The Digital Markets Act and the Whack-A-Mole Challenge

Abstract

The article addresses the implementation of the Digital Market Act’s rules on anti-circumvention. We present an effects-based approach and propose a three-step methodology to identify whether a certain practice should be conceptualized as circumventing an obligation. We apply this approach to several practices suspected of circumventing the ban on parity clauses and analyse how our results fit into the Digital Market Act’s concept and instruments for avoiding circumvention. Moreover, we elaborate on the role that the anti-circumvention rules may play in safeguarding the effectiveness of the restrictions on tying and self-preferencing in ranking, thus illustrating how they may operate to future-proof the Digital Markets Act but also where their limitations lie.

Keywords: Digital Markets Act, anti-circumvention, antitrust law, price parity clauses, tying, self-preferencing

JEL Classification: K21