The proposal for a Digital Markets Act published last year contains regulations for a European approach to market regulation of digital platforms. First of all, this includes the identification as relevant gatekeepers, which are prohibited from certain practices in Artt. 5 and 6 DMA-E. The prohibitions and other provisions of the regulation are to be directly enforceable by the authorities. This also includes regulations on fines.
The draft regulation therefore already contains extensive regulations for public enforcement. However, independent regulations for private enforcement are not included. The discussion here can be condensed to two essential questions:
- How can private enforcement take place under the current draft regulation of the DMA-E?
- What further regulations should be added for effective private enforcement?
Private enforcement under the current DMA proposal
The missing provisions for private enforcement do not mean that private enforcement is completely absent. At any rate, the prohibition provisions of Artt. 5 and 6 DMA-E could be applied via the levers of general tort law and unfair competition law. Thus, they could be interpreted as market conduct rules in the sense of Section 3a UWG. This would correspond to the institutional protection character of the DMA prohibitions. In principle, they also serve the purpose of imposing special competition-related additional obligations on covered gatekeepers. Infringements could thus be subject to claims under Section 8 (1) sentence 1 UWG in conjunction with Sections 3, 3a UWG. This would be different for the other procedural obligations, which have no such competition reference.
At the same time, the prohibitions proposed in Artt. 5 and 6 DMA-E are very granular. They contain very specifically protection requirements and concrete individual protection purposes can be derived from them in isolated cases. For example, Art. 5 lit. a) DMA-E can result in individual protection of individual users from an involuntary cross-platform aggregation of their personal data. In this case, the data protection rights of the GDPR could be used. However, this would then no longer have anything to do with the question of private enforcement of the DMA-E. As another example, commercial users are to be protected under Art. 5 lit. b) DMA-E from offering their products and services independently of the gatekeeper. These two prohibitions can therefore be regarded as protective laws in the sense of Section 823 (2) BGB. Accordingly, enforcement in tort would be obvious.
In principle, indirect enforcement by way of the antitrust law basis for a claim under Section 33 (1) GWB could also be discussed. Admittedly, the prohibitions of the DMA-E are not directly covered by these provisions and official enforcement could probably not be taken into account either. However, in the case of violations of the provisions, violations of antitrust provisions are often obvious at the same time or could be examined in each case. There may then be cases of congruent enforcement. On the other hand, Art. 1 para. 1, para. 5 sentence 1 DMA-E also clarifies that this regulation serves different purposes than antitrust law: the latter serves to protect the institution of competition as such, whereas the DMA serves to ensure contestable and fair digital markets. In other words, apart from the same effects of congruent law enforcement in each case, an application of the DMA in antitrust law is even blocked
Supplementary Proposals for Effective Private Enforcement
At some point, it is conceivable that the ECJ will repeat its Courage principles and also make similar statements for this regulation, namely that it would contradict its purpose if not every affected person could effectively enforce claims for remedies or compensation. Then, at the same time, numerous questions would be discussed again that already seem familiar from antitrust law. It would therefore be conceivable in principle to apply the Cartel Damages Directive accordingly, as Peter Picht also discusses in the Verfassungsblog. An independent set of rules would certainly be more in line with the significance of the DMA-E alone. In addition, there are some special features in gatekeeper cases. For example, the focus is often less on the sanctioning of damages suffered and more on a timely and appropriate participation in the competitive process. This is also what the DMA-E aims at as a basis for contestability.
Accordingly, private enforcement should place a much higher emphasis on protecting other economic entities as contestants. This can be achieved above all by a clear structuring of access claims. Participants can contest if they have fair access to markets. If markets are embodied by gatekeepers, fair access includes a contracting obligation. In general antitrust law, access can only be enforced indirectly by way of injunctive relief against abusive refusals to deal. This is accompanied by uncertainties and procedural risks. In the DMA-E, access could be regulated as a positive performance claim, which in case of doubt would have to be provisionally complied with, unless factual reasons are put forward by the gatekeeper.
Fairness could be ensured by more proactive control of the conditions. It would be feasible to have enforcement powers in the form of an association in the case of conduct involving stray damages. For commercial users, there could be clarifications that amount to condition control in the context of access to gatekeeper services. Thus, the prohibitions of Art. 5 and 6 DMA-E could be applied as standard examples in the context of an access claim – access would thus have to be granted in such a way that it complies with the prohibitions.
The other way round, a gatekeeper could be exempted from private enforcement insofar as it sets itself conditions for more contestability and fairness and binds itself to them. A safe harbour regime could offset the burdens on corporate self-design that come with ex ante regulation under the DMA-E. At the same time, the current provisions of the DMA-E already contain regulations under which gatekeepers can escape regulation, but these are linked to the addressee status or prohibition obligations. These could be expanded to include regulations on commitment measures in favour of contestability and fairness, which would then be declared binding by the Commission, provided that they meet the purposes of the DMA-E. This could also be done by means of a Europe-wide certification mechanism.