Speaker: Dr Andriani Kalintiri, King’s College London

Abstract: Is EU antitrust law resilient in the face of change? This question has acquired prominence amidst the many crises and disruptions of recent times, such as the COVID-19 pandemic, climate change and digitalisation. Attempts to answer it though have been rather narrow in scope and tend to employ the language of resilience casually. This article contributes to knowledge (a) by developing a conceptual framework for understanding and assessing legal resilience in administrative enforcement systems and (b) by applying it to Articles 101 and 102 TFEU with a view to investigating its ability to respond to change in a systematic manner. The analysis reveals that the current regime exhibits several design features that enable decisionmakers to make resilience choices as needed, and the resilience choices that have been made on various occasions are prima facie justifiable given the nature of the problem the European Commission and/or the EU Courts were faced with. However, certain aspects of the existing legal framework may weaken or limit EU antitrust law’s ability to deal with certain problems, in particular (very) complex ones, whereas some of the resilience choices that have been made have had implications for legal certainty, coherence and legitimacy that may not have been sufficiently appreciated so far. The article highlights the added value of a legal resilience perspective for effectively using EU antitrust law as a tool for tackling problems in an ever-changing world and demonstrates that, albeit not a panacea, such a perspective may reinforce the quality of enforcement and public’s trust in it.

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