The New Competition Tool and the Digital Services Act: EU Competition Policy at a Crossroads

The European University Institute (EUI) invites you to the online conference “The New Competition Tool and the Digital Services Act: EU Competition Policy at a Crossroads.” Within the EUI, the event is organised under the umbrella framework of the Technological Change and Society research group cluster, as a first-time joint venture between the Florence Competition Programme (FCP) and the EU Competition Law and Policy Workshop. Amongst other things, this event is intended to generate input that can be used at the traditional yearly session of EU Competition Law and Policy Workshop in the Spring/Summer 2021.

The conference aims to gather academics, practitioners, officials from the EU institutions (i.e. Commission, Parliament and Council), National Competition Authorities, as well as industry representatives to discuss the pros and cons of the New Competition Tool (NCT) and the Digital Services Act (DSA). The event is timely since the Commission is expected to publish a legislative proposal concerning the NCT and the DSA by the end of 2020. The legislative proposal will later be debated within the Council and the European Parliament in the course of 2021.

Background

In June 2020, DG Competition of the European Commission opened a public consultation concerning the adoption of a New Competition Tool (NCT). Inspired by the powers of the UK Competition & Market Authority (CMA) in the context of market investigations, the NCT would grant to the European Commission new enforcement powers. In particular, the EU executive body would be able to impose remedies in markets characterised by structural competition problems without the need to identify a specific competition law infringement. In other words, the NCT would grant to DG Competition similar powers to those ones enjoyed by sector regulators in network industries. The NCT aims at ‘speeding up’ the competition policy enforcement, which is currently perceived as ‘too slow’ taking into consideration rapid industry developments, especially in digital markets. On the other hand, the NCT opens important questions in terms of legal certainty for the undertakings, and it blurs the traditional difference between ex-ante regulation and ex-post competition enforcement.

In parallel to the NCT public consultation, the European Commission has also launched a consultation concerning a Digital Services Act (DSA). The latter legislation would also introduce an ex-ante regulation vis-à-vis digital gatekeepers: the DSA, in fact, would include both a list of ‘black’ behaviours (i.e. per se prohibited) as well as a list of ‘white’ conducts (i.e. per se allowed) by dominant online platforms, leaving to competition law enforcement the task of assessing the ‘grey’ conducts that do not fall under any specific category.

The European Commission concluded both public consultations in September 2020. The Commission is expected to publish a legislative proposal by the end of 2020. While the precise content of the NCT and DSA proposals is still unknown, the latter has already received some attention by academics. In particular, 4 expert reports have recently been published by well-known academics on behalf of DG Competition in relation to the main features of the NCT proposal. During the online workshop, the authors of the reports will present their studies and engage in a debate with practitioners. The event thus aims at stimulating the public discussion concerning the NCT proposal, which will be debated by the Council and the European Parliament in the course of 2021.

Practical information

The online conference will be organized via Zoom. Participation is free of charge, but registration is required.