EU ANTITRUST: HOT TOPICS & NEXT STEPS

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Prague, Czechia

2. Why a separate regulation? The proposed Digital Markets Act is adopted to deal with issues that the current rules (mostly in the area of competition law) are unable to face properly. The current regulation’s solutions take too much time or are not sufficient to solve complex issues. For example, when the national/EU authorities intend to intervene in the competition law, they need to overcome several constraints. Under article 101 TFEU, there is a condition of explicit coordination, and under Article 102, of a dominant position. Moreover, EU competition law only prohibits the abuse of a dominant position, not dominance as such ( Europemballage Corporation and Continental Can Company v. Commission , 6/72). The fact that an undertaking controls the business area does not create a reason for the intervention of the competition authorities, even when its actions seem to cause several issues (as already mentioned). Even when the conditions of explicit coordination or abuse of a dominant position are met, it may take years to achieve an enforceable decision since most undertakings seek the annulment of the decisions of the Commission or national competition authorities (Ibáñez Colomo, P., 2021). There is a possibility of imposing interim measures during the proceedings, but it only constitutes provisional legal protection, and it is not possible to impose them universally. For example, with regard to interimmeasures before EU courts, a proposed measure aimed solely at protecting the interests of one of the parties is not permissible (Lenaerts K, 2014). Interim measures are adopted only where the following conditions are met: (i) there is a reasonably strong prima facie case establishing an infringement, (ii) there is a likelihood of serious and irreparable harm to the applicants unless the measures are ordered, and (iii) there is an urgent need for protective measures ( IMS Health v. Commission , T-184/01 R). Therefore, interim measures allow us to react only in selected cases and cannot be considered a complex and suitable solution for the above-mentioned issues that the digital markets face. The proposedDigitalMarkets Act allows one to intervene and react to the unwanted behaviours without the obligation to define relevant markets, demonstrating that the undertakings are dominant in these markets and simultaneously abuse their position or the condition of explicit coordination. The only condition to be met is that the undertaking is a gatekeeper, as defined in the proposed Digital Markets Act. Subsequently, all gatekeepers are obliged to refrain from several activities or act in a certain way that the proposed Digital Markets Act requires. This approach allows us to target unwanted behaviours faster and more efficiently. However, the proposed Digital Markets Act is not intended to replace current competition rules. It also does not exclude the simultaneous application of competition regulation, even if they both deal with the same issues, such as

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