The DMA Has Been Published: Now The Real Challenges Start

By: Damien Geradin (The Platform Law Blog)

The Digital Market Act (“DMA”) has been published today. It is a remarkable instrument in many ways. Since the publication of the Commission proposal in December 2020, it took less than 1.5 years for the Council and the Parliament to agree on the final text. The supersonic adoption of the DMA was due to several factors, including: the quality of the Commission proposal; the desire from key Member States, such as France and Germany, to regulate digital gatekeepers; and the leadership of Andreas Schwab in the Parliament. The DMA is also one of the very few instances where the text adopted by the Council and the Parliament is stricter than the text initially proposed by the Commission.

Yet, it is now that the real challenges start with the implementation and enforcement of the DMA. The DMA will be as good as its implementation and enforcement, and it is expected that gatekeepers will fight their corner. The task of the Commission will not be easy, and it is questionable whether it will have enough resources. That is a key question considering that, unlike in the case of EU competition law, the DMA provides for centralized enforcement. Companies that rely on the core platform services (“CPS”) of a gatekeeper will get frustrated if implementation and enforcement are inadequate and they may resort to national courts to privately enforce them. The success of the DMA will also depend on the ability of the Commission to enforce the DMA in a timely manner, while at the same time respecting due process.

The DMA will also pose significant challenges for gatekeepers. The DMA follows a relatively rigid model, which does not (sufficiently) take into account the differences of the various business models gatekeepers may pursue. Some of the DMA obligations are not always clear and reasonable people may disagree over their interpretation. In some instances, these obligations will force gatekeepers to revisit their business model and in-house lawyers may find resistance from their business colleagues. Thousands of hours will have to be spent on preparing compliance with the DMA…

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