Abuse of Dominance and the DMA – Differing Objectives or Prevailing Continuity?

Abstract

A new EU regulation called the Digital Markets Act aims to keep digital markets open and fair in the face of the power of the so-called internet gatekeepers. Although the DMA has, at the first sight, much in common with Article 102 TFEU, which prohibits abuse of dominant positions, it declares itself to be a different instrument pursuing different objectives and protecting different legal interests. This text seeks to identify the similarities and differences in the values and objectives pursued between Article 102 TFEU and the DMA. Both are tools in the toolbox of the European Commission’s DG Competition and their complementarity is desirable in theory and practice if competition-incompatible regulation of selected online platforms is not to occur, possibly leading to their unwanted double punishment for the same thing. The analysis carried out leads to the conclusion that, despite the insistence on their separate nature and on differences in their objectives, a value consensus prevails between the two instruments.