K. Stas & T.
Bokhove1
The Digital Markets Act: The EU Takes On ‘Big Tech’
Com­pu­ter­recht 2022/219
The new regulation on contestable and fair markets in
the digital sector, the Digital Markets Act (‘DMA’), is
born out of a­sense that ex-post competition law en­
force­ment has been ineffective in reining in the power
of “Big Tech” companies. In its pursuit of effective and
timely in­ter­ven­tion, the DMA marks a radical depar-
ture from the tra­ di­
tion­
al case-by-case approach in
competition law, dispensing with re­quirements such
as market def­i­ni­tion, es­tab­lish­ing dominance, con­si­
de­ra­tion of ef­fi­ciency de­fences, etc. This new ex-ante
re­gime,­based on highly centralized en­force­ment of a
lim­ited set of de­tailed per se­rules applied to a lim­ited
number of undertakings that meet certain thresholds
of criticality, substantiality and durability, is ex­pect­ed
to allow for a more swift and effective regulatory in­
ter­ven­tion in digital markets. But after years of frus-
tration with the case-specific, fact-intensive approach
under competition law, has the pendulum swung too
far the­other way, with a risk of over-in­ter­ven­tion?
1. Introduction
The entry into­force of a new EU regulation on contestable
and fair markets in the digital sector, the “Digital Markets
Act” (‘DMA’), signals one of the most important inno­va­
tions in EU competition policy since the in­clu­sion of the
foundational pro­vi­sions of EU competition law in the 1957­
Trea­ty of Rome. The DMA, which will enter into­force on 1
No­vem­ber 2022 and apply as of 2 May 2023, was born of a
keen­sense among EU policymakers that the specific char-
acteristics of the digital sector, such as extreme economies
of­scale, strong network effects and data-driven ad­van­ta­
ges,2 have allowed a small number of companies to gain
too much market power,­there­by stifling inno­va­tion and
consumer choice. It was also born out of frustration that
“tra­di­tion­al” ex-post competition law en­ force­
ment has,
over the past few decades, largely been ineffective in rein-
ing in the power of­these (mainly US-based) “Big Tech”
players, be­cause the remedies im­posed were considered
“too little, too late” and the fines presumably merely a
1 Karl Stas is senior counsel at Crowell & Moring, Brussels. Tosca Bokhove is
an as­so­ci­ate at Kennedy Van der Laan, Am­ster­dam. The authors received
no funding for this article. The authors’ firms repre­sent clients with diver-
ging po­si­tions and in­te­rests regarding the DMA and may in­clude underta-
kings liable to be des­ig­nated as “gate­kee­pers” under the DMA. The views
ex­pressed in this article do not repre­sent the views of any of those clients,
nor of their firms. The authors wish to thank Ms. Penelope Turner and Ms.
Sarah Van Hoeyweghen for their help in editing this article.
2 These characteristics were highlighted in an expert report com­mis­sioned
by Competition Com­mis­sioner Margrethe Vestager, examining the ques­
tion of whether competition law is still “fit for pur­pose” in the digital age
see J. Cremer, Y.-A. De Montjoye, H. Schweit­zer, Competition policy for the
digital era, final report,­ European Com­mis­sion, 2019,
https://ec.europa.eu/competition/pub­li­ca­tions/reports/kd0419345enn.pdf.
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“cost of doing business” for­these players.3 The DMA com-
plements the tra­di­tion­al competition law toolbox of the­
European Com­mis­sion (‘Com­mis­sion’) with a set of spe­
cific ex-ante­rules applicable to digital platforms­whose
powerful and en­trenched po­si­tion allows them to act as
“gate­kee­pers”, i.e. as important (and often unavoid­able)
gateways for busi­ness­es to reach end users.­These new­
rules will like­ly­force Big Tech companies to rethink their
business models.
In this article we pro­vide an overview of the DMA, sum-
marizing and­commenting on its main substantive and
procedural pro­vi­sions. We also seek to an­swer the ques­
tion of whether the DMA is like­ly to­achieve its ambition
of remedying the perceived ineffectiveness of ex-post
competition law en­force­ment by introducing a set of spe-
cific per se obli­ga­tions for companies controlling digital
bottle­necks.
The article is structured as follows. We first describe the­­
events leading up to the adop­tion of the DMA (sec­tion 2)
and the overall ob­jec­tives of the DMA (sec­tion 3). We then
discuss the DMA’s legal basis (sec­tion 4) and scope (sec­
tion 5), and describe the obli­ga­tions im­posed on gate­kee­p­
ers (sec­tion 6) as well as the en­force­ment framework of
the DMA (sec­tion 7). Finally, we examine the relation be­
tween the DMA and ex­ist­ing EU and national competition
laws (sec­tion 8) before closing with our concluding obser-
vations (sec­tion 9).
2. Context and events leading up to the adoption
of the DMA
One of the key ob­jec­tives of the Com­mis­sion’s 2019-2024
agenda is to en­sure that­Europe is “fit for the digital age”.4
This in­
cludes “promoting a fair and competitive digital
economy”.
In this context, the Com­mis­sion pub­lished a Digital Ser­vi­
ces Package on 15 December 2020, consisting of two legis-
lative proposals: the Digital Ser­vi­ces Act (‘DSA’) and the
DMA.5­These two instruments have different and comple-
mentary ob­ jec­
tives.­Whereas the DSA mainly aims to
make the on­line­world a safer, more predictable and trust-
3 European Com­mis­sion Press Release, Competition policy:­where we stand
and­where we’re going, 2022,
https://ec.europa.eu/com­mis­sion/presscorner/detail/en/SPEECH_22_
2079. (press release)
4 The­ European Com­mis­sion’s priorities, 6 Com­mis­sion priorities for 2019-
24, 2019, https://ec.europa.eu/info/strategy/priorities-2019-2024_en.
5 European Com­mis­sion, Proposal for a regulation of the­European Parlia-
ment and of the Council on contestable and fair markets in the digital sector
(Digital Markets Act), nr. 2020/0374, 2020,
https://ec.europa.eu/info/sites/default/files/proposal-regulation-single-
market-digital-ser­vi­ces-digital-ser­vi­ces-act_en.pdf.
The Digital Markets Act: The EU Takes On ‘Big Tech’
ed environment for EU-based users by strengthening the
responsibility of on­line platforms, the DMA aims at en­sur­
ing “fair and contestable” markets in the digital sector by
imposing specific be­havioural­rules on undertakings des­
ig­nated as “gate­kee­pers”. Both the DSA and DMA take the
form of reg­ ul­a­
tions that are directly applicable in the
Member States with­out needing to be transposed into na-
tional law first.
The DMA moved through the legislative process with re-
markable speed for such a complex and ambitious piece of
le­gis­la­tion, showing that it enjoyed broad political sup-
port both in the­European Parliament (‘EP’) and in nation-
al capitals. On 24 March 2022, just 15 months after the
Com­ mis­ sion’s ini­
tial proposal, the EP and the Council­
reached political agreement on a compromise text.6 The
text was subsequently adopted by the EP with an over-
whelming majority dur­ing the July plenary session.7 On 18
July 2022, the Council gave its final approval to the text,
and the DMA was pub­lished in the Official Journal on 12
October 2022.8 The DMA will enter into­force on 1 No­vem­
ber 2022, and will apply as of 2 May 2023.9 Companies
that meet the gate­kee­per thresholds will have to submit a
notification to the Com­mis­sion with­in two months from
the date of ap­ pli­
ca­tion, and the Com­mis­ sion will then
have 45 working days to de­ cide whether to des­ ig­
nate
them as gate­kee­pers. Des­ig­nated gate­kee­pers must com-
ply with the obli­ga­tions laid down in the DMA six months
after their designation.10 It is­there­fore ex­pect­ed that the
full impact of the new­rules will start to be felt from March
2024.11
3. Rationale and objectives of the DMA
As is clear from the preamble,12 the central concern that
the DMA seeks to address is that the lar­gest pro­viders of
so-called “core platform ser­vi­ces”13 enjoy a number of ad­
van­ta­ges (such as extreme­scale ad­van­ta­ges, strong net-
work effects, an ability to connect many business users
with many end users through the multi-sidedness of the
6 This was fol­lowed, barely a month later, by a political agreement on the
DSA on 23 April 2022.
7 The vote took place on 5 July 2022. Results: 588 votes in favour, 11 votes
against and 31 abstentions. The EP approved the DSA on the same day.
8 OJ L.265, 12 October 2022, 1-66.
9 Article 54 DMA. Note that Article 42 and 43 will start to apply from 25
June 2023.
10 Article 3(10) DMA.
11 See timeline at https://competition-policy.ec.europe.eu/dma_en. The
DMA is not the first piece of EU le­gis­la­tion seeking to address the power
of on­line platforms. In 2019, the EU adopted the “Platform-to-Business
Regulation” (Regulation (EU) 2019/1150 of the­European Parliament and
of the Council of 20 June 2019 on promoting fairness and transparency for
business users of on­line interme­dia­tion ser­vi­ces), which im­posed fair-
ness, transparency and effective redress obli­ ga­ tions on on­line trading
platforms and­search engines in relation to business users, with the aim
of addressing the “superior bargaining power” of­these platforms. The
Platform-to-Business Regulation entered into­force in July 2020.
12 See in particular recitals 1-6 and 25-26.
13 See sec­tion 5.1. below on the mea­ning of the no­tion of Core Platform Ser­
vi­ces.
404 Afl. 6 - december 2022
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ser­vi­ces, a significant degree of dependence of both busi-
ness users and end users, lock-in effects, lack of mul-
ti-homing, vertical integration, and data-driven ad­van­ta­
ges) that they can leverage to strengthen and en­trench
their market po­ si­
tion to the detriment of competitors,
business users and end users.­These ad­van­ta­ges may even
allow them to cement their market power to a degree­
where it can no longer be con­tes­ted by­other ex­ist­ing or
new market ope­ra­tors, ir­re­spective of how innovative and
efficient those market ope­ra­tors may be. The market then
“tips” in their favour. They can try to induce such “tipping”
by engaging in unfair con­di­tions and prac­tices vis-à-vis
business users and end users, who have no real bargaining
power to counteract this (due to their dependence on the
service, lock-in effects, etc.). In such a si­tu­a­tion, the rea-
soning goes, it is appro­pri­ate to intervene before the mar-
ket “tips” irreversibly. Ex-post competition law en­force­
ment, which only bites after anticompetitive conduct by
dominant undertakings has already taken place, often re­
quires extensive in­ves­ti­ga­tions of complex facts on a case-
by-case basis, with the related risk that in­ ter­ven­
tion
comes too late – when the market has already “tipped”.
More­ over, competition law does not address the chal­
lenges posed by the conduct of gate­kee­pers that are not
necessarily dominant in competition-law terms. In con-
trast, the DMA aims to en­sure that anticompetitive con-
duct is not en­gaged in at the outset, in order to secure fair
and contestable digital markets. The DMA thus aims to fill
a regulatory “gap” by complementing ex-post competition
law en­force­ment with a set of ex-ante­ rules.
As in­di­cated by its full title, the DMA pursues the twin ob­
jec­tives of “contestability” and “fairness” in the digital
sector. The preamble explains that contestability relates to
“the ability of undertakings to ef­fec­tive­ly over­come barriers
to entry and expansion and chal­lenge the gate­kee­per on the
merits of their pro­ducts and ser­vi­ces”,14­while “unfairness”
relates to “an imbalance be­tween the rights and obli­ga­tions
of business users­where the gate­kee­per obtains a dispro­por­
tio­nate advantage”.15 “Contestability” is­there­ fore about
in­creas­ing rivalry in digital markets,­while “fairness” is
about redistributing rents­along the val­ue chain. As fur­
ther discussed below,­these ob­jec­tives are related to, but
also go beyond the tra­di­tion­al competition law ob­jec­tives
of tackling ex­ clu­sionary (foreclosure) and exploitative
conduct by dominant undertakings. It is worth noting that
the DMA lim­its the concept of “fairness” to B2B re­la­tion­
ships, which suggests that, to the extent that the DMA also
im­poses obli­ga­tions on gate­kee­pers vis-à-vis end users,
such obli­ga­tions are intended primarily to indirectly pro-
mote the contestability of digital markets (in particular by
facilitating switching and multi-homing by end users).
14 Recital 32 DMA.
15 Recital 33 DMA.
Com­pu­ter­recht 2022/219
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4. Legal basis
The DMA identifies Article 114 of the­Trea­ty on the Func-
tioning of the­European Union (‘TFEU’) as its legal basis.
This pro­vi­sion empowers the EU legislature to “adopt the
mea­sures for the approximation of the pro­vi­sions laid down
by law, regulation or administrative ac­tion in Member States
which have as their object the es­ta­blish­ment and functioning
of the internal market”.
In the Impact Assessment report accompanying the DMA
proposal, the Com­mis­sion argued that the initiative was
nec­es­sary to avoid legal fragmentation regarding the func-
tioning of the Single Market for digital ser­vi­ces and that
Article 114 TFEU was­there­fore the appro­pri­ate legal basis
for EU ac­tion.16 The preamble to the DMA emphasizes this
objective.17 It should be no­ted that Article 114 TFEU re­
quires that the DMA’s content and ob­ jec­tives revolve
around the har­mon­i­sa­tion of Member State national laws.
This­means that the list of obli­ga­tions in the DMA must
comply with the principle of proportionality and must not
go beyond what is nec­es­sary to en­sure the proper func-
tioning of the internal market. Some authors have argued
that Article 114 TFEU is not a suit­able legal basis for the
DMA and that the DMA­risks being annulled for that rea-
son.18 They argue that the DMA does not gen­uinely pursue
approximation of laws but rather the creation of far-reach-
ing new EU powers, pointing out that the examples of po-
tential legal fragmentation highlighted in the Impact As-
sessment would not actually be affected by the DMA, in
particular be­cause Articles 1(5) and 1(6) of the DMA allow
Member States to enact le­gis­la­tion going beyond, or over-
lapping with the pro­vi­sions of the DMA.19 They argue that,
for example, the specific re­gime for undertakings “of para-
mount significance for competition across markets” laid
down in §19a of the German Act on Restraints of Competi-
tion (Gesetz gegen Wettbewerbsbeschränkungen, GWB), or­
16 European Com­mis­sion, Com­mis­sion staff working document impact assess-
ment report accompanying the document Digital Markets Act, SWD(2020)363,
16 December 2020, 9, Annex 5.4,
https://ec.europa.eu/transparency/documents-register/detail?ref=SWD
(2020)363&lang=en.
17 Recitals 6 and 7 DMA.
18 A. Lamadrid De Pablo, N. Bayon Fernandez, ‘Why the proposed DMA
might be illegal under Article 114 TFEU, and how to fix it’, Journal of­Euro-
pean Competition Law & Prac­tice, 2021, Vol. 12, issue 7,
https://awards.concurrences.com/IMG/pdf/why-the-proposed-dma-
might-be-illegal-under-article-114-tfeu-and-how-to-fix-it-3.pdf.
19 Article 1(5) of the DMA, “noth­ing in this Regulation precludes Member
States from imposing obli­ga­tions on undertakings, in­clu­ding undertakings
providing core platform ser­vi­ces, for matters falling out­side the scope of this
Regulation, pro­vided that those obli­ga­tions are com­pa­tible with Union law
and do not result from the fact that the re­le­vant undertakings have the sta-
tus of a gate­kee­per with­in the mea­ning of this Regulation”. And pursuant to
Article 1(6)(b), the DMA is “with­out prejudice to the ap­pli­ca­tion of national
competition­rules prohibiting­other forms of unilateral conduct [than abuses
of dominance] insofar as they are applied to undertakings­other than gate­
kee­pers or amount to the impo­si­tion of fur­ther obli­ga­tions on gate­kee­pers”.
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The Digital Markets Act: The EU Takes On ‘Big Tech’
other similar national­rules, would remain mostly unaf-
fected by the DMA.20
Were Article 114 TFEU to be found not to pro­vide a suit­
able basis for the DMA, the only alternative legal basis
would appear to be Article 352 TFEU,21 which allows for
the creation of new powers should this­prove nec­es­sary to
attain one of the ob­jec­tives of the­Treaties (in­clu­ding the
“internal market” objective as set out in Article 3 of the­
Trea­ty of­European Union, which, as sta­ted in Protocol No.
27, “in­cludes a system en­sur­ing that competition is not dis-
torted”). The EU Merger Regulation was adopted on this
basis. How­ever, the adop­tion of mea­sures under Article
352 TFEU re­quires unanimity in the Council, and lim­its the
in­volvement of the EP to giving its consent to the le­gis­la­
tion adopted by the Council.
Whatever the merits of the arguments calling into ques­
tion the legal basis of the DMA, it should be pointed out
that individual applicants are unlike­ly to have stand­ing
under Article 263 TFEU to bring an ac­tion for annulment
against the DMA be­cause, as a regulation, it is a mea­sure
of gen­er­al ap­pli­ca­tion and is in principle not addressed to
specific persons (even though the number of undertak-
ings like­ly to be caught is small). Companies that might
qualify as “gate­ kee­ pers” under the DMA, can how­ ever
chal­lenge the DMA indirectly, e.g. in an ac­tion for annul-
ment against the Com­mis­sion de­ci­sion designating them
as a “gate­kee­per”.
5. Scope of Application
The DMA will apply to pro­viders of “core platform ser­vi­
ces” that have been des­ig­nated as “gate­kee­pers” by the
Com­mis­sion. The scope of ap­pli­ca­tion of the DMA is thus
de­fined by two concepts: (i) that of “core platform ser­vi­
ces” (‘CPS’) and (ii) that of “gate­kee­per”. This sec­tion ex-
plains what CPS are and who can be des­ig­nated as a gate­
kee­per, and looks at the designation process.
20 This is debatable, as the DMA would seem to lim­it the scope for the ap­pli­
ca­tion of § 19a GWB, see sec­tion 8 below; G. Wolf, N. Brüggemann, Agen-
da 2025: the digital markets act and sec­tion 19A GWB, 2022,
https://www.d-kart.de/en/blog/2022/07/19/agenda-2025-der-digital-
markets-act-und-%C2%A719a-gwb/ (blog).
21 Article 103 TFEU empowers the Council to adopt “the appro­pri­ate reg­u­la­
tions or directives to give effect to the principles set out in Articles 101 and
102”, on a proposal from the Com­mis­sion and after consulting the EP.
How­ever, the DMA arguably does more, or rather some­thing different,
than this.
The Digital Markets Act: The EU Takes On ‘Big Tech’
5.1 Core Platform Services
CPS are any of the fol­low­ing:
– on­line interme­dia­tion ser­vi­ces,22 such as on­line mar-
ketplaces (e.g. Amazon Marketplace), hotel booking
sites (e.g. Booking.com and Expedia) and app stores
(e.g. the­­Google and Apple App Stores);
– on­ line­search engines (e.g.­­Google and Micro­ soft
Bing);23
– on­line so­cial networking ser­vi­ces (e.g. Face­book,­
LinkedIn);24
– video-shar­ing platform ser­vi­ces (e.g.­­ YouTube, Tik-
Tok);25
– number-independent interpersonal com­mu­ni­ca­tions
ser­vi­ces,26 such as instant messaging ser­ vi­ces (e.g.
Whats­App, Face­book Messenger);
– operating systems (e.g. Windows, MacOS, Android,
iOS);27
– web browsers (e.g.­­Google Chrome, Micro­soft Edge);28
– virtual assistants (e.g.­­Google Assistant, Apple’s Siri,
Amazon’s Alexa);29
22 The DMA uses the P2B Regulation’s def­i­ni­tion of “on­line interme­dia­tion
ser­vi­ces”, that is: ser­vi­ces which meet all of the fol­low­ing re­quirements:
a) they constitute in­for­ma­tion society ser­vi­ces with­in the mea­ning of
point (b) of Article 1(1) of Directive (EU) 2015/1535; b) they allow busi-
ness users to­offer goods or ser­vi­ces to consumers, with a view to facilita-
ting the initiating of direct trans­ac­tions be­tween those business users and
consumers, ir­re­spective of­where those trans­ac­tions are ultimately con­
cluded; c) they are pro­vided to business users on the basis of contractual
re­la­tion­ships be­tween the pro­vider of those ser­vi­ces and business users
which­offer goods or ser­vi­ces to consumers.
23 The DMA uses the P2B Regulation’s def­i­ni­tion of “on­line­search engine”,
that is: a digital service that allows users to input queries in order to per-
form­searches of, in principle, all websites, or all websites in a particular
lan­guage, on the basis of a query on any subject in the form of a keyword,
voice request,­phrase or­other input, and returns results in any format in
which in­for­ma­tion related to the re­ques­ted content can be found.
24 De­fined by Article 2(7) DMA as “a platform that enables end users to con-
nect and communicate with each­other,­share content and discover­other
users and content across multiple devices and, in particular, via chats, posts,
videos and re­com­men­da­tions”.
25 The DMA refers to the def­i­ni­tion in the Audio-visual Media Ser­vi­ces Di-
rective (Directive 2010/13/EU) of an “audio-visual media service”, that is:
(i) a service which is under the editorial responsibility of a media service
pro­vider and the principal pur­pose of which is the pro­vi­sion of program-
mes, in order to inform, entertain or educate the gen­er­al public by elec-
tronic com­mu­ni­ca­tions networks. Such an audio-visual media service is­
either a televi­sion broadcast or an on-demand audio-visual media ser-
vice; (ii) audio-visual­ com­mer­cial com­mu­ni­ca­tion.
26 De­fined by the­European Electronic Com­mu­ni­ca­tions Code, to which the
DMA refers, as an interpersonal com­mu­ni­ca­tions service which does not
connect with publicly assigned numbering re­sour­ces, name­ly, a number
or numbers in national or international numbering plans, or which does
not enable com­mu­ni­ca­tion with a number or numbers in national or in-
ternational numbering plans.
27 De­fined by Article 2(10) DMA as “a system software that controls the basic
func­tions of the hard­ware or software and enables software ap­pli­ca­tions to
run on it”.
28 De­fined by Article 2(11) DMA as “a software ap­pli­ca­tion that enables end
users to access and interact with web content hosted on servers that are
connected to networks such as the Internet, in­clu­ding standalone web brow-
sers as well as web browsers in­te­grat­ed or embedded in software or similar”.
29 De­fined by Article 2(12) as “a software that can process demands, tasks or
ques­tions, in­clu­ding those­based on audio, visual, written input, gestures or
motions, and that,­based on those demands, tasks or ques­tions, pro­vides ac-
cess to­other ser­vi­ces or controls connected physical devices”.
406 Afl. 6 - december 2022
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– cloud computing ser­vi­ces (e.g. Amazon Web Ser­vi­ces,
Micro­soft Azure);30
– on­line advertising ser­vi­ces, in­clu­ding any advertising
networks, advertising ex­changes and any­other adver-
tising interme­dia­tion ser­vi­ces (e.g.­­ Google AdSense),
pro­vided by an undertaking that pro­vides any of the
CPS listed in the previous bullets.
The DMA applies to CPS pro­vided or­offered to business
users es­tab­lished in the EU or end users es­tab­lished or lo-
cated in the EU, ir­re­spective of the place of es­ta­blish­ment
or residence of the “gate­kee­per” providing them, and ir­re­
spective of the law­oth­er­wise applicable to the pro­vi­sion
of the service.31 The def­i­ni­tion of CPS is intended to be
technologically neutral and should be understood to en-
compass ser­vi­ces pro­vided on or through various­means
or devices, such as e.g. connected TV or embedded digital
ser­vi­ces in ve­hicles.32
5.2 Designation of Gatekeepers: Qualitative and
Quantitative Criteria
The qualification of a CPS pro­vider as a gate­kee­per is first
and foremost­based on three cumulative qualitative crite-
ria, set out in Article 3(1), name­ly:
– The undertaking has a significant impact on the in-
ternal market;
– It pro­vides a CPS which is an important gateway for
business users to reach end-users; and
– It enjoys an en­trenched and durable po­si­tion in its
op­er­a­tions or it is fore­see­able that it will enjoy such a
po­si­tion in the near fu­ture (in the latter case we can
speak of an “emerging” gate­kee­per).
An undertaking is pre­sumed to satisfy­these re­quirements
if the fol­low­ing quantitative thresholds, set out in Article
3(2), are met:
– Significant impact on the internal market: This is pre­
sumed to be the case if the undertaking­­achieved an
annual turnover of at least € 7.5 bil­lion with­in the
Union in each of the last three fi­nan­cial years or a
market capitalization of at least € 75 bil­lion in the
last fi­nan­cial year, and it pro­vides the same CPS in at
least three Member States.
– Control of an important gateway for business users
towards final consumers: This is pre­sumed to be the
case if the company has at least 45 million monthly
active end users es­tab­lished in the EU and at least
10,000 yearly active business users es­tab­lished in
the EU in the last fi­nan­cial year.
– En­trenched and durable po­si­tion: This is pre­sumed to
be the case if the thresholds in the previous bullet
were met in each of the last three fi­nan­cial years.
Al­though the Annex to the DMA pro­vides some guid­ance
as to how to determine the number of “active end users”
30 As de­fined by Article 4(19) of Directive 2016/1148: “cloud computing ser-
vice”­means a digital service that enables access to a scalable and elastic
pool of­shareable computing re­sour­ces.
31 Article 1(2) DMA.
32 Recital 14 DMA.
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Artikelen
and “active business users” of a CPS, calculating the num-
ber of unique users of a service is fraught with difficulty.
No­tably,­while the Annex refers to several metrics that
may be re­ le­vant for measuring user en­ gagement with
each CPS (e.g. number of queries, clicks, trans­ac­tions, etc.),­
there is nonetheless significant leeway for applying differ-
ent­ methodologies.
Meeting the quantitative thresholds only creates a rebut-
table pre­sump­tion, and the undertaking can, as part of its
notification, pre­ sent “sufficiently substantiated” argu-
ments to demon­strate that, due to the cir­cum­stances in
which the re­le­vant CPS operates, it should not be des­ig­
nated as a gate­kee­per. If the undertaking pre­sents argu-
ments that are prima facie “sufficiently substantiated”, the
Com­mis­sion may open a market in­ves­ti­ga­tion.33
How­ever, undertakings that meet the quantitative thresh-
olds have only a lim­ited ability to rebut the gate­kee­per
pre­sump­tion. Recital 23 of the DMA stresses that a rever-
sal of the pre­sump­tion will be ex­cep­tional, that the bur-
den of proof rests on the undertaking and that the Com­
mis­ sion should only take into account elements which
directly relate to the quantitative criteria (such as the
amount by which the actual business user and end user
numbers exceed the thresholds, or the number of years
dur­ing which the thresholds have been met). It­there­fore
seems that a de­fence­based on “qualitative” arguments
will not be accepted. Recital 23 also asserts that “any jus­ti­
fi­ca­tion on economic grounds seeking to enter into market
def­i­ni­tion or to demon­strate efficiencies deriving from a spe-
cific type of be­haviour by the undertaking providing core
platform ser­vi­ces should be discarded, as it is not re­le­vant to
the designation as a gate­kee­per”. Thus, the typical de­fences
used in competition law cases will not be available in the
context of the gate­kee­per designation process.
While undertakings meeting the quantitative thresholds
can – at least in theory – rebut their pre­sumed gate­kee­per
status, the Com­ mis­sion can, conversely, des­ ig­
nate as a
gate­kee­per a CPS pro­vider that does not meet the thresh-
olds, if it con­sid­ers that this pro­vider fulfils the qualitative
criteria or will foreseeably do so in the near fu­ture.34 Ele-
ments that the Com­mis­sion shall take into account are:
– the size (in­clu­ding turnover and market capitaliza-
tion), op­er­a­tions and po­si­tion of the undertaking;
– the number of business users using the CPS to reach
end users and the number of end users;
– network effects and data-driven ad­van­ta­ges, in par-
ticular in relation to the undertaking’s access to and
collection of personal data and non-personal data or
analytics capabilities;
– any­ scale or scope effects from which the undertak-
ing benefits in­clu­ding data;
– business user or end user lock-in effects in­clu­ding
switching costs and be­ havioural bias reducing the
33 Article 3(5), third subpa­ra­graph and Article 17(3) DMA.
34 Article 3(8) DMA and Recital 24.
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The Digital Markets Act: The EU Takes On ‘Big Tech’
ability of business users and end users to switch or
multi-home;
– a conglomerate cor­po­rate structure or vertical in-
tegration of an undertaking; and
– other structural business or ser­vi­ces characteristics.
Thus, the range of parameters for the Com­mis­sion to take
into account when considering a below-threshold gate­
kee­per designation is much wider than the range of pa-
rameters that a pre­sumed gate­kee­per can invoke to rebut
the pre­sump­tion. Such “in­e­qua­li­ty of arms” seems ques­
tionable from a due process perspective.
5.3 Designation of Gatekeepers: Procedure
The gate­kee­per designation process is addressed in Arti-
cles 3 and 17 of the DMA. An undertaking must notify the
Com­mis­sion with­ in two months after the quantitative
thresholds are met, and pro­vide it with the re­le­vant in­for­
ma­tion allowing verification of the thresholds.35 The noti-
fication re­quirement also applies to any ad­di­tional CPS
pro­vided by an undertaking that has pre­vious­ly been des­
ig­nated as a gate­kee­per, if and when it meets the quantita-
tive thresholds. Failure to notify the Com­mis­sion or failure
to pro­vide the re­ques­ted in­for­ma­tion with­in the set dead-
line entitles the Com­mis­sion to des­ig­nate an undertaking
as a gate­kee­per­based on the in­for­ma­tion that it has avail-
able.
After notification, the Com­mis­sion has forty-five working
days to adopt a de­ci­sion designating an undertaking as a
gate­kee­ per for every CPS that meets the quantitative
thresholds or that nonetheless satisfies the qualitative cri-
teria in the light of­other business or service characteris-
tics (see­­ above).
The Com­mis­sion can conduct a market in­ves­ti­ga­tion on
the basis of Article 16 and 17 for the pur­pose of gate­kee­p­
er designation or in order to identify the CPS subject to the
gate­kee­ per designation. It shall endeavour to con­ clude
such in­ves­ti­ga­tion with­in twelve months.36 The Com­mis­
sion shall communicate its preliminary findings with­in six
months after the de­ci­sion specifying the start date of a
market in­ves­ti­ga­tion.37 If an undertaking meets the quan-
titative thresholds but has prima facie pre­ sented suffi-
ciently substantiated arguments to rebut the gate­kee­per
pre­sump­tion, the Com­mis­sion may open a market in­ves­ti­
ga­tion and, in that case, must endeavour to con­clude such
in­ves­ti­ga­tion with­in five months and to communicate its
preliminary findings with­in three months.38
Article 4 pro­vides that the Com­mis­sion can, upon request
or on its own initiative, reconsider, amend or repeal a
gate­kee­per designation at any time if (i)­there has been a
substantial­change in any of the facts on which the desig-
nation de­ci­sion was­based, or (ii) the designation de­ci­sion
was­based on in­com­plete, incorrect or misleading in­for­
35 Article 3(3) – 3(10) DMA. See also Annex, p. 63-66 DMA.
36 Article 16(3) and 17(1) DMA.
37 Article 17(2) DMA.
38 Article 17(3) DMA.
The Digital Markets Act: The EU Takes On ‘Big Tech’
ma­tion. It shall regularly, and at least every three years, re-
view whether the gate­kee­pers continue to satisfy the re­
quirements of Article 3(1). It shall also publish and keep
up-to-date a list of des­ig­nated gate­kee­pers, specifying the
CPS for which they need to comply with the obli­ga­tions
listed in Articles 5-7.
6. The Obligations of Gatekeepers
6.1 Introduction
Des­ig­nated gate­kee­pers are subject to the obli­ga­tions out­
lined in Articles 5, 6 and 7 of the DMA.­These obli­ga­tions
take the form of “do’s” (affirmative obli­ ga­
tions) and
“don’ts” (pro­hi­bi­tions). Des­ig­nated gate­kee­pers gen­er­al­ly
have to comply with all of­these obli­ga­tions, but only in
re­spect of the CPS for which­there has been a gate­kee­per
designation.39 More­over, some of the obli­ga­tions are spe-
cific to certain CPS and will­there­fore de facto only apply to
digital platforms that have been des­ig­nated as gate­kee­p­
ers for­these CPS.40
The obli­ga­tions of Articles 5, 6 and 7 DMA apply with­out
the need for an eval­u­a­tion of the effects of the gate­kee­p­
er’s conduct or of the specific factual context (so-called
per se­rules). How­ever, al­though the DMA precludes CPS
pro­viders from invoking an “ef­ fi­
ciency de­ fence” in the
context of the gate­kee­per designation,41 it does not rule
out that efficiencies could be re­le­vant in the context of the
ap­pli­ca­tion of Article 5, 6 and 7.42 Nonetheless, the proce-
dural avenues for bringing such an ef­ fi­
ciency de­ fence
seem to be lim­ited to Article 18, which concerns market
in­ves­ti­ga­tions into systematic non-com­pli­ance, and which
gate­kee­pers will want to avoid. It seems unlike­ly that ef­fi­
ciency con­si­de­ra­tions could play a role in the “regulatory
dia­logue” with the Com­mis­sion under Article 8 for the
pur­pose of specifying the gate­kee­pers’ duties under Arti-
cles 6 and 7, as that article only mentions as re­le­vant con­
si­
de­ra­tions the effectiveness and proportionality of the
mea­sures taken by the gate­kee­per to comply with its obli­
ga­tions.
The only­other way to escape the applicability of the obli­
ga­tions is through the ex­cep­tions laid down in Articles 9
and 10. Article 9 empowers the Com­mis­sion to temporari-
ly suspend specific obli­ ga­
tions under Article 5, 6 or 7­
where the gate­kee­per demon­strates that, due to ex­cep­
tional cir­cum­stances beyond its control, com­pli­ance with
the obli­ga­tion would endanger the economic viability of
39 An undertaking can be des­ig­nated as a “gate­kee­per” with re­spect to more
than one CPS. How­ever, the obli­ga­tions im­posed by the DMA only apply
to des­ig­nated gate­kee­pers in re­spect of the CPS for which they have been
so des­ig­nated (and­there­fore not necessarily for all of the CPS they pro­
vide).
40 For in­stance, Article 5(9) and (10) DMA only concern on­line advertising
ser­vi­ces; Article 6(11) DMA only applies to on­line­search engines; and Ar-
ticle 7 only covers number-independent interpersonal com­mu­ni­ca­tions
ser­vi­ces.
41 See Recital 23 DMA, already quoted­­above.
42 N. Petit, ‘The Proposed Digital Markets Act (DMA): A Legal and Policy Re-
view’, Journal of­European Competition Law and Prac­tice, 2021, Vol. 12, No.
7, 529, at. 538.
408 Afl. 6 - december 2022
Artikelen
its op­er­a­tion in the Union. Article 10 empowers the Com­
mis­sion to exempt a gate­kee­per, in whole or in part, from
a specific obli­ga­tion under Articles 5, 6 or 7 for rea­sons of
public health or public security. The Com­ mis­sion must
then periodically review whether the grounds for the
exemp­tion still exist.
Article 5 sets out obli­ ga­
tions that are deemed to be
“self-executing”, i.e. which can be applied with­out fur­
ther specification by the Com­mis­sion. Articles 6 and 7 lay
down obli­ga­tions which are “susceptible of being fur­ther
specified” by the Com­mis­sion under Article 8. How­ever,
many­commentators have already ex­pressed scepticism
regarding the sup­posed self-executing nature of the Arti-
cle 5 obli­ga­tions.43 A rule does not be­come self-executing
simply by stating that it is, and no doubt ad­di­tional guid­
ance from the Com­mis­sion will be needed regarding the
Article 5 re­quirements.
Beyond this distinction,­there is no obvious organizing
principle to categorize the various obli­ga­tions, which ap-
pear to have been listed in random order. Nevertheless,
each obli­ga­tion can be linked to one or both of the DMA’s
twin ob­ jec­ tives of promoting “contestability” and “fair-
ness”. Thus, several obli­ga­tions aim to increase rivalry in
digital markets by pre­ venting gate­ kee­
pers from­either
strengthening and en­trenching their market power with­in
a given market or leveraging it to­other neighbouring mar-
kets. This in­cludes­rules prohibiting tying/bundling and
self-preferencing prac­tices,44 allowing “side-loading” of
ap­pli­ca­tions and app stores,45 facilitating switching or
multi-homing,46 or­aimed at reducing data-driven ad­van­
ta­ges.47­Other obli­ga­tions pursue a reba­lan­cing of power
asymmetries be­tween gate­kee­pers and business users, for
in­stance by imposing transparency,48 access49 and interop-
erability50 obli­ga­tions and prohibiting unfair contractual
con­di­tions.51
As will be shown below, many of the obli­ga­tions set out in
Articles 5 and 6 are in­spired by past de­ci­sions or ongoing
in­ves­ti­ga­tions of the Com­mis­sion and national competi-
tion au­thor­i­ties (NCAs) in competition law cases. The DMA
has thus derived­rules from cases concerning the conduct
of specific digital platforms, in­clu­ding cases which have
not yet led to a final de­ci­sion, let alone been subject to ju-
dicial review, and applies­these­rules “horizontally” to all
digital platforms deemed to be “gate­kee­pers” with­out re-
gard to their specific features or market context.­Other­
rules complement the Gen­er­al Data Pro­tec­tion Regulation,
43 See e.g. the­comments of An­dreas Mundt, the head of the German compe-
tition authority, as reported by Global Competition Review, C. CONNOR,
Mundt disputes self-executing nature of DMA, 2022,
https://globalcompetitionreview.com/article/mundt-disputes-self-
executing-nature-of-dma.
44 Article 5(8) and 6(2) and (5) DMA.
45 Article 6(4) DMA.
46 Article 6(3), (6), (9) and (12) DMA.
47 Article 5(2) and 6(11).
48 Article 5(9) and (10) and Article 6(8) DMA.
49 Article 6(10), (11) and (12) DMA.
50 Article 6(7) and Article 7 DMA.
51 Article 5(4) and (6) and Article 6(13) DMA.
Com­pu­ter­recht 2022/219
Artikelen
such as the re­quirement of user consent for combining
data, or the obli­ga­tions related to transparency on con-
sumer profiling algorithms. Still­­others complement the
Platform-to-Business Regulation with ad­ di­
tional re­
quirements regarding fairness, transparency and effective
redress in the re­la­tion­ship be­tween platforms and busi-
ness users.
6.2 Article 5: “Self-executing” Obligations
Article 5 lays down the fol­low­ing “self-executing” obli­ga­
tions:
1. Article 5(2) prohibits gate­kee­pers from combining or
cross-using personal data of end users across core
platform ser­vi­ces or be­tween core platform ser­vi­ces
and­other ser­vi­ces with­out freely given, specific, in­
formed and unambiguous user consent. This obli­ga­
tion complements and reinforces the obli­ga­tions that
digital platforms already have under the Gen­er­al Data
Pro­tec­
tion Regulation (‘GDPR’). This rule is clearly­
based on the 2019 de­ ci­
sion of the German Bun­
deskartellamt (Fe­ de­ral Cartel Of­ fice), which con-
demned Face­ book’s “off-platform” use of personal
data with­ out specific user consent as an abuse of
dominance.52 How­ever, the Bun­deskartellamt’s de­ci­
sion wascontroversial be­cause of its apparent mixing
of competition and data pro­tec­tion law and is at the
time of writing under appeal before the Düsseldorf
Higher Regional Court,53 which referred ques­tions on
this issue to the Court of Jus­tice of the­European Un-
ion (‘CJEU’) for a preliminary ruling. Going back fur­
ther, it is pos­sible to link this obli­ga­tion to the Face­
book/Whats­App merger case, which was cleared by
the Com­mis­sion in 2014. In the course of the merger
pro­ceed­ings, Face­book declared that it would not be
technically fea­ sible to match users’ Face­ book and
Whats­App accounts in order to better target ads on
Face­book. When Face­book subsequently proceeded to
52 Bun­deskartellamt, Bun­ deskartellamt prohibits Face­ book from combining
user data from different sour­ces, 2019,
https://www.bundeskartellamt.de/SharedDocs/Meldung/EN/
Pressemitteilungen/2019/07_02_2019_Face­book.html; Face­book was also
condemned for essentially the same prac­tice by the Italian competition
authority, but in this case under consumer pro­tec­tion law, see Autorità
Garante della Concorrenza e del Mercato, Face­book fined 10 million Euros
by the ICA for unfair­com­mer­cial prac­tices for using its subscribers’ data for­
com­mer­cial pur­poses, 2018,
https://en.agcm.it/en/media/press-releases/2018/12/Face­book-fined-10-
million-Euros-by-the-ICA-for-unfair-com­mer­cial-prac­tices-for-using-its-
subscribers%E2%80%99-data-for-com­mer­cial-pur­poses.
53 The Düsseldorf court pre­vious­ly sus­pen­ded the ex­e­cu­tion of the de­ci­sion
in interim pro­ceed­ings, but was overruled by the Fe­de­ral Court of Jus­tice.
How­ever, the latter’s judg­ment was not enforced. See D’Kart, Der Face­
book-Fall, https://www.d-kart.de/der-fall-facebook/ (blog); R. Podszun,
Face­book: next stop­Europe, 2021,
https://www.d-kart.de/en/blog/2021/03/25/facebook-next-stop-europe/
(blog); Advocate-gen­er­al Rantos has recently de­liv­ered his opin­ion in the
case see: Opin­ion of Advocate Gen­er­al Rantos de­liv­ered on 20 September
2022 in case C-252/21, Meta Platforms et al. v Bun­deskartellamt,
EU:C:2022:704).
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The Digital Markets Act: The EU Takes On ‘Big Tech’
do just that, the Com­mis­sion fined it € 110 million for
providing misleading in­for­ma­tion.54
2. Article 5(3) prohibits gate­ kee­pers from imposing
most-favoured-nation (‘MFN’)­ claus­es, also known
as ‘parity’­claus­es, in contracts with business users.­
Whereas the original Com­ mis­sion proposal, in line
with es­tab­lished precedent, only prohibited so-called
“wide” parity­claus­es (which pre­vent business users
from­offering low­er prices on any­other platform), the
adopted text also bans “narrow” parity­claus­es (which
pre­vent business users from setting low­er prices on
their own websites). “Wide” MFN­claus­es have pre­
vious­ ly been scrutinized under competition law in
the Amazon case55 and in several on­line hotel booking
cases.56 Most of­these cases were closed with commit-
ments de­ci­sions, with­out a finding of infringement.
Narrow MFN­claus­es are often considered justified in
order to address free riding concerns and the German
Bun­deskartellamt stands virtually alone among NCAs
in the EU in condemning both wide and narrow MFN­
claus­es (in its 2013 de­ci­sion against HRS and its 2015
de­ci­sion against Booking.com).57 Nonetheless, several
Member States have already legislated to ban all MFN­
claus­es in the hotel booking sector, in­clu­ding “nar-
row” ones.58 The Platform-to-Business Regulation
does not ban parity­claus­es, but re­quires pro­viders of
on­line interme­dia­tion ser­vi­ces to state the main eco-
nomic,­com­mer­cial or legal grounds for their use of
such­claus­es in their stan­dard terms and con­di­tions,
and make those grounds easily available to the public.
3. Article 5(4) pro­ vides that gate­ kee­pers shall allow
business users to promote­offers to end users ac-
quired via the gate­ kee­per’s CPS or through­other
channels, and to con­clude contracts with those end
users, re­gard­less of whether they use the gate­kee­per’s
CPS for that pur­pose. The legality of such “anti-steer-
ing pro­vi­sions” under competition law is currently
being reviewed by the Com­mis­sion in the Apple App
Store case.59 The Com­mis­sion issued a state­ment of
54 Com­mis­sion press release of 18 May 2017,
https://ec.europa.eu/com­mis­sion/presscorner/detail/en/IP_17_1369.
55 Com­mis­sion de­ci­sion of 4 May 2017, caseAT.40153, E-book MFNs and re-
lated matters (Amazon).
56 Com­mis­sion, Market study on the distribution of hotel accommodation in
the EU COMP/2020/OP/002, 2022,
https://competition-policy.ec.europa.eu/system/files/2022-09/
kd0722783enn_hotel_accomodation_market_study.pdf, in particular sec­
tion 3.1.3, for an overview.
57 The Booking.com de­ci­sion was ini­tially overturned by the Higher Regio-
nal Court of Düsseldorf, which ruled that Booking.com’s “narrow” parity­
clause was a so-called “ancillary restraint” (i.e. ob­jec­tively nec­es­sary for
the im­ple­men­ta­tion of the platform ser­vi­ces agreement), but this judg­
ment was overturned by the Fe­ de­ral Court of Jus­ tice. See Bun­
deskartellamt, 22 December 2015, B9-121/13; Oberlandesgericht Düssel-
dorf, 4 July 2019, Kart 2/16 (V); Bun­desgerichtshof 18 May 2021, KVR
54/20.
58 The best-known example being the so-called loi Macron in France (Loi n°
2015-990 du 6 août 2015 pour la croissance, l'activité et l'égalité des
chances économiques, JORF 7 août 2015, n° 0181). See overview in the
Com­mis­sion’s market study report, supra n. 56.
59 Case AT.40.437 Apple – App Store Prac­tices (music streaming).
The Digital Markets Act: The EU Takes On ‘Big Tech’
ob­jec­tions (‘SO’) in this case on 30 April 2021, ex-
pressing the preliminary view that this prac­tice in-
fringes Article 102 TFEU. How­ever, the press release
announcing the SO suggests that the Com­ mis­sion
does not consider the anti-steering pro­vi­sions as an
abuse of dominance in isolation, but only in combina-
tion with the mandatory use of Apple’s in-app pur­
chase (IAP) system, which enables Apple to levy a
hefty com­mis­sion fee on all in-app pur­chases.60
4. Article 5(5) stipulates that gate­ kee­pers shall allow
end users to access content, subscriptions, features,
and­other items through the gate­kee­per’s CPS, even if
acquired from the re­le­vant business user with­out us-
ing the gate­kee­per’s CPS. The pro­hi­bi­tion of such us-
age re­stric­tions is again particularly re­le­vant to app
stores, al­though it is not identified as an impugned
prac­tice in the Com­mis­sion’s press release summariz-
ing the Apple App Store SO.
5. Article 5(6) prohibits gate­kee­pers from pre­venting or
restricting business users or end users from raising is-
sues of non-com­pli­ance with EU or national laws
with any re­le­vant public authority, in­clu­ding national
courts, related to a prac­tice of the gate­kee­per. This
pro­vi­sion may ex­clude the use of mandatory arbitra-
tion­ claus­es or non-dis­clo­sure agreements.
6. Gate­kee­pers must refrain from bundling CPS with
ancillary ser­vi­ces, i.e. they shall not re­quire end users
to use, or business users to use,­offer, or to interoper-
ate with, an identification service, a web browser en-
gine or payment service, or technical ser­ vi­
ces that
support the pro­vi­sion of payment ser­vi­ces, such as in-
app payment systems, of the gate­kee­per in the con-
text of ser­vi­ces pro­vided by the business users using
that gate­kee­per’s CPS. In the Com­mis­sion proposal,
the obli­ga­tion had been lim­ited to identification ser­
vi­ces. The extension to, in particular, payment ser­vi­
ces and in-app payment systems, is in­spired by the
Apple App Store in­ves­ti­ga­tion,­ where the mandatory
use of Apple’s IAP is a central issue (see point 3­­
above).
7. Gate­ kee­pers must also refrain from tying CPS, i.e.
they shall not re­quire business or end users to sub-
scribe to or register for fur­ther CPS pro­vided by the
gate­kee­per as a con­di­tion for being able to use one of
the gate­kee­per’s CPS. The bundling of CPS was at the
heart of the­­Google Android case,­where the Com­mis­
sion fined­­Google € 4.34 bil­lion for imposing re­stric­
tions on manufacturers of smart­phones using its An-
droid operating system in order to cement its
dominant po­si­tion in internet­searches.­These re­stric­
tions in­cluded requiring manufacturers to pre-install
the­­Google­Search app and the Chrome browser app
60 European Com­mis­sion press release of 30 April 2021, ‘Antitrust: Com­mis­
sion sends State­ment of Ob­jec­tions to Apple on App Store­rules for music
streaming pro­viders’,
https://ec.europa.eu/com­mis­sion/presscorner/detail/en/ip_21_2061.
410 Afl. 6 - december 2022
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as a con­di­tion for licensing­­Google’s app store (the
Play Store).61 In a recent judg­ment, the Gen­er­al Court
largely upheld the Com­mis­sion’s de­ci­sion, al­though it
re­duced the fine to € 4.125 bil­lion.62
8. Transparency regarding on­line advertising. In ac­
cor­dance with Article 5(9) and (10), gate­kee­pers shall
pro­vide transparent in­for­ma­tion about pricing/remu-
neration of advertisements to each advertiser and
each publisher to which they pro­vide on­line advertis-
ing ser­vi­ces. A lack of such transparency is currently
being investigated by the Com­mis­sion in the­­ Google
AdTech case.63
6.3 Article 6 and 7: Obligations “susceptible of being
further specified”
Article 6 first of all prohibits several “leveraging” prac­
tices that enable a gate­kee­per to extend its market power
from one market to another:
1. Leveraging prac­ tices with re­spect to data. Article
6(2) pro­vides that gate­kee­pers shall not use non-pub-
lic data ge­ne­rat­ed or pro­vided by business users in
the context of their use of the CPS, in­clu­ding data ge­
ne­rat­ed or pro­vided by the business users’ customers,
in order to compete with those business users. This
prac­tice is currently being scrutinized by the Com­
mis­sion under Article 102 TFEU in the Amazon Mar-
ketplace case.64 In its SO of No­vem­ber 2020, the Com­
mis­sion sta­ted that it had­reached the preliminary
view that Amazon had infringed Article 102 TFEU by
using mas­ sive quantities of non-public third-party
seller data to calibrate its own retail­offers and strate-
gic business de­ci­sions,­there­by avoiding the normal­
risks of retail competition and leveraging its domi-
nance on the market for the pro­vi­sion of marketplace
ser­vi­ces in France and Germany. Amazon subsequent-
ly­offered commitments to address the concerns set
out in the SO, which the Com­mis­sion recently market
tested.
2. Tying prac­tices. Pursuant to Article 6(3), gate­kee­pers
shall allow end users to uninstall preinstalled soft-
ware on the operating system of the gate­kee­per (un-
less the software is essential for the functioning of the
operating system or device and cannot be­offered on a
standalone basis by third parties) and to easily­change
default settings on the operating system, virtual assis-
tant and web browser of the gate­kee­per that direct or
steer end users to pro­ducts or ser­vi­ces pro­vided by
the gate­kee­per. Such tying prac­tices were prohibited
61 Com­mis­sion de­ci­sion of 18 July 2018, case AT.40099.
62 Gen­er­
al Court 14 September 2022, nr. T-604/18, ECLI:EU:T:2022:541,­­
Google and Al­phabet v Com­mis­sion (Google Android).
63 AT.40670,­­Google AdTech and data-related prac­tices.
64 Case AT.40462, Amazon Marketplace.
Com­pu­ter­recht 2022/219
Artikelen
in the Micro­soft Media Player65 and­­Google Android66
cases; they were also at the cen­tre of the Micro­soft In-
ternet Explorer in­ves­ti­ga­tion, which was how­ever con­
cluded by a commitments de­ci­sion.67 Article 6(3) pro­
vides for an obli­ga­tion to­offer users a “choice screen”
for­search engines, virtual assistants and web brow­
sers, which is in­spired by the browser choice screen
remedy in the 2009 Micro­soft Internet Explorer de­ci­
sion. In 2013, the Com­mis­sion fined Micro­soft € 561
million for failing to comply with its commitments
regarding browser choice. The commitments were
how­ever lim­ited to five years, allowing Micro­soft to
retire the choice screen in 2014.
3. Re­stric­ tion of side loading. Article 6(4) re­ quires
gate­kee­pers to allow and technically enable the in-
stallation and effective use of third-party software
ap­pli­ca­tion or software ap­pli­ca­tion stores on the op-
erating system of the gate­kee­per (“side loading”). Re­
stric­tions on side loading, which are essentially also a
form of tying, are being reviewed in the Apple App
Store case.68
4. Self-preferencing in ranking. Article 6(5) obliges
gate­kee­ pers to refrain from self-preferencing their
own ser­vi­ces and pro­ducts in ranking and related in-
dexing and crawling. Gate­ kee­ pers shall apply fair,
transparent and non-discriminatory (FRAND) con­di­
tions to such ranking. This type of self-preferencing
prac­tice was prohibited in the­­Google Shopping case69
and is also being reviewed in the Amazon Buy Box in­
ves­ti­ga­tion.70 The latter in­ves­ti­ga­tion, a “spin-off” of
the Amazon Marketplace case, was­opened in No­vem­
ber 2020 and focuses on Amazon’s business prac­tices
that might artificially favour not only its own retail­
offers, but also the­offers of business users that use
Amazon’s logistics and delivery ser­vi­ces (“Fulfilment
by Amazon”) when selecting the winner of the “Buy
Box” (which allows customers to add items from a
specific seller directly to their shopping carts). In
2018, in the­­Google Shopping de­ci­sion, the Com­mis­
sion fined­­Google € 2.42 bil­lion for abusing its domi-
nance as a­search engine to advantage its own com-
parison shopping service, giving it more prominence
in­search results­while demoting rival ser­vi­ces.71 In
65 Com­mis­sion de­ci­sion of 24 March 2004, case AT.37.792. This de­ci­sion was
upheld by the Gen­er­al Court in its judg­ment of 17 September 2007 in case
T-201/04, ECLI:EU:T:2007:289.
66 Com­mis­sion de­ci­sion of 18 July 2018, case AT.40099; upheld by Gen­er­al
Court, 14 September 2022, case T-604/18, ECLI:EU:T:2022:541.
67 European Com­mis­sion, “Com­mis­sion de­ci­sion addressed to Micro­soft
Corporation relating to a proceeding on the impo­si­tion of a fine pursuant
to Article 23(2)(c) of Council Regulation (EC) No 1/2003 for failure to
comply with a commitment made binding by a Com­mis­sion de­ci­sion pur-
suant to Article 9 of Council Regulation (EC) No 1/2003 of 16 December
2009, case 39.530.
https://ec.europa.eu/competition/antitrust/cases/dec_docs/39530/
39530_3162_3.pdf.
68 Supra, n. 59.
69 Com­mis­sion de­ci­sion of 27 June 2017 in case AT.39.740.
70 Case AT.40.703, Amazon Buy Box.
71 European Com­mis­sion de­ci­sion of 27 June 2017 in case AT.39740.
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No­vem­ber 2021, the de­ci­sion was largely upheld by
the Gen­er­al Court, which maintained the fine.72
In ad­di­tion, Article 6 lays down obli­ga­tions­aimed at re-
ducing barriers to entry, by facilitating switching and
multi-homing by end users, as well as by imposing inter-
operability and access obli­ga­tions to the benefit of busi-
ness users:
5. Re­stric­tions on switching. Article 6(6) pro­vides that
gate­ kee­
pers shall not restrict, technically or­oth­ er­
wise, the ability of end users to switch be­tween, and
subscribe to, different software ap­pli­ca­tions and ser­
vi­ces that are accessed using the gate­kee­per’s CPS.
6. Interoperability. Article 6(7) re­quires gate­kee­pers to
allow service and hard­ware pro­viders full interopera-
bility with the operating system and virtual assistant
of the gate­ kee­
per, giving them access to the same
software and hard­ware features as are available to the
software and hard­ware pro­vided by the gate­kee­per it-
self; in ad­di­tion, they must pro­vide business users
non-discriminatory access to operating system, hard­
ware or software features as used by the gate­kee­per
to pro­vide com­pet­ing ser­vi­ces. Such a prac­tice is cur-
rently being investigated by the Com­mis­sion under
Article 102 TFEU in the Apple Pay case.73 The in­ves­ti­
ga­tion concerns both Apple’s terms for integrating
Apple Pay func­tion­ality in third-party apps and web-
sites, which may distort competition, and Apple’s lim­
ita­tion of access to the Near Field Com­ mu­ni­
ca­tion
(NFC) “tap and go” func­tion­ality in­iPhones to Apple
Pay.
7. Access to ad performance data. Article 6(8) re­quires
gate­ kee­
pers to pro­ vide advertisers and publishers,
upon their request and free of­­charge, with access to
the performance measuring tools of the gate­kee­per
and the data nec­es­sary for advertisers and publishers
to carry out their own independent verification of the
advertisements inventory and of the performance of
the gate­kee­per’s CPS.
8. Data portability. Pursuant to Article 6(9), gate­kee­
pers shall pro­vide end users and third parties au­thor­
ized by an end user effective portability of the data
pro­vided by the end user or ge­ne­rat­ed through the
activity of the end user in the context of the use of the
re­le­vant CPS, in­clu­ding by providing, free of­­charge,
tools to facilitate the effective exercise of such data
portability, and in­clu­ding the pro­vi­sion of continuous
and real-­time access to such data.
9. Data access. Article 6(10) obliges gate­kee­pers to pro­
vide business users with effective, high-quality and
continuous and real-­time access to, and use of, aggre-
gated and non-aggregated data, in­ clu­
ding personal
data, that is pro­vided for or ge­ne­rat­ed in the context
72 Gen­er­al Court, 10 No­vem­ber 2021, case T-612/17,­­Google and Al­phabet v
Com­mis­sion, ECLI:EU:T:2021:763 (under appeal before the Court of Jus­
tice, case C-48/22 P).
73 Case AT.40.452 Apple – Mobile Payments.
The Digital Markets Act: The EU Takes On ‘Big Tech’
of the use of the re­le­vant CPS by those business users
and end users engaging with the pro­ducts or ser­vi­ces
of those business users. With respect to personal
data, this is subject to the user’s consent.
10. Access to­search data. Article 6(11) pro­ vides that
gate­kee­pers shall allow third party on­line­search en-
gine pro­viders FRAND access to ranking, query, click
and view data ge­ne­rat­ed by a gate­kee­per’s­search en-
gine.
11. Article 6(12) re­quires gate­kee­pers to give business us-
ers FRAND access to the software ap­pli­ca­tion stores,
on­line­search engines and on­line so­cial network-
ing ser­vi­ces listed in the designation de­ci­sion.
12. Article 6(13) prohibits gate­ kee­pers from imposing
dispro­por­tio­nate con­di­tions for the termination of
a CPS and re­quires that the con­di­tions for termination
be exercisable with­out undue difficulty.
Article 7 adds obli­ga­tions regarding the interoperability
of number-independent interpersonal com­mu­ni­ca­
tions ser­vi­ces, such as messaging ser­vi­ces, with com­pet­
ing ser­vi­ces. Es­sentially, this­means that, in the fu­ture, us-
ers of Whats­App and users of Face­book Messenger will
have to be able to communicate with each­other. How­ever,­
whereas the obli­ga­tions of Articles 5 and 6 are im­me­di­ate­
ly applicable to des­ig­nated ope­ra­tors, Article 7 pro­vides
for a gradual time­table for com­pli­ance.
6.4 Specification of the Obligations of Articles 6 and 7
under Article 8
As already mentioned, the obli­ga­tions of Article 5 are sup­
posed to be “self-executing”. Those in Articles 6 and 7, on
the­other hand, are “susceptible of being fur­ther speci-
fied” by way of the mech­a­nism laid down in Article 8.
Article 8(2) pro­vides that the Com­mis­sion may, at the re-
quest of a gate­kee­per or at its own initiative, open a proce-
dure leading to the adop­ tion of an implementing act,
specifying the mea­sures that a gate­kee­per must imple-
ment in order to ef­fec­tive­ly comply with­these obli­ga­tions.
In the context of this procedure, the Com­mis­sion must
grant in­te­res­ted third parties an opportunity to­comment
on a non-confidential summary of the case and on the
mea­sures that it is considering taking (or that it con­sid­ers
the gate­kee­per should take). Under Article 8(3), a gate­kee­p­
­er may also request the Com­mis­sion to en­gage in a process
to determine whether the mea­sures that the gate­keep­er
intends to implement or has implemented to en­sure com­
pli­ance with Articles 6 and 7 are effective in achieving the
ob­jec­tives of the re­le­vant obli­ga­tions. How­ever, the Com­
mis­sion has discretion whether to en­gage in such a “regu-
latory dia­logue” or not.
More­over, the only two guiding principles for the Com­
mis­sion in applying Article 8 are that the mea­sures should
be effective in achieving their ob­jec­tives and pro­por­tio­
nate in the specific cir­cum­stances of the gate­kee­per and
the re­le­vant service.74 This does not seem to­leave room to
74 Article 8(3) and (7) DMA.
412 Afl. 6 - december 2022
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modulate, much less waive, the obli­ga­tions­based on ef­fi­
ciency con­si­de­ra­tions.
6.5 Updating Obligations and Anti-circumvention
(Articles 12 and 13)
Article 12 of the DMA allows the Com­mis­sion to ‘update’
the obli­ga­tions for gate­kee­pers through delegated acts if
market in­ves­ti­ga­tions indicate that this is nec­es­sary to ad-
dress prac­tices that lim­it the contestability of markets or
are unfair in the same way as the already listed prac­tices.75
This reflects the idea that digital markets and ser­vi­ces are
gen­er­al­ly rapidly chang­ing markets and takes into account
the often complex technological nature of CPS.76 How­ever,
the Com­mis­sion’s power to “update” or “supplement” the
ex­ist­ing obli­ga­tions is essentially lim­ited to extending the
scope of already listed obli­ga­tions or specifying such obli­
ga­tions,77 and the introduction of entirely new obli­ga­tions
remains the prerogative of the EU legislature (the Parlia-
ment and the Council). Nonetheless, it is worth noting
that the only con­di­tion for the exercise of the Com­mis­
sion’s power under Article 12 is procedural: name­ly, the
Com­mis­sion must carry out a market in­ves­ti­ga­tion first. In
ad­di­tion, under Article 19 the Com­mis­sion can conduct
market in­ves­ti­ga­tions into new ser­vi­ces that should be
added to the list of CPS and new prac­tices that lim­it the
contestability of CPS or that are unfair and which are not
yet ef­fec­tive­ly addressed by the DMA.
In order to en­sure that gate­kee­pers do not undermine the
effectiveness of the obli­ga­tions, Article 13 DMA sets out an
“anti-circumvention” rule, pursuant to which gate­kee­pers
may not segment, divide, subdivide, fragment or split CPS
through contractual,­com­mer­cial technical or any­other­
means in order to circumvent the quantitative criteria for
the designation of a gate­kee­per, or en­gage in any­other be­
haviour that un­der­mines the effective com­pli­ance with
the obli­ga­tions laid down by Articles 5, 6 and 7, re­gard­less
of the nature of that be­haviour.
75 Article 12 and 49 DMA; see also Recital 33 DMA; see article 19 on in­ves­ti­
ga­tions.
76 Recital 31 DMA.
77 Ac­cor­ding to Article 12(2) DMA, the scope of a delegated act supplemen-
ting the obli­ga­tions laid down in Articles 5 and 6 should be lim­ited to ex-
tending an obli­ga­tion applicable only to certain CPS to­other CPS; exten-
ding an obli­ ga­tion that benefits only certain business users to­other
business users; specifying the manner in which the obli­ga­tions are to be
performed by gate­kee­pers; extending a obli­ga­tion that applies only in re-
lation to certain ser­vi­ces pro­vided together with, or in support of, CPS to­
other ancillary ser­vi­ces; extending an obli­ga­tion that applies only in relati-
on to certain types of data to apply in relation to­other types of data; ad-
ding fur­ther con­di­tions­ where an obli­ga­tion im­poses certain con­di­tions on
the be­haviour of the gate­kee­per; or applying an obli­ga­tion that go­verns
the re­la­tion­ship be­tween several CPS of the gate­kee­per to the re­la­tion­ship
be­tween a core platform service and­other ser­vi­ces of the gate­kee­per. Pur-
suant to Article 12(3) and (4) DMA, delegated acts supplementing the obli­
ga­tions of Article 7 may amend the list of basic func­tion­alities identified in
Article 7(2) by adding or removing func­tion­alities of NI ICS, or may specify
the manner in which the obli­ga­tions of Article 7 are to be performed.
Com­pu­ter­recht 2022/219
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6.6 Other Requirements for Gatekeepers under the
DMA
In ad­di­tion to the “be­havioural” obli­ga­tions of Articles 5-7,
the DMA im­poses ad­di­tional re­quirements on gate­kee­pers
(i) to report on com­pli­ance with their obli­ga­tions (Article
11); (ii) to notify the Com­mis­sion of planned con­cen­tra­
tions (Article 14), (iii) to submit audits of consumer profil-
ing techniques (Article 15) and (iv) to set up a com­pli­ance
function (Article 28).
1. Reporting. Des­ig­nated gate­kee­pers must report with­
in six months of being des­ig­nated on the mea­sures
they have implemented to comply with their obli­ga­
tions, and update this report at least annually. The
Com­mis­sion will publish a non-confidential summary
of­these reports on its website.
2. Notification of con­cen­tra­tions: Gate­kee­pers must
inform the Com­mis­sion of any intended concentra-
tion78­where the merging entities or the target pro­
vide CPS or any­other service in the digital sector or
enable the collection of data, ir­re­spective of whether
the concentration is notifiable under EU or national
merger control re­gimes. They must do this before the
im­ple­men­ta­tion of the concentration. This is solely an
obli­ga­tion to inform the Com­mis­sion and does not
constitute a new merger control re­gime. How­ever, the
Com­mis­sion will­ share the in­for­ma­tion received with
the competent national au­ thor­i­
ties of the Member
States, who can use it to request a referral of the con-
centration to the Com­mis­sion under Article 22 of the
EU Merger Regulation (EUMR). Since March 2021, un-
der a new policy first applied in the Illumina/GRAIL
case,79 the Com­mis­sion reserves the right to review
con­ cen­tra­
tions that are not reportable under the
EUMR or the merger control re­gimes of any of the
Member States, if it identifies a risk that the concen-
tration could undermine inno­va­tion or nascent com-
petition.80
3. Consumer profiling audits: With­in six months from
its designation, a gate­kee­per must submit to the Com­
mis­sion an independently au­dit­ed de­scrip­tion of any
consumer profiling techniques that the gate­ kee­per
applies to or across its CPS (but lim­ited to the CPS list-
ed in the designation de­ci­sion). The Com­mis­sion shall
transmit this de­scrip­tion to the­European Data Pro­
tec­tion Board, and the gate­ kee­per must also make
publicly available an overview of the au­dit­ed de­scrip­
tion and update such overview on an annual basis.
4. Obli­ga­tion to set up a com­pli­ance function: gate­
kee­ pers must set up a com­ pli­
ance function which
78 As de­fined by the EU Merger Regulation (Regulation 139/2004).
79 Case M.101.188. By de­ci­sion of 6 September 2022, the Com­mis­sion bloc-
ked the concentration, see press release:­European Com­mis­sion, ‘Mer-
gers: Com­mis­sion prohibits acqui­si­tion of GRAIL by Illumina’, 2022,
https://ec.europa.eu/com­mis­sion/presscorner/detail/en/IP_22_5364.
80 European Com­mis­sion, Com­mu­ni­ca­tion from the Com­mis­sion – Guid­ance
on the ap­pli­ca­tion of the referral mech­a­nism set out in Article 22 of the Mer-
ger Regulation to certain categories of cases, OJ C. 13, 31 March 2021, 1.
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should be independent from their op­er­a­tional func­
tions and must in­volve at least one com­pli­ance of-
ficer. The com­pli­ance officer must have sufficient au-
thority, stature and re­sour­ces, and have access to the
gate­kee­per’s ma­nage­ment body in order to monitor
com­pli­ance with the DMA. The head of the com­pli­
ance function must be an independent senior manag-
er with distinct responsibility for the com­ pli­
ance
function.81
7. Enforcement
7.1 Public enforcement
(a) The Commission as the central enforcer
The Com­mis­sion will be the central enforcer of the DMA,
with extensive investigative, en­force­ment and monitoring
powers. It will have the power to im­pose hefty fines as
well as be­havioural and structural remedies (in­clu­ding the
breaking up of companies).82
The Com­mis­sion’s wide-ranging investigative powers
under the DMA are similar to those that it has under EU
competition law as laid down in Regulation 1/200383 (in­
clu­ding the power to request in­for­ma­tion, take state­ments
and carry out on-site inspections).84 In ad­di­tion, how­ever,
the DMA allows the Com­mis­sion to re­quire access to any
data, algorithms and testing in­for­ma­tion of undertakings,
as well as request ex­pla­na­tions about IT systems, algo-
rithms, data-handling and business prac­tices.85
Pending the out­come of an in­ves­ti­ga­tion, in case of urgen-
cy due to the risk of serious and irreparable dam­age for
business users or end users of gate­kee­per platforms, the
Com­mis­sion can adopt interim mea­sures­based on a pri-
ma facie finding of a­breach of Articles 5, 6 or 7.86 The pow-
er to im­pose interim mea­sures is considered to be one of
the most powerful en­ force­ ment tools. The Com­ mis­sion
has so far only rarely used this power in its en­force­ment of
EU competition law. In fact, the Com­mis­sion’s de­ci­sion of
16 October 2019 imposing interim mea­sures on Broadcom
in the context of an in­ves­ti­ga­tion into abuse of dominance
in the TV and modem chipset markets was the first (and
until now only) such de­ci­sion under Article 8 of Regula-
tion 1/2003.87 In the context of the DMA, the power to im­
pose interim mea­sures enables the Com­mis­sion to speedi-
ly intervene to protect the in­te­rests of business users and
81 Article 28 DMA.
82 Article 30-33.
83 Council Regulation (EC) No 1/2003 of 16 December 2002 on the im­ple­
men­ta­tion of the­rules on competition laid down in Article 81 and 82 of
the­ Trea­ty, OJ L 1, 4 January 2003, 1.
84 See Articles 20-29 DMA; compare Articles 17-22 of Regulation 1/2003.
85 Article 21 and 23(2)(d) DMA.
86 Article 24 DMA.
87 European Com­mis­sion De­ci­sion of 16 October 2019, AT 40608. Less than a
year later, on 10 October 2020, the Com­mis­sion closed its in­ves­ti­ga­tion
after accepting a commitments package from the chipmaker. See also M.
Ka­der, ‘The Use of Interim Mea­sures and Commitments in the­European
Com­mis­sion’s Broadcom’, Journal of­European Competition Law & Prac­tice,
2021, Volume 12, Issue 6, 443-451.
The Digital Markets Act: The EU Takes On ‘Big Tech’
end users. It remains to be seen if the Com­mis­sion will
make a more frequent use of this power under the DMA
than under competition law.
In the course of an in­ves­ti­ga­tion, a gate­kee­per can­offer
commitments, which the Com­mis­sion may declare bind-
ing on that gate­kee­per. The Com­mis­sion can reopen the
in­ves­ti­ga­tion in case of a ma­te­rial­change in the facts on
which the de­ci­sion was­based if the gate­kee­per fails to
comply with its commitments or if the de­ci­sion was­based
on in­com­plete, incorrect or misleading in­for­ma­tion.88
Besides market in­ves­ti­ga­tions for designating gate­kee­pers
under Article 17, the Com­mis­sion can also conduct a mar-
ket in­ves­ti­ga­tion under Article 18 to examine whether a
gate­kee­per has en­gaged in systematic non-com­pli­ance.
If that is the case, the Com­ mis­ sion may im­ pose be­
havioural and structural remedies, as well as prohibit the
gate­kee­per from entering into a concentration for a lim­
ited period of time. Systematic non-com­pli­ance is deemed
to exist­where the Com­mis­sion has issued at least three
non-com­pli­ance de­ci­sions against a gate­kee­per in relation
to any of its CPS with­in a period of eight years prior to the
adop­tion of the de­ci­sion to open the market in­ves­ti­ga­tion.
Where the Com­mis­sion finds that a gate­kee­per has­failed
to comply: with its obli­ga­tions under Articles 5-7, with
remedies im­posed fol­low­ing a market in­ves­ti­ga­tion into
systematic non-com­ pli­
ance, with interim mea­ sures or
with binding commitments, the Com­mis­sion may adopt a
non-com­pli­ance de­ci­sion requiring the gate­ kee­per to
cease and desist with the non-com­ pli­
ance with­ in an
appro­ pri­ate deadline and explain how it anticipates to
comply with the de­ci­sion.89
The Com­mis­sion can im­pose fines on gate­kee­pers of up to
10% of their total­world­wide turnover in the previous fi­
nan­cial year.90 In case of systematic non-com­pli­ance, the
Com­mis­sion can even im­pose a fine of up to 20% of the to-
tal­world­wide turnover in the previous fi­nan­cial year.91
Com­mis­sion de­ci­sions imposing fines or periodic penal­ty
payments are subject to un­lim­it­ed ju­ris­dic­tion­al review by
the CJEU. The CJEU may cancel, re­duce or increase fines or
periodic penal­ty payments.92
Com­ mis­ sion Vice-President and Competition Com­ mis­
sioner Vestager has announced that the en­force­ment of
both the DSA and the DMA will be entrusted to dedicated
teams with­in DG CONNECT, which will work closely with
DG Competition on the DMA. The Com­mis­sion aims to
staff the dedicated DG CONNECT teams with over 100 full-
time employees (‘FTE’).93 This is already more than the 80
FTE ini­tially announced, but may still be in­ade­quate, espe­
cially if the teams have to divide their time be­tween the
88 Article 25 DMA.
89 Article 29 DMA.
90 Article 30 DMA; see also Article 23 of Regulation 1/2003.
91 Article 30(2) DMA.
92 Article 45 DMA; Article 261 TFEU.
93 European Com­mis­sion, Sneak peek: how the Com­mis­sion will enforce the
DSA & DMA - Blog of Com­mis­sioner Thierry Breton, 5 July 2022,
https://ec.europa.eu/com­mis­sion/presscorner/detail/en/STATEMENT_
22_4327 (press release).
414 Afl. 6 - december 2022
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DMA and the DSA. The DMA alone pro­vides for 22 obli­ga­
tions and it is ex­pect­ed that be­tween 10 and 15 gate­kee­
pers will be des­ig­nated.94 This­means that the Com­mis­sion
will have to monitor and enforce com­pli­ance with hun-
dreds of individual obli­ga­tions. If­there is an asymmetry of
re­sour­ces be­tween the gate­kee­pers and the Com­mis­sion,
this may undermine the effectiveness of the en­force­ment.
An­ dreas Schwab, the EP rapporteur for the DMA, has
called for the recruitment of at least 180 full-time staff
dedicated to the DMA.95 Another issue is the availability of
the technical expertise (engineers, com­pu­ter and data sci-
entists) that will be needed to review e.g. algorithms and
data-handling prac­tices.96
Pri­vate com­plainants, such as competitors, or the business
or end users of a gate­kee­per, will no doubt be able to play
an important role in sup­por­ting en­force­ment, as is the case
in competition law en­force­ment. How­ever, the DMA de-
votes relatively little attention to their role. As R. Podszun­
notes, pro­vi­sions are lacking on how to handle complaints,
on rejection de­ci­sions, on formal participation in pro­ceed­
ings, on time lim­its for addressing their concerns, etc.97 Ar-
ticle 27 does allow third parties to pro­vide in­for­ma­tion
about gate­kee­pers’ prac­tices to NCAs or to the Com­mis­sion
directly, but­these au­ thor­
i­
ties have full discretion as to
what they then do with that in­for­ma­tion. Apart from that,
the DMA only obliges the Com­mis­sion to consult third par-
ties in the context of market in­ves­ti­ga­tions into systematic
non-com­pli­ance under Article 18 or into new ser­vi­ces and
prac­tices under Article 19 – not in the context of market
in­ves­ti­ga­tions to des­ig­nate gate­kee­pers under Article 17.98
(b) Limited role of national authorities
In gen­er­al, national au­thor­it­ies must abstain from taking
de­ci­sions which run counter to de­ci­sions adopted by the
Com­mis­sion under the DMA.99
94 European Com­mis­sion, Com­mis­sion Staff Working Document – Executive
Summary of the Impact Assessment Report Accompanying the document
Proposal for a Regulation of the­European Parliament and of the Council on
contestable and fair markets in the digital sector (Digital Markets Act),
SWD(2020) 364 final, 15 December 2020, 48.
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:52020SC0364
95 L. Bertuzzi, Com­mis­sioner hints at en­force­ment details as EU Parliament
adopts DSA and DMA, Euractiv, 2022,
https://www.euractiv.com/sec­tion/digital/news/com­mis­sioner-hints-at-
en­force­ment-details-as-eu-parliament-adopts-dsa-and-dma/.
96 The Com­mis­sion will be able to rely on the support of the Joint Re­search
Cen­tre (JRC, the scientific service of the Com­mis­sion). A­European Cen­tre
for Algorithmic Transparency will be set up jointly by DG CONNECT and
the JRC.
97 R. Podszun, ‘Pri­vate En­force­ment and Gate­kee­per Regulation: Strengthe-
ning the Rights of Pri­vate Parties in the Digital Markets Act’, Journal of­Eu-
ropean Competition Law and Prac­tice, 2022, Vol. 13, No. 4, 254-267, at p.
264.
98 For the sake of completeness, we should mention that Article 43 DMA
pro­vides that the Whistleblowing Directive (Directive 2019/1937) shall
apply to reporting all­breach­es of the DMA.
99 This in­cludes national courts.
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Artikelen
The initiative to regulate on­ line platforms through an
ex-ante re­gime was supported by many NCAs.100 How­ever,
in contrast with the decentralized system of en­force­ment
under the current EU competition law framework­where
NCAs play an important role in en­force­ment, the role of
national au­thor­i­ties in the en­force­ment of the DMA is lim­
ited.
Some Member State con­sul­ta­tion and coop­er­a­tion is pro­
vided for: Article 50 DMA pro­vides for the creation of a
Digital Markets Advisory Committee, i.e. a “comitology”
committee composed of Member State rep­re­sen­ta­tives to
advise the Com­mis­sion (with non-binding opin­ions) be-
fore it adopts individual de­ci­sions addressed to gate­kee­p­
ers. In ad­di­tion, Articles 37 and 38 allow for coop­er­a­tion
with national au­thor­i­ties, and specifically for coop­er­a­tion
and co­or­di­na­tion with national au­thor­i­ties applying na-
tional competition laws or­other­rules referred to in Arti-
cle 1(6) to gate­kee­pers. The Com­mis­sion and the national
au­thor­i­ties­­charged with enforcing the­rules referred to in
Article 1(6) are re­ quired to cooperate and inform each­
other about their re­spective en­force­ment ac­tions. To that
end, they can ex­change in­for­ma­tion, in­clu­ding confiden-
tial in­for­ma­tion. The Com­mis­sion may also ask competent
national au­thor­i­ties to support its market in­ves­ti­ga­tions.101
How­ever, if a national authority intends to im­pose obli­ga­
tions on gate­kee­pers­based on national laws referred to in
Article 1(6), it must first communicate the draft mea­sure
to the Com­mis­sion. Similarly,­where a national authority
has the com­pe­tence to do so under national law, it can
open an in­ves­ti­ga­tion into a gate­kee­per’s al­leged non-
com­pli­ance with its obli­ga­tions under Articles 5-7 DMA
with­in its territory, but it must inform the Com­mis­sion
before taking its first investigative mea­sure. And if the
Com­mis­sion opens an in­ves­ti­ga­tion into the same con-
duct, this im­me­di­ate­ly relieves the national authority of
its com­ pe­
tence to carry on with its own in­ ves­ti­ga­
tion.
More­over, at the end of its in­ves­ti­ga­tion, the national au-
thority cannot itself take a de­ci­sion but must report its
findings to the Com­mis­sion, to support the Com­mis­sion in
its role as sole enforcer of the DMA.102
The DMA also establishes a ‘high-level group for the Digi-
tal Markets Act’ which will be composed of the fol­low­ing­
European bod­ ies and networks: the Body of­European
Regulators of Electronic Com­mu­ni­ca­tions (BEREC), the­Eu-
ropean Data Pro­tec­tion Supervisor and the­European Data
Pro­tec­ tion Board, the­European Competition Network
(ECN), the Consumer Pro­tec­tion Coop­er­a­tion Network,
and the­European Regulatory Group of Audio-visual Media
Regulators.103 The high-level group’s role is to pro­vide the
Com­mis­sion with advice and expertise in the­areas falling
100 See the sub­mis­sions by the Dutch and Belgian NCAs to the public con­sul­
ta­tion, available at
https://digital-strategy.ec.europa.eu/en/con­sul­ta­tions/con­sul­ta­tion-digital-­
ser­vi­ces-act-package.
101 Article 38(6) DMA, see also Article 16(5) DMA.
102 Article 38(7) DMA.
103 Article 40 DMA.
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with­in the com­pe­tences of its members and to promote a
consistent regulatory approach across different regulatory
instruments. The high-level group may inter alia pro­vide
re­com­men­da­tions to the Com­mis­sion on “consistent trans-
disciplinary ap­proach­es and synergies” be­tween the im­ple­
men­ta­tion of the DMA and­other sector-specific reg­ul­a­
tions (applied by the national au­thor­i­ties composing the
afore­men­tioned bod­ies and networks), and may also pro­
vide expertise on the need to “amend, add or remove­rules”
in the DMA.
Finally, Member States are en­ti­tled to ask the Com­mis­sion
to open a market in­ves­ti­ga­tion pursuant to Article 17 DMA
be­cause they consider that­there are rea­son­able grounds
to suspect that an undertaking should be des­ig­nated as a
gate­kee­per; or a market in­ves­ti­ga­tion pursuant to Article
18 DMA be­cause they consider that­there are rea­son­able
grounds to suspect that a gate­kee­per has en­gaged in sys-
tematic non-com­pli­ance.104
7.2 Private Enforcement
Pri­vate en­force­ment is not addressed in the DMA. How­
ever, as a regulation, its pro­vi­sions have direct effect,105 at
least to the extent that they are sufficiently “clear and pre-
cise” so that individuals may derive rights from them.106
This implies that the Member State national courts are
competent to rule on al­leged non-com­pli­ance of the DMA
and even have a duty to apply the DMA when pri­vate par-
ties request the en­force­ment of the obli­ga­tions enshrined­
there­in, in­clu­ding against­ other pri­vate parties.
It is­there­fore pos­sible and even like­ly that users or com-
petitors will seek injunctive relief from national courts for
al­leged non-com­pli­ance by gate­kee­pers with their obli­ga­
tions under the DMA. The highly centralized public en­
force­ment system under the DMA would thus be comple-
mented by a decentralized en­force­ment through national
courts. This could go some way to addressing the concern
that the Com­mis­sion will lack sufficient re­sour­ces to en-
force the DMA. How­ever, it also carries with it a risk of
fragmentation.
In competition law, the role of national courts in enforcing
competition law through in­junc­tions has received much
less attention than their role in awarding dam­ages to the
vic­tims of infringements. This is not surpri­sing given that
courts do not have extensive investigative powers and are
not well placed to carry out the kind of sophisticated eco-
nomic assessments that competition in­ves­ti­ga­tions often
entail. How­ever, the per se­rules of the DMA lend them-
selves much better to pri­ vate en­ force­
ment. This is of
course with­out prejudice to the possibility of follow-on
104 Article 41 DMA.
105 See e.g. CJEU case 43/71, Politi, ECLI:EU:C:1971:122, para. 9: “by reason of
their nature and their function in the system of the sour­ces of Community
law, reg­u­la­tions have direct effect and are, as such, capable of cre­at­ing indi-
vidual rights which national courts must protect”.
106 See e.g. CJEU case 9/73, Schlüter, ECLI:EU:C:1973:110, para. 32. See K. Le-
naerts and P. Van Nuffel (edited by T. Corthaut), Con­sti­tu­tion­al Law of the­
European Union, Oxford University Press 2022, pt. 27.016 and the case law
ci­ted­ there.
The Digital Markets Act: The EU Takes On ‘Big Tech’
dam­ ages claims after a finding of infringement by the
Com­mis­sion. It must be no­ted, how­ever, that the Dam­ages
Directive, and the national laws transposing it, would not
apply to such claims, which may­there­ fore not benefit
from the facilitations foreseen­there­in.107
The DMA has an article on the coop­er­a­tion be­tween the
Com­mis­sion and national courts.108 National courts may
ask the Com­mis­sion to transmit in­for­ma­tion in its posses-
sion or give its opin­ion concerning the ap­pli­ca­tion of the
DMA (as an amicus curiae). It is also clarified that national
courts cannot give de­ci­sions that run counter to a de­ci­sion
adopted by the Com­ mis­sion under the DMA. National
courts may consider staying their pro­ceed­ings if­there is
an ongoing in­ves­ti­ga­tion by the Com­mis­sion. In the inter-
est of a uniform ap­pli­ca­tion of the law, they may also refer
ques­tions on the in­ter­pre­ta­tion of the DMA to the CJEU for
a preliminary ruling under Article 267 TFEU.
The Repre­sentative Ac­tions Directive (directive 2020/1828)
is made applicable to ac­ tions brought against infringe-
ments of the DMA by gate­kee­pers that harm or may harm
collective in­te­rests of consumers.109 This­means that “qual-
ified entities”, i.e. not-for-profit or­ ga­
ni­
sa­
tions or public
bod­ies repre­senting consumer in­te­rests, shall be able to
bring ac­tions before national courts in all the Member
States seeking injunctive or redress mea­sures. “True” class
ac­tions are how­ever only pos­sible in so far as national law
allows for them.
In prac­tice, the level of success of pri­vate en­force­ment will
depend on whether­there is an infringement de­ ci­
sion
from the Com­mis­sion and the availability of fast-track in-
junctive relief pro­ceed­ings under national laws.
8. Relationship between the DMA and (EU and
national) competition law
Ac­cor­ding to Article 1(6), the DMA is “with­out prejudice”
to the ap­pli­ca­tion of Articles 101 and 102 TFEU. It is also
with­out prejudice to the ap­pli­ca­tion of the corresponding
national competition­rules, the national­rules prohibiting­
other forms of unilateral conduct insofar as they are ap-
plied to undertakings­other than gate­kee­pers or amount
to the impo­si­tion of fur­ther obli­ga­tions on gate­kee­pers,
and the EU and national merger control­rules. How­ever,
the ap­pli­ca­tion of­these­rules should not affect the obli­ga­
tions im­posed on gate­kee­pers under the DMA and their
uniform and effective ap­pli­ca­tion.110
As mentioned­­above when discussing the legal basis of the
DMA, and not­with­stand­ing its sta­ted harmonization objec-
tive, the DMA does not completely preclude the ap­pli­ca­
107 R. Podszun, ‘Pri­vate En­force­ment and Gate­kee­per Regulation: Strengthe-
ning the Rights of Pri­vate Parties in the Digital Markets Act’, Journal of­Eu-
ropean Competition Law and Prac­tice, 2022, Vol. 13, No. 4, 265.
108 Article 39 DMA.
109 Article 42 DMA.
110 Recital 8 DMA.
416 Afl. 6 - december 2022
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tion of specific national­rules on unilateral conduct111 such
as §19a of the German Act on Restraints of Competition
(GWB). §19a GWB allows the Bun­deskartellamt to des­ig­
nate undertakings acting as in­ter­me­di­aries in multi-sided
markets as being “of paramount im­por­tance for competition
across markets” and to prohibit such undertakings from
engaging in certain conduct (listed exhaustively), in­ clu­
ding forms of self-preferencing and certain types of data
use. The list of prohibited conduct has many similarities
with the obli­ga­tions listed under Articles 5 and 6 of the
DMA. How­ever, at least to the extent that the addressees of
§19a GWB and the DMA do not completely overlap,­there
remains scope for the ap­pli­ca­tion of §19a GWB even after
the DMA has be­come fully applicable.112
Recital 11 of the preamble emphasizes that the DMA pur-
sues complementary but different ob­jec­tives from compe-
tition law:­whereas the objective of the latter (in­clu­ding
merger control) is “the pro­tec­tion of undistorted competi-
tion on any given market”, the DMA’s objective is “to en­
sure that markets­where gate­kee­pers are pre­sent are and re-
main contestable and fair, independently from the actual,
potential or pre­sumed effects of the conduct of a given gate­
kee­per on competition in a given market”. The recital adds
that the DMA aims to protect “a different legal interest”
from that protected by competition­rules and should ap-
ply with­out prejudice to their ap­pli­ca­tion.
This insistence on the “different ob­jec­tives” pursued by,
and the “different legal in­te­rests” protected by competition
law versus the DMA, reveals the in­ten­tion to allow for a
parallel ap­pli­ca­tion of the penalties available under com-
petition law and the DMA to the same persons for the
same ma­te­rial facts­while still re­specting the principle of
ne bis in idem (no double jeopardy), which is enshrined in
Article 50 of the Charter of Fundamental Rights of the­Eu-
ropean Union.
Ac­cor­ding to past CJEU case law on the ap­pli­ca­tion of this
principle in competition law matters, the “idem” con­di­tion
is only fulfilled if the facts, the offender and the legal in-
terest protected by the­rules are all the same.113 How­ever,
in two judg­ments of 22 March 2022, – coincidentally two
days before the EP and the Council­reached a political
111 Note that Article 3(2) of Regulation 1/2003 allows Member States to
adopt and apply on their territory stricter national laws than Article 102
TFEU which prohibit or sanc­tion unilateral conduct en­gaged in by under-
takings.
112 In a January 2022 report, the scientific service of the German Bun­destag
found that the re­la­tion­ship be­tween both pieces of le­gis­la­tion remained
unclear and that companies could potentially chal­lenge the parallel ap­pli­
ca­tion of both before a court (Deutscher Bun­destag, Wissenschaftlighe
Dienste – Unterabteiling Europa,­Sachstand: Die Anwendbarkeit von § 19a
GWB im Lichte des Europäischen Gesetzgebungsverfahrens zum “Digital
Markets Act”,
https://www.bundestag.de/resource/blob/880748/
856d83cb24c61822c508aa47f27e18e7/WD-7-114-21-PE-6-067-21-pdf-
data.pdf).
113 See e.g. CJEU 14 February 2012, C-17/10, Toshiba, ECLI:EU:C:2012:72, at
par. 97.
Com­pu­ter­recht 2022/219
Artikelen
agreement on the DMA text –the CJEU brought its compe-
tition law case law into line with­other­areas of law as re-
gards the ap­pli­ca­tion of the ne bis in idem rule.114 Of the
two cases, name­ly the bpost115 and Nordzucker116 cases, the
judge­ment in bpost is the most re­le­vant for our pur­poses,
as it concerns the parallel ap­pli­ca­tion of competition law
and sector-specific ex ante regulation (viz, postal regula-
tion): bpost had been fined twice, on the basis of essen-
tially the same facts – first by the national regulator for
the postal sector (the Belgian Institute for Postal ser­vi­ces
and Telecom­mu­ni­ca­tions, BIPT) for infringing sectoral le­
gis­la­tion, and subsequently by the Belgian Competition
Authority (BCA) for infringing the pro­hi­bi­tion on abuse of
dominance under national competition law and Article
102 TFEU.117 Dur­ing bpost’s appeal against the BCA’s de­ci­
sion, the national court referred ques­tions on the ap­pli­ca­
tion of the ne bis in idem principle to the CJEU for a prelim-
inary ruling.
In its ruling, the Court held that the “idem” con­di­tion is
fulfilled if­there is identity of the ma­te­rial facts. This must
be understood to mean a set of concrete cir­cum­stances
stemming from­­events which are, in essence, the same, in
that they in­volve the same perpetrator and are inextrica-
bly linked together in time and space. The Court then
went on to say that a lim­ita­tion of the fundamental right
to no double jeopardy may be justified if it is­based on law
and re­spects the essence of that right.118 Subject to the
principle of proportionality, lim­ita­tions may be made only
if they are nec­es­sary and gen­uinely meet ob­jec­tives of
gen­er­al interest recognised by the Union or the need to
protect the rights and freedoms of­­others.
As to whether a lim­ita­tion on the right to no double jeop-
ardy met ob­jec­tives of gen­er­al interest in this case, the
Court no­ted that the sectoral le­gis­la­tion and­rules on the
abuse of dominance pursue distinct legitimate ob­jec­tives
(liberalisation of markets versus undistorted competition)
and that­there­fore a Member State could legitimately pun-
ish infringements to both sets of­rules. How­ever, and this
is the significant­change, the Court ef­fec­tive­ly demoted
the “distinct legitimate ob­jec­tives” argument, making it
just one factor to be considered in the analysis of the pro-
portionality of the duplication of pro­ceed­ings and penal-
ties. The Court summarized it thus: “public au­thor­i­ties can
legitimately choose complementary legal responses to cer-
tain conduct that is harmful to society through different pro-
cedures forming a coherent whole so as to address different
aspects of the so­cial problem in­volved, pro­vided that the ac-
114 F. Rizzuto, ‘Bpost and Nordzucker AG: The End of Competition Law En­
force­ment Ex­cep­tionalism Concerning the Principle of Ne Bis In Idem’,
CoRe 2022, Vol. 2, 154-166.
115 CJEU 22 March 2022, C-117/20, bpost, ECLI:EU:C:2022:202.
116 CJEU 22 March 2022, C-151/20, ECLI:EU:C:2022:203.
117 The Nordzucker judg­ment concerns the parallel ap­pli­ca­tion of national
competition­rules and Article 101 TFEU by two different national compe-
tition au­thor­i­ties.
118 Article 52(1) of the Charter.
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cumulated legal responses do not repre­ sent an excessive
burden for the individual con­cerned”. The Court then left it
to the national court to assess whether in the case at hand
the duplication of penalties of a criminal nature could be
justified by the fact that the pro­ceed­ings initiated by the
BIPT and the BCA pursued complementary aims relating
to different aspects of the same un­law­ful conduct. It did,
how­ever, list the factors that the national court should
take into con­si­de­ra­tion in assessing whether the duplica-
tion of pro­ceed­ings and penalties were nec­es­sary, name­ly:
(i) whether­there are clear and precise­rules making it
pos­sible to predict which acts or omis­sions are liable to be
subject to such a duplication and also to predict that­there
will be co­or­di­na­tion be­tween the different au­thor­i­ties; (ii)
whether the two sets of pro­ceed­ings have been conducted
in a manner that is sufficiently coordinated and with­in a
proximate timeframe; and (iii) whether the second penal­
ty took into account any previous penalties, so that the
overall penalties im­posed corresponded to the serious-
ness of the of­fences committed.
The drafters of the DMA were like­ly encouraged by the
CJEU’s ruling in bpost, which seems to pave the way to a
parallel ap­pli­ca­tion of the DMA and competition law to
the same conduct by the same gate­kee­pers, as they in-
tended. How­ever, at the same time, the CJEU rightly em-
phasized that such duplication of pro­ceed­ings is subject to
a strict proportionality test.
9. Conclusions
As no­ted at the outset of this article, the DMA was born
out of a­sense that ex-post competition law en­force­ment
has been ineffective in reining in the power of “Big Tech”
companies, with in­ves­ti­ga­tions lasting too long, remedies
that are seen as “too little, too late”, and fines that are
merely a “cost of doing business” for the undertakings
con­cerned, with­out real dissuasive effect. The DMA marks
a radical departure from the tra­di­tion­al approach under
competition law, dispensing with re­quirements such as
market def­i­ni­tion, es­tab­lish­ing anticompetitive object or
effect on a case-by-case basis taking into account all the
cir­cum­stances, con­si­de­ra­tion of ef­fi­ciency de­fences, and
procedural guarantees. Instead, the DMA im­poses a lim­
ited set of de­tailed per se­rules on a lim­ited number of un-
dertakings that meet certain thresholds of criticality, sub-
stantiality and durability, and pro­vides for a centralized
en­force­ment of­these­rules by the Com­mis­sion. This new
re­gime is ex­pect­ed to allow for a more swift and efficient
regulatory in­ter­ven­tion to en­sure that digital markets re-
main “contestable” and “fair”.
With “contestability” and “fairness”, the DMA pursues ob­
jec­tives that are different from those pursued by competi-
tion law (i.e. the pro­tec­tion of undistorted competition),
but closely related to those ob­jec­tives. “Contestability” is
essentially about maintaining rivalry in digital markets,
The Digital Markets Act: The EU Takes On ‘Big Tech’
pre­venting powerful and es­tab­lished platforms from rais-
ing barriers to entry and expansion and, ultimately, pre­
venting those markets from “tipping”; “fairness” is essen-
tially about correcting imbalances in bargaining power
and in­for­ma­tion asymmetries be­tween business users and
the digital platforms they rely on to reach end users and,
ultimately, redistributing rents­along the val­ ue chain.
How­ever, in our view,­these ob­jec­tives do not seem speci-
fic­enough to allow for a proper proportionality assess-
ment of the obli­ga­tions im­posed on “gate­kee­pers”.
In its almost single-minded pursuit of effective and timely
regulatory in­ter­ven­tion, the DMA runs the risk of encourag-
ing overen­ force­
ment. The DMA follows a top-down ap-
proach with lim­ited space for dia­logue be­tween the Com­
mis­sion and gate­kee­pers on how the obli­ga­tions im­posed
on them are shaped. It­­leaves the Com­mis­sion tremendous
leeway both in the ap­pli­ca­tion of the gate­kee­per designa-
tion criteria and in the ap­pli­ca­tion of the gate­kee­per obli­ga­
tions. Gate­kee­pers will be des­ig­nated on the basis of crite-
ria that are more about “bigness” than about market power.
Rebuttal of the pre­sump­tion­based on the quantitative met-
rics seems a very tall order, espe­cially as qualitative argu-
ments and any ef­fi­ciency de­fence are ex­cluded. The DMA
im­poses “one-size-fits-all” obli­ga­tions on des­ig­nated gate­
kee­pers, with only lim­ited flexibility to “tailor” them to the
concrete market cir­cum­stances (for Article 6 and 7 obli­ga­
tions only), which­risks over-inclusiveness. At the same
time, the DMA completely dispenses with re­ quirements
that en­sure the proportionality of ex-post competition law
in­ter­ven­tion, such as market def­i­ni­tion, es­tab­lish­ing domi-
nance on a re­le­vant market, effects-based analysis, and al­
low­ance for objective jus­ti­fi­ca­tions and ef­fi­ciency de­fences.
Even the “regulatory dia­logue” for the specification of the
Article 6 and 7 obli­ga­tions under Article 8 seems to focus
more on effectiveness than on proportionality.
The DMA is characterized by a pro-in­ter­ven­tionist bias. This
be­comes particularly evident when comparing it to­other
examples of sector-specific ex-ante regulation, such as the­
European Electronic Com­mu­ni­ca­tions Code (EECC).119 Un-
der the EECC, the impo­si­tion of asymmetric ex-­ante obli­ga­
tions on pro­viders of electronic com­mu­ni­ca­tions networks
or ser­vi­ces re­quires a prior def­i­ni­tion of the re­le­vant mar-
ket and an assessment of dominance (or “significant mar-
ket power”) on that market. The “three criteria test” under
the EECC re­gime has more in common with the case-spe-
cific, fact-intensive approach under competition law than
with the much cruder “three criteria test” under the DMA,
which, more­over, re­verses the burden of proof.­Where the
market be­comes ef­fec­tive­ly competitive, the ex-ante obli­
ga­tions im­posed under the EECC have to be lifted. The ul-
timate objective of the regulatory framework for the elec-
119 P. Ibanez Colomo, ‘The Draft Digital Markets Act: A Legal and Institutional
Analysis’, Journal of­European Competition Law & Prac­tice, 2021, Vol. 12,
No. 7, 570-572.
418
Artikelen
tronic com­mu­ni­ca­tions sector is­there­fore to remove the
need for itself and to create the cir­cum­stances­where ex-
post competition law in­ter­ven­tion is sufficient to en­sure
consumer welfare. By contrast, the DMA is­based precisely
on the idea that “competition law is not­enough” be­cause
of certain intrinsic characteristics of digital markets.
In order to enhance regulatory predictability, the DMA im­
poses an exhaustive list of de­tailed obli­ga­tions on des­ig­
nated gate­kee­pers. Most of­these obli­ga­tions are­based on
past or ongoing competition law cases. The obli­ga­tions are­
there­fore backward-looking. More­over, obli­ga­tions in­
spired by cases in specific markets involving specific un-
dertakings and ser­ vi­
ces, are applied horizontally to all
gate­kee­pers and often also extended to­other markets and
ser­vi­ces, with­out regard for the specific cir­cum­stances.­
While the DMA contains in-built mech­a­nisms to specify
and update obli­ga­tions, it is ques­tionable whether­these
will pro­vide sufficient flexibility.
All of this raises the ques­tion whether, after years of frus-
tration with the case-specific, fact-intensive approach un-
der competition law, the pendulum has not swung too far
the­other way, with a risk of over-in­ter­ven­tion.
The DMA invokes as its legal basis Article 114 TFEU, which
empowers the EU to approximate national­rules and pre­
vent regulatory fragmentation with­in the internal market.
Ques­tions have been­raised about the suitability of this le-
gal basis, as the DMA does not really address the examples
of legal fragmentation mentioned in the Impact Assess-
ment. Is the DMA gen­uinely designed to pre­vent regulato-
ry fragmentation or is it rather a case of EU com­pe­tence
creep? In the latter case, the DMA is ex­posed to legal chal­
lenges.
In order to en­sure an efficient and uniform ap­pli­ca­tion of
the gate­kee­per obli­ga­tions, the drafters of the DMA have
opted for a highly centralized system of en­ force­
ment,
with the Com­mis­sion as the sole enforcer of the gate­kee­p­
er obli­ga­tions. The role of national au­thor­i­ties is lim­ited:
they can open in­ves­ti­ga­tions into non-com­pli­ance, but
only the Com­ mis­sion can take de­ ci­
sions. How­ ever, the
DMA does not preclude the ap­pli­ca­tion of EU and national
competition laws or­other specific national­rules on uni-
lateral conduct by gate­kee­pers. This may be an issue, as
the DMA does not expressly regulate si­tu­a­tions of double,
triple or quadruple jeopardy as the result of the cumula-
tive ap­pli­ca­tion of different sets of­rules to the same facts.
The effective en­force­ment of the gate­kee­per obli­ga­tions
will also depend on whether the Com­mis­sion will be giv-
en sufficient re­sour­
ces. If the Com­ mis­sion is overbur-
dened, this may unleash centrifugal­forces: national au­
thor­i­ties may open their own in­ves­ti­ga­tions,­ while
competitors and users may turn to national courts to seek
injunctive relief against al­leged gate­kee­per non-com­pli­
Afl. 6 - december 2022 Com­pu­ter­recht 2022/219
Artikelen The Digital Markets Act: The EU Takes On ‘Big Tech’

ance. In competition law, this type of en­force­ment has

gen­er­al­ly played only a lim­ited role and the emphasis has
been more on follow-on dam­ages ac­tions fol­low­ing a find-
ing of infringement by a competition authority. This is no
surprise, as national courts are not equipped to carry out
the extensive fact-finding and sophisticated economic
analysis that competition law in­ves­ti­ga­tions often entail.
By contrast, the de­tailed per se obli­ga­tions laid down in
the DMA seem to lend themselves much better to pri­vate
en­force­ ment through cease-and-desist ac­ tions and the
like (even in the ab­sence of an infringement de­ci­sion by
the Com­mis­sion). Such national en­force­ment ac­tions
could lead to fragmentation, al­though the possibility to in­
volve the Com­mis­sion in national procedures as an amicus
curiae and the possibility to refer ques­tions to the CJEU for
a preliminary ruling somewhat mitigates this risk.

Ove­rall, we expect that the DMA will have a “displace-

ment effect” on competition law en­force­ment in the digi-
tal sector, be­cause it is simply easier, and­there­fore more
appealing, to en­force­ment au­thor­i­ties to apply de­tailed,
bright-line­rules with­out having to carry out a fact-inten-
sive, case-by-case analysis and with­out having to consider
specific market cir­cum­stances, objective jus­ti­fi­ca­tions or
ef­fi­ciency de­fences. Whether that is on balance a good
thing, remains to be seen.

Afl. 6 - december 2022

Com­pu­ter­recht 2022/219419