The Digital Markets Act

Peer-reviewed articles

Published articles

2024

The Supporting and Complementary Role of National Competent Authorities in Enforcing the DMA: All Enforcement Systems Go. Dutch Journal of Competition Law and Practice (Mededingingsrecht in de Praktikj), Vol. 2024/3, pp. 41-49.

The European Commission remains the sole enforcer of the Digital Markets Act but DG COMP is not alone in monitoring the regulation’s enforcement. National competition authorities (NCAs) and national courts will also be called to intervene in interpreting and applying the DMA’s provisions both in the public and private enforcement spheres. The article addresses the perspective of public enforcement, with a special focus on the cooperation and coordination principles that NCAs and national courts must abide by when interpreting the DMA set out under Articles 37 to 39 DMA. Moreover, the article takes stock of the different legislative developments that the Member States have adopted to confer powers on their NCAs to assume the supporting role of monitoring enforcement within the regulatory framework.


2023

The Circularity of Consent in the DMA: A Close Look into the Prejudiced Substance of Articles 5(2) and 6(10). Rivista Concorrenza e Mercato, Vol. 29/2022: Numero Speciale Concorrenza e Regolazione nei Mercati Digitali, pp. 191-212.

The Digital Markets Act captures gatekeeper power to address the lack of contestability and unfairness in digital markets. Its provisions imbricate into the regulatory landscape bearing in mind complementarity regarding other acts of Union law which also apply to certain aspects of the digital arena, namely the General Data Protection Regulation or the e-Privacy Directive.

The DMA does not override the provisions of these rules, although the practical implementation of its do’s and don’ts will question the value of non-economic interests which have been at the forefront of EU policy at large in their interaction with digital business models. In the particular case of the intersection between privacy and antitrust, Articles 5(2) and 6(10) of the DMA stand out as the two key areas where the interpretation of the GDPR will play a major role, namely through the force of consent, legal basis, and user choice. Although both provisions impose negative and positive obligations on personal data, their role is tempered when the user is presented with a specific choice and grants consent to the gatekeeper to combine and use personal data.

The paper analyses the potential implications of both provisions in light of the existence of power and information asymmetries between gatekeepers and end users. The paper navigates the cases that have inspired the framework of the DMA in this regard, from an antitrust and data protection perspective. The paper identifies that the interaction between the concept of consent and the massive collection and processing of personal data is designed according to a circular concept. The DMA builds up its provisions on Articles 5 and 6 on the same premise. The paper identifies the circularity which the DMA’s enforcers might incur when enforcing the regulatory instrument.


The DMA’s Ithaca: Contestable and Fair Markets. World Competition, Vol. 46, Issue 4, pp. 429 – 458.

The Digital Markets Act (DMA) obligations will start to apply to the designated gatekeepers starting in March 2024. Its main objectives are set out in Article 1(1) as those of ensuring contestable and fair markets in the digital sector across the Union where gatekeepers are present, to the benefit of both business and end-users. However, the definition and the interpretation the Commission will provide for both objectives are far from clear. In turn, this makes futureproofing the DMA a more difficult task for gatekeepers, regulators and third parties, insofar as some obligations are construed upon one of the two stated goals or on both of them.

The paper addresses the problem by narrowing the gap between those concepts in their relationship with economic theorems with their regulatory implications in their current form in the DMA. Later on, it observes the manifestations of contestability and fairness throughout the text and the regulation’s legislative process accounting for their four distinct expressions: objectives, indicators, and the legal bases for triggering the supplementary and precautionary measures of the instrument. 


Rocking the Contestability and Fairness Foundations: Multi-Level Governance and Trust Relations for Futureproofing the DMA’s Effectiveness. European Yearbook of International Economic Law, Chapter 104, pp. 1-35.

The Digital Markets Act (DMA) is aimed at setting out harmonised rules to ensure contestable and fair markets in the digital arena across the Union. The regulatory instrument is, thus, divided into two major objectives: ensuring that the impending fragmentation of the regulation of digital markets does not reproduce any further across the Member States as well as the pursuit of the ethereal concepts of contestability and fairness. Under the regulatory and economic lenses, contestability and fairness are not workable concepts to be incorporated directly by the European Commission in its enforcement of the DMA. As a response to that, the chapter proposes a set of metrics, considering different perspectives born into these concepts, to guide the Commission’s application of the regulatory framework and the Court of Justice’s futureproofing of its effectiveness. Within this same spirit, the chapter refers contestability and fairness back to the DMA’s broader legitimacy through the concepts of multi-level governance and the enhancement of trust between the intervening agents of the regulation.


La senda del efecto Bruselas en la DMA en Latinoamérica. Latin American Law Review, Vol. 11, pp. 93-110 (only available in Spanish).

En este artículo se compara el impacto de la Ley de Mercados Digitales (DMA) a partir de los efectos inadvertidos que el Reglamento General de Protección de Datos (RGPD) proyectó en la normativa latinoamericana. Primero, se analiza de qué forma se articula el efecto Bruselas de forma generalizada. Luego, se consideran los efectos extraterritoriales causados por la normativa europea en materia de protección de datos en Latinoamérica tanto por vía normativa como jurisprudencial. Finalmente, se señalan los futuros efectos de la DMA desde la perspectiva de la designación de los llamados guardianes de acceso, la imposición de obligaciones y la duplicación de procedimientos sancionadores, como resultado de los efectos reflejos causados por el efecto Bruselas.


An Inverse Analysis of the Digital Markets Act: Applying the Ne Bis in Idem Principle to Enforcement (2023) European Competition Journal, Vol. 19, Issue 1, pp. 86-115.

On 18 July 2022, the Council gave its final approval of the Digital Market Act’s final text. Notwithstanding the amendments following the initial proposal published by the European Commission on 15 December 2020, the main objectives of the DMA have remained untouched and separate from the objectives pursued by competition rules.

In the interim, the Court of Justice of the European Union (CJEU) issued its preliminary rulings on the bpost and Nordzucker cases, with particularly relevant consequences concerning the application of the double jeopardy principle. The potential remedies and obligations imposed on the main digital platforms both under Articles 5 to 7 of the DMA and under competition law rules will overlap and create a risk of incoherent enforcement, especially on the side of the European Commission. Against this background, the paper strives to draw out the narrow enforcement gap left for competition authorities. In addition, the paper highlights a number of alternatives open to competition authorities when enforcing competition law rules on digital markets, namely the segmentation of its enforcement efforts depending on the type of service concerned in each case.

Working papers

The Decentralisation of the DMA's System of Enforcement 

The harmonisation of the internal market underlies most of the EU acquis. The Digital Markets Act (DMA) is no stranger to this phenomenon. It pursues the harmonisation of digital markets across the Union on the basis of the concepts of contestability and fairness. The regulatory instrument is construed upon a quasi-centralised system of enforcement with the European Commission as its sole enforcer, whereas national competition authorities (NCAs) play a secondary and supporting role in enforcement. Harmonisation is mainly secured through the centralisation of powers upon the European Commission. In parallel, the DMA remains complementary to the application of Articles 101 and 102 TFEU, of national competition law regimes and of merger control. The regulation's complementarity compels Member States not to adopt legislation aimed at addressing the same targets of regulation based on similar regulatory objectives. The paper terms this as the external aspect of the DMA's fragmentation objective.

As opposed to this external tenet, the paper uncovers the potential risks arising at the national level as a consequence of the NCA's intervention in the DMA's enforcement. Despite the regulation does not require national transposition to be applicable in the Member States, several of them have adopted legislative developments detailing what authorities are in charge of enforcement and how they should apply their powers in line with the DMA's spirit. The paper traces the legislative developments at the national level to reveal the deviations the DMA's enforcement may suffer at the national level, by undermining its effective enforcement and the current configuration of its system of enforcement. 

Vertical Interoperability in Mobile Ecosystems: Will the DMA Deliver (What Competition Law Could Not)? DEEP-IN Research Paper. Co-authored with Giuseppe Colangelo.

To address concerns about the competitive dynamics of digital markets, the promotion of interoperability has been often pointed out as a fundamental component of policy reform agendas. In the case of mobile ecosystems, the smooth and seamless availability of interoperability features is crucial as third-party devices and apps would be otherwise unable to effectively work and participate within the ecosystems. However, access to application programming interfaces (APIs) may be restricted due to privacy, security, or technical constraints. Further, an ecosystem orchestrator may misuse its rule-setting role to pursue anticompetitive goals by restricting or degrading interoperability for third-party services and devices. The paper aims at investigating whether and how effective interoperability could be achieved through the enforcement of competition rules or whether it would require regulatory interventions, such as those envisaged in the European Digital Markets Act (DMA). 

The Requisite Legal Standard of the Digital Markets Act's Designation Process

Away from the effects-based approach of the thresholds set out in EU competition law, the Digital Markets Act seeks to introduce renewed requisite legal standards distinct from traditional and probabilistic standards of proof. In principle, this same idea should characterise the European Commission’s first enforcement actions.

In challenging this idea on its own merits, the paper thoroughly considers the legal standards that the European Commission streamlined in the first set of designation decisions that it issued. To do that, the paper identifies two of the most substantial exercises performed by the European Commission: the appraisal of the delineation of core platform services and the consideration of the undertakings’ rebuttal of the presumption of a gatekeeper position deriving from the application of the quantitative thresholds. The paper demonstrates the European Commission’s understanding of the DMA’s plasticity against the backdrop of the exercise of its discretionary powers. 

Collective Actions and the DMA: A Bird Without Wings (co-authored with Lena Hornkohl).

This paper comprehensively analyses collective actions for DMA violations. The paper first builds on the preliminary objectives for collective actions for DMA violations, including the overall role of private actors in DMA enforcement and the deficits of individual private enforcement. It will assess why the DMA is particularly prone to collective enforcement. Second, the paper assesses the legal landscape of the DMA for collective actions. On the one hand, the paper focuses on collective actions for consumers (in their capacity as end users) under the Representative Actions Directive and its transposal in the EU Member States. On the other hand, the paper will elaborate on other means of collective action, with a focus on collective actions for SMEs and other groups of business users under the DMA, including specific instruments, such as the UCP Directive, the P2B Regulation, or the GDPR, or options based on the effet utile principle, such as the assignment model. 


Chapters

Forthcoming: pending publication

If I Could Have, I Would Have: Data Governance and Trust in the Implementation of Article 5(2) of the DMA. Conference proceedings, Springer, Law, Governance and Technology Series.

The Digital Markets Act (DMA) is aimed at addressing contestability and fairness in the digital arena. The regulatory instrument encompasses the European Union’s largest digital strategies in passing substantive legislation to ensure the right of every citizen to access a trustworthy digital environment[2], as established by the European Declaration on Digital Rights and Principles for the Digital Decade.

Trust as a standalone notion derived from effective enforcement and regulation has been analysed by the organization and management, sociology, or social capital literature. Economic exchanges have also been positively correlated with the existence of trust. Aside from these all-encompassing notions, trust remains widely understated to measure the effectiveness of regulation.

The chapter identifies this gap in the literature and ties it in with the measurement of the DMA’s effective enforcement. To do that, the chapter considers the DMA’s impacts on end user trust in relation to its data-related provisions.


Essays

2023

The Steering of End-User Behaviour in the Digital Markets Act: The Intrinsic Value of Trust for Governance. North East Law Review, Special Issue: Law and Emerging Technologies, Vol. 9, Issue 2, pp. 8-18.

The Digital Markets Act (DMA) sets out the background and regulations applicable to the future designated gatekeepers who cater for core platform services. These gatekeepers, in the Commission’s own words, have put digital markets at large and their relations with businesses and end users in the digital environment in jeopardy due to the presence of a lack of contestability and fairness. Although the former scenario has not been contested by scholars or practitioners due to past experience in the antitrust framework, the latter has sparked a myriad of reactions, stemming from the welcoming of the regulatory instrument to the outright dismissal of the DMA’s founding objectives. 

However, little attention has been granted to the benchmark against which the DMA’s effectiveness should be assessed. It is unclear whether the regulatory instrument will have attained its objective once digital markets remain contestable and fair or once digital markets regain their competitive structure and conditions. In this same sense, the scholarly debate revolves around the DMA’s prospects, whether they are purely deterministic -once a given competitive structure is restored in the digital arena, the provisions of the DMA do not apply to gatekeepers because their core platform services will subsequently fall out of the scope of the instrument- or stochastic in nature -the DMA will probably un-tip digital markets catering for core platform services with uncertain results-. 

This latter possibility seems the closer one to the DMA’s intentions, insofar as no material yardstick can be found throughout the DMA’s text that would point towards a deterministic objective, i.e., the presence of x market players in the provision of core platform services y or the possibility of conforming consumer choice into n choices from different economic operators. By this token, the regulatory instrument’s purpose, in practice, is more difficult to grasp, especially when it comes to measuring its future effectiveness. However, this line of reasoning does not automatically imply that the DMA’s goal is unattainable in terms of policy. Similar to other regulatory instruments, the DMA steers the behaviour of both its addressees (gatekeepers) and citizens at large (in economic terms, they would be identified with the role of end-users). This article sets out the framework against which this steering process should be assessed in terms of its related consequences on the end-users, drawing some inspiration from the concepts of governance and trust. Although the DMA is yet in its early days when it comes to enforcement, the article sets out the adequate benchmark to measure the success of the application of its provisions, in line with the EU’s desired broader policy objectives set out in its EU Digital Strategy. 


Podcasts

Regulating Giants: The DMA's Impact on Big Tech (acting as interviewee to host Francesco Vinci). ESCP International Politics Society, May 2024.

Conversations in Competition - Everything you need to know about the 'Digital Markets Act' in 2024 (acting as interviewee to host Ronan Scalan). AC Audio, April 2024.

Habemus Gatekeepers - The EC Has Now Adopted Its First DMA Designation Decisions (acting as a host in conversation with Assimakis Komninos). International Law Talk Podcast, September 2023. 


Publications in blogs

2024

The European Commission’s Enforcement of the Digital Markets Act: Non-Compliance Procedures and a (Revenant) Deterrence-Based Enforcement Strategy. EULawLive Weekend Edition nº 196, July 2024.

The DMA’s Little Piece of Heaven: The General Court Dismisses ByteDance’s Appeal Against its Designation Decision (Case T-1077/23, ByteDance Ltd v. European Commission). Kluwer Competition Law Blog, July 2024.

The Japanese Smartphone Act: Teaching Competition Law New Tricks (co-authored with Sangyun Lee).  Kluwer Competition Law Blog, July 2024.

The Decentralisation of the DMA’s Enforcement System. Kluwer Competition Law Blog, June 2024.

A Game of Hide-and-Seek: The European Commission Does Not Designate Microsoft Ads, Bing and Edge and Apple’s iMessage as DMA Gatekeepers. Kluwer Competition Law Blog, May 2024.

The European Commission's Stick-Without-A-Carrot DMA Enforcement: Five Non-Compliance Procedures to Capture Blatant Infringements. Kluwer Competition Law Blog, May 2024.

El efecto de disuasión o cómo acabar con el principio de proporcionalidad. CentroCompetencia, May 2024.

Los efectos extraterritoriales del Reglamento de Mercados Digitales en Latinoamérica. CentroCompetencia, April 2024.

The DMA on Steroids: The Hungarian Government's Approach to Undertakings of Fundamental Importance. Kluwer Competition Law Blog, April 2024.

Microsoft's DMA Compliance Workshop - The Power of No: The (Odd) New Kid on the Block. Kluwer Competition Law Blog, March 2024.

ByteDance's DMA Compliance Workshop - The Power of No: A Walk in the Park. Kluwer Competition Law Blog, March 2024.

Alphabet’s DMA Compliance Workshop – The Power of No: A Gargantuan Task Ahead and a Dual Role in Balancing Interests. Kluwer Competition Law Blog, March 2024.

Amazon’s DMA Compliance Workshop – The Power of No: Customer-Obsessed Pathos. Kluwer Competition Law Blog, March 2024.

Meta’s DMA Compliance Workshop – The Power of No: Making Perfectly Rational Choices. Kluwer Competition Law Blog, March 2024.

Apple's DMA Compliance Workshop - The Power of No: Breaking Apart the Bundle? Kluwer Competition Law Blog, March 2024.

Full (Regulatory) Steam Ahead: Gatekeepers Issue the First Wave of DMA Compliance Reports. Kluwer Competition Law Blog, March 2024.

La funcionalidad App Tracking Transparency no decade: las propuestas de Apple para afrontar la aplicación del Reglamento de Mercados Digitales. CentroCompetencia Chile, February 2024.

The General Court Dismisses TikTok's Request for Interim Measures Against its DMA Designation Decision: Better to be Safe than Sorry (Case T-1077/23 R). Kluwer Competition Law Blog, February 2024.

The Progressive Expansion of the DMA’s Terms and Compliance: The Template on the Audited Description of Consumer Profiling under Article 15 DMA. Kluwer Competition Law Blog, February 2024. 

Generative AI and the Digital Markets Act on the Rocks. Kluwer Competition Law Blog, February 2024.

Ecosystem Orchestrator, No More? Apple's Proposed Changes to its Distributions of Apps and Overall Architecture. Kluwer Competition Law Blog, January 2024.

The Requisite Legal Standard of the DMA’s Designation Process: The European Commission’s Discretionary Powers Explained. Kluwer Competition Law Blog, January 2024.

The Digital Markets Act Is More Intricate Than Regulators and Detractors Give It Credit For. Promarket, January 2024.

2023

TikTok Raises the Ante Before the General Court: Interim Measures Filed Against its Gatekeeper Designation under the DMA. Kluwer Competition Law Blog, December 2023

Rebuttal and Designation: Walking the Fine Line of Article 3(5) DMA. EU Law Live's Competition Corner: Chillin' Symposia - Digital Markets Act, November 2023.

The EU Commission Closes the Window to Contest Designated Gatekeeper Status and a Major Technology Company Appeals the Decision Before the General Court (Apple). e-Competitions November 2023 – II, Art. Nº11562, Concurrences, November 2023.

Collective Actions and the DMA: A Bird Without Wings. Kluwer Competition Law Blog, November 2023.


Apple Seeks to Challenge its Designation Under the DMA: Part and Parcel of its Closed Ecosystem. Kluwer Competition Law Blog, November 2023.


La regulación de los ecosistemas digitales frente a las relaciones complejas de los operadores económicos. CentroCompetencia Chile, October 2023.


A Three-Ring Template: How to Get Away with Exemption, Suspension and Specification under the DMA. Kluwer Competition Law Blog, October 2023.


Two-Speed Merger Control Regime and the Digital Markets Act: Article 14 of the DMA in Catching Them All. EU Law Live's Competition Corner: Chillin' Symposia - Recent Developments in Merger Control Enforcement, September 2023.


The EU Commission Issues its Preliminary View on the DMA's Designation Process. e-Competitions Preview (Art. Nº 114039) - Concurrences, September 2023.


22 Core Platform Services For 6 Gatekeepers: The European Commission Issues its Preliminary View on the DMA's Designation Process. Kluwer Competition Law Blog, September 2023.


The Complementarity Between the DMA, the DSA and the GDPR: The European Commission’s Template Relating to the Audited Description of Consumer Profiling Techniques. Kluwer Competition Law Blog, August 2023.


Op-Ed: “The Court of Justice, Threads and the DMA: Meta’s Processing of Personal Data in the EU and Abroad”.  EU Law Live, July 2023.


The European Commission’s Template Relating to the Obligation to Inform about (Gatekeeper) Concentrations: A Blessing in Disguise? Kluwer Competition Law Blog, July 2023.


The European Commission’s (Draft) Template for DMA Compliance Reports: Sailing Through Rough Seas. Kluwer Competition Law Blog, June 2023.


COMP&IP Insight: Digital Markets Act, esp. focus, Article 5(2) DMA. University of Maastricht (COMIPinDigitMarkts’ Insight), May 2023.


Fourth Workshop on the DMA – This is not a Blueprint for the DMA: The Unknown Knowns of Data-Reliant Business Models. Kluwer Competition Law Blog, May 2023.


The First Implementing Regulation of the DMA: 2 May 2023, Designation Day. Kluwer Competition Law Blog, April 2023.


Another Tool for the Bundeskartellamt’s Box: Sections 32(f) and 32(g) of the Draft GWB on Sector Inquiries and the DMA’s Implementation. Kluwer Competition Law Blog, April 2023.


The DMA’s Governance: The Apple Never Falls Far from the Tree. Kluwer Competition Law Blog, April 2023.


The NCAs Piggyback on to the European Commission: Hungary and The Netherlands Trigger the Race for Monitoring National DMA Compliance. Kluwer Competition Law Blog, March 2023.


Third Workshop on the DMA – This is not a Blueprint for the DMA: The Proof of the App-Store Pudding is in the Eating. Kluwer Competition Law Blog, March 2023.


Second Workshop on the DMA – This is not a Blueprint for the DMA: Reconciling the Technical with the Legal. Kluwer Competition Law Blog, March 2023.


The (First) Draft of the DMA’s (First) Implementing Regulation from Scratch: Succint Rights of Defence v. Expediency. Kluwer Competition Law Blog, January 2023.


2022

First Workshop on the DMA – This is not a Blueprint for the DMA: No Query is Similar to the Next. Kluwer Competition Law Blog, December 2022.


An Inverse Analysis of the DMA: Amazon’s Proposed Commitments to the European Commission. Kluwer Competition Law Blog, July 2022.

Data protection regulation v. competition

Peer-reviewed articles

Published articles

2022

Trading Off the Orchard for an Apple: the iOS 14.5 Privacy Update (2022) Journal of European Competition Law & Practice, Vol. 3, No. 3, pp. 200-216 (awarded position as a finalist in Rubén Perea Award).

On 22 June 2020, Apple announced the iOS 14.5 update. According to the firm, its aim was to protect its users’ personal data. Within the Apple ecosystem, we find multiple layers and sides of customers that interact amongst themselves. On one side we find users and on the other, we find app developers, publishers, and advertisers. Apple, on behalf of its condition as an ecosystem holder, brings both sides of the platform together. It creates net value for them by putting them together, insofar as they have interdependent demand functions. Users mainly exploit the device’s features through their interaction with apps downloaded on the App Store. These apps are developed by third-party app developers4 and by Apple through its own proprietary services. App developers, publishers, and advertisers generate their revenue mainly through advertising. The app publisher sells the space to the advertiser to display its ads. Since apps in the App Store are rarely paid, most third-party apps rely on the free ad-based business model, especially small and new app developers.


Derecho de la competencia vs. Privacidad: ¿el gran dilema en los nuevos mercados digitales? (2022) Cuadernos de Derecho Transnacional, Vol. 14, No. I, pp. 169-195.

La digitalización de los modelos empresariales existentes y la nueva forma de hacer negocios de las plataformas digitales plantean nuevos retos tanto en la actuación de las empresas en el mercado como en la vida de los consumidores y usuarios. Las empresas digitales dominantes son todas estadounidenses (Google, Facebook, Amazon y Apple), y sus prácticas parece que lesionan la libre competencia en los mercados. Este fenómeno plantea el reto de cómo afrontar la regulación del Big Data, al que hasta ahora no se ha dado una respuesta del todo satisfactoria. En este trabajo se analiza también el contenido constitucional de la privacidad y su importancia en el marco de los análisis de competencia realizados a ambos lados del Atlántico.

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The digitisation of existing business models and the new way of doing business of digital platforms pose new challenges both to the performance of companies in the market and to the lives of consumers and users. The dominant digital companies are all American (Google, Facebook, Amazon, and Apple), and their practices appear to harm free competition in the markets. This phenomenon raises the challenge of how to deal with the regulation of Big Data, to which so far there has not been an entirely satisfactory response. This paper also analyses the constitutional content of privacy and its importance in the framework of competition analyses carried out on both sides of the Atlantic.


Working papers


An Open Door but a Closed Window (Case C-252/21), Meta Platforms v. Bundeskartellamt. European Competition and Regulatory Law Review.


Case notes

Published

2024

The Court of Justice Kicks Around the Dichotomy Between Data Protection and Competition Law: Case Comment on the Preliminary Ruling in Case C-252/21 Meta Platforms v. Bundeskartellamt (2024) Yearbook of Antitrust and Regulatory Studies, Vol. 16, No. 28, pp.131-152.

Data protection and competition law have been at a crossroads in terms of their integration. Antitrust authorities as well as data protection supervisory authorities have grappled with the question of whether both fields of law should be combined into the same analysis. The German competition authority was the first to fuse them in its landmark case against Facebook’s data processing terms and conditions.

The exploitative theory of harm put forward by the Bundeskartellamt is the first of its kind to integrate data protection considerations into the antitrust analysis, namely by drawing a line between an infringement with the General Data Protection Regulation (GDPR) and anti-competitive harm. This case comment outlines its key developments at the national level to then address the questions that have been posed before the Court of Justice of the European Union in Case C-252/21 concerning the interpretation of the GDPR in the context of competition law.


2023

The Dispute Resolution Mechanism at Work in the Irish Data Protection Commission’s Cases Against Facebook and Instagram: One Step Forward and Two Steps Back. EU Law Live Weekend Edition nº129, February 2023.

The European Data Protection Board (EDPB) issued in December its Binding Decisions (the Binding Decisions) on Meta’s processing terms, namely on Facebook and Instagram’s processing of personal data for behavioural advertising, following the Irish Data Protection Commission’s case brought by complainant noyb before the Belgian and Austrian data protection authorities.

Although the complaint against Meta was first filed in these Member States, the Irish Data Protection Commission (IDPC) assumed the role of the twin cases’ lead supervisory authority, given that the main establishment of the controller (Meta Platforms Ireland Limited, in this regard) corresponded with the Irish Republic. This same reasoning followed in the past when the Irish data protection authority assumed the lead in the cases against WhatsApp’s and Twitter’s processing terms. Ironically, those cases are also built on the General Data Protection Regulation’s (GDPR) consistency mechanism through a binding decision of the EDPB. 


Chapters in edited books

2022

Las nuevas políticas de privacidad de las Big Tech. Reflexiones jurídicas sobre el gobierno digital y la Administración Pública del Estado Peruano, pp. 87-97 (publication only available in Spanish).

En 2020, tanto Apple como Google propusieron cambios sustanciales en sus políticas de privacidad. A la luz de estas propuestas, analizaremos sus implicancias en el Derecho de la Competencia, con especial atanción a la integración de las consideraciones de la privacidad en el análisis de su impacto.


Big Data, privacidad y mercados digitales: los nuevos desafíos de la regulación en la UE: Análisis desde una perspectiva económica, regulatoria y antitrust. Revista práctica de Derecho CEFLegal (awarded position as a finalist in the category of Public Law) (publication only available in Spanish).

En fechas recientes el Parlamento Europeo ha emitido un informe favorable al proyecto de la Comisión Europea sobre la estrategia europea de datos. Este nuevo activo estratégico se ha convertido en un elemento esencial, no solo para la actuación de las empresas en el mercado, sino en la vida de los ciudadanos y su forma de relacionarse. En los últimos 15 años los mercados han experimentado vertiginosos cambios derivados, entre otras cosas, de la digitalización de nuevos modelos empresariales y formas de hacer negocio. Pese a que la Unión Europea aspira a la creación de un verdadero mercado único digital, lo cierto es que en la actualidad las empresas que dominan el panorama (Google, Facebook, Amazon y Apple) son todas estadounidenses. La ingente acumulación de datos personales que dichas plataformas digitales acumulan y aprovechan comercialmente –el big data– plantea indudables riesgos para la protección del derecho fundamental a la protección de los datos personales de los usuarios. En este trabajo se analiza de forma crítica el enfoque comunitario con el que se afronta este escenario, al hilo de operaciones de concentración empresarial o actuaciones de las autoridades de competencia contra dichos gigantes tecnológicos. Se prestará especial atención al contenido constitucional de este derecho, así como al posible solapamiento entre el derecho regulatorio y el administrativo sancionador, en concreto, en el ámbito del derecho de la competencia. 


Publications in blogs

2024

Op-Ed: “Down Memory Lane: ChatGPT’s Front-End Processing of Personal Data”. EU Law Live, February 2024.

Op-Ed: “Wild Card Developments in the Competitive Dynamics of Data Processing”. EU Law Live, January 2024.

2023

El poder de la fragmentación: Modelos de negocio basados en la integración de servicios. CentroCompetencia Chile, November 2023.

Op-Ed: “The Ambivalence of Rejecting and Granting Consent: Ad-F(r)ee Digital Services. EU Law Live, October 2023.

A Threshold Can Take You Further Than a Statement - The Court of Justice's Ruling in Meta Platforms and Others (Case C-252/21). Diritti Comparati, September 2023.

Op-Ed: “Try again until you get it right: Meta finally accepts to legitimise its processing of personal data for behavioural advertising based on consent”. EU Law Live, August 2023.

Op-Ed: “The Court of Justice, Threads and the DMA: Meta’s Processing of Personal Data in the EU and Abroad.  EU Law Live, July 2023.

Getting Clued Into the Interplay Between Data Protection Regulation and Competition Law in Case C-252/21 Meta Platforms and Others (Conditions Générales d’Utilisation d’un Réseau Social). Kluwer Competition Law Blog, July 2023.

Op-Ed: “The Greatest Snowball of All (Data Protection) Times: The Irish Data Protection Commission Impinges EU-US Data Transfer At Large”. EU Law Live, June 2023.

Op-Ed: “Throwing A Tub to the Whale: Data Protection in the Video Gaming Sector or a Missed Opportunity in the Scrutiny of Microsoft/Activision Blizzard”. EU Law Live, May 2023.


2022

Processing of Personal Data Inside Out: the Opinion of AG Rantos in C-252/21 (Meta Platforms v. Bundeskartellamt). Kluwer Competition Law Blog, September 2022.

Digital platforms from the antitrust perspective

Peer-reviewed articles

Published articles

2022

A Fortnite and Odd Days: The Console Wars (2022) Market and Competition Law Review, Vol. 6, No. 2, pp. 51-87.

The videogames industry is called to play a key role in the development and design of the future digital arena, ranging from the up-and-coming metaverse to the digital platforms’ future innovation. At this point, projections show that video gaming can surpass $220 billion in revenue in 2024, whereas the entertainment industry’s revenues are rapidly decreasing. Still, the video gaming sector has gone largely unnoticed by competition law authorities. A few skewed and inconsistent decisions have tried to set out the relevant product and geographical markets. However, the subsequent developments over the years do not show a linear sequence of events. Instead, several breakthroughs such as introducing cloud gaming and subscription video gaming services have contributed to blurring the lines of market delineation altogether. The European Commission’s approach through merger control has been instrumental to provide some guidance on the subject, although its Vivendi/Activision, Activision Blizzard/King and Microsoft/ZeniMax have not paid attention to the special characteristics of video gaming, namely differences between user experience when playing different game genres and when playing across platforms. Given the foregoing, we will first address the videogame market’s economic conditions and particularities overlooked by competition authorities when performing their analysis, namely in the preliminary stage of market definition. Based on these findings, the article builds on the calls for intervention with regard to the Microsoft/Activision Blizzard4 operation and instrumentalises it as a yardstick to measure the wider impact of acquisitions within the video gaming market. 

The Facebook/GIPHY divestiture: The (new) first of many? (2022) Journal of Law, Market & Innovation, Vol. 1 No. 22, pp. 94-122.

The decision of the Competition and Markets Authority ordering Facebook’s divestiture of GIPHY stands as a landmark to expedite ongoing worldwide merger control reform, namely through the imposition of structural remedies upon Big Tech. The theories of harm considered in Facebook/GIPHY are not particularly novel: the competition authority puts forward the loss of competition, as well as the loss of innovation theories of harm, on the basis of the dynamic characteristics of digital markets. However, the low threshold placed by the authority to find a substantial lessening of competition has been decisive towards the order’s final outcome.


The decision has made its comeback on the past experience with Big Tech by placing the spotlight on small-scale but significant takeovers, in the same light of the Guidance issued by the European Commission on the interpretation of Article 22 of Merger Regulation 139/2004. Meanwhile, Facebook’s acquisitions of WhatsApp and Instagram are being contested by the Federal Trade Commission before the United States District Court for the District of Columbia. As opposed to legal certainty, time and scope have not been an obstacle to reverting the deal. The acquisition was signed off in May 2020 for $400 million, and the CMA’s merger control proceedings did not start until June 2020. Although there was no overlap in relevant commercial activity within the UK, the competition authority’s decision is called to have universal repercussions, notwithstanding the foregoing Australian Competition and Consumer Commission’s investigation of the same acquisition as well as the outcome of the Austrian Federal Competition Authority’s proceedings. The steadiness of the Facebook/GIPHY operation is at stake and a conflicting decision can still jeopardise the CMA’s ruling on a global scale, deeming it a symbolic decision.


The order to revert the acquisition came as a consequence of the fact that the CMA considered Facebook’s proposed behavioural remedies as insufficient, notwithstanding some of them were close to the interoperability mandates set out under the DMA, namely, to maintain open access to GIPHY’s library and database to existing API partners. Similar commitments were offered by the merging parties on the Google/Fitbit merger scrutinised by the European Commission and were accepted. The ambivalence on the results to prevent Google from degrading interoperability with Android via API is still in liege and the CMA has chosen to reject behavioural remedies almost by default.


The paper will address the aftermath of the CMA’s Facebook/GIPHY decision in light of the economic analysis performed around dynamic digital markets. To this aim, we will analyse: i) the existing overlaps on both undertakings’ activities as opposed to the CMA’s opinion that they are close substitutes at the horizontal level; ii) the strength of the ‘killing’ component of the merger, considering the differences between digital and pharma markets in relation to innovation; iii) the effectiveness of interoperability mandates within the Facebook/GIPHY merger as well as the general advantages and drawbacks associated to them in relation to the dynamic competition paradigm.


Chapters in edited books

Forthcoming: pending publication


Competition Law in the Spotlight: Governance Orchestration and Digital Regulation. Contribution to Oxford Handbook on Digital Constitutionalism. Edited by Giovanni De Gregorio, Peggy Valcke and Oreste Pollicino.

Digital constitutionalism boils down to the relocation of power across different vectors in the digital arena. Abuses of power crystallise into the functioning of complex systems of governance. Competition law captures those abuses of power via the prohibition of abuse of a dominant position which has permeated public enforcement over conduct taking place in the digital sector. In this field of law, the legal background meets economics in providing the operable framework for maintaining the competitive dynamics of digital platforms. These efforts to merge both disciplines have not come without friction since the tools at the disposal of competition authorities do not directly pursue the protection of fundamental rights and freedoms. The scales of the antitrust analysis have repeatedly turned in favour of the separation of the discipline from its constitutional outset.

Against this background, the chapter drives two critical insights into the study of digital constitutionalism. First, the chapter addresses the transformation of the application of competition law from a punitive framework primarily focused on sanctioning private undertakings to a steering instrument to curb the governance mechanisms of digital platforms. The chapter considers the concept of business ecosystems to narrow that gap and draw out its implications in relation to the constitutional scheme. Second, the chapter reviews the most salient development that the European Union’s competition policy has produced to submit the conduct of digital platforms to the rule of law: the Digital Markets Act.

2022

Capítulo VII: It’s (not) a Match: La decisión de la autoridad holandesa sobre los métodos de pago a través de In-App Purchase. Estudios de la Red Académica de Defensa de la Competencia (RADC) 2022, Thomson Reuters Aranzadi, pp. 161-181, ISBN 978-84-1124-010-9 (original publication in Spanish and English version available here).

On 24 August 2021, the Dutch competition authority found that Apple had incurred an abuse of a dominant position pursuant both to its national competition rules and article 102 TFEU, by imposing unreasonable conditions on dating app providers through its payment policies.

As opposed to the traditional approach of competition authorities, the Netherlands Authority for Consumers and Markets (ACM) decided to prohibit the conduct and prompt Apple towards compliance through the imposition of weekly periodic penalty payments. To this day, Apple has only proposed a costly solution where third-party app providers will have to carry the burden with them if they want to make alternative payments within the iOS ecosystem possible. On top of that, the remedy still charges third-party apps a 27 per cent fee instead of the 30 per cent fee charged to account for the ecosystem’s financing. The Dutch competition authority ruled out that the anticompetitive concerns were addressed by the procedures proposed by Apple and has imposed 5 million euros weekly periodic penalty payments.

By contrast to Apple’s position, the Coalition for App Fairness -integrated by the power trio Spotify, Epic Games and Match amongst others- is attempting to combat Apple’s super dominance on many fronts, ranging from judicial proceedings in the US to competition procedures at the EU level. The dimension and scope of their complaints indicate they are looking for the magic bullet that will bring Apple’s abusive role as a gatekeeper to an end.

Against this background, we will analyse the real impact of the decision with consideration to its theory of harm, given it only touches upon the payment systems within the Dutch market of dating apps. Correspondingly, we will consider Apple’s and the Coalition’s incentives to comply in light of the solutions that are being put forward worldwide by both regulatory and competition agencies. Finally, we will address whether the Dutch competition authority’s decision paves the way for realising antitrust deterrence in the digital arena. 


Publications in blogs

2024

Strike one, a por el segundo: La inteligencia artificial generativa y el análisis del poder de mercado. CentroCompetencia, June 2024.

La teoría del daño de cristal: daños no monetarios y la frustración de los consumidores. CentroCompetencia, May 2024.

La "piratería" del data scraping y la restricción de ventas pasivas. CentroCompetencia Chile, February 2024.

2023

The Appropriation of Article 5(2) DMA: Google’s Commitments under Section 19a of the German Competition Act. Kluwer Competition Law Blog, October 2023.

Data Marketplaces and the Data Governance Act: A Business Model Perspective. Kluwer Competition Law Blog, September 2023 (co-authored with Santiago Andrés Azcoitia).

Book Review – Abuse of Platform Power: Leveraging Conduct in Digital Markets under EU Competition Law and Beyond, by Friso Bostoen. Kluwer Competition Law Blog, August 2023.

A Facebook-Like Infringement Under Section 19a German Competition Act Against Google’s Data Processing Terms. Kluwer Competition Law Blog, January 2023.

2022

And Thus the Divide Manifests: The Bundeskartellamt’s First Proceedings Based on Section 19a(2) GWB (Meta/Oculus). Kluwer Competition Law Blog, November 2022.

Sitting in Two Chairs at The Same Time or The Annulment of Google’s Revenue Share Payments as an Abusive and Separate Conduct (Case T-604/18). EU Law Live’s Competition Corner: Chillin’ Symposia: The Impact of the Google Android Judgment, November 2022

The Microsoft/Activision Blizzard merger: the $69 billion deal in light of Call of Duty foreclosure. Kluwer Competition Law Blog, September 2022.

Public law

Peer-reviewed articles

Forthcoming: pending publication and successful peer-review

A Map on Cross-Jurisdiction Coordination: Applying Comity to Competition Law. Conference Proceedings of the 5th IBCI International Conference on Competition and Innovation.

Competition law is applied nationally and at a regional scale over a wide range of jurisdictions, through the enforcement of national competition authorities and of supra-national competition authorities such as the European Commission. The interplay between the application of different standards and rules across different jurisdictions has been a source of conflict over the years, where the US and the EU have normally been at crossroads regarding the application of the rules in merger control. However, digital expansion and transformation defy the boundaries of jurisdictions in favour of a fragmentary and multi-jurisdictional understanding of the application of competition rules at a larger scope than that of the national level. In this regard, the paper proposes to set out the background of this expansive motion and puts forward the consideration of the principle of international comity to introduce a multi-jurisdictional coordination matrix where competition authorities do not have to be challenged in the exercise of their sovereignty when applying idiosyncratic and differentiated antitrust standards.


The Debiasing Paradox: Facial Recognition Technology and Biometric Identification Systems in the Artificial Intelligence Act. European Yearbook of Constitutional Law, Vol. 5.

Decision-making is no longer delegated to humans, but to algorithms to produce accurate results based on neutral presumptions. Biometric identification systems build on algorithms to produce decisions on an individual via identification or verification. One of the most common uses of biometric identification systems is Facial Recognition Technology (FRT) deployed by governments and authorities for law enforcement or by private companies in a myriad of applications.

Despite its original design around the idea of accuracy, the real-life deployment of FRT (and biometric identification systems at large) has demonstrated that bias is inherently embedded into its functioning, with the potential to pose serious risks relating to direct and indirect manifestations of discrimination. Against this framework, the chapter addresses the concept of the debiasing paradox to address the disconnect between the capacity to curtail bias in machine learning before the historical and systematic biases which may prevail even if debiasing is applied as a neutral solution.

This chapter explains the functioning of FRT under the lens of the Union legislator’s approach to regulating biometric identification systems. In light of the debiasing paradox, the chapter proposes a human-rights-based approach to tackle bias in FRT both from the formal and substantive equality perspectives.


Published

2023

The Impending Task of Cross-Jurisdiction Coordination in Competition Law: Is the Lotus Still Blooming? (2023) Revue de la faculté de droit de l’Université de Liège, Vol. 2, pp. 199-222 (awarded position as a nominee at the Antitrust Writing Awards 2024 organised by Concurrences and The George Washington University in the category of Academic Articles).  

Competition authorities are gaining traction when it comes to asserting their jurisdiction when digital markets are concerned. That is to say, they are now more prone to take over cases which other jurisdictions are already analysing, with the inherent risk of the duplication of proceedings over the same case as well as of applying different remedies to the same set of facts. Even within regional networks such as the European Competition Network, avoiding fragmentation in terms of enforcement in digital markets comes as a difficult task, since the general principles and the contours of antitrust are being revisited both at the national and the EU level. 

Against this background, the paper addresses the evolution of international coordination in terms of competition law from the perspective of competition authorities in light of the qualified effects doctrine. Then, the paper navigates the concept of comity as a possible solution to facilitate international coordination in the digital arena, and its force in the realm of international coordination.


Chapters in edited books

2022


El artículo 49 de la Ley de Defensa de la Competencia: el principio de priorización y problemas persistentes en vía contenciosa. Anuario de Derecho Administrativo Sancionador 2022, Civitas, pp. 557-572, ISBN 978-84-1390-666-9 (publication only available in Spanish).

La puerta de entrada al procedimiento sancionador en materia de defensa de la competencia es su incoación. Ya en esta etapa la autoridad nacional de competencia debe decidir si, al recibir la notitia criminis por parte del denunciante, hay indicios racionales de infracción suficientes para que se produzca esta misma incoación. En el presente trabajo se analiza cuál es el papel que juega el denunciante en esta decisión, especialmente en el supuesto en el que este no posea ningún interés legítimo, a la luz de las modificaciones que ha sufrido el artículo 49 de la Ley 15/2007, de 3 de julio, de Defensa de la Competencia (“LDC” en adelante), sobre todo por lo que se refiere a la introducción del principio de priorización por virtud de la trasposición de la Directiva (UE) 2019/1 del Parlamento Europeo y del Consejo, de 11 de diciembre de 2018 (“Directiva ECN+” en adelante). 


Publications in blogs

2024

Competing European Values under the Spotlight of the AI Act (co-authored with Giovanni De Gregorio). Kluwer Competition Law Blog, May 2024.

Main Developments in Competition Law and Policy 2023 - European Union (co-authored with Lena Hornkohl). Kluwer Competition Law Blog, January 2024. 

2023

La adicción generada por Silicon Valley. CentroCompetenciaChile, December 2023.

The Debiasing Paradox: What If Algorithms Do Not Deviate from Human Nature. The Digital Constitutionalist, March 2023.

2022

Too Much, Too Many: The Principle of International Comity in Digital Markets. Network Law Review, October 2022 (awarded position as a nominee at the Antitrust Writing Awards 2023 organised by Concurrences and The George Washington University in the category of Business Articles).  

The new lanterns laws: The mainstream bias of facial recognition technology. The Digital Constitutionalist, July 2022.