Punishment as ultima ratio: The DMA’s cooperative compliance approach

Abstract

This paper explores the means by which the DMA ensures ‘compliance’. It exposes the innovative and evolving notion of ‘compliance’ as enshrined in the DMA by contrasting the enforcement of the DMA with traditional antitrust enforcement. The paper shows the three pillars of the institutional structure of the DMA and how the DMA promotes a dialogic framework of compliance leaving the punitive model of enforcement as an option of last resort. This design is based on cooperation between regulator and regulatees and ongoing supervision by regulators and compliance by firms. In this framework a type of ‘cooperative compliance’ emerges as part of a newly instituted regulatory dialogue in the DMA that exists between the stages of self-compliance and enforced compliance we find in antitrust. The Commission however is the central institutional actor that has discretion to escalate or deescalate the process. This novel institutional setup provides flexibility making the DMA a hybrid and highly dynamic form of regulation to ensure effective implementation of its aims. In its first part the paper sets out the three pillars of the DMA’s institutional system that ensure the effective implementation of the DMA obligations. Then it focuses on and sets out the central but innovative role that the Commission has in the implementation and enforcement of the DMA. Finally, it develops a responsive regulation inspired ‘enforcement pyramid’ that encapsulates the interplay of the DMA’s three institutional pillars and the role of the Commission along with regulated firms and other institutional actors.