By: Thomas Lübbig & Ole Schley (D’Kart)
2020 was a year in which “Big Tech” was put through a lot in terms of competition law. Almost every week, competition authorities around the globe opened new proceedings. In the EU, everything was heading for the climax at the end of the year with the presentation of the draft regulation on the Digital Markets Act (DMA-D) in a joint effort by the Commission’s Executive Vice President Margrethe Vestager and her Commissioner colleague Thierry Breton. As recently as summer 2020, a New Competition Tool (NCT) had been announced to make time-honoured competition law fit for the digital age.
After several delays, the time for the publication of the new rules had come on 15 December 2020, and the result was rather surprising. According to Competition Commissioner Vestager at the accompanying press conference, the NCT has been integrated into the DMA-D. The draft law also provides for enforcement powers that are more than somewhat reminiscent of the competition instruments contained in Regulation 1/2003. However, the NCT is no longer mentioned in the draft regulation itself. Instead, the DMA-D, now based solely on the internal market competence of Art. 114 TFEU, makes it clear that it is not competition law in the classic sense, nor does it want to be.
A new regulatory approach
Cumbersome, case-specific, ineffective – the accompanying materials to the DMA-D are not exactly full of praise for the previous competition practice under Art. 102 TFEU in the digital sector. For this reason, the paradigm shift in enforcement – the subject of much speculation in the run-up to publication – is now likely to take place…