Do DMA obligations for gatekeepers create entitlements for business users?

Oles Andriychuk
2022 Journal of Antitrust Enforcement  
This article is unlikely to gain many supporters. While being categorically pro-enforcement and while endorsing unequivocally the introduction of a new proactive approach to digital competition policy in general and the Digital Markets Act specifically, its main thesis is in a manifest dissonance with the majority of the DMA proponents. It submits that the obligations for gatekeepers introduced by the DMA do not automatically create or reflect the corresponding rights of business (let alone
more » ... users. Business users are indeed direct and most obvious beneficiaries of gatekeepers' obligations. Their conditions in most digital markets will be significantly-or at least incrementally-improved by the DMA. These market ameliorations would ultimately be in one way or the other passed onto end users as well. This is not disputed. However, the benefits emerging from gatekeepers' compliance with the substantive obligations of Articles 5-7 and 13-15 DMA (and even more so from their compliance with the procedural obligations of Chapter V DMA) are only an advantageous corollary of the real raison d'e ˆtre of the Act. They are only a matter of lucky contingency. Contrary to the common assumptions correlating or even equating the wide scope of gatekeepers' obligations with the central mission of the DMA, this article cautions that such compensatory, restorative approach risks leading the DMA to a dead end, adding it to the list of ambitious and promising proposals with only nominal implications for the envisaged reforms. It submits that the obligations are only the proxies, the tools for nurturing, promoting, and shaping competition in digital markets. Compliance with them is a means, not an end. Competition and contestability in digital markets may be actively promoted and intensified not when gatekeepers become compliant with their DMA obligations but only when their competitors gain more important position in these markets. The latter is expected to be achieved via the former. This is the logic of the DMA this article seeks to articulate: it addresses the cause of the systemic failure of digital markets, instead of focusing on its symptoms epitomized in the notion of restoring business users' rights.
doi:10.1093/jaenfo/jnac034 fatcat:xfgq7ho3mbat3l6hrf2x6t7u5m