DMA Begins
Introduction
The year 2022 of 12 October marks the official birth of the Digital Markets Act (DMA). As with the General Data Protection Regulation, the European Union sets itself as a forerunner in digital economy rulemaking, attempting to strengthen its global regulatory leadership, through the so-called and well-described Brussels effect. The new Regulation is, indeed, complemented by other relevant interventions addressing the role of data and digital intermediaries such as the Data Governance Act, the Digital Services Act, and the proposal for a Data Act, which will shape the European digital policy.
Against the emergence of large online platforms, several proposals have been advanced by policymakers around the world to tame digital gatekeepers, including public utilities-style regulations, break-ups, bans on vertical integration, and reforms of competition laws. Despite such different approaches, however, the envisaged solutions share the same premise, namely the urgent need for bespoke interventions because of the distrust towards current antitrust rules to face effectively the challenges of the brave new world.
The DMA endorses this view stating that, although antitrust rules apply to the conduct of gatekeepers, the scope of these provisions is “limited to certain instances of market power” (e.g., dominance on specific markets and of anti-competitive behaviour) and its “enforcement occurs ex post and requires an extensive investigation of often very complex facts on a case-by-case basis.” Moreover, competition law does not address, or does not address effectively, the challenges to the well-functioning of the market posed by the conduct of gatekeepers, which are not necessarily dominant in competition law terms.
According to this line of reasoning, given that competition law alone is unfit to tackle systemic problems posed by the platform economy, a regulatory intervention is enacted to introduce a set of ex ante obligations for digital gatekeepers dispensing enforcers from the standard antitrust analysis (i.e., relevant market definition, proof of dominance, and assessment of anticompetitive effects) and restraining gatekeepers from even providing an efficiency defence.
Against this background, the paper provides an overview of the critical aspects of the DMA to investigate whether the European Union will effectively benefit from a first-mover advantage. Section II illustrates the main features of the DMA highlighting some mismatches between its declared justification and the way in which the new Regulation will be effectively applied. Section III questions the coherency of an intervention that ostensibly disregard the ecosystem-based approach, even if it was intended to address the specific issues related to the fact that the competition in the digital economy is increasingly a competition among ecosystems. Section IV concludes.