ICLE Scholars Stress Minimizing Error Costs and Fragmentation in EU Competition Reform
BRUSSELS (2 October 2025) — Hastening competition-enforcement measures in dynamic digital markets risks creating irreversible remedies based on weak evidence, scholars from the International Center for Law & Economics (ICLE) warned the European Commission in comments submitted to the Commission’s consultation on revising Regulation 1/2003.
The comments argue that the Commission’s proposed procedural shortcuts could accelerate intervention at the expense of sound economic analysis, ultimately harming consumer welfare. They focus on three areas of reform:
- Error-Cost Framework for Intervention: Lowering the procedural or legal threshold for interim measures or imposing deadlines for commitments would significantly raise the risk of “Type I” false-positive error.
- Abolish Strategic Complaining: The current system of granting complainants the right to formal rejection decisions generates moral hazard, whereby the minimal cost of filing a complaint encourages self-interested parties to strategically exploit the system.
- End Internal Market Fragmentation: The Commission should undertake a fundamental reassessment of the asymmetrical pre-emption rules that allow EU member states to adopt stricter national laws on unilateral conduct. The proliferation of these national rules has led to market fragmentation, multiplied compliance costs, and created risks of double and triple jeopardy.
ICLE Director of Competition Policy Dirk Auer had the following comment:
The EU is right to adapt its competition toolkit to the digital age, but speed should not be confused with efficiency. Europe should preserve the existing strict safeguards that require strong evidence of ‘serious and irreparable harm’ and sound effects analysis to avoid imposing concessions that decrease consumer welfare. Rushing complex cases, especially in rapidly changing markets, will inevitably lead to poorly calibrated remedies that deter innovation. The goal must be evidence-based enforcement that prioritizes minimizing error costs, protecting consumer welfare, and restoring internal market coherence.
The full comments can be downloaded here. To interview Dirk, contact Jim Fellinger at [email protected].
About ICLE
The International Center for Law & Economics is a nonprofit, nonpartisan research center working with a roster of more than one-hundred academic affiliates and research centers from around the globe. ICLE scholars promote the use of law and economics methodologies to inform public policy debates.