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Competition law in need for speed

The increasing complexity of competition law has considerably protracted procedures, seriously jeopardizing the goals of competition policy. The shortcomings are particularly pernicious in the digital economy but are not limited to a specific economic sector. The time has come to tackle the problem of overlong proceedings. On the one hand, the right mix should be found between form-based and effects-based elements; on the other hand, the instrument of interim measures should be revalued.

According to widespread opinion, competition law is not up to the challenges of the digital economy because undesirable developments happen faster than competition law can correct them. This may be the case, for example, if anticompetitive behavior cannot be stopped before markets have tipped and the winner has taken it all. Even if competition persists, the rent of anticompetitive behavior may be higher than the sanctions since fines are not necessarily linked to illegal gains, and in many jurisdictions, private enforcement has to be further developed so that an efficient breach of competition law is still possible. In any event, the general principle is that damages should better be prevented than repaired. And this is where competition law in its current shape shows deficiencies.

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Andreas Heinemann, Competition law in need for speed, November 2021, Concurrences N° 4-2021, Art. N° 102814, pp.2-4

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