Two Faces of Inefficiency in European Competition Law
Whatever else one might want to say of the European Commission in 2025, they cannot be accused of idleness. Spurred by leadership change and mounting evidence of Europe’s economic malaise, the Commission has been working hard to update its competition toolbox. Calls for evidence have been issued across multiple areas, from guidance on technology-transfer agreements to the assessment of mergers and acquisitions (for commentary on each, see here and here).
But two initiatives stand out in the Commission’s central focus on competition enforcement. First, it is preparing to recast the basic enforcement framework of EU competition rules (the Treaty on the Functioning of the European Union’s Articles 101 and 102) by revising Regulation 1/2003. Second, it is assessing the Digital Markets Act (DMA) to understand its performance and determine whether adjustments are needed in light of rapid technological change—most notably, the rise of artificial-intelligence (AI) services.
Both initiatives offer an opportunity to address inefficiencies. While it is now the cornerstone of EU digital-competition policy, the DMA suffers from poor drafting and a neglect of tradeoffs. Clarifying its obligations could yield efficiency gains by reducing enforcement and compliance costs. Regulation 1/2003, by contrast, has served European competition law well, but questions remain as to whether its underlying architecture still fits today’s enforcement realities. In particular, it is unclear whether the weak preemption of Article 102 TFEU vis-à-vis national rules on unilateral conduct remains sensible.