Abstract
This paper considers the proposal for a Digital Markets Act. The single most notable aspect of the draft legislation is that it would give the European Commission substantial leewway to restructure, in the name of fairness and contestability, ecosystems and business models in the digital arena. The European Commission would also enjoy the same leeway to identify the firms that would be subject to intervention. The paper compares the approach proposed in the Draft DMA with that followed in competition law and the EU telecoms regime. It appears, first, that the legislative proposal dispenses from the need to engage in the sort of case-by-case, contex-specific evaluation that is characteristic of competition law regimes. Second, the Commission would not be subject to the legal and economic constraints that are common to competition law and the EU telecoms regime. Third, the burden of intervention is placed upon the firms, not the authority. Several implications follow from this regulatory design. Because the European Commission would not be subject to the constraints that derive from decades of EU competition law enforcement, its relationship with stakeholders might change as a result. A second question is whether the Draft DMA would allow for judicial review to be meaningful.
Highlights
The proposal for a Digital Markets Act signals a new approach to the regulation of Big Tech in the EU and beyond.[1]
The Draft DMA sets up a new regulatory regime that would relieve the European Commission from the legal and economic constraints deriving from competition law
The Draft DMA entails a reversal of the burden of intervention: it is not for the authority to establish an infringement and impose a duty, but rather for firms to define how they intend to comply with the obligations enshrined in the proposal
Summary
The proposal for a Digital Markets Act signals a new approach to the regulation of Big Tech in the EU and beyond.[1] The legislative machine has been set in motion following a change in the attitude of authorities and stakeholders vis-à-vis the growing and transformative
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