From Intel & Qualcomm to the new Art. 102 TFEU-Guidelines – Streamlining the Form- & Effects Based Approach

Abstract Rapid digital innovation has promoted a broad range of welfare aspects and created a myriad of new business models. While these benefits are uncontentious, the special characteristics of digital markets, such as strong network effects, have led to a substantial concentration of power among a few corporate actors. The increasing complexity of these market dynamics has rendered antitrust enforcement more challenging, particularly with regard to assessing the abuse of market dominance (Art. 102 TFEU). Particularly the European Commission has been confronted with criticism relating to its previously propagated “more economic approach”, which has led to a lack of timely and effective antitrust enforcement. While there is a consensus that a new approach to ascertaining the abuse of dominance is pertinent – which the Commission endorses – the underlying assessment parameters are still contentious. This article argues for a standard of dominance to notably reflect the digital transformation and include a comprehensive framework. While the predominant intervention aim must be based on sufficient innovation, a notion of economic fairness and sustainability considerations gain momentum in antitrust enforcement.