EU ANTITRUST: HOT TOPICS & NEXT STEPS

Prague, Czechia

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

In this context, competition law can face challenges. On the one hand, there is understanding of competition protection as an economic concept and link to requests for legal “purity”. On the other hand, competition law can serve as an effective tool for a solution of social and legal problems that were not originally aimed to be covered by competition law (e.g., data protection, foreign direct investment, development, and environmental agenda). And finally, in some areas it is claimed that competition law is not effective enough to protect the social purpose of market mechanism, e.g., B2B unfair trade practices, and therefore it is bypassed by specific legislation. The paper will assess the flexibility of concepts of competition law to cover unexpected spheres of societal goals and limits thereof and also flexibility to cover areas that are claimed to be uncovered by competition law. 2. Bypassing Competition Law Optimistically, EU competition law is considered flexible enough to accommodate the changing character of economy, including digitalization (Ezrachi, 2018, p. 21). There are not so many areas of EU law (and indirectly law of the Member States) that can benefit from more than five decades of legal development, practice of the European Commission (EC) and case law of the Court of Justice of the European Union (CJ EU notwithstanding its name in different periods). However, competition law is facing “shortcuts” by recent regulatory legislation and proposal introduced to cover areas that are not covered properly by competition law (at least claimed) or ex-post competition solution are not effective enough. Unfair business-to-business (B2B) practices fit into the first group. EU legislation as well as the legislation of the Member States are developing a system per se prohibited clauses in business relations to counterweight unbalanced bargaining power in cases of “substantial market power” of one of the parties. The rationale of such a legislation is stemming from the narrowness of the concept of abuse of dominant position at relevant market that does not cover “ inter-partes ” abuses (i.e., not abusive practice vis-à-vis the whole relevant market). The second type of a “bypass” of EU competition law by specific regulation can be identified in current proposal related to digital market regulation that introduces some regulatory duties and prohibitions to so-called gatekeepers in order to avoid distortion of fairness of competition on EU digital market. 2.1 Unfair B2B practices Regulation of B2B unfair trade practices can be split into two groups: EU-level regulations and transposition thereof into legal orders of the Member States and purely national regulation. These two groups must be analysed separately because of their different legislative position vis-à-vis EU competition law. While

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