An Overview on the Scope of the Digital Markets Act: Fair Practices Versus Ex‐Ante Competition Law

Abstract

The proposed Digital Markets Act has been under severe scrutiny in the past couple of years. While it received mostly positive feedback, there were numerous authors and scholars arguing that the new legislation does not provide anything useful or new. The common denominator of most of the analyses is that the Digital Markets Act is an ex-ante antitrust legislation and that the obligations tackle the (abusive) dominance of the gatekeepers to be designated. In this article, I try to deconstruct the requirements for determining whether an undertaking is a gatekeeper and to assess whether the proposal fits into a regulatory compliance type of legislation or ex-ante competition law. In addition to the analytical approach, I will take the example of the Intel and Microsoft cases and the intricacies that arose from them. I will further assess possible implications that the proposal might have for innovation and other aspects of the market.