Abstract
Under the Digital Markets Act, gatekeeper platforms abide by numerous ex-ante rules, including narrow data-sharing obligations that address data-driven market tipping. Gatekeepers also remain subject to ex-post competition interventions. While interventions under both ex-ante and ex-post (antitrust) mandates are not novel, they must be approached with extra care in data-driven digital markets, where uncertainty and error costs are high. Therefore, we argue that post-DMA competition enforcement against gatekeepers requires rigorous ex-post economic effects analysis at two levels: foreclosure assessment and devising appropriate remedies. Regarding foreclosure assessment, we propose a ‘multiple-counterfactual-causation-test’ for establishing anticompetitive effects, which should ensure a nuanced analysis of the competitive landscape on data-driven digital markets in the post-DMA world. Regarding remedies, a fine-grained, proportionality-driven assessment of the need for ex-post data-related obligations is vital.
| Original language | English |
|---|---|
| Pages (from-to) | 328-352 |
| Number of pages | 25 |
| Journal | Journal of Antitrust Enforcement |
| Volume | 13 |
| Issue number | 2 |
| Early online date | 10 Aug 2024 |
| DOIs | |
| Publication status | Published - Jul 2025 |
Bibliographical note
Publisher Copyright:© The Author(s) 2024. Published by Oxford University Press.
Funding
The authors would like to thank the researchers and staff of the International Relations Chair (IR Chair) of the Munich School of Politics and Public Policy (Hochschule fuer Politik Muenchen) for the various comments they provided on this project. A note of thanks is also due to the Economic Public Law (EPL) Department of Utrecht University for the support and intellectual exchange on the paper, as well as to the RegulAite project team within the Political Science Department of the University of Amsterdam (UvA). We are also indebted to Helena Malikova (European Commission) and Joachim Henkel (TUM) for generously offering to comment on this work on several occasions. The authors have nothing to disclose; all errors remain their own.
| Funders |
|---|
| Economic Public Law (EPL) Department of Utrecht University |
Keywords
- DMA
- causation
- competition
- counterfactuals
- data-driven markets
- regulation
- remedies