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Viktoria H S E Robertson, The complementary nature of the Digital Markets Act and the EU antitrust rules, Journal of Antitrust Enforcement, Volume 12, Issue 2, July 2024, Pages 325–330, https://doi.org/10.1093/jaenfo/jnae013
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1. Complementarity in the Digital Markets Act
The Digital Markets Act (DMA)1 aims to safeguard—or re-establish—the contestability and fairness of digital platform markets in the European Union’s (EU) internal market. To that purpose, it contains a number of obligations2 for those providers of core digital platform services that have been designated as gatekeepers.3 However, these are not the only EU rules that apply to large digital platforms.4 In particular, the DMA and the EU antitrust rules are intended to complement each other and generate synergies in their enforcement.5
The principle of complementarity can be found throughout the DMA. In its recitals, the DMA emphasizes that it is complementary to Article 101 TFEU6 on anti-competitive agreements, Article 102 TFEU on abuse of dominance, and the corresponding national competition rules.7 Article 1, para 6 DMA states that the DMA ‘is without prejudice to the application of Articles 101 and 102 TFEU’ and their equivalent national rules. The antitrust provisions will thus be applied in parallel to the new regulatory framework.8
Two issues stand out when considering the complementary nature of the DMA and the European antitrust rules. On a substantive level, the question arises how the complementary nature of the DMA and the EU antitrust provisions will play out in the enforcement practice of competition authorities.9 On a procedural level, the Court of Justice’s recent case law regarding the ne bis in idem principle can clarify the complementarity of the DMA and the antitrust provisions as far as parallel proceedings are concerned. We will consider these issues in turn.
2. The DMA and Articles 101 and 102 TFEU: substantive complementarity
In digital markets, the tools at the disposal of competition authorities—including the European Commission—were perceived as being either not potent or not swift enough to deal with the new type of market power held by Big Tech platforms.10 The DMA was adopted to rein in this new type of market power. It was inspired by a range of expert reports11 that addressed ways in which competition law could deal with market power in digital platform markets, and by the accumulated enforcement experience of the European Commission and national competition authorities (NCAs). Cases such as Google Shopping,12 Amazon Marketplace,13 Apple Dating Apps,14 and Booking.com15 all provided learning curves that are now reflected in the DMA’s substantive provisions regarding self-preferencing, use of data, tying of additional services, and parity clauses. While the DMA is a self-contained regulatory instrument with a dedicated enforcement system, its legislative history is intricately intertwined with antitrust enforcement in digital markets, particularly under Article 102 TFEU.
Regulation or antitrust—deciding on the tool of choice
With the entering into force of the DMA, the European Commission now has two stand-alone enforcement tools at its disposal that complement each other. When the Commission decides which of these tools to use, the substantive differences between the DMA and the antitrust rules will be decisive. In fact, these differences also shed light on the way in which these tools may complement each other.16 The following overview sketches the most notable differences between the antitrust rules and the DMA.
| Articles 101 and 102 TFEU . | DMA . |
|---|---|
| Competition law rules that aim at maintaining competition and furthering consumer welfare and market integration | Regulation that aims at maintaining contestable and fair digital markets and furthering market integration |
| Apply to market conduct once it has occurred (ex post); burden of proof on the enforcer | Applies ex ante with the intention of preventing certain market conduct from ever occurring; reversed burden of proofa |
| Can be directly applied by the European Commission, NCAs, and national courts | European Commission is the sole enforcer; NCAs may have investigatory powersb |
| Objective justification of anti-competitive conduct always remains possible | Virtually no objective justification is accepted |
| Analysis frequently centres on the effects that market conduct entails on the market | Rules-based application, irrespective of actual effects |
| Apply directly and in all sectors; broad scope of application | Applies after designation of digital gatekeepers; narrow scope of application |
| Article 102 TFEU relies on market definition, the establishment of a dominant position, and the abuse of said dominance | Relies on gatekeeper designation—including a list of core platform services and quantitative thresholds; no infringing conduct required for application |
| Flexibility as theories of harm can evolve over time | Catalogue of obligations, limited flexibility through specification |
| Private enforcement explicitly foreseen in Directive 2014/104/EUc; Commission and NCA decisions facilitate follow-on actions by private actors in national courts | Private enforcement foreshadowed in Article 39 DMA,d but only few national rules in placee |
| Articles 101 and 102 TFEU . | DMA . |
|---|---|
| Competition law rules that aim at maintaining competition and furthering consumer welfare and market integration | Regulation that aims at maintaining contestable and fair digital markets and furthering market integration |
| Apply to market conduct once it has occurred (ex post); burden of proof on the enforcer | Applies ex ante with the intention of preventing certain market conduct from ever occurring; reversed burden of proofa |
| Can be directly applied by the European Commission, NCAs, and national courts | European Commission is the sole enforcer; NCAs may have investigatory powersb |
| Objective justification of anti-competitive conduct always remains possible | Virtually no objective justification is accepted |
| Analysis frequently centres on the effects that market conduct entails on the market | Rules-based application, irrespective of actual effects |
| Apply directly and in all sectors; broad scope of application | Applies after designation of digital gatekeepers; narrow scope of application |
| Article 102 TFEU relies on market definition, the establishment of a dominant position, and the abuse of said dominance | Relies on gatekeeper designation—including a list of core platform services and quantitative thresholds; no infringing conduct required for application |
| Flexibility as theories of harm can evolve over time | Catalogue of obligations, limited flexibility through specification |
| Private enforcement explicitly foreseen in Directive 2014/104/EUc; Commission and NCA decisions facilitate follow-on actions by private actors in national courts | Private enforcement foreshadowed in Article 39 DMA,d but only few national rules in placee |
On elements in the DMA that reverse the burden of proof, see Alba Ribera Martínez, ‘An Inverse Analysis of the Digital Markets Act: Applying the Ne Bis in Idem Principle to Enforcement’ (2023) 19 European Competition Journal 86, 93f.
The NCAs’ powers to investigate DMA infringements depend on national law. In any case, NCAs have no decisional powers under the DMA.
Directive 2014/104/EU of the European Parliament and of the Council of 26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union (EU Damages Directive) [2014] OJ L349/1.
On this, see Rupprecht Podszun, ‘Private Enforcement and Gatekeeper Regulation: Strengthening the Rights of Private Parties in the Digital Markets Act’ (2022) 13 Journal of European Competition Law & Practice 254; Giorgio Monti, ‘The Digital Markets Act: Improving Its Institutional Design’ (2021) 5 European Competition & Regulatory Law Review 90, 96f.
But see the recent German ARC amendment of 2023 (11. GWB-Novelle).
| Articles 101 and 102 TFEU . | DMA . |
|---|---|
| Competition law rules that aim at maintaining competition and furthering consumer welfare and market integration | Regulation that aims at maintaining contestable and fair digital markets and furthering market integration |
| Apply to market conduct once it has occurred (ex post); burden of proof on the enforcer | Applies ex ante with the intention of preventing certain market conduct from ever occurring; reversed burden of proofa |
| Can be directly applied by the European Commission, NCAs, and national courts | European Commission is the sole enforcer; NCAs may have investigatory powersb |
| Objective justification of anti-competitive conduct always remains possible | Virtually no objective justification is accepted |
| Analysis frequently centres on the effects that market conduct entails on the market | Rules-based application, irrespective of actual effects |
| Apply directly and in all sectors; broad scope of application | Applies after designation of digital gatekeepers; narrow scope of application |
| Article 102 TFEU relies on market definition, the establishment of a dominant position, and the abuse of said dominance | Relies on gatekeeper designation—including a list of core platform services and quantitative thresholds; no infringing conduct required for application |
| Flexibility as theories of harm can evolve over time | Catalogue of obligations, limited flexibility through specification |
| Private enforcement explicitly foreseen in Directive 2014/104/EUc; Commission and NCA decisions facilitate follow-on actions by private actors in national courts | Private enforcement foreshadowed in Article 39 DMA,d but only few national rules in placee |
| Articles 101 and 102 TFEU . | DMA . |
|---|---|
| Competition law rules that aim at maintaining competition and furthering consumer welfare and market integration | Regulation that aims at maintaining contestable and fair digital markets and furthering market integration |
| Apply to market conduct once it has occurred (ex post); burden of proof on the enforcer | Applies ex ante with the intention of preventing certain market conduct from ever occurring; reversed burden of proofa |
| Can be directly applied by the European Commission, NCAs, and national courts | European Commission is the sole enforcer; NCAs may have investigatory powersb |
| Objective justification of anti-competitive conduct always remains possible | Virtually no objective justification is accepted |
| Analysis frequently centres on the effects that market conduct entails on the market | Rules-based application, irrespective of actual effects |
| Apply directly and in all sectors; broad scope of application | Applies after designation of digital gatekeepers; narrow scope of application |
| Article 102 TFEU relies on market definition, the establishment of a dominant position, and the abuse of said dominance | Relies on gatekeeper designation—including a list of core platform services and quantitative thresholds; no infringing conduct required for application |
| Flexibility as theories of harm can evolve over time | Catalogue of obligations, limited flexibility through specification |
| Private enforcement explicitly foreseen in Directive 2014/104/EUc; Commission and NCA decisions facilitate follow-on actions by private actors in national courts | Private enforcement foreshadowed in Article 39 DMA,d but only few national rules in placee |
On elements in the DMA that reverse the burden of proof, see Alba Ribera Martínez, ‘An Inverse Analysis of the Digital Markets Act: Applying the Ne Bis in Idem Principle to Enforcement’ (2023) 19 European Competition Journal 86, 93f.
The NCAs’ powers to investigate DMA infringements depend on national law. In any case, NCAs have no decisional powers under the DMA.
Directive 2014/104/EU of the European Parliament and of the Council of 26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union (EU Damages Directive) [2014] OJ L349/1.
On this, see Rupprecht Podszun, ‘Private Enforcement and Gatekeeper Regulation: Strengthening the Rights of Private Parties in the Digital Markets Act’ (2022) 13 Journal of European Competition Law & Practice 254; Giorgio Monti, ‘The Digital Markets Act: Improving Its Institutional Design’ (2021) 5 European Competition & Regulatory Law Review 90, 96f.
But see the recent German ARC amendment of 2023 (11. GWB-Novelle).
Where the European Commission has designated a company as a gatekeeper according to the DMA, and where said gatekeeper engages in market conduct that is blacklisted by the DMA, the Commission will—as mentioned above—now have the choice to pursue such conduct as an infringement of the DMA or as an abuse of dominance under Article 102 TFEU, or possibly even both. In making its choice, it will be guided by the matrix above. In practice, the Commission’s aim will be to use its resources in the most efficient way—thus perhaps preferring the DMA over the antitrust rules as the instrument of choice. However, where certain market conduct does not squarely come within the obligations set out in the DMA, the Commission will need to make use of the flexibility that Article 102 TFEU affords. In this respect, the antitrust rules complement the DMA when market conduct that is possibly problematic has not been included in the obligations set out in the DMA but needs to be addressed.17
Whenever an NCA is confronted with a digital platform’s market conduct, it will be confronted with a different range of choices from the Commission’s. If the NCA wants to stop a designated gatekeeper from engaging in conduct that is blacklisted under the DMA, then—if national law enables it to do so—it can start investigating a possible infringement of the DMA and then hand over the case to the European Commission, as is foreseen in Article 38, para 7 DMA. Alternatively, it can rely on Article 102 TFEU or its national equivalent.
Complementarity and the issue of over- or under-enforcement
In practice, it is possible that we will see a duplication of enforcement actions at the national and the EU levels, once under Article 102 TFEU or its national equivalents and once under the DMA. While a duplication of enforcement actions risks leading to a non-efficient allocation of resources by both the Commission and NCAs, it may also risk over-enforcement. At the same time, the looming possibility of a duplication of enforcement actions may ultimately entail a risk of under-enforcement where competition authorities are under the (false) impression that another enforcer may take up a case. It will be vital for the Commission and NCAs to make use of the exchange of sensitive information that is rendered possible by Article 38, para 1 DMA, thereby ensuring an enforcement complementarity that accompanies the substantive complementarity. In fact, one can ask whether the legislator could contribute to reducing the risk of both over- and under-enforcement in such scenarios.
3. The ne bis in idem principle and the DMA: procedural complementarity
Although the (substantive) complementarity between the DMA and the antitrust rules will often lead to the application of either one or the other, parallel proceedings remain possible. Such parallel proceedings require close coordination18 and the observance of the ne bis in idem principle.19 Article 50 of the EU Charter of Fundamental Rights20 provides that no one shall be tried or punished twice in criminal proceedings for the same criminal offence, a principle that also applies to competition law. Where a gatekeeper’s market conduct is susceptible to enforcement actions under both the DMA and the antitrust rules, one will need to ascertain whether an exception to the ne bis in idem principle (Article 52 para 1 of the Charter) is available.21 In this respect, the Court of Justice has underlined that
public authorities can legitimately choose complementary legal responses to certain conduct that is harmful to society through different procedures forming a coherent whole so as to address different aspects of the social problem involved.22
In light of the recent case law of the Court of Justice,23 a gatekeeper may be subjected to parallel proceedings under the DMA and the antitrust rules for one and the same market conduct where
parallel proceedings are provided for by the law,24
the legislation in question pursues complementary aims,25 and
the principle of proportionality is safeguarded.26
Article 1, para 6 DMA already provides that the DMA does not preclude the parallel application of the antitrust rules. Parallel proceedings are therefore foreseen by the law (i).
Concerning (ii), the DMA emphasizes the complementary nature of the DMA and the antitrust rules, stating in Recital 10 that the DMA ‘aims to complement the enforcement of competition law’. Table 1 illustrates the fundamental differences in the substantive conception of the DMA and the antitrust rules. The legislator took care to emphasize that the DMA aims to safeguard the contestability and fairness of digital platform markets, while the antitrust laws aim to prevent anti-competitive agreements and the abuse of market power for the benefit of competition and consumers. The complementary nature is further reinforced by the fact that internal market law (Article 114 TFEU) serves as the DMA’s legal basis, rather than Article 103 TFEU on competition law-related provisions.27 While an argument can therefore be made that the DMA and the antitrust rules pursue complementary aims, it will be for the Court to decide whether these arguments are convincing.28 It can be anticipated that (potential) gatekeepers will test this issue before the Court.
As for the principle of proportionality (iii), the Court has ruled that three requirements need to be satisfied in order to do justice to this principle29:
Clear and precise rules make it possible to predict which conduct may be subject to duplication of proceedings and penalties.
The parallel proceedings are sufficiently coordinated and within a proximate timeframe.
The penalty imposed in the earlier proceedings must be taken into account in the later proceedings.
As regards (a), gatekeepers know which market conduct may be subjected to enforcement under both the DMA and competition rules. Concerning (b), Article 38 DMA allows for the necessary coordination and cooperation, particularly through reliance on the well-functioning European Competition Network. However, one will need to evaluate whether these rules allow for coordination that is close enough both in terms of substance and as regards the timeframe. This is a challenge insofar as the DMA is an ex ante regulation, while competition law only assesses conduct ex post, meaning that their outlook on market conduct can be quite different.
As for (c), it will be for the competition authorities involved to ensure that an earlier penalty is taken into account in accordance with the fining guidelines. While the legislator has not established binding rules for taking earlier penalties into account, both the European Commission’s guidance on setting fines30 and equivalent national guidance can—and perhaps must—be updated accordingly.
4. Outlook
The complementary nature of the DMA and the European antitrust rules raise substantive and procedural issues that need to be considered as the DMA starts to apply. In substantive terms, the complementarity of the DMA and the antitrust rules will be tested as new cases emerge. While the ex ante regime of the DMA promises swifter enforcement, the compliance discussions and investigations that have now started indicate that this will not be smooth sailing. Where certain types of conduct do not clearly fall within the DMA’s obligations, the antitrust rules will continue to serve as a fallback option. Similarly, new types of anti-competitive behaviour will need to be assessed under the more flexible antitrust rules. In the Apple App Store case31 that was decided on 4 March 2024—just three days before the DMA obligations became binding—Apple accused the European Commission of issuing a decision that ‘is not grounded in existing competition law. It’s an effort by the Commission to enforce the DMA before the DMA becomes law’.32 As Apple intends to appeal the decision, the issue of substantive complementarity between the DMA and the antitrust rules is thus set to come before the General Court in the near future.
In procedural terms, the ne bis in idem principle needs to be safeguarded whenever the possibility for parallel enforcement actions concerning identical market conduct arises—a process which in itself ensures that the DMA and the antitrust rules remain complementary. Of the criteria that parallel proceedings need to fulfil, the close cooperation between competition authorities and the taking into account of earlier penalties will deserve particular attention.
Acknowledgements
A first version of this contribution was prepared for the meeting of the DMA working group established by the European Parliament’s Committee on Internal Market and Consumer Protection (IMCO) on 24 May 2023. It has since been updated and expanded. In accordance with the Academic Society for Competition Law (ASCOLA) Declaration of Ethics, I have no conflict of interests to declare.
Footnotes
Regulation (EU) 2022/1925 of the European Parliament and of the Council of 14 September 2022 on contestable and fair markets in the digital sector and amending Directives (EU) 2019/1937 and (EU) 2020/1828 (Digital Markets Act, DMA) [2022] OJ L265/1.
See, in particular, arts 5, 6, 7, and 14 DMA.
For gatekeeper designation, see art 3 DMA.
See also recital 12 of the DMA.
Margrethe Vestager, ‘Competition Policy: Where We Stand and Where We’re Going’ (Bruges 25 March 2022). Addressing the possibility that competition law’s relevance may suffer due to the DMA, see Arianna Andreangeli, ‘The Digital Markets Act and the Enforcement of EU Competition Law: Some Implications for the Application of Articles 101 and 102 TFEU in Digital Markets’ (2022) 43 European Competition Law Review 496, 497f.
Consolidated Version of the Treaty on the Functioning of the European Union (TFEU) [2016] OJ C202/47.
Recitals 10–12 of the DMA. Arguing that it is a case of intersection rather than complementarity, see Pınar Akman, ‘Regulating Competition in Digital Platform Markets: A Critical Assessment of the Framework and Approach of the EU Digital Markets Act’ (2022) 47 European Law Review 85, 86.
On how the DMA harmonizes EU and national law, see Jasper van den Boom, ‘What Does the Digital Markets Act Harmonize? – Exploring Interactions Between the DMA and National Competition Laws’ (2023) 19 European Competition Journal 57, 68ff.
A further aspect of complementarity concerns the interaction of the DMA with national competition rules that specifically address gatekeepers; see art 1, para 6(b) DMA. This issue is beyond the EU antitrust rules at the heart of the present contribution and will not be further addressed here. For a discussion of the DMA’s relationship with the German s 19a ARC on rules for companies with paramount significance for competition across markets, see Sebastian Jungermann, ‘The Digital Markets Act and the Applicability of National Competition Law: § 19a of the German Competition Act (GWB)’ (2022) 7 Competition Law & Policy Debate 130; Anne C Witt, ‘The Digital Markets Act: Regulating the Wild West’ (2023) 60 Common Market Law Review 625, 660ff. For s 19a ARC: Gesetz gegen Wettbewerbsbeschränkungen (GWB) [Act against Restrictions of Competition, ARC], German Federal Law Gazette I 2013 1750/3245 as amended.
Further discussing this background, see Friso Bostoen, ‘Understanding the Digital Markets Act’ (2023) 68 Antitrust Bulletin 263, 268ff.
Eg, see Jason Furman and others, Unlocking Digital Competition: Report of the Digital Competition Expert Panel (March 2019); Jacques Crémer and others, Competition Policy for the Digital Era (April 2019); Australian Competition and Consumer Commission, Digital Platforms Inquiry – Final Report (July 2019); Stigler Committee on Digital Platforms – Final Report (September 2019).
Google Search (Shopping) (Case AT.39740) Commission Decision of 27 June 2017 [2018] OJ C9/11; Case T-612/17 Google and Alphabet v Commission ECLI:EU:T:2021:763; on appeal as Case C-48/22 P.
Amazon Marketplace (Case AT.40462) and Amazon Buy Box (Case AT.40703) Commission Decision of 20 December 2022.
Autoriteit Consument & Markt, Case ACM/19/035630 Apple (24 August 2021).
Konkurrensverket, Case 596/2013 Booking.com (15 April 2015); Autorité de la concurrence, Case 15-D-06 Booking.com (21 April 2015); Autorità Garante della Concorrenza e del Mercato, Case I779 Booking.com (21 April 2015); Bundeskartellamt, Case B-9-121/13 Booking.com (22 December 2015); Higher Regional Court Düsseldorf, Case VI-Kart 2/16 (V) Booking.com (4 June 2019); German Federal Court, Case KVR 54/20 Booking.com (18 May 2021).
Voicing concerns as to the DMA’s overlap with EU and national competition law, see Giuseppe Colangelo, ‘The European Digital Markets Act and Antitrust Enforcement: A Liaison Dangereuse’ (2022) 47 European Law Review 597, 599ff. Pointing to the constraints of the antitrust rules that the DMA does away with, see Pablo Ibáñez Colomo, ‘The Draft Digital Markets Act: A Legal and Institutional Analysis’ (2021) 12 Journal of European Competition Law & Practice 561, 566ff.
While the DMA provides that the European Commission can propose an amendment to the DMA where it considers a type of conduct not yet covered by this instrument to be in need of regulation (Article 19 DMA), this type of proposal takes time and applying art 102 TFEU may thus constitute a more immediate route.
See art 1, para 7 and arts 37, 38 DMA.
For a discussion, see Konstantina Bania, ‘Fitting the Digital Markets Act in the Existing Legal Framework: The Myth of the “Without Prejudice” Clause’ (2023) 19 European Competition Journal 116, 144ff.
Charter of Fundamental Rights of the European Union [2016] OJ C202/389.
Similarly arguing that parallel proceedings under the DMA and competition law would infringe art 50 of the Charter and require an exception under art 52, para 1 leg cit, see Bernadette Zelger, ‘The Principle of Ne Bis in Idem in EU Competition Law: The Beginning of a New Era After the ECJ’s Decisions in bpost and Nordzucker?’ (2023) 60 Common Market Law Review 239, 258.
Case C-117/20 bpost ECLI:EU:C:2022:202, para 49.
Case C-117/20 ibid; Case C-151/20 Nordzucker ECLI:EU:C:2022:203.
ibid para 41; ibid para 50.
ibid para 44; ibid para 52.
ibid para 48; ibid para 50.
Arguing that the chosen legal basis comes to bear on the DMA’s relationship with national laws that impose obligations on digital platforms, but not on its relationship with the EU and national antitrust laws, see George Gryllos, ‘The New Digital Landscape: Interaction Between the DMA and Rules of National and EU Law Governing the Conduct of Gatekeepers’ (2024) Concurrences No 1-2024, 40, 41, 51.
Questioning the complementarity of the aims pursued by the DMA and the antitrust rules, see Belle Beems, ‘The DMA in the Broader Regulatory Landscape of the EU: An Institutional Perspective’ (2023) 19 European Competition Journal 1.
Case C-117/20 bpost ECLI:EU:C:2022:202, para 51.
European Commission, Guidelines on the method of setting fines imposed pursuant to art 23(2)(a) of Regulation No 1/2003 [2006] OJ C210/2.
Apple—App Store Practices (music streaming) (AT.40437) European Commission Decision of 4 March 2024.
Apple, ‘The App Store, Spotify, and Europe’s Thriving Digital Music Market’ (4 March 2024) <https://www.apple.com/newsroom/2024/03/the-app-store-spotify-and-europes-thriving-digital-music-market/> accessed 4 March 2024.
