Julian Nowag and Anna Tzanaki on The Institutional Framework of the Digital Markets Act: a novel but thoughtful experiment in regulatory design? (Journal of European Competition Law & Practice)

"The institutional framework of the Digital Markets Act: a novel but thoughtful experiment in regulatory design?"
Anna Tzanaki, Julian Nowag
Journal of European Competition Law & Practice
Published online: March 2026

Key Points: 

• By comparison to the enforcement-based model of antitrust that relies on punishment, this article sheds light on the new more complex and hybrid institutional structure of the Digital Markets Act (‘DMA’) that is focused on ‘cooperative’ compliance based on dialogue between regulator and regulated firms and third parties at first instance and leaves the ‘punitive’ model of enforcement as an option of last resort.
• The Commission as the key institutional actor has discretion to escalate or deescalate the process of the DMA’s implementation along this compliance–enforcement continuum through different instruments.
• The central role of the Commission is supported and counterbalanced by a wide array of decentralized institutional actors and procedures, which render the DMA’s institutional architecture less hierarchical and more participatory and flexible.
• The openness in the DMA’s procedural and institutional design effectively complements the closed nature of its substantive obligations imposed on digital gatekeepers.

Adrian Kuenzler on Regulatory Diffusion Beyond Digital Empires – Searching for a Resilient Competition Law Framework (GRUR International)

"Regulatory Diffusion Beyond Digital Empires – Searching for a Resilient Competition Law Framework"
Adrian Kuenzler
GRUR International
Published online: December 2024

Extract: Regulation has had a resurgence across many jurisdictions of late, with digital platforms being distinct new objects that need to be addressed. The emergence of this new regulatory object is part of a global – and vital – tendency toward reassessing tech power and state sovereignty. However, there are considerable differences in how digital platforms are dealt with across jurisdictions. The European Union, the United States, and China have each adopted their own regulatory approaches, ranging from rights-based to market- and state-driven models. While this has led to concerns about regulatory fragmentation and increased costs for consumers, considerable uncertainty also remains regarding how to regulate, identify, and adopt the most suitable regulatory approach.

A largely underappreciated aspect of this debate is the rapid process of regulatory diffusion – the adoption of substantially similar rules – in different jurisdictions beyond the major digital empires. Examples include the member states of the Association of Southeast Asian Nations and its trading partners, where a shift from an ex post to an ex ante regulatory approach in competition law is underway, with the Digital Markets Act (DMA) emerging as a blueprint that different countries customize to fit their digital ecosystems and domestic policies.

Julian Nowag and Carla Valeria Patiño on Enough of Fairness: Pre-Emption and the DMA (new book chapter)

"Enough of Fairness: Pre-Emption and the DMA"
Julian Nowag and Carla Valeria Patiño
in Annegret Engel(ed),Xavier Groussot(ed),Gunnar Thor Petursson(ed),New Directions in Digitalisation: Perspectives from EU Competition Law and the Charter of Fundamental Rights,(Springer, November 2024),pp. 61 - 74
Published online: November 2024

Abstract: This chapter looks at the DMA through the prism of pre-emption and the relationship between EU and national law. It explains the fundamentals of pre-emption in EU law and shows the consequences for the DMA and national rules that are to ensure fairness in the digital market space. It argues that fairness in the digital market with regard to business users and consumers has been exhaustively regulated by the DMA. Thus, existing and future national rules that aim to address additional fairness matters are pre-empted and cannot be applied to gatekeepers. The only option Member States have is to introduce further fairness related matters into their competition laws which elevates the well-known debates about the relationship between competition law and fairness to a new level.