Book Review: Questioning the Role of Competition Law in the 21st Century

BOOK REVIEW: QUESTIONING THE ROLE OF COMPETITION LAW IN THE 21ST CENTURY EDITED BY ACHLEITNER – FISCHER – HORNKOHL – ZELGER, based on the Young Competition Law Scholars Conference 2024 (Vienna)

In recent years, competition law has increasingly been called upon to address the challenges imposed by the Twin Transition. Digital markets continue to expand, forcing regulators to recalibrate the relationship between competition law and adjacent regulatory frameworks such as the DMA, the DSA and the AI Act, particularly in response to the growing market power of tech companies. At the same time, the EU Green Deal has placed sustainability objectives at the centre of EU policy, prompting businesses to rethink how cooperation, innovation and market conduct can contribute to long‑term environmental and social goals. Beyond that, both the Letta and Draghi reports have devoted significant attention to the need to strengthen the EU’s competitiveness in global markets, especially vis‑à‑vis economic powers such as the United States and China. Taken together, these developments unfold within a complex and fragmented geopolitical scenario in which competition law can play a particularly relevant role.

In this context, Questioning the Role of Competition Law in the 21st Century, edited by Achleitner, Fischer, Hornkohl and Zelger, offers a timely and well‑structured examination of how these forces are reshaping the discipline. The volume is organised into four parts, each of which examines a different facet of how competition law is being transformed by contemporary economic, technological and geopolitical tensions.

The first part opens with a fundamental inquiry into the objectives of competition law and asks whether the discipline is capable of incorporating interests that, at first sight, appear to lie beyond its traditional boundaries. Silvia Retamales Morales challenges the widespread assumption that competition law primarily aims at promoting the consumer welfare standard, arguing that the need to balance this objective with non‑economic public interest values may allow the discipline to address issues that cannot be captured through a purely consumer‑welfare‑oriented lens. To illustrate this point, the author draws on the example of the South African Competition Act and the Walmart–Massmart merger, showing how competition law served as a powerful tool for the country’s reconstruction and transformation.

Christiane Wakonig reflects on the integration of the concept of fairness into competition law. Although fairness has frequently appeared in Margrethe Vestager’s public statements and in several policy instruments, such as the ECN+ Directive, the DSA and the DMA, a clear definition of the concept remains elusive. After analysing fairness from both substantive and procedural perspectives, the author turns to Austrian legislation, which already incorporates fairness into its competition law framework, and uses this example to explore how fairness could operate as a legal principle capable of supporting the inclusion of non‑economic goals in competition law while still contributing to the assessment of economic efficiency.

Luca Graf and Giulia Sonderegger examine the extent to which the abuse of dominance can foster workers’ welfare in the context of seasonal agricultural markets, proposing an evolutionary interpretation of Article 102 TFEU. They argue that employers should be considered undertakings and that market definition should reflect the specific dynamics of labour markets. Moreover, with regard to the notion of abuse, they suggest that worker welfare can be understood in a manner analogous to consumer welfare. Drawing inspiration from the German Meta case, they propose a labour theory of harm based on the idea that violations of other legal frameworks may be relevant in assessing competition law infringements, especially in labour markets.

In this section, the authors adopt a top‑down approach, moving from overarching questions to targeted analyses. A common feature of these contributions is the valuable use of a comparative factual approach. By examining various competition law frameworks across different jurisdictions, the authors identify meaningful solutions to complex legal issues that are central to the incorporation of broader public interests into competition law. What clearly emerges is that comparative insights are not used merely to illustrate differences, but to test the limits of traditional assumptions and to show how alternative legal designs can broaden the analytical toolkit of competition law. Each contribution builds a solid legal foundation grounded in case law and statutory provisions from different systems, thereby offering a coherent and intellectually robust starting point for the broader reflections developed in the subsequent parts of the book.

Having assessed whether competition law is capable of integrating broader public interests, the second part turns to the question of “how”: which tools and mechanisms the discipline can rely on to pursue these objectives. Selcukhan Ünekbas argues that competition law should evolve beyond the prevention of anti‑competitive conduct to actively foster innovation and dynamic competitiveness. The author critiques the traditional scepticism in antitrust literature regarding the relationship between competition law and competitiveness, noting that antitrust was historically viewed as detrimental to competitiveness and more closely aligned with industrial policy than with competition enforcement. In contrast, he shows that the two concepts are compatible and that modern competitiveness is a dynamic notion linked not to the protection of legacy industries but to parameters such as innovation, productivity and market dynamism.

Annika Stöhr offers an analysis of Section 19a of the German Act Against Restraints of Competition (ARC), the innovative tool enabling the Bundeskartellamt to intervene against digital platforms whose influence extends across multiple markets. She outlines how the authority first identifies such firms and then assesses specific practices, drawing on the initial decisions concerning Alphabet, Meta, Amazon and Apple. Stöhr stresses that Section 19a operates as a competition‑law mechanism, unlike the Digital Markets Act, which reflects a regulatory logic, and argues that the two frameworks pursue complementary aims. At the same time, she views the German model’s flexibility and stronger reliance on economic assessment as potential advantages, suggesting that a similar approach at EU level could, in some cases, prove more effective than the DMA. Elaine Dunne’s contribution explores the role of remedies in addressing anti‑competitive practices, emphasising their importance in preserving the integrity and dynamism of the internal market. Through an analysis of CJEU case law, the author highlights the centrality of the principle of effectiveness, showing instances in which it has not been adequately ensured, such as in the Google Shopping case. Given the fast‑changing nature of market realities, Dunne proposes the creation of a dedicated DG COMP unit tasked with ensuring adequate monitoring and robust enforcement.

Taken together, these contributions show how competition law can be operationalised to address contemporary market realities, offering concrete evidence of how traditional enforcement tools can be adapted to support a more forward‑looking and dynamic framework. By engaging with issues such as competitiveness, digital gatekeeping and the effectiveness of remedies, the authors illustrate that enforcement is not merely reactive but can be shaped to anticipate structural risks and market failures. This makes the second part of the book particularly valuable: it not only maps the existing toolkit but also shows how it can evolve to ensure that competition law remains effective, credible and responsive in an increasingly complex economic environment.

One of the core themes of the book is that competition law must increasingly operate within a fragmented global landscape shaped by geopolitical tensions. Against this backdrop, the third section turns to instruments that fall outside traditional competition law enforcement and examines how they can complement or reinforce the discipline in addressing these challenges.

In this regard, Nicole Deneka focuses on State aid law, analysing the role of temporary frameworks and their capacity to respond to major international crises such as the COVID‑19 pandemic and Russia’s aggression against Ukraine. After exploring the application of State aid rules in times of crisis, she highlights the importance of this area of competition law in ensuring the long‑term stability and fairness of the internal market. The author also argues that the balance between public‑interest considerations and the urgency of providing timely financial support can be achieved through detailed monitoring of the aid granted by Member States.

Sophie Bohnert examines the growing intersection between competition law and trade policy, arguing that the “more economic approach”, focused on market efficiency and consumer welfare, may be ill‑equipped to address broader contemporary challenges such as inequality, geopolitical tensions and sustainability, thereby leading to a form of “antitrust isolationism”. Accordingly, the author advocates for a “more integrated approach” to both policymaking and enforcement, an approach that is also encouraged by the EU Treaties. Another interesting angle on the relevance of this complementarity is addressed in Pierfrancesco Mattiolo’s contribution, which explores the interaction between the Foreign Subsidies Regulation (FSR) and the Merger Regulation in order to assess whether both economic and policy considerations can be taken into account and, by doing so, strengthen the EU’s global position. Against this background, the author also examines the potential overlaps between the FSR, characterised by an economic‑based scrutiny, and the FDI Screening Regulation, whose assessment is instead grounded in security and geopolitical considerations. Mattiolo ultimately argues that the FSR can be understood as “a continuation of policy with other means”, in the sense that it operates as a tool capable of reinforcing the EU’s competitiveness and, consequently, its global standing in an increasingly fragmented geopolitical landscape.

This section provides a particularly insightful analysis of the growing incorporation of geopolitics and geoeconomics into competition law, addressing one of the most debated questions of recent years: to what extent can competition law operate in complementarity with broader public interests? Moreover, the examples of State aid rules and the FSR clearly demonstrate that such interplay is not only possible, but increasingly essential to recalibrate the EU’s global position and strengthen its competitiveness, in line with the priorities highlighted in the Draghi report. Finally, the fourth part of the book examines the broader implications of integrating these public interests into competition law, suggesting that EU competition law is progressively extending beyond its traditional internal‑market focus.

Starting from a roadmap of how EU social values, such as equality and sustainability, are progressively incorporated into competition law, Richard Bunworth examines the relevance of the so‑called Brussels Effect in projecting these objectives beyond the EU’s borders, ultimately positioning the Union as a potential “champion of global welfare”. By contrast, the US system continues to adhere to a strictly economic approach that rejects distributional considerations. Against this backdrop, while the Brussels Effect may operate as a mechanism for exporting a more balanced and socially oriented vision of competition law, the author highlights the structural obstacles that arise within the EU–US regulatory race.

Tamta Margvelashvili’s contribution turns to the risks of competition enforcement in digital markets in the specific context of the Eastern Partnership (EaP) countries (Georgia, Ukraine and Moldova), which remain committed only to the minimum standards set by their Association Agreements. This results in an approach that is insufficient to meet the challenges posed by the digital ecosystem, especially when compared to the EU, which is addressing them through both landmark cases and ex‑ante regulation such as the DMA and the DSA. Compliance efforts in EaP countries therefore rely more on political goodwill than on binding obligations. The author argues that it is essential to provide these jurisdictions with technical expertise and to make digital‑market competition enforcement a core pillar of accession negotiations.

Ultimately, in a context marked by war, geopolitical tensions, and the urgent need to advance both the digital and green transitions, factors that increasingly drive divergent antitrust approaches across jurisdictions, this book offers a valuable guide to one of the defining questions of the twenty‑first century: what role should competition law play in addressing these systemic challenges?

This volume is highly recommended for scholars and practitioners interested in exploring competition law through the lenses of digital markets, sustainability, or geoeconomics. It is a timely and thought‑provoking contribution that deserves a place on the reading list of anyone seeking to understand one of the most significant transformations currently reshaping competition law.