Elon Musk’s corporate empire spans an impressive array of markets and industries. As highlighted by Alemanno and Veraldi, this empire includes SpaceX (and its subsidiary Starlink), Tesla, Neuralink, The Boring Company, X, xAI, and the Musk Foundation. These corporations are connected and interlinked, creating a cross-corporate power structure. The inclusion of the social media platform X seems to function as a power booster, at the very least for Musk himself. Musk’s role (and ownership) in each of these corporations vary: he is sometimes the CEO, the founder, or the president (in this case, of the Foundation). On a hypothetical scale of a CEO’s power over multiple companies, Musk’s position clearly stands out. However, as European competition law usually starts from the premise of an undertaking’s market power on a specific relevant market – the relevant market conceptually tied to the harm that is to be addressed – this kind of power is not really captured by its provisions.
The platformisation of the economy and the rise of big technology corporations have given rise to new concepts of power (including in non-legal literature: Van Dijck, Nieborg and Poell; also: Seipp). Linking this literature to competition law, we propose a concept that is better suited to capture the complexity of the power of these corporations than the narrow concept of market power (Gerbrandy and Phoa). Our notion of Modern Bigness encompasses market power, data power and technological capabilities, a combination of which lead to the exercise of that power in their instrumental, structural and discursive dimensions (see Fuchs). The intention of this concept is to capture better the reality of the multifaceted power of big technology corporations. Focusing on the topic at hand: Musk’s grand vision ties his companies together; his whims have direct impacts beyond the individual companies (Tesla workers were shifted to X after Musk bought X), but also seem to influence strategies of other tech giants (Meta announcing a change to their content moderation policies in favor of X’s “community notes” is a notable example). This influence extends beyond the conglomerate structure itself (for example, Musk’s statements can instantly impact the value of cryptocurrencies like Dogecoin and crypto markets as such).
The geopolitical implications of Musk’s influence further complicate the picture. For example, Starlink has become essential to Ukraine’s war efforts, while SpaceX remains critical for access to the International Space Station (ISS).
Competition law, which focuses on market power in narrowly defined relevant markets – say, a market for booster rockets – has very limited reach to guard against the possible detrimental effects of such multifaceted concentrated power in the hands of a few on open democratic societies.
Tech-bro power in politics
The Silicon Valley tech-bros’ turn to politics adds another layer to concentrated power. This includes the apparently personal links that cement the connection between market power and political power: Musk’s political ties and friendliness with the U.S.-President, his (and other tech CEO’s) political donations, and Musk’s involvement in the DOGE-‘department’. More importantly, Musk and his team have at the time of writing access to the U.S. Treasury’s Payment System. More is probably to follow.
Such connections evoke historical parallels to a troubling period in European history leading up to WW-II. Preventing accumulation of political and market power has had an influential role in shaping post WW-II European competition law (see Deutscher and Makris; Küsters): a strong set of rules protecting the accrual of power in the political realm was seen as inseparable from rules safeguarding competition in the market realm, precisely to avoid a toxic-for-democracy cocktail of both realms.
From a competition law perspective, when using a multifaceted concept of corporate power, political power (we have argued) comes into its regulatory scope when tied to the underlying economics of corporate conglomerates. As we discuss elsewhere, for example, political microtargeting impacts the autonomy of citizens but also limits choice and lowers quality for consumers of social media content. Wielding discursive power by (algorithmically) promoting certain content (as seen with X favoring far-right narratives, including globally) may lead to less pluralism of voices in media markets and a lower quality of the Habermasian digital public sphere (Gerbrandy, Morozovaite, Phoa, forthcoming). Any discussion on these more novel theories of harm that stem from multifaceted power, however, starts from the premise of corporate structures. It does not focus on the personal links between Musk and politics. However, the apparent entanglement of corporate and political power at the CEO-level, coupled with the need to protect the structures of democracy, strengthens the argument for a more proactive role for European competition law.
The future political economy of space
There is also power beyond the Earth. Starlink is important in seeding low earth orbit with its satellites, while SpaceX rockets and launch capacity are essential for deploying these satellites. In any interpretation of EU competition law, this might imply control over what is labeled an ‘essential facility’ – a pivotal infrastructure – which, in this case, is used for launching satellites that compete with other providers. (This, to be clear, is not in itself prohibited, but it does indicate power; also: Bezos’ Blue Origin might become a credible competitor).
Let us now zoom out to outer space. Here, Musk, as CEO/owner/president of his many companies, has a clear vision for space exploration and colonization. He has access to his own social media platform, owns companies that are important players, and more generally has a strong voice in shaping the discourse around ‘going to space’. It is a vision, shared with other voices, of colonizing Mars and protecting humanity in the face of Earth’s fragility, and of dreaming big. It has also been labelled a deeply flawed, exploitation-based, self-serving, vision, and as Van Eijk argues, goes against the designation of space as ‘global commons’ in 1967. There are of course other imaginaries of space (say: Star Trek), but while space-related endeavors are still strongly linked to the political will of nation-states, it is not only relevant that Musk’s companies have strong links to NASA, but also that Musk himself does (currently) have access to political will, including when it comes to (shaping) political decisions around investments that may be of benefit to these same (space-going) companies. There are uncertainties here, depending on what happens in the space race of the next decade, but at the very least, this combination has the potential to play an important role in shaping the political economy of space.
Limitations
We seem, however, to hit a wall at this point because the relevance of competition law to an individual’s power is not a given. The doctrine is clear: Competition law does not apply to individuals but to ‘undertakings’, and that means an entity being engaged in ‘economic activity’. While individuals can constitute an undertaking (self-employed persons might be an undertaking in the competition law sense), CEO’s – even those with powerful voices shaping both current political debates and the future political economy in space – do not. This is because political involvement, in itself, is not easily regarded as an ‘economic activity’.
One might argue that a CEO purchasing access to political power to secure favorable outcomes for their companies does constitute an economic activity. But perhaps other legal and non-legal instruments – as also covered in this debate series – might be better suited here. Nevertheless, as Cseres argues, strong and independent enforcement of competition law is always relevant to fight corruption.
Beyond the legal limitations on applying European competition law to an individual’s power, there are also constraints rooted in geopolitical realities (also see Moser and Hempel in this series).
Additionally, limitations stem from principles underlying separation of powers and the legitimacy of (independent) regulatory agencies. These are inherent in the political economy and basis of the European Union in constitutional democracy, reflected also in European competition law (see Bernatt). We do advocate for a stronger role for competition law in protecting these underlying democratic structures, including considering (really) ‘breaking-up’ big tech companies as a competition law response (D’Amico and Gerbrandy). However, creating unaccountable or unlimited regulatory power is not the answer. A fiercely independent judiciary plays a crucial role here, though this has perhaps been taken for granted—more so in some EU Member States than in others. As the ordoliberals rightly emphasized, there has to be a balance of power not only between private, public and political actors but also across different public values. The question is then, where in the current rapidly changing power structures, especially in the USA, but equally in the EU, the balance will and should be struck.
To support and strengthen the structure and fabric of constitutional democracies, European competition law can indeed step up. At the same time – and we echo here the sentiment expressed by others in this debate series (Van de Kerkhof, Robertson, Davies & Cohen and Moser & Hempel) – protecting constitutional democracy requires more than the application of a single legal instrument—it demands a sustained, concerted effort.
