The European Commission’s Challenge to Consent or Pay: Demystifying the Digital Markets Act?

The European Union’s (EU’s) Digital Markets Act (DMA) was hailed as a new era of digital regulation following a decade of debates on the flexibility of traditional competition law. Article 5(2) DMA requires gatekeepers to offer users a choice to opt-out of the data exchanges across a gatekeeper’s services. Half a year after becoming applicable, its fitness for purpose and theoretical underpinnings are in the spotlight as the European Commission (EC) investigates Meta’s consent or pay solution on the assumption that such a model is not compliant. This paper considers whether this assumption is supported by an interpretation of Article 5(2) DMA and assesses the risks posed by the EC’s position to the integrity of the DMA and its aim to revolutionize competition law.