The EU Digital Markets Act (DMA)

Organised by

• Department of Law

Abstract

The newly enacted Digital Markets Act (DMA) finds itself at a crossroads. The DMA could develop into a specialist field of competition law for digital platforms or it could usher in a transformation of EU competition law more broadly. Yet another possibility is that the DMA evolves into a new field of EU law, detached from competition law. The DMA’s ultimate trajectory depends heavily on the positive characterization given to the DMA. Is it a special competition law regime, a new model of competition law altogether or an original instrument distinct from competition law? Answering this question at the onset of the DMA’s practical implementation is key to allow for a trajectory consistent with the preferences that motivated the DMA’s adoption and cognisant of the instrument’s limits.

This paper lays part of the groundwork for correctly characterizing the DMA by offering a complete descriptive analysis of the DMA. Among the elements discussed are the twin concepts of "gatekeepers" and "core platform services", which together condition the DMA’s scope of application, as well as the legal obligations imposed on gatekeepers. The paper proposes a novel categorisation of the obligations, showing that each obligation can be associated with at least one of two conventional competition law concerns (exclusion or exploitation). The discussion of the DMA reveals the difficulty in trying to understand the DMA without knowledge of competition law. Ultimately, the paper argues that the DMA, while framed as an economic regulation, amounts to a competition law expressed in per se rules for the digital economy.