Damages Implementing and Enforcing the EU’s Digital Gatekeeper Regulation: A German Perspective on the Role of National Authorities

In this paper I review the measures taken in Germany to implement and publicly enforce the Digital Markets Act (DMA) and the Digital Services Act (DSA). A focus is on the institutional design aspects of these measures, their impact on and interaction with existing national instruments, and their interplay with the new EU rules. I describe the Bundeskartellamt’s powers to investigate infringements of the DMA and discuss the complementary role that the special abuse regime for digital gatekeepers under section 19a of the German Competition Act can play. Moreover, I explain why Germany has not yet played the role that the Commission would like it to play in referring merger cases to Brussels via the ‘Article 22 EUMR route’, as envisaged in Article 14 of the DMA, as well as the legal sticking points for the emerging restrictive interpretation of the transaction value‐based threshold. I also outline the institutional arrangements intended to ensure the administrative enforcement of the DSA. Finally, I show that the DSA required the repeal of national digital gatekeeper regulation and the enactment of new substantive law to maintain the legal status quo ante, taking into account the scope for national specifications and for national supplementary regulation left by the DSA.