Actual competition. Going digital and beyond

Over the last two years, during which I really got introduced to the competition law world, I copped onto at least three remarkable things. The first one is that there is a tendency for EU and national trustbusters and judges across the board to grasp at straws by sticking to a stale legal framework that has never been so clearly obsolete as it is now in the digital era. In stark contrast stands the second one, that is, the unprejudiced view that I’ve spotted in many not-always-so-young with the strange habit to think out the box. As a glimmer of hope in this paradoxical picture, the third is the realisation not only that innovative ideas may have more value than we think but also that they can be put forward by the same ‘disruptive’ means that are pushing the outer boundaries of the antitrust tectonic plate.

One doesn’t have to be Talcott Parsons to be aware of the social control function that law performs, but it is equally true that legal systems serve the needs of a changing society, and change has never been so fast and dramatic as it’s being during the two first decades of the new millennium. As it happens, the brutality of facts is shaking the foundations of many of the fundamental presumptions in which Articles 101 and 102 analytical frameworks rest. However, unfazed EU competition law, as it stands now, is closer to the mighty oak that ends up breaking in the storm of dizzying business and technological revolution rather than to Confucius’s green reed bending in the winds of change.

Indeed, as one the smartest lawyers I know (as an added bonus, she’s not specialised in competition) remarked once, such a facts-based field of law as is competition particularly needs to keep pace with reality. Only when I put more though into that brilliant tautology did I understand how painstakingly ignored it is and how necessary it is to counter that inertia. Consequently, I decided to launch this initiative with the purpose of doing my tiny bit for the bridging of the gap between, on the one hand, a moth-eaten framework insisted on by some die-hard, idle or just risk averse enforcers and, on the other, a new (or not so new) generation of antitrust lawyers willing to give their critical views on the way things are developing.

In a nutshell, my ultimate aim is to open the floor for peer debate on hot issues in EU and national competition law that I hope to trigger by commenting on recent enquires, judgements, decisions and other developments. Thus, I will try to cover the most topical cases and keep up with the headlines to the extent allowed by my real job. Of course, anyone is welcome to contribute any comments they feel like to this modest quest for antitrust law update that maybe one day (who knows?) will reach the right ears. At any rate, as Andy Warhol put it, ‘they always say time changes things, but you actually have to change them yourself’.

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