EU ANTITRUST: HOT TOPICS & NEXT STEPS

Prague, Czechia

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Several national competition authorities dispose of a high level of expertise, even in digital markets, from the experiences in past proceedings. It seems quite inefficient to omit national competition authorities that created successful decision-making practices in this area in recent years. The proposedDigitalMarkets Act wouldmean for the Commission new challenges. National competition authorities warned in their Joint paper that if only a limited number of gatekeepers were concerned by the proposed Digital Markets Act, it would be difficult for the Commission “to provide sufficient resources to enforce all the obligations and prohibitions referred to in the proposed Digital Markets Act, in each member state and at all times.” National Competition Authorities also warn of the enforcement bottleneck and significant delays in enforcing these rules (Joint position of European competition authorities, 2021). The solution would be to include national competition authorities in the proposed Digital Markets Act’s enforcement. Including national competition authorities in the proposed Digital Markets Act enforcement would also help to prevent possible conflicting decisions in national competition regulation and the proposed Digital Markets Act rules. National competition authorities would have experience in general competition and the proposed Digital Markets Act. In their decision-making, it would be easier to balance these regulations and make consistent decisions in both areas as they are (as mentioned above) complementary to each other. On the other hand, such approach would mean a less coherent application of the proposed Digital Markets Act rules in the EU. However, this could be mitigated by a cooperation mechanism similar to the ‘consistency mechanism’ in Article 63 of the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) (hereinafter: ‘General Data Protection Regulation’). The proposed Digital Markets Act should engage national competition authorities in the enforcement of its rules to utilise their expertise, prevent enforcement bottleneck and ensure functioning decision-making EU wide. 6. Access to data The core provisions of the proposed Digital Markets Act that would ensure the interoperability of the digital markets are the provisions concerning access to data. Article 6(a) states that gatekeepers cannot use data generated by business users and their end-users on the platforms in competition with business users. Further, Article 6(h, i) states that gatekeepers need to provide effective portability and

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