The EU’s Proposal for a Digital Markets Act – an Ex Ante Landmark

The Digital Markets Act proposal released by the European Commission on December 15, 2020 will likely become a landmark in the regulation of digital markets. Thus far, the public debate has mainly focused on two unique particularities of the DMA: the novelty of its structure and operation on the one hand, and the complementary role that it will play regarding other regulatory tools on the other. But are there any other characteristics that render the DMA a distinctive, novel type of instrument? This article elaborates on this question and provides a deep dive into the DMA and, in particular, it explores three elements: (i) the DMA’s ambitious design vis-à-vis other regulatory tools, (ii) the way in which the DMA tackles structural issues typically found in digital markets, and (iii) the DMA’s ability to regulate these markets by going beyond precedents.

By Prabhat Agarwal¹

I. INTRODUCTION

The release on December 15, 2020 of the European Commission’s proposal for a Digital Markets Act (“DMA”),² forming the “Digital Services package” together with its sister the proposal for a Digital Services Act (“DSA”), has caused a great stir in the competition and regulatory community. Containing a targeted, clearly defined, and circumscribed list of prohibitions and obligations addressed to online platforms that hold gatekeeping positions, the DMA will constitute an ex ante landmark. Its objective is to tackle practices that are unfair and that undermine t