SECTOR-SPECIFIC EX ANTE REGULATION IN

DIGITAL MARKETS – A COMPLEMENT OR

SUBSTITUTE TO ANTITRUST ENFORCEMENT?

Daniel Pettersson

1. INTRODUCTION

The emergence of digital marketplaces has given rise to lots of new opportunities for inter-
action. Digital technology has shaped new markets and has led to an array of new possibili-
ties for existing industries. Nonetheless, there is no doubt that digitalization has also made
the global economy face major challenges. In recent years, a large number of expert re-
ports have been published, highlighting the competition issues that prevail on digital mar-
ketplaces. 1 Many reports have found that the transnational companies behind digital plat-
forms use the market characteristics that differentiate digital markets, such as network ef-
fects and large economies of scale and scope, to their own advantage, This has led to a
strong opinion that the antitrust framework, as it currently stands, is not sufficient to ad-
dress the challenges that come with a digital economy. The framework has been argued to
be based on an ancient theory of assessment of market power and a methodology that is
not adapted for a digital economy. Over the past three years, the support for complemen-
tary digital regulation has accelerated and several initiatives within the European Union
("EU") are currently under negotiation.2
One example of EU legislation that was finalized in spring 2022 and published in
the Official Journal of European Union on October 12th is the Digital Markets Act3 ("DMA").
This regulation obliges large providers of certain platform services, “gatekeepers”, to com-
ply with 22 dos and don’ts. The regulation aims to to encourage contestability and fairness
in digital markets. 4 It was finalized by the French presidency of the European Council on

 Associate at Advokatfirman Per Karlsson & Co and LLM candidate at Université Paris I – Panthéon Sorbonne.
This paper is an English version of the original paper published in “Europarättslig tidskrift” (vol. 4, 2022).
1 For a comprehensive compilation of expert reports on digital economy and its impact on competition see

Lancieri, Filippo and Sakowski, Patricia Competition in Digital Markets: A Review of Expert Reports, 2021, availa-
ble via: https://papers.ssrn.com/sun3/papers.cfm?abstract_id=3681322
2 See e.g. Regulation of the European Parliament and of the Council on a single market for digital services (Digi-

tal Services Act) and amending Directive 2000/31/EC); COM/2020/825 final and proposals for a regulation of
the European Parliament and of the Council on harmonized rules for fair access to and use of data (Data act);
COM(2022) 68.
3 The article is based on the final DMA-version published in the Official Journal of European Union on October

12th , available via: https://eur-lex.europa.eu/legal-con-

tent/EN/TXT/PDF/?uri=OJ:L:2022:265:FULL&from=EN
4 See article 1.1 of the DMA.

Electronic copy available at: https://ssrn.com/abstract=4222013

24 March 2022 and was adopted under Article 114 of the Treaty on the Functioning of the
European Union ("TFEU") in order to promote the internal market. 5 Legislative initiatives
for the digital economy, such as the DMA, has been on the EU-agenda for several years.6
In light of the ongoing investigations and decisions issued by the European Commission
(“Commission") the need for sector-specific regulation in digital markets can be ques-
tioned. Against Google there have been three Commission decisions since 2017. All of these
decisions have been appealed, two of which are pending before the General Court and one
judgment is before the European Court of Justice (“ECJ”). In addition, two Commission in-
vestigations are underway against Google's advertising intermediation services, one of
which was launched as late as in March 2022.
As a result of the demonstrated possibilities of antitrust to address competition issues
related to digitalization, one might ask what it is that DMA actually intends to comple-
ment? A driving force behind the adoption of the DMA has been identified in the recitals as
the protracted and inefficient antitrust enforcement in the digital economy. 7 The definition
of relevant market in the digital economy has proved to be a challenging task. The idea be-
hind DMA is that with the help of this regulation, certain behaviors can be banned per se.
Thus, no case-by-case assessment is required. The legislator has noted the overlap with the
possibilities to address the competition concerns in digital markets with the competition
law framework. However, the recitals behind the regulation substantiate the need for regu-
lation by the fact that DMA is intended to protect a legal interest other than competition
law, irrespective of whether the behavior of the gatekeeper is harmful under antitrust. 8
The fact that DMA carries a different legal interest is, however, debatable. The objectives of
the regulation, contestability9and fairness10, are central concepts within antitrust method-
ology. Fairness constitutes its own basis for abuse under Article 102(a) TFEU. High entry
barriers, which counteract the contestability of digital markets sought by DMA, have been
taken into account on several occasions as a factor in establishing a dominant position un-
der Article 102 TFEU.
The article will be disposed of as follows. The first section intends to present the legisla-
tive nature of the DMA. Next, the article digs deeper into how DMA interacts with antitrust.
This section will primarily focus on the overlap between DMA obligations and antitrust in-
vestigations and decisions under Article 101 and 102 TFEU. Following this, the article anal-
yses whether DMA reflects the relationship between sector-specific regulations and anti-
trust that has historically been sought in the EU. Finally, the article analyses and compares
a regulatory respectively antitrust approach to digital markets and what the DMA will
mean for the future of antitrust in digital markets.

5 Council of the European Union, press release of 25 March 2022, Digital Markets Act: Council and European
Parliament reach agreement, available via: https://www.consilium.europa.eu/sv/press/press-re-
leases/2022/03/25/council-and-european-parliament-reach-agreement-on-the-digital-markets-act/.
6 Commission press release of 20 February 2020, Shaping Europe's digital economy, available via: Shaping Eu-

rope's digital future | European Commission (europa.eu).

7 Recital 5.
8 Recital 10.
9 Recital 32 defines contestability as the ability for undertakings to overcome entry barriers and other struc-

tural competition issues on digital markets (economies of scale and scope, network effects and benefits from
data).
10 Recital 33 defines unfairness as imbalances between business users and gatekeepers caused by a gatekeeper

engaging in certain behaviour.

Electronic copy available at: https://ssrn.com/abstract=4222013

 2. DMA - AN “ANTITRUST” STATUTE?

DMA can be described as a comprehensive regulation that aims to address competition

problems that arise in a selection of digital markets, a sector-specific regulation. The regu-
lation is aimed at large tech companies, so-called gatekeepers, that meet special thresholds
on turnover and user numbers. Sector-specific regulations have historically been used in
the EU as a complementary tool to the generally applicable competition law framework
(articles 101 and 102 FEUF). Sector-specific regulations have, historically, proven success-
ful as they have proven to be able to address market failures that the competition law
framework has difficulty in addressing. Characteristic of these is that they intervene before
a market failure from has been found (ex-ante). This differs from competition law, which
only come into effect once a market failure has been established (ex-post). An example of
sector-specific regulation in the EU is the telecom regulation11, which was created with the
aim of facilitating roaming and number portability and reducing interconnection charges
within the EU's telecommunications networks. Despite the benefits that may come with
sector-specific regulation, there is always a risk that a more extensive market intervention
may result in overregulation. For example, the Commission has developed well-known cri-
teria which stipulate that ex ante regulation should only be considered where competition
law cannot sufficiently remedy the competition issues of a particular market. Thus, anti-
trust has, within the EU, developed as the preferred first option for market intervention
and only when market failures cannot be addressed by this framework, a complementary
regulation can be considered.12
DMA differentiates from other sector-specific regulations. It spans over a wide variety of
markets. This makes DMA similar to antitrust in some sense: it provides the opportunity
for market intervention in a wide matter, as long as it concerns a core-platform service.
Another aspect that makes the DMA closely linked to antitrust is that the regulation itself
allows ex post enforcement. Through article 18 of the regulation, the Commission can use
market investigations to impose remedies if Gatekeepers to not comply with the ex ante
rules as first expected. There is also an opportunity for the Commission to add new does
and dont’s to the regulation. Even within the Commission it seems to have been quite diffi-
cult to differentiate the DMA from antitrust. It is now clear that the DMA task force will act
under the antitrust department in DG COMP (COMP.C.6.001). The task force was, however,
originally a part of the policy department (COMP.A.1.001). Although many of the conduct
prohibited by the DMA is a codification of ongoing competition law investigations and deci-
sions taken, the ability for a gatekeeper to invoke efficiency defense, as under the antitrust
framework, does not existent.13 This has been a factor that has led to criticism of the regu-
lation. In cases where markets are dynamic and subject to constant change, it can be ar-
gued that, in the long term, it would be useful to give full ruling to competition law, as this
tool has the ability to adapt to the specific situation at hand. On the other hand, regulation

11 Directive EU 2018/1972 of the European Parliament and of the Council of 11 December 2018 establishing
the European Electronic Communications Code (recast), L 321/36.
12 Commission Recommendation (EU) 2020/2245 of 18 December 2020 on relevant product and service mar-

kets in the field of electronic communications susceptible for ex ante regulation under Directive (EU)
2018/1972 of the European Parliament and of the Council establishing the European Electronic Communica-
tions Code, point 17, C/2020/8750.
13 Although a gatekeeper cannot invoke effiency defence under the DMA safeguards seem to exist to some ex-

tent. Recital 27 indicates that a proportionality test might occur in situations where the rationale for an ex-ante
rule can be questioned:” To ensure proportionality, the Commission should moreover apply from that subset of
obligations only those that are necessary and proportionate to achieve the objectives of this Regulation and should
regularly review whether such obligations should be maintained, suppressed or adapted”.

Electronic copy available at: https://ssrn.com/abstract=4222013

in this area can be beneficial in that it creates stability in the application of the law and is
resource-efficient. Finding a balance between sector-specific regulation and competition
law, as tools for market intervention, is a complex task for the legislator, as illustrated not
least in relation to DMA.

3. THE RELATIONSHIP BETWEEN DMA AND ARTICLES 101 & 102 FEUF
The recitals of the DMA stresses that the two overarching objectives of the legislation, to
create fair and contestable digital markets, are objectives intended to complement the
competition law framework. In this way, the obligations imposed by DMAs on platforms,
apply regardless of whether they distort competition or not. The rules are therefore not in-
tended to affect the interpretation of Articles 101 and 102 FEUF. However, the fact that the
regulation creates an overlap has been brought to the attention of the legislator. Recital
five states that, although Articles 101 and 102 FEUF may target certain gatekeeper behav-
ior, it is limited to cases where dominant positions or certain anticompetitive behavior can
be demonstrated. 14 The main objective therefore appears to be a way of streamlining cases
in the digital economy, by making enforcement more time-efficient compared to antitrust.
DMA functions as a “super competition tool” in digital markets as it eliminates the need for
the enforcer (the Commission) to apply a traditional antitrust methodology which includes
the definition of relevant market as well as verifying a dominant position and market
abuse. The dividing line between the legal interests that DMA intends to protect compared
to what competition law protects are not clear. 15 This is illustrated not least by the fact
that 15 of the total 22 ex ante obligations and duties under Articles 5 and 6 are directly in-
spired by decisions and ongoing investigations by the Commission. To illustrate the great
similarities that exist between these two frameworks, the following sections includes a
comparative analysis between obligations under DMA and decisions and investigations un-
der antitrust enforcement.

3.1 ARTICLE 5 AND CORRESPONDING ANTITRUST

Article 5(2) provides that a gatekeeper shall refrain from combining personal data on the
gatekeeper's other platform services. The Commission has examined an issue that can be
linked to some extent to this obligation. In 2017 the Commission concluded that Facebook
misled the Commission during a merger control procedure, by matching users' data with
Whatsapp users.16 It has, on several occasions, been highlighted that Article 5(2) is mainly
inspired by the decision of the German Competition Authority, Bundeskartellamt
("BKartA"), against Facebook. In this decision a combination of personal data processing

14 See recital 10.

15 For similar perceptions that DMA is inspired by objectives under competition law see Colangelo Giuseppe
The DMA and Antitrust: A Liaison Dangereuse, article on Truth on the Market, 2021, available via:
https://truthonthemarket.com/2022/03/23/the-dma-and-antitrust-a-liaison-dangereuse/, Komninos, As-
simakis, The DMA Proposal and the Court of Justice: All Eyes on Luembourg, blog posts at Competition Law Blog,
2022, available via: http://competitionlawblog.kluwercompetitionlaw.com/2021/05/03/the-dma-proposal-
and-the-court-of-justice-all-eyes-on-luxembourg/ and Katsifi's, Dimitors, Ne bis in idem and the DMA: the CJEU's
judgments into bpost duck Nordzucker - Part II, blog post on The Stage Law Blog, 2022, available via:
https://theplatformlaw.blog/2022/03/29/ne-bis-in-idem-and-the-dma-the-cjeus-judgments-in-bpost-and-
nordzucker-part-ii/.
16 Commission press release of 18 May 2017, Commission fines Facebook €110 million for providing misleading

information About WhatsApp takeover, available via https://ec.europa.eu/commission/presscorner/de-

tail/en/IP_17_1369. For a deeper analysis of the decision see Karlsson, Per, Svensk kontroll av företagsförvärv,
Nordstedts Juridik, Stockholm, 2018, p. 32.

Electronic copy available at: https://ssrn.com/abstract=4222013

was considered to constitute an abuse of a dominant position under German national com-
petition law.17
Another obligation in Article 5 that is inspired by competition law objectives is 5.3. Arti-
cle 5(3) provides that a platform must enable a business user to offer end-users similar
services, offered at prices or conditions different from the gatekeeper's own. This is very
much an obligation inspired by the Amazon E-books18 case, where the use of so-called par-
ity clauses was banned on the grounds that it harms innovative business models, lowers
quality and raises prices for end-users.
Article 5(4) and (5) provide that a business user shall be allowed to market itself to end-
users and to contract with them, without having to do so via any of the gatekeeper's core
platform services. This reflects the problem identified by the Commission in the Google Ad-
sense19 decision. This decision rejected clauses allowing a business user to market himself
only by using the intermediary services of the gatekeeper. This problem is also highlighted
in the Apple app store practices investigations, where the gatekeeper used clauses that
meant that business users were not allowed to inform about cheaper alternatives (so-
called steering clauses).20
Article 5(7) prohibits the use of the gatekeeper's identification service by publishers of
advertising space. This is most likely inspired by the Google AdTech21 investigation, in
which the Commission partially initiated an investigation against Google on the grounds of
the requirement to use Google's publishing services in order to buy advertising space on
Youtube.
Article 5(8) means that a gatekeeper may not make the right to a central platform ser-
vice conditional upon an end-user or business user having to subscribe or register to other
central platform services. What this ban means in practice is illustrated in the previously
presented Google-Android22 decision, in which the packaging of the Play Store, Google
Search and Google Chrome in smart phones with the Android operating system was con-
sidered to constitute an abuse of a dominant position. Article 5(8) can thus be said to be a
prohibition on tying and bundling. The Facebook-Marketplace23 investigation can also be
linked to Article 5(8) because the investigation included that Facebook made access to a
classified ads intermediation service (Facebook Marketplace) conditional on the user being
a general user of Facebook as a social network.

17 Bundeskartellamt Decision of 6 February 2019, Facebook., available in English via:

https://www.bundeskartellamt.de/ShreDocs/Entscheidung/EN/Entscheidungen/Mibraucsaufsicht/2019/B6-
22-16.pdf?__blob=publicationFile&v=5. For similar connections between article 5(2) och Bundeskartellamts deci-
sion see Akman Regulating Competition in DiGital Stage Markets: A Critical Assessment of the Framework and
Approach of the EU Digital Markets Act, 2021, (2022) 47 European Law Review 85, available via: https://pa-
pers.ssrn.com/sun3/papers.cfm?abstract_id=3978625 and Caffarra, Cristina & Scott Morton Fiona, The European
Commission Digital Markets Act:A translation, article on VoxEU, 2021, available via: https://voxeu.org/article/eu-
ropean-commission-digital-markets-act-translation.
18 Commission Decision of 4 May 2017 (AT 40153- E-book MFNs duck related matters (Amazon e-Books).
19 Commission Decision of 20 March 2019 (AT.40411 – Google Adsense).
20 Commission press release of on the 30th April 2021, Commission opens investigation into possible anticompet-

itive conduct by Facebook (AT.40437 – App store practises (music streaming), available via: https://ec.eu-
ropa.eu/commission/presscorner/detail/en/ip_21_2061. A parallel Commission inquiry, presented in the
same press release, applies to the terms of app-store in relation to Apple's audiobook and e-book services
(Ate.40652 (Apple – App Store Practices (e-Books/Audiobooks))
21 Commission press release of on the 22nd June 2021, Commission opens investigation into possible anticompet-

itive conduct by Google in the online advertising technology sector (AT.40670 Google - Adtech and Data-related
practices), available through: https://ec.europa.eu/commission/presscorner/detail/one/ip_21_3143
22 Commission Decision of 18 July 2018 (AT.40099 – Google Android).
23 Commission press release of on 4 June 2021, Commission opens investigation into possible anticompetitive

conduct by Facebook (AT.40684 - Facebook delivery), available via: https://ec.europa.eu/commis-

sion/presscorner/detail/one/ip_21_2848

Electronic copy available at: https://ssrn.com/abstract=4222013

 Article 5(9) and (10) require gatekeepers to provide, upon request, prices and remuner-
ation to advertisers and publishers, both in relation to the publication of an individual ad-
vertisement and for one of the advertising services provided by the gatekeeper. This provi-
sion, too, can be said to be inspired to some extent by the Google Adtech investigation, in
which the Commission is investigating the potentially anti-competitive effect of not giving
advertisers and publishers access to data available to Google's own advertising intermedi-
ation services.

3.2. ARTICLE 6 AND CORRESPONDING ANTITRUST

Article 6(1) prohibits a gatekeeper from using data generated by business users, in cases
where the gatekeeper competes downstream. This provision thus regulates situations
where the gatekeeper is vertically integrated and competes with the same services as busi-
ness users on the platform. The provision is very similar to what motivated the Commis-
sion's investigations in Amazon Marketplace and Facebook Marketplace, where gatekeeper
companies allegedly used business users' data in a way that gives them a competitive ad-
vantage.
The obligation in Article 6(3) provides that end-users must have the possibility to unin-
stall software applications, as long as they are not necessary for the operation of the oper-
ating system or device. This is, similarly to Article 5(8), linked to the reasoning given by
the Commission in the Google Android decision, where the packaging of applications was
considered to constitute tying.
According to Article 6(4), a gatekeeper must enable end-users to access applications
from business users by means other than simply through the gatekeeper's own platform
service. This is likely inspired by the Apple App store investigations by the Commission,
where problems linked to the closed nature of the ecosystem form the basis of the investi-
gations.
Article 6(5) expressly prohibits self-preferencing of the gatekeeper's own comparison
services or other types of ranking systems. This article thus constitutes a general prohibi-
tion of conduct which both the Commission and the General Court found to be anticompeti-
tive in the Google Shopping case. The Amazon Buy-Box24 investigation also raised the issue
of favouring a specific business user, where the question of whether some business users
have a greater chance than others of ending up in the Buy-box should be examined.
Article 6(7) requires gatekeepers, inter alia, to allow business users to offer so-called
ancillary services in relation to end-users. This is a prime example of the behavior prob-
lematized by the Commission in the Apple – Mobile payments investigation25, where NFC
technology, which is a support service in relation to payment services, could only be ob-
tained with Apple's payment service. Article 6(8) provides for the right to access gate-
keeper performance measurement tools and Article 6(9) requires gatekeepers to provide,
upon request, data generated by the activities of an end-user or business user. Both of
these provisions can be linked to what motivated the previously presented Amazon-Mar-
ketplace investigation.

24 Commission press release of the 10th November 2020, Commission opens investigation into possible anti-com-
petitive conduct of Amazon (AT.40462 - Amazon Marketplace), available via: https://ec.europa.eu/commis-
sion/presscorner/detail/one/IP_19_4291
25 Commission press release of the 16th June 2020, Commission sends Statement of Objections to Apple over

practices regarding Apple Pay (AT.40452 (Apple - Mobile payments), available via: https://ec.europa.eu/com-
mission/presscorner/detail/one/ip_20_1075

Electronic copy available at: https://ssrn.com/abstract=4222013

 4. THE INTERACTION BETWEEN SECTOR-SPECIFIC REGULATION AND ANTITRUST –
A "EUROPEAN MODEL"

How sector-specific regulations and antitrust, as different tools for market intervention,
are intended to relate to each other is a complex issue that has been the subject of discus-
sion in jurisdictions globally. As illustrated earlier in this paper, DMA is an example of a
sector-specific regulation with objectives which can be identified in antitrust methodology
to a large extent. Historically, however, EU policy makers have not chosen not to look at
these instruments as substitutes, contrast to the US. In the EU these are seen as two com-
plementary instruments. Regulation and antitrust constitute market intervention of vary-
ing degrees. 26 Antitrust is seen as a more lenient state intervention that protects the com-
petitiveness of markets by monitoring markets and imposing bans in order to repair mar-
ket failures. This tool is seen as a general and less intrusive form of market intervention.
Only in cases where antitrust is not considered sufficient to address a particular market
failure a State might consider the need for more far-reaching intervention by using more
prescriptive regulation. 27 This approach has also been confirmed in Commission guide-
lines. The guidelines consist of three well-known cumulative criteria for ex ante regulation
in telecoms markets, the third of which can be said to reflect the European relationship be-
tween sector-specific regulation and antitrust. 28 This criterion implies that ex ante regula-
tion in telecoms markets should only be considered where competition law cannot suffi-
ciently remedy the shortcomings of a particular market. Whether these criteria are really
appropriate to use in relation to digital markets has been debated. Although the criteria
originate in the telecom sector, there are some indications in the guidelines that the Com-
mission did not intend that these criteria should be merely helpful in assessing the need
for regulation in this particular sector.29
One consequence of this approach is that the scope of antitrust is often difficult to de-
termine, since it is a question of the degree of State intervention that is required in the spe-
cific case. A practical example that illustrates the interaction that has historically been
sought between regulation and competition law in the EU is telecom regulation. In order
for an actor to be covered by the regulations, a so-called SMP test (Significant Market
Power) is used, which in practice is an image of a competition law dominance test. 30 Unlike
Article 102 TFEU, which also has to establish an abuse, telecoms operators are subject to

26 For a comprehensive description of different legal systems' views on the relationship between sector-spe-
cific regulations and competition law, see Streel, Alexandre, On the Edge of antitrust: the relationship between
Competition law and Sector Regulation into European Electronic Communications, Florence, European Univer-
sity Institute, 2006, p. 278.
27 Niamh, Dunne, Competition Law and Economic Regulation: Making and Managing Markets, Cambridge Univesity

Press, Cambridge, 2015, p. 57.

28 Commission Recommendation (EU) 2020/2245 of 18 December 2020 on relevant product and service mar-

kets in the field of electronic communications eligible for ex ante regulation under Directive (EU) 2018/1972 of
the European Parliament and of the Council establishing the European Electronic Communications Code, point
17, C/2020/8750.
29 See recital 22 of Commission Recommendation (EU) 2020/2245 of 18 December 2020 on relevant product

and service markets in the field of electronic communications eligible for ex ante regulation under Directive
(EU) 2018/1972 of the European Parliament and of the Council establishing the European Electronic Commu-
nications Code. Recital 22 shows that national regulatory authorities 'should also analyse markets not covered
by this Recommendation but regulated within their jurisdiction on the basis of previous market analyses, or other
markets, if they have sufficient reason to consider that the three criteria are met". For a similar reasoning that the
guidelines are not intended to be limited to telecoms markets see Ibanez Colomo Pablo The Draft Digital Mar-
kets Act: A Legal and Institutional Analysis, 2021, Journal of European Competition Law & Practice Vol 12, No.7,
p. 570, available at: https://papers.ssrn.com/sun3/papers.cfm?abstract_id=3790276
30 Recital 161 of Directive (EU) 2018/1972 of the European Parliament and of the Council of 11 December

2018 establishing the European Electronic Communications Code clarifies that the SMP test is a copy of the
dominance test under article 102 TFEU.

Electronic copy available at: https://ssrn.com/abstract=4222013

certain obligations, solely by complying with the SMP test. The regulation may thus be seen
as a more far-reaching intervention compared to competition law. Only the first step in the
assessment of an article 102 FEUF infringement needs to be found in order to impose cer-
tain obligations on undertakings under the telecom regime. DMA; on the other hand, is not
built upon market shares. The scope of the DMA is subject to predetermined thresholds
under article 3.31

5. IS THERE A NEED FOR SECTOR-SPECIFIC REGULATION IN DIGITAL MARKETS?

In light of the role that sector-specific regulations have been given in the EU, one might ask
whether there are other ways to manage and expand the possibility of market intervention
in digital markets through solely antitrust. In the academic debate, there has been written
about whether is possible to reorient competition law to make the framework more effec-
tive in digital markets. One way presented to adapt competition law to a digital economy is
to expand the competition authorities' toolbox to intervene ex ante, solely under antitrust
rules and not through “complementary” regulation. Before the DMA was adopted this alter-
native was also discussed within EU. One of the impact assessments from summer
2020,“New competition tool”32, proposed a market research tool within the framework of
the competition law framework, and not as part of a sector-specific regulation in this area.
The basis for such a tool would be article 103 TFEU, a provision providing support for issu-
ing supplementary provisions to the traditional competition law framework, i.e., articles
101 and 102 TFEU.33
There are a number of examples of countries that are the process of adapting their
national competition law, to the challenges that comes with digital competition issues.
These initiatives have likely been the inspiration for the Commission's impact assessment
of the “New-competition Tool” impact assessment. For example, Italy and Greece presented
proposals for new competition tools in 2021. One example a tool that has already entered
into force is Section 19a of the Gesetz gegen Wettbewerbsbeschränkungen ("GWB").34 This
tool forms part of the competition law framework following a reform of the German Na-
tional Competition Law in 2021. 35 England's Competition Market Authority ("CMA") and
Iceland's Competition Authority also have such tools. What these have in common is that
they are part of the competition law framework and not, like the market research tool in

31 Article 3 states minimum requirements for turnover and number of users. The that the platform having a
firm and lasting position in its activities is also important for the Gatekeeper-designition. Article 15 of the Act
provides the possibility for the Commission to issue market research to examine whether a platform should be
considered a gatekeeper.
32 The Commission's impact assessment of 2 June 2020, New Competition Tool, Ares (2020)2877634), available

via: https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=PI_COM%3AAres(2020)2877634.
33 An example of EU legislation adopted under Article 103 is Council Regulation (EC) No 139/2004 of 20 Janu-

ary 2004 on the control of concentrations between undertakings (“EC Merger Regulation”). This regulation
arose to prevent the strengthening or creation of a dominant position under article 102.
34 Bundeskartellamt press release of on the 19th January 2021, Amendment of the German Act against Re-

straints of Competition. For one English version of GWB see Act against Restraints of Competition in the version
published on 26 June 2013 (Bundesgesetzblatt (Federal Law Gazette) In, 2013, p. 1750,
3245), as last amended by Article 4 of the Act of 9 July 2021 (Federal Law Gazette I, p. 2506) available
via: https://www.gesetze-im-internet.de/englisch_gwb/englisch_gwb.html.
35 Bundeskartellamt press release of on the 19th January 2021, Amendment of the German Act against Re-

straints of Competition. For one English version of GWB see Act against Restraints of Competition in the version
published on 26 June 2013 (Bundesgesetzblatt (Federal Law Gazette) In, 2013, p. 1750,
3245), as last amended by Article 4 of the Act of 9 July 2021 (Federal Law Gazette I, p. 2506) available
via: https://www.gesetze-im-internet.de/englisch_gwb/englisch_gwb.html.

Electronic copy available at: https://ssrn.com/abstract=4222013

DMA, a tool used in the context of a sector-specific regulation. 36 Germany's competition au-
thority, the Bundeskartellamt ("BKartA"), has opened up several investigations against
large tech companies such as Facebook, Amazon, Google (2) and Apple since the new tool
in Section 19 a GWB came into force in 2021. Section 19 a GWB consists of two stages.
First, an operator must have a significant impact on competition in relevant markets. In the
legal text, this has been provided with examples and can be, for example, a situation when
an actor has financial strength or access to other resources (1) (p. 2), is vertically inte-
grated (1) (p. 3) or has access to commercially important data (1) (p. 4). Where a signifi-
cant impact on competition can be identified, the possibility is provided to prohibit certain
types of behaviour exemplified in (2), such as self-preferencing (p. 1) or leveraging (p. 3).
However, a major difference from DMA is that the rule is also provided with a general ex-
ception when there are objectively acceptable reasons for the action, such as efficiency de-
fense arguments. In January 2022, BKartA concluded that Google is covered by the rule
and therefore had injunctions directed against it after BkartA opened an investigation in
June 2021. On May 4, 2022, BkartA also issued a press release stating that Facebook is cov-
ered by section 19 a and therefore had injunctions directed against it. Thus, there is sup-
port that its types of tools may become successful models for addressing digital competi-
tion problems more expeditiously than current competition law.
The CMA has for some time had a market research tool that is also reminiscent of
the European Commission's original initiative. This tool allows the competition authority
to examine whether a market has such structural elements that have a significant adverse
effect on competition. If such a market structure can be established, the CMA is given the
possibility to direct injunctions against undertakings operating in the market in question.37
Support for a new competition tool at EU level has also received some support
from the Swedish side. In a consultation opinion from the Swedish Competition Authority
on the Commission's proposal for a new competition tool from 2020, it was mentioned that
such a tool would be good, as, in contrast to sector-specific regulation, it would have the
primary motive to remedy market failures and promote well-functioning markets. In its
consultation opinion, the Swedish Competition Authority also argued that such a tool could
be a faster way to address structural competition problems compared to sector-specific
regulation.38

6. A SHIFT FROM ANTITRUST TO REGULATION?

Despite the criticism levelled at the regulation the Parliament voted through the DMA in
the spring of 2022 and the Commission will, for the first time ever, act as a regulatory au-
thority. An interesting question arises as a result of this is how the supervision of competi-
tion law, both at EU and national level, is supposed to interact with DMA when the regula-
tion becomes a legally binding instrument. Since the DMA is subject to a long period of im-
plementation, antitrust will be the leading regulatory framework for the Commission to
ensure fairness and contestability on digital markets for some time to come.39

36 Whish, Richard & Bailey, David, Competition law, Tenth Edition, Oxford University Press, Oxford, 2021, p.
1055.
37 See Section Enterprise 134(4) Act 2002, available via: https://www.legislation.gov.uk/ukpga/2002/40/sec-

tion/134#commentary-key-a30d4e595d082584636ad6c1b9a35e99.
38 KKV's Opinion of 4 September 2020, Comments on the European Commission's impact assessment on a new

competition tool, Dnr 479/2020, p. 11, available in Swedish via: https://www.konkurrensverket.se/conten-

tassets/d231d4904fcd4a708fc4d55480fed1a0/20-0479-yttrande-eu-kommissionen.pdf
39 The gatekeepers are expected to have to oblige by the ex ante rules in March 2024. After a 6-month period

from enter into force till the rules start to apply, gatekeepers have a 2 month period to designate themselves
and after this an additional 6 month period to adapt to the obligations.

Electronic copy available at: https://ssrn.com/abstract=4222013

Investigations, such as Google Meta, Amazon Marketplace and Amazon Buy-box, are likely to
be decided. It will be very interesting to see the development of competition law during
this period of time before the obligations of the DMA become legally binding. The Commis-
sion will henceforth be in a transition period from competition law to a regulatory proce-
dure. What significance this might have for antitrust is unclear. According to Article 1(6) of
the Regulation, it is clear that the application of articles 101 and 102 FEUF shall not be af-
fected by DMA. Whether this will really be the case is questionable. Applying competition
law in a way that deviates from DMA, e.g., by allowing a blacklisted platform behavior not
to be considered an abuse of a dominant position, or determining behavior as abuse with-
out being impermissible under DMA, creates the risk of inconsistent and lack of legal cer-
tainty. 40 Gatekeepers are faced with two frameworks here. They must relate both to rules
that are part of a regulatory procedure, but also to the competition law practices that the
Commission chooses to develop in digital markets under Articles 101 and 102 TFEU. What
seems most likely is that, the Commission will apply competition law in a way that is as
consistent as possible with the DMA. This scenario was reflected in the Apple-Mobile Pay-
ments investigation, where the Commission concluded in a statement of 2 May 2022 that
the refusal to provide access to NFC technology to competing payment services is likely to
constitute an abuse of a dominant position. This conclusion was fully in line with the prohi-
bition to prevent competing business users from accessing ancillary services in Article 6(7)
of the DMA.41

7. THE FUTURE FOR ANTITRUST ENFORCEMENT IN DIGITAL MARKETS

In the light of the overlap between the two frameworks, one might ask whether the Com-
mission can apply both DMA and articles 101 and 102 FEUF to investigate same gate-
keeper behavior, without running the risk of breaching the general prohibition of double
jeopardy (ne bis in idem)? Previous case law of ECJ has made it clear that a regulatory pro-
cedure does not automatically preclude a parallel investigation under antitrust.42 However,
in the bpost ruling, a ruling that came during the negotiations of the DMA, the ECJ clarified
what criteria should determine whether a found violation of a sector-specific regulation
precludes a future competition law process. According to the ECJ, there is no impediment
to investigate compliance under both competition law and regulation in parallel, provided
that the following four requirements are met:
i) The rules are clear and precise, i.e., it is easy to predict which acts or omissions
may give rise to infringements under both sector-specific regulation and competi-
tion law.
ii) There is a coordinated plan between competent authorities.
iii) The processes take place in a coordinated manner and are close in time.
iv) All sanctions imposed are proportionate to the severity of the various infringe-
ments.43
Whether the requirement for clear and precise rules is a reality in relation to the obliga-
tions of the DMA is debatable. Some of the rules are very general and apply regardless of
the platform's business model. This is despite the fact that many of the obligations

40 One example is if the Commission finds that a different kind of self-preferencing than within comparison ser-
vices, which is forbidden under article 6.5 of the DMA, constitutes an abuse of a dominant position under Arti-
cle 102 TFEU.
41 Commission press release on 2nd May 2022, Commission sends Statement of Objections to Apple over practices

regarding Apple Pay, available via: https://ec.europa.eu/commission/presscorner/detail/one/IP_22_2764

42, C-280/08, Deutsche Telekom AG v Commission, ECLI:EU:C:2010:603.
43 C-117/20, b-mail SA v Autorité belge de la concurrence, p. 51, ECLI:EU:C:2022:202.

Electronic copy available at: https://ssrn.com/abstract=4222013

constitute a codification of antitrust investigations and decisions. As regards the require-
ment for coordination between competent authorities, it should be noted that, in the case
of the application of competition law by the Commission, there should be no major prob-
lems. This is because the Commission exclusively supervises regulation. This is stated in
Article 31(b) of the DMA. 44 It has been argued that in such cases the Commission will
choose to apply DMA over competition law, as it will be a much simpler process due to the
fact that a relevant market does not need to be identified, nor a dominant position or
abuse.45
Another, more problematic, situation that may arise is when a National Competition Au-
thority or a Court uses the national competition rules to investigate possible infringe-
ments., at a time when the Commission may have already opened an investigation regard-
ing compliance with DMA. According to the recitals of the DMA, national competition rules
should not give way to DMA and will continue to apply as usual. However, how these com-
petition tools are to be reconciled with the Commission's application of DMA should be
clarified before the regulation becomes a reality in order to ensure that a gatekeeper does
not end up in a situation where it receives varying commitments from both the Commis-
sion and national competition authorities.46
In the version of the DMA that was presented after the trialogue negotiations, the legis-
lator has, to some extent, taken into account to what the European Court of Justice stated
in bpost. The coordination between national competition authorities and the Commission
have been clarified. NCAs will not be able to open an investigation into a potential DMA in-
fringement if the Commission has already done so. An ongoing national investigation has
to be closed if the Commission has chosen to open a case concerning the conduct on which
the investigation was based. What this means in practice is that national competition au-
thorities can initiate infringements of DMA. However, the Commission will be the one to
finally establish whether the gatekeeper has complied with the DMA or not. 47 To ensure
this coordination, the Commission will cooperate with national competition authorities
through the European Competition Network.48 Furthermore, rules were added in the last
minute to promote coordination between courts and the Commission in private enforce-
ment cases to ensure that DMA is applied coherently. Article 31(c) prohibits national
courts from applying DMA in a manner contrary to the commission's application. However,
the problem of how national courts and competition authorities should deal with their na-
tional competition law has been considered to still be somewhat unclear.49 Article 1 merely
stipulates that the Regulation does not prevent Member States from using their national
competition law, in so far as they are intended to promote other interests than contestabil-
ity and fairness in digital markets.

44 Kominos, Assimakis, The DMA Proposal and the Court of Justice: All eyes on Luxembourg, blog posts i Kluwer
Competition Law Blog, 2021.
45 Monti, Giorgio, The Digital Markets Act – Institutional Design and Suggestions for Improvement, p. 15.
46 Recital 10 in the DMA stresses that national competition law rules are not to be affected by the enforcement

carried out by the Commission under DMA.

47 See Article 38 p. 3.
48 European Competition Network (ECN) is a cooperation network between the competition authorities of the

28 Member States and the Directorate-General for Competition of the Commission.

49 See Geradin, Damien The leaked "final" version of the Digital Markets Act: A summary in ten points, Blog Post i

The Platform Law Blog, 2021, available via: https://theplatformlaw.blog/2022/04/19/the-leaked-final-ver-

sion-of-the-digital-markets-act-a-summary-in-ten-points/

Electronic copy available at: https://ssrn.com/abstract=4222013

 8. CONCLUDING REMARKS
The extent to which competition law proceedings under Articles 101 and 102 TFEU, as
well as national rules, are allowed to take place in parallel with the Commission's regula-
tory enforcement under DMA is likely to be a matter for the ECJ in Luxemburg to decide in
the near future. The Commission's market research tools under DMA, which enables addi-
tions to the do’s and dont’s of the regulation, are likely to be of great use in updating the
regulation over time. A wide range of guidelines are likely to be needed for national courts
and competition authorities to ensure that there is no inconsistent application of DMA and
competition law. Article 46 of the act enables different kind of implementation regulations.
Better. One example of something that may require guidelines is the extent to which Na-
tional Competition Authorities can use competition tools, specifically tailored to digital
platforms (e.g., section 19(a) GWB), while an investigation under the DMA is ongoing with
the Commission. This must surely be allowed as NCAs cannot themselves apply the DMA.
The DMA stipulates, as mentioned earlier, that national competition law applies, provided
they protect another legal interest. However, since DMA is fundamentally based on anti-
trust objectives, this creates a great deal of confusion. There is a risk of unforeseeable and
fragmented enforcement if NCAs choose to apply their own competition tools in a way that
is contrary to how the Commission enforce the DMA. There is an initiative under article 49
on the commission website regarding procedural issues such as access to file.50 Guidelines
will, however, also be required in relation to compliance with some of the obligations un-
der Articles 5 and 6, especially those related to data portability, which have a very general
nature.51 So far, the Commission has only announced a workshop on effective compliance
with self-preferencing under article 6(5) will be held on December 5th 2022.52
Historically, the antitrust framework has adapted to new business models and
markets. It is also a framework that is flexibly designed to reflect prevailing societal values.
It is true that the challenges posed by digitalization have brought the framework to face
certain challenges. Traditional market share dominance assessments are difficult to apply
to markets characterized by structural features which the framework has not encountered
before. Despite this, this paper has highlighted the ability of antitrust deal with the chal-
lenges that come with rapidly changing societal conditions such as digitalization. Expand-
ing the competition law framework to deal with the challenges that come with a digital
economy has been successful in several Member States. Given the limited experience with
digital markets, far-reaching regulation in the digital sector is questionable and an anti-
trust approach to these challenges would perhaps be more suitable. How the regulatory
approach to address competition issues in the digital economy will affect the single market
at large remains to be seen.

50 Digital Markets Act - implementing provisions, available at: https://ec.europa.eu/info/law/better-regula-

tion/have-your-say/initiatives/13540-Digital-Markets-Act-implementing-provisions_en. The scope of this ini-
tiative was presented by a member of the DMA task force, Lea Zuber, at an event in Brussels by McDermott Will
& Emory and Concurrences in Brussels.
51 One example is article 5.9 which obliges gatekeepers to provide end-users and third parties with “effective”

portability of data.
52 Commission press release of the 31st of October, DMA stakeholders’ workshop, available at: https://compe-

tition-policy.ec.europa.eu/dma-stakeholders-workshop_en.

Electronic copy available at: https://ssrn.com/abstract=4222013