Pablo Ibáñez Colomo: The Law & Policy of the Digital Markets Act | EU Judicial Review | New Book

Prof. Pablo Ibáñez Colomo, Professor of Law at the London School of Economics and Political Science | Ordinary Member at the Competition Appeal Tribunal | Visiting Professor at the College of Europe (Bruges) | Joint General Editor of the Journal of European Competition Law & Practice (Oxford University Press | co-editor of https://chillingcompetition.com/
Prof. Ibáñez is one of the most authoritative academic voices in the area of EU Competition Law: both practical and theoretical aspects.
In this conversation we addressed the latest ideas articulated mainly in his new monograph "The New EU Competition Law", Bloomsbury, 2023 https://www.bloomsbury.com/uk/new-eu-... and long paper "Law, Policy, Expertise: Hallmarks of Effective Judicial Review in EU Competition Law", Cambridge Yearbook of European Legal Studies, Vol 24 https://www.cambridge.org/core/journa...
The discussion was focused on (but by far not exhausted by) the following problems:
✔ Competition law iteration for the industrial era (structuralism, less proactive, more protective, relatively modest) vs. Competition law iteration for network industries & digital markets.
✔ Relationship between competition & regulation.
✔ The rise of policy-driven enforcement: the reasons behind it and normative view about the trend.
✔ The differences between liberalisation policy in network industries and the DMA?
✔ The role of procedural devices and the principle of good governance in current EU/UK competition law.
✔ New trend: less legal & economic certainty, more discretion, plurality of goals. Bug or feature?
✔ The use of competition law for achieving other goals (instrumentalization).
✔ Protecting vs. Promoting competition
✔ “There is another factor that may make judicial review less likely. The DMA allows the Commission to exercise its discretion in a way that avoids the adoption of formal decisions – thereby minimising the chances of a direct action”.
✔ “From Exclusion to Restructuring and Redistribution”
✔ The role of the mechanism of judicial review in the evolution of EU law?
✔ “Navigating the fine line between law and policy”. The importance of not perceiving them interchangeably.
✔ The CJEU dedication to expanding the areas of full merits judicial review. Is it the right trend? Will it continue? Can it go too far?
✔ The Commission does yet enjoy greater discretion “as far as ‘complex economic’ and ‘technical’ assessments are concerned” – evaluation; trajectory of change.
✔ Will the CJEU will tolerate the willingness of co-legislators of the DMA to grant to the Commission wider discretionary competences? Or it is against the very rationale of EU law and the new “sleeping dog will start barking” again, mitigating the newly created balance of competences?
✔ For some the DMA is an open-ended instrument, and thus it envisages policymaking. Should the Commission concretise what it aims to see as contestability and fairness as overarching goals? But then would this vision become somehow binding? Wouldn’t the Commission thereby get into the Art 102 TFEU Guidance Paper trap? On the other hand, without such specification it will probably leave it to the Court to specify.
✔ Academic life: teaching at the LSE.
✔ Decoding the introductory remarks in the book that “the classroom is the ideal space to test the most effective way to convey complex concepts”.
✔ College of Europe or/and EUI?
✔ Recommendations to students and to colleagues who are at earlier stage of their academic career.
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The Digital Markets Research Hub is an independent academic initiative aiming at scrutinising the functioning of competition/regulation in digital markets. We host one-to-one interviews with leading policymakers, regulators and practitioners. We also organise online mini-workshops inviting high-profile experts and academics in various fields of digital competition law & policy to discuss the most vibrant issues of the ongoing regulatory reforms in digital markets. While having our clear normative stand on the matters discussed within the hub, we value different views and invite relevant stakeholders and thinkers representing the whole spectrum of reasonable positions on how to regulate competition in digital markets. All our materials are available at YouTube channel, which you are very welcome to subscribe to. The interview is organised & conducted by Prof. Oles Andriychuk, Newcastle Law School, UK