2022, pp. 7-19.
2. Javadi, Fatemeh, Seyyed Mehdi Salehi and Seyyed Mehdi Qureshi, “Analysis of the Jurisprudential Basis of the Evidence of Guilt in the Crime of Money Laundering”, Jurisprudence and Fundamentals of Islamic Law, Vol. 52, No. 1, 1398, pp. 29-48. (in Persian) https://doi.org /22059/jjfil.2019.269465.668606
3. Kadkhodaei, Abbas Ali, Vali Rostami, and Mohammad Sadeq Farahani, “The Rules Governing the Regulation of Prerequisites for the Application of Competition Rules in Digital Platforms; Pathology of Traditional Rules and Presentation of New Solutions”, Legal Studies, Vol. 15, No. 3, 1402, pp. 382-337. (in Persian) https://doi.org/10.22099/jls.2023.44359.4775
4. Khan, Lina, “Amazon`s Antitrust Paradox”, the Yale Law Journal, Vol. 126, No. 3, 2017, pp. 710-805.
5. Khan, Lina, “The Separation of Platform and Commerce”, Columbia Law Review, Vol. 119, No. 4, 2019, pp. 973-1098.
6. Mirzadeh Koohshahi, Nader, “Judicial Supervision of the Administrative Court of Justice over the Competition Council and Related Institutions”, Quarterly Journal of Comparative Research on Islamic and Western Law, Vol. 9, No. 3, 1401, pp. 355-384. (in Persian) https://doi.org/10.22091/csiw.2022.8269.2287
7. Paterson, Marie, “Misleading Al: Regulatory Strategies for Algorithmic Transparency in Technologies Augmenting Consumer Decision-Making. Loyola Consumer Law Review, 34 (Symposium Issue), 2023, pp. 558-581.
8. Rahmdel, Mansour, “The Constitution of Iran and the Principle of Innocence”, Journal of Fundamental Law, Vol. 4, No. 6 and 7, 2006, pp. 91-111. (in Persian)
9. Rahbari, Ebrahim, “A Reflection on the Relationship between Big Data and Market Power in Platform Markets from the Perspective of New Developments in Competition Law”, Private Law Studies, Vol. 53, No. 2, 1402, pp. 228-205. (in Persian) https://doi.org/10.22059/jlq.2023.347799.1007709
10. Rezaeizadeh, Mohammad Javad and Davud Kazemi, “Recognizing the Theory of “Public Services” and Its Governing Principles in the Constitution of the Islamic Republic of Iran”, Journal of Islamic Jurisprudence and Law, Vol. 3, No. 5, 2012, pp. 23-46. (in Persian)
11. Rostami, Vali and Davoud Kazemi, “Evaluation of the Principles of “Right of Defense” and “Publicity” of Tax Proceedings in the Legal Systems of Iran and England”, Quarterly Journal of Public Law Studies, Vol. 49, No. 4, 2019, pp. 1088-1067. (in Persian) https://doi.org/10.22059/jplsq.2017.235097.1525
12. Sabeel, Rahman, “Regulating Informational Infrastructure: Internet Platforms as the New Public Utilities”, Georgetown Law and Technology Review, Vol. 2, No. 2, 2018, pp. 234-251.
13. Schnitzer, Monika, Crémer, Jackques, Crawford, Gregory, Dinielli, David, Fletcher, Amelia, Heidhues, Paul, Scott-Morton, Fiona & Seim, Katja, “International Coherence in Digital Platform Regulation: An Economic Perspective on the US and EU Proposals”, Digital Regulation Project - Policy Discussion Paper in Yale University, Vol. 5, No. 1, 2021, pp. 1-29. http://dx.doi.org/10.2139/ssrn.3923604/
14. Wu, Tim, “Antitrust via Rulemaking: Competition Catalysts”, Columbia Law Review, Vol. 16, No. 1, 2017, pp. 33-63.
15. Zarei, Mohammad Hossein and Majid Najarzadeh Henjani, “The Concept of Public Services and Its Evolution in the Light of the Public Function Doctrine”, Public Law Research, Vol. 56, No. 19, 2017, pp. 135-156. (in Persian) https://doi.org/10.22054/qjpl.2017.8834.1193
Online Sources
1. ACCC (Australian Competition and Consumer Commission), Digital Platforms Inquiry, Australian Competition and Consumer Commission.
https://www.accc.gov.au/focus-areas/inquiries-ongoing/digital-platforms-inquiry, (Last visited 2023/9/15. (
1. Astana, Mojtaba, “The Competition Council’s Appeals Board Exempted Snap from Paying Damages,” Digiato, available at: https://digiato.com/iran-technology-news/snapp-was-exempted-paying-damages-case-of-tapsi-complaint, (Last visited 2023/9/15. ((in Persian)
2. Belgian Competition Authority, Dutch Authority for Consumers & Markets, and Luxembourg Conseil de la Concurrence, Joint Memorandum on Challenges Faced by Competition Authorities in a Digital World, Belgian Competition Authority, https://www.belgiancompetition.be/en/about-us/publications/joint-memorandum-belgian-dutch-and-luxembourg-competition-authorities, (Last visited 2023/9/15).
3. CMA (UK Competition and Markets Authority), Online Platforms and Digital Advertising, Competition and Markets Authority cases and projects, https://www.gov.uk/cma-cases/online-platforms-and-digital-advertising-market-study, (Last visited 2023/9/15).
4. Crémer, J., Montjoye, Y.-A., & Schweitzer, H., Competition Policy for the Digital Era. European Commission,
https://ec.europa.eu/competition/publications/reports/kd0419345enn.pdf, (Last visited 2023/9/15).
1. Ribera, T., Commission provides guidance under Digital Markets Act to facilitate development of innovative products on Apple's platforms, European Commission, https://ec.europa.eu/commission/presscorner/detail/en/ip_25_816, (Last visited 2025/9/20).
2. French Competition Authority, Contribution to the Debate on Competition Policy and Digital Challenges. Autorite de la Concurrence.
https://www.autoritedelaconcurrence.fr/sites/default/files/2020-03/2020.03.02_contribution_adlc_enjeux_numeriques_vf_en_0.pdf, (Last visited 2023/9/15).
1. German Commission ‘Competition Law 4.0’, A New Competition Framework for the Digital Economy. Federal Ministry for Economic Affairs and Energy. https://www.bmwi.de/Redaktion/EN/Publikationen/Wirtschaft/a-new-competition-framework-for-the-digital-economy.pdf?__blob=publicationFile&v=3, (Last visited 2023/9/15).
2. Mustekin, Amir, “From Retail to Marketplace; How did digital goods evolve?», Digiato, available at: https://digiato.com/article/2020/01/25., (Last visited 2023/9/15. ((in Persian)
3. Nayiri, Amir, “Chiliori Officially Ended Its Activity,” IT Iran, available at: https://itiran.com/2020/03/16/ ., (Last visited 2023/9/15. ((in Persian)
4. Nordic Competition Authorities, Digital Platforms and the Potential Changes to Competition Law at the European Level. Nordic Competition Authorities.https://www.kfst.dk/analyser/kfst/publikationer/dansk/2020/20200928-digital-platforms-and-the-potential-changes-to-competition-law/, (Last visited 2023/9/15).
5. Sarabpour, Sunita, “Snap: We Deny Anti-Competitive Procedures Against Tapsi / Tapsi: We Complain About Snap Following the Competition Council’s Decision,” Karang, available at: https://karangweekly.ir/., (Last visited 2023/9/15. ((in Persian)
6. Stigler Committee for the Study of Digital Platforms, Market Structure and Antitrust Subcommittee, Stigler Committee for the Study of Digital Platforms, https://research.chicagobooth.edu/stigler/events/single9-events/antitrust-competition-conference/digital-platforms-committee, (Last visited 2023/9/15).
7. Swedish Competition Authority, Competition in Digital Markets in Sweden. Swedish Competition Authority,
https://www.konkurrensverket.se/en/news/risk-for-competition-problems-on-swedish-digital-markets/, (Last visited 2023/9/15(.
1. UK Digital Competition Expert Panel, Unlocking Digital Competition, Digital Competition Expert Panel,
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/785547/unlocking_digital_competition_furman_review_web.pdf, (Last visited 2023/9/15).

Rules & Regulations
1. Competition Act (Gesetz gegen Wettbewerbsbeschränkungen – GWB), https://www.gesetze-im-internet.de/englisch_gwb/englisch_gwb.html, (Last visited 2023/8/26).
2. Digital Markets Act, https://eur-lex.europa.eu/legal-content/ EN/TXT/ PDF/? uri =CELEX:32022R1925, (Last visited 2023/8/26).
3. Digital Platform Commission Act Bill, https://www.congress.gov/bill/118th-congress/senate-bill/1671/text, Last visited 2023/8/26.
4. Ending Platform Monopolies Act Bill,
https://www.govtrack.us/congress/bills/117/hr3825/text, (Last visited 2023/8/26).
1. Implementation of General Policies of Article Forty-Four (44) Act, https://qavanin.ir/Law/TreeText/?IDS=8609157198573593908, (Last visited 2026/2/13). (in Persian)
2. Opinion No. 6648/102/97 dated 2018/8/15 issued by the Constitutional Council. (in Persian)
3. Sherman Anti-Trust Act, https://www.govinfo.gov/content/pkg/COMPS-3055/pdf/COMPS-3055.pdf, (Last visited 2023/8/26).
4. Treaty on the Functioning of the European Union, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A12012E%2FTXT, (Last visited 2023/8/26).
Cases
1. Case No. 406 decision dated 2020/1/4 issued by the Competition Council. (in Persian)
2. Case No. 437 decision dated 2020/10/10 issued by the Competition Council. (in Persian)
3. Case No. 540 decision dated 2023/1/24 issued by the Competition Council. (in Persian)
4. Case No. 550 decision dated 2023/2/21 issued by the Competition Council. (in Persian)
5. Case No. 555 decision dated 2023/3/11 issued by the Competition Council. (in Persian)
6. Case No. 150/02/H.T decision dated 2023/7/17 issued by the Appeals Board of the Competition Council. (in Persian)
7. The judgment dated 2020/10/13 issued by the Branch of Administrative Justice Court (in Persia