Digitálne platformy: súťažné právo verzus regulácia ex ante

Kalesná, Katarína; Patakyová, Mária

doi:10.31577/pravnyobzor.2021.1.02

pravnyobzor

2021

DOI: 10.31577/pravnyobzor.2021.1.02

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Digitálne platformy: súťažné právo verzus regulácia ex ante

Katarína Kalesná¹,

Mária Patakyová²

Abstract: Digital Platforms: Competition Law Versus Ex Ante Regulation. Digital age has brought many challenges for legal regulation. One of vividly discussed issue is a question on possible regulation of digital platforms. Digital platforms have had an impact within business sphere as well as broader socio-political impact. This article aspires to contribute to the discussion on regulation of digital platform, in particular it explores application of competition law and regulation ex ante. It asks to what extent can co… Show more

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Efficiencies under the Digital Markets Act – Is There Space for the Rule of Reason?

Blažo¹

2023

Auc Iuridica

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The aim of this paper is to evaluate, if competition-like efficiencies of European-style rule of reason shall apply also in the context of the ex-ante regulation by the DMA. The rationale of such consideration lies in the concept of proportionality of the EU regulation and the assumption that EU law cannot proscribe behaviour with beneficial outcomes and effects that does not have negative consequences on the internal market outweighing the positive effects. The analysis is divided into three parts in this paper: position of the rule of law and the per se prohibition in the legal development of the EU competition law, the relationship between the DMA and competition law, including competition-based efficiencies brought in digital market cases and finally the per se prohibition included in the DMA. The analysis of the development of the case law showed that in the EU competition law the principle of per se prohibitions was never accepted and the CJEU accepted justifications outside the text of the statutory exemptions. Even though the aim of the DMA may be the introduction of a per se prohibition in order to facilitate the Commission’s enforcement, it cannot be surprising if the CJ EU will, in some case in the future, follow the path of the EU-style rule of reason in the framework of the DMA as well on the basis of proportionality principle. The lesson learned from application of rule of reason in the context of agreements restricting competition or as a specific form of objective justification in the context of abuse of dominant position does not undermine effectiveness of competition law. The quasi per se concept can satisfy both: it shows that it is not probable that such a behaviour will be allowed and at the same time it dodges proportionality objections because the prohibition is not, at least theoretically, absolutely, per se.

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Efficiencies under the Digital Markets Act – Is There Space for the Rule of Reason?

Blažo¹

2023

Auc Iuridica

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The Digital Markets acts: Between market regulation, competition rules and unfair trade practices rules

Blažo¹

2022

Strani pravni život

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In 2020 the European Commission presented its legislative package aimed to deal with new challenges for the internal market stemming from development on digital markets and alleged abuses and anticompetitive practices therein, including the Digital Markets Act (DMA). The aim of this paper is not to evaluate content of the DMA itself, but to evaluate the position of the DMA in the context of other market sector-oriented regulations , rules on unfair trade practices, competition rules as well as fitness of legal basis and observance of rule of law safeguards. As the DMA proposal departed from competition law legal basis enshrined in Art. 101 et seq. of the Treaty on the Functioning of the European Union, it paved the way for the possibility to impose sanction under both regimes. This possibility of double sanctions and necessity for check of proportionality in all actions of the Commission as well as in imposition of fines constitute one of the most relevant shortcomings from the "constitutional" point of view of position of the DMA in the EU legal framework. As it is argued in this paper, without more synchronization with competition regulatory regimes, the DMA proposal contains elements that can, at the end of the day, diminish its legal effectiveness via subsequent judicial battles.

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Digitálne platformy: súťažné právo verzus regulácia ex ante

Cited by 2 publications

References 1 publication

Efficiencies under the Digital Markets Act – Is There Space for the Rule of Reason?

Efficiencies under the Digital Markets Act – Is There Space for the Rule of Reason?

The Digital Markets acts: Between market regulation, competition rules and unfair trade practices rules

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