The Digital Markets Act – Regulating the Wild West

Abstract

This contribution critically assesses the European Union’s Digital Markets Act (DMA). The DMA is the first comprehensive legal regime to regulate digital gatekeepers in the aim of making platforms markets fairer and more contestable. To this end, the DMA establishes 22 per se conduct rules for designated platforms. It also precludes national gatekeeper regulation by EU Member States, thereby calling into question the legality of the pioneering German sec. 19a GWB. The analysis shows that the DMA’s rules are not as rigid as they may appear at first sight. While it is more accepting of false positives than of false negatives, the DMA contains several corrective mechanisms that could allow the Commission to finetune the rules to address both the danger of over- and under-inclusiveness. A further positive is that the new regulation incorporates key concepts of the GDPR, and requires coordination between the Commission and key EU data protection bodies. On the downside, the DMA does not contain any substantive principles for the assessment of gatekeeper acquisitions, leaving a worrying gap. While the DMA’s conduct rules outlaw specific leveraging strategies in digital ecosystems and may thereby indirectly address certain non-horizontal concerns arising from gatekeeper acquisitions, it remains that the European Union’s existing guidance on merger control is seriously out of date. The merger guidelines therefore urgently need updating to include (workable) theories of harm for concentrations in the digital economy.

Keywords: Digital Markets Act (DMA), gatekeepers, competition, fairness, platform markets, ne bis in idem, digital economy, abuse of dominance, merger control, national regulation, sec. 19a GWB

JEL Classification: K21, D42, D43, K42, L41, O30