CELS Lunchtime Seminar: 'Digital Markets and Democracy: EU Competition Law in Search of a New Role'

Speaker: Professor Thomas Ackermann, LMU Munich

Abstract: In recent years, EU competition law has fallen into a crisis for two interrelated reasons. Firstly, despite the Commission's best efforts, it has proved incapable of dealing quickly and effectively with competition issues in digital markets. To overcome these shortcomings, the EU introduced a regulation of digital gatekeepers in the Digital Markets Act. Secondly, the orientation of EU competition law towards the goal of consumer welfare, which has shaped the last decades, is increasingly reaching its limits and finding less and less support. Inspired by the ideas of the New Brandeis School in the United States, but also drawing on ordoliberal concepts from Germany, many are therefore calling for a return to the original purpose of competition law: to curb corporate power in order to protect the freedom of individuals and their ability to participate in democratic processes. In particular, the CJEU’s Meta judgment seems to lend itself to such a reorientation of EU antitrust law, which could also improve its effectiveness in digital markets. Much ink has already been spilled on the question of whether and how competition law can generally be used to serve democracy and, in particular, to protect democracy from threats posed by digital giants. However, some constitutional pecularities of EU competition law have received less attention so far. Unlike competition laws in the rest of the world, Articles 101 and 102 TFEU are constitutionally hard-wired. They are part of an exclusive competence of the EU (Art. 3(1)(b) TFEU) that largely marginalises Member States. Furthermore, the competition rules leave only limited scope for democratically legitimate policy choices at the EU level (Art. 103 TFEU). Against this background, it will be argued that EU competition law should not be construed as a panacea for the problems of digital power, but as a regulatory backdrop that must be sufficiently flexible to be compatible with specific internal market instruments that address the particular problems of digital power.

A sandwich lunch precedes the talk in G26 at 12.30pm. This event is a hybrid event - to attend online you must register via Zoom.

Enquiries to: cels@law.cam.ac.uk