Ex ante vs. ex post enforcement of EU competition law: dominant undertakings after the Digital Markets Act

Ever since the entrance into force of the Treaty of Rome, EU competition law has been based on an ex-post system of enforcement: various mechanisms were created in order to detect and sanction and possibly deter unlawful (i.e. anticompetitive) conducts carried out by undertakings. While competition rules remained essentially the same from the substantive viewpoint (although of course their interpretation has evolved over the year), the procedural framework according to which competition law is applied and enforced has significantly changed over the years, being the subject of a process of modernization. From Regulation (EEC) 17/62, through Regulation (EC) 1/2003 and Directive (EU) 2014/104, and up to Directive (EU) 2019/1, the competition law enforcement system has been broadened and reinforced. One of the fundamental pillars of this revolutionary process has been the replacement of a centralized enforcement with a decentralized one, where the entire set of EU competition rules are no longer applied only by the Commission but alto by National Competition Authorities (the “NCAs”) within the European Competition Network (the “ECN”) and by national courts, thus ensuring compensation for those who suffered damages from an anticompetitive conduct. Just after the modernization of the system seemed to be completed with the adoption of Directive (EU) 2019/1 on the harmonization of the powers and tasks of the NCAs, a new, and perhaps even more complex, challenge was just around the corner: technological innovation and the fast rise of digital platforms, indeed, have prompted interest and concern not only in the literature but also and especially by the Commission, NCA and more generally by the legislature (at the national and supranational levels), leading to a growing consensus about the need to further expand the scope (and thus the purpose) of competition rules and their enforcement on digital markets, or even to directly regulate them. Digital markets are characterized by many peculiar features, such as the winner-take-all nature, the presence of strong network effects as well as their multi-sided nature, since they have created a large ecosystem enabling interactions and value creation among multiple user groups. The dominant undertakings operating on multi-sided markets, such as the vast majority of digital platforms, often hold a very strong position, enabling them to decide which subject (business users and end customers) can enter the market, assuming a role that can be labeled – and indeed has been labeled – as “gatekeeper”. The role of these subjects resembles, and sometimes (but not always), overlaps that of dominant undertakings on traditional markets. Conduct of the gatekeeper may have a significant detrimental effect on consumers and other business operators (and, therefore, on the market) even if they do not meet the threshold to be qualified as an abuse of a dominant position, i.e. illicit conduct that can be pursued under Article 102 TFEU. In addition, the mentioned winner-take-all nature of digital markets is likely to make it very unwise to wait for antitrust intervention (only) after a (potential) wrongdoing has been committed, because it may be very difficult to remedy the consequences of the anticompetitive behaviour. As a consequence, an enforcement mechanism where undertakings can be sanctioned only after that they have engaged in anti-competitive conducts seems to be no longer sufficient, as digital markets made