Digital Markets Act – Private Enforcement

The Digi­tal Mar­kets Act con­ta­ins regu­la­ti­ons for a Euro­pean approach to mar­ket regu­la­ti­on of digi­tal plat­forms. First of all, this includes the iden­ti­fi­ca­ti­on as a rele­vant gate­kee­per. Artt. 5 and 6 DMA‑E pro­hi­bit cer­tain prac­ti­ces. The pro­hi­bi­ti­ons and other pro­vi­si­ons of the regu­la­ti­on are to be direct­ly sub­ject to public enforce­ment. This also includes penal­ty regulations.

The regu­la­ti­on the­r­e­fo­re alre­a­dy con­ta­ins exten­si­ve regu­la­ti­ons for public enforce­ment. Howe­ver, it does not include inde­pen­dent regu­la­ti­ons for pri­va­te enforce­ment. The dis­cus­sion here can be con­den­sed into two essen­ti­al questions:

  • How can pri­va­te enforce­ment be car­ri­ed out accor­ding to the cur­rent sta­tus of the regulation?
  • What fur­ther regu­la­ti­ons should be added for effec­ti­ve pri­va­te enforcement?

Private enforcement under the current DMA

The lack of direct pro­vi­si­ons for pri­va­te enforce­ment does not mean that pri­va­te enforce­ment is com­ple­te­ly absent. At any rate, the pro­hi­bi­ti­on pro­vi­si­ons of Artt. 5 and 6 DMA could be appli­ed via the levers of gene­ral tort law and fair tra­ding law. Thus, they could be inter­pre­ted as mar­ket con­duct rules in the sen­se of § 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 § 8 (1) sen­tence 1 UWG in con­nec­tion with § 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 are very gra­nu­lar. They con­tain very spe­ci­fic pro­tec­tion man­da­tes and con­cre­te indi­vi­du­al pro­tec­tion pur­po­ses can be deri­ved from them in iso­la­ted cases. For exam­p­le, Art. 5 lit. a) DMA can result in indi­vi­du­al pro­tec­tion of indi­vi­du­al users from invol­un­t­a­ry cross-plat­form aggre­ga­ti­on of their per­so­nal data. In this case, the data pro­tec­tion rights of the GDPR may be available. Howe­ver, this would then no lon­ger have any­thing to do with the ques­ti­on of pri­va­te enforce­ment of the DMA. As ano­ther exam­p­le, com­mer­cial users are to be pro­tec­ted under Art. 5 lit. b) DMA from offe­ring their pro­ducts and ser­vices inde­pendent­ly of the gate­kee­per. The­se two pro­hi­bi­ti­ons can the­r­e­fo­re be regard­ed as pro­tec­ti­ve laws in the sen­se of § 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 are not direct­ly cover­ed by the pro­vi­si­ons of the DMA and enforce­ment by public aut­ho­ri­ties could not be taken into account. Howe­ver, in the case of vio­la­ti­ons of the regu­la­ti­ons, vio­la­ti­ons of anti­trust regu­la­ti­ons are often obvious at the same time or could be exami­ned in each case. The­re may then be cases of con­gru­ent enforce­ment. In con­trast, Art. 1 para. 1, para. 5 p. 1 DMA 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.

Proposals for effective private enforcement

It is pos­si­ble that the ECJ will at some point repeat its Cou­ra­ge prin­ci­ples and make simi­lar state­ments for this regu­la­ti­on, name­ly that it would con­tra­dict its pur­po­se if every affec­ted per­son could not effec­tively enforce claims for redress or com­pen­sa­ti­on. Then, at the same time, num­e­rous issues would be dis­cus­sed again that alre­a­dy seem fami­li­ar from anti­trust law. It would the­r­e­fo­re be basi­cal­ly con­ceiva­ble to app­ly the Car­tel Dama­ges Direc­ti­ve accor­din­gly. An inde­pen­dent set of rules would cer­tain­ly be more in line with the importance of the DMA alo­ne. In addi­ti­on, the­re are some spe­cial fea­tures in gate­kee­per cases. For exam­p­le, the focus is often less on the sanc­tio­ning of dama­ges suf­fe­r­ed than on a time­ly and appro­pria­te par­ti­ci­pa­ti­on in the com­pe­ti­ti­ve pro­cess. This is also what the DMA aims at as a basis for contestability.

Accor­din­gly, pri­va­te enforce­ment should place a much hig­her empha­sis on pro­tec­ting other eco­no­mic enti­ties as litig­ants. 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, access could be regu­la­ted as a posi­ti­ve per­for­mance cla­im, which would have to be pro­vi­sio­nal­ly com­pli­ed with in case of doubt, unless fac­tu­al reasons are put for­ward by the gatekeeper.

Fair­ness could be ensu­red by more acti­ve con­trol of the con­di­ti­ons. It would be con­ceiva­ble to have enforce­ment powers in the form of asso­cia­ti­ons 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 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.

In other words, a gate­kee­per could be spared from pri­va­te enforce­ment as long 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 by the DMA. At the same time, the cur­rent pro­vi­si­ons of the DMA alre­a­dy con­tain rules under which gate­kee­pers can escape regu­la­ti­on, but the­se are lin­ked to the addres­see 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 they meet the pur­po­ses of the DMA. This could also be done by means of a Euro­pe-wide cer­ti­fi­ca­ti­on mechanism.

About the author

Porträtbild von Dr. Sebastian Louven

Dr. Sebastian Louven

I have been an independent lawyer since 2016 and advise mainly on antitrust law and telecommunications law. Since 2022 I am a specialist lawyer for international business law.

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