Die Rechtsgrundlage des Digital Markets Act – Die Entscheidung für Art. 114 AEUV und ihre Folgen für die Auslegung der Verordnung

Abstract

The Digital Markets Act’s Legal Basis – The Decision in Favour of Article 114 TFEU and its Implications for the Regulation’s Interpretation

With the DMA now being actively applied, it is worth revisiting the legislative procedure, specifically the legal basis. Article 114 TFEU is intended to be used as a means of harmonising various national laws. In this case, it is evident that the regulation aims not only to harmonise but also to safeguard digital markets from the prevailing power of “gatekeepers”.

The paper analyses the selection of Article 114 TFEU as the legal basis for the DMA and examines whether basing the regulation on Article 103 (and Article 352) TFEU would have been a more suitable alternative. Furthermore, it calls into question what implications of using one legal basis over the other has for the application of the DMA, in particular with regard to the relationship with national law.

The paper demonstrates that Article 114 TFEU provides a suitable legal basis for the DMA. Although it aims to protect competition on digital markets, Article 1(5) – (7) DMA contain sufficient rules to harmonise national law, thus fulfilling the requirements laid out in Article 114 TFEU. While the far fetching regulations of the DMA extend beyond the principles of Article 101 and 102 TFEU, excluding Article 103 TFEU as a suitable legal basis, using Article 103 and 352 TFEU would be an alternative irregardless of the more difficult legislative process. The lawmakers are not legally bound to favour one basis over the other, but the choice does not come without consequences. This applies not only to the text itself, but also to its application by the European Commission. This is particularly relevant when considering the relationship with national law. To achieve an interpretation in conformity with primary law, national laws need to be read in a way that focuses on harmonisation. Therefore, it needs to be thoroughly harmonised, prohibiting any national legislation in the field of digital market regulation that aims to achieve the DMA’s goals of contestable and fair markets. While amending the regulation’s basis with Article 103 TFEU could be a means to a more accurate portrayal of the importance of both competition law and harmonisation in the DMA, the fact that the requirements of the legal basis aren’t met also prohibits it from being used in conjunction with Article 114 TFEU.