How the DMA obligations model fails to protect online markets contestability and proposals for reform

This Article makes a significant contribution to the debate on whether the model underpinning the much-heralded EU Digital Market Act can provide a comprehensive level of protection against online gatekeepers’ abusive practices and achieve the DMA’s proclaimed ambition to protect online markets contestability in the digital space. To illustrate model-failure, key Commission enforcement decisions in the years leading up to DMA enactment are examined to show less than optimal outcomes were achieved by the Commission’s attempts to grapple with gatekeepers anti-competitive exclusionary practices, before the authors then proceed to demonstrate how the DMA’s ‘obligations list’ model will also fail to counteract long-standing well-known anti-competitive conduct, allowing gatekeepers continue by default to engage in such conduct largely free from regulatory restraint. Identifying several important examples of DMA obligations-model gaps, the authors analysis calls into question the DMA’s aspiration to protect online markets’ contestability and proposes reforms for amending the model in order to adequately protect market contestability in the digital space. Absent such reforms, the current deficient DMA obligations model will pose neither a significant deterrent to anti-competitive gatekeepers, nor a ‘silver bullet’ to successfully protect online markets contestability.