Digital Markets Act: A Fair Framework for the Online World?

Abstract

The proposed Digital Markets Act is an instrument complementing established EU and national competition laws. Its objective is to ensure a fair and competitive digital economy in the EU by regulating 'gatekeepers’ (large online platforms under certain criteria) more flexibly and timely. This article analyses whether the current approach creates an appropriate instrument for achieving its objective. First, it deals with the question whether there is a need for a separate regulation, Second, the notion of a gatekeeper. The concept of ‘gatekeepers’ seems to be tailored to particular subjects that may not necessarily be dominant undertakings. This approach may help to tackle selected issues that current large online platforms face, but limiting some undertakings, regardless of their dominant position, may also distort competitive forces. Third, it deals with ex ante rules (in comparison to current ex post EU and national competition rules). Ex ante rules may, on the one hand, minimise the detrimental effects of anticompetitive practices. However, on the other hand, they may impose unnecessary limits where these practices would not cause future economic harm. Fourth, it deals with the limited role of national competition authorities in enforcing the Digital Markets Act. It is essential for the EU to have a coherent approach to achieve the enforcement of these rules effectively, but it seems unwise to completely omit national competition authorities, who have created successful decision-making practices in this area in recent years. Finally, its provisions dealing with access to data and its relationship with various regulations dealing with data. The lack of clarity may render these provisions ineffective.

Keywords: Digital markets act, EU competition law, Gatekeeper platforms, National competition authorities, Digital innovation