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In a nutshell, I think the DMU (Digital Market Unit) is preferable to the DMA approach in the following dimension: clarity, enforceability, flexibility and progressivity.
I will try to expand, but these are preliminary thoughts. I reserve the right to change my mind.
I will try to expand, but these are preliminary thoughts. I reserve the right to change my mind.
My comments here will focus on the inflexibility of Article 5 obligations, but I believe that they would also apply, with only minor changes to Article 6.
There are many other aspects of the DMA proposal which deserve discussion but this will be for another time.
There are many other aspects of the DMA proposal which deserve discussion but this will be for another time.
The digital economy is more innovative, fast-changing, and diversified than any other regulated industry. Designing an appropriate regulatory framework is a daunting task.
The main fear of the Commission seems to have been that too much flexibility would lead to under-enforceability. Article 5 therefore lists self-enforcing obligations, from which the gatekeeper firms can essentially not be excused. They will be heavily fined if they infringe.
This list applies to ALL the gatekeeper firms. You would have thought it impossible to write down unambiguous and pertinent rules for the 5 to 10 largest firms in the digital economy. And you would be right!
For instance, the commission asked a group of very well-regarded experts for an opinion about the DMA proposal. Their discussion of article 5(g) states "On the publisher side, presumably ...". (Page 16)
https://publications.jrc.ec.europa.eu/repository/bitstream/JRC122910/jrc122910_external_study_report_-_the_eu_digital_markets_act.pdf
https://publications.jrc.ec.europa.eu/repository/bitstream/JRC122910/jrc122910_external_study_report_-_the_eu_digital_markets_act.pdf
A little later, they discuss privacy issues and say "one would have to make sure ..."
These ambiguities would be fine, if a mechanism had been set in place by which the firms could ask for clarification from the Commission, but this is against the spirit of article 5.
These ambiguities would be fine, if a mechanism had been set in place by which the firms could ask for clarification from the Commission, but this is against the spirit of article 5.
All the discussions of Article 5 that I have seen show similar puzzlement about the precise meaning of these "self-enforcing" obligations.
Some way around these ambiguities will be found, but they will be informal and not be done with the degree of thoroughness that would be necessary.
My main fear is that this will lead to weak and inconsistent enforcement; either because the Commission decides not to pursue some infractions or because of appeals to the judicial system.
The proposal also does not contain any mechanism for correcting or deleting Article 5 obligations that prove ill-advised.
I find the DMU approach much more appealing, and, I suspect, much easier to enforce. It only writes in the law general principles and lets the regulator adapt their implementation to the specificities of the business model of each of the regulated firms
In a fast-changing industry, regulatory institutions should be designed so that they can learn and adapt. The DMA proposal is not satisfactory in that regard. The DMU seems to be.
