The interest of National Competition Authorities (“NCAs”) in playing a prominent role in the enforcement of the Digital Markets Act (“DMA”) is not new. Back in May 2021, the German, French and Dutch competition authorities published a “non-paper” entitled “Friends of an effective Digital Markets Act” containing several proposals to improve the DMA. This non-paper already defended strengthening the role of Member States, both in terms of enforcement and further modifications of the Act.
ECN Joint Paper
On 21 June 2021, the European Competition Network (“ECN”) published a joint paper drafted by the heads of the national competition authorities of the European Union. The ECN is the body through which NCAs of EU Member States and the European Commission organize their cooperation.
The paper raises several key considerations to support the idea that NCAs and DG Comp should play a prominent role in the enforcement of the DMA:
- Competition law has played and keeps playing a central role in the digital economy. Due to its transdisciplinary nature, Competition law is particularly well fitted to respond to the drastic disruptions brought about by new technologies. The paper cites the many interventions of NCAs and the European Commission against various digital platforms.
- The DMA and Competition law are interlinked and should remain complementary. The DMA proposal is built on the evidence provided by competition law cases and sector inquiries of various NCAs and the European Commission.
- Effective enforcement of the DMA requires using the expertise of NCAs. NCAs are able to draw from their extensive experience in competition law cases to determine whether a gatekeeper violates articles 5 and 6 of the DMA. Additionally, they also have the technical and procedural know-how to deal with such cases.
In very concrete terms, the ECN mainly advocates that the effective application of the DMA can only be achieved through:
- DG Comp taking the lead regarding the primary application of the DMA, the European Commission remaining the centre of gravity for enforcement.
- Allowing NCAs to have a complementary role in the enforcement of the DMA.
- The creation of a mechanism for close coordination and cooperation between these agencies, as well as with national courts implementing both the DMA and EU (and national) competition law.
- Integration (in the DMA) of rules on the articulation of enforcement powers between the European Commission and NCAs.
Essentially, NCAs advocate for an enforcement framework of the DMA that is very similar to the one provided for the application of EU Competition law. Regulation 1/2003 and the ECN+ Directive are presented as a model for cooperation and coordination which should be transposed to the enforcement of the DMA.
NCAs clearly seek to take on a leading role as enforcers of a future DMA regulatory framework. However, the ECN’s joint paper makes no mention of a possible shared enforcement role with other national specialist regulatory agencies, such as data protection authorities. As suggested by Hein Hobbelen during his recent speaking engagement at the Florence Summer Competition Conference, specialist agencies should be given a seat at the DMA enforcers table. NCAs are limited in resources, and the involvement of specialist agencies will positively contribute to the effective enforcement of the DMA.