The Digital Markets Act[1] (DMA) is a Regulation of the European Union (EU) aimed at enhancing contestability and fairness in digital markets. The pursuit of these objectives aligns smoothly with the broader goal of regulatory harmonisation within the EU internal market. Large digital platforms operate at a global scale and their conduct affects not only the EU market taken in its entirety, but also economic actors across multiple single Member States simultaneously. Fragmented national regulatory approaches would, therefore, risk undermining both legal certainty and the effectiveness of regulatory intervention. For this reason, the DMA establishes a uniform EU-level framework for addressing systemic platform power and restricts Member States from imposing additional obligations on designated gatekeepers aimed at ensuring contestable and fair digital markets. At the same time, Member States remain free to pursue other legitimate policy objectives, such as consumer protection, provided these measures remain compatible with EU law.[2] This corresponds directly to the principle of effectiveness[3] under EU law, but the DMA applies also the principle of proportionality, which ensures that the content and scope of those obligations do not exceed what is necessary to restore competitive conditions in the markets.[4]
The DMA operates pursuant to a novel framework centred around the designation of gatekeepers.[5] Gatekeepers are large undertakings, which have an immense power to disrupt normal competitive forces in their favour, by intermediating between business-users and end-users.[6] Quintessentially, “the DMA’s recitals make plain that the improvement it seeks relate to the classic parameters of competition: price, quality, choice, and innovation”,[7] as such the Regulation has its roots in competition law and tight connections with data protection (the General Data Protection Regulation[8]), as well as on-line content regulation (the Digital Services Act[9]).
Another important connection that the DMA has is with the Data Act, mainly in terms of interoperability and creating the possibility of users to switch between service providers effectively, obligations which are enshrined in Article 6 of the DMA. The DA builds upon earlier legislative initiatives, such as the Regulation on the Free Flow of Non-Personal Data,[10] which sought to promote cross-border data mobility and voluntary portability standards among cloud providers. While that Regulation introduced the principle that data should flow freely across EU Member States and service environments, its reliance on self-regulation and soft-law proved insufficient to address entrenched market dependencies.[11] Therefore, the DA represents the evolution of this policy vision, translating codes of conduct into binding obligations for providers of data processing services (including cloud computing providers), designed to enhance interoperability and reduce switching costs, dismantling structural sources of vendor lock-in.[12]
Without further ado, the goal of the present contribution is to bring some light into the interaction between Article 102 TFEU,[13] which is the traditional competition-law tool which has been used since before the DMA to address many forms of conduct by gatekeepers, as holders of dominant positions, have conducted over the years on the Union’s digital markets. Article 102 TFEU is not re- or dis-placed by the DMA, even though the Act’s duties and aims have been to a certain extent shaped by Article 102 TFEU case law.[14]
Under Article 102 TFEU, intervention typically occurs only after a lengthy, case-by-case investigation structured into typical stages: market definition, dominance, abusive conduct, and anticompetitive effects.[15] However, in fast-moving digital environments, such enforcement often arrives belatedly, once markets have already tipped in favour of a dominant undertaking and competitive harm has become difficult to reverse.
Instead of waiting for harmful consequences to occur and be proven through effects-based analysis, the DMA aims to prevent such conduct before it materialises. In this vein, the DMA complements the protective and restorative logic of traditional ex-post competition law with a more preventive modality.[16] Its purpose is not merely to correct abuse post-factum, but to shape digital markets in a way that preserves contestability and fairness on the long term.
A further distinction resides in the institutional design. DMA enforcement is rather centralised, with the EU Commission as the central power and National Competition Authorities taking an assisting role in investigations and information-gathering. This is a strategic feature of the regime, showcasing its forward-looking nature, as well as the need for consistency. In opposition, Article 102 TFEU operates within a decentralised enforcement structure, in which not only the EU Commission but also National Competition Authorities exercise decisional powers.
Consequently, the DMA does not substitute Article 102 TFEU and it is intended to function alongside it, therefore, with regard to the conduct of gatekeepers, the duties traditionally imposed on dominant undertakings under Article 102 TFEU are not discarded by compliance with the DMA. This complementarity is explicitly stated in Article 1(6) DMA, which positions the Regulation as “without prejudice” to Articles 101 and 102 TFEU.[17]
In this direction, the DMA builds on the accumulated experience of competition authorities. The closed-list obligations contained in the DMA codify concerns that emerged from Article 102 TFEU investigations, such as self-preferencing or tying.[18] Nevertheless, the scope of Article 102 TFEU remains broader, and the abuse of dominance prohibition continues to capture practices falling outside the DMA duties’ catalogue (for instance, predatory pricing or margin squeeze), as well as harmful activities of dominant firms not designated as gatekeepers (yet).[19] As such, although a gatekeeper satisfies the specific obligations imposed by the DMA, it must still ensure that its conduct does not amount to violations of Article 102 TFEU.
In conclusion, the DMA does not replace or practically lead to the disapplication of Article 102 TFEU. Rather, it is a parallel regulatory layer designed to intervene earlier and more predictably in digital markets. Hence, it becomes clear from the analysis above that corporations which have a dominant position still need to abide by their “special responsibility”[20] to not abuse it, even in the aftermath of designations as gatekeepers under the DMA.
[1] Regulation (EU) 2022/1925 of the European Parliament and of the Council of 14 September 2022 on contestable and fair markets in the digital sector (Digital Markets Act) (2022) OJ L265/1.
[2] Alexandre De Streel and Pierre Larouche, ‘The European Digital Markets Act proposal: How to improve a regulatory revolution’ (2021), 2 Concurrences, 47.
[3] M. Elvira Mendez-Pinedo, ‘The principle of effectiveness of EU law: a difficult concept in legal scholarship’ (2021), 11(1) Juridical Tribune, 5-27.
[4] Catherine Barnard and Steve Peers (eds), European Union Law (3rd edn, Oxford University Press, 2020), 123-126.
[5] Heike Schweitzer, “The art to make gatekeeper positions contestable and the challenge to know what is fair: A discussion of the Digital Markets Act Proposal” (2021), 3 Zeitschrift für Europäisches Privatrecht.
[6] Polona Car, Digital Markets Act Enforcement: State of Play (European Parliamentary Research Service, PE 772.826, April 2025), 1-2.
[7] Friso Bostoen, ‘Understanding the Digital Markets Act’ (2023), 68(2) Antitrust Bulletin 263, 267.
[8] Regulation (EU) 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (2016) OJ L119/1.
[9] Regulation (EU) 2022/2065 of the European Parliament and of the Council of 19 October 2022 on a Single Market for Digital Services and amending Directive 2000/31/EC (2022) OJ L277/1.
[10] Regulation (EU) 2018/1807 of the European Parliament and of the Council of 14 November 2018 on a framework for the free flow of non-personal data in the European Union (2018) OJ L303/59.
[11] Regulation (EU) 2023/2854 of the European Parliament and of the Council of 13 December 2023 on harmonised rules on fair access to and use of data and amending Regulation (EU) 2017/2394 and Directive (EU) 2020/1828 (2023) OJ L 2854, recital 79.
[12] Teodora Groza and Beatriz Botero Arcila, ‘The New Law of the European Data Markets: Demystifying the European Data Strategy’ (2024), De Gruyter: Global Jurist, 28-29.
[13] Consolidated Version of the Treaty on the Functioning of the European Union [2016] OJ C202/47, art 102.
[14] Mehmet Bilal Unver, ‘Regulation of Digital Markets in the UK, US, and the EU: Context, Criteria, Containment, and Beyond’. In: Kalpana Tyagi, Anselm Kamperman Sanders and Caroline Cauffman (eds.), Digital Platforms, Competition Law, and Regulation: Comparative Perspectives (Hart Publishing, 2024), 192.
[15] Stefan Theussl, Challenges of Regulating Major Digital Platforms in Europe: The Impact of the Digital Markets Act (DMA) on the Platform Ecosystem (Doctoral dissertation, University of Innsbruck – Faculty of Law, 2023), 119-121.
[16] Alexandre De Streel and Pierre Larouche, ‘The European Digital Markets Act proposal: How to improve a regulatory revolution’ (2021), 2 Concurrences, 49-54.
[17] Viktoria H.S.E. Robertson, ‘The complementary nature of the Digital Markets Act and the EU antitrust rules’ (2024), 12 Journal of Antitrust Enforcement, 325-328.
[18] Pinar Akman, ‘Regulating Competition in Digital Platform Markets: A Critical Assessment of the Framework and Approach of the EU Digital Markets Act’ (2022), 47 European Law Review 85, 9-14.
[19] Antonio Manganelli and Daniel Schnurr, Competition and Regulation of Cloud Computing Services: Economic Analysis and Review of EU Policies (Centre on Regulation in Europe (CERRE), February 2024), 42-43.
[20] NV Nederlandsche Banden Industrie Michelin v Commission of the European Communities (Michelin I) (Case 322/81) [1983] ECR 3461, para. 57.
