Article: The Digital Markets Act and the Whack-A-Mole Challenge

Abstract

This article addresses the implementation of the Digital Market Act’s rules on anti-circumvention. An effects-based approach is presented and a three-step methodology is proposed to identify whether a certain practice should be conceptualized as circumventing an obligation. This approach is applied to several practices suspected of circumventing the ban on parity clauses and an analysis is carried out to establish how the results fit into the Digital Market Act’s concept and instruments for avoiding circumvention. Moreover, the role that the anti-circumvention rules may play in safeguarding the effectiveness of the restrictions on tying and self-preferencing in ranking are elaborated on, thus illustrating how they may operate to future-proof the Digital Markets Act but also where their limitations lie. Digital Markets Act, anti-circumvention, antitrust law, price parity clauses, bundling, self-preferencing