EU ANTITRUST: HOT TOPICS & NEXT STEPS

Prague, Czechia

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

self-preferencing, limiting or refusing access to the collected data or limited interoperability. All these issues have been already addressed by current competition law, such as Microsoft v. Commissio n, T-201/04. The decision B6 22/16, Facebook , Bundeskartellamt. It should also be noted that competition law, even though it has its limits, is an effective and appropriate tool for regulating the digital economy. Competition law can be applied across disciplines without any sectoral or technical limits. It is suitable for addressing changing technology and different relations between sectors of the economy (Joint position of European competition authorities, 2021). The nature of the competition law makes it a suitable accessory to the proposed Digital Markets Act. Even in future, it may be an inspiration for keeping the proposed Digital Markets Act up to date. However, the relationship between the proposed Digital Markets Act and current competition rules stays unclear. The proposed Digital Markets Act states that it “aims at complementing the enforcement of [current] competition law; that rules are without prejudice to articles 101 and 102, […] and to national competition rules.” But it further mentions that the application of the national competition rules “should not affect the obligations imposed on gatekeepers [under proposed Digital Markets Act] and its uniform and effective application in the internal market” (Recital 9, proposed Digital Markets Act). The governments of Germany, France and the Netherlands asked to clarify the relationship between the existing rules of EU and national competition law (Germany, France, and the Netherlands, 2021). They also suggest that the proposed rules pursue complementary goals to the existing rules, and they should “complement existing tools rather than weakening or substituting them” . The joint proposal asks for coordination of content and the enforcement of the existing and proposed rules. The joint proposal also mentions that the proposed Digital Markets Act should not undermine the national rules regulating digital markets. Different member states may have different objectives in regulating the digital economy and should have “a sufficient and clear leeway” for national rules. Several member states are introducing national rules under competition law that regulate the behaviour of undertakings, similar to the concept of gatekeepers. For example, Germany included the provision on “the abusive conduct of undertakings of paramount significance for competition across markets” (Joint position of European competition authorities, 2021). The Digital Markets Act allows the member states to act on their regulation. However, it should not be omitted that the gatekeepers operate on an EU-wide basis. A considerably different regulation within the EU digital market may lead to fragmentation. In this case, customers and small businesses that depend on gatekeepers may find themselves in an even less favourable situation since less

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