Sector-Specific Ex Ante Regulation in Digital Markets - A Complement or Substitute to Antitrust Enforcement?

Abstract

This paper studies the relationship between sectorspecific ex ante regulation and antitrust enforcement in light of the Digital Markets Act “(DMA”). The article starts by assessing the legislative nature of the DMA: a regulatory instrument with objectives highly derived from antitrust methodology: fairness (recital 33 - prevent imbalances between business users and gatekeepers) and contestability (recital 32 - decrease entry barriers aswell as direct/indirect network effects and economies of scale and scope). The ex post enforcement mechanisms in the DMA also makes it hard to distinguish from antitrust: if gatekeepers do not comply with the rules as first expected, the commission can impose remedies under article 18.

A majority of the dos and dont's in the DMA are inspired by exploitative and exclusive abuse of dominance cases and investigations under article 102 TFEU. The paper thorougly questions whether the DMA will substitute rather than "complement" antitrust enforcement on digital markets (as stated by the legislator itself in recital 10). Since the Commission will not apply a formalistic antitrust methodology under the regulatory regime, DMA will prevail to make enforcement more efficient. What happens in cases where competition law is willing to further (e.g., justify a blacklisted gatekeeper behaviour under efficiency defence - a mechanism which the DMA lacks - probably due to the legislators will to avoid time consuming economic analysises) is, at this stage, unclear. The DMA seems to allow the Commission to conduct a proportionality test to deviate from the ex ante rules (recital 27).

Although the DMA indeed can be described as an antitrust statute, a framework which is categorized by case-by-case analysis’s rather than prescriptive rules, the article emphasizes the need of implementation regulation to ensure legal certainty. Article 46 of the act allows for a wide range of implementation. A member of the DMA task force has however said that the aim right now is to gain experience in enforcement and only then come with implementation regulation on the substantive parts of the ex ante rules. One area where guidlelines may very well be needed to ensure legal certainty are the rules governing data portability, for example article 6.9. This obligation imposes gatekeepers to provide end users and thirds parties with an “effective portability of data”. What is expected by gatekeepers to comply with such a general rule will, without further guidance, indeed have to be clarified by the commission ex post.

With regard to procedural aspects of the DMA, the paper advocates clarifications on the possibilities for NCAs to use domestic competition tools for digital platforms at the same time as the commission evaluates compliance under DMA. As the commission will be the sole enforcer of the DMA and cannot be everywhere, national competition law enforcement on digital markets will still be important.

As recently confirmed in a press conference by the Commission, gatekeepers will have to comply with the dos and dont's by March 2024 (after the 6 month period from publishment in the official journal, gatekeepers have a 2 month period to designate themselves and after this an additional 6 month period to adapt to the obligations). This period of implementation will surely be of great importance for the future of large antitrust cases in digital markets.

Keywords: Digital competition, digital regulation, antitrust, Digital economy, DMA, competition law