The DMA’s Magic Words and Missing Off Switch
The European Union’s Digital Markets Act (DMA) depends on two terms that lawmakers never defined. “Fairness” and “contestability” determine how the European Commission measures gatekeeper compliance, imposes new obligations, and grades its own performance every three years. The law uses both terms liberally but explains neither.
Recital 79 even promises that the Commission will apply a “predefined standard” to identify unfair practices and practices that limit contestability. Anyone searching the DMA for that standard will come away empty-handed.
In a new white paper, I reconstruct what I argue is nonetheless a fully coherent framework implicit in the enacted text. The DMA’s provisions and its subsequent enforcement record, along with various guidance documents issued along the way, do reveal specific conceptions of fairness and contestability, even if lawmakers declined to state them openly. Put simply: “fairness” refers to a presumed structural imbalance in digital markets, and “contestability” is the redistribution program enacted to correct it
That reconstruction has practical consequences. It explains how the Commission is likely to assess the DMA’s success—and its own performance. It also identifies the policy choices that countries outside the European Union may adopt, often without expressly debating them, when they enact similar laws.