The Digital Markets Act (DMA) introduces a dedicated framework of obligations for the large digital platforms designated as gatekeepers. Unlike many classic competition cases, where the regulator's intervention follows particular conduct and an assessment of its effects on the market, the DMA imposes specific obligations and prohibitions up front. For platforms within the DMA regime, that means compliance has to be built into the way products, services and commercial practices are designed. For business users, the DMA also creates specific rights and protections against gatekeepers' practices, including on data access, self-preferencing and the terms of access to platforms.
Digital markets create new forms of competitive risk. Self-preferencing in search results or rankings, the use of algorithms in pricing, access to and exploitation of data, and businesses' dependence on large digital platforms all raise questions that are not always dealt with in the same way as a traditional competition case.
In digital markets, the legal assessment has to start before a commercial practice turns into a regulatory problem.
An investigation by the Hellenic Competition Commission or the European Commission calls for a different approach from a straightforward preventive compliance assessment. Requests for information, deadlines, inspections and communication with the regulator require coordinated legal and business management from day one. The experience of the partner of our firm as general counsel to a major technology group shapes how we approach such cases: we look not only at the legal question but at how the business's internal response, the gathering of information and the communication with the competent authority have to be organised.
Obligations
Compliance has to start before the problem arises
Gatekeeper obligations are triggered by designation as a gatekeeper. Compliance therefore has to be built into the design of the platform, the products and the commercial practices from the outset.
Rights
The DMA also protects business users
App developers, marketplace sellers and advertisers have specific rights against gatekeepers, including on data access, self-preferencing and the terms of access to platforms
Algorithmic practices
Algorithmic pricing raises new competition questions
The use of independent algorithms can lead to parallel or coordinated pricing behaviour without any direct agreement between the businesses. Assessing such practices requires careful examination of both the technology and the applicable competition law.
Competition investigations
How a competition investigation unfolds
Requests for information, procedural deadlines and communication with the regulator from the earliest stages can significantly affect the course of a case