Position Statement of the Max Planck Institute for Innovation and Competition of 2 May 2023 on the Implementation of the Digital Markets Act (DMA)

Abstract

Regulation (EU) 2022/1925 of the European Parliament and of the Council of 14 September 2022 on contestable and fair markets in the digital sector (Digital Markets Act; DMA) entered into force on 1 November 2022 and applies from 2 May 2023. The DMA is a novel type of regulation laying down harmonised rules for core platform services provided or offered by gatekeepers to business users and end users established or located in the Union. It pursues the objective of achieving fairness and contestability in the digital sector across the Union where gatekeepers are present.

In its position statement of 2 May 2023, the Institute acknowledges that uniform rules throughout the European Union and centralised enforcement are necessary to prevent internal market fragmentation and welcomes the first Commission Implementing Regulation for the DMA of 14 April 2023. However, it remains concerned by the DMA’s unique institutional design and its interaction with other laws as outlined under Articles 1(5), 1(6) and 1(7).

In particular, the Institute raises awareness about the possible overly broad blocking effects of the DMA on national rules, which may have the unintended consequences of privileging gatekeepers by jeopardizing future national legislative initiatives. This ultimately obstructs the achievement of contestability and fairness in digital markets. A complementary application of the competition rules and effective enforcement of the DMA is, against this backdrop, crucial. Yet there is uncertainty over administrative enforcement mechanisms, and it is unclear what role private enforcement plays in the current legal design of the DMA. The position statement identifies and examines challenges in the implementation of the DMA, along with recommendations for overcoming them.

Keywords: Digital Markets Act; DMA; platform regulation; digital economy; antitrust; online platforms; European Union competition law; gatekeepers; fairness; contestability; private enforcement; centralisation; implementation