CYIL vol. 12 (2021)

CYIL 12 (2021) The ROLE OF COMPETITION POLICY IN CYBERSECURITY Concerning anticompetitive agreements (Article 101 of the TFEU), the concept of a collective boycott would be relevant. 24 For example, undertakings sharing infrastructure may agree not to cooperate with certain undertakings; similarly, an association of undertakings preparing technical standards may set the criteria in such a way that certain undertakings cannot satisfy them. Similarly with regard to abuse of dominance (Article 102 of the TFEU), a dominant undertaking may exclude another undertaking by refusing to deal with it 25 or by discriminating against it. 26 Thus, in principle, undertakings’ conduct resulting in excluding other undertakings from the market may be contrary to competition law. It is nonetheless important to stress that in our scenario, the exclusion would be performed for cybersecurity reasons. It has been claimed that “ competition policy cannot be implemented in a vacuum ” 27 and that “[R]ules which, at first sight, reduce competition, but are necessary […] in order to enable market forces to function or to secure some other legitimate aim, should not be regarded as infringing the Community provisions on competition” . 28 In the past, it has been found that the competition law does not apply to practices which were necessary in order to attain legitimate goals in the area of social policy, 29 sport, 30 or environmental protection. 31 As has been summarised by the Court of Justice for the purposes of anticompetitive agreements (the same applies to abuse of dominance): 32 Not every agreement between undertakings or every decision of an association of undertakings which restricts the freedom of action of the parties or of one of them necessarily falls within the prohibition laid down in Article [101 (1) TFEU]. For the purposes of application of that provision to a particular case, account must first of all be taken of the overall context in which the decision of the association of undertakings was taken or produces its effects and, more specifically, of its objectives. It has then to be considered whether the consequential effects restrictive of competition are inherent in the pursuit of those objectives […] and are proportionate to them . 33 These criteria may arguably be met in case of exclusion of an undertaking from the market on the grounds of cybersecurity and thus, the corresponding conduct would not be considered to constitute a breach of competition law. Coming back to the state’s measure, prohibiting the undertakings from cooperating with other undertakings for cybersecurity reasons, as the undertakings’ conduct as such is not in 24 In detail, see WIJCKMANS, F., TUYTSCHAEVER, F. Horizontal Agreements and Cartels in EU Competition Law . Oxford University Press, 2015, p. 12. 25 GONZÁLEZ-DÍAZ, F. E., SNELDERS, R. EU Competition Law. Volume V. Abuse of Dominance under Article 102 TFEU. Claeys & Casteels Law Publishers, 2013, p. 385 et seq. 26 Ibid , p. 555 et seq. 27 MONTI, G. Article 81 EC and the public policy. Common Market Law Review , 2002 (5), p. 1057. 28 Opinion of the AG Cosmas in case C-51/96 and C-191/97 Christelle Deliège , ECLI:EU:C:1999:147, par. 110. 29 CJEUjudgement of 21September1999C-115/97–C-117/97 Brentjens’Handelsonderneming ,ECLI:EU:C:1999:434, pars. 56 and 57. 30 CJ EU judgement of 18 July 2026 C-519/04 P Meca-Medina , ECLI:EU:C:2006:492, par. 42. 31 Commission Decision of 24 January 1999 CECED (IV.F.1/36.718), part. 56. 32 For the purposes of Article 102 TFEU, the concept of objective justification as an exemption from prohibition has been developer. In detail, see e.g. GONZÁLEZ-DÍAZ, F. E., SNELDERS, R. ( op. cit. ), p. 156 et seq . 33 CJ EU judgement C-519/04 P Meca-Medina ( op. cit. ), par. 42.

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