The Digital Markets Act: EU Competition Policy at a Crossroads
Key takeaways from a workshop on the EU Digital Markets Act and its impact on EU law
In June 2020, Directorate Competition (DG) of the European Commission opened a public consultation concerning a New Competition Tool (NCT). Under the proposal, the European Commission would impose remedies in markets characterised by structural competition problems without requiring the need to identify a specific competition law infringement. In other words, the NCT would grant DG Competition similar powers as those enjoyed by sector regulators in network industries. The Tool aims to ‘speed up’ the competition policy enforcement, which is currently perceived as ‘too slow’.
In parallel to this public consultation, the European Commission also launched one concerning the Digital Services Act (DSA), which proposed the introduction of an ex-ante regulation vis-à-vis the so-called ‘digital gatekeepers’ (Google, Amazon, Facebook, etc). In this scenario, the DSA will include both a list of ‘black’ behaviours as well as a list of ‘white’ conducts by dominant online platforms, leaving the task of assessing the ‘grey’ conducts that do not fall under any specific category to competition law enforcement.
The Commission is expected to publish a legislative proposal in December 2020. The proposal will likely merge the DSA and the NCT into a single legislative framework, currently known as Digital Markets Act (DMA).
On 16 November 2020, the Robert Schuman Centre organised an online conference examining the Digital Markets Act (DMA) proposal. During the conference, the invited speakers debated the pros and cons of the DMA proposal before its official publication. In particular, the speakers debated what ‘type’ of NCT the Commission should opt for: a ‘broad’ NCT, covering every economic sector, or a ‘narrow’ one, focussed on digital markets. The European Commission is currently considering the possibility of limiting its new enforcement powers to digital markets. However, during the event, most of the speakers criticised this choice, which would create an ad hoc set of competition rules applicable only to digital markets.
Secondly, the speakers debated the ‘theories of harm’ - the types of anti-competitive conducts that distort free competition in the market - and the remedies that the Commission would be able to impose under the NCT. Finally, the speakers discussed whether, and to what extent, the list of ‘black’, ‘white’ and ‘grey’ conducts included in the DMA proposal resembled the ‘old’ European Commission approach, which reviewed anti-competitive agreements under the Block Exemption Regulations (i.e. Commission Regulations that provide a presumption of legality for certain types of agreements that fulfilled certain conditions). During the events, most of the speakers criticised this choice, citing that it would be contrary to the effect-based approach that has characterised EU competition policy during the past decade.
The conference was wrapped up by the keynote speeches of Cani Fernández, President of the Spanish Competition Authority, and Andreas Schwab, representative of the European Parliament. After its publication by European Commission, the DMA proposal will be debated by the Council and the European Parliament in the course of 2021.
The event was organised under the umbrella framework of the Technological Change and Society research group cluster, as a first-time joint venture between the Florence Competition Programme (FCP) and the EU Competition Law and Policy Workshop.