Stress tests are important. They assist doctors in detecting heart abnormalities, financiers in anticipating financial shocks, and engineers in learning about the hidden vulnerabilities of operating systems. They test regulators’ creative theories of enforcement and regulation and the long-term sustainability of their policy choices. The European Union’s antitrust policy faces three major stress tests at a critical time, as a new European Commission for 2024–2029 is about to be established.
The first stress test evaluates the effectiveness of the EU’s Article 22 referral policy and the Commission’s capacity to potentially examine any merger globally. The extraterritoriality of the EU’s merger policy and the effectiveness of the ‘Brussels effect’ are currently being challenged, going beyond the technical aspects of the discussion. I predict, as I previously stated that the Commission will not pass this test.
The second stress test pertains to the EU’s Digital Markets Act (DMA), aimed at fostering regulatory dialogue and timely interventions to prevent litigation in the realm of digital competition. Based on the latest developments, I once again predict that the European Commission is likely to fail this test due to its litigation-driven enforcement of the DMA.
The third and final stress test evaluates the EU’s regulation of artificial intelligence (AI) with the aim of promoting both competition and innovation. The EU has the potential to achieve success if it makes the correct choices based on rational decision-making and avoids dogmatism.
There are three stress tests that the future European Commission must face, each with its own level of difficulty: one failure that is expected, one failure that is probable, and one success that is possible. These tests present significant challenges, they nonetheless cannot be avoided. I analyse the reality of each of these three stress tests and provide guidance on how to respond to each of them, before concluding.
