EU ANTITRUST: HOT TOPICS & NEXT STEPS
EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022
predictability, and higher compliance costs mean more barriers to the digital market in the EU. Therefore, it can be concluded that there is a need for a sector-specific regulation for digital markets, but it is necessary to clear the relationship between the proposed Digital Markets Act and national competition regulations to determine when it is appropriate to apply these regulations. Further, this relationship should balance the possibility of member states to partially regulate different aspects of the digital economy and still maintain a consistent approach EU-wide. 3. The notion of a gatekeeper As mentioned above, the proposed Digital Markets Act rules apply only to the undertakings that meet the definition of a gatekeeper, regardless of whether it holds a dominant market position (Article 3 of the proposed Digital Markets Act). Then, these rules may apply only to selected few competitors rather than most sector-specific regulations that apply to all subjects in specific areas. In a situation where the gatekeeper does not hold a dominant position and its other competitors do not meet the definition of a gatekeeper, a gatekeeper undertaking finds itself in a much less favourable situation. Indeed, it should limit several of its activities, and the other competitors may use these activities as an advantage to gain more market control. Such application of rules of the proposed Digital Markets Act would not be fair and competitive, and it also may distort competitive forces. The Commission may exempt a gatekeeper from specific obligations only on the grounds of (i) public morality, (ii) public health and (iii) public security (Article 9 of the proposed Digital Markets Act). Based on the above-mentioned example, it would be appropriate for these exceptions to include a case of a possible distortion of competition. The notion of a gatekeeper should consider the competition more to prevent the unfair treatment of gatekeepers as selected undertakings and possible distortion of competition. Ex ante regulation The novelty in the proposed Digital Markets Act is ex ante rules. There are already ex ante rules in competition law in the Directive of the European Parliament and of the Council 2018/1972 of 11 December 2018 establishing the European Electronic Communications Code (hereinafter: ‘European Electronic Communications Code’). However, there are significant differences between ex ante rules in the Electronic Communications Code and the proposed Digital Markets Act. 4.
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