Introduction and Synopsis

Abstract

Considering the emerging consensus that traditional antitrust enforcement tools may not be fully successful in addressing concerns raised by the development of the digital economy, key stakeholders across the world are making great efforts to address the issue. In particular, the legislative initiatives of the European Union (EU) have been prominent in this area. The United States has belatedly shown signs that there are concerns about concentrated economic power in digital markets and antitrust is being portrayed as an effective means to address the adverse consequences on competition. In China, regulators have recently expanded their remit on competition enforcement in digital markets. The strengthening of regulatory actions against digital platforms has also echoed across the globe, including in jurisdictions such as Australia and Brazil. Yet, even if all these efforts are remarkable, it is still yet unclear whether the variety of the proposed interventions would tackle the competition enforcement challenges posed by digital platforms and whether there is disparity of enforcement approaches that creates its own challenges for the companies involved in the digital sector. In the EU, after months of stakeholder consultations and internal debate, in December 2020 the European Commission (EC) presented the Digital Markets Act (DMA), which is aimed to control a range of anticompetitive conducts of large online platforms (LoPs) and to ensure the expansion of European platforms in fair and contestable markets. In other words, the DMA is intended to create a level playing field on which European tech firms can compete against America’s tech giants. Recently, on July 18, 2022, the DMA was approved by the Council of the EU and is expected to inspire regulatory intervention in other jurisdictions. Hence, the DMA constitutes an ex ante regulatory regime that places the EC as the digital regulator and includes an exhaustive list of rigid obligations and prohibitions that need to be observed by designated gatekeepers. A company is presumed to be a gatekeeper if it meets the qualitative and quantitative criteria set out in the provision. According to Margrethe Vestager, the Commissioner for Competition, without these rules “others will not get room to grow.”1 Perhaps, but it may also happen that firms would feel discouraged to expand to the point where they may be subject to the DMA. Paradoxically, an instrument that has been created with the intention of spurring growth and innovation could lead to having an adverse impact on