Procedures in the DMA: non-compliance navigation – Exploring the European Commission’s space for discretion and informality in procedure and decision-making in the Digital Markets Act

The enforcement of the Digital Markets Act (DMA) against digital gatekeepers has reached the stage of non-compliance cases. The European Commission as the sole enforcer needs to navigate the unclear procedural territory foreseen in the DMA for such cases. The potential paths differ from procedures in competition law enforcement. The DMA offers a range of options in case of suspected non-compliance, including specification procedures. Yet, there is less space for informal activities of the Commission, such as settlements. The DMA also gives very limited room to commitment decisions that became a standard in antitrust. A particular problem arises when gatekeepers adapt their behaviour during proceedings. In the logic of the DMA, such delayed compliance must still lead to a finding of non-compliance. The procedural routes show that the DMA is a hybrid of top-down-enforcement and negotiated enforcement with a three-step-enforcement escalation. <br>