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Showcases and showstoppers: the DMA’s impact on merger control in digital markets

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The Digital Markets Act (DMA) focuses on several ex ante behavioural obligations on entities that have been designated as so-called gatekeepers. However, the DMA also introduces certain elements that have the potential to significantly impact the established merger control system within the EU. It includes two new relevant instruments for the European Commission aiming at the regulation of gatekeepers’ ability to grow externally by way of mergers and acquisitions. One of the obligations imposed by the DMA is the obligation on gatekeepers to inform the Commission of any intended concentrations irrespective of whether they are notifiable under EU merger laws. Secondly, the DMA seeks to implement a link between the behavioural control of gatekeepers and their transactional activities by authorizing the Commission to prohibit the gatekeeper, for a limited time, from conducting any more acquisitions in the specific sector that is affected by so-called systemic non-compliance with the obligations under the DMA. This article explores the impact of these two types of provisions and calls for a cautious approach, striking the balance between the interests of undistorted competition, innovation and the dynamic impact that M&A activity may bring to these and other relevant factors.