EU ANTITRUST: HOT TOPICS & NEXT STEPS

Prague, Czechia

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

protection of environment can be seen in exemptions under Article 101(3) TFEU, i.e., exempting from prohibition agreements contributing to the development and economic efficiencies, including saving sources. From this point of view, the position of competition law is quite passive, and it is rather “not-interfering” horizontal policies than foster them. Majcher and Robertson suggest more proactive approach when competition law sanctions anti-competitive behaviour that has negative impact on environment as a specific kind of harm (2021, pp. 23–24). This concept is really intriguing and can raise a deterrence effect of both forms of enforcement. In public law enforcement the concept of harm can be expanded to all types of harm, not merely economic harm and can have consequences in the setting of fines or accepting settlement. Since private enforcement of competition law is aimed to retrieve damages linked to individual harm, there a new type of private enforcement can developed. GA Kokott in the Otis case presented her thoughts on “political damage” in the case of bid rigging, i.e., harm caused to public good with possible parens patriae action. On the other hand, this enforcement of other policies via competition law resembles Facebook saga at German Federal competition authority which linked violation of data protection (Mazúr & Patakyová, 2019, p. 230; Petit, 2021, p. 535). This approach of punishing violation of other branches of law via competition law was not left without criticism (Sousa Ferro, 2017, p. 169). Indeed, the general clause of Article 102 TFEU is neither linked to certain type of form abuse nor harm, however, it shall still follow the ultimate goal – protection of internal market. 3.2 International trade defence via competition law In May 2021 the EC presented its proposal of the “Regulation on foreign subsidies distorting the internal market” that plans to protect the EU’s internal market against foreign subsidies. This new proposal includes three so-called modules: a set of measures of general application that governs the ex officio review of subsidies (Module 1), specific rules on concentrations (Module 2) and specific rules in public procurement in the EU (Module 3). Thus, it does not use “traditional” measures of defence in international trade but imposing additional obligations of beneficiaries of such subsidies, in particular in the context of merger control and public procurement (Nagy, 2021). This measure can prevent beneficiaries of foreign subsidies to participate in economic activities within the internal market, not merely import subsidized goods, as traditional international trade law does. Without proper disclosure of foreign subsidies and removal or countervailing its harmful effect on internal market, the company cannot successfully comply with rules on merger control. Therefore, the internal market, EU industry, and domestic undertakings are indirectly protected against foreign subsidies by two types of competition scrutiny. First, it can block the merger,

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