EU ANTITRUST: HOT TOPICS & NEXT STEPS

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Prague, Czechia

ideology of competition as an indispensable self-regulatory tool and that I am value-biased. This is not cynicism – rather, I see cynicism it in the opposite approach – in obscuring value bias. AT, which is supposed to protect competition, has the misfortune of being highly political in nature. But despite that – AT is equipped to deal with one type of specialised market failures only – distortion of competition. However, this does not qualify it to step in to solve completely different market failures or to solve policy assignments. Adding “sustainability” aspects to the AT is an example of purely political decision, that should, if at all, only bemade on the basis of a thorough discussion and evaluation (Studienvereinigung, p. 25). Despite being enshrined in legislation, fluctuations in value orientation manifest themselves in the interpretation of legislation, which is sometimes functionally comparable to amending legislation. Even independent civil servants and independent judges carry value ideas, professional opinions, and biases, and can shift the de facto meaning of legal norms. This is particularly striking in the case of competition law rules, which are characterised by vague and undefined (and usually also undefinable by law) concepts, allowing for considerable restriction and expansion in administrative and judicial discretion. AT is already facing unprecedented challenges related to the digitalisation of the economy and the rapid developments in information technologies. These in themselves pose major questions on the rationale, content, and methods of application of AT, which has emerged and evolved in fundamentally different conditions; it is even argued, that we are facing the end of competition as we know it. The big question is whether the objectives of AT should be changed or supplemented in the context of digitalization (for example, adding privacy and data protection), or whether the objectives remain the same but only the analytical tools used by AT will change (Koehler, p. 200). This “information-digitisation” challenge is being tackled in theory and responded to by legislation – most recently by the European Commission’s draft Digital Markets Act (DMA) and Digital Services Act (DSA) (Ezrachi, Stucke, p. 203; Bejček, 2018, p.VIII; Bejček, 2020b, p. 399; Podszun, p. 104 ff; Eifert et al. , p. 988) or the regulation in § 19a of the GermanGesetz gegenWettbewerbsbeschränkungen (GWB), according to which a conduct is prohibited without having to prove that the platform concerned is dominant on a given market and without having to resort to proven abusive conduct (Haucap, Schweitzer, p. 1). In addition to this unprecedented challenge, we can observe increasingly strong pressures to expand the catalogue of broader societal goals that – as some activists believe – AT should pursue and support. We are witnessing a fundamental rethinking of AT that will include an assessment of the relationships between it and media, sustainability, human rights, gender, privacy (Capobianco, p. 387). Even in the USA, as the cradle

350