The Digital Markets Act (DMA): A Procompetitive Recalibration of Data Relations?

54 Pages Posted: 8 Dec 2021 Last revised: 2 May 2022

Date Written: August 11, 2021

Abstract

Since its publication in December 2020, the European Commission’s regulatory proposal for a Digital Markets Act (DMA) continues to be the subject of sustained political and academic interest, particularly in the United States and Europe. Part of the “European strategy for data”, the DMA is designed to address “the most salient incidences of unfair practices and weak contestability” in the digital economy, responding to concerns about the data-derived dominance of U.S. technology companies operating in Europe. This paper aims to provide the first comprehensive legal analysis of the DMA’s recalibration of data relations in the European Union. Through an analysis of the data-specific obligations imposed on gatekeepers under the DMA and their interaction with existing laws and jurisprudence, this paper finds that the proposed access rights and limitations on the collection, combination and use of data give rise to significant ambiguities and could make “Big Tech” the winners of an act originally designed to tackle their dominance. This paper also finds that the DMA may recalibrate data relations in favor of Chinese tech companies wishing to strengthen their position in the EU against their U.S. competitors. Nevertheless, this paper will show that the adoption of the DMA will be a positive first step in the direction of recalibrating data relations in a way that – once teased out by future enforcement and caselaw – could allow for a more active contestation of digital markets, and a freer flow of data.

Keywords: Digital Markets Act, DMA, Big Tech, Technology, GAFA, Data, Competition, Law, Antitrust, Gatekeeper, Regulation, Digital, Platform, EU, European Union

JEL Classification: K19, K21, K23, L40, L51

Suggested Citation

Baschenhof, Philipp, The Digital Markets Act (DMA): A Procompetitive Recalibration of Data Relations? (August 11, 2021). Journal of Law, Technology and Policy, Volume 2022, Issue 1, Available at SSRN: https://ssrn.com/abstract=3970101 or http://dx.doi.org/10.2139/ssrn.3970101

Philipp Baschenhof (Contact Author)

New York University School of Law ( email )

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