The Digital Markets acts: Between market regulation, competition rules and unfair trade practices rules

Abstract

In 2020 the European Commission presented its legislative package aimed to deal with new challenges for the internal market stemming from development on digital markets and alleged abuses and anticompetitive practices therein, including the Digital Markets Act (DMA). The aim of this paper is not to evaluate content of the DMA itself, but to evaluate the position of the DMA in the context of other market sector-oriented regulations , rules on unfair trade practices, competition rules as well as fitness of legal basis and observance of rule of law safeguards. As the DMA proposal departed from competition law legal basis enshrined in Art. 101 et seq. of the Treaty on the Functioning of the European Union, it paved the way for the possibility to impose sanction under both regimes. This possibility of double sanctions and necessity for check of proportionality in all actions of the Commission as well as in imposition of fines constitute one of the most relevant shortcomings from the "constitutional" point of view of position of the DMA in the EU legal framework. As it is argued in this paper, without more synchronization with competition regulatory regimes, the DMA proposal contains elements that can, at the end of the day, diminish its legal effectiveness via subsequent judicial battles.