Who should guard the gatekeepers: does the DMA replicate the unworkable test of regulation 1/2003 to settle conflicts between EU and national laws?

The relationship between EU competition laws, national competition laws, and laws that regulate markets and market participants (e.g. unfair trading practices) has been on the EU agenda from its very inception. In recent years, the relationship between those laws and (EU and national) regulation of online platforms has sparked additional debate. The controversy revolves around the fate of national rules that are similar or overlapping with EU laws on competition (Article 101 and 102 TFEU) and on digital markets (the Digital Markets Act, “DMA”). While at first sight such matters might appear purely technical, they are subject to heated political debate between the EU and its Member States. Matters of conflict of law determine which institutions have the power to govern markets and societies, the substantive rules and extent of their powers, and may considerably limit national legislation and action. In the context of the DMA, such questions will ultimately determine who would guard core platform services with considerable economic power – the digital gatekeepers. When it comes to national laws conflicting or overlapping with the EU competition rules, Article 3 of Regulation 1/2003 (entered into force in May 2004) was supposed to have settled this matter, after many years of uncertainty. More recently, the DMA replicated some of the concepts of Article 3 of Regulation 1/2003 to define the situations in which the EU regulation of gatekeepers excludes the application of other EU or national laws. Yet, the matter is far from settled. As we have demonstrated elsewhere, the test codified in Article 3 to settle conflicts is a less-than perfect solution, which is a result of a political compromise rather than legal-economic theory. In this paper, we submit that the transposition of such a test to the DMA is likely to be met with an equal degree of legal uncertainty and fragmentation. We begin by discussing the conflicts of laws according to the DMA, show that this solution was at least partially inspired by the test for the resolution of conflicts with Articles 101 and 102 TFEU, and conclude by pointing to the difficulties of transplanting the text of the latter into the former.