Competition Law at the Digital Crossroads: Recent Development in the EU Digital Economy and Implications for Investment
O A
L - H - UoS
Abstract
This paper aims to re-classify the taxonomy of goals of European competition in law in light of the contemporary debates on the role of industrial policy considerations in scrutinising cases involving (potential) national champions. The second aim is to assess the newly emerging regulatory climate in Europe from the perspective of its attractiveness for global investors. Until very recently, the discussions on the goals of competition law were seen as mainly academic, focusing primarily on very nuanced discrepancies in interpreting pretty much consensually agreed formulas. Those disagreeing with the conventional wisdom of ‘the more economic approach’ and its neoclassical economic apparatus were placed on the margins of the discipline, labelled heterodox, eccentric, retrograde if not esoteric. However, over the latest decade, several rather independent and concurrent events have triggered a set of tectonic, kaleidoscopic changes to the constellation of factors defining and interpreting the focus of (European) competition policy and law. Among those most important factors are economic crisis 2008 shading some doubts on the omnipotence of the mainstream economics to predict, explain and solve macro- and microeconomic problems; the digitisation and uncontrolled spread of the power of Big Tech; exponential growth of undertakings having strong economic links with Chinese, Russian and some other states with hybrid models of economic governance; the geopolitical crisis of the EU identity epitomised in the phenomenon of Brexit; the raise of the post-truth populism and radicalisation of political elites in most of established and emerging liberal democracies; the shift of the rhetoric and vocabulary of international trade from ‘cooperation’ and ‘development’ to ‘national interests’ and ‘trade wars’. The discussion on goals of competition policy has turned quickly from what until recently appeared to be a settled, technical area to a cacophony of assumptions and theories talking chiefly past each other, multiplying thereby uncertainty, perplexity and confusion. The aim of this paper is threefold: 1) To describe the most vocal and appealing contemporary theories addressing the issue of goals of (European) competition policy and to offer some taxonomy, some a priori hierarchical links between those theories. 2) To provide an outlook for the recent development in the area of the digital economy, focusing both on analysing the most paradigmatic cases and regulatory initiatives. 3) To assess the current regulatory climate from the perspective of investment development.
Keywords
Investment, Competition Law, Digital Economy, Industrial Policy, International Trade, Legal Philosophy
