Introduction

While the European Commission (Commission) is recognised as the sole enforcer of the Digital Markets Act (DMA), National Competition Authorities (NCAs) can support the Commission's work. To that end, the DMA assigns specific competencies to NCAs and mandates their close cooperation and coordination with the Commission.

A Belgian legislative proposal, dated 6 February 2024, aims to put these new competencies into practice by bestowing the Belgian Competition Authority (BCA) with the full range of DMA competencies.

NCAs under the DMA

Although NCAs and several EU Member States, such as the Netherlands, Germany, and France, had advocated for NCAs to gain enforcement powers under the DMA, the final draft reserves this role exclusively for the Commission. However, NCAs have been given the task of supporting the Commission in its enforcement responsibilities.

In that context, NCAs can collect complaints and forward them to the Commission,[1] aid the Commission in monitoring compliance with the DMA, provide any specific expertise or knowledge to the Commission,[2] and the Commission can request any NCA to assist in its market investigations.[3] NCAs may also be requested to support the Commission during inspections[4] and NCAs may request to participate in interviews conducted by the Commission on the territory of its Member State.[5]

Furthermore, at the Commission’s behest, NCAs must provide all necessary information in their possession.[6] The DMA also authorises NCAs and the Commission to exchange confidential information regarding any matter of fact or of law in their respective enforcement actions.[7] Conversely, where gatekeepers are required to inform the Commission of any intended transaction that meets the EU or national merger control thresholds,[8] the Commission must inform the NCAs of any information it receives from the gatekeeper. It must also publish an annual list of acquisitions by gatekeepers.[9] NCAs can subsequently use that information to refer the transaction to the Commission for review under the EU Merger Regulation, if the EU thresholds are not met.[10]

However, NCAs may also take a more proactive role. First, the DMA does not prevent NCAs from taking action against a gatekeeper based on national competition law rules. In such instances, the NCA must promptly inform the Commission.[11] If the NCA intends to impose obligations, the NCA must provide the Commission with 30 days’ notice.[12]

Second, under certain conditions, Member States can request the Commission to open a market investigation regarding the designation of a gatekeeper, a systematic infringement, a new core platform service, or a new problematic practice.[13]

Third, if authorised by national implementing legislation, NCAs may independently conduct investigations into possible non-compliance with the obligations imposed by the DMA within their Member State. In such case, the NCA must inform the Commission in writing before commencing an initial formal investigative measure and report any findings to the Commission[1] . If the Commission decides to take action at any point, the NCAs will be relieved of their power to investigate.[14] According to the European legislator, this power could be particularly relevant in cases where it cannot be determined from the outset whether a gatekeeper’s behaviour is capable of infringing the DMA, national competition rules, or both.[15]

The Belgian Legislative Proposal

The legislative proposal intends to amend the Belgian competition rules to accommodate the new tasks and competences of the Belgian Competition Authority (BCA) based on the DMA.[16]

The proposal clarifies that the BCA’s new competences regarding DMA enforcement are solely in support of the Commission’s tasks and should therefore not be confused with investigations into potential competition law infringements – despite the BCA possessing the same inspection powers, including the capacity to conduct dawn raids.[17]

The proposal also turned the BCA into the national gatekeeper[18] for DMA enforcement[2] [3] [4] . It is the responsibility of the Auditor-General of the BCA to request the Commission to initiate a market investigation.[19] Certain other national authorities[5] [6] [20] can notify the Auditor-General if they believe there are reasons to request the Commission to open a market investigation.[21] Belgium will also be represented in the Digital Markets Advisory Committee by the BCA.[22]

A lack of incentives?

NCAs, including the BCA, may not be overly eager to perform the Commission's tasks for them. The allocation of staff and resources to DMA investigations could signify a substantial expenditure for them, and it is plausible that the Commission would ultimately end up receiving the credit. This would also imply that the authorities would have diminished capacity to concentrate on competition law enforcement.

Mr Snoep, head of the Dutch ACM expects that it will “incentivise the national competition authorities to focus on the non-DMA matters — or against companies not considered gatekeepers under the DMA but who have a dominant position.”[23]

For more information or further guidance in this area, please contact Baptist Vleeshouwers.[24]

VISIT OUR COMPETITION & EU HOMEPAGE

[1] Article 27 DMA.

[2] Article 26(2) DMA.

[3] Articles 16(5) and 38(6) DMA.

[4] Article 23(3) DMA.

[5] Article 22(2) DMA. 

[6] Article 21(5) DMA.

[7] Article 38(1) DMA.

[8] Article 14(1) DMA.

[9] Article 14(4) DMA.

[10] Article 14(5) DMA.

[11] Article 38(2) DMA.

[12] Article 38(3) DMA.

[13] Article 41 DMA.

[14] Article 38(7) DMA.

[15] DMA, Recital 91.

[16] See proposed Articles IV.96 to IV.102 of the Belgian Code on Economic Law.

[17] Proposed Article IV.96, §1, second paragraph, of the Belgian Code on Economic Law.

[18] Pun entirely intended.

[19] Although they must seek the prior advice of other authorities concerned. 

[20] Those authorities which are members of the Body of the European Regulators for Electronic Communications, the European Data Protection Supervisor and European Data Protection Board, the European Competition Network; the Consumer Protection Cooperation Network or the European Regulatory Group of Audiovisual Media Regulators.

[21] Proposed Article IV.100, §2, of the Belgian Code on Economic Law.

[22] Proposed Article IV.102, of the Belgian Code on Economic Law. 

[23] See “EU braced for legal challenges to rules designed to tackle Big Tech”, 19 August 2022, available at: https://www.ft.com/content/c472e2b2-47af-4c99-8745-d3c197360050. 

[24] The author thanks Ruben Verdoodt for his contribution to this article.