This article is an opinion piece by current students or alumni of the College of Europe. The views expressed are those of the authors and do not necessarily reflect the opinions or positions of the College of Europe. Responsibility for the content lies solely with the authors.
By Anna Parkhomenko and Anna Haesaert
In this interview, Bernd Meyring, Global Head of the Antitrust and Foreign Investment practice at Linklaters, Visiting Professor at the College of Europe, and President of the College of Europe’s Global Competition Law Centre (GCLC), shares his perspective on the main legal challenges in the automotive and digital sectors.
Question one: Are EU merger control, the Foreign Subsidies Regulation, and the proposed Automotive Package and Industrial Accelerator Act converging into a single, de facto industrial policy enforcement framework? What does this mean for the future of EU competition law?
Answer: Many areas are becoming highly regulated, and in the automotive industry, competition law has seen merger control cases where there is significant pressure toward consolidation. At the same time, given the current definition of the automotive market, the sector may have reached certain limits in what can be achieved in this area. However, there remains a strong need for investment, particularly in R&D. For that purpose, European car manufacturers are currently focused on selling various non-core assets in order to generate the cash they need for this transition. Competition law as such has not been a problem for the automotive sector; the issue lies particularly with consolidation. The FSR is similar in this respect. Some actors come from countries where the sector benefits, directly or indirectly, from significant subsidies. However, when looking at the projects these companies undertake in Europe, the FSR does not currently appear to pose a major obstacle. While these tools work well in other industries, they do not seem to address the main pressure points in automotive manufacturing.
Another concern arises when companies from other countries acquire critical technologies. In these areas, European industries are struggling, for example, in relation to certain chips and other tech products that are essential for the automotive sector. European technology is sometimes acquired by actors from third countries, and the Commission does investigate such cases. However, it often becomes clear that regulation is not the solution. The Commission may have wanted to intervene, but doing so would have led to the closure of the European company, which was not sustainable on an independent basis due to a high cost base, insufficient scale, and the fact that many of its customers were located outside the EU. Therefore, tools aimed at preventing acquisitions do not always work, as an acquisition may still be preferable to the closure of a European company that can no longer operate independently. This is where the appropriate form of state aid and well-designed regulation can make business easier for companies on the ground, while still coexisting with competition law. In reality, there is very little tension between them.
The automotive package includes the EU “Battery Booster” strategy. Through this initiative, the technology developed will be made available broadly. In some ways, it resembles state aid, as Europe is investing in certain industries in a more structured manner. While this provides support, it does not restrict the application of competition law. On the contrary, it helps companies compete and does not lead to monopolisation. From a merger or antitrust perspective, there is no real issue. The challenge is that certain activities previously did not take place in Europe and are now being developed there. While this enhances output, it requires substantial investment, and that funding must come from somewhere. However, this is not fundamentally a competition law issue.
Answer: Currently, three different tools are in place:
In the area of merger control, there is no fundamental or game-changing reform. However, we need a more long-term and risk-based approach, balancing the likelihood of a risk against the magnitude of its potential impact. For instance, a 5% risk that could lead to the monopolisation of an entire industry and create European dependency is far more significant than a 5% risk of a 1% price increase. A similar reasoning applies to potential benefits. If an initiative could generate substantial benefits, even though those benefits are unlikely to materialise, it is necessary to assess whether it is still worth pursuing. Many ventures that have the potential to create significant value also carry a higher risk of failure. If there is even a possibility that an initiative may succeed, it may be worth taking the risk in some cases and wit the right risk mitigating measures in place. Crown jewel remedies may be an option. In some industries, only one out of five innovation projects ultimately produces a viable outcome. Although each individual project is more likely to fail than to succeed, companies still find it worthwhile to make these investments because the potential returns can be significant. And it this is so, such investments should be treated as a tangible benefit that is thrown into the balancing of potential benefits and harm.
Strategic autonomy and security considerations therefore have a role to play. However, allowing consolidation for industrial policy purposes would often come at a significant cost for consumers, and may also have negative effects on competitiveness. It is likely to be more effective if these objectives are pursued through other policy tools.
Answer: The various labels and their impact on competition are highly interesting. Some labels are created by companies for sustainability or other purposes, and their effects can be somewhat ambivalent. On the one hand, they provide benefits to consumers by giving them clearer information about the products they purchase. They make valuable product attributes marketable by enabling consumers to make informed decisions. This is a positive effect of labels. However, they may also create negative effects in terms of bureaucracy, procedural requirements, and compliance costs. For smaller companies in particular, these requirements may be too burdensome, potentially leading to foreclosure effects. And where a label is not reliable, if may spread misinformation and misconceptions.
Labels introduced by governments or the EU will often be preferable to private labels, as they tend to be more neutral and create fewer foreclosure effects. In the case of a “Made in the EU” label, consumers are free to make their own choices. Such a label would enhance transparency by clearly indicating compliance with rules of origin. Consumers should be able to decide what they want to buy, and competition is unlikely to suffer as a result. Over the past two decades, competition law has largely been guided by a origin neutrality. In a highly open and rules-based global economy, it was generally assumed that the origin of products should not matter; instead, competition should be driven by quality and price. Dependencies on other countries were not considered problematic because markets were assumed to remain open. In today’s world, promoting the EU as a place of production does not present a problem. Many countries do the same through “Made in …” labels, which have long been widely used.
There is an impact on competition in the context of procurement rules. By reducing the range of choices available, they may limit competition. This can narrow markets and potentially lead to higher prices for the same level of quality. In some cases, it may also reduce quality if certain bidders are excluded from the process. Nevertheless, such outcomes may be justified in particular circumstances.
Question two: Could sustainability narratives and compliance cooperation become behavioural tools for coordination between car manufacturers? Is there a risk of ‘green behavioural cartels’?
Answer: The issue appears to be largely academic. To date, there have been no clear cases in which companies generated substantial value through cooperation that could only be achieved jointly, and where this cooperation subsequently created a serious competition concern. Cooperation can produce both positive and negative effects. Existing frameworks on standardisation and sustainability can be incorporated into this broader approach.
From a competition perspective, it is generally preferable for governments to set the relevant standards, after which companies can compete to comply with them. While standardisation can be beneficial, caution is necessary when companies coordinate, as their primary objective is to maximise profits, which is also their expected role. For that reason, companies are unlikely to agree collectively on measures that increase costs solely because they benefit the environment.
There is a considerable degree of legal certainty in this area. The guidelines provide meaningful guidance, and EU authorities are generally open to engaging with companies where there is genuine uncertainty about proposed initiatives. In that sense, the existing framework likely already provides the appropriate tools to address such situations.
It is natural for companies to be incentivised to use such opportunities to maximise profits rather than pursue broader objectives. That said, profit maximisation and sustainability goals can sometimes align. Introducing further restrictions on competition at this stage would likely cause more harm than benefit.
Question three: How should EU competition law assess increasing vertical integration in EV supply chains, particularly in batteries, charging infrastructure, and software ecosystems? Are we seeing the emergence of de facto essential facilities in battery technology?
Answer: While I am not an economist, it is clear that the EU automotive industry currently faces the challenge of making extremely large investments. In some cases, companies are even selling nearly all non-essential assets in order to finance these investments. In such circumstances, it is important to consider how the results of those investments are treated. If the outcomes are too readily classified as essential facilities and access must be granted to everyone, this could undermine incentives to innovate and to make those investments in the first place.
In this context, competition law is fundamentally neutral. For existing technologies, regulatory approaches or interoperability requirements may be more appropriate, especially where duplicating infrastructure would be inefficient. While such assets may not necessarily qualify as essential facilities, caution is required to the extent that they might, given the substantial investments involved. The more pressing concern may instead be interoperability: when infrastructure is duplicated due to a lack of interoperability, this can result in significant inefficiencies. Issues of this kind are likely better addressed through regulation rather than through competition law. If a company develops superior battery technologies, I would be very reluctant to require that it grant general access to that technology.
Question four: Do you see the current enforcement landscape as a deviation from the DMA’s original intent, or an inevitable consequence of its design?
Answer: The cases appear to be broadly in line with what was originally planned. The DMA was designed to accelerate and simplify enforcement while providing greater legal certainty than traditional competition law. If that was the benchmark, however, some doubts remain. DMA enforcement actions also end up in court and often lead to lengthy debates about remedies and compliance. As a result, the framework has delivered to some extent, but far less than many had anticipated.
Another surprising aspect is that the highly regulated environment does provide legal certainty, though less than originally anticipated, but it also entails certain downsides. In particular, the rollout of some technologies in Europe has been delayed. In fast-moving sectors such as AI, developments evolve rapidly, yet despite the flexibility built into the DMA, the framework remains relatively stringent.
Question five: DMA allows national competition authorities to interpret its provisions, was this, in your view, an intentional compromise?
Answer: This aspect of the DMA was long negotiated. Initially, it was not particularly controversial; however, tensions later arose between the Commission and the Member States over who should hold the relevant powers. A one-stop-shop approach was considered necessary for the European market. Given that some Member States have limited administrative capacity, a regulation helps ensure that the obligations are effectively enforced and not overlooked.
There are three mechanisms through which Member States can play a role:
At the same time, National authorities have, however, brought cases to the Commission’s attention, and this mechanism appears to function effectively. Mechanisms where member states can enforce their own national rules have been strange. In Germany, for example, cases involving Amazon and Apple have been pursued by the competition authorities even though the conduct could potentially fall within the scope of the DMA. When such cases reach national courts, they are not always referred to the Court of Justice for interpretation. This raises important questions about the limits of national authority and whether national enforcement may overlap with the Commission’s mandate.
If national authorities do not refer such cases to the European Court, the Court has no opportunity to intervene. And what seems clear to a German judge may not seem clear to an EU institution. In the current political climate, the Commission is unlikely to initiate infringement proceedings. Traditionally, it would be the Commission’s role to ensure that the boundaries of competence are clearly defined. However, the Commission appears reluctant to take that step. It may also perceive advantages in not being the sole authority responsible for enforcement, particularly in the present geopolitical context.
Question six: Is there a realistic policy fix that could still restore the DMA’s harmonisation objective?
Answer: If everything functions properly, matters should ultimately be clarified by the Court of Justice. Decisions adopted under the DMA are almost invariably challenged, whether they originate from national competition authorities or from the Commission. In time, national courts should refer relevant questions to the Court of Justice in order to ensure legal clarity. If this does not occur, the Commission has the possibility to initiate proceedings. The necessary tools therefore exist; the key issue is whether they are actively used.
Risks to harmonisation arise in many regulatory areas, not only under the DMA but also in other fields such as the GDPR. When cases do not reach the Court of Justice, disparities in interpretation and enforcement standards can emerge. Nevertheless, although some challenges exist under the DMA, the situation remains comparatively better than in other areas. Provided there is sufficient willingness to act, the framework already contains the tools required to ensure harmonisation.
Question seven: Is EU competition law still primarily a legal discipline, or has it become a tool of economic and political governance?
Answer: This is a difficult question. Competition law has evolved considerably over the past decades, and its application has consistently reflected the broader economic and political pressures of the time. From the 1960s to the 1980s, the primary objective was to ensure the proper functioning of the internal market. This was followed by a period focused on preventing the most harmful forms of cartelisation. Once that objective had largely been achieved, the “new economic approach” emerged, placing greater emphasis on efficiency considerations. Over the past 20-30 years, competition law has adapted relatively well to this efficiency-oriented framework. Nevertheless, the system cannot remain entirely static; when the surrounding environment changes, competition policy cannot remain unchanged.
The selection of cases by enforcement authorities is ultimately a discretionary decision, and the Commission is, to some extent, a political body. This discretion must be exercised in line with prevailing policy priorities. While the core rules and their enforcement should remain consistent, the tools used to apply them may need to evolve when they prove inadequate. In practice, most changes have occurred in areas where the law allows discretion; there has been little bending of the underlying rules themselves. If the Commission were simply to disregard the legal framework, it would quickly face judicial review.
What the Commission views as a priority today may differ from its priorities a decade ago, but this is not unique to competition law. Nonetheless, such developments should be carefully monitored. Competition law is rules-based and must remain predictable. It involves significant fines and can restrict companies from engaging in activities that may be commercially important to them. Moreover, there is a clear fundamental rights dimension, meaning that enforcement must strictly adhere to the law. In his view, this remains the case. Within the current institutional framework, he does not foresee major structural changes, although enforcement priorities may evolve over time.
The fundamental question is whether competition law conflicts with competitiveness or whether it ultimately supports it. In most cases, competition law reinforces competitiveness, although there may be situations at the margins where this relationship becomes less clear. The question then becomes how such cases should be addressed. Discretion within the existing framework allows authorities to respond to these challenges. Traditionally, analysis has relied on precise short-term counterfactuals, but there is nothing preventing a more long-term and strategic perspective. Provided that such an approach remains grounded in evidence, the existing tools can be adapted to accommodate it.
Bernd MEYRING
Bernd Meyring is widely recognised as a leading European competition lawyer. He has been advising major national and international corporates, banks, and institutions on all areas of competition law for over 20 years, with a focus on EU and global merger control and foreign direct investment proceedings, anti-cartel and unilateral conduct investigations, and state aid matters. He has acted in a wide range of competition and foreign investment regulators in and outside Europe and conducted proceedings in English, French, German, and Dutch.
He is an experienced litigator before the General Court and the Court of Justice of the European Union, where he has represented clients in well over a hundred cases, on matters involving antitrust, state aid, transparency, financial and environmental regulation, and the fundamental freedoms.
Bernd Meyring is the Global Head of the Antitrust and Foreign Investment practice at Linklaters and the president of the College of Europe’s Global Competition Law Centre. Before his appointment at the College of Europe he lectured at the University of Strasbourg and at the University of Frankfurt/Main.
He studied law at the universities of Würzburg and Munich, holds a master’s in law from the College of Europe, is an ancien élève of the French École Nationale d'Administration, and holds a Ph.D. in international law from the Humboldt University of Berlin.
Anna PARKHOMENKO
Anna Parkhomenko is an LL.M. candidate in European Legal Studies at the College of Europe. She holds an LL.M. from the Université libre de Bruxelles and is finalising her Master’s in Belgian Law at the same university in parallel with her studies at the College of Europe, in order to qualify for admission to the Brussels Bar. She previously worked at an international law firm and completed a Blue Book traineeship. Her research interests include competition law and economics, as well as digital law. She currently serves as Director General of the Competition Society at the College of Europe.
Anna HAESAERT
Anna Haesaert is an LL.M. candidate in European Legal Studies at the College of Europe. She holds an LL.M. from Maastricht University and is registered in parallel with the College in the Master's in Belgian Law at the KU Leuven. She previously completed traineeships with an in-house legal counsel at a world-leading R&D hub in nanoelectronics and digital technologies, and in a Belgian law firm. Her research interests include Competition Law and Intellectual Property. She is part of the board of the Competition Society of the College of Europe.
