How to Challenge Big Tech
The European Commission's proposal for a Digital Markets Act is meant to complement EU competition law, in order to guarantee contestable digital markets. However, from a policy point of view, the current self-restriction to behavioural remedies in competition law and merger control, as well as the focus on behavioural ex ante regulation via the DMA, is at best a half-hearted and at worst a misguided way to effectively address the Big Tech challenge. We argue in favour of a competition law toolkit with extended options to use structural measures to tackle entrenched market dysfunctionalities.
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Why End-User Consent Cannot Keep Markets Contestable
A central source of Big Tech gatekeepers’ power is their encompassing access to individuals’ personal data. The prohibition of Article 5(a) of the proposed Digital Markets Act, therefore, is a welcome attempt to limit the private power over data held by gatekeeping platforms. However, end-user consent cannot be regarded as an adequate safeguard for keeping data-driven markets competitive.
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Private enforcement and the Digital Markets Act
For the Digital Markets Act to function properly – that is, to dismantle overwhelming private power – enforcement capacities of private actors should be strengthened at the outset: Competitors and customers should be integrated into the enforcement system as complainants, informants and litigants. The digital giants will not tumble because of government intervention but because of innovative competitors and stronger customers that can rely on the framework set by governments. Private power needs to be cured with private empowerment.
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The Scope of the DMA
The combination of the features characterising gatekeepers in the Digital Markets Act's is likely to create significant power imbalances in the market and lead to unfair practices that the proposal aims to prevent and repair. A service-based approach, over a provider-based one, as well as a functional description of core platform services would remedy this unintended consequence.
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