The Art to Make Gatekeeper Positions Contestable and the Challenge to Know What is Fair: A Discussion of the Digital Markets Act Proposal

Abstract

The Commission‘s proposal for a Digital Markets Act (DMA), published on 15 December 2020, is currently reviewed by the European Parliament and the Council. This paper looks at the relationship between the DMA and EU competition law and suggests that the DMA should be interpreted as a measure of competition policy, if not competition law proper. It follows that the DMA‘s fairness goal, the gatekeeper concept and the lists of obligations imposed on gatekeepers should be read in a competition policy light. The gatekeeper concept should be applied cautiously in oligopolistic settings. And the DMA should introduce more flexibility and possibilities for tailoring when it comes to imposing obligations on gatekeepers. On the enforcement side, this paper argues in favour of a decentralized public and private enforcement regime.

Keywords: Digital Markets Act, DMA, platform regulation, gatekeeper, fairness, competition law, digital, platform

JEL Classification: K21, K23, L4, L51, L96, L97