The Requisite Legal Standard of the Digital Markets Act's Designation Process

Abstract

Moving away from the effects-based approach in EU competition law, the Digital Markets Act introduces renewed requisite legal standards that differ from probabilistic standards of proof. Ideally, this concept should also shape the European Commission’s initial enforcement actions and its judicial review in the EU courts.

The paper critically examines the legal standards that the European Commission established in its first set of designation decisions issued in September 2023. It spotlights two significant actions by the Commission: the delineation of core platform services and the consideration of the undertakings’ rebuttals of the presumption of a gatekeeper position deriving from the application of the quantitative thresholds. The paper reveals a disjointed approach by the Commission building upon the idea of the regulation’s plasticity.