EU ANTITRUST: HOT TOPICS & NEXT STEPS
EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022
However, there is no doubt that the proposed Digital Markets Act will have an impact on the state of competition. The unclear rules may cause the following issues on the state of the competition: First, the unclear relationship between the competition law and the proposed Digital Markets Act causes difficulty in determining whether the behaviour that the proposed Digital Markets Act regulates in practice is problematic. However, the list of restricted behaviours (mostly stated in Article 5 and Article 6 of the proposed Digital Markets Act) is based on the decision-making practice of competition authorities (joint position of European competition authorities, 2021). Without a deeper competition law analysis, it cannot be determined whether a behaviour is in a particular situation problematic and has negative effects on the digital market. The proposed Digital Markets Act may unnecessarily limit some behaviours. Second, the proposed Digital Markets Act is reversing the burden of proof. In the current competition regulation, the burden of proof is on the authorities to impose any obligations. The proposed Digital Markets Act not only sets out ex ante rules, but to suspend these obligations, gatekeepers should demonstrate “that compliance with that specific obligation would endanger, due to exceptional circumstances beyond the control of the gatekeeper, the economic viability of the operation of the gatekeeper in the Union, and only to the extent necessary to address such threat to its viability” (Article 8 of the proposed Digital Markets Act). It is also possible in Article 9 for the proposed Digital Markets Act to be exempted from specific obligations, and it needs to be initiated by the gatekeeper. Such an approach increases the regulatory burden, and even the Commission has acknowledged that regulatory burdens are often a major obstacle to innovation (Pelkmans, Renda, 2014). The most appropriate solution would be to better target regulation to specific behaviours. That would ease the administrative burden that the gatekeepers would face when all obligations apply to all gatekeepers, regardless of their situation, until they prove the Commission otherwise. Ex ante regulation may be a useful tool in regulating digital markets. However, it is necessary to clarify the relationship between the current competition rules and the proposed Digital Market Act to consider the possible distortion of competitive forces and lessen the administrative burden of gatekeepers by Commission initiatively considering specific situations. 5. Role of national competition authorities Even though the proposed Digital Markets Act is based on the decision-making of national competition authorities, acknowledging their ability to tackle contemporary digital issues, the wording of the proposed Digital Markets Act does not provide them with any role in the enforcement of its rules.
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