EU ANTITRUST: HOT TOPICS & NEXT STEPS

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Prague, Czechia

and the various Council and Parliament configurations, it has been difficult to ensure consistency between the different legal instruments to the point that the same practice or behaviour can be addressed by different laws. This raises the risk of competing legal regimes and amplifies discretionary enforcement, often leading to late enforcement or none at all. This problemmay be exacerbated by the different priorities and appetites for intervention among the EU Member States. The second mistake was to regulate the online world using the same legislative techniques we employed for the offline world. In debates about digital and online laws, one can often hear the adage “What is illegal offline, should be illegal online”. In other words, what is allowed in the offline world should also be allowed one; however, this premise ignores the very characteristics that are intrinsic to the online and digital environments – such as significant network effects leading to monopolies – and which require laws to be tailored for such specificities. Those structural problems are then often compounded by behaviour which further limits competition and consumer power and choice. In that context, the upcoming Digital Markets Act (DMA) (European Commission, 2020c) is a very promising, and much needed tool to regulate harmful behaviours and practices in digital markets because it provides for tailored solutions through asymmetrical legislation. In this regard, the DMA complements competition law enforcement by providing targeted solutions to specific issues raised by gatekeeper platforms regardless of whether they are dominant under the traditional competition law. As of February 2022, the European Parliament and the Council have started negotiations to find a compromise on the Commission’s proposal. While the Commission’s initial proposal constituted an already very good first draft, it is essential that the trilogues are used to improve both substantive and procedural parts of the DMA proposal. First, consumers (i.e. end users) should be given as much importance as business users in the DMA, and the interests of both should be safeguarded. Second, the DMA should explicitly prohibit gatekeepers from circumventing their obligations through the use of ‘dark patterns’ and other behavioural techniques and interface design to influence consumers’ choices. Third, consumers – through consumer organisations such as BEUC and its members – should have the possibility to be heard in decision making processes and market investigations under the DMA Finally, the DMA must foresee effective enforcement measures from the first infringement by a gatekeeper to ensure swift compliance by gatekeepers with their obligations. Acknowledgements The author would like to thank Nicolas Fafchamps for his valuable research assistance in the preparation of this contribution

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