Jens-Uwe Franck: The DMA & Ant-Circumvention Provisions | § 19a of the German Competition Act

Prof. Dr. Jens-Uwe Franck, LL.M. (Yale) – Professor of Civil Law, Commercial Law and Competition Law, the Department of Law of the University of Mannheim.
The anti-circumvention provision of Art 13 DMA is among the most questionable of the new regime. Two very impactful commentators on the DMA from the University of Mannheim: Prof. Jens-Uwe Franck & Prof. Martin Peitz have published in the latest issue of the Common Market Law Review a very influential paper with a very colourful title "The Digital Markets Act and the Whack-A-Mole Challenge".
Prof. Franck explains the phenomenon of anti-circumvention within the DMA and beyond as well as his latest piece addressing as important issue: "Abuse Proceedings Against Digital Gatekeepers under Section 19a of the German Competition Act: Taking Stock of Early Results" (available at Prof. Franck's ssrn page https://papers.ssrn.com/sol3/cf_dev/A....
We have covered in this conversation a host of issues, including
✔ Types of DMA-related circumventions undermining effective compliance.
✔ Conditions for applying anti-circumvention provisions (three-step approach).
✔ Art 13 DMA as a means to extend the scope of Commission's competence to issue implementing acts
✔ Interesting discovery of an editorial mistake in the final version of the DMA.
✔ Does anti-circumvention provision also open the door for effect-based approach?
✔ Application of the principle “nullum crimen, nulla poena sine lege”. “Article 13(4) DMA should rather be understood as an extension of the obligations under Articles 5, 6, and 7 DMA […] albeit in the form of a general clause” rather than “the conduct captured by a prohibition results only from an analogy”.
✔ Can anti-circumvention clause be invoked by private parties?
✔ Judicial interpretation & the DMA.
✔ Reaction to the Whack-A-Mole paper.
✔ First observations, propositions and preliminary conclusions about the functioning of a new regime under Section 19a of the German Competition Act introducing additional rules and modes of enforcement vis-à-vis undertakings with paramount significance for competition across markets.
✔ Recommendations to students and many more exciting issues.

NB: Our previous 63rd episode released last Tuesday featured Prof. Jonathan Galloway, Provost and CEO of Newcastle University in Singapore, Prof. Sandra Marco Colino, CUHK & Igor Szpotakowski, PhD Researcher, Newcastle University Law School discussing the evolution of digital markets in East & Southeast Asia: 🎬    • Digital Markets in East & Southeast A...  

Our next 65th episode will be released next Tuesday, featuring Fernando Castillo de la Torre (Principal Legal Adviser, Legal Service of the European Commission) discussing the 2nd edition of his book on "Evidence, Proof and Judicial Review in EU Competition Law" (ca-authored with Eric Gippini Fournier, Hearing Officer for Competition, European Commission) and a host of other important issues.

------------------------
The Digital Markets Research Hub is an independent academic initiative aiming at scrutinising the functioning of competition/regulation in digital markets. We host one-to-one interviews with leading policymakers, regulators and practitioners. We also organise online mini-workshops inviting high-profile experts and academics in various fields of digital competition law & policy to discuss the most vibrant issues of the ongoing regulatory reforms in digital markets. While having our clear normative stand on the matters discussed within the hub, we value different views and invite relevant stakeholders and thinkers representing the whole spectrum of reasonable positions on how to regulate competition in digital markets. All our materials are available at YouTube channel, which you are very welcome to subscribe to. The interview is organised & conducted by Prof. Oles Andriychuk, Newcastle Law School, UK