The European Commission has published a consultation exploring the need for a possible new competition tool that would allow addressing structural competition problems in a timely and effective manner. It has also published an inception impact assessment.
The need for a new competition tool
The Commission has considered the role of competition policy over the past few years, especially in relation to an increasingly digital and globalised world, which it says must become greener. This accompanies a broader policy debate about the need for changes to the current competition law framework so that enforcement agencies around the globe can continue to preserve the competitiveness of markets.
In this context the Commission has concluded that ensuring the contestability and fair functioning of markets across the economy is likely to require a holistic and comprehensive approach, with an emphasis on the following three areas:
- continued enforcement of the existing competition rules under Articles 101 and 102 of the Treaty on the Functioning of the European Union, including the use of interim measures and restorative remedies, where appropriate;
- possible ex-ante regulation of digital platforms, including additional requirements for those that play a gatekeeper role; and
- a possible new competition tool to deal with structural competition problems across markets which cannot be tackled or addressed in the most effective manner on the basis of the current competition rules (eg preventing markets from tipping).
The Commission has identified certain structural competition problems that the current rules cannot tackle or cannot address in the most effective manner.
The new competition tool should enable the Commission to address gaps in the current competition rules and to intervene against structural competition problems across markets in a timely and effective manner.
After establishing a structural competition problem through a market investigation, the new tool should allow the Commission to impose behavioural and where appropriate, structural remedies. However, there would be no finding of an infringement, nor would any fines be imposed on the market participants.
Next steps
The consultation ends on 8 September 2020. The inception impact assessment is open for comments until 30 June 2020. Subject to the outcome of the impact assessment, a legislative proposal is scheduled for Q4/2020.
