ICLE White Paper Outlines Redistributive Logic Behind DMA’s Undefined Goals
BRUSSELS (Sept. 3, 2026) — Two years of enforcement have revealed that the EU Digital Markets Act’s stated but undefined goals of “fairness” and “contestability” form a coherent program for shifting competitive opportunity away from the largest digital platforms and toward their rivals, according to a new white paper from the International Center for Law & Economics (ICLE). The law still provides no benchmark for deciding when that effort has succeeded.
“Filling the DMA’s Gaps: Fairness, Contestability, and the Missing Endpoint,” by ICLE Senior Scholar for Competition Policy Lazar Radic, examines the Act’s text and enforcement record. The analysis covers the European Commission’s original impact assessment; gatekeeper designations; infringement decisions against Apple, Meta, and Google; proceedings that specify how firms must comply; the Commission’s first statutory review; and joint guidance on the DMA and EU privacy law.
The paper finds that “fairness” under the DMA means correcting a structural imbalance that the Act presumes between gatekeepers and businesses that rely on their services. “Contestability” supplies the remedy by transferring data, technical access, users, and other competitive opportunities toward rivals. “Consumer choice” serves both goals, but the Commission generally treats it as progress only when users switch away from gatekeepers.
“The DMA turns gatekeeper success into evidence against the gatekeeper,” Radic said. “Its fairness and contestability rules shift competitive opportunity toward rivals, even when a platform’s advantages come from better products, greater investment, or consumer choice.”
The enforcement record reflects this approach. Designation decisions treat a platform’s growth and large user base as evidence of weak contestability, even when that growth follows successful entry. Infringement decisions identify practices that gatekeepers must stop but without explaining when a market becomes fair. Other proceedings require gatekeepers to share data and technical features with rivals, sometimes at little or no charge.
The Commission also measures progress through third-party access, availability, and use, the paper finds. Its decisions assume such remedies will result in benefits to prices, quality, innovation, and consumers but without ever measuring them. The framework gives little weight to the possibility that mandated changes could reduce product quality or weaken gatekeepers’ incentives to innovate.
“The Act identifies who should gain and who should lose without saying how much, for how long, or against what benchmark,” Radic concludes. “The Act tells markets which direction to move, but it still cannot say when they have arrived.”
The paper concludes that the missing benchmark can make compliance difficult to verify and intervention difficult to end. The findings also carry consequences beyond the European Union. Governments adopting DMA-style rules may import the Act’s redistributive premises and open-ended enforcement model along with its statutory language.
The full text of the white paper can be downloaded here. To arrange an interview with Radic, contact Jim Fellinger at [email protected].
About ICLE
The International Center for Law & Economics (ICLE) is a nonprofit, nonpartisan research center working with a roster of more than one-hundred academic affiliates and research centers from around the globe. ICLE scholars promote the use of law and economics methodologies to inform public policy debates. For more information, visit laweconcenter.org.