When Courts Meet Code: Judicial Review of Competition and DMA Decisions

This piece by Dr. Konstantina Bania (Geradin Partners) for The Platform Law Blog looks into the growing tension between the slow pace of judicial review and the rapid evolution of digital markets. By the time cases reach court, the technologies, business models, and even market realities at issue may already be outdated, creating a structural mismatch that complicates effective legal oversight. This challenge is particularly acute in both traditional competition enforcement and under the Digital Markets Act (DMA).

The author explains that digital cases are inherently more complex for courts due to their quasi-regulatory nature, vast and technical evidentiary records, and reliance on forward-looking, behavioral remedies. Courts are no longer just assessing legal arguments but are increasingly required to evaluate competing economic theories, algorithmic systems, and technical architectures. This shifts judicial review into unfamiliar territory, where questions of proportionality, feasibility, and technical realism become central.

Several key challenges emerge: determining the appropriate intensity of review, handling highly technical and data-driven evidence, and assessing predictive theories of harm in fast-moving markets. Courts must also evaluate novel remedies that often evolve over time and navigate overlaps with other legal regimes such as data protection and consumer law. In response, the piece highlights the emergence of a “digital judicial toolkit,” including stronger reasoning requirements, greater use of expert input, structured proportionality analysis, and closer alignment across regulatory frameworks.

Under the DMA, these challenges intensify. Courts must grapple with new concepts like “gatekeepers” and “core platform services,” assess the robustness of designation thresholds, and review complex non-compliance decisions involving real-world system design. The stakes are high: overly deferential courts risk legitimizing unchecked regulatory intervention, while overly intrusive review could stifle timely enforcement…