Goals of the AfCFTA Competition Protocol Digital MarketCompetition Regulations: LESSONS FROM SOUTH AFRICA’S ONLINE INTERMEDIATION PLATFORM MARKET INQUIRY (OIPMI), THE EU’S DMA AND THE US EXPERIENCES WITH DIGITAL PLATFORM GIANTS

The European Union (EU) has continued to be a worldwide leader in setting international norms, particularly in competition law policy, data protection and platform governance. In digital market regulation, after the EU Digital Markets Act (DMA), several countries have adopted or are considering the adoption of digital markets competition regulations (DMCR) similar to the DMA. While some have challenged the notion that the DMA and its goals of ensuring contestability and fairness in the market should not be the blueprint for adopting DMCRs in other countries, at this juncture, it is impossible to overstate the influence of the EU DMA on future DMCRs. We contribute towards this scholarly debate on the influence of the DMA beyond the EU by focusing on a region that, despite competition agencies’ regulatory enforcement in digital markets, has not received adequate scholarly attention: Africa. Although no African country has considered adopting a DMCR at the continental level, African countries seek to adopt a DMCR under the AfCFTA Competition Protocol (CP).

In formulating the appropriate goals of the AfCFTA DMCR, we build on African experiences in enforcing competition law, the African market structure, the debate on the goals of competition law in Africa, intellectual thinking on regulation of digital markets and the EU DMA. More specifically, for the African context, we draw on the 2023 Competition Commission of South Africa, Online Intermediation Platforms Market Inquiry (OIPMI) findings on business user treatment to further inform the appropriate goals of the AfCFTA DMCR. An analysis of the OIPMI Final Report shows that African markets have high barriers to entry, and digital platforms impose unfair trading conditions on African businesses compared to international businesses. Consequently, like the EU DMA, fairness and contestability are critical for the success of African businesses in the digital markets. Given that public interest considerations will continue to shape African competition law enforcement in digital markets, African countries can draw from the insights of the EU Ordoliberal thinking as related to the currently dissipated US New Brandeisian movement, both of which seek to enhance the participation of small businesses in a market characterized by few firms with concentrated economic power. We conclude by recommending that, unlike the DMA, in which the goals are distinct from competition law, the AfCFTA DMCR should incorporate multiple goals merging regulatory goals with those of competition law enforcement, while prioritizing innovation, inclusivity, fairness, and contestability.