Becoming the DMA: The Parliament’s Compromise (For Now)

By: Philipp Bongartz (D’Kart)

Originally, the DMA was meant to create harmonised rules ensuring contestable and fair markets in the digital sector. Critics pointed to a lack of vision: Which ultimate goal is the DMA meant to serve? Consumer welfare? Internal Market integration? Promoting European small and medium sized enterprises (SMEs)?

Accordingly, the  Compromise Amendments tweak Art. 1 (1) DMA in two ways. First, the DMA shall contribute to the proper functioning of the Internal Market. This pledge to the legal basis (Article 114 TFEU) is well known: The avoidance of Internal Market fragmentation through diverging national rules for platforms was included in the Commission’s draft already. It merely moved from Recital 6 to the main body. Second and more interestingly, the Compromise Amendments add that these goals are pursued so as to foster innovation and increase consumer welfare. The amendments were inserted from two different proposals (amendment 383 and 384). Notably, the mention of European undertakings, including SMEs, as also suggested in amendment 383, was rejected.

Consumer welfare, including innovation, is a trusted friend for (many) competition lawyers. Still the DMA insistently pursues an objective complementary but different from that of competition law (Recital 10). That is hardly credible if the DMA aims to achieve fairness only as a means to promote consumer welfare (so does Article 102 (a) TFEU). The DMA understood in that way is little more than a new tool to crack the same nut. Apparently, the legislator is hesitant to openly advocate a redistribution of rents (to the detriment of US companies). The Americans got the point long ago and found their own name for it: protectionism (see here and here). So please, DMA, get out of the closet…

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