Four experts on antitrust in Europe discuss the trends and cases they’re watching in 2024.
Cristina Caffarra, Expert Economist
In Brussels, 2024 will be mostly a year of “clearing out” (no new policy initiatives), as well as “legacy setting” ahead of European elections in June and the new Commission settling in at the end of the year. Top priority for the Directorate General for Competition will be to pick up from the dead a number of investigations that have been on the books for multiple years (Apple Music Streaming and Microsoft Teams in the first place, plus a few more – Google Adtech, Meta Marketplace). The purpose will be as much as possible to clear the decks and end on a high note by projecting that: antitrust enforcement is alive and well, as is the progress of Digital Markets Act regulation. Meanwhile, there will be pressure to show that “the DMA works,” digital regulation is rolling forward, and Big Tech concessions are not just performative. As the DMA must be seen to work, there will be heavy messaging and investigations being announced following the submission of “compliance reports.”
There will be pressure for renovation and a more “joined up” approach with other policy tools – to assist a vision for the next Commission’s mandate. The traditional posture whereby DG Competition has been the “defender of the faith” against national champions and bad industrial policy, as well as detached from all trade things, will come under strain. Paradigm shifts in the United States across all these instruments (with strong “antimonopoly” underpinnings) are going to be influential in the discussion and resonate strongly with key Member States (especially France and to some extent Germany). Questions of “what is going to put points on GDP,” re-industrialization, and strategic autonomy will be leitmotifs, and there will be tension with the traditional approach to competition enforcement defending against lobbying, consolidation, and state aid.
There is going to be a bigger conversation on “theory of change” in digital: if digital regulation only goes so far, what is the vision for greater European strategic autonomy? Anticipate more discussion of “European” initiatives around public digital infrastructure investment, sovereign funds, pumping up European startups. Much will be business as usual (telecoms, airlines), and the cadence of merger enforcement will depend on whether M&A rebounds. There will also be pressure to keep up with the U.S. agencies in “progressive” enforcement, especially in pharma and digital. Ecosystem theories will also play a bigger role.
Alessia D’Amico, Utrecht University School of Law
One trend that I believe will define European competition law in 2024 is the emphasis on a better integration of competition law and data protection. Two developments in 2023 that may serve as catalysts for more collaboration between competition and data protection authorities include the Meta case and the Digital Markets Act.
In the Meta judgment, the European Court of Justice ruled that a competition authority may find, when investigating an abuse of a dominance, that an undertaking has acted contrary to data protection regulation. When doing so, however, the authority cannot depart from a decision taken by a data protection authority and must abide by the duty of sincere cooperation, which compels the EU and its member states to assist each other in fulfilling obligations arising from EU treatises. Thus, competition authorities might need to consult and seek the cooperation of data protection authorities.
The Digital Markets Act imposes rules for gatekeepers to ensure contestability and fairness of digital markets. While it primarily complements competition law, it also includes provisions relating to personal data processing. An example is the consent requirement under Article 5(2), which directly links to the General Data Protection Regulation (GDPR).
These developments have already resulted in increased cooperation efforts in 2023. The European Data Protection Board has created a taskforce on the interplay between data protection, competition and consumer protection. The mandate of this taskforce is to provide guidance, expertise, and resources on the interaction between these areas of law. At the national level, the French data protection and competition authorities signed a cooperation declaration, explaining how they will integrate elements from each other in their analyses.
These collaboration initiatives are key to the development of an enforcement strategy fit for the digital age. I expect other authorities to follow the lead, as they are confronted with more cases dealing with the complex interaction between competition law and data protection.
Inge Graef, Tilburg Law School
A trend I expect to define EU competition law in 2024 is the development of market investigation tools at the national level. At the time the Digital Markets Act was being conceived in 2020, the adoption of a “New Competition Tool” was also considered by the European Commission but eventually did not make it into the legislative proposal. The New Competition Tool and the current national variations are inspired by the UK market investigation tool that allows the UK Competition & Markets Authority to impose remedies to address market failures irrespective of whether a violation of the competition (or consumer) rules can be established. Because of increasing market concentration, several Member States have started to show appetite for designing such a tool at the national level.
The German competition authority, the Bundeskartellamt, was provided with a market investigation tool in summer 2023 when the German legislature adopted the 11th amendment to the Act against Restraints of Competition. And the Netherlands and Sweden are now in the process of examining the need and desirability of having a market investigation tool in their jurisdictions.
Should such a tool indeed be introduced in one or more member states beyond Germany, this would lead to the situation where several national competition authorities have a more expansive and powerful toolkit at their disposal than some of their counterparts and the European Commission. This then raises the question whether there is a need to harmonize initiatives or even to adopt an EU-wide market investigation tool. The planned review of Regulation 1/2003 in 2024, laying down the institutional framework of EU competition enforcement, can play a role in this regard. This trend also shows that, beyond the European Commission, member states and national competition authorities remain key actors advancing the development of EU competition law.
Filippo Lancieri, ETH Zurich Center for Law & Economics and the Stigler Center at the University of Chicago Booth School of Business
2024 will be a big year for competition policy. We will have court rulings on many high-profile cases in the United States and witness the entry into force of the European Digital Markets Act—both with the potential to reshape digital markets.
Flying under the radar of the broader competition policy community, however, is the landmark Digital Services Act (DSA). The DSA is a new regulation that sets minimum content moderation and other obligations for all sorts of online businesses. For example, it requires companies to share multiple sources of proprietary data with civil society, regulators, and, more importantly, vetted researchers. These transparency obligations have the power to finally crack open the black box of the digital world.
The DSA also requires many different types of digital platforms to establish complaint-handling systems, set public objective parameters for recommender systems, diminish their use of dark patterns, publish reports on their activities, and even requires online marketplaces to vet their business partners. Very Large Online Platforms (VLOPs), a group that includes not only the usual suspects but also Wikipedia and even PornHub, must identify and take active steps to mitigate so-called “systemic risks.” These broad risks range from the protection of democracy to the safeguarding of intellectual property rights, to the policing of hate speech to the protection of consumers. Indeed, for VLOPs, the DSA is already a reality—X, formerly Twitter, is under investigation for failing to restrict “the dissemination of illegal content in the context of Hamas’ terrorist attacks against Israel.” Fines can reach up to 6% of companies’ annual worldwide turnovers.
In other words, the DSA empowers the European Commission and dozens of regulators within EU member states to potentially redefine much of the online experience (what is a UI that employs illegal dark patterns that prevent users from “making free and informed decisions”? The European Commission will determine in further guidelines). For many, the DSA adds basic rules to an otherwise abusive online world, protecting fundamental rights. For others, it is a power grab. If adequately enforced, the DSA will set new parameters for how companies interact with users and compete online.
Articles represent the opinions of their writers, not necessarily those of ProMarket, the University of Chicago, the Booth School of Business, or its faculty.