By: Alfonso Lamadrid (Chilling Competition)
The DMA proposal is a bold and ambitious attempt to rewrite the rules applicable to (some) digital platforms. While competition law has proved dynamic and capable of constant evolution to address these and other challenges, this proposal would bring about a revolution. There are very different views on whether this may be a good or a bad thing (certainly no expert-consensus either way). All views are legitimate. Here are mine, surely influenced by my work.
1) EU legislators are not afraid of taking up an extraordinarily difficult task, and of breaking new ground, in addressing some of the anxiety about these markets; that is not necessarily a bad thing. EU legislators have the right to try, but also the responsibility to get it right. With great regulatory powers also comes great responsibility.
2) The DMA proposal will first need to overcome legal and political hurdles, but its practical implementation would pose even greater challenges. Managing such a far reaching tool, and managing expectations, could prove a daunting task.
3) The proposal makes a commendable effort to make rules more efficient. The combined promise of far-reaching remedies and relaxed intervention standards (i.e the perception that the sky is the limit) may, however, expose the Commission to continuous and unprecedented pressure and lobbying on the part of stakeholders. We are already witnessing this phenomenon regarding remedies in some specific cases. The proposal would turn this into the new normal. Imagine a world of evergreening investigations and remedy disputes. It is important to realize that the limitations imposed by the law are also meant to protect Institutions from possible pressures.
4) The criteria to identify what companies would qualify as “gatekeepers” will no doubt attract much of the attention given that the proposal would appear to cover companies other than just the five or six that you may have had in mind. The Commission explains that companies meeting the proposed objective thresholds may be able to rebut the “gatekeeper” presumption, even if it is unclear exactly how they might be able to do that. Conversely, the Commission proposed to have the power to identify as gatekeepers companies that do not meet all of these thresholds following a market investigation and “on the basis of a qualitative assessment”. Given their potentially very broad implications, the legislators might need to think very carefully about the relevant criteria to govern these exercises…