EU ANTITRUST: HOT TOPICS & NEXT STEPS

Prague, Czechia

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

The main objective of the Electronic Communications Code is to promote competition in the provision of electronic communications networks and associated facilities [Article 3 [2B] Electronic Communications Code]. On the other hand, the main objective of the proposed Digital Markets Act is to ensure a fair and competitive digital economy, not competition per se . Therefore, the objective of the Digital Markets Act is wider and quite vague. It can be assumed that the fair and competitive digital economy should also include respecting competition rules, but this notion is too unclear to conclude that (Petit, N. 2021). There are also differences in the practical implementation of the rules. The Electronic Communications Code enables the application of ex ante rules only when the intervention is necessary to maintain effective competition. The proposed Digital Markets Act rules apply regardless of the state of the competition when the undertaking is designated as a gatekeeper. Additionally, there is a difference in the scope of the implementation of these rules. The Electronic Communications Code expressly states that the “regulatory authority shall choose the least intrusive way of addressing the problems identified in the market analysis” [Article 68 (2) Electronic Communications Code]. The proposed Digital Markets Act is less strict in the scope of the implementation of its rules. Article 7(5) states that the Commission “shall ensure that the measures are effective in achieving the objectives of the relevant obligation and proportionate in the specific circumstances.” The condition in the Electronic Communications Code of choosing the least intrusiveway ismuch stricter than the condition of effectiveness andproportionality. When the measure is effective and proportionate, it does not mean that it is also the least intrusive. There could be less intrusive measures, but the Commission does not need to consider them, when a more intrusive measure would meet the condition of effectiveness and proportionality. Both wordings consider that the measures should achieve the objectives of the regulations, but the wording stated in the Electronic Communications Code seems to be more appropriate since it prefers measures that least interfere with the rights of subjects. Thus, it can be concluded that the ex ante rules in the proposed Digital Markets Act are fundamentally different from the current ex ante competition regulation. Ex ante rules in the Electronic Communications Code are formulated per the current competition rules and seem to minimise the interference of the authorities to the rights of subjects. On the contrary, ex ante rules in the proposed Digital Markets Act (as mentioned in the previous section) are not formulated clearly, and the possible interferences of the authorities may be more intrusive.

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