In its special report published today, the Monopolies Commission sets out how the DMA can be more specifically geared towards safeguarding competition in digital markets for the benefit of consumers.  

Clearly focus the DMA on digital ecosystems 

The Monopolies Commission recommends limiting the provisions to operators of digital ecosystems. A small number of dominant tech conglomerates are extending their economic power into ever more areas, meaning that competition is no longer threatened only in individual markets, but across entire ecosystems. The current proposal targets companies – known as ‘gatekeepers’ – that operate key platform services such as search engines, operating systems, app stores or online marketplaces. However, competition faces particularly serious threats when, for example, a provider operating an app store, an operating system, a search engine and a voice assistant service leverages its economic power from these areas into other sectors and expands its dominant position there. In the Monopolies Commission’s view, such cases represent the key competition problems in digital markets, which are not adequately addressed in the current proposal. The Monopolies Commission therefore advocates that the DMA should only cover those undertakings that operate an ecosystem comprising at least two interrelated core platform services or that are active in a dual role, for example as both a marketplace operator and a trader on the marketplace. Focusing on ecosystem providers and the key competition issues also allows for a more effective use of resources in enforcing the DMA.  

Allow regulatory exemptions where there are clear benefits for consumers 

The current draft of the DMA contains behavioural obligations for digital gatekeepers that do not require an assessment of the impact of that behaviour on competition on a case-by-case basis (so-called ‘per se’ rules). Exceptions to these behavioural obligations are only possible within very narrow limits, e.g. for reasons of public safety. On the one hand, the clarity of the rules thus established is important for swift enforcement. On the other hand, it conflicts with potential benefits for consumers that may result from certain types of conduct, such as the integration of several of a company’s own services or the aggregation of data. To take this into account, an exception to the rules of conduct – a so-called ‘efficiency justification’ – should be permitted in clear-cut cases. Companies would have to provide evidence of the existence of such benefits. Companies would also have to demonstrate that their conduct does not significantly restrict the contestability and fairness of digital markets. Furthermore, until an exemption is granted, companies would remain bound by the behavioural obligations so as not to jeopardise the acceleration of enforcement – a key objective of the DMA. 

Prohibit self-preferencing practices more comprehensively 

Particularly where a narrowly defined efficiency defence is introduced, the scope of the prohibitions may also be extended in specific areas. The Monopolies Commission recommends prohibiting so-called self-preferencing strategies within ecosystems even more comprehensively than in the current draft (subject to an efficiency defence). For example, in addition to the particularly prominent display of one’s own products, the default setting of one’s own services – such as one’s own browser – on one’s own operating system should be prohibited.