By Yunsieg Kim (University of Missouri)
On July 5, 2022, the European Parliament passed the Digital Markets Act (DMA), intended to curb anticompetitive behavior and other unfair practices by platforms such as Apple and Google. For example, Apple’s App Store is currently the only means of distributing apps for iOS. Apple has been accused of exploiting such gatekeeping powers to engage in self-preferencing—such as ranking Apple apps above third-party apps in the Apple App Store’s most-popular-apps charts.
Whereas conventional antitrust law targets conduct that harms efficiency, like price-fixing, the DMA prohibits acts deemed to be “unfair” independent of whether they affect efficiency. For example, a gatekeeper “shall not treat more favo[]rably[] in ranking . . . products offered by the gatekeeper itself than similar services or products of a third party” and “shall apply transparent, fair and non-discriminatory conditions to such ranking,” “independent from the actual . . . effects of the conduct of a given gatekeeper . . . on competition.” European authorities also stress their goal of “future-proofing” the DMA. To that end, the European Commission can “supplement” the DMA’s various provisions, including the self-preferencing ban, without legislative amendment.
