The DMA’s Ithaca: Contestable and Fair Markets

Abstract

The Digital Markets Act (DMA) obligations will start to apply to the designated gatekeepers starting in March 2024. Its main objectives are set out in Article 1(1) as those of ensuring contestable and fair markets in the digital sector across the Union where gatekeepers are present, to the benefit of both business and end-users. However, the definition and the interpretation the Commission will provide for both objectives are far from clear. In turn, this makes future-proofing the DMA a more difficult task for gatekeepers, regulators and third parties, insofar as its obligations are construed upon one of the two stated goals depending on the provision or on both of them more generally. The paper addresses this problem by narrowing the gap between those concepts in their relationship with their underlying economic theorems. Later on, it observes the manifestations of contestability and fairness throughout the text and the regulation’s legislative process accounting for their four distinct expressions: objectives, indicators, and the legal bases for triggering the supplementary and precautionary measures of the instrument. Digital Markets Act, Contestability, Fairness, Objectives, European Commission, Legislative Process, Administrative Discretion, Interpretation, Digital Competition, Gatekeepers