As exemplified by the EU's Economic Security Strategy, security has emerged as a guiding objective across a growing number of legislative fields. Yet the instruments through which this agenda is pursued continue to rely on pre-existing Treaty competences. This raises the question of how these inherited legal bases shape, enable or constrain the BU's emerging economic security paradigm. This article examines that relationship by analysing the legislative initiatives adopted under the Economic Security Strategy's 'promote' and 'protect' pillars, focusing on their legal bases. It argues that the legal foundations used, particularly Articles 114, 173 and 207 of the Treaty of the Functioning of the EU (TFEU), while not predetermining policy action, subtly influence the scope and ambition of resulting policy outputs. Harmonisation measures based on Article 114 TEU tend to be more comprehensive when their objective remains regulatory. Industrial policy instruments under Article 173 TFEU, by contrast, face more legal and political friction due to their relatively underdeveloped scope. Finally, trade-related measures under Article 207 TFEU may benefit from a robust and broad legal mandate. While these legal bases do not impose strict limits, they shape what is politically and legally conceivable, thus shaping EU economic security policy alongside the political process.
Resource security, namely the EU’s capacity to reduce dependence on third-country imports, diversify supply chains and increase the extraction of raw materials within its territory, is essential for its green and digital transition, as well as for its defence capabilities. Using trade and investment policy as a vehicle, the EU has sought, especially over the past five years, to meet its resource security needs while navigating evolving geopolitical and geoeconomic challenges. This paper critically examines the Union’s choice to advance its resource security objective relying on ‘hard’ and ‘soft’ law trade and investment instruments, with particular attention to the human rights implications of raw materials projects in host states. In doing so, it explores the extent to which these instruments include preventative and remedial mechanisms for human rights abuses arising from raw materials mining within and beyond EU borders, and what this means for the EU, which is constitutionally bound to respect and uphold human rights when acting externally. In all, the paper argues that resource security and human rights protection are mutually reinforcing objectives. Yet, this complementarity remains only partially realised, particularly in the context of the EU’s non-binding raw materials partnerships, where human rights safeguards are weaker than those found in its trade and investment agreements with third countries.
In just a few years, the deterioration of trade relations between the world’s largest economies, the COVID-19 pandemic, Russia’s war of aggression in Ukraine and a global increase in geopolitical tensions triggered new global risks connected with globalisation and profound technological shifts. The traditional dichotomy between economic and military risks has grown indistinct, bringing both economy and defence in the array of security concerns. Market liberalization, which the doctrine of interdependency traditionally welcomed as a tool to ensure prosperity, began to be regarded as a source of potential security threats. At the European level, the need to balance the Union’s traditional openness to trade and investments with a comprehensive strategy to protect its economy and citizens culminated with the adoption of an European Economic Security Strategy on 20 June 2023 and its implementing measures on 24 January 2024. By bringing economic concerns closer to the sphere of security, the Economic Security Strategy creates new needs for certainty in the single market. These needs emerge quite significantly in the field of investments screening, where Member States still retain great discretion. Focusing on the EU framework for investment screening, this paper aims to spark a reflection around the notion of economic security within the EU single market and the negative effects that a fragmented approach to economic security might have on market integration, and in turn on competitiveness for EU players, across many sectors. To clarify the scope of Member States’ manoeuvre, the paper looks at the case law of the Court of Justice of the European Union (CJEU) on restrictions to fundamental freedoms, which to date remain the main outer limit to distinguish genuine security claims from purely protectionist measures in application of screening provisions to intra-EU transactions.
In the last two decades, universities have undertaken a drastic re-engagement with their agendas of conducting of research in the national interest. Yet the historical independence of universities has been modified by geopolitics, with these institutions collaborating more frequently with arms of government (such as the military, intelligence agencies or law enforcement) on their research endeavours. Further, the commonality of research partnerships with overseas individuals and entities - crucial to the development of diversity in opinions and views - is being challenged in the face of subordination, manipulation or interference by malicious actors. In response, one of the principal features of the European Commission's package on economic security was embedding 'research security' - the practice of protecting university-led research from interference, co-option or diversion by foreign powers for reasons of national interest. Whilst the link between economic security and national security is maturing and becoming clearer, the precise forms and mechanisms by which economic security is advanced by research security remains simultaneously contested and poorly explored. One recent trend in research security protections has been the emergence of, or uptick in, the use of economic sanctions and controls to limit engagements or partnerships between universities and foreign entities. For that reason, this paper will focus on examining two specific examples of economic sanctions frameworks through the research security lens: the policy on Sensitive Technology Research and Affiliations of Concern of Canada, and the National Security and Investment Act 2021 of the United Kingdom. The paper will argue for the proper place of such economic controls typified in both regimes, as well as exploring the general utility and drawbacks associated with the use of economic sanctions and controls in the institution of research security. It will also develop several key suggestions that could be adopted by the Member States of the European Union as they begin to comply with the new requirements.
In an increasingly digitalised world, it has become difficult to ignore the concentration of power in the hands of major technology corporations. However clear this statement seems, it takes on different meanings when examined through different lenses. This Special Issue explores themes related to the theoretical underpinnings of the power of big technology corporations, its boundaries in various legal domains, and potential countervailing measures. Set against the backdrop of Gerbrandy and Phoa’s theory of Modern Bigness, it recognises that the power of big technology corporations is highly complex and transcends the traditional conceptions underlying current regulatory frameworks. This Special Issue brings together a selection of articles based on the interdisciplinary conference titled “Power in a Digitalised World: Evolving Perspectives on Competition Law, Regulation and Beyond” held at Utrecht University on 4–5 April 2024, organised by members of the ERC Starting Grant project ‘Modern Bigness’.
A clear and consensual conceptualization of the power asymmetries that data protection seeks to address is missing. That modern bigness translates into multifaceted power issues results in multiple branches of the law being increasingly called upon to respond, illustrated by the recent adoption of the EU digital package. Such an endeavor requires consistency between them and thus also a clear vision of which legal framework addresses which power issue(s) and how. To spin a musical metaphor, for the choir to be harmonious requires that every singer sings their own score. This article unpacks the nature and ways in which data protection addresses power asymmetries through ‘data control’. It does it through an enquiry into the conceptual relationship between ‘data’ and ‘control’ or power under data protection.
The public sphere is understood as a place where citizens meet, exchange views and form a public opinion. In today’s platform society, part of the public sphere is comprised by the digital public sphere, whose information flows are largely mediated by big technology companies. This contribution builds on and expands the literature on the power of big technology companies, focusing on discursive power, which refers to the power to shape discourse and narratives. It proposes an analytical framework as a tool to capture a variety of discursive power manifestations in practice that are relevant in the context of EU competition law. Recognising the role of EU competition law in protecting democracy, and that it cannot be considered in isolation from the EU value system as such, we propose three ways of construing discourse-related theories of harm relevant to EU competition law: (i) building on existing theories of harm; (ii) building on the intersection where harms pertinent to EU competition law and plurality in discourse (as a non-economic consideration) converge; and (iii) introducing an independent, democracy-oriented theory of harm.
The European Union’s commitment to a social market economy requires balancing competition and social protection. This tension is particularly evident for digital labour platforms, where self-employed workers often find themselves in a precarious position. Lacking traditional labour protections, they also face restrictions under competition law when organising collectively. The EU’s Platform Work Package represents an effort to close this gap. It includes the reclassification of false self-employed workers and the introduction of collective bargaining exemptions for some genuine self-employed individuals. This shift represents a partial departure from the traditional binary distinction between workers and undertakings, acknowledging the evolving nature of work relationships in the platform economy. While these measures attempt to strengthen worker protections, the final form reflects the EU’s structural limitations in harmonising social policy across member states. This article evaluates whether these measures are sufficient in addressing the power imbalance between workers and platforms. It argues that, for the EU to fully realise its commitment to a social market economy, competition law should be utilised more proactively—not just to exempt certain workers from restrictions, but to directly regulate platform dominance and mitigate dependency relationships.
At the sidelines of antitrust and competition law there have always existed theories that reach beyond the mere harms of market power and look at the effects of financial power or financial bigness. In light of the power currently held by the Big Tech giants, competition law has returned its attention to such effects and even introduced new (asymmetric) competition tools and regulations such as the Digital Markets Act and Section 19a of the German Competition Act that list financial power as an assessment criterion. Applying a broad definition, this contribution revisits diverse theories ranging from (antitrust) theories of bigness to the theory of financialisation, to understand the significance and influence of financial power. It then looks at legal avenues in competition law that allow the consideration of financial power in order to better understand this aspect of modern bigness and how it can be challenged.
This paper examines how the European Union can leverage its position as a global leader in trade to tackle corruption. The issue is timely given the changing character of the EU’s trade policy that is poised to become more assertive, particularly in light of open strategic autonomy objectives. Furthermore, existing international and domestic anti-corruption frameworks, despite some positive steps such as extraterritoriality, fall short in addressing a novel type of corruption that has benefitted from globalisation and become truly transnational. Such ‘transnational’ or ‘international’ corruption means that, in an interconnected world, corruption in one part of the world can have an effect elsewhere, allowing malicious actors to cross borders and exploit jurisdictions with weaker anti-corruption measures to circumvent the stronger frameworks. The paper argues in favour of incorporating anti-corruption provisions into EU trade policy. It proposes to address the issue both through including robust anti-corruption provisions in EU trade agreements and through making compliance with such provisions a condition for receiving preferential trade. Through this ‘carrot-and-stick’ approach, the EU can assertively use its economic leverage to instil anti-corruption prevention, identification and penalisation among its trading partners.
The present paper looks at the right of access to one's data, especially in the law enforcement sector, as developed by the European Court of Human Rights (ECtHR) with regard to the right to private life (Article 8) and to effective remedies (Article 13) in the European Convention on Human Rights (ECHR). Can this right to directly access one's data be (entirely) replaced, as happens with the practice of 'indirect access', by a system of independent oversight by administrative (data protection) authorities? If yes, under what conditions would such a system be rights compatible? The ECtHR has recently defined stricter requirements on effective oversight by the supervisory authorities which oversee the cases of restrictions on direct access, especially as concerns their powers to check the legality of the data processing and the restrictions on access, and to communicate the results of their checks to the concerned individuals. The paper then demonstrates that 'indirect access' procedures in three EU Member States-Belgium, France and Germany-are likely to be in breach of the rights provided under Articles 8 and 13 ECHR. Although these procedures are the result of an implementation of EU law (Article 17(3) Directive 2016/680), they restrict the powers of the supervising authorities both with regard to review and subsequent communication about the review to individuals.
The article examines whether the proposal to apply vicarious liability is the optimal method of regulating the employer's liability towards third parties for damage caused by AI systems. The research concerns autonomous AI systems used by the employer to achieve the same goals as previously could be achieved only by the human workforce. In this article, the concept of the optimal solution refers to a liability model capable of addressing the challenges posed by the inherent characteristics of AI, such as autonomy, complexity, opacity, the ability to learn, and interaction with the environment, including humans. This model should ensure that injured parties have a genuine opportunity to receive compensation. Scholars have proposed the use of vicarious liability as, in their opinion, the optimal method to regulate employers' liability vis-& agrave;-vis third parties for damage caused by autonomous AI systems. Experts predict that applying such systems on a large scale is only a matter of time. This article concentrates on the civil liability of an employer in situations where damage was sustained by a third party who is not in any legal relationship with the employer, and the damage was not caused by a defect of the AI system. The analysis covers the legal perspective of the EU and the US.(1)
The Digital Services Act (DSA) represents an important development in the EU regulation of online services, tackling online disinformation and harmful content. However, its success depends on effective enforcement across the European Union. As the DSA enters its implementation phase, its enforcement regime is under scrutiny, particularly the cooperation mechanisms between Member States’ competent authorities. It appears that Member States, while acting in compliance with their institutional autonomy, may have unintentionally created an enforcement structure that is not well-suited for cooperation. Therefore, this article examines the role of the principle of sincere cooperation in the EU legal order and how this principle could enhance cooperation among national competent authorities also in the context of the DSA.
This paper presents a conceptualisation and characterisation of ecosystem power, distinguishing it from market power and bargaining power. Unlike market power, which primarily concerns external relationships of a firm, and bargaining power, which addresses bilateral relationships, ecosystem power operates through multi-sided relationships, shaping pricing and contractual structures and determining welfare distribution among stakeholders within ecosystems. By identifying pricing and contractual leverages as key mechanisms for the exercise of ecosystem power, the paper demonstrates how platforms exploit economically dependent user groups while favouring others, often consumers, without necessarily enhancing overall welfare. The paper also provides an overview of the legal assessment of the use of pricing and contractual leverages under EU competition law, as well as its intersection with contract law and consumer law. Competition law, traditionally focused on external market relations, lacks tools to regulate internal welfare distribution, while consumer and contract law fail to adequately protect economically dependent users, especially small businesses and gig workers within ecosystems. To address these gaps, the paper proposes the concept of distributive equity as a further consideration for antitrust enforcement to ensure an equitable welfare distribution across ecosystem participants.
This editorial commemorates the twentieth anniversary of the Utrecht Law Review (ULR), reflecting on its evolution and impact. Since its inception, ULR has been an online, open-access journal, initially hosted by Utrecht University and now published by Ubiquity Press. The journal has consistently addressed pressing societal challenges from a legal perspective, aligning with the Faculty’s focus on shaping society and addressing critical social issues. Over the years, ULR has published a diverse range of articles, with a significant number focusing on regulation and enforcement in Europe, accountability and liability law, sustainability, family law, and more. The journal has also embraced a multidimensional legal research agenda, publishing articles that cross boundaries between legal fields and other disciplines. As ULR celebrates its porcelain anniversary, it continues to thrive, supported by the Law School, its Managing Editor, a dedicated Board of Editors, and a large pool of external reviewers.
This article addresses the complexities and challenges of enforcing Article 102 TFEU and the Digital Markets Act in the context of the principles of ne bis in idem and proportionality under Articles 50 and 52(1) of the Charter of Fundamental Rights of the European Union. It critically examines the intersection of the abuse of dominance prohibition with the ex ante regulatory framework established by the DMA, aimed at curtailing the anti-competitive behaviours of designated gatekeepers in digital markets. By mapping out the ne bis in idem and proportionality framework, the article navigates through the evolving legal landscape, highlighting the shift towards a restriction-justification approach in applying the ne bis in idem principle in competition law. The analysis delves into the alignment of competition law and DMA enforcement, considering their overlapping objectives and the potential for dual enforcement to infringe upon the ne bis in idem principle. After identifying multiple scenarios, some more probable than others, of duplicated enforcement, the article focuses on the role of the European Competition Network in the allocation of cases and coordination mechanisms. The pitfalls experienced in the parallel enforcement of most favoured nation clauses against Booking.com are used to illustrate areas of improvement within the ECN. Different options for strengthening the coordinating and cooperation capacities within the ECN are weighed up. Furthermore, a possible redistribution of enforcement and investigatory powers between the European Commission and national competition authorities regarding the enforcement of the DMA and competition law is considered.
The European Commission recently proposed a break up of Google’s display advertising business. We argue that the market definition used by the Commission risks being too narrow and propose expanding it to include Google’s broader ecosystem. We then ask a simple question; why can consumers not choose which advertising network they would like to use with Google’s zero-priced online platforms? Our answer is that by integrating its advertising network into its popular online platforms, Google has foreclosed competition in the online advertising market by denying rival supply-side ad networks access to its customer base. We propose a remedy called marketised monetisation, which is complementary to the break up proposed by the Commission. Marketised monetisation would introduce an interoperability layer between Google’s popular online services and third-party ad networks to make the online advertising market more contestable. The interoperability layer would allow consumers to choose which firm should monetise their usage of Google’s zero-priced products and services. We argue that such a remedy is within the scope of the Commission’s investigation, is technically feasible, and consider how it could be implemented either through competition law or under the Digital Markets Act.
This Article investigates the interplay in the field of interim measures between the Digital Markets Act (DMA) and Regulation 1/2003 on the implementation of Articles 101 and 102 TFEU competition rules. The European Commission’s interim powers under Article 24 of the DMA are examined, exploring the parallels and contrasts with the legal framework established for competition law. It is argued that ordering interim measures under the DMA generally seems an easier task, but that the latter’s invigorated approach to digital markets will also spill over to competition cases, enhancing in the sector the rarely used interim powers under Article 8 of Regulation 1/2003.
Forests play a key role in the fight against climate change. Despite growing awareness of this role, forests are under threat due to large scale deforestation. The current regime under international environmental law does not yet sufficiently address deforestation, as there are few concrete binding obligations to combat it. This paper therefore explored to what extent international human rights law can be used to protect forests against deforestation, in particular the human rights laid down in the American Convention on Human Rights and the European Convention on Human Rights. This paper reveals that there is much potential in both human rights systems to address deforestation, under the rights of life, private and family life, property and a healthy environment. The Inter-American system has the most potential to address deforestation, as the scope of the protection is wider and more concrete measures are expected from States than in the European system. Despite the potential to address deforestation, important challenges exist.
