Licence to Regulate: Article 114 TFEU as Choice of Legal Basis in the Digital Single Market
摘要
This chapter discusses Article 114 TFEU as the choice of legal basis in the Digital Single Market. It argues that the EU’s competence in the internal market has developed into a default option for harmonising measures in digitalisation, exacerbated by the Union’s new regulatory approach. With particular reference to the area of competition law and the recently introduced Digital Markets Act, Article 114 TFEU might constitute the Commission’s preferred choice for pragmatic reasons, yet not necessarily undisputedly so. The chapter will present and discuss a number of pressing alternatives available from a constitutional perspective, most importantly Article 103 TFEU under the policy area of competition law. As will be argued, a lex specialis might indeed entail advantages over the generic use of horizontal legal bases, such as Article 114 TFEU, despite often being overlooked in the quest for the correct choice of legal basis. With the Digital Single Market being prone to rapid change in technologies demanding swift regulatory replies and harmonised enforcement, the role of special legal bases seems even more marginalised to the detriment of intergovernmental flexibility and the constitutional setup of competence categories as codified by the Treaty of Lisbon.