Since its publication in December 2020, the European Commission’s regulatory proposal for a Digital Markets Act (DMA) continues to be the subject of sustained political and academic interest, particularly in the United States and Europe. Part of the “European strategy for data”, the DMA is designed to address “the most salient incidences of unfair practices and weak contestability” in the digital economy, responding to concerns about the data-derived dominance of U.S. technology companies operating in Europe. This paper aims to provide the first comprehensive legal analysis of the DMA’s recalibration of data relations in the European Union. Through an analysis of the data-specific obligations imposed on gatekeepers under the DMA and their interaction with existing laws and jurisprudence, this paper finds that the proposed access rights and limitations on the collection, combination and use of data give rise to significant ambiguities and could make “Big Tech” the winners of an act originally designed to tackle their dominance. This paper also finds that the DMA may recalibrate data relations in favor of Chinese tech companies wishing to strengthen their position in the EU against their U.S. competitors. Nevertheless, this paper will show that the adoption of the DMA will be a positive first step in the direction of recalibrating data relations in a way that – once teased out by future enforcement and caselaw – could allow for a more active contestation of digital markets, and a freer flow of data.
This paper originated in the Global Data Law course. It was published by the Illinois Journal of Law, Technology and Policy, Volume 2022, Issue 1 (pp. 101-154).
