The DMA is coming - but does it uphold the rule of law?

I was fascinated to read the views of my learned colleagues Sean-Paul Brankin and Pat Treacy on the EU Digital Markets Act. Alongside a series of other articles in a recent edition of Concurrences, Sean-Paul and Pat outline the 'challenges for the regulator as well as the regulated' that result from a piece of legislation that is hugely ambitious in scope and will inevitably be complex in its application. 

I have also been musing recently on competition law and the rule of law, thanks in part to a thought-provoking editorial to a recent edition of the Journal of European Competition Law and Practice in which Pranvera Këllerzi draws out the tension between the desire to move faster and with greater discretion in fast-moving markets and the need in a rules-based system for "clear and precise laws made known in advance to those who must obey". As Ms Këllerzi observes, competition statutes are not clear and are made predictable - if at all - only through robust and rigorous interpretation in reasoned court judgments (a point that was driven home to the UK Supreme Court in the Pfizer / Flynn costs appeal earlier this year, in which I was fortunate to represent an intervener on important questions about access to justice - see further here). 

The creation of the DMA, which has the advantage of length over the competition provisions of the Treaty on the Functioning of the EU, could have been an opportunity to generate some much needed clarity. It is clear from Sean-Paul and Pat's article that the Act leaves much unsaid, both in terms of the procedural safeguards and the actual obligations on gatekeeper platforms. An open question will be the extent to which the regulated platforms are willing to bring legal challenges around process and transparency, but it seems inevitable that challenges of this kind will need to be made if the system is to operate predictably and effectively.