Regulating Tech Titans: What American Antitrust Can Learn from Europe

In 2024, regulating tech giants like Google and Amazon has emerged as a key issue on the U.S. government’s agenda, with antitrust law returning to the forefront. Meanwhile, across the Atlantic, Europe has introduced a new law, the Digital Markets Act (DMA), which regulates large online platforms, identified as “gatekeepers”. The DMA requires gatekeepers to adhere to specific obligations and prohibitions, typically subject to antitrust case-by-case scrutiny, to ensure fairness and contestability in digital markets. The European historical intellectual framework underpins the core features of the DMA, including its legal framework, approach, scope, and purpose. Since 2021, several antitrust bills have proposed a U.S. version of the DMA, aiming to reform antitrust law by adopting a similar legal framework, approach, scope, and purpose. However, this raises critical questions: Does the U.S. antitrust historical intellectual framework support the adoption of the DMA? Would a DMA type approach be successful in the United States? The conclusion from my comparative historical analysis of the DMA’s foundations is no. In making this claim, this article lays out a roadmap for understanding the deep roots of the DMA in European history and tradition. This article makes three important contributions. First, it provides a historical comparative analysis between the U.S. and EU intellectual frameworks by mapping out the roots of two very different antitrust traditions. Second, the article unveils the ordoliberal ideology underlying the DMA which fundamentally differs from the neoclassical way of thinking about and enforcing competition in the United States. Third, it gleans insights that American antitrust could learn from contrasting European approaches to regulating competition. The article concludes by arguing that implementing a law like the DMA for U.S. antitrust law would be like forcing a square peg into a round hole. However, Europe does serve as a useful laboratory for the United States from which to draw important lessons. As Europe has adapted consistent with its framework, so too must the United States.