Future-Mapping the Three Dimensions of EU Competition Law: Legislative Proposals and Covid-19 Framework

Journal of Comparative and International Law, Volume 7:2, December 2020

Revised TILEC Discussion Paper No. 2020-11

23 Pages Posted: 19 Feb 2021

Abstract

European Union (EU) competition law is traditionally understood as the interaction of two dimensions: judicial control and enforcement. This article considers a third dimension: the normative understanding behind this dynamic. It uses these dimensions to analyse how competition law is affected by the proposals of new legislation and the temporary framework for justifying cooperation due to COVID-19 advanced by the European Commission. It finds, in relation to the proposals focus on the digital sector, that judicial control has posed no significant constraint on the findings of abuse of dominance in the Google decisions. This drastically reduces the enforcement gap referred by the proposed legislation. It is the Commission guidance which nominally constraints enforcement by pursuing an effects-based approach, even though this has not been followed by the Google decisions. The Commission guidance further limits justification of anti-competitive behaviour to consumer welfare, from which the temporary framework for COVID-19 also departs. The article therefore concludes that the Commission’s initiatives are not the result of ineffective enforcement, as they themselves suggest, but from normative breaks with the notions of abuse and consumer welfare. The future of EU competition law will depend on the extent of these breaks.

Keywords: EU Competition Law, Modernisation, Article 101 TFEU, Article 102 TFEU, Intel, Google Search, Google Android, New Competition Tool, Regulatory Instrument for Gatekeeper Platforms, Temporary Framework for Cooperation due to COVID-19

JEL Classification: K20, K21, L41, L50

Suggested Citation

Costa-Cabral, Francisco, Future-Mapping the Three Dimensions of EU Competition Law: Legislative Proposals and Covid-19 Framework. Journal of Comparative and International Law, Volume 7:2, December 2020, Revised TILEC Discussion Paper No. 2020-11, Available at SSRN: https://ssrn.com/abstract=3788248

Francisco Costa-Cabral (Contact Author)

Tilburg Law and Economics Center (TILEC) ( email )

Warandelaan 2
Tilburg, 5000 LE
Netherlands

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