Digitalization 4.0 has created a new reality that opens up regulatory gaps in many areas and led to a veritable sprouting of new legal acts at the EU level (think of the recently introduced Artificial Intelligence Act, for example, but also the General Data Protection Regulation or the Digital Services Act).

The Digital Markets Act (DMA) represents one of these new regulatory frameworks and is intended to protect consumers and promote contestability and fairness in digital markets and thereby close regulatory gaps by imposing certain obligations on so-called “gatekeepers”.

And even if no (fine) decision has yet been made, the threat alone can have a deterrent and thus compliance-enhancing effect. For example, Apple recently opened up its iPhone payment system to alternatives, as it is one of the DMA obligations to ensure interoperability between systems.

Still, any legal framework is only as good as its enforcement. Given the novelty of the Digital Markets Act, the effectiveness of public prosecution remains to be seen. The same applies to the role of private enforcement in the context of DMA enforcement. Either way: access to information is crucial in both enforcement regimes. On the one hand, the effective exercise of private enforcement usually stands and falls with the availability of sufficient information. In the context of public enforcement, on the other hand, access to information is a fundamental procedural necessity and is also needed for reasons of public traceability of official actions. 

In light of these informational necessities, it is worth analyzing the disclosure and transparency regime in connection with the DMA. This can be done by looking at the regulatory concept of access to information (i) within the DMA as well as (ii) alternative sources, such as published decisions. As the DMA aims to harmonize the legal framework within the EU it is also interesting to look at Member States’ peculiarities.

The need for information in the context of the DMA is multi-layered. First and foremost, potential gatekeepers should be able to understand which investigations are being carried out and, if applicable, why they have been designated as gatekeepers. For the general public, access to information should serve the purpose of accountability and transparency to guarantee trust in public authorities. Third parties that may be affected—such as consumers or other (smaller) platforms—will need information to understand if (and how) they might be affected. It will also presumably play a pivotal role in preparing actions for damages resulting from infringements of DMA obligations.

But while this form of enforcement is widely acknowledged in competition law, private enforceability of DMA provisions is still subject to discussion as there is no explicit reference to such a possibility within the legal text. However, it is likely that individuals who have suffered damages as a consequence of DMA infringements can derive a direct right to compensation out of the respective DMA provisions. This understanding is also shared by the Commission.

In general, private enforcement—at least in competition law considered as the second pillar of law enforcement—supports public enforcement, as it reinforces sanctions (and thus discourages breaches of duty) and supplements the responsible authority’s enforcement instruments (as the guardian of DMA duties) with the possibilities of private participants. In competition law, the prevailing understanding is that there is usually an information imbalance between the injuring party and the injured party. This might be even more true for damages in the context of the DMA, as there is naturally a big player opposing a “weaker party”. Furthermore, damages in the digital context are even more difficult to demonstrate. A simplified access-to-information-regime—as provided in competition law by the Damages Directive—would therefore also make perfect sense in the DMA context.

The Disclosure Regime within the DMA

But let’s take a look at the possibilities the DMA itself together with the DMA Implementing Regulation (DMA IR) already provides. There are essentially two sources from which information can be obtained: either access to file or access to published documents.

While the latter is naturally the go-to option for third parties as it does not distinguish between addressees, access to file is usually more restricted due to its sensible nature. Therefore, the right to access to file is reserved for addressees of preliminary findings (Article 34(1) DMA together with Article 7, 8(1) DMA IR) and also only in certain phases of proceedings (for example during the gatekeeper designation procedure, or when there is a decision of fines for violation of procedural obligations). At a very early stage, however, access rights are usually not yet provided for (e.g., request for information, Art 20(1) DMA) or decisions on conducting inspections, Article 23 DMA).

Article 44 DMA also foresees a general obligation for the Commission to publish decisions related to DMA proceedings. Confidential parts may be redacted—however, this must be expressly requested by the persons concerned. There is also no time limit until when the decisions have to be published. Apart from the publication of decisions, the Commission also regularly posts Updates on current developments in connection with the DMA on their Webpage. Third parties can also gain access to information in the context of a “consultation”: In certain cases, the Commission may obtain “comments” from third parties—for example when conducting a market investigation (Article 19(2) DMA) or before adopting a non-compliance decision (Article 29(4) DMA). These third parties must then be provided with sufficient information to give an informed statement, which can also come from the Commission’s file.

As national authorities (such as the Competition Authority) play a quite limited role in the enforcement of the DMA, the Commission will usually be the main addressee for transparency requests and also for publication obligations.

The DMA and Competition Law: Same, Same, But Different?

A certain competition law flavor of the DMA cannot be dismissed, as the obligations should prevent market giants from exploiting their position (at the expense of other, weaker market participants). But despite this regulatory proximity: the DMA does not constitute competition law (cf Article 1 para 6 as well as Recital 11 DMA), due to its different aims and protected interests.

Therefore, the far-reaching disclosure regime of the Damages Directive is generally not open to DMA infringements.

But as the disclosure regime in competition law is more established and therefore more differentiated—after all, there are also comprehensive guidelines and notices that are still missing for the DMA procedural rules—and in view of the substantial proximity, it is worth taking a comparative look at it.

Member States’ Different Approaches

Germany provides for a quite unitary approach. As part of the 11^th Amendment of the Act Against Restraints of Competition, the legislator has opened up the competition law disclosure regime also to DMA damages actions. While inter partes disclosure has thus very generously paved the way, the path to the Commission’s files is still more cumbersome, as the national competition rules do not apply there.

In Austria however, the disclosure regime of competition law within the Cartel Act of 2005 is not applicable to DMA damages actions. Therefore, third parties can only rely on published decisions or in-trial possibilities of the general procedural disclosure rules. This situation constitutes probably a more representative example for Member States, as DMA enforcement is usually not incorporated in the national competition procedures.

Can Other EU Procedural Rules Step In?

There is a tendency for regulatory acts of the EU to contain more and more procedural rules and with that an observable Europeanization of procedural law. This poses the question of whether other legal frameworks might be applicable in the context of the DMA to allow informational access.

The General Data Protection Regulation, for example, ensures greater transparency with regard to the processing of personal data through the inspection mechanism in Article 15. Even if this is very welcome for reasons of better accountability, third parties who want to gain access to information cannot gain anything from this as this mechanism is only accessible to the respective data subjects. When it comes to collective enforcement, the Representative Actions Directive also prescribes certain disclosure obligations, but as this refers to national procedural law can vary significantly between Member States.

For the sake of completeness, it should be mentioned that Freedom of Information Acts at a Member State level generally do little to remedy information deficits. Since the enforcement of the DMA is primarily reserved for the European Commission, but the aforementioned regulatory acts only address Member State authorities, there is little to be gained here for third parties seeking information.

Takeaways

While potential gatekeepers enjoy relatively extensive access to information concerning them as a result of their procedural rights, this does not apply to third parties. A disclosure regime comparable to competition law, including clear rules, would be particularly welcome in order to prevent injured parties from being left in the dark and to strengthen their ability to claim compensation. Germany has followed this path, at least in part, by opening up the same disclosure regime to DMA procedures. However, due to the low level of involvement of national authorities in DMA enforcement, the therewith-gained informational content is probably only of limited help in compensating for usually existing information deficits. In the meantime, third parties must make do with the information from the publication and consultations.

Mag. Julia Helminger, BA is a Doctoral Assistant (predoc) at the Institute for Civil Procedural Law (University of Vienna). She has also gained practical experience as an associate in a law firm for business law. In her PhD thesis, she specializes in competition law.