The Steering of End-User Behaviour in the Digital Markets Act: The Intrinsic Value of Trust for Governance

Abstract

The Digital Markets Act (DMA) sets out the background and regulation applicable to the future designated gatekeepers who cater for core platform services. These gatekeepers, in the Commission’s own words, have put digital markets at large and their relations with business and end users in the digital environment in jeopardy due to the presence of a lack of contestability and fairness. Although the former scenario has not been contested by scholars or practitioners due to past experience in the antitrust framework, the latter has sparked a myriad of reactions, stemming from the welcoming of the regulatory instrument to the outright dismissal of the DMA’s founding objectives.

However, little attention has been granted to the benchmark against which the DMA’s effectiveness should be assessed. It is unclear whether the regulatory instrument will have attained its objective once digital markets remain contestable and fair or once digital markets regain their competitive structure and conditions. In this same sense, the scholarly debate revolves around the DMA’s prospects, whether they are purely deterministic -once a given competitive structure is restored in the digital arena, the provisions of the DMA do not apply to gatekeepers because their core platform services will subsequently fall out of the scope of the instrument- or stochastic in nature -the DMA will probably un-tip digital markets catering for core platform services with uncertain results-. This latter possibility seems the closer one to the DMA’s intentions, insofar as no material yardstick can be found throughout the DMA’s text that would point towards a deterministic objective, i.e., the presence of x market players in the provision of core platform services y or the possibility of conforming consumer choice into n choices from different economic operators. By this token, the regulatory instrument’s purpose, in practice, is more difficult to grasp, especially when it comes to measuring its future effectiveness. However, this line of reasoning does not automatically imply that the DMA’s goal is unattainable in terms of policy.

Similar to other regulatory instruments, the DMA steers the behaviour of both its addressees (gatekeepers) and citizens at large (in economic terms, they would be identified with the role of end-users). This article sets out the framework against which this steering process should be assessed in terms of its related consequences on the end-users, drawing some inspiration from the concepts of governance and trust. Although the DMA is yet in its early days when it comes to enforcement, the article sets out the adequate benchmark to measure the success of the application of its provisions, in line with the EU’s desired broader policy objectives set out in its EU Digital Strategy.