Gatekeeper's Potential Privilege – the Need to Limit DMA Centralisation

Max Planck Institute for Innovation & Competition Research Paper No. 23-01

Forthcoming in: Journal of Antitrust Enforcement

26 Pages Posted: 5 Jan 2023 Last revised: 12 Jul 2023

See all articles by Jörg Hoffmann

Jörg Hoffmann

Max Planck Law Network - Max Planck Institute for Innovation and Competition

Liza Herrmann

Max Planck Institute for Innovation and Competition

Lukas Kestler

Max Planck Institute for Innovation and Competition

Date Written: December 22, 2022

Abstract

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

Suggested Citation

Hoffmann, Jörg and Herrmann, Liza and Kestler, Lukas, Gatekeeper's Potential Privilege – the Need to Limit DMA Centralisation (December 22, 2022). Max Planck Institute for Innovation & Competition Research Paper No. 23-01, Forthcoming in: Journal of Antitrust Enforcement , Available at SSRN: https://ssrn.com/abstract=4316836 or http://dx.doi.org/10.2139/ssrn.4316836

Jörg Hoffmann (Contact Author)

Max Planck Law Network - Max Planck Institute for Innovation and Competition ( email )

Marstallplatz 1
Munich, Bayern 80539
Germany

Liza Herrmann

Max Planck Institute for Innovation and Competition ( email )

Marstallplatz 1
Munich, Bayern 80539
Germany

Lukas Kestler

Max Planck Institute for Innovation and Competition ( email )

Marstallplatz 1
Munich, Bayern 80539
Germany

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