Aflevering 3

Over the past decade, the competitive concerns associated with the digital market have increasingly become the centerpiece of academic debates, enforcement priorities, and legislative initiatives. The digitization process that took place over this period and continues to intensify has fundamentally changed the role digital products and services play in our lives and, with it, the role that their creators and providers play in the economy. As a result, the competitive problems that may arise in such circumstances will be of corresponding significance and continue to increase alongside this digitization process. Nevertheless, the magnitude and gravity of these implications have not always been evident or even accepted.

The article discusses the parallel enforcement of the Digital Markets Act (DMA), Article 102 TFEU, and national (competition) laws by the Commission and national competition authorities. Parallel application entails various risks that do not appear to be adequately and completely addressed in the DMA. In particular, the authors recommend that new guidance and enforcement protocols are put in place to ensure a harmonized enforcement approach in the EU.

A myriad of legal regimes apply to concentrations involving gatekeepers. The DMA’s entry into force and the recent ECJ case-law add extra levels of complexity to the challenges faced by merging parties. In this contribution we examine whether, subsequent to these developments, concentrations involving gatekeepers are subject to a coherent set of rules. We argue that by focusing on the referral mechanism of Article 22 MCR (Dutch clause) the DMA has not solved the issues surrounding concentrations initiated by gatekeepers. Accordingly, the interplay between the DMA and the EU and national merger control rules is not regulated in a fully coherent fashion.

The purpose of the present contribution is to shed light on the private enforcement of the DMA rules. In particular, it examines, first, the preliminary question, i.e. whether the enforcement of the DMA is restricted to public authorities (the European Commission), or whether the DMA is also enforced by the courts in civil law disputes between private parties. Second, it considers the questions of available remedies in private enforcement, the applicable procedural rules and the rules on jurisdiction and conflict of laws (private international law). Finally, it centres on risks of fragmentation and the DMA mechanisms to remedy this problem.

The European Commission remains the sole enforcer of the Digital Markets Act but DG COMP is not alone in monitoring the regulation’s enforcement. National competition authorities (NCAs) and national courts will also be called to intervene in interpreting and applying the DMA’s provisions both in the public and private enforcement spheres. The article addresses the former perspective of public enforcement, with a special focus on the cooperation and coordination principles that NCAs and national courts must abide by when interpreting the DMA set out under Articles 37 to 39 DMA. Moreover, the article takes stock of the different legislative developments that the Member States have adopted to confer powers on their NCAs to assume the supporting role of monitoring enforcement within the regulatory framework.

The DMA ushers in a new era of digital markets oversight. Implementing the DMA will require regular interactions between the Commission and gatekeepers. The Implementing Regulation sets out procedural rules that govern some of these interactions. This contribution provides a critical account of the procedural framework established by the Implementing Regulation. After it has set out the aspects that must be taken into account when evaluating the Implementing Regulation, this contribution critically discusses the most important aspects of the Implementing Regulation. Especially the procedural rules relating to notification and designation of gatekeepers and the rights of defence. It ends with highlighting what may be missing in the Implementing Regulation.