Alternative recommendation algorithms as an antitrust remedy in digital (democracy) cases

Remedies are essential for an effective enforcement of EU competition law, yet they have been largely unsuccessful in digital markets. Recommendation algorithms are central to the functioning of many digital platforms, and they will likely need to form part of a competition law remedy sooner rather than later. While this is a far-reaching intervention, we show that it is possible to design and monitor alternative recommendation algorithms as a competition law remedy. The review of Regulation 1/2003 presents an opportunity to enable the European Commission to adopt more effective remedies in digital antitrust cases. On 24 November 2024, Călin Georgescu won the first round of the presidential elections in Romania. News soon spread that his successful campaign on TikTok was the main reason behind his unexpected victory.1 In due course, Romania’s constitutional court annulled the election2 and the European Commission started investigating whether TikTok had violated its obligations under the Digital Services Act (DSA),3 amongst others by providing an unfair advantage to a political candidate through its recommendation algorithm.4 This case casts light on how large digital platforms may be exploiting their position as intermediaries in an increasingly digital world, thereby putting liberal democracy at risk. In recent years, the European legislator attempted to rein in various aspects of the seemingly untameable conduct of large digital platforms, through the DSA as well as through the General Data Protection Regulation (GDPR),5 the Digital Markets Act (DMA)6 and a range of other regulations. Recognising the importance of abiding by digital regulation to ensure fair competition in digital markets, the Court of Justice of the European Union has ruled that a large digital platform’s violation of the GDPR, for instance, can be instructive when it comes to assessing whether the platform has been competing on the merits.7 A breach of digital regulation can therefore come to weigh in on an assessment under EU competition law. Against this background, the ongoing TikTok investigation begs the question whether TikTok’s potential violation of the DSA may also be subject to competition law intervention. This would open up an entire additional toolbox to rein in excessive market power that threatens our democratic society. But what type of competition law remedy8 could be imposed on TikTok to effectively end its antitrust infringement and therefore restore a competitive (political) playing field? Over the past years, this intersection of digital platforms and democracy has gained increasing attention from competition law scholarship9 as well as from policymakers.10 In particular, where a competition authority imposes or negotiates remedies, those could be structured in a way that not only restores or protects competition, but also supports democracy.11 The issue of remedies plays a central role for competition policy, as it would be useless to go after infringing conduct that is ultimately not remedied.12 In this contribution, we focus on a new type of antitrust remedy that could prove useful in digital (democracy) cases, including in the TikTok case sketched above: alternative recommendation algorithms. We ask under what circumstances alternative recommendation algorithms could be an appropriate competition law remedy, how such a remedy could be designed and monitored, and how it might fulfil the legal requirements that EU competition law sets for remedies. To answer these questions, we proceed as follows: Section 2 provides a short primer on antitrust remedies in digital markets, highlighting the legal framework for remedies under EU competition law, the types of remedies that have been adopted in digital platform cases in the European Union and ways in which to monitor them. Section 3 turns to alternative recommendation algorithms. It sets out four scenarios in which recommendation algorithms may raise competition (and democracy) concerns, before turning to alternative recommendation algorithms as a possible remedy and the way in which such a remedy can be designed, assessed, and subsequently monitored. Section 4 concludes. In EU competition law, remedies are positive or negative obligations13 that have the aim of remedying the competitive concerns, be it ex ante (in merger cases) or ex post (in antitrust cases). The notion of remedies encompasses different instruments that, depending on the type of competition law proceedings at issue, are known as antitrust remedies, commitments, modifications or merger remedies. They generally have strong market-shaping capabilities,14 making them an important tool to safeguard or re-instate competition. Remedies are treated slightly differently in antitrust cases and mergers, based on their different outlook and time of the intervention (ex ante vs ex post) and the prevailing legal framework.15 These differences are set out below. Regulation 1/200316 governs the enforcement of the European antitrust provisions on anti-competitive agreements17 and abuse of dominance.18 Remedies come into play in infringement proceedings19 as well as in commitment decisions,20 and both behavioural and structural remedies are possible. In infringement proceedings, the European Commission must give a preference to behavioural remedies where they are as effective as structural ones.21 The remedies need to effectively bring the infringement to an end (criterion of effectiveness), be necessary to achieve that aim (criterion of necessity) and be proportional (criterion of proportionality strictu sensu).22 There must be a ‘remedial link’23 between the infringement and the remedy.24 When imposing a behavioural remedy in an infringement case, the Court of Justice has highlighted that ‘the Commission has the power to specify the extent of the obligations incumbent on the undertakings concerned in order to bring the infringement to an end’.25 In the past, the Commission has imposed remedies in infringement decisions that contained specific behavioural obligations for the infringing undertaking.26 Regularly, however, the Commission asks the infringing undertaking to draw up a remedy proposal that reaches a certain outcome.27 This practice could undermine the effectiveness of remedies, as the infringing undertaking presumably has little interest in fully remedying the competitive concern.28 In commitment proceedings, it is the undertaking involved that proposes commitments to the European Commission in return for not being subjected to an infringement decision that could include a hefty fine. The proposed commitments will then typically be designed in cooperation with the Commission.29 The latter has a of in to commitments or to adopt an infringement which it power the undertakings Remedies a commitment decision are and and more the of proportionality is not as for commitments as it is for remedies imposed in the of infringement Regulation 1/2003 is being by the European also in light of competition that has competition law remedies not being up to their This provides an important opportunity to how the legal framework for antitrust remedies their and how it could be the EU the European Commission may a merger as with the market a at of a merger It is for the to such modifications or which are then subject to with the of this or at merger remedies are more to antitrust commitment decisions than to antitrust infringement to Regulation the Regulation not a preference for a certain type of remedy. it that commitments by the be to the competition and as in antitrust commitment the European Commission has power in the case of commitments under merger This is the Commission may to the merger it is not that the remedies fully of its competition In recent years, the European preference for structural remedies in merger has way to more behavioural remedies being adopted in digital A in which competition law remedies could come into play are where the competition authority out an investigation into a market or a specific type of on its remedies to competition into the under This a competition authority to competition also in cases where competition law infringement can be While the European Commission is to out market it adopt remedies such an In other competition are in a position to remedies a Regulation 1/2003 under this is an in which could the competitive in competition law remedies, such as are effective in digital In particular, a order may not be in more cases where competition to be The of remedies in digital cases have to the that in digital markets, the design of antitrust remedies may need to be and While competition and may need to be more when a competition law remedy, remedies also open a of for This might competition to only to more remedies in the case of antitrust commitments and merger remedies. 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