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. 1-30.
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.
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.
Human-Centric Business Models at Odds with the Inalienability of Rights? Dedicated publication in PROFIT Project, University of Copenhagen, headed by Alexandra Andhov.
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, 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.
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.
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
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.
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.