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UC Law Business Journal

Abstract

This Article makes a significant contribution to the debate on whether the model underpinning the much-heralded European Union Digital Market Act (“DMA”) 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 European Commission (“Commission”) enforcement decisions in the years leading up to the DMA’s enactment are examined to show less than optimal outcomes were achieved by the Commission’s attempts to grapple with gatekeepers’ anti-competitive exclusionary practices. The Authors proceed to demonstrate how the DMA’s “obligations list” model will also fail to counteract long-standing well-known anti-competitive conduct, allowing gatekeepers to 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 currently deficient DMA obligations model will pose neither a significant deterrent to anti-competitive gatekeepers nor a “silver bullet” to successfully protect online markets’ contestability.

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