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#Tech, Media, Telecom

Making the Digital Markets Act more resilient and effective

  • May 26, 2021
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Document(s)
FULL PAPER | Making the Digital Markets Act more resilient and effective
RECOMMENDATIONS | Making the Digital Markets Act more resilient and effective
ISSUE PAPER 1 | Gatekeeper definition and designation
ISSUE PAPER 2 | Architecture
ISSUE PAPER 3 | Obligations and prohibitions
ISSUE PAPER 4 | Enforcement and institutional arrangements

Aiming to improve the European Commission’s Digital Markets Act proposal as it continues to be scrutinised and refined, CERRE has prepared four issue papers and a subsequent set of recommendations for the Digital Markets Act.

  1. More clarity on the objectives of the DMA, specifically the meaning of contestability and fairness.
  2. Focus scope to minimise the risks of over and under inclusiveness.
  3. A better balance between the ‘administrability’ and flexibility of the DMA.
  4. Room and mechanisms within the DMA for learning-by-doing in order to optimise regulation of digital markets in the long run.
  5. A role for national authorities in supporting the Commission through their knowledge of local conditions, proximity to businesses and expertise in designing remedies.

Clarity

The authors propose to clarify the objectives of contestability and fairness in the DMA to increase legal certainty for gatekeepers and to facilitate enforcement by the Commission and the judiciary. Contestability should include the openness of the CPS services and markets, but also the openness of services and markets which are related to those CPSs. Fairness should ensure the protection of commercial opportunities for the business of the platforms.

Scope

The authors also make recommendations for increasing the scope of the concept of Core Platform Services by adding an ecosystem criterion and suggest guidelines for assessing the indicators of gatekeepers, as well as adjustments to the scope of obligations.

Balance

Time is of the essence when it comes to implementing the DMA, which is why ‘administrability’ is key. However, the digital economy is complex and dynamic, not to mention the number of evolving trade-offs and varied business models to consider when regulating the market. Therefore, flexibility must be built into the framework and the authors encourage more flexibility than put forward in the Commission’s proposal.

Learn and improve

In the event that a gatekeeper is considered to have infringed its obligations, the authors recommend setting up a formal procedure by which business users and end users can make complaints. On top of this, they suggest a well-designed whistleblowing function. These would enable the enforcement and efficacy of the DMA to be monitored, facilitating learning.

Given that business models in the digital economy are relatively new and fairly complex, the paper suggests that the Commission should be able to add, as well as remove, obligations if regulatory experience, market developments, or technological evolution deem current obligations out of date.

Role for national authorities

National authorities have a comparative advantage in certain areas of regulation compared to the EU. Whilst the authors commend the Commission’s proposal to centralise the enforcement of the DMA at the EU level, they recommend a role for national authorities in supporting the Commission through the knowledge of local conditions, proximity to businesses and expertise in designing remedies that they already possess. The authors even suggest establishing an EU network of independent national authorities on top of the Digital Markets Advisory Committee (DMAC) already foreseen.

The issue papers covered the following aspects of the Commission’s DMA proposals:

  1. Gatekeeper definition and designation
  2. Architecture
  3. Obligations and prohibitions
  4. Enforcement and institutional arrangements

Read the issue papers and recommendations in full.

Author(s)
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Alexandre De Streel (2)
Alexandre de Streel
Academic Director
and University of Namur

Alexandre de Streel is the Academic Director of the digital research programme at the Brussels think-tank Centre on Regulation in Europe (CERRE), professor of European law at the University of Namur and visiting professor at the College of Europe (Bruges) and SciencesPo Paris. He sits in the scientific committees of the Knight-Georgetown Institute (US), the European University Institute-Centre for a Digital Society (Italy) and the Mannheim Centre for Competition and Innovation (Germany).

His main research areas are regulation and competition policy in the digital economy (telecommunications, platforms and data) as well as the legal issues raised by the developments of artificial intelligence. He regularly advises the European Union and international organisations on digital regulation.

Previously, Alexandre held visiting positions at New York University Law School, the European University Institute in Florence, Panthéon-Assas (Singapore campus), Barcelona Graduate School of Economics and the University of Louvain. He also worked for the Belgian Deputy Prime Minister, the Belgian Permanent Representation to the European Union, and the European Commission. He has also been the chair of the expert group on the online platform economy, advising the European Commission.

Alexandre de Streel is the Academic Director of the digital research programme at the Brussels think-tank Centre on Regulation in Europe (CERRE), professor of European law at the University of Namur and visiting professor at the College of Europe (Bruges) and SciencesPo Paris. He sits in the scientific committees of the Knight-Georgetown Institute (US), the European University Institute-Centre for a Digital Society (Italy) and the Mannheim Centre for Competition and Innovation (Germany).

His main research areas are regulation and competition policy in the digital economy (telecommunications, platforms and data) as well as the legal issues raised by the developments of artificial intelligence. He regularly advises the European Union and international organisations on digital regulation.

Previously, Alexandre held visiting positions at New York University Law School, the European University Institute in Florence, Panthéon-Assas (Singapore campus), Barcelona Graduate School of Economics and the University of Louvain. He also worked for the Belgian Deputy Prime Minister, the Belgian Permanent Representation to the European Union, and the European Commission. He has also been the chair of the expert group on the online platform economy, advising the European Commission.

Richard Feasey (1)
Richard Feasey
CERRE Senior Advisor
Tech, Media, Telecom

Richard Feasey is a CERRE Senior Adviser, an Inquiry Chair at the UK’s Competition and Markets Authority and Member of the National Infrastructure Commission for Wales.

He lectures at University College and Kings College London and the Judge Business School.

He has previously been an adviser to the UK Payments Systems Regulator, the House of Lords EU Sub-Committee and to various international legal and economic advisory firms.

He was Director of Public Policy for Vodafone plc between 2001 and 2013.

Richard Feasey is a CERRE Senior Adviser, an Inquiry Chair at the UK’s Competition and Markets Authority and Member of the National Infrastructure Commission for Wales.

He lectures at University College and Kings College London and the Judge Business School.

He has previously been an adviser to the UK Payments Systems Regulator, the House of Lords EU Sub-Committee and to various international legal and economic advisory firms.

He was Director of Public Policy for Vodafone plc between 2001 and 2013.

Jan Krämer (2)
Jan Krämer
Academic Co-Director
and University of Passau

Jan Krämer is an Academic Co-Director at CERRE and a Professor at the University of Passau, Germany, where he holds the chair of Internet & Telecommunications Business.

Previously, he headed a research group on telecommunications markets at the Karlsruhe Institute of Technology (KIT), where he also obtained a diploma degree in Business and Economics Engineering with a focus on computer science, telematics and operations research, and a Ph.D. in Economics, both with distinction.

He is editor and author of several interdisciplinary books on the regulation of telecommunications markets and has published numerous articles in the premier scholarly journals in Information Systems, Economics, Management and Marketing research on issues such as net neutrality, data and platform economy, and the design of electronic markets.

Professor Krämer has served as academic consultant for leading firms in the telecommunications and Internet industry, as well as for governmental institutions, such as the German Federal Ministry for Economic Affairs and the European Commission.

His current research focuses on the role of data for competition and innovation in online markets and the regulation of online platforms.

Jan Krämer is an Academic Co-Director at CERRE and a Professor at the University of Passau, Germany, where he holds the chair of Internet & Telecommunications Business.

Previously, he headed a research group on telecommunications markets at the Karlsruhe Institute of Technology (KIT), where he also obtained a diploma degree in Business and Economics Engineering with a focus on computer science, telematics and operations research, and a Ph.D. in Economics, both with distinction.

He is editor and author of several interdisciplinary books on the regulation of telecommunications markets and has published numerous articles in the premier scholarly journals in Information Systems, Economics, Management and Marketing research on issues such as net neutrality, data and platform economy, and the design of electronic markets.

Professor Krämer has served as academic consultant for leading firms in the telecommunications and Internet industry, as well as for governmental institutions, such as the German Federal Ministry for Economic Affairs and the European Commission.

His current research focuses on the role of data for competition and innovation in online markets and the regulation of online platforms.

Giorgio Monti
Giorgio Monti
Research Fellow
and Tilburg Law School

Giorgio Monti is a CERRE Research Fellow and Professor of Competition Law at Tilburg Law School.

He began his career in the UK (Leicester 1993-2001 and London School of Economics (2001-2010) before taking up the Chair in competition law at the European University Institute in Florence, Italy (2010-2019). While at the EUI he helped establish the Florence Competition Program which carries out research and training for judges and executives. He also served as Head of the Law Department at the EUI.

His principal field of research is competition law, a subject he enjoys tackling from an economic and a policy perspective.

Together with Damian Chalmers and Gareth Davies he is a co-author of European Union Law: Text and Materials (4th ed, Cambridge University Press, 2019), one of the major texts on the subject. He is one of the editors of the Common Market Law Review.

Giorgio Monti is a CERRE Research Fellow and Professor of Competition Law at Tilburg Law School.

He began his career in the UK (Leicester 1993-2001 and London School of Economics (2001-2010) before taking up the Chair in competition law at the European University Institute in Florence, Italy (2010-2019). While at the EUI he helped establish the Florence Competition Program which carries out research and training for judges and executives. He also served as Head of the Law Department at the EUI.

His principal field of research is competition law, a subject he enjoys tackling from an economic and a policy perspective.

Together with Damian Chalmers and Gareth Davies he is a co-author of European Union Law: Text and Materials (4th ed, Cambridge University Press, 2019), one of the major texts on the subject. He is one of the editors of the Common Market Law Review.

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