EU ANTITRUST: HOT TOPICS & NEXT STEPS

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Prague, Czechia

adverse effects on competition or are in any event capable of adversely affecting competition” (Kokott, 2011). With respect to the protected legal interest under Article 102 TFEU, the ultimate interest behind the prohibition of abuse of a dominant position is “consumer well being” rather than a specific market structure which is protected only so far as the harm to the structure of the market may directly or indirectly affect consumers (Rantos, 2021). It is important to note that although Article 102 TFEU forms a part of the EU competition policy, the protected interest is not competition itself, but the beneficial effects that competitive markets have on consumers. The DMA states the following specific objectives (European Commission, 2020, p. 59): a) To enhance coherence and legal certainty in the online platform environment in the internal market; b) To address gatekeeper platforms’ unfair conduct; and c) To address market failures to ensure contestable and competitive digital markets for increased innovation and consumer choice. Nonetheless, the DMA text does not expressly attribute the objectives above to specific obligations set out in Articles 5 and 6. While the first objective can be attributed to the DMA as a general goal, respective obligations for gatekeepers can pursue the objective of addressing unfair conduct, or of ensuring contestable and competitive digital markets for increased innovation and consumer choice, or both of these objectives in parallel. For a closer look at how these objectives are manifested in the DMA text, we selected two examples of obligations – Article 6(1)(b) and Article 6(2)(d). Both articles are derived from previous case law formulated in proceedings under Article 102 TFEU, and as such represent a good example for analysis of differences between the two sets of rules. Article 6(1)(b) of the DMA contains an obligation to [A]llow end users to un-install any pre-installed software applications on its core platform service without prejudice to the possibility for a gatekeeper to restrict such un-installation in relation to software applications that are essential for the functioning of the operating system or of the device and which cannot technically be offered on a standalone basis by third parties. Following Recital 46 and 47 of the preamble of the DMA, it may be presumed that Article 6(1)(b) aims to “To enable end user choice” as restrictions to end users’ choice in terms of pre-installed applications are considered “unfair and liable to weaken the contestability of core platform Services”. In the Impact Assessment Report, the following example is given: “app stores/ operating systems preventing users from un-installing some of the pre-installed

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