Gatekeeper's Potential Privilege – the Need to Limit DMA Centralisation
Forthcoming in: Journal of Antitrust Enforcement
26 Pages Posted: 5 Jan 2023 Last revised: 12 Jul 2023
Date Written: December 22, 2022
The Digital Markets Act (DMA) aims at promoting contestable and fair markets for core platform services by setting out obligations for designated gatekeepers. As the DMA does not clearly define these objectives, it comes into conflict with national legislation with overlapping objectives. This may include unfair competition laws and sector-specific regulation. Article 1(5) DMA addresses this conflict by stipulating that Member States may not impose further obligations on gatekeepers for the purpose of ensuring contestable and fair markets. The effect this has is that national provisions vis-à-vis gatekeepers may not be applicable anymore and competences are centralised on the European level more broadly than potentially envisaged by the European legislature. This centralisation of competences runs the risk of inadvertently privileging gatekeepers by blocking national laws that are, however, still applicable to SMEs and other firms competing with gatekeepers. This paper suggests solutions to mitigate such risk.
Keywords: European Union, Digital Markets Act (DMA), principle of subsidiarity, gatekeepers, SMEs, platform economy, digital economy, digital single market, legislative process, enforcement, pre-emption of national laws, privileging of gatekeepers
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