As outlined in our earlier post, “The Digital Markets Act: A New Era of Big Tech Regulation” (available here), the introduction of the Digital Markets Act (“DMA”) marked the beginning of a new phase in digital regulation in Europe. In this regard, the DMA established a set of clearly defined objective criteria to qualify a large online platform as a “gatekeeper” and ensures that they behave online in a fair way and leave room for contestability.
Since its first designation decision in September 2023, the European Commission designated multiple companies, including Amazon, Apple and Booking.com as gatekeepers. Starting in March 2024, these companies were required to comply with the obligations set forth in the Digital Markets Act. As a result, the practical aspects of the DMA’s enforcement are receiving growing attention, along with the role of national competition authorities therein.
Following the entry into force of a Belgian law of March 29, 2024 (published in the Belgian gazette of May 3, 2024), the Belgian Competition Authority was granted powers to contribute to the application of DMA. Indeed, the European Commission (“EC”) remains the sole enforcer of the Digital Markets Act, but the Belgian Competition Authority (“BCA”) is given far-reaching competences to support the Commission in this regard.
The act introduced the necessary amendments to the Belgian Code of Economic Law (“CEL”). Following the adjustments the BCA may now, for example, open investigations into gatekeepers’ non-compliance with DMA obligations (modified Article IV.78/1 CEL). In this regard, the BCA is also in the possibility to receive complaints about gatekeepers and forward relevant information to the EC (new Article IV.99 CEL). In general, the BCA staff can also assist the Commission in various enforcement and monitoring activities under the DMA (new Article IV.97 CEL) and it will cooperate and exchange information with the EC through the European Competition Network (new Article IV.98 CEL). The BCA can also request market investigations if there are grounds to suspect non-compliance or systemic issues with gatekeepers (Article IV.100 CEL). Moreover, it will represent Belgium in the Digital Markets Advisory Committee, with the possibility of including representatives from other relevant authorities such as, for example, the Data Protection Authority (Article 101 CEL).
It is important to reiterate that the DMA rules operate alongside EU and national competition laws. Consequently, national competition authorities, including the BCA, retain full authority to investigate competition law infringements, also in the digital sector. The BCA has demonstrated a keen interest in monitoring Belgian online platforms, with one of its 2023 priorities being the enforcement of competition law in the digital sphere (Priority Notice BCA, available here, p. 7). Therefore, in addition to supporting the Commission's DMA enforcement, the BCA is likely to play an active role in scrutinizing the practices of local online platforms in Belgium, including those outside the DMA's scope.
The future will reveal how the BCA will utilize its new powers under the DMA and what enforcement actions it will undertake beyond the DMA's scope.
