Competition Law and Future Institutional Capacities of Competition Authorities

1. Introduction

Competition law is increasingly moving from a model centred on traditional antitrust expertise—lawyers, economists and investigators—to a multidisciplinary institutional model capable of supervising data-driven, algorithmic, AI-enabled and highly concentrated markets.

The future capacity of competition authorities will therefore depend not merely on larger budgets, but on whether authorities can:

• detect anti-competitive conduct before markets tip;
• analyse enormous datasets and algorithms;
• understand AI, cloud computing, digital advertising and platform ecosystems;
• conduct faster investigations;
• design technologically sophisticated remedies;
• monitor compliance continuously;
• cooperate across jurisdictions;
• coordinate with data-protection, consumer-protection, telecommunications and sectoral regulators; and
• maintain institutional independence and judicial accountability.

The OECD's recent work specifically identifies the need for competition authorities to acquire expertise beyond traditional law and economics, including business strategy, sector-specific expertise, IT and data-science capabilities. OECD data also show an overall increase in competition-authority budgets and staffing, although increases in resources do not necessarily establish that authorities have sufficient capacity.

2. Meaning of Institutional Capacity

Institutional capacity means the ability of a competition authority to perform its statutory functions effectively, independently and efficiently.

It has several dimensions:

A. Legal capacity

The authority must possess adequate powers to:

• investigate;
• obtain documents and electronic evidence;
• conduct searches;
• compel information;
• impose interim measures;
• review mergers;
• impose remedies and penalties;
• monitor compliance; and
• challenge anti-competitive conduct in rapidly changing markets.

B. Economic capacity

Authorities require economists capable of analysing:

• market definition;
• market power;
• network effects;
• switching costs;
• multi-sided platforms;
• innovation competition;
• entry barriers;
• vertical foreclosure;
• coordinated effects;
• dynamic competition; and
• non-price competition.

C. Technological capacity

Future authorities increasingly require:

• data scientists;
• software engineers;
• AI specialists;
• forensic analysts;
• cybersecurity experts;
• algorithm auditors;
• cloud-computing specialists; and
• specialists in digital evidence.

This is particularly important because competition authorities may have to understand not merely what a company does, but how its technological systems produce the relevant competitive outcome.

D. Institutional capacity

Authorities need:

• specialised digital-market units;
• merger teams;
• cartel teams;
• economic-analysis divisions;
• digital-forensics laboratories;
• international cooperation units;
• market-monitoring teams; and
• specialised litigation teams.

E. Remedial capacity

An authority must be capable of determining whether a remedy actually changes market behaviour.

A technically sophisticated digital market may require:

• interoperability;
• data portability;
• API access;
• non-discrimination;
• access obligations;
• structural separation;
• divestiture;
• licensing;
• firewall arrangements;
• algorithmic monitoring; or
• behavioural commitments.

3. Why Future Competition Authorities Need Greater Capacity

3.1 Digitalisation

Digital markets create problems that traditional enforcement structures were not necessarily designed to address.

Digital platforms may simultaneously operate as:

• infrastructure;
• marketplace;
• competitor;
• advertising intermediary;
• data collector; and
• gatekeeper.

The OECD notes that digitalisation requires competition authorities to adapt analytical tools and, in some jurisdictions, to operate alongside new ex-ante digital regulation.

3.2 AI and algorithmic competition

AI introduces new institutional requirements.

Authorities may need to investigate:

• algorithmic pricing;
• algorithmic collusion;
• AI-enabled discrimination;
• foundation-model access;
• computing infrastructure;
• training data;
• model distribution;
• cloud dependence;
• vertical integration; and
• exclusionary AI ecosystems.

The OECD's 2026 analysis identifies structural competition risks across AI value chains, particularly where markets for hardware and data are concentrated.

Accordingly, future authorities may need permanent AI and computational economics teams, rather than temporary technical consultants.

4. Data as an Institutional Challenge

Data can simultaneously be:

1. an input;
2. a competitive asset;
3. a source of market power;
4. a consumer-interest issue; and
5. an instrument of exclusion.

The Facebook/Meta proceedings in Germany illustrate this transformation.

Case 1: Bundeskartellamt – Facebook/Meta Data Case

The Bundeskartellamt found in 2019 that Facebook's combination of data from Facebook, affiliated services such as WhatsApp and Instagram, and third-party sources constituted an abuse of dominance, subject to restrictions on combining data without voluntary consent. The case required competition-law analysis of data practices alongside data-protection considerations.

The institutional significance is substantial.

The authority needed to understand:

• data flows;
• APIs;
• platform architecture;
• data accumulation;
• privacy conditions;
• network effects; and
• the relationship between data and market power.

The litigation also demonstrated the importance of judicial capacity: the matter travelled through German courts and ultimately involved the CJEU. The proceeding was concluded in 2024 after implementation measures were negotiated, following important rulings by the German Federal Court of Justice and CJEU.

Institutional lesson: competition authorities increasingly need institutionalised cooperation with privacy and technology regulators.

5. Market Monitoring and Ex-Ante Capacity

Traditional competition enforcement is frequently retrospective.

Future competition governance may require authorities to identify structural risks before irreversible market tipping occurs.

This explains the development of:

• market investigations;
• market studies;
• sector inquiries;
• digital-market monitoring;
• gatekeeper designations;
• strategic-market-status regimes; and
• ex-ante obligations.

The OECD notes that several jurisdictions have expanded market-study powers and that such new powers can create additional demands for staffing and resources.

6. Merger-Control Capacity

Future competition authorities will increasingly have to evaluate mergers involving:

• start-ups;
• nascent competitors;
• AI companies;
• cloud infrastructure;
• data assets;
• digital ecosystems;
• semiconductor technology;
• intellectual property;
• platforms; and
• firms whose current turnover understates their competitive significance.

Case 2: CMA – Meta/Giphy

The UK Competition and Markets Authority reviewed Meta's acquisition of Giphy and ultimately required divestiture after concluding that the transaction raised competition concerns in social-media services and digital advertising.

The case demonstrates the institutional challenge of analysing a transaction where:

• the target was relatively small;
• traditional turnover measures did not necessarily reveal its strategic significance;
• innovation and potential competition mattered; and
• the transaction affected an ecosystem rather than a conventional single-product market.

Institutional lesson: merger authorities need specialised capabilities for assessing nascent competition and digital ecosystems.

7. Technological Evidence and Digital Forensics

Future competition investigations will increasingly involve:

• source code;
• APIs;
• server logs;
• cloud records;
• algorithmic outputs;
• internal datasets;
• metadata;
• digital communications;
• automated pricing systems; and
• machine-learning models.

This requires competition authorities to develop digital forensic capabilities comparable to those used by sophisticated financial and cybercrime investigators.

The Bundeskartellamt has already reported work examining algorithms and their effects on competition, illustrating how authorities have had to expand beyond conventional evidence-gathering techniques.

8. Case 3: European Commission – Google Shopping

In Google Search (Shopping), the European Commission found that Google had abused its dominant position by favouring its own comparison-shopping service in search results.

The decision illustrates a major institutional challenge: the authority had to analyse:

• search algorithms;
• ranking mechanisms;
• traffic diversion;
• platform economics;
• self-preferencing;
• network effects; and
• competitive foreclosure.

The Commission's 2017 decision was based on Article 102 TFEU.

Institutional lesson: future authorities must be capable of investigating algorithmically mediated competition, not merely contractual or physical exclusion.

9. Case 4: FTC v Qualcomm

In FTC v Qualcomm, the US Federal Trade Commission challenged Qualcomm's practices concerning key semiconductor technology used in mobile devices. The case involved issues of licensing, semiconductor markets and alleged maintenance of monopoly power.

The case demonstrates the importance of institutional expertise in:

• intellectual property;
• technology markets;
• licensing structures;
• semiconductor economics;
• innovation incentives; and
• complex vertical relationships.

Institutional lesson: competition authorities increasingly require sector-specialist teams, particularly in technologically sophisticated industries.

10. Case 5: European Commission – Amazon Marketplace

The European Commission's Amazon Marketplace investigation concerned the use of non-public seller data and potential bias in access to Amazon's Buy Box and Prime programmes.

The Commission ultimately accepted legally binding commitments addressing those concerns, including restrictions on the use of marketplace seller data and non-discriminatory access arrangements.

This required the authority to understand:

• marketplace architecture;
• seller data;
• internal platform incentives;
• ranking mechanisms;
• logistics;
• preferential treatment; and
• platform governance.

Institutional lesson: future authorities require teams capable of analysing platform architecture and internal information flows.

11. Case 6: CMA – Microsoft/Activision Blizzard

The CMA's investigation of Microsoft's proposed acquisition of Activision Blizzard demonstrates another dimension of institutional capacity.

The original investigation examined competition in cloud gaming and involved extensive evidence gathering, remedies analysis and an interim order.

Following a modified transaction involving cloud-streaming rights, the CMA subsequently accepted undertakings in lieu of a Phase 2 reference.

The institutional significance lies in the authority's need to understand:

• gaming ecosystems;
• cloud infrastructure;
• licensing;
• distribution;
• future innovation;
• vertical integration; and
• technological access.

Institutional lesson: merger authorities must increasingly possess sector-specific technical expertise before transactions occur, rather than acquiring it only during litigation.

12. Case 7: Bundeskartellamt – Apple

The Bundeskartellamt's proceedings concerning Apple demonstrate the development of specialised institutional powers for major digital ecosystems.

In 2023, the authority determined that Apple had paramount significance for competition across markets. In 2025, Germany's Federal Court of Justice confirmed that assessment, bringing Apple within the enhanced abuse-control framework under Section 19a GWB.

The authority has also examined Apple's App Tracking Transparency Framework, including concerns that Apple's rules might favour its own services or disadvantage competitors.

Institutional lesson: future authorities may need specialised statutory regimes capable of dealing with ecosystem-level market power before conventional abuse cases mature.

13. From Generalists to Multidisciplinary Authorities

The future institutional model is likely to combine several professional disciplines.

The OECD has expressly identified the growing importance of business strategy, specialised sector knowledge and IT/data-science expertise within competition authorities.

14. International Cooperation as Institutional Capacity

Modern competition problems rarely remain within one jurisdiction.

A digital platform may:

• be incorporated in one country;
• store data in another;
• operate infrastructure globally;
• serve consumers worldwide; and
• affect competitors in dozens of jurisdictions.

Therefore, institutional capacity increasingly includes international cooperation capacity.

Authorities require:

• information-sharing mechanisms;
• coordinated investigations;
• compatible procedural systems;
• common economic methodologies;
• confidentiality safeguards;
• cross-border merger coordination; and
• joint technical expertise.

The OECD has emphasised cooperation among competition authorities as digital markets evolve and enforcement becomes more technologically complex.

15. Cooperation With Other Regulators

The future competition authority cannot operate in isolation.

Important institutional partners include:

• data-protection authorities;
• consumer-protection agencies;
• telecommunications regulators;
• financial regulators;
• energy regulators;
• intellectual-property offices;
• cybersecurity agencies;
• AI regulators; and
• public-procurement authorities.

The Facebook case illustrates why such cooperation matters: the Bundeskartellamt worked closely with data-protection authorities when assessing Facebook's data practices.

16. Independence and Institutional Governance

Increasing powers also create a corresponding need for institutional safeguards.

Competition authorities should have:

1. Operational independence

Investigations should not be directed by regulated firms or short-term political considerations.

2. Transparent decision-making

Major enforcement decisions should provide clear reasoning and evidence.

3. Judicial review

Companies and affected parties must retain appropriate rights of appeal.

4. Procedural fairness

Authorities must provide:

• notice;
• access to relevant evidence;
• opportunity to respond;
• reasoned decisions; and
• proportional remedies.

5. Accountability

Authorities should remain subject to:

• parliamentary oversight;
• judicial scrutiny;
• budgetary accountability; and
• institutional reporting.

17. Future Institutional Model

A future competition authority could be structured around six principal pillars:

Pillar 1 — Competition Enforcement Division

Handles:

• cartels;
• abuse of dominance;
• restrictive agreements;
• traditional investigations.

Pillar 2 — Digital Markets Division

Handles:

• platforms;
• gatekeepers;
• app stores;
• search engines;
• digital advertising;
• marketplaces.

Pillar 3 — AI and Data Division

Handles:

• algorithms;
• AI models;
• training data;
• computational infrastructure;
• automated pricing.

Pillar 4 — Market Intelligence Division

Continuously monitors:

• concentration;
• acquisitions;
• entry;
• innovation;
• prices;
• market tipping;
• ecosystem expansion.

Pillar 5 — Digital Forensics Laboratory

Analyses:

• source code;
• databases;
• communications;
• algorithms;
• logs;
• APIs;
• technical architectures.

Pillar 6 — International Cooperation Division

Coordinates:

• cross-border investigations;
• merger reviews;
• information exchange;
• joint studies;
• international enforcement.

18. Ex-Ante and Ex-Post Institutional Capacity

The future authority is likely to combine two models.

Ex-post enforcement

Acts after suspected conduct occurs.

Examples:

• cartel enforcement;
• abuse-of-dominance investigations;
• merger review.

Ex-ante regulation

Acts before competitive harm becomes entrenched.

Examples include:

• gatekeeper obligations;
• interoperability;
• data-access rules;
• non-discrimination;
• platform conduct requirements.

The EU's Digital Markets Act illustrates this institutional evolution. The Commission maintains a dedicated gatekeeper framework covering companies including Alphabet, Amazon, Apple, Booking, ByteDance, Meta and Microsoft.

19. Continuous Compliance Monitoring

Future remedies cannot always be treated as one-time orders.

A platform might comply formally while changing its:

• algorithm;
• ranking system;
• API;
• interface;
• pricing architecture; or
• technical implementation.

Therefore, authorities may require continuous monitoring.

This could involve:

1. independent monitoring trustees;
2. technical audits;
3. periodic reporting;
4. access to relevant datasets;
5. compliance dashboards;
6. algorithmic testing;
7. consumer-impact assessment; and
8. rapid enforcement mechanisms.

20. Resource Capacity

Institutional capacity ultimately depends on resources.

OECD data indicate that, across the jurisdictions covered by its Competition Trends database, average competition budgets increased by 4.7% in real terms in 2023, while competition staff increased by approximately 3.1%. The OECD nevertheless cautions that increasing resources does not establish that authorities have sufficient resources.

Future budgeting therefore needs to account for:

• specialised salaries;
• technical infrastructure;
• secure computing;
• forensic software;
• data acquisition;
• expert witnesses;
• international cooperation;
• litigation;
• continuous market monitoring; and
• AI capabilities.

21. Capacity for Faster Enforcement

Traditional antitrust proceedings can take years.

That can be problematic in digital markets because:

A market may irreversibly change before the authority reaches a final decision.

Consequently, future authorities may require:

• interim measures;
• accelerated procedures;
• emergency investigations;
• provisional remedies;
• rapid information requests;
• temporary access requirements; and
• specialised digital proceedings.

The Microsoft/Activision investigation illustrates the importance of interim enforcement tools: the CMA issued an interim order during the merger process.

22. Institutional Capacity for Remedies

The future authority must evolve from an institution that merely identifies violations into one capable of engineering workable remedies.

For example:

Problem

A dominant platform controls an API.

Possible remedy

Mandatory API access.

But the authority must then determine:

• technical specifications;
• security standards;
• pricing;
• access eligibility;
• interoperability;
• monitoring;
• dispute resolution; and
• enforcement.

This requires technical expertise that conventional legal analysis alone cannot provide.

23. Future Challenges

Competition authorities are likely to face several major institutional challenges:

A. Technological asymmetry

Large technology companies may possess substantially greater technical resources than regulators.

B. Talent competition

Governments must compete with technology companies for:

• AI researchers;
• engineers;
• economists;
• data scientists.

C. Information asymmetry

Authorities often investigate systems whose internal architecture is controlled by the investigated company.

D. Regulatory fragmentation

Multiple regulators may possess overlapping jurisdiction.

E. Cross-border enforcement

Global firms can be affected simultaneously by numerous legal systems.

F. Remedy complexity

A remedy that appears legally simple may be technologically difficult to implement.

G. Institutional obsolescence

Technological change may make today's regulatory structure obsolete within a few years.

24. Future Institutional Capacities — A Framework

The future-ready competition authority can therefore be understood through the following model:

Detection Capacity
↓
Data and Market Intelligence
↓
Technical Investigation Capacity
↓
Algorithms + AI + Digital Forensics
↓
Economic Capacity
↓
Market Power + Innovation + Ecosystem Analysis
↓
Legal Capacity
↓
Antitrust + Digital Regulation + Sectoral Law
↓
Remedial Capacity
↓
Behavioural + Structural + Technical Remedies
↓
Monitoring Capacity
↓
Continuous Compliance
↓
International Capacity
↓
Cross-Border Cooperation

25. Key Case Laws and Institutional Lessons

26. Conclusion

The future of competition law will depend increasingly on the institutional capabilities of competition authorities, not merely on the wording of substantive antitrust rules.

The central transformation is from the traditional model of:

lawyer + economist + investigator

towards:

law + economics + data science + AI + engineering + sector expertise + digital forensics + international cooperation.

Recent OECD analysis confirms that competition authorities are already expanding resources and recognising the need for specialised technological and sectoral expertise.

The Facebook, Google Shopping, Qualcomm, Amazon, Meta/Giphy, Microsoft/Activision and Apple proceedings collectively demonstrate that future enforcement increasingly requires authorities to understand data, algorithms, platforms, intellectual property, cloud infrastructure, digital ecosystems and technological remedies.

Accordingly, the competition authority of the future is likely to become not simply an antitrust enforcement body, but a permanent market-intelligence, technology, economics, law and regulatory institution capable of detecting, investigating, remedying and monitoring competitive risks in rapidly changing markets.