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Regulating Digital Gatekeepers – the Digital Markets Act journal article

Fatma Ceren Morbel

European Competition and Regulatory Law Review, Volume 7 (2023), Issue 4, Page 206 - 215

As digitalisation has increased and data has become more powerful, more comprehensive digital regulation has become necessary, including by national competition authorities and the European Commission. The Digital Markets Act (the DMA) is a good example of this area of regulation.1 In November 2022, the DMA came into force, introducing new regulations for core platform services which functioned as ‘gatekeepers’ in the digital market. By enacting the DMA, these platforms are prevented from treating businesses and consumers unfairly. The purpose of this paper is to provide a general overview of the DMA and its relationship to antitrust enforcement. Keywords: digital markets; digital economy; Digital Markets Act; competition law; antitrust

Is There a Need for a Visible Hand in Digital Markets? journal article

Gönenç Gürkaynak, Ali Kağan Uçar, Uzay Görkem Yıldız

European Competition and Regulatory Law Review, Volume 6 (2022), Issue 4, Page 306 - 317

This article explores whether there is a need for ex ante regulations in digital markets. It explains implications of ex ante regulations in digital markets and focuses on the competition jurisprudence which has generated new terminologies such as ‘tipping’, ‘gatekeepers’ and ‘self-preferencing’ over the last decade, indicating that competition law easily adapts to emerging problems and sweeping ex ante regulation efforts in the digital markets might be uncalled for. In this regard, the article summarizes the on-going debate on whether competition law, as is, can sufficiently address and deliver solutions for competitive concerns in digital markets. Within this scope, the paper examines the alleged competitive concerns in digital markets and argues that it is crucial to first conduct counterfactual analysis with concrete facts, parameters and data, to identify the risks associated with over regulations. The article further contends that the competition law toolkit in place is a sufficient and more appropriate way to deal with anti-competitive conducts and the ongoing ex ante regulation efforts in digital markets are condemned to result in a decline in competition and innovation in the long run. Keywords: ex ante regulations; digital markets; gatekeepers; assumption of market power

Effective Competition in Digital Platform Markets: journal article

Legislative and Enforcement Trends in the EU and the US

Joseph Antel, Ciara Barbu-O’Connor, John Carroll, Katie Daw, Robert Klotz

European Competition and Regulatory Law Review, Volume 6 (2022), Issue 1, Page 35 - 55

Efforts to tackle the increasing market power of data driven platforms are taking a new turn. So far, the European Union has been more aggressive and creative than the United States, notably with severe antitrust enforcement action. However, there is a perceived enforcement gap in platform markets, due to increased concentration, rising profit margins, declining market entry and low investment compared to profits, according to many. With the European Commission proposing the Digital Markets Act and the US ramping up on a number of fronts with an intensified interest in Big Tech and a political climate favourable to an emerging legislative consensus for targeted antitrust law reforms in this field, we are on the verge of new rules to bridge this gap more effectively. This article sheds light on the current developments in the EU and the US, as a basis for the juxtaposition of both approaches and attempt to draw conclusions for future debate. Keywords: digital platforms, antitrust enforcement, upfront regulation, Digital Markets Act, gatekeepers, global convergence and cooperation

A New Era for European Merger Control: journal article

An Increasingly Fragmented and Uncertain Regulatory Landscape

Salomé Cisnal de Ugarte, Mélanie Perez, Ivan Pico

European Competition and Regulatory Law Review, Volume 6 (2022), Issue 1, Page 17 - 23

The third decade of the 21st century promises to look very different for European merger control. After several very successful acquisitions by Big Tech companies, competition law enforcers are increasingly concerned that their merger control regimes might not capture transactions that may have anticompetitive effects in the long run. As a consequence, European regulators are taking various initiatives which make the merger control landscape increasingly fragmented and complex, ranging from the introduction of value-based jurisdictional thresholds and a new referral policy that can catch mergers post-closing, to ground breaking regulatory initiatives in the digital sphere, changes relating to the substantive assessment of mergers in dynamic markets and foreign direct investment and subsidies screenings. This results in decreasing legal certainty for companies engaging in cross-border M&A and increased transaction costs. Keywords: merger control, Digital Markets Act, referrals, Article 22 EUMR, foreign subsidies, dynamic competition