Shifting from Sanctions to Preventive Regulation in Digital Framework: A Critical Perspective

Abstract

The historical period we are living through is characterised by the vivacity and opposing thrusts: on the one hand, in fact, it emerges clearly that the intention of the European Union regulation is inter alia to modernise the traditional system, making it more sustainable, resilient, and efficient. On the other hand, it is evident that the current war events bring attention to more concrete and current needs. In this complex framework, it is useful to proceed step by step and to pay attention to the different segments that are thus characterising the path of European legislation. Among others, it is interesting to focus on the theme of digital platforms, highlighting positive elements and possible criticalities. Digital platforms and the digitalisation of commerce, and thus, more generally, of our habits, are, in fact, profiles characterised by a multiplicity of issues that need an accurate examination. In addition to the existing relationship between technology and sustainability (still to be explored), we consider it useful to focus here on the issues of controls and responsibilities, to verify their efficiency and system compatibility. It is increasingly necessary to understand whether the usual "sanctioning" and ex-post "control" tools are adequate or far from a regulation that, instead, proves to be more efficient if proactive and intended not to allow unsuitable players to enter the market. The question addressed in this paper is whether the new rules set out in the Digital Markets Act could be the most adequate and efficient way to ensure access to the digital market by other (smaller) players. To answer this question, we will first give a brief overview of the current legal framework based on ex- post remedies. Then, we will analyse the main innovative provisions as well as the main criticisms.