A critical analysis of the effectiveness of Article 102 TFEU in the digital era

Abstract

The digital era has altered daily life in unimaginable ways. Fast-paced technological development has lead to the emergence of extremely powerful, successful digital undertakings such as Google, Amazon, Facebook, Apple and Microsoft, which admittedly generate numerous benefits for consumers. However, there is growing concern that the harmful conduct of digital players may escape competition law control, because competition law frameworks were not originally designed around the reality of digital businesses and digital markets. Particularly, there is ongoing debate regarding whether Article 102 of the Treaty on the Functioning of the European Union is still capable of confronting abusive conduct in the digital era, or whether a more nuanced approach is necessary. This term paper will delve into the procedure of Article 102 in a step-by-step manner, beginning with the market definition exercise, moving on to the stage of establishing dominance, and finally addressing the abusive conduct of dominant undertakings in the digital sector - with particular reference to landmark cases and decisions. The author stresses that although Article 102 should not be disregarded, established legal notions, methodologies, tests and doctrines must be adapted to remain effective in the digital era. Moreover, developing new theories and criteria to cater for the specificities of digital undertakings and markets would be useful to supplement the legal framework of Article 102 and ensure it remains flexible and coherent enough to address new phenomena. In the opinion of the author, Article 102 provides a sound basis for the protection of competition, and will continue to do so in so far as legislators and competition authorities continue to adapt legal tools according to digital change. Thus, this term paper concludes that Article 102 remains effective to address abuse in the digital era, but that the legal framework of Article 102 should be supplemented and updated to ensure that genuine undistorted competition is maintained, and that the digital era continues to generate benefits for all.