EU ANTITRUST: HOT TOPICS & NEXT STEPS

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Prague, Czechia

The investigation of all three cases was (and in the Google advertising case still is) very challenging. It is the very nature of the digital market that in connection with the competition investigation proceedings leads to both very long and difficult scrutiny (Geradin [online], 2021). For the purpose of the competition investigation it is necessary to define 1) relevant market, which is two steps process assessing first the product market and second the geographical market (Sylwan, 2021, p. 14); 2) to determine the dominance of the investigated undertaking on the previously defined relevant market; 3) to make a case-by case analysis whether the investigated conduct of the dominant undertaking has or is able to have negative effect on the competition; 4) to assess the consumer welfare test (Schweitzer, 2021, p. 6). The DMA aims to change that approach towards digital market, excluding explicitly the effect-based approach analyzed ad hock for each of the cases and implicitly the consumer welfare test (Schweitzer, 2021, p. 6). The DMA thus reacts on the challenges laid upon the anticompetitive investigation related to gatekeepers and core services in a way that it rather complements than replace the competition regulation (European Commission [online], 2020a, Recital 10). 4.1 Introduction to revolutionary (?) regulation As was mentioned at the very beginning of this paper, large platforms act as gatekeepers, creating a dependency on their services and access of business users making the gatekeepers the masters of the internet (which is, of course, the very definition of gatekeepers) (Geradin [online], 2022). The position of a gatekeeper might logically lead to unfair and anticompetitive behavior and a threat of negative impact on the contestability of the digital markets. In the end, gatekeeping leads to inefficiency in the market, which is typically demonstrated by “higher prices, lower quality, as well as less choice and innovation to the detriment of European customers” (European Commission [online], 2020a, p. 1). To prevent such a harmful behavior to both the competitors of gatekeepers as well as to the consumers, the Commission represented the DMA. The goal of the DMA is to ex ante regulate gatekeepers’ influence (Anderson, Marinielo [online], 2021) and consequently to let the full potential of smaller platforms thrive in the era of big tech giants (Sylwan, 2021, p. 67). The DMA proposal focuses on the regulation of “core platform services” (European Commission [online], 2020a, Article 1, Section 2). Core platform services being defined in the proposal in Article 2 Section 2, which includes exhausting list of what is meant by the “core platform services”. Those include “(i) online intermediation services (incl. for example marketplaces, app stores and online intermediation services in other sectors like mobility, transport or energy), 4. General Markets Act

48