2022-09-04-ITIF-_数字市场法_监管对创新的胜利（英）_24页_339kb

Digital Markets Act Summary

Title: The Digital Markets Act: A Triumph of Regulation Over Innovation
Author: Aurelien Portuese

1. Introduction and Background

The DMA is a EU regulation (2020) aimed at creating contestable and fair digital markets. It imposes obligations and prohibitions on designated gatekeepers, with the stated goal of fostering competition within the Digital Single Market (DSM). However, it raises concerns about unintended consequences, regulatory fragmentation, and economic inefficiency.

2. Key Criticisms

a) Regulatory Fragmentation

• The DMA intended to harmonize rules but allows member states to impose additional national regulations, increasing fragmentation and conflicting enforcement.
• Decentralized enforcement mechanisms, such as involvement by national competition authorities (NCAs), exacerbate this issue, leading to divergent interpretations and harming businesses seeking cross-border operations.

b) Blanket Prohibitions Ignoring Proportionality

• The DMA's ex ante "per se" rules prohibit practices without assessing context, ignoring legitimate economic justifications and innovation benefits.
• Prohibitions are disproportionate, violating EU principles of proportionality, which require that interventions are necessary, minimal, and commensurate with the goal. EU courts may invalidate provisions that enforce without justification.
• Examples include banning self-favoring and data sharing practices, which can be pro-competitive and efficient, leading to consumer harm.

c) Implementation Conflicts with Other EU Laws

• The DMA's rules conflict with existing EU legislation, such as the GDPR, data protection directives, and competition rules, causing implementation hurdles and potential legal ambiguity.
• Gatekeepers must comply with multiple, overlapping regulations, increasing compliance costs and deterring innovation.

3. Key Findings

• The DMA risks increasing fragmentation, stifling innovation through arbitrary prohibitions, and generating regulatory uncertainty due to conflicts with other laws.
• Unintended effects include reduced consumer welfare, increased false positives, and challenges for startups and platforms.

4. Conclusion

The DMA undermines its goals by fostering regulatory fragmentation, ignoring proportionality, and conflicting with other EU regulations. Unless reformed, it could harm European innovation and consumers.