The European Union's competition policy can be best expressed in numbers. The European Commission has imposed antitrust fines of just over 30 billion euros since the turn of the millennium, especially against the notorious “tech giants”. Google alone had to pay around ten billion euros between 2017 and July 2026. A double-digit billion sum was also due when the EU competition authority decided in 2016 that Ireland had to reclaim tax benefits of 13 billion euros (plus interest) from Apple that were classified as state aid.
The Commission imposed the highest fine in a “classic” cartel case, i.e. an anti-competitive agreement between several companies, in 2016/2017 against the truck manufacturers Daimler, Scania, DAF, Volvo/Renault and Iveco. At that time, 3.8 billion euros were raised.
As useful as such figures may be, they miss the core of European competition policy. This is particularly true in the abuse proceedings against American digital companies such as Google, Intel or Microsoft. It wasn't the fine that hurt the companies. Not even in the Google Android case, when the Commission imposed the highest fine in a single case with an amount of 4.34 billion euros in 2018, did it particularly hurt the company - given its recent annual sales of over 400 billion dollars.
Rather, Google & Co. were burdened by the requirements imposed by Brussels. They always meant that companies had to stop the behavior that the Commission had identified as abusive and thus generally change the core of their business model. With EU antitrust law, the Commission has the opportunity to intervene in company structures and to pursue intervening industrial policy.
That wasn't exactly how it was intended when the protection of competition in European antitrust law was originally agreed.
The influence of the ordoliberals: competition disempowers
It was ordoliberal economists and lawyers from the German-speaking world who identified the protection of competition as the core of a liberal economic policy in the late 1920s and early 1930s. As Franz Böhm, one of the founding fathers of ordoliberalism, put it in the 1930s, competition is the “most ingenious instrument of disempowerment in history”. For Böhm, protecting him from private and political power with the clearest legal rules possible was a task for the state. Cartels and abuse of power should, if possible, be completely banned per se. State aid and monopolies can also distort competition in this interpretation.
The influence of the Ordoliberals on German antitrust law in the 1950s is documented. What is less known is that the ordoliberal ideas entered European law even more clearly than they did in German law. Walter Eucken's guiding idea of a system of undistorted competition found its way directly into European antitrust law. This was not least because leading ordoliberal lawyers exerted influence before and at the beginning of what was then the European Economic Community (EEC). Böhm, who has also been a member of the Bundestag since 1953, was directly involved in the negotiations over the contracts. His student Ernst-Joachim Mestmäcker, who would later become Germany's leading antitrust lawyer, was special legal advisor to the first competition commissioner, Hans von der Groeben, from 1960 to 1970.
The fundamentally market-oriented orientation of the EU's competition policy finds its visible expression in the fact that it addresses four categories that are classified as potentially harmful to competition: cartels, abuse of a dominant market position, mergers and state aid. The European Treaties contain a ban on cartels (now in Article 101 of the Treaty on the Functioning of the EU) and abuse of power (now Article 102). The treaty provisions on state aid (Articles 107-109) are less clear; they allow for a variety of exceptions. However, its basic principle remains clear: the aim of state aid control is to prevent distortions of competition by national governments.
For many years, the legal protection of a competitive economic order remained the main feature of European competition policy. This was based on abstract legal criteria and was characterized by the political independence of the competition authority and the associated strong position of the respective competition commissioners.
The Economization of Competition Policy: Empowering Industries
Around the turn of the millennium, something fundamentally changed in this orientation. The external reason was rulings by the responsible EU court in three merger cases. The judges declared the bans on mergers issued by the Commission null and void. Each time the justification was that the Commission had not adequately examined the economic consequences of a merger. This meant that neoclassical industrial economics found its way into competition policy practice.
It was the birth of the “more economic approach”, a more economic approach, promoted primarily by the then competition commissioner Mario Monti. Since then, possible efficiency gains from mergers, effects of any form of competition restrictions on consumers, possible incentives for innovation, the definition of relevant markets and a quantitative assessment of market power have played a significantly greater role - in contrast to the original goal of protecting competition. Since then, the Commission's Directorate-General for Competition has also had a “chief economist” who oversees all sensitive cases.
The economization of competition policy caused the influence of the comparatively simple ordoliberalism based on general legal principles to wane. The “more economic approach” gave the Commission a broader set of tools for examining possible restrictions on competition - from industrial to welfare to institutional economics, from game theory to econometrics. Whether the many new standards improved competition supervision remained controversial. All of them were and are subject to the caveat that efficiency gains, for example, cannot only be measured in the abstract, but must also be able to be predicted for the future.
More economy, more influence from the EU Commission
The large number of new criteria gave the European Commission significantly greater discretionary scope. It was now solely up to the authority to determine the efficiency gains of a merger and, for example, to weigh them up against possible disadvantages for consumers. Their leeway also increased when assessing state aid. The member states increasingly justified these in terms of industrial, employment, social or climate policy. The Commission decided whether to accept such justifications.
Digitalization has been posing completely new questions to competition policy for around twenty years. The power to dispose of data thus became a parameter for possible restrictions on competition. The market power of digital platform companies such as Google, Meta and Apple has become the central competition policy problem. They offer their own digital services on their platform and at the same time make them available to competing providers of such services. The increasingly urgent question was whether and under what circumstances a platform operator makes it difficult or denies market access for its competitors and whether this constitutes an unlawful abuse of power.
“Gatekeepers” limit competition
The figure of the “gatekeeper” was born. These are platform companies that make it difficult or block competitors' access to their platform. The abuse proceedings against Google over the Android operating system, the search engine Google Shopping and the advertising platform were based on the thesis that “gatekeepers” abused their power and should be sanctioned for it - with fines worth billions, but also with conditions.
Of course, these procedures usually took many years. The then competition commissioner, Margrethe Vestager, called for new instruments. She wanted to effectively prevent the digital companies from having long since used their market power as gatekeepers during the long legal proceedings to force the competition off their platforms.
A new law: the DMA
The result was the Digital Markets Act (DMA). It is only aimed at companies that the Commission has previously classified as digital gatekeepers. They are prohibited from engaging in certain behaviors that are inherently considered anti-competitive. This includes giving preference to your own offers on the platform, for example your own price comparison or marketplace in search results. It is also forbidden to use customer data in order to compete with them on your own platform. The list of prohibited behaviors is much longer.
On the face of it, the DMA's bans represent a return to the ordoliberal-inspired per se bans of the original antitrust law. In principle, the digital platforms can read from the law what they are not allowed to do, although companies like Apple complain that the specific interpretation tends to be ad hoc. Because the DMA goes beyond pure bans. The Commission was given the right to intervene in the business models of successful platforms even more than with traditional antitrust law.
In addition, the DMA does not apply to all companies, but only to those that the Commission classifies as gatekeepers. With the exception of the Dutch travel platform booking.com and the Chinese platform Tiktok, only American companies are currently on the Brussels list. Is this solely because the largest platform companies come from the United States? Or does the Commission want to use the DMA to protect European companies from American companies? The then Industry Commissioner Thierry Breton, who initiated the DMA law together with Vestager, said he pursued this goal.
Competition or politics?
In this respect, the DMA is an example of the EU Commission's increasing attempts to exploit competition policy for non-competitive political goals. This is particularly true for ecological goals. Collaborations that limit competition can now be justified and permitted with an increase in sustainability if companies jointly develop more environmentally friendly production methods. State aid that is intended to protect the climate does not fundamentally fail due to the aid rules.
Even more striking examples come from industrial policy. They amount to the demand that competition policy should not protect competition, but rather the competitiveness of (European) companies on the global market. In part, the Commission itself has hidden this type of industrial policy in EU state aid law, for example in the rules for supporting “important projects of common European interest”. This allows member states to support projects such as battery factories in several countries without having to comply with state aid rules.
The more important part of such industrial policy concerns merger control. Could Vestager still prevail today? At the beginning of 2019, the Dane banned the planned merger of the train divisions of Siemens and Alstom against strong resistance from Germany and France.
More influence from industrial politicians
This was necessary under competition law. However, the governments in Berlin and Paris accused the Commission of having to create a European champion. The Commission overlooked the fact that only a merged company could withstand the competition, particularly from China, on the global market. So far this view has not been confirmed.
The current Commission President Ursula von der Leyen was rather indifferent to competition policy in her first term in office until 2024. That has changed. Now it is willing to selectively support European companies and at the same time continue to pursue its “Green Deal”. Competition protection will not be abolished, but will increasingly be reinterpreted in terms of industrial policy. Competition policy instruments are used to promote strategic industries, create European champions and strengthen global competitiveness.
A competition commissioner for the transition
The realignment of Brussels policy was also reflected in the definition of the commissioners' responsibilities. The new competition commissioner, Teresa Ribera, is also vice president “for a clean, fair and competitive transition”. The Spaniard, who previously worked primarily in energy and climate policy in her home country, apparently liked this empty formula. In any case, Ribera does not have the role of champion of competition in public, which all her predecessors performed in one way or another. Where, for example, Vestager used important decisions made by her authority to promote the protection of competition in the market economy, the Spaniard does not even go public.
One idea is increasingly being forgotten in Brussels: Anyone who considers industrial policy to be more important than competition policy is depriving competition of its liberal core. When the state politically dictates certain industries, technologies or company sizes, competition is replaced by economic control. Mestmäcker put this in the statement that “you abolish positions of freedom when you predetermine their content.”
It cannot be said that industrial policy in the EU will prevail in the long term to the detriment of competition. This is true simply because von der Leyen is prepared to radically change course if it seems politically opportune. It may also be true because the European Union and the member states are in danger of running out of money they need for industrial policy support. And perhaps it is also true because only very few examples have survived that demonstrate the success of state economic development.
