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The Choice of Legal Basis in EU Competition Law: Shifting the Competence in the Digital Era

Engel, Annegret LU (2023) In Europarättslig tidskrift 2023(4). p.669-683
Abstract
This article analyses the competence shift in EU competition law, with a particular focus on the digital era and the EU’s institutional dimension. As will be argued, the latter is expanding by means of new legislation in the Digital Single Market. Particularly Article 114 TFEU is employed as a legal base for this purpose, which essentially harmonises and pre-empts Member States’ action in this area. The article argues that the Commission’s preference of Article 114 TFEU over Article 103 TFEU significantly alters the constitutional setup of competences in the area of competition law as codified by the Treaty of Lisbon. This is further exacerbated by the new ex-ante mechanism as opposed to the traditional ex-post framework. In addition and... (More)
This article analyses the competence shift in EU competition law, with a particular focus on the digital era and the EU’s institutional dimension. As will be argued, the latter is expanding by means of new legislation in the Digital Single Market. Particularly Article 114 TFEU is employed as a legal base for this purpose, which essentially harmonises and pre-empts Member States’ action in this area. The article argues that the Commission’s preference of Article 114 TFEU over Article 103 TFEU significantly alters the constitutional setup of competences in the area of competition law as codified by the Treaty of Lisbon. This is further exacerbated by the new ex-ante mechanism as opposed to the traditional ex-post framework. In addition and with regards to judicial review, the courts have often interpreted general criteria of legal basis litigation in favour of the EU institutions and thereby increased and legally manifested their powers vis-à-vis the Member States. The article concludes by arguing that regulation and centralisation in the Digital Single Market not only increases the EU’s institutional dimension, but also serves as a proxy for treaty change. (Less)
Please use this url to cite or link to this publication:
author
organization
publishing date
type
Contribution to journal
publication status
published
subject
keywords
EU law, EU-rätt
in
Europarättslig tidskrift
volume
2023
issue
4
pages
669 - 683
publisher
Europarättslig Tidskrift
ISSN
1403-8722
DOI
10.53292/5f731e96.72bf1044
language
English
LU publication?
yes
id
cfe8387a-b38d-45c9-a3f8-d2b89989e5ec
alternative location
http://www.ert.se/Journals/Journal/1846
date added to LUP
2023-11-21 16:44:23
date last changed
2025-04-04 14:18:48
@article{cfe8387a-b38d-45c9-a3f8-d2b89989e5ec,
  abstract     = {{This article analyses the competence shift in EU competition law, with a particular focus on the digital era and the EU’s institutional dimension. As will be argued, the latter is expanding by means of new legislation in the Digital Single Market. Particularly Article 114 TFEU is employed as a legal base for this purpose, which essentially harmonises and pre-empts Member States’ action in this area. The article argues that the Commission’s preference of Article 114 TFEU over Article 103 TFEU significantly alters the constitutional setup of competences in the area of competition law as codified by the Treaty of Lisbon. This is further exacerbated by the new ex-ante mechanism as opposed to the traditional ex-post framework. In addition and with regards to judicial review, the courts have often interpreted general criteria of legal basis litigation in favour of the EU institutions and thereby increased and legally manifested their powers vis-à-vis the Member States. The article concludes by arguing that regulation and centralisation in the Digital Single Market not only increases the EU’s institutional dimension, but also serves as a proxy for treaty change.}},
  author       = {{Engel, Annegret}},
  issn         = {{1403-8722}},
  keywords     = {{EU law; EU-rätt}},
  language     = {{eng}},
  month        = {{11}},
  number       = {{4}},
  pages        = {{669--683}},
  publisher    = {{Europarättslig Tidskrift}},
  series       = {{Europarättslig tidskrift}},
  title        = {{The Choice of Legal Basis in EU Competition Law: Shifting the Competence in the Digital Era}},
  url          = {{http://dx.doi.org/10.53292/5f731e96.72bf1044}},
  doi          = {{10.53292/5f731e96.72bf1044}},
  volume       = {{2023}},
  year         = {{2023}},
}