EU ANTITRUST: HOT TOPICS & NEXT STEPS

Prague, Czechia

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

available to e.g., the British Competition and Markets Authority (CMA). The DSA and DMA legislative proposals have been prepared by the EC since April 2020. 3.3 Digital Markets Act and Digital Services Act and potential benefits for digital end consumers It should be pointed out that both legislative proposals are still “work in progress” due to the ongoing legislative process and to the intensive work of the EC’s Task Force, which continually collects information on its first proposal so that the resulting legislative acts are as appropriate as possible to the needs of the present. The main differences between the DSA and DMA lie, inter alia , in the following facts. While the DMA focuses on restricting competition in access to digital markets and can therefore be regarded as a public standard with a strong spill over effect towards the well-being of a digital end consumer, the DSA seeks to balance the rights and obligations of consumers, online platform operators and businesses offering their goods and services on platforms. DSA is therefore a matter of regulating horizontal relations and can be understood as a rule of private law. For example, the DSA addresses the issue of the legal standing of an online platform for sharing illegal third-party content (e.g., an advertisement offering drugs or a pirated copy of a film). Furthermore, the DSA deals with the removal of harmful content from social networks (child pornography, bullying, racism, etc.) and the protection of consumer rights (elimination of accounts, mechanisms for reviewing social network decisions, etc.) (Musil, 2021). Originally, the DMA was meant as a “competition tool” to create harmonised competition rules ensuring contestable and fair markets in the digital sector. The current version of the DMA insistently pursues an objective complementary but different from that of competition law, as laid down in Recital 10. Thus, in my opinion, the DMA is a more consumer protection instrument than competition law. From the beginning, critics pointed to a lack of vision: Which ultimate goal is the DMA meant to serve? Consumer welfare? Internal Market integration? Promoting European small and medium sized enterprises (SMEs)? It has been clear that the DMA shall contribute to the proper functioning of the Internal Market. This pledge to the legal basis (Article 114 TFEU) is well known. The avoidance of Internal Market fragmentation through diverging national rules for platforms was included in the EC’s draft already. Additionally, the compromise amendments add two goals: to foster innovation and increase consumer welfare. Consumer welfare, including innovation, is a trusted friend for (many) competition lawyers. The DMA seems to aim to achieve fairness as a means to promote consumer welfare (D’KART, 2021).

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