The roles of competition law in a regulated digital market environment: lessons (not) to learn from related fields of EU regulation

Within the framework of its Digital Single Market (DSM) agenda, the European Union
proposes the adoption of new legislative proposals aimed at removing remaining obstacles to
digital transactions. Proposals relate to the abolition of geo-blocking as well as data and
copyright portability. Complementing competition law provisions, those initiatives would seek
to create the conditions for a competitive e-commerce environment within the EU internal
market. In doing so, the Commission implicitly but clearly seeks to replicate a regulatory and
policy approach it had taken already from the 1990s onwards when liberalising the energy and
electronic communication sectors.
It can be submitted that the European Commission, in proposing its DSM regulation strategy
and in setting the terms of its e-commerce sector inquiry, has paid insufficient attention so far
to the various and complementary roles competition law can play in a more strictly regulated
market environment. In an attempt to clarify the scope and role of EU competition law and its
enforcement in a digital single market environment and to guarantee its coherent application
with the proposed DSM regulations, this paper will reflect on the roles competition law can our
should still play in this context.
Proceeding in three parts, the first part of the paper will chart the interaction between
competition law and market regulation proposals in the EU’s DSM context. Using examples
from the geo-blocking, data portability and copyright proposals made, this part highlights how
the EU institutions perceive the interaction between competition law provisions and market
regulation in this context. On the basis of that analysis, the second part will frame the
interaction between competition law and market regulation as perceived in the DSM strategy,
by comparing it with earlier examples in the realm of energy and electronic communications.
In doing so, this part will identify two important similarities (breaking up barriers to trade and
facilitating cross-border competition) as well as two fundamental differences (absence of
natural monopolies and of intensely state regulated sectors). Acknowledging those similarities
and differences, it will be submitted, allows better to conceptualise the role of competition law
in the particular DSM context. To that extent, the third part will present and analyse the
tenability of three possible roles competition law can still play against this background.
Assessing the advantages and limits of each approach, that part will invite the Commission to
take a clearer stance regarding the choice of one of them.