The Digital Markets Act (DMA) establishes a centralised enforcement model whereby the European Commission “is the sole authority empowered to enforce [the DMA]” (see recital 91). National authorities are the Commission’s enforcement partners. This is explicitly stated in Article 37 of the DMA, which states that the Commission and the Member States shall “work in close cooperation and coordinate their enforcement actions to ensure coherent, effective and complementary enforcement of available legal instruments applied to gatekeepers”. This blog explores how NCAs are positioning themselves in this complex regulatory landscape, drawing from the recent Dutch initiative to entrust the ACM with the powers it needs (and is entitled to) in order to enforce the DMA.
1. Powers for national competition authorities under the DMA
When addressing the role of national regulators, the DMA uses three distinct terms in order to distinguish between ‘national authorities,’ ‘national competent authorities’, and ‘national competent authorities of the Member States enforcing the rules referred to in Article 1(6)’. The former terms are not defined, while the latter refers to national competition authorities (NCAs). National authorities and national competent authorities refer to other regulatory bodies, such as data protection authorities. This blog is primarily concerned with powers granted to NCAs. However, where powers are also granted to other types of national authorities, express reference will be made.
Prior to discussing the responsibilities NCAs may be entrusted with under the DMA, it is worth repeating that the Commission is the “sole enforcer” of the DMA. The Commission’s central role has repercussions for the extent to which NCAs may be involved in the enforcement of the DMA. Concretely, the DMA grants NCAs (1) restricted powers to investigate DMA compliance, (2) supporting powers, and (3) new obligations for NCAs when enforcing national competition law against gatekeepers. These powers will be explored in more detail below.
a. The restricted investigative powers of NCAs
Article 38(7) of the DMA empowers NCAs to investigate (on own initiative) whether gatekeepers comply with their obligations under the DMA as set out in Article 5, 6 and 7. With that said, the Commission retains a degree of control over such investigations: where the Commission has already initiated a non-compliance investigation pursuant to Article 20 DMA relating to a specific (suspected) infringement, NCAs may no longer investigate the relevant practice and must halt any ongoing investigations. NCAs must also inform the Commission prior to taking any formal investigative steps. In accordance with recital 91, the DMA provides that NCA-led investigations are particularly relevant in cases where it is unclear whether a gatekeeper’s behaviour violates the DMA, national competition law, or both.
At first glance, this system seems similar to the one adopted under Regulation 1/2003. Pursuant to the latter, both NCAs and the Commission are competent to enforce EU competition law, but Commission action supersedes that of Member States. However, the powers of the NCAs under the DMA are far more limited under the DMA. NCAs may only assess whether a gatekeeper complies with the DMA but cannot take any action to stop or punish non-compliance, as this remains the exclusive competence of the Commission.
Article 27(1) of the DMA lays down that NCAs must set up a system which business users, competitors and end users can use to lodge complaints about DMA infringements. Where the NCA concerned receives a complaint, it has full discretion to take appropriate follow-up measures (but it is not required to do so – see Article 27(2)). Moreover, Article 27(3) establishes that where the NCA concludes that a gatekeeper does not comply with the DMA, it must send that complaint to the Commission.
b. Supporting powers
NCAs are granted powers designed to support the Commission in its investigations. Where the Commission conducts interviews, it must inform the relevant NCA, which in turn may request to assist the Commission (Article 22(1)). The Commission may also request that NCAs assist it with conducting inspections in a given Member State (Articles 22(3) and 22(7), and supporting its market investigations (Articles 16(5) and 38(6)).
Furthermore, according to Article 26(2), the Commission can appoint NCA officials to help the Commission oversee gatekeeper compliance with the DMA, and to monitor any commitments imposed on gatekeepers. These remarks apply to all national authorities, not just NCAs. IIn other words, it is possible that multiple national competent authorities may be called upon by the Commission to contribute to an investigation, leading to closer cooperation between e.g., NCAs and data protection authorities.
2. Obligations when enforcing national competition law
The DMA requires NCAs to keep the Commission informed about investigations into gatekeepers’ practices under national competition law. In accordance with Article 38(2), where the NCA plans to investigate a gatekeeper under national competition law, it must notify the Commission before or immediately after taking its first formal investigative step (e.g., before or immediately after sending the first RFI). If the NCA intends to impose any obligations based on national rules, it must send draft measures to the Commission thirty days prior to their adoption, or immediately after in the case of interim measures (see Article 38(3)). The purpose of these obligations is to ensure close cooperation between the Commission and NCAs when enforcing national competition law against gatekeepers (presumably to avoid ne bis in idem issues). This is also confirmed in recital 91.
a. The Dutch ACM and its powers under national law
The Dutch legislator has recently enacted rules to entrust the NCA (ACM) with the relevant DMA enforcement powers, which are outlined in the DMA Implementation Act (“DMAIA”) (Uitvoeringswet digitalemarktverordening). The ACM’s powers, as laid down in the DMAIA, are addressed below.
i. The Restricted investigation powers of the ACM
The most important power granted to the ACM by the DMAIA is enshrined in Article 3(1) DMAIA, which entails the ACM’s ability to investigate non-compliance by gatekeepers in the Netherlands with Articles 5, 6 and 7 DMA. The DMAIA is more specific than the DMA as to the scope of this power. This is explicitly stated in chapter 4.2.3. of the explanatory memorandum of the DMAIA, which indicates that the ACM may only supervise and monitor compliance with the DMA without being able to take any enforcement measures. According to Article 2(2) DMAIA, the ACM is explicitly prohibited from accepting commitments, enforcing binding directives (bindende aanwijzingen), or imposing fines for infringements of the DMA. This leaves the ACM with no powers to remedy any infringements it identifies.
The ACM’s investigative powers under the DMA largely reflect the ACM’s general investigative competences when enforcing competition, energy, or consumer law. The ACM may request information, seal premises, and enter residential premises where this is necessary to gain access to certain documents. Finally, where undertakings and individuals refuse to cooperate, the ACM can also impose administrative fines.
ii. Feasibility
During the legislative process, the ACM was asked to assess the feasibility of implementation and enforcement of the (then proposed) DMAIA. The ACM sent a letter on 29 March 2023 to the Ministry of Economic Affairs, broadly stating that it would be in the position to implement the DMAIA. The ACM projected that the DMAIA would require 7 full-time employees per year, and require around EUR 20,000 to cover the international travel costs associated with its implementation. According to the letter, the necessary budget will be included in the general budget for enforcing EU digital regulation, including the Digital Services Act, the Data Governance Act, and the Data Act.
iii. Developments since entry into force
The DMAIA officially entered into force on March 10, 2025. That same day, the ACM issued an optimistic press release, reiterating its expectations for the positive impact the DMA would have on businesses. In addition, it also stated that the ACM works closely with the Commission and is also part of “DMA Joint Investigative Teams”, which include employees from the Commission and the ACM. In addition, the authority also revealed it had already received numerous “signals” about potential DMA violations. However, in the weeks since the regulation’s entry into force, the ACM has taken no public steps to announce investigations into these alleged breaches. Whether this signals a cautious approach or simply reflects the early stages of implementation remains to be seen.
3. Unanswered questions and potential enforcement challenges
While the DMA estabishes a framework for the involvement of NCAs in its enforcement, several questions remain unanswered as we move from theory to practice.
Perhaps the most pressing question is how cases will be handled when a gatekeeper’s behavior potentially violates both the DMA and national competition law. Recital 91 of the DMA suggests a neat allocation of tasks: NCAs investigate the competition law aspect while the Commission handles the DMA component. The question remains how this will work in practice where the DMA and competition law issues are deeply intertwined.
Another challenge that arises is the strain on NCA resources. NCAs face constraints when enforcing traditional competition law. They must now stretch these resources to cover DMA-related activities as well.
Moreover, the digital economy is borderless by nature, raising complex jurisdictional questions. When a gatekeeper’s behaviour affects users across multiple EU countries, which NCAs should be involved, and to what extent? Unlike in traditional competition law enforcement, the DMA provides no formal allocation system or network mechanism for determining which NCA should take the lead. Will we see informal cooperation among NCAs? Or will the Commission need to step in more actively to coordinate NCA investigations to prevent inefficient parallel proceedings?
Finally, DMA enforcement at a national level may also encounter cross-regulatory challenges. DMA issues usually involve multiple regulatory domains, including competition law, data protection, and consumer protection. Will we see joint task forces bringing together competition authorities, data protection authorities, and consumer protection agencies? Without explicit provisions for such coordination, there is a risk that regulatory silos will develop, potentially undermining the integrated approach that is needed to address complex digital market issues. The successful enforcement of the DMA may ultimately depend on the authorities’ ability to transcend traditional regulatory boundaries – a challenge that has not been addressed by the current legal framework.
Co-authored with Philine Wassenaar.
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