A pivot in leadership is unfolding across the Atlantic as Margrethe Vestager announced her exit as Europe’s chief competition regulator to launch her candidacy to head the European Investment Bank.[1] Under her auspices, the European Union (“EU”) led the charge against the world’s largest tech companies,[2] with the spotlight often gleaming on companies like Google, which weathered fines eclipsing €8 billion from 2017 to 2019 for breaching EU competition laws.[3] Despite these significant financial penalties, allegations of persistent non-compliance and monopolistic practices endure.[4] Today, while the US relies on century-old laws to police “Big Tech”, the EU is at the forefront of developing regulations for the same objective.[5]

In the US, the antitrust narrative morphs into a peculiar dichotomy. After a period of declining enforcement,[6] regulators are now embracing the Biden administration’s policy objective “to enforce the antitrust laws to meet the challenges posed by new industries and technologies, including the rise of the dominant Internet platforms.”[7] The list of cases against big tech include the likes of Amazon[8] and Google, with the latter being described as “the biggest tech monopoly trial of [the] 21st Century.”[9] Despite the amplification of cases against the tech giants, doubts loom whether “the current enforcement system is too slow, too complex and too cumbersome.”[10] Though proposed changes to the regulatory clearance process for mergers and acquisitions[11] indicate the US seeks to maintain an aggressive posture towards enforcement, tangible legislation remains elusive, with bipartisan efforts to regulate online platforms’ anti-competitive behavior stuttering before reaching the President’s desk. [12]

Conversely, the EU has sculpted a notably distinct trajectory with the enactment of the Digital Markets Act (“DMA”) in November 2022, just two years after its proposal by the European Commission (“Commission”).[13] The DMA establishes regulatory safeguards to ensure fair and open markets in digital sectors within the EU.[14] Specifically, the protections regulate the behavior of large online platforms that provide a “gateway between business users and consumers.”[15] The criteria to reach “gatekeeper” status requires meeting certain quantitative thresholds[16] and possessing a considerable degree of market power.[17] If a company earns the designation of a “gatekeeper,” it is subject to the obligations and prohibitions outlined in the provisions of the DMA.[18]

For non-compliance, the Commission may impose fines “not exceeding 10 % of [the gatekeeper’s] total worldwide turnover,”[19] and “20 % of its total worldwide turnover in the preceding financial year where . . . . a gatekeeper has committed the same or a similar infringement.”[20] As the DMA exits its implementation phase in 2023, companies will begin to be notified of their gatekeeper designations and subsequently look to take the requisite steps to ensure compliance by March 2024.[21] Commentators speculated that big tech would populate the initial list of designated gatekeepers,[22] and a day after Commissioner Vestager made her announcement, the Commission announced six gatekeepers including Amazon, Apple, ByteDance, Meta, Microsoft, and Google’s parent company, Alphabet [23]

The DMA is not without its critics,[24] and it would be too early to speak to its success. However, the significance of the DMA does not only lie in what it seeks to achieve but also in what it represents. The framers of the document acknowledged that existing competition laws were inadequate to reach the DMA’s regulatory objectives because of the reactionary nature of those very laws that “require . . . an extensive investigation of often very complex facts on a case by case basis.[25] With uncertainty as to any new and significant antitrust legislation in the near future, the question remains whether the laws enacted a century ago, to combat the monopolies of the industrial age, are fit to address the challenges of a new, technological era.