I. Intro­duction

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Digital trans­for­mation and the emergence of digital business models have brought about signi­ficant changes to markets – offline and online. While digital services have paved the way for innovation and important benefits to consumers, key features of digital markets have also enabled companies rapidly to obtain strong market positions across a variety of services and to create proprietary digital ecosystems. Today, a small number of global companies largely controls the flow of data around the globe, which helps them to capture a large share of the value generated in the digital sector via their platforms.¹

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The debate about how to ensure compe­tition in digital markets and to guarantee “fair” market outcomes is a global one. Juris­dic­tions around the world are grappling with how to handle digital markets – including the complex issue of whether and how to regulate such markets without stifling innovation and overall consumer welfare.²

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On 15 December 2020, the European Commission (“Commission”) published its Digital Services Act³ package and proposed two legis­lative acts, the Digital Markets Act (“DMA”)⁴ and the Digital Services Act (“DSA”).⁵ By unveiling these legis­lative proposals, the Commission under­pinned its claim to be a pioneer in the regulation of digital platforms. The package is a major corner­stone in building Europe’s digital future and strategy and consti­tutes the first major overhaul of the EU law regime in the digital sphere for two decades.

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In combi­nation, the proposed legis­lation heralds a new approach towards an ex-ante regulation of the digital realm in the EU. The legis­lation will create an inter­ven­tionist, sector-specific regulatory regime and is likely to require signi­ficant changes to the business practices of major digital players. In parti­cular, the DMA raises new challenges and questions for businesses, including as to its scope, purpose, impact and inter­action with existing EU and national legis­lation. Not surpri­singly given the ambitious scope and intended regulatory effects of the DMA, the proposal is subject to a fierce debate in political and legal circles.

II. Rationale of the DMA

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The DMA seeks to ensure fair economic outcomes and contes­table markets (Art. 1 No. 1 DMA).⁶ The proposal follows from many debates, working papers, an impact assessment carried out by the Commission and further studies on whether existing (compe­tition) law is fit for the digital age.⁷ Ultimately, the Commission concluded that it is appro­priate to introduce a set of strict ex-ante obliga­tions for so-called gatekeepers in the digital sector. The main reasons given for this ex ante approach are the following:

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