As we approach the anniversary of the date the first designated gatekeepers had to comply with the Digital Markets Act (DMA), it seems appropriate to delve deeper into the (private) enforcement aspect of the regulation. This is even more fitting given the recent rumours that the European Commission (Commission) is re-evaluating its probes into Apple, Meta and Google after Trump’s election victory and his escalating strategy towards the EU. This could even lead to the Commission reducing or amending the range of the probes, although the Commission has denied it.
The DMA makes it clear that the Commission is the sole enforcer of the regulation responsible for designating the gatekeepers and monitoring their compliance with the regulation (see, e.g. Recital 91 and Article 38(7) of the DMA). Even though Article 27 of the DMA enables individuals such as business users or consumers to inform the Commission or the national competent authorities (where they are empowered – e.g. in the Netherlands, the national legislation is not yet in force) of any alleged infringement, the Commission has full discretion on whether and which measures to take in response. For an overview of the different options available to business users in case of gatekeepers’ non-compliance with the DMA, see our colleagues’ earlier blog post.
So far, the Commission can hardly be criticised for inactivity, as it has engaged in seven non-compliance investigations, with preliminary findings issued in two of them (on Meta’s “Pay or Consent” model and on Apple’s App Store practices). The Commission is expected to adopt its final decisions in the ongoing investigations anytime soon, as it officially has 12 months from the opening of the proceedings to come to a decision (Article 29 (2) DMA). If these decisions, expected in March 2025 at the latest, include findings of non-compliance, they will likely lead to private damages actions by business users dependent on the gatekeepers’ core platform services, thus kick starting DMA-related follow-on litigation.
Besides the Commission’s monopoly over the public enforcement of the DMA, the regulation also enables private enforcement. Although the original proposal did not mention this possibility, it is virtually uncontested that the final regulation envisages bringing private actions against gatekeepers. The possibility of private enforcement is clearly implied by Article 39, which concerns the cooperation between the Commission and national courts when applying the DMA, and Article 42, which allows for representative actions to be brought on behalf of consumers against gatekeepers for DMA infringements. Additionally, the Commission has explicitly confirmed this possibility in many instances, including in its Q&A on the DMA, stating that “The DMA is a Regulation, containing precise obligations and prohibitions for the gatekeepers in scope, which can be enforced directly in national courts. This will facilitate direct actions for damages by those harmed by the conduct of non-complying gatekeepers.”
Therefore, there should be no confusion over whether private enforcement of the DMA is possible. Nevertheless, what remains less clear is precisely what this enforcement will look like. Some Member States, such as Germany, have adopted specific legislation covering this topic (see Section 33 GWB, which makes private enforcement of the DMA before the German courts possible, similar to Articles 101 and 102 TFEU). However, so far, the German legislation amounts to an exception rather than the rule, and unlike the private enforcement of competition law, for which common rules have been laid out in the EU Damages Directive, the rules related to claiming damages for DMA infringements are not harmonised at the Union level. Thus, they fall within the Member States’ procedural autonomy, as long as they respect the EU principles of equivalence and effectiveness. Therefore, some ambiguity remains as to the precise scope of private enforcement of the DMA. This blog post aims to cover this topic by first outlining some specific DMA Articles which have direct effect and the kinds of actions that can be sought from the courts, followed by discussing the possibilities of bringing standalone, follow-on and hybrid actions under the DMA, and relatedly, why the Court’s judgment in DB Station does not restrict the possibility of bringing standalone claims for DMA breaches.
Direct effect of the DMA
Even without the Commission’s explicit endorsement of private enforcement of the DMA, as a Regulation, the DMA would have been directly applicable in all Member States according to Article 288 TFEU. Where an EU regulation confers a specific right, it is directly effective so that individuals can invoke it before their national courts, also in horizontal relationships. This is true as long as the right is sufficiently clear, precise, and relevant to the situation of the individual. In the case of the DMA, at least Articles 5, 6 and 7 seem to fulfil these criteria.
What kinds of actions can private claimants seek?
The most important types of actions that private claimants can be expected to pursue are actions seeking injunctive relief or actions for damages arising from breaches of the DMA. Claims for damages may be brought as follow-on actions following a non-compliance decision by the Commission (when there is one, again probably after March 2025), but they should not be limited to that. Nothing in the DMA points against claimants bringing standalone actions where the Commission has not (yet) adopted a non-compliance decision.
Also, due to the DMA’s close connection with competition law, hybrid cases can be expected in situations where the same conduct amounts to a breach of EU competition law and the rules of the DMA (e.g., in the case of self-preferencing conduct). This may, in fact, be the preferred option for many claimants due to DMA’s per se nature, which may make a breach of DMA easier to establish than that of Article 101 or 102 TFEU. Additionally, some commentators have pointed to a potential shift in the burden of proof in alleged DMA infringements arising from the wording of Article 8 (1) DMA, which indicates that the gatekeepers are responsible for proving compliance with the DMA.
The possibility for private claimants to bring standalone actions for DMA infringements is an important safeguard where the Commission does not act or does not act fast enough. This is not unthinkable and may even be the new normal in a world of more intensive geopolitical competition and bad-tempered powerplay from the newly elected US President. Also, if one considers the nature of the digital markets the DMA regulates, they are characterised by a first-mover advantage and are prone to tipping. Therefore, as recognised by the DMA (see, e.g. Recitals 26 to 28), time is of the essence when intervening in those markets. In fact, speed of intervention is one of the DMA’s biggest advantages over competition law and one of the rationales behind its introduction. Thus, following the DMA’s own logic, there must be room for private enforcement of the DMA even where the Commission has not issued a non-compliance decision. This is, of course, the case only as long as the company has been designated as a gatekeeper by the Commission and, therefore, must comply with the obligations of the DMA.
The Court’s ruling in DB Station does not hinder standalone claims
Perhaps due to the many similarities between the enforcement of competition law and the DMA (e.g. cooperation between the MS and the EC, similarity of certain articles of Reg 1/2003 with the DMA), there are some, including the well-respected Assimakis Komninos during a well-attended meeting of the Dutch Competition Law Association in November, who have argued that the case law of the Court of Justice (CJEU or the Court) in DB Station may prevent claimants from bringing private actions before the Commission has issued a non-compliance decision in a given matter. In view of these comments, it is important to take a closer look at this judgment, which may arguably have crucial consequences for the private enforcement of the DMA.
As a brief reminder of what the case is about, DB Station concerned the relationship between Article 102 TFEU and Directive 2001/14/EC on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure and safety certification. The request for a preliminary ruling originated in a dispute relating to fees charged for the use of German railway infrastructure. Under the Directive, the responsible regulatory body in Germany had exclusive competence to hear all aspects of disputes relating to said fees. However, the claimant brought a damages claim based on Article 102 TFEU while an appeal of the regulatory body’s decision was pending in front of the national administrative courts. This prompted the national court to ask the CJEU whether the civil courts were able to review those charges and, essentially, whether the exclusive competence of the authority or the direct effect of Article 102 TFEU should take precedence.
The Court found that the Directive did not preclude national courts from applying Article 102 TFEU to claims concerning reimbursement of infrastructure charges, as long as the competent regulatory authority had previously ruled on the lawfulness of those charges. In line with the duty of sincere cooperation, those courts were then required to consider decisions by the competent regulatory body, even though they were not bound by those decisions (paragraph 83). Therefore, the private claimants had to first appeal to the regulatory body, and only after the regulator had decided on the matter could they bring a claim to the national civil courts. By analogy, one could argue that national courts may only adjudicate DMA actions when the Commission has ruled on the lawfulness of the gatekeepers’ conduct in question.
However, before assigning too much meaning to this decision, a few aspects should be considered. First, it should be mentioned that the reception of the DB Station was not (only) positive and received some criticism. Prof. Monti, for example, has referred to the judgment as the “odd one out”. Second, and more importantly, the significance of the judgment beyond the specific circumstances of the case should not be overstated. In fact, when the judgment was first issued, commentators pointed out that the Court’s ruling should be interpreted in the specific historical context of this case and should not be seen as creating a general rule that can be applied to other times or sectors. The damages claim in DB Station concerned excessive/unfair pricing under Article 102 TFEU, and therefore, it was essential for the competition law assessment to know the legality of the fees under the relevant regulatory framework (which is basically the same question), as our colleague Daniel Mandrescu also explains here.
Additionally, even in an identical situation, where a prior decision from the competent regulatory body would be required, the national court is neither bound by that decision (DB Station, paragraph 83) nor does it have to wait for the appeal process to be over (paragraph 85). Therefore, even then the impact of the obligation to cooperate with the competent regulatory body is somewhat limited.
In any case, the connection between the DB Station judgment and private enforcement of the DMA is not that obvious, and it is reasonable to assume that the only decision which is required to bring a private claim in front of a national court is the gatekeeper designation decision, which only the Commission is empowered to take, and which is a prerequisite for having to comply with the DMA.
Risk of fragmentation?
Other arguments raised by sceptics of standalone claims for DMA breaches include the risk of fragmentation. However, the same risk is present, and arguably higher, in private enforcement of competition law as Articles 101 and 102 TFEU leave considerably more room for interpretation than the more specific per se rules laid down in the DMA. However, as explicitly stated in Article 39(5) of the DMA, when in doubt, the national courts may rely on the preliminary ruling procedure. This can lead to judgments clarifying the interpretation of the DMA and leading to more consistent application (i.e. less fragmentation), as has been the case with competition law.
Final remarks
Lastly, from a more principled point of view, the importance of private enforcement and individuals’ right to claim damages has long been recognised in the Court’s competition case law (e.g. in virtually every relevant preliminary reference after Courage and Crehan, but also in DB Station, para 47), where it is seen as necessary to ensure effective enforcement. This could be applied by analogy to the private enforcement of the DMA, particularly when considering the fact that the DMA is designed to be ‘self-executing’. The DMA establishes specific, directly applicable per se rules. The opportunity for individuals to bring claims for breaches of these obligations, even before a decision by the Commission, will help ensure effective enforcement of the regulation and combat the imbalance in the enforcement resources that the Commission has at its disposal versus the resources that the gatekeepers have. Therefore, the business users who are better placed to assess compliance and equipped with more technical or sector-specific insights play an important role. Of course, the DMA does provide methods for business users to inform the authorities of alleged breaches. Still, due to the Commission’s limited resources and broad discretion in picking up cases, this does not provide enough of a recourse for parties that suffer damages due to gatekeepers’ DMA infringing conduct.
