On October 5, 2021, the Monopolies Commission published its Special Report on the draft Digital Markets Act (“DMA”)[1] welcoming many rules of the draft DMA but also proposing amendments.

The Monopolies Commission advocates for a limited application of the DMA to digital ecosystems, i.e., companies that either have a “dual role” on one platform because they both operate the platform and offer goods or services on the platform, or that operate of several interrelated and complementary platform services.

The DMA should introduce a narrowly construed efficiency defense to avoid prohibitions of efficient conduct.  Companies relying on an efficiency defense should remain bound by the DMA until they requested an individual exemption by the EC demonstrating the efficiency of the underlying conduct and the EC granted the exemption.

In addition, the Monopolies Commission suggests a number of smaller amendments:

• The DMA’s objectives to ensure competition to gatekeepers’ offers (e., contestability of their market positions) and to prevent exploitative abuses (i.e., fairness for the gatekeeper’s customers) should be set out more clearly in the preamble.
• Web browsers, e-commerce market places, and voice assistant services should be listed as services potentially falling under the DMA.
• The dialogue procedure (which allows the EC to order specific remedies) should apply to any conduct instead of being limited to certain behaviors currently set out in Art. 6 DMA.
• The DMA should more comprehensively prohibit any self-preferencing including presetting of gatekeeper apps and services as default.
• Third-party providers should be able to port data on behalf of end users rather than users being required to involve themselves into the process.

While the FCO and other competition authorities had requested that enforcement powers under the DMA be delegated to national competition authorities, the Monopolies Commission does not comment on the enforcement competencies.[2]

Editor: Anna Lubberger

[1]              The Monopolies Commission’s Press Release of October 5, 2021, available in English here.  The full report “Recommendations for an effective and efficient Digital Markets Act” of October 5, 2021 is available in English here.  See also the EC’s current proposal for the DMA of December 15, 2021, available in English here.  For more details on the DMA, see also our article on our Cleary Antitrust Watch blog here; and here; and here.

[2]              See the FCO’s Press Release of June 23, 2021 on the joint paper of the European Competition Network, available in English here; and its joint paper, available in English here.