Key takeaways:

• While the aims of the DMA and the DSA are commendable, practical implementation and enforcement questions remain unanswered.
• Compliance with the DMA requirements means different things to different companies. Similarly, any enforcement should consider the unique characteristics of each digital service offered by gatekeeper-designated companies.
• The entities regulated by the DSA have to establish working relations with the Digital Services Coordinators. Despite numerous national authorities, we hope that the European Board for Digital Services will help to ensure a consistent and harmonized enforcement of the DSA across the EU.

About the conference

On 24 November 2023, an international conference entitled 'Antitrust in the Digital Age' was held at Bird & Bird’s Warsaw office. It was organised by the Global Antitrust Institute at the George Mason University, the Polish Competition Law Association and Bird & Bird.

The aim of the event was to share different views on the upcoming wave of European regulations. The conference focused on the changes introduced by two regulations - the Digital Markets Act (EU Regulation, 2022/1925) (the "DMA") and the Digital Services Act (EU Regulation, 2022/2065) (the "DSA"). Guests deliberated on the advantages and disadvantages of those acts, the problems of antitrust law in the digital age, and the practical consequences of both the DMA and the DSA for businesses.

Many academics from Poland and abroad attended the event. Among them were Prof. Christian Bergquist (University of Copenhagen), Prof. John Yun (George Mason University), Prof. Marek Martyniszyn (Queen's University Belfast), Prof. Przemysław Ostojski (Warsaw Justice Academy), Dr. Hanna Stakheyeva (Bogazici University, Istanbul), and Prof. Oles Andriychuk (Newcastle Law School). 

In addition to academics, we welcomed a representative of the Court of Justice of the European Union, Vivien Terrien, and an economist from the European University Institute, Florence, Dr. Philip Hanspach (also affiliated with the OECD).

Dr. Saskia King (Legal Director, Bird & Bird, London), Krishna Sood (Assistant General Counsel, Microsoft), Prof. Thomas Höppner (Hausfeld, Berlin), and conference hosts from Bird & Bird's Warsaw office - Paweł Lipski and Marcin Alberski – also participated in the conference.

Keynote speeches

During his keynote speech, Prof. Marek Martyniszyn (Queen's University Belfast) emphasised the role of state intervention and that regulation is the tool of the state. He also pointed out that regulative actions of the European Union encourage other regulators to act.

This was followed by a speech from by Vivien Terrien entitled 'The perspective of the judicial review by the CJEU under the new DMA and DSA arrangements’ by Vivien Terrien. The speaker shared with the audience the CJEU statistics on new and pending cases. He also pondered on the specialisations of judges in the perspective of the new regulations. Vivien Terrien paid particular attention to cases involving digital players.

Prof. Przemysław Ostojski pondered over the question ‘Why do digital platforms stand out from other sectors?.’ He explained what role digital platforms play in today's economy and their impact on the markets.

The DMA - Enforcement Revolution or Victory of Regulatory Measures over Antitrust?

The members of the first panel focused on the shape of antitrust law after the DMA came into force. Additionally, Dr. Saskia King provided participants with a comparison of the DMA with the UK’s Digital Markets, Competition and Consumers Bill.

The Early Verdict on the effect of the DMA

Prof. John Yun welcomed fellow members of the second panel - Prof. Thomas Höppner, Dr. Philip Hanspach and Dr. Hanna Stakheyeva. Prof. Thomas Höppner highlighted the role of the digital industry in the global economy and the role of antitrust law in regulating this industry. Dr. Hanna Stakheyeva, on the other hand, addressed the topic of legal certainty in merger control in the context of the DMA. She highlighted the complications arising from the coexistence of the DMA and the European Union Merger Regulation. The speaker also drew attention to the European Commission's decision on the Illumina/Grail merger. The discussion focused on the 15 working day time limit prescribed by Article 22 EUMR. The understanding when that period starts running is crucial for preserving legal certainty of entities engaged in a planned transaction.

Practitioners' table: DSA Compliance, Inspections, and Judicial Review

Prof. Oles Andriychuk moderated the last panel. He commented on the differences between the DSA and the DMA, brought up the topic of private enforcement on the basis of the DSA, and highlighted the role of the European Commission in regulating VLOPs/VLOSEs.

Krishna Sood discussed the DSA from the perspective of an IP practitioner, outlining the timeline for implementing the various obligations for VLOPs and VLOSEs. The speaker also cited The Digital Millennium Copyright Act (US), which has similarities to the DSA, such as a notice and take down system. She listed the novelties that the DSA introduces for online platforms and VLOs, i.e., an internal complaints handling system, trusted flaggers in the case of platforms, and annual risk assessments and an internal compliance process in the case of VLOs, among other things.

During his presentation on the DSA, Marcin Alberski discussed the European Commission’s power to conduct inspections, which are comparable to inspections under the DMA. He also highlighted the role of experts in the inspection process and commented on the Digital Services Coordinators’ powers under Article 51 of the DSA – the power to carry out inspections or have them carried out by national authorities and the power to question members of the staff of the company being inspected.

Finally, Pawel Lipski discussed the DSA from a litigator's perspective. He highlighted the importance of 'The Big 5' – acts that regulate the digital market, i.e., in addition to the DSA and DMA, as well as the AI Act, the Data Governance Act, and the Data Act. He stressed the overlap between DSA and DSM (Directive 2019/790 on Copyright in the Digital Single Market) regarding the protection of copyrights. He also pointed out that the role of the Legal Representative is similar to that known from the GDPR but differs in the level of responsibility of the Legal Representative himself.

Pawel Lipski summed up the conference and shared his takeaways.

If you need more information or further guidance in this area, please contact Pawel Lipski, Marcin Alberski or Dr. Saskia King. 

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