Research Papers
Intellectual Property and Competition Law
Intellectual Property and Competition Law
Gatekeepers Beyond the DMA
Gatekeepers Beyond the DMA (Max Planck Institute for Innovation & Competition Research Paper, No. 26-07), 2026, 57
The article argues that recent EU digital rulemaking has transformed the Digital Markets Act's (DMA) gatekeeper designation into a general-purpose legal trigger beyond its original competition-policy rationale, without systematic conceptualization or constitutional scrutiny. It theorizes this pattern as 'cross-regime status spillover': a formal administrative status created under one regulation migrates into distinct instruments and automatically produces exclusionary or disadvantageous legal consequences that those destination regimes have neither independently justified nor proportionately delimited. Using the Data Act (DA), the Financial Data Access Regulation (FiDA) and the Digital Omnibus Proposal regarding public sector data as case studies, the article reconstructs the DMA's asymmetric architecture and develops a three-step methodology of autonomous regime analysis, DMA rationale portability assessment, and normative gap-filling. It identifies a graduated justification deficit across the three regimes, together with four structural deficiencies. On this basis, the article proposes a cross-regime consistency obligation, a downstream effects assessment for DMA designation decisions, and a standardized rebuttable presumption mechanism, and distils a topical nexus requirement as the doctrinal limit for constitutionally sustainable cross-regime status spillover in EU economic law.