The digital markets act: a conceptual analysis of the nature of the regulation and the appropriateness of Its new competition tools

Abstract

In 2022, the European Parliament and the Council of the European Union enacted the Digital Markets Act, a Regulation that aims to control the great power that top technology undertakings have gathered in the European Digital Market through the widespread use of their platforms. The belief among policymakers and economic experts worldwide was that digital markets present several undesirable characteristics that render existing competition tools inadequate to tackle anticompetitive practices. Aiming to solve these deficiencies, the resulting DMA presents a radically different structure than that of current competition law in a set of rules presented as an instrument of regulatory nature. It is quite unclear whether this is the true nature of the Regulation, as its objectives and main traits are those of competition law, even if adapted to deal with digital markets. The main aspect it shares with instruments of economic regulation is the nature of its obligations, which are to be applied ex ante. It is essential to ascertain the true nature of the Regulation, as it can have relevant consequences regarding its application. Furthermore, it is also worth analysing how these conceptual changes have been applied, because most of its presumed gains depend on whether the DMA actually backs up the economic evidence and reasoning behind it.