The Choice of Legal Basis in EU Competition Law: Shifting the Competence in the Digital Era

This article analyses the competence shift in EU competition law, with a particular focus on the digital era and the EU’s institutional dimension. As will be argued, the latter is expanding by means of new legislation in the Digital Single Market. Particularly Article 114 TFEU is employed as a legal base for this purpose, which essentially harmonises and pre-empts Member States’ action in this area. The article argues that the Commission’s preference of Article 114 TFEU over Article 103 TFEU significantly alters the constitutional setup of competences in the area of competition law as codified by the Treaty of Lisbon. This is further exacerbated by the new ex-ante mechanism as opposed to the traditional ex-post framework. In addition and with regards to judicial review, the courts have often interpreted general criteria of legal basis litigation in favour of the EU institutions and thereby increased and legally manifested their powers vis-à-vis the Member States. The article concludes by arguing that regulation and centralisation in the Digital Single Market not only increases the EU’s institutional dimension, but also serves as a proxy for treaty change.