The Institutional Framework of the DMA: From Hybrid to Mature?

The key contribution of this paper is its conceptual focus on and analysis of the innovative and evolving notion of “compliance” as enshrined in the DMA. It compares and contrasts the enforcement-based model of antitrust that relies basically on punishment with the new more complex and hybrid institutional structure of the DMA. The latter relies at first instance on a “dialogic” framework of compliance and leaves the “punitive” model of enforcement as an option of last resort. The Commission as the central institutional actor has discretion to escalate or deescalate the process of the DMA’s implementation along this compliance-enforcement continuum through different instruments. Besides, unlike antitrust, the DMA is based on cooperation between regulator and regulatees and ongoing supervision by regulators and compliance by firms. Its institutional identity and sophistication is thus unique. By shedding light on the institutional framework of the DMA and the particular interplay between enforcement and compliance we suggest that another type of “cooperative compliance” emerges, in light of the available regulatory dialogue and negotiation tools between gatekeepers and the Commission, beyond the ones we know from antitrust or other regulations.

At the same time, the institutional role of the Commission, central as it might be to the implementation of the DMA, is supported and counterbalanced by a wide array of decentralised institutional actors and procedures. These features suggest a less hierarchical view of the DMA’s institutional structure that relies as much on participation and cooperation by third parties and agencies as on centralised enforcement and supervision. Therefore, looking at the bigger picture, the openness in the DMA’s procedural and institutional design effectively complements the closed nature of its substantive obligations imposed on digital gatekeepers. The DMA embraces flexible means to achieve fixed ends. This flexibility renders the DMA a truly dynamic piece of regulation that guarantees its maximal effectiveness, yet it remains to be seen to what extent foundational legal principles may set institutional constraints that also ensure its legitimacy. In light of the revolutionary character of its institutional structure, a balance is needed for the successful and sustainable application of the DMA.