Press Release - Position Paper on the European Commission’s public consultation on New Competition Tool (‘NCT’)
The ECLF has submitted its position paper on the European Commission’s public consultation on New Competition Tool (‘NCT’).
The ECLF believes that the introduction of the NCT would represent a rather dramatic shift in the nature of EU competition enforcement and is not persuaded that it fills a sufficiently identified gap. The existing competition rules are fit for purpose and can deal with the challenges of the modern economy. The ECLF also believes that in the case of the NCT’s adoption, it should be of general application and not be confined to the digital sector or indeed to any specific market or sector. The ECLF also sees little justification for cumulatively introducing the NCT for the digital sector, in case the proposed Digital Services Act package is adopted. The ECLF has doubts as to the appropriate legal basis for the introduction of the NCT; Articles 103 and 11 TFEU cannot be a legal basis. In any event, the NCT should fall under the exclusive competence of the European Commission and NCAs should not have any decisional powers aside from being consulted.
Finally, the ECLF notes that the UK system of market investigations, which has been mentioned as a model for the NCT, contains an important number of checks and balances, and substantive and procedural safeguards. In short, the UK possesses a powerful enforcement tool but is deliberately subject to carefully judged limits. We would be concerned if the NCT were to be introduced in the EU without equivalent safeguards.
Press release – Position paper on the European Commission’s public consultation on the proposed rules for gatekeepers
The ECLF has today submitted a response to the European Commission’s consultation on the Digital Services Act package, and in particular on the proposed rules for gatekeepers (the ‘Gatekeeper Rules’).
The ECLF agrees with the Commission that existing antitrust enforcement can be too slow-moving and a change in approach may be needed to remedy this, but queries whether the introduction of the Gatekeeper Rules is the right way to resolve these concerns: in particular, the ECLF considers the “blacklist” to be a blunt instrument which could have undesirable effects on innovation and long-term economic growth. The ECLF encourages the Commission instead to make more effective use of its existing tools to address its concerns.
Should the Commission nonetheless proceed with the introduction of the Gatekeeper Rules, the ECLF’s response offers guidance to ensure that any new legislation respects key fundamental rights including the rights of defence, the rule of law, and legal certainty, by building in certain procedural safeguards. The ECLF also makes a number of specific recommendations on the identification of “gatekeeper” platforms and the proposed content of the rules.