Unraveling the proposal of Digital Market Act La proposta di legge sui mercati digitali: una prima mappatura

On 15 December 2020, the Commission formally launched a legislative procedure by presenting a proposal for a regulation on fair and contestable markets in the digital sector, already known by the acronym DMA (‘Digital Market Act’). The most innovative elements of the DMA are twofold: the introduction of the legal figure of the gatekeeper and the elaboration of specific competitive obligations imposed on the latter. While the purpose and content of the notion of gatekeeper are relatively clear, the same cannot be said of the obligations imposed on them. In fact, Articles 5 and 6 contain a total of eighteen extremely heterogeneous and dissimilar types of requirements. This obscures the meaning and the competitive value of the DMA. The aim of the contribution is to unravel the skein of these obligations and to bring them as far as possible into the general categories of antitrust law. The analysis leads to the conclusion that a large part of the obligations provided for in the draft regulation is aimed at prohibiting practices which already fall within the scope of the antitrust rules, as demonstrated by the fact that such obligations have often been modelled on the cases investigated by the Commission under Articles 101 and 102. This does not detract from the fact that the systematic declension of antitrust principles in the digital sector carried out by the DMA has produced innovative provisions in their specificity. The detailed articulation of the competition obligations, the specification that in certain cases the intervention of public institutions is necessary to identify competitive conduct and the identification of the figure of the gatekeeper on the basis of sufficiently certain qualitative and quantitative parameters shift the center of gravity of the application of the principles of competition from ex post to ex ante, that is, from competition to regulation. This seems to be the qualifying and crucial element of the DMA proposal.