ERT Expert Paper responding to the EC consultation on the New Competition Tool

ERT strongly believes in competition policy and enforcement to secure fairer markets as well as strong competition and welcomes the EU’s efforts to explore how competition policy could evolve to reflect changing global market conditions. It is opportune to ensure that the current competition rules are fit for the challenges posed by the modern economy, the particular characteristics of digital platforms and companies that benefit from State support outside the EU.

For European companies to compete successfully at scale in today’s fast-moving economy, they need competition policies that seek to create a global level playing field and that are sufficiently responsive to changing global market conditions, without undue complexity and legal uncertainty.

New Competition Tool (NCT)

ERT queries whether there is an adequate legal basis for an instrument as far-reaching as the NCT and whether there is actually any significant enforcement gap that needs to be filled.

ERT recognises that the Commission could usefully increase the use of existing tools such as sector inquiries, interim measures, speedier and more targeted investigations to establish precedent in shorter timeframes.

However, quick but targeted enforcement against abusive practices of hyper- or super- scalers / super-dominant gatekeepers via an NCT (where it has been clearly identified that the current competition rules are not adequate in terms of powers or timing) should only be implemented to the extent an enforcement gap is clearly established subject to any proposed DSA ex ante regulation, and subject to two critical caveats: (i) that appropriate procedural safeguards are built in, and (ii) that the new rules do not introduce legal uncertainty in the broader economy.