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Abstract: European Union (EU) competition law is traditionally understood as the interaction of two dimensions: judicial control and enforcement. This article considers a third dimension: the normative understanding behind this dynamic. It uses these dimensions to analyse how competition law is affected by the proposals of new legislation and the temporary framework for justifying cooperation due to COVID-19 advanced by the European Commission. It fi nds, in relation to the proposals focus on the digital sector, that judicial control has posed no signifi cant constraint on the fi ndings of abuse of dominance in the Google decisions. This drastically reduces the enforcement gap referred by the proposed legislation. It is the Commission guidance which nominally constraints enforcement by pursuing an effects-based approach, even though this has not been followed by the Google decisions. The Commission guidance further limits justifi cation of anti-competitive behaviour to consumer welfare, from which the temporary framework for COVID-19 also departs. The article therefore concludes that the Commission’s initiatives are not the result of ineffective enforcement, as they themselves suggest, but from normative breaks with the notions of abuse and consumer welfare. The future of EU competition law will depend on the extent of these breaks.
Keywords: competition law; art.101 of the TFEU; art.102 of the TFEU; merger control; consumer welfare; New Competition Tool; Regulatory Instrument for Gatekeeper Platforms; Temporary Framework for Cooperation due to COVID-19
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