Efficiencies under the Digital Markets Act – Is There Space for the Rule of Reason?

The aim of this paper is to evaluate, if competition-like efficiencies of European-style rule of reason shall apply also in the context of the ex-ante regulation by the DMA. The rationale of such consideration lies in the concept of proportionality of the EU regulation and the assumption that EU law cannot proscribe behaviour with beneficial outcomes and effects that does not have negative consequences on the internal market outweighing the positive effects. The analysis is divided into three parts in this paper: position of the rule of law and the per se prohibition in the legal development of the EU competition law, the relationship between the DMA and competition law, including competition-based efficiencies brought in digital market cases and finally the per se prohibition included in the DMA. The analysis of the development of the case law showed that in the EU competition law the principle of per se prohibitions was never accepted and the CJEU accepted justifications outside the text of the statutory exemptions. Even though the aim of the DMA may be the introduction of a per se prohibition in order to facilitate the Commission’s enforcement, it cannot be surprising if the CJ EU will, in some case in the future, follow the path of the EU-style rule of reason in the framework of the DMA as well on the basis of proportionality principle. The lesson learned from application of rule of reason in the context of agreements restricting competition or as a specific form of objective justification in the context of abuse of dominant position does not undermine effectiveness of competition law. The quasi per se concept can satisfy both: it shows that it is not probable that such a behaviour will be allowed and at the same time it dodges proportionality objections because the prohibition is not, at least theoretically, absolutely, per se.