Some time ago, the draft bill of the 11th GWB amendment was published. Today, however, the focus is on the proposal for private enforcement, namely the Digital Markets Act. Some time ago, I wrote about this in the CR blog, attesting to a complete lack of any helpful regulations and therefore deriving my own proposals for solutions. One of them was that there should be a corresponding application of the Courage case law of the ECJ, according to which every affected person should be able to effectively enforce his rights in the case of infringements of competition law.
There would be no reason why this should not also apply in principle to the sector-specific regulatory law of the DMA. The draft bill has now also recognised this. It proposes a parallelism of the provisions of §§ 33 ff. GWB. This means that the aforementioned provisions should no longer only be linked to infringements of the competition provisions of the first part of the ARC and Art. 101, 102 TFEU, but that infringements of Art. 5, 6 and 7 DMA should now be added. These three provisions contain the central substantive prohibitions.
In other words, violations of the prohibitions of the DMA can trigger claims for injunctive relief against the respective gatekeeper for those affected, which can be enforced regularly. If the violation is committed intentionally or negligently, additional antitrust damages can be claimed. Due to the extension of the scope of application, the other provisions, such as those on the passing on of damages, also apply. In this context, the factual binding effect of Section 33b sentence 1 GWB will also apply if the Commission as the competent authority finds an infringement.
As soon as a gatekeeper is designated and has to comply with the obligations, other companies could enforce their data subject rights via the new regulations.
