EU Antitrust Law's Resilience: The Good, the Bad, and the Ugly

Is EU antitrust law resilient in the face of change? This question has come into the spotlight amidst the many crises and disruptions of recent times, such as COVID-19, climate change and digitalisation. This article contributes to knowledge by developing a conceptual and analytical framework for understanding and assessing legal resilience and by applying it to Articles 101 and 102 TFEU with a view to investigating their resilience in a methodologically rigorous manner. As the analysis demonstrates, the legal resilience framework has important descriptive and explanatory value and its application to EU antitrust law yields two important conclusions. On the one hand, the current regime is clearly not unable to deal with change, crises, and disruptions and claims to this effect would be unfounded. On the other hand, EU antitrust law might struggle to embrace epistemic developments and address problems in circumstances of uncertainty and complexity, at least not without its predictability, coherence and legitimacy becoming undermined. With these lessons in mind, the article considers how EU antitrust law’s resilience may be strengthened and offers various recommendations, taking into account ongoing policy initiatives and the recently published Draghi Report.