Perspectives

The European Commission is looking for feedback on its competition policy and antitrust enforcement rulebooks, with a public consultation on the EU Digital Markets Act (DMA) open until September 24, and a public consultation on EU antitrust enforcement rules open for feedback until October 2, 2025.

Regarding the EU Digital Markets Act consultation, the objective is to gather feedback on how effective the DMA is in delivering its objectives to make digital markets fairer and more contestable and assessing whether it is well-equipped to handle emerging challenges, including the increased reliance of digital services on AI. While the consultation is open to all interested parties, the target audience is primarily end users and business users of gatekeepers’ digital services that fall in scope.

Despite the highly politically sensitive context around the DMA, this consultation and review report is not motivated by geopolitical tensions between the U.S. and the EU, nor the intense pushback by large tech players nominated as “gatekeepers” and it is not meant to open the door for watering down the ambitions of the DMA. The periodical review of the DMA by the EU Commission is foreseen in its original legal text, as Article 53 of the DMA requires the Commission to evaluate its impact by May 3, 2026, and every three years thereafter. This is standard practice to ensure EU law is fit for purpose. The DMA is scheduled to be opened for review on measures relating to the scope of the consultation only.

Regarding the EU antitrust enforcement consultation, the objective is to review the EU legal framework in order to enhance effective and speedy antitrust enforcement – namely, Regulation 1/2003 on the implementation of the rules on competition laid down in Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU), as well as Regulation 773/2004 relating to the conduct of proceedings by the Commission relating to the same Articles.

Prior evaluation showed some areas for improvement, including the need for faster investigations, the adjustment of available enforcement tools for the Commission, optimization of parallel EU and national enforcement, as well as to ensure that they are fit for the digital economy.  Main target areas for review and options considered are improving the effectiveness and speed of investigations through adapting investigative tools, improving decision-making, improving “access to the file” procedures and simplifying the procedure for the participation of complainants, as well as additional policy options to address risks of fragmented competition law enforcement in relation to stricter national laws.

To unpack the implications of the EU’s competition policy and antitrust enforcement framework reviews, Timea Strihova, who heads our Brussels team sat down with Pablo Asbo, Trilligent Advisory Board Member and senior expert in competition policy. With more than 20 years of experience in antitrust policy and merger control in Brussels, including as an antitrust enforcer at the European Commission Directorate-General of Competition, Pablo shares his take on the risks and opportunities, points of contention as well as advice on what interested parties should do next.

Q1: What risks and opportunities hold the review of the DMA and EU antitrust enforcement rules, as planned by the Commission?

The risks and opportunities depend on the perspective and position of the impacted stakeholders.

Regarding the DMA review, on the one hand, companies that have been designed gatekeepers could see the addition of other core platform services (CPS) that will be regulated (risk) but they can also see their concerns about the investigations themselves (duration, rights of defense, presumptions, etc.) being incorporated or at least being given a better consideration.

On the other hand, for companies that have been complainants against gatekeepers, they would probably stress the need for more speed on the investigations and stronger enforcement, in particular higher fines for non-compliance, and those points would be opportunities for them while at the same time risks for designated gatekeepers.

Q2: What do you think will be the key points of contention in either of the consultations – DMA and EU antitrust enforcement rules?

Regarding the DMA, I think that one key point would be whether the Commission will decide to add other core platform services among the ones that are currently regulated. There have been calls to add generative AI services in article 2 (2) of the DMA, and this is likely to come through the consultation as well. The Commission could already launch a market investigation (article 19 DMA) to assess if those AI services should be added.

Another important point that I believe could be contentious is whether the scope of the interoperability obligation (Article 7 DMA) may be extended to online social networking services. There, we could see a clash between designated gatekeepers that own social networking services vs. smaller players and consumer organizations. A key question here will be to what extent those social networking services are of such important nature to access the internet that the addition of an interoperability obligation is justified.

It could also be interesting to watch is the current obligation for gatekeepers to notify any of their intended acquisition. However, there’s no action envisaged there for now. It is possible that there would be calls to also include an investigation in the potential anticompetitive effects of that gatekeeper acquisition. If this happens, this would be most likely resisted not only by gatekeepers but also by the European Commission’s Directorate-General for Competition, considering that such an obligation would mean additional burdens on their resources.

Regarding antitrust enforcement, with EU antitrust rules being more than 20 years old, the rules need to be fit for the realities of digitalisation. The Commission is trying to reduce the length of the investigations, while at the same time preserve the integrity of them and the rights of defence of the parties under investigation.

In my view, at this point the consultation seems to hold more opportunities than risks. Most major EU antitrust investigations take 5-7 years to conclude, with additional years for appeals, so industry calls for speeding up investigations will be finally addressed. Better “access to the file” rights should also be a key objective, as this is a fundamental right of defence, which however, is very cumbersome under the current regime.

In terms of risks, the Commission is considering deleting their own obligation to give reasons for the rejection of complaints. While this could alleviate the Commission’s workload, it could deprive complainants of a clear understanding of such rejections.

Q3: How do you personally assess the impacts of the DMA for gatekeepers, end users and business users? Will there be a push for a wider review?

As any new legislation that imposes obligations, there is an impact on how the companies need to step up their efforts to adapt and comply. Gatekeepers had and still have an increased burden to adapt their activities, business models in order to comply with the DMA, set up internal teams in charge of that and also increase their communication to the Commission and to the public in general in relation to their own actions to comply. Some gatekeepers have also started to offer differentiated services depending on the jurisdiction they operate.

Business users could reach a wider audience when consumers explore other options or when start-ups or scale ups profit from interoperability and connect with larger platforms, app developers could distribute their apps outside the gatekeeper app store. However, this is an area that is strongly debated at the Commission workshops and many developers are not satisfied with the implementation.

End users could enjoy more choice, increased privacy protections, uninstall pre-installed apps more easily, more interoperability between messaging providers which in turn allows consumers to access services that maybe they were not using in the past due to that lack of interoperability. However, come of these changes have been reported to have undermined consumer experience – for example, the inability to click Google Maps directly from search results and having to open it in another tab or window.

When we look at the areas the Commission is focusing on in the review (impact, list of core platform services, changes to obligations), we can expect that gatekeepers will focus on how enforcement is conducted in their feedback submissions. They would probably also try to point out negative impacts on users that certain obligations have caused, such as the one mentioned about Google Maps.  However, there will also be many voices from consumer organizations, and smaller tech companies that would push for a continuation of strong enforcement, no relaxation of the obligations and probably faster compliance investigations, coupled with higher fines.

Q4: What should interested parties do now?

Interested parties now can contribute to the public consultations with their input, comments, experiences on the application of the DMA and/or Regulation 1/2003. Feedback gathered will be taken into account by the Commission to decide how to update and reform the current rules.

In addition to the public consultations, the public debate will also shape next steps. Interested parties should also be aware that once feedback periods close, the Commission will organise workshops and events to take stock of evidence. Other organisations, both public and private, will also organise their own activities to advocate for their own preferred outcomes and way forward in the reform of both pieces of legislation. Lobby efforts and stakeholder engagement will ramp up as the Commission progresses with drafting its revision.

Hence, anyone interested in these policy developments should stay tuned in the next few months, analyse the public debate and assess the direction of travel, and consider getting engaged to ensure that their voices are heard.

About the expert

Pablo Asbo is a member of the Trilligent Advisory Board and is currently the managing director of his own consultancy, Eurocompetition. He has more than 20 years of experience in antitrust policy and merger control in Brussels.

He worked as an antitrust enforcer at the European Commission Directorate-General of Competition for 6 years, followed by time as a government relations/public affairs advisor for clients facing challenging regulatory environments both at the EU and national level. His expertise and network of contacts includes European Commission departments such as DG COMP, DG CONNECT, DG GROW and DG TRADE, and also the European Parliament and the Brussels-based press corps.

Pablo is a qualified competition lawyer and holds an LLM in European and International Law from the Universities of Maastricht and Nottingham.

Trilligent provides strategic counsel and regulatory insights competition policy and antitrust enforcement in the EU. Don’t hesitate to reach out to us if you would like to discuss how these developments could impact your business and public affairs strategy.