DMA’s first fines – private enforcement is next

As Big Tech gains influence in the US, the EU will likely face more scrutiny. The question on many minds, therefore, is: will the DMA prove can Europe limit the gatekeepers' power? The Commission remains energetic and motivated to enforce the DMA. At the same time, it has frequently admitted that its resources are limited. Despite help from the NCAs, it cannot ensure the DMA’s effectiveness alone. Both the Commission and the NCAs are, therefore, actively calling for help from the public. Martijn Snoep, chair of the Dutch NCA stated: “We are calling on businesses to share any problems with ACM with regard to access to the digital platforms of gatekeepers.”

Nevertheless, those impacted by gatekeepers' DMA breaches need not wait for the Commission. Private parties can seek injunctions or claim damages in court, a path we expect to grow in 2025. Even the Commission acknowledged private litigation will be crucial for DMA enforcement.

And private enforcement under the DMA is not merely a theoretical exercise. At the national level, we are seeing significant developments and practice gearing up for DMA private enforcement:

• In 2023, Germany amended its Competition Act to include DMA private action principles, with the first litigations already happening. An unknown gatekeeper, thought to be Google, allegedly received several complaints in German courts, including interim relief requests. Though details remain confidential, both gatekeepers and businesses are closely watching these developments.
• The Netherlands has approved a draft bill appointing the ACM as the DMA national authority and allowing national court intervention. The bill is expected to be enforced soon. However, we do not expect private practice to wait for the legislator. The Netherlands is a popular European jurisdiction for both follow-on and standalone competition damages claims, making it well-suited for private enforcement under the DMA.

Dutch courts are favoured due to their experience, cost efficiency, language skills as well as claimant-friendly procedural law aspects, including their increasing acceptance of international cases. On 1 January 2025 a new simplified and modernized law on evidence came into force. Pursuant to which evidentiary requests should be both simpler and more effective. Additionally, Dutch procedural law allows for collective redress through the Dutch Act on Collective Damages Claims (WAMCA), enabling claims to be channelled through an organisation acting on behalf of various affected parties (also see our earlier blog on mass claims). Third-party funders and international clients, are increasingly finding their way to Dutch claims and courts.

These developments put the Netherlands in a unique position to lead DMA private enforcement.

• On 24 June 2024, coinciding with the ECN Digital Markets Act Conference, the Belgian Competition Authority (BMA) published a DMA guide for “tech challengers”. The guide and conference emphasised the national courts' competence to decide claims against gatekeepers. Despite historically low claim awards in similar cases, the BMA anticipates private enforcement of the DMA in Belgian courts. The BMA’s stance and guidance thereby underscores the possibilities for DMA private enforcement in Belgium.
• Although no known case has yet been filed against a gatekeeper in Luxemburg, we do expect it to be an interesting venue for DMA private enforcement. Amazon’s EMEA HQ in Luxemburg makes it a key jurisdiction for private enforcement of the DMA against Amazon. In other fields, we are already seeing more and more claims being brought against Amazon. We expect claims under the DMA to follow soon.

At the same time, private enforcement under the DMA is a new avenue, which inherently brings both risks and opportunities for those pursuing and those being challenged with DMA claims. We expect the focus will be on three aspects:

(i) Stand-alone or follow-on

Private enforcement of the DMA can take place both via stand-alone and follow-on proceedings. According to Article 39(5) DMA, follow-on proceedings can benefit from the binding effect of a decision by the Commission. However, public enforcement will take time. The Commission has not yet opened and finished investigations against all gatekeepers and core platform services. Furthermore, the Commission's compliance decisions are subject to appeal and such appeal proceedings take time. For this reason, it will likely be years before final decisions with legal force are rendered.

The good news is that private parties need not wait until a final decision. Stand-alone private enforcement involves legal actions initiated without relying on a decision or finding by the Commission. In such cases a claimant cannot benefit from the binding effect of a decision but can prove the infringement itself.

The procedures and conditions of gatekeepers’ platforms are often clouded in secrecy, making it difficult for claimants in stand-alone proceedings to prove the breach and quantify their damages. Article 8 DMA is expected to play a significant role in this context. According to this Article gatekeepers must “demonstrate compliance with the obligations laid down in Articles 5, 6 and 7”. Typically, in ordinary proceedings, the claimant has the burden of stating and proving their claims. With Article 8 DMA in hand, claimants could argue that it is up to the gatekeepers to prove compliance. If successful, this would be a huge shift in the burden of proof and enhance stand-alone private enforcement.

(i) Injunctions and forum shopping

Private parties aim to stop the infringing actions of gatekeepers and ensure a fair and competitive market. A DMA infringement by a gatekeeper can cause unprecedented and irreversible damage. Particularly in stand-alone proceedings where the Commission has not yet issued a decision, private parties may, therefore, seek a cease-and-desist order to force compliance and mitigate damages.

Such orders reduce the burden on the Commission but also introduces the possibility of inconsistencies across the EU. While a Commission decision provides EU-wide clarity on the existence of an infringement, national courts will look only at the facts of the specific case. This could potentially lead to injunctions being imposed in some countries or cases and not in others.

Such differences could lead to difficulties with regards to legal certainty and equality, which in turn can lead to forum shopping. We expect judges will, therefore, closely watch their European colleagues and align policies where possible.

(ii) Quantification of damages

Previous 101/102 TFEU case law shows that quantifying damages from breaches in digital markets is complicated. This complexity arises from both the nature of the market and the lack of accessible information. Defendants often withhold such information, considering it business sensitive. The DMA’s information provisions, however, may compel gatekeepers to disclose the necessary data. This could be very helpful for claimants in quantifying their damages.

Courts, however, will have to be extremely mindful of misuse of the information provisions and the subsequent data. If successful, claimants might attempt to identify potential DMA breaches in cases related to other competition regulations only in order to force gatekeepers to provide the necessary information.

With the first DMA fines having been rendered an important new milestone for DMA public enforcement has been reached. The Commission is not slowing down. The next few months will likely see further investigations, compliance decisions and DMA measures. At the same time, calls for private enforcement of the DMA are growing louder. The first private actions are happening across Europe and especially the Netherlands seems very well suited for (stand-alone) DMA private enforcement. We are convinced 2025 will be a very interesting year for litigations regarding the digital markets.