This introductory article sets competition law in the transformative context. It explains that competition law is not only something that is transformed, but that is transformative in its own right. A twofold argument is advanced: first, that competition law has an important role to play in ensuring that the wide range of transitions in play today (i.e. green, digital and industrial) are both just and enduring, and second that there are significant lessons to be learnt from economic transformations that have already taken place in Central and Eastern European (CEE) countries and countries from the Global South. To this end, the article explains that the manner in which CEE and selected Global South countries designed and enforced their competition laws allowed competition law to play a meaningful role not only as an instrument but also as an architect of their economic transformations. Against this background, the EU's openness to these transitional experiences is desirable not only because it would supplement the transitions within the EU but also because it will facilitate the pathway to similar transitions in other non-European jurisdictions that look to the EU for guidance. In terms of structure, first, the article examines the role that competition law can play in the course of transitions. Second, it examines the possibilities and limitations of the role competition law has already played in the transitions in CEE and Global South countries. It ends by inviting everyone to read the articles in the collection to gain a deeper insight into these issues.
Seeing the EU roughly as a political system designed to remove the most essential political decisions from democratic control, while in a large part abiding by legal frameworks, we could speak about an opposition between technocratic legalism and democracy. At best, the EU offers a democracy of means, with limited capacity to affect the ends of the project. Most recently, even this limited democracy came under attack through a further reduction of transparency, a proliferation of omnibus legislation and constant executive overreach. In its current emanation, 'integration through law' aims to shield all aspects of governance not only from democratic but also legal contestation. It thereby structurally prioritises 'supremacy', 'direct effect', 'mutual trust' and other procedural aspects of its own functioning over the essential foundations of justice, democratic citizenship based on equality and dignity and human rights protection. We could thus also speak of 'supremacy rule of law', which might or might not be an attack on the essential aspects of legality and justice, removing the added value of the rule of law as such. Consequently, distilling the essence of the 'social contract' in Europe today, one arrives at a bundle of oxymorons: The EU's supremacy rule of law is in the service of an ever fading depoliticised democracy of means.
This article examines how climate change and climate-related policies can destabilise the EU social contract. The article uses the welfare-state lens that places social protection at the core of a feasible and legitimate green transition to understand this destabilisation. Climate change is understood as both an external stressor, through escalating physical impacts, and an internal disruptor, through mitigation and adaptation policies that reorder labour markets, household budgets and territorial development, thereby generating new social risks, distributive conflicts and constitutional pressures on EU governance and legitimacy. The analysis provided in this article distinguishes between (i) implementation gaps, by which the EU social contract fails to deliver on its own promises of security, prosperity, equity and solidarity and voice and participation under climate stress, and (ii) conceptual gaps, which explain how growth dependence, anthropocentrism, presentism and EU-bounded justice make the current EU social contract ill-suited to the climate challenge. In response, the article outlines how the EU eco-social contract could be operationalised, shifting from growth-dependent welfare to a resilient one and strengthening the Union's commitment of leaving no one behind through more robust, integrated social-protection instruments that can buffer climate shocks while enabling fair structural change.
This article revisits social contract theory through a dialogue between Jule Goikoetxea Mentxaka and Antoni Abat i Ninet, questioning whether classical and contemporary contractarianism can account for structural forms of domination that precede and shape consent. Drawing on feminist, Marxist, decolonial and materialist critiques, it challenges the liberal opposition between rational consent and coercion. Using concepts such as social control, symbolic violence, social reproduction and the sexual and colonial contracts, the article shows how gendered, racialised and class-based power relations condition legal and political obligations beyond the autonomous individual. From a jurisprudential and EU constitutional law perspective, it explores whether an explicit EU social contract could confront, rather than reproduce, these dynamics. The article argues that deliberation structured as critique and counter-critique may provide a more inclusive, transparent and democratically legitimate foundation for rethinking political association in the European Union.
In this article, I examine the European social contract as a political discourse. The concept has emerged as a catchy but politically-laden concept within EU politics during Europe's polycrisis period. It has been employed by practitioners, civil society actors and politicians, with each referring to different kinds of contracts and often mobilising it for different political purposes. Here, I explore the economic, green, progressive and nationalist accounts of the social contract, and suggest that the social contract has proved to be an effective tool for political and social actors to articulate their political visions concerning Europe. Whereas I analyse such discursive accounts of the social contract by resorting to the poststructural discourse theory of Ernesto Laclau and Chantal Mouffe, I find inspiration in ontological security studies in International Relations to unpack its affective dimension, namely, how it may serve to manage and direct collective anxiety and fear through narratives of continuity, stability and renewal.
This article argues that the proliferation of goals in competition law-from efficiency and consumer welfare to inclusion, transformation and sustainability-cannot be coherently pursued without a guiding normative framework. Using South Africa as a case study, it shows how ambitious statutory objectives, left without such a framework, have produced fragmented jurisprudence: Some decisions retreat to economic orthodoxy, others invoke public interest without principled integration. Drawing on Ronald Dworkin's theory of constructive interpretation, it contends that competition law, like all law, must be interpreted in its best moral light, situated within the constitutional order that gives it purpose. Without this normative anchor, expanded mandates risk incoherence as global regimes seek to move beyond the narrow confines of consumer welfare.
Competition law serves not only to regulate markets but also to construct and deepen them, particularly during transitions from centrally planned or heavily regulated to market economies. Its significance is both economic and political: Since its inception, competition law has sought to prevent concentrated economic power from distorting the functioning of democracy. This article explores how competition law shapes democratic transitions and democratic erosion. It puts forward that competition law supports democratisation by constraining powerful economic interests, reinforcing the separation of powers through enforcement and advocacy by independent agencies and strengthening state capacity. Conversely, authoritarian actors may instrumentalise competition law to entrench their power, reward allies and suppress opposition. Democratic erosion, in turn, undermines the autonomy of competition agencies and their enforcement efforts. The article draws on economic and democratic transitions in Central and Eastern Europe, Turkey and Latin America and charts recent cases of democratic decline in these contexts to illustrate its arguments.
Despite the influence of ordoliberalism in EU law, the mutual feedback between market power and political influence of dominant corporations has not become an explicit consideration in competition law enforcement and has remained rather in the background as an implicit rationale. If the threats to competition posed by regulatory capture are to be addressed, such a mutual feedback loop should become an explicit part of the analysis in competition law cases. This article proposes a factors test in order to determine when the exercise of a company's political rights has degenerated into a scenario of heightened risk of regulatory capture. The factors of the test are drawn from the main tenets of the extant literature on lobbying in the EU that describe the dynamics of how stakeholders gain access to the ears of policymakers. Once a heightened risk of regulatory capture is established, this article argues that specific instances of lobbying for a defined policy proposal can be covered by Arts. 101 and 102 TFEU. The requirement of a heightened risk of regulatory capture is designed to align the prosecution of anticompetitive lobbying with the CJEU's case law on abuse of rights as an abuse of dominance, following from AstraZeneca. When corporations aim to capture areas of public policy, they abuse their political rights and can therefore be subjected to competition law liability. In this way, competition law enforcement can complement other areas of public policy aimed at preventing market distortions caused by political influence, such as transparency obligations of corporate political activity and state aid laws.
This paper argues for the recognition of economic dependence as a relevant concept within EU competition law, moving beyond the traditional-yet limited-dominance-based framework of Article 102 TFEU. Comparative analysis shows that this, or an equivalent concept, is already embedded in the domestic competition regimes of several EU Member States, as well as in Japan and South Korea, to address severe imbalances of bargaining power in vertical commercial relationships that may distort the competitive process below the dominance threshold. Whereas the DMA embodies a regulatory response to forms of collective dependence linked to gatekeepers, its limited scope leaves many problematic scenarios unaddressed. In the context of the ongoing evaluation of Regulation 1/2003, introducing economic dependence at EU level would offer a more comprehensive response to contemporary economic power, in line with EU constitutional values, while enhancing internal coherence and promoting normative convergence with like-minded democracies.
This paper engages with the increasing concern that competition law can no longer concentrate exclusively on a narrow focus on price increases and output diminution. Within the context of growing global inequality and the exponential increase in economic power in the hands of a few, there is a need to develop a coherent jurisprudence capable of addressing manifest abuses of economic power. These challenges are not confined to any single jurisdiction. One particularly instructive response can be found in South Africa. Faced with an Apartheid-shaped economy that reflected this global problem, South Africa responded with legislation that expanded the scope of competition law to embrace a range of defined public interest concerns. In analysing the key developments of the public interest jurisprudence that has emerged in response to this legislation, this paper draws on the South African experience as a source of insight for other jurisdictions-including the European Union-seeking to develop a coherent, yet expansive, competition law for the 21st century.
Academic research is increasingly questioning whether the goals of competition law should extend beyond the traditional focus on economic efficiency and consumer welfare to include non-economic issues such as social justice, democracy, environmental sustainability and equality. In this regard, the African experience is particularly valuable since public interest considerations (PICs) are a feature of merger control regimes in many African countries. After an analysis of PICs in Africa, the paper zooms in on South Africa's extensive experience in the field, particularly its legal test for determining when PICs are justified in merger assessment and offers recommendations that could inform other countries. Drawing on the South Africa merger assessment, this paper recommends that PICs and the competition standard be analysed separately but in an interrelated manner, as they complement each other. The likely effect of the merger on specific public interests must be identified and considered only when it is substantial and linked to the merger. Additionally, a merger should be prohibited only if the proposed remedies seeking to address the negative effects on the specific PIC are inadequate, inappropriate, disproportionate or unenforceable. Importantly, when PICs collide, competition agencies should balance each public interest against the others, focusing on whether the likely effect is substantial or whether the remedies are inadequate. In sum, competition agencies should adopt public-interest merger guidelines that provide businesses with the necessary guidance on the legal test and procedures, enhancing legal certainty and attracting investment.
EU antitrust is at the crossroads. It faces calls to be more supportive of corporate sustainability initiatives and, since the publication of the Draghi Report, increased pressure not to stand in the way of the global competitiveness of European industries. This article develops a pragmatic plan to reap the full environmental potential of EU competition policy. It draws attention to the instrumental and institutional constraints encountered when actively pursuing sustainability through antitrust. Relying on the theory of economic policy and from a pro-enforcement standpoint, the article ponders how the instruments and principles devised in the ongoing antitrust reform may be used to encourage sustainable technology and, in turn, boost growth. The aim is to find a path towards an eco-friendly yet effective competition policy.
The European Whistleblowing Directive is one of the most consequential acts of Union law in the last decade and has created lasting effects across the European Union. After almost all Member States have failed to meet the transposition deadline of 17 December 2021, the limits of a Directive's direct effects as a means to enforce Union law have once again become apparent both to the public as well as on an institutional level. The following analysis will outline the consequences, costs and complications caused by late transposition, why the traditional approach of EU institutions towards Member States' deliberate inaction falls within a temporal void of the enforcement of Union law and how changing the method of calculating sanctions in infringement proceedings could address the problem.
As the United States retreats from global rule-making, the European Union (EU) must decide whether to shape global legal regimes actively or rely on its market power. Optimists claim that EU norms spread passively as a result of the Brussels Effect (BE), while sceptics point to transnational processes such as conditionality, policy learning and hybridization-core to Transnational Legal Orders (TLO) theory. This article tests these competing explanations in a doubly most likely case: competition policy, where BE is seen as pervasive, and Singapore, cited as a model BE case. The findings support TLO theory over BE. Although Singapore's competition law includes EU-like provisions, these are not the result of BE-style diffusion but emerge from broader transnational interactions. This suggests that the EU cannot rely on passive regulatory spillovers to extend its legal influence. Active engagement remains necessary to sustain global convergence with EU norms.
This paper explores the evolving role of participatory enforcement in combating economic crimes, focusing on tax offences, money laundering and sanctions evasion. It examines how EU law increasingly relies on private actors as agents of transparency, particularly through reporting obligations aimed at disclosing and addressing these crimes. Through case studies, the paper highlights the decentralisation of enforcement mechanisms. In the context of taxation, it investigates obliged entities' and—at times—citizens' reporting obligations in combating tax evasion and/or avoidance. Regarding money laundering, it examines both obliged entities as well as the dual role of employees in financial institutions as both mandated reporters and voluntary whistleblowers. For sanctions evasion, the paper explores the unprecedented expansion of reporting duties in the post-Ukraine conflict era, including the EU's reliance on both citizens and (non-EU) sanctioned individuals. By analysing these areas of EU law, the paper evaluates the balance between compliance obligations and individual rights and examines the conditions underpinning disclosure requirements. It also assesses the consistency of the EU's reliance on non-state actors to report economic crimes, raising critical questions about the present and the future of its enforcement mechanisms.
The ongoing implementation of the EU's Sustainable Finance Strategy has led to a significant development of EU law to finance and facilitate the transition of the real economy towards sustainability. We argue first that this strategy, at its core, is a data strategy, requiring the datafication of the entire European financial, production and services sectors. The ongoing process of datafication will extend to data concerning externalities previously not incorporated into quantitative financial models and analysis. Second, we look at other datafication processes in finance to identify regulatory lessons for the EU's Sustainable Finance Framework in light of the European Commission's Simplification and Burden Reduction agenda in finance. We recommend the implementation of digital reporting standards developed in tandem by industry and regulators; the utilisation of Green RegTech and SupTech, centralised and enabled via digital reporting infrastructure; and the facilitation of the use of official estimates to both ensure proportionality and reduce the regulatory burden of reporting entities, with a focus on small and medium enterprises.
Despite the increasing recognition of data protection rights across the European Union (EU), evidence suggests they are often underenforced, thereby undermining the effectiveness of the General Data Protection Regulation (GDPR). This article shows that an often neglected aspect in GDPR enforcement is the variability in transparency exhibited by data protection authorities across EU Member States concerning the disclosure of fines. To bridge this research gap, we gathered data from 23 out of 27 EU data protection authorities (DPAs) and built an indicator to measure their level and quality of fines' disclosure. Our research uncovers disparities in the disclosure of GDPR fines across the EU. We examine the consequences of different levels of disclosure for individuals, entities, regulatory authorities and the data protection system. We argue that harmonised standards of transparency are necessary to ensure the effectiveness of the GDPR and the fundamental right to data protection across the EU.
Despite the uniform application of EU competition law being an essential feature of the EU's functioning, the globalisation and digitalisation of the EU economy has led to problematic diversifications in EU competition enforcement. Against this backdrop, this paper suggests revising the binding effects of European Commission decisions under Art.16(1), Regulation 1/2003. While the 'traditional interpretation' of Art.16(1) necessitates subjective and objective identity between national and EU proceedings for Art.16(1) to apply and qualifies its effect as a positive obligation, the 'new interpretation' considers 'objective identity' to be singularly sufficient and turn the effect of Art.16(1) into a negative obligation. This shift would maximise the uniformity and effectiveness of EU competition law, enhance the Commission's role as guardian of the Treaties, reinforce the ECJ's jurisdiction, ensure legal certainty, augment the discretion of national courts and solve the underlying clash with the nemo iudex in causa sua principle.
The article examines whether the relationship between EU (or national) competition law and intellectual property rights may undergo any developments following the recent set of decisions by the French Competition Authority against Google. In these decisions, competition law was used to improve the effectiveness of press publishers rights granted by the Directive on copyright and related rights in the Digital Single Market. Therefore, competition law had rather a supporting role vis-a-vis certain intellectual property rights, instead of constituting an external layer and limiting excessive forms of exercise of intellectual property rights. We argue that while there is no shift in paradigm on the interface between EU competition law and intellectual property rights, the discussed decisions do contribute to this debate by putting that relation in a different context when intellectual property holder suffers from anti-competitive conduct and might pave the way to a fruitful interface in the future.
