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Licence to Regulate: Article 114 TFEU as Choice of Legal Basis in the Digital Single Market

Engel, Annegret LU (2025) p.13-28
Abstract
This chapter discusses Article 114 TFEU as the choice of legal basis in the Digital Single Market. It argues that the EU’s competence in the internal market has developed into a default option for harmonising measures in digitalisation, exacerbated by the Union’s new regulatory approach. With particular reference to the area of competition law and the recently introduced Digital Markets Act, Article 114 TFEU might constitute the Commission’s preferred choice for pragmatic reasons, yet not necessarily undisputedly so. The chapter presents and discusses a number of pressing alternatives available from a constitutional perspective, most importantly Article 103 TFEU under the policy area of competition law. It is argued that a lex specialis... (More)
This chapter discusses Article 114 TFEU as the choice of legal basis in the Digital Single Market. It argues that the EU’s competence in the internal market has developed into a default option for harmonising measures in digitalisation, exacerbated by the Union’s new regulatory approach. With particular reference to the area of competition law and the recently introduced Digital Markets Act, Article 114 TFEU might constitute the Commission’s preferred choice for pragmatic reasons, yet not necessarily undisputedly so. The chapter presents and discusses a number of pressing alternatives available from a constitutional perspective, most importantly Article 103 TFEU under the policy area of competition law. It is argued that a lex specialis might indeed entail advantages over the generic use of horizontal legal bases, such as Article 114 TFEU, despite often being overlooked in the quest for the correct choice of legal basis. With the Digital Single Market being prone to rapid change in technologies demanding swift regulatory replies and harmonised enforcement, the role of special legal bases seems even more marginalised to the detriment of intergovernmental flexibility and the constitutional setup of competence categories as codified by the Treaty of Lisbon. (Less)
Please use this url to cite or link to this publication:
author
organization
publishing date
type
Chapter in Book/Report/Conference proceeding
publication status
published
subject
keywords
EU Law, Choice of Legal Basis, Digitalisation, Internal Market, Competition law
host publication
New Directions in Digitalisation: Perspectives from EU Competition Law and the Charter of Fundamental Rights
editor
Engel, Annegret ; Groussot, Xavier and Petursson, Gunnar Thor
pages
16 pages
publisher
Springer
external identifiers
  • scopus:85210029146
ISBN
9783031653803
9783031653834
9783031653810
DOI
10.1007/978-3-031-65381-0_2
language
English
LU publication?
yes
id
15e4664b-b824-41f0-8e4f-75f9a1105417
alternative location
https://link.springer.com/book/10.1007/978-3-031-65381-0
date added to LUP
2024-11-11 12:04:48
date last changed
2025-07-12 01:14:13
@inbook{15e4664b-b824-41f0-8e4f-75f9a1105417,
  abstract     = {{This chapter discusses Article 114 TFEU as the choice of legal basis in the Digital Single Market. It argues that the EU’s competence in the internal market has developed into a default option for harmonising measures in digitalisation, exacerbated by the Union’s new regulatory approach. With particular reference to the area of competition law and the recently introduced Digital Markets Act, Article 114 TFEU might constitute the Commission’s preferred choice for pragmatic reasons, yet not necessarily undisputedly so. The chapter presents and discusses a number of pressing alternatives available from a constitutional perspective, most importantly Article 103 TFEU under the policy area of competition law. It is argued that a lex specialis might indeed entail advantages over the generic use of horizontal legal bases, such as Article 114 TFEU, despite often being overlooked in the quest for the correct choice of legal basis. With the Digital Single Market being prone to rapid change in technologies demanding swift regulatory replies and harmonised enforcement, the role of special legal bases seems even more marginalised to the detriment of intergovernmental flexibility and the constitutional setup of competence categories as codified by the Treaty of Lisbon.}},
  author       = {{Engel, Annegret}},
  booktitle    = {{New Directions in Digitalisation: Perspectives from EU Competition Law and the Charter of Fundamental Rights}},
  editor       = {{Engel, Annegret and Groussot, Xavier and Petursson, Gunnar Thor}},
  isbn         = {{9783031653803}},
  keywords     = {{EU Law; Choice of Legal Basis; Digitalisation; Internal Market; Competition law}},
  language     = {{eng}},
  pages        = {{13--28}},
  publisher    = {{Springer}},
  title        = {{Licence to Regulate: Article 114 TFEU as Choice of Legal Basis in the Digital Single Market}},
  url          = {{http://dx.doi.org/10.1007/978-3-031-65381-0_2}},
  doi          = {{10.1007/978-3-031-65381-0_2}},
  year         = {{2025}},
}