EU ANTITRUST: HOT TOPICS & NEXT STEPS

Prague, Czechia

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

1. Introduction Proposal for a regulation of the European Parliament and of the Council on contestable and fair markets in the digital sector (Digital Markets Act) (hereinafter: ‘proposed Digital Markets Act’) as defined in the Explanatory Memorandum, aims to complement existing EU and national competition regulations. In essence, it is a sector-specific competition regulation (Petit N., 2021). Its objective is to ensure a fair and competitive digital economy in the EU by regulating ‘gatekeepers’. A gatekeeper is a provider of core platform services that has a significant impact on the internal market, operate a core platform service that serves as an important gateway for business users to reach end-users and enjoys an entrenched and durable position in its operations, or it is foreseeable that it will enjoy such a position in the near future and meets the stated thresholds [article 3 (1, 2) of the proposed Digital Markets Act]. Even when the thresholds are not met, European Commission (hereinafter: ‘Commission’) may identify a subject as a gatekeeper [article 3 (6) of the proposed Digital Markets Act]. Gatekeepers are regulated to restrict the negative effects that their actions have on the digital sector. According to the Explanatory Memorandum of the proposed Digital Markets Act, gatekeepers “have substantial control over the access to, and are entrenched in digital markets, leading to significant dependencies of many business users on these gatekeepers, which leads, in certain cases, to unfair behaviour vis-à-vis these business users. It also leads to negative effects on the contestability of the core platform services concerned” . When a gatekeeper platform sets conditions with almost no competition, the lack of contestability and unfair practices, it may lead to a less efficient digital sector. Therefore, it may result in higher prices, lower quality, and fewer customer choices or inappropriate practices that involve unfair uses of customers’ data and locking customers to a particular service with no options to switch to another (Digital Markets Act, Explanatory Memorandum). The Digital Market Act aims to tackle these issues by setting complex rules applicable universally in the whole EU digital market. However, these proposed rules are “in an experimental stage – just as digital markets themselves” (Picht, P. G., 2021). The wording of the proposed Digital Market Act is unclear, along with its relationship with other regulations. This paper deals with the following issues that the proposed Digital Markets Act face: the need for a separate regulation, the notion of a gatekeeper and its possible effect on competition, ex ante regulation and its comparison with the Electronic Communications Code, limited role of national competition authorities and provisions dealing with access to data and their relationship with various regulations.

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