Shaping the new modality of the digital markets : the impact of the DSA/DMA proposals on inter-platform competition

Andriychuk, Oles (2021) Shaping the new modality of the digital markets : the impact of the DSA/DMA proposals on inter-platform competition. World Competition: Law and Economic Review, 44 (3). 261–286. ISSN 1011-4548 (https://kluwerlawonline.com/api/Product/CitationPD...)

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Abstract

The Digital Markets Act, as proposed by the Commission, alongside with discussed Parliamentary amendments and ECN specifications, has triggered ‘a Copernican transformation of the field’. Together with comparable in terms of their significance bills, drafted by the US House Judiciary Committee, US President Executive order 14036 and remarkable developments taking place in other important antitrust jurisdictions, a new generation of competition rules are shifting the area of the digital economy towards a ‘regulatory Big Bang’. An unprecedented recalibration of the rules regulating the functioning of competition in the digital markets has catalysed diverse reactions among the main stakeholders. The proposed approach to regulating gatekeepers will have a paradigmatic impact on European consumers, businesses and public institutions. It will have equally significant implications for the theoretical foundations of competition law, economics and policy.While formally the DMA is complementing, not substituting, existing provisions of competition de lege lata, such a substantial extension of the rationale and instruments of competition policy is likely to have significant implications also for the application of ex-post rules. The entire apparatus of competition law will be extended by the new modality. On one hand, such an extension may be seen as an enrichment. For decades, the great variety of the ideas about economic competition and its regulation have been substantially narrowed down and standardised by the Law & Economics analysis. Clearly, such a limitation was put in place for good reasons: homogenisation, commensuration, universalisation, expediency, predictability and calculability are among the undisputable advantages of analysing competition through the lens of neoclassical microeconomics. The optimisation, however, comes at a cost. Evidently, the value of economic competition is not always reduceable to a singular metric particularly if such a monovalent methodology is underpinned categorically by a monovalent normative ethos of non-intervention. Supposedly, the phenomenon of competition is more diverse and not as rigid and singular as the prevalent approach claims it to be. To an extent, the DMA epitomises this broader vision. By introducing a new type of competition rules, it essentially embodies a new role of competition policy in the constitutional constellation of public goals and values. In this sense, the proposal reflects a more general trend, that is not exhausted by the processes taking place in the area of ex-post competition policy internally. On the other hand, however, the proposed recalibration is likely to raise many additional issues and challenges for the discipline. Some of them are discussed in this article. Out of the wide spectrum of changes introduced by the DMA/DSA proposal, this article identifies and analyses one of the central – though not so commonly discussed – elements of the transformation. It asks a normative question about what kind of competition in the digital markets the European Union should seek to establish, and a methodological question about procedural and substantive legal mechanisms used for shaping such a new format.

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