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The Role of Article 102 in the Digital Markets Sector after the Implementation of the Digital Markets Act

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The advent of a digitalized economy has brought complex challenges to be addressed, in particular, market failures deemed to be unassailable from a pure interplay of the market forces perspective. The consequences are highly concentrated markets where super-dominant companies can exert great influence in their core businesses markets and adjacent to it, leading to widespread anticompetitive conducts. Therefore, and considering the nature of the problem, this research will assess the actual situation and possible outcomes from a perspective of doctrinal and legal regimes addressing the enforcement of unlawful unilateral conducts.

It has been assumed that only a regulatory measure could address these flawed competitive structures. Within this context, it is expected by many that the Digital Markets Act (DMA) will arise as an exemplary regulatory tool, able to re-establish undistorted competition, and become a model to be replicated across different jurisdictions. However, this research arrives to a distinct conclusion. By analysing the framework of the DMA, its principles, objectives, obligations and possible effects, it can be foreseen that the forces of the digital market will outdate a fixed regulatory tool, and that only a flexible regime, underpinned on legal doctrines, economic theories, and shaped by the jurisprudence, can effectively address, in the long-term, the core issues featuring the digital economy, after all, it is a new economic reality that will keep expanding.

Considering the latter, this research presents and analyses recent economic literature evidencing the changes of the economic landscape: a generalized concentration and digitalization, a process that will have a worldwide reach. It is then analysed the current European legal framework and case law so to assess its fitness before the new economic landscape. As said, the DMA proposal is analysed and the expected effects, concluded by this research, are exposed. It is find that the European Competition Law regime requires a process of re-assessment of its legal and economic doctrines, and will require a considerable case law development effort, and doctrinal attention. On the other hand, the DMA arises as a welcomed proposal, yet a too-limited regulation, with technical flaws unabling it to fulfil the expectations that scholars and practitioners are foreseeing.