EU ANTITRUST: HOT TOPICS & NEXT STEPS

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Prague, Czechia

2.2 Regulation of the gatekeepers More than year ago, the European Commission presented its legislative initiative for digital markets the Digital Markets Act (DMA) and the Digital Services Act. In the context of competition law, the DMA is understood as a complement to current regulatory framework set by competition rules. Under the Draft DMA, Article 114 TFEU is its only legal basis and therefore it does not rely on the possibility to expand enforcement of competition rules under Article 103 of Article 352 TFEU. Comparing to directive on B2B unfair trade practices, the concept and notion of the Draft DMA refer to concepts of protection of competition (the title refers to “contestable and fair markets”). On the other hand, the concept of a “gatekeeper” under the Draft DMA resembles network operators under sector regulations (Larouche & De Streel, 2021, p. 544), i.e., regulation of sector is failing or still non-existing. The closer the EU law regulation bypasses competition rules, the more awareness it needs. If the overlap is accidental and regulation regimes manifestly follow different goals, invoking possible violation of ne bis in idem is less probable. However, if regulations follow the same, or similar goals, ne bis in idem can be violated. The Draft DMA resembles the competition rules in too many instances, including procedural rules or level of fine for infringement are drafted based on Regulation 1/2003 and obligations of gatekeepers reflect the main antitrust investigations vis a vis digital platforms during the recent years (Botta, 2021, p. 504). The necessity of ex-ante regulation (comparing to ex-post evaluation of Articles 101 and 102 TFEU) is not a convincing argument for removing the DMA from the scope of competition rules because merger control is also ex-ante competition measure. The aim of this paper is not to challenge the necessity or suitability of the DMA and to prefer ex-ante regulation at such dynamic market, as digital markets are, over ex-post evaluation via traditional enforcement measure based on Articles 101 and 102 TFEU. The Draft DMA seems to be an unnecessary bypass of competition law because it bears apparent features of pro-competitive regulation, thus it can rely on firm exclusive competence of the EU, rather than contestable harmonisation legal basis. 3.1 Horizontal EU policies and competition law Competition law, as other EU policies shall accommodate all so-called horizontal policies of the EU, such as environment protection or protection of human rights (Blažo, Kováčiková, & Mokrá, 2019; Corvaglia, 2016, p. 608; Majcher & Robertson, 2021, p. 13). Thus, these policies must be integrated into competition law enforcement, both public and private. Traditional way of 3. Bypassing through Competition Law

378