The EU's Digital Markets Act: an opportunity for Austrian antitrust enforcement?

The Digital Markets Act ("DMA") is a collection of obligations for providers of platform services as well as enforcement and governance rules (for more details, see our previous newsletters here and here). It is intended to ensure that competitors can take part in digital markets and that relationships between so-called gatekeepers and their users are fair. While the DMA is not expected to enter into force until mid-2022 (with a transitional period of at least two months), the Austrian parliament recently passed new competition law provisions that apply specifically to the digital sector, showing a clear trend towards (more) enforcement against abuse of dominance in relation to gatekeepers. In this newsletter, we focus on the interaction between Austria's public and private enforcement and the DMA. Will the Austrian Federal Competition Authority ("AFCA") be able to make additional use of the DMA in its enforcement practice? Will private individuals successfully assert claims under the DMA before Austrian courts? The recently published DMA drafts of the European Parliament and the European Council provide some hints.

The role of public enforcement in the DMA

Normally, the AFCA directly applies the European Competition Law Regulation (Articles 101 & 102 TFEU) on a national level in parallel to the European Commission ("EC"). It would therefore stand to reason that the regulations of the DMA should also be directly applied in parallel. Surprisingly, this is not really envisaged in the area of the DMA.

According to the current DMA drafts, the AFCA may only support the EC's market investigations as well as certain proceedings by collecting information, providing expertise and assisting the EC in monitoring compliance with and enforcement of the DMA.

Business users, competitors, end-users of core platform services as well as their representatives or other persons with a legitimate interest may also complain to the AFCA about any practice or behaviour by gatekeepers that falls within the scope of the DMA, including non-compliance. Subsequently, the AFCA may assess these complaints and report them to the EC. The EC (and only the EC) will then examine whether there are reasonable grounds to initiate proceedings or market investigations.

Based on the current DMA drafts, the AFCA will therefore not be able to initiate or enforce proceedings against gatekeepers based on the DMA.

As the EC is not exactly known for the speed of its procedures, this limitation is likely to be a downgrade both for complainants as well as gatekeeper companies. The current DMA drafts provide for no deadlines within which the EC would have to take action and not even an express obligation to take up a case. Therefore, contrary to the whole idea of the DMA to speed up enforcement, the duration of the proceedings could be unforeseeably long.

The (unspoken) role of private enforcement in the DMA

Section 36 (4) (4) of the Austrian Cartel Act provides the legal grounds for standalone claims of private individuals to stop the infringement of competition law. Also, private damage claims are becoming increasingly important in Austria after the Austrian courts issued several judgments in recent years which increased legal certainty. But what about the DMA? Is there space for private enforcement?

While the DMA drafts contain extensive public enforcement provisions, one looks in vain for any regulations on private enforcement. The DMA drafts read as if it the EC would assume an exclusive right to take enforcement actions against gatekeepers. It is therefore still unclear whether a national court would even accept an application for prohibiting the violation of a DMA obligation from a private individual.

In their statements, EU officials seem to take private enforcement for granted. But even if this were the case, there is little hope for success without supporting legislation, as we have already seen in many cases before, especially when it comes to follow-on claims for damages. EU legislators have so far missed the opportunity to provide more clarity in this regard.

Conclusion 

There is still a great deal of uncertainty about the enforcement practice of individual Member States with regard to the DMA. However, at least one thing seems sure already: the final DMA will not only bring the higher degree of certainty many seek, but will also ignite a multitude of new debates and disputes among the competent authorities, judges, companies and lawyers. It therefore remains to be seen whether the trilogy negotiations that will now follow will shed some light on the potential of national enforcement practices based on the DMA.

authors: Christoph Haid and Anna Sofia Reumann