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2022 U. Ill. J.L. Tech. & Pol'y 1 (2022)

handle is hein.journals/jltp2022 and id is 1 raw text is: THE DIGITAL MARKETS ACT (DMA): A PROCOMPETITIVE RECALIBRATION OF DATA RELATIONS? Philipp Baschenhoft Abstract 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 case law could allow for a more active contestation of digital markets, and a freer flow of data. TABLE OF CONTENTS I. Introduction ........................................................................................ 2 II. Key Provisions and Mechanisms of the DMA........................................5 A . O bjectives and C ontext....................................................................5 t New York University School of Law; LL.M. in Competition, Innovation and Information Law. University College London; LL.B. in Law. An earlier draft of this paper was awarded the Betty Bock Prize in Competition Policy at the NYU School of Law. I am grateful to Thomas Streinz for his helpful comments, suggestions, and his continued support. I am also grateful to Eleanor M. Fox and Harry First for their helpful comments on antitrust and digital platforms. I further thank Nora Kocher, Erin Husi, and the member editors of The Journal of Law, Technology & Policy whose suggestions have helped improve this work. Any errors or omissions are my own. 1

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