Participants of the workshop in Kyiv in October 2021. Photo: Sophia Sorg
Study  |  01/27/2023

Comprehensive Work on Ukrainian Competition and Intellectual Property Law Published

The book project, the result of which is now available, already began in 2020. Heiko Richter, Senior Research Fellow at the Institute, has published “Competition and Intellectual Property Law in Ukraine”, the most comprehensive book on Ukrainian competition and intellectual property law in English to date.

Participants of the workshop in Kyiv in October 2021. Photo: Sophia Sorg
Participants of the workshop in Kyiv in October 2021. Photo: Sophia Sorg

The 600-page publication is the completion of a two-and-a-half-year project. More than 20 Ukrainian legal scholars were involved in the project, and their contributions cover a broad range of topics. The holistically designed volume aims to make the development and current state of Ukrainian law accessible and visible to the international research community. In addition to promoting academic discourse, the book aims to appeal to policy-makers. Thus, the contributions discuss and elaborate on legal policy reform proposals.

Recent legal developments in Ukraine have been extraordinarily dynamic. Not least as a result of the Association Agreement between Ukraine and the EU concluded in 2014, Ukrainian and competition and intellectual property law have undergone significant changes. The study examines theoretical aspects of legal harmonization as well as actual developments in the areas of international trade law, antitrust and unfair competition law, intellectual property law and copyright law. The spectrum of topics ranges from the “Europeanisation” of Ukrainian antitrust law and the regulation of the digital economy under antitrust law to access to medicines and the significance of geographical indications to the reform of collecting societies and the protection of artificial intelligence under intellectual property law.

With the aim of presenting a reference book, the authors collaborated intensively across institutional and national borders. It is owing to the authors’ perseverance and confidence that the manuscript could finally be completed in late summer 2022 in the midst of the turmoil of war. For the Institute, in addition to the editor, Moritz Sutterer, Daria Kim, Sophia Sorg and Claudia Dalmau Gomez were involved in the project, which was also accompanied by an online and a face-to-face workshop in Kyiv in October 2021. Many personal contacts were established in the course of the project.

Competition and Intellectual Property Law in Ukraine is published by Springer as part of the series MPI Studies on Intellectual Property and Competition Law. It is available for download via Springer-Link as PDF and EPUB. The print version is available in bookshops.

Study  |  01/26/2023

Allegations of Sexual Misconduct, Accused Scientists, and Their Research

Does the scientific community sanction sexual misconduct? While scientific work, according to Merton’s norm of universalism, should be judged regardless of who created it, the scientific community should also encourage “good citizenship” to promote an inclusive environment. The findings of a new study raise a number of ethical questions that the scientific community will need to answer going forward. 

The goal of science is to produce knowledge. To facilitate the prolificacy of the process, science is organized around a set of principles known as the “Mertonian Norms”. One tenet, among others, is that ideas are evaluated on their own merit, regardless of who created them. Yet, at the same time, science is also a social system, and the community of scientists may rely on additional norms to create an inclusive environment and to regulate itself. Sometimes, these norms are in conflict.

There is evidence that the community gives less attention to (i.e., cites less) the works of scientists who had one of their articles retracted. Such a penalty may be conceived as consistent with the Mertonian norms, as a retraction casts doubt on the validity of one’s work. However, applying a similar penalty to the contributions of scientists who have egregiously violated social norms runs afoul.

In a new study, Rainer Widmann, Michael E. Rose and Marina Chugunova try to answer the question of whether the scientific community not only sanctions “bad science”, but also “bad citizenship”. They focus on sexual misconduct, which sadly is a prevalent form of social norm violation in academia as in other fields.

In their analysis, they track citations to articles of alleged perpetrators that were published prior to allegations, and compare them to the citations received by other articles that stem from the same journal issue. They find that the scientific community cites prior work of alleged perpetrators less after allegations of sexual misconduct surface. Researchers that are very close to the perpetrator in the coauthorship network (e.g., former coauthors) react the strongest and reduce their citations the most. Comparing the results of the new study to previously found citation penalties for scientific misconduct, the magnitudes appear similarly sized. Finally, the authors document that alleged perpetrators face palpable career consequences: they publish and collaborate less following the allegations, and they are more likely to quit academic research altogether.

There may be several reasons why authors may withhold citations. First, they may do so to penalize. This occurs even when there is a cost associated with punishing, which in the present context would be the deviation from the usual norm in referencing relevant prior work. Second, authors may not cite to avoid being seen as condoning sexual misconduct. This motive may be particularly relevant for researchers who are close to the alleged perpetrator. Third, peers may not separate academic and non-academic misconduct, or perceive that misconduct in the two domains is correlated.

The present study is the first to provide systematic evidence on the consequences of sexual misconduct for perpetrators. The findings raise a number of ethical questions that highlight the tension between the advancement of knowledge and the advancement of science as a social institution. Is the decline in citations to the perpetrator’s body of prior work an undue distortion of the scientific process or an appropriate penalty? Is the loss of scientific output due to excluding or penalizing alleged perpetrators acceptable? Are the documented career consequences adequate, taking also into account possible deterrence benefits for (future) victims? The results of the new study provide a new basis for a discussion of these important issues.

Further information:

Directly to the publication Allegations of Sexual Misconduct, Accused scientists, and Their Research

Max Planck Institute for innovation and Competition Research Paper No. 22-18

Symbolbild EU-Design Package - CC0 based on images by
Opinion  |  01/24/2023

Position Statement on the Design Package

On 28 November 2022, the EU Commission adopted proposals for a revised Regulation and Directive on designs (Design Package). The aim of the proposals is to streamline and simplify procedures, promote harmonisation and improve the functioning of design law. In its position statement of 23 January 2023, the Institute welcomes the overall aim of the proposals. However, some points deserve further comment and clarification. Here, the focus of the remarks lies on substantive law.

Data Sharing for Good Health & Well-Being: India's Way Forward to Achieving Sustainable Development Goal 3
Miscellaneous  |  10/28/2022

Achieving Sustainable Development Goals through Data Sharing

“Regulation of the Data Economy in Emerging Economies”  is the title of an international project in which researchers from the Institute are looking at how regulatory mechanisms in the data economy must be designed to promote sustainable economic development in emerging economies. The second workshop of this project, focusing on health-related issues, was held in Bengaluru, India, on 8 and 9 September.

Data Sharing for Good Health & Well-Being: India's Way Forward to Achieving Sustainable Development Goal 3
Participants of the workshop in Bengaluru, India

The Max Planck Institute for Innovation and Competition has contributed significantly to the fast evolving policy framework in EU for the regulation of its digital economy. Most recently an in-depth analysis of the provisions of the proposed Data Act was published as a position statement. However, since the issues pertaining to the digital economy are of a global nature, the Institute is also looking at the developments outside the EU. Against this backdrop, a team of researchers led by Prof. Dr. Josef Drexl is working on a project titled Regulation of the Data Economy in Emerging Economies. The project has a specific focus on studying the approaches of emerging economies for leveraging data sharing in order to achieve the Sustainable Development Goals and is being developed in collaboration with international partners from Brazil, India and Senegal. The said partners are Mackenzie University, São Paulo, National Law School of India University, Bengaluru, BML Munjal University, Haryana, and Université Virtuelle du Senegal, Dakar.

To identify the state of play of each country regarding data sharing in the context of the UN Sustainable Development Goals (SDGs), the research starts by assessing current initiatives from both private and public entities, the existing legal framework and the policy debate regarding data sharing. Accordingly, on-site workshops were planned to be held in each country to contextualise the research in the socio-economic realities of these emerging economies. The first in the series was titled “Workshop on Data Sharing and Sustainable Development in Emerging Economies - Senegal” and held in Dakar on 16 and 17 March 2022. Its focus was agriculture and financial inclusion. This was followed by a workshop organised in Bengaluru on 8 and 9 September titled “Data Sharing for Good Health & Well-Being: India’s Way Forward to Achieving Sustainable Development Goal 3”.

The recently concluded workshop in Bengaluru brought together a wide range of stakeholders in India from pioneering industry representatives in the health sector (NIRAMAI Health Analytix, Saathealth, DRiefcase, Ambee); industry associations like NASSCOM; private initiatives like Swasth Alliance and iSPIRT, public bodies such as NITI Aayog, independent researchers and research institutions in the area of health, members of civil society as well as academic scholars from policy and legal disciplines.

One key takeaway from the Bengaluru workshop was that there is enormous innovation happening in diverse areas with the utilisation of data, both personal and non-personal, in the direction of achieving SDG #3. It was also observed that India benefits from its experience in setting up digital public infrastructure dating back to the development of its Unified Payment Interface in 2016. This departs from the approach in Senegal where the infrastructural backbone for data sharing is still missing. While the take-up of these initiatives in the health sector has been encouraging in India, a regulatory framework governing this largely technological solution to data sharing in health seems to be lacking. The absence of a comprehensive data protection regime in India was a recurring theme.

In the coming months, country-specific reports are awaited from each workshop. These scientific reports will analyse the variety of approaches in these emerging economies and inform the formulation of commonly applicable recommendations. Such recommendations may then be utilised to tailor specific data-sharing policies and assist in attaining SDGs.

The next workshop is to be held in São Paulo on 15th and 16th December, 2022 at the Mackenzie University with a focus on climate action (SDG #13): Data Sharing & Climate Action in Brazil

Michael E. Rose scanning a directory
Study  |  07/22/2022

How Amateur Genealogists Support Research – A Citizen Science Project

Together with Germany’s largest association for family research, the Verein für Computergenealogie, the Institute is conducting a digitization project to collect data with the help of amateur genealogists. The data from over 100 volumes of annual directories of writings published at German universities and higher education institutions open up many new, exciting research questions.

Michael E. Rose scanning a directory
Senior Research Fellow Michael E. Rose, Ph.D., scanning a directory
Eintrag der Dissertation von Fritz Haber in der Bearbeitungsmaske
Entry of the dissertation of Fritz Haber in the editing mask
Original entry of the dissertation by Hilde Mangold
Original entry of the dissertation by Hilde Mangold

Citizen Science thrives on the interaction between citizens and researchers. The interest in cooperation is steadily growing. Well-known projects in the environmental area include bird counting and bee observation.

Since December 2021, the MPI for Innovation and Competition has now been cooperating with the German Association for Computer Genealogy (CompGen) in a data project to record the annual directories of publications at German universities and higher education institutions. The directories, which were published between 1885 and 1987, first by the Royal Library in Berlin and later by the German Library in Leipzig, cover 103 volumes. They list mainly dissertations and postdoctoral theses written at German universities and higher education institutions. Afterwards, the directories were discontinued in this form. A digital continuation failed.

For citizens who conduct genealogical or family research, the lists, some of which contain rich biographical information, are interesting because they hope to meet ancestors, bearers of the same name or people from their town or region. Birgit Casper, who is working on the project, reports on her motivation for collecting the data: “I know two doctors in my family. Of one, born in 1891, I know pretty much where he studied and that he submitted his dissertation ‘On cases of poisoning with American worm seed oil’ to the medical faculty in Rostock in 1920. Of the other, born in 1892, I only know where he practiced medicine as of 1924. I do not know where he studied, nor when and on what subject he did his doctorate. Here I am waiting for the corresponding volume.”

For scientists, the lists are intriguing because they provide a complete overview of researchers who were educated at German universities since 1885 and some of whom were internationally important. Since German universities were internationally leading in almost all disciplines at the turn of the century, the project promises particularly interesting insights. We find the dissertations of numerous later Nobel Prize winners, such as Walther Nernst, who received the Nobel Prize in Chemistry in 1920 and was on the board of directors of the Kaiser Wilhelm Institute (KWI) for Physics, as well as Werner Heisenberg, who later gave his name to the subsequent MPI for Physics, and also Maria Goeppert-Mayer, who was awarded the Nobel Prize in Physics in 1963 as the first female German Nobel Prize winner.

The first regular doctorate for a woman will also be found in the lists. In fact, women were severely underrepresented at first. Only a few were allowed to earn a doctorate before 1900, and only with special permission. It was only between 1901 and 1908 that the German states successively admitted women to their universities. The right to pursue doctoral studies, however, was awarded by the faculties themselves. A systematic recording of all dissertations will thus generate a complete overview of when, at the latest, women were allowed to earn a doctorate at which universities and faculties. The right to habilitation – the path to professorship – was given to them even later: Here, too, the lists can help shed light on the situation.

How does the collaboration between science and amateurs work in the project?

To find volunteers who want to work on the project, CompGen publishes calls and updates on Twitter and in the blog on the Compgen website. On a special wiki page for the project, volunteers can register, learn about the editorial guidelines, and start editing data right away.

Michael E. Rose, Senior Research Fellow at the MPI for Innovation and Competition, who leads the project and is active in the field of Science of Science, is gradually scanning the directories.

Then the lists are captured with a text recognition program and roughly segmented: What are first name, last name, title of the dissertation, the date of the defense, other details? The volunteers use the infrastructure provided by the association (input mask and data repository) to proofread the entries and add to them manually. The entered records are immediately available for search queries. So far, seven annual directories have been processed. After completion of the project, the lists, which are interlinked, for example, to the German National Library, Wikipedia, and Scopus, a multidisciplinary abstract and citation database for research literature, will be publicly available as research data.

One of the best-known personalities recorded so far is Fritz Haber, who, as founding director, headed the KWI for Physical Chemistry and Electrochemistry in Berlin for 22 years, which is now named after him. His dissertation, „Ueber einige Derivate des Piperonals“ (On some derivatives of piperonal), a fungicidal fragrance, is found in volume VI (1890/91). Fritz Haber received the Nobel Prize in 1919, awarded for the year 1918, for his research on the catalytic synthesis of ammonia, i.e., in a different field of research from his dissertation.

Max von Laue, on the other hand, who completed his doctorate with Max Planck in 1903 „Über die Interferenzerscheinungen an planparallelen Platten“ (On the interference phenomena in plane-parallel plates), continued to pursue the research begun with his dissertation – until he was awarded the Nobel Prize in 1914 for his work on X-ray interferences.

However, not all doctoral graduates were able to receive the recognition they deserved. Hilde Mangold’s research in the field of embryology led to a Nobel Prize in 1935 for her doctoral advisor Hans Spemann, who was director at the KWI for Biology in Berlin-Dahlem during the First World War. Mangold herself died in a fire shortly after defending her dissertation in 1924. After all, the prize-winning discovery, the Spemann organizer, is sometimes called the Spemann-Mangold organizer.

Due to their depth of detail and completeness, the data digitized in the project allow for numerous exciting research questions. Can we read problems of an era from law dissertations? How do the demographics and social origins of doctoral students change over time and at individual universities? Who were the women who were the pioneers in earning a doctorate? What is the relationship between dissertations and patent activity?

However, before that, the dataset must be completed, and every hand and pair of eyes is still needed to accomplish this. More information under

Opinion  |  07/05/2022

Position Statement on the Decision of the WTO Ministerial Conference on the TRIPS Agreement

On 17 June 2022, the WTO Ministerial Conference adopted a long-awaited decision on the TRIPS Agreement. The Decision has not waived any intellectual property rights as such, as proposed by India and South Africa in October 2020. Instead, it mainly clarifies the application of the existing TRIPS flexibilities. As a follow-up to its earlier Position Statement, the Institute issued a paper that outlines the legal and practical implications of the Decision.

This second Position Statement, which follows the Institute's Position Statement of 7 May 2021, reflects on the legal and practical implications of the Ministerial Decision in view of the ultimate goal of overcoming the COVID-19 pandemic. A particular focus here is on TRIPS flexibilities relating to compulsory licensing of patents.

Position Statement of 5 July 2022 on the Decision of the WTO Ministerial Conference on the TRIPS Agreement adopted on 17 June 2022

Heiko Richter, Shraddha Kulhari, Carolina Banda, Daria Kim, Valentina Moscon, Josef Drexl, Jörg Hoffmann, Klaus Wiedemann, Begoña Gonzalez Otero (v.l.n.r.)
Opinion  |  06/14/2022

Position Statement on the EU Data Act

Data generated through the use of digital services and products offer enormous economic potential. The EU Data Act is intended to regulate access to and use of such data. But does the current legislative proposal ensure that the interests of all stakeholders are adequately taken into account? A research group at the Institute has analyzed this question and written a comprehensive position statement on the subject.

Heiko Richter, Shraddha Kulhari, Carolina Banda, Daria Kim, Valentina Moscon, Josef Drexl, Jörg Hoffmann, Klaus Wiedemann, Begoña Gonzalez Otero (v.l.n.r.)
Research Group: Heiko Richter, Shraddha Kulhari, Carolina Banda, Daria Kim, Valentina Moscon, Josef Drexl, Jörg Hoffmann, Klaus Wiedemann, Begoña Gonzalez Otero (f.l.t.r.)

Directly to the Position Statement (PDF).

Miscellaneous  |  05/04/2022

EPO ARP Grant for Deep Learning Project on Knowledge Flows Between Science und Technology

Under the European Patent Office’s Academic Research Programme, a research group of the department Innovation and Entrepreneurship Research has received a major grant for a project using Deep Learning to investigate knowledge flows between science and technology.

The European Patent Office (EPO) recognizes the importance of high-quality research on patent-related intellectual property (IP) matters to inform policymakers and facilitate sound business decisions in a context where intangible assets, innovation, and IP rights have become pivotal in the economy. With the Academic Research Programme (EPO ARP), launched in 2017, the EPO seeks in particular to encourage more academic IP research and to promote the dissemination of research results.

In order to facilitate effective research collaboration, the EPO supports collaborative research schemes in which scientific partner institutions team up to work on projects with a broader scope, bigger budget, and longer duration, and with the potential to involve a range of EPO departments. The current EPO ARP comprises two main streams: “The New Frontiers of Innovation” and “Digital Technologies for IP”. Out of 36 proposals submitted to the EPO, only five were awarded a grant. Grant-holders receive up to 150,000 Euro for their projects.

Within the scope of the first stream and the research area “From University Research to Innovation Ecosystems”, a research group around Dietmar Harhoff, with Sebastian Erhardt, Michael E. Rose, Mainak Ghosh, and Erik Buunk, has now received a major grant for the project “Tracing the Flow of Knowledge from Science to Technology Using Deep Learning”.

The team seeks to harness the semantic similarity between patents and scientific publications using the latest advances in machine learning. The solution utilizes transformer models that identify semantically similar documents. A patent that is highly similar to prior scientific publication has possibly been influenced by it. The approach is scalable and able to handle large amounts of text. Once documents are semantically linked, the data is used to draw inferences regarding the diffusion of knowledge from science within publications and to and within patents.

Based on the information generated by the approach, the team will be able to build an entire knowledge landscape to trace the significance of fundamental research in emerging technologies.

Study  |  05/01/2022

Ruled by Robots – How Do Humans Perceive Technology-Assisted Decision-Making?

Algorithms and Artificial Intelligence (AI) have become an integral part of decision-making. Would people prefer to have moral decisions that affect them made by a human or an algorithm? In a new study, this and other questions were investigated in a laboratory experiment.

As technology-assisted decision-making becomes more prevalent, it is important to understand how the algorithmic nature of the decision-maker influences how affected people perceive these decisions. The application of algorithmic aids spans from prediction decisions of various kinds, for example, whom to hire, and what salary to offer, to moral decisions with no objectively correct solution, such as how to distribute a bonus within a team fairly.

The authors Marina Chugunova and Wolfgang J. Luhan (University of Portsmouth) use a laboratory experiment to study the preference for human or algorithmic decision-makers in redistributive decisions. Redistributive decisions can be seen as a type of moral decisions, where the definition of correct or fair depends on the observer’s personal ideals and beliefs. In particular, the authors consider whether an algorithmic decision-maker will be preferred because of its unbiasedness. Defining which decision-maker is preferred and whose decisions are perceived to be fairer can potentially improve the acceptance of decisions or policies, and with it, the compliance.

The Experiment

In the experiment, the main aim was to create a situation where participants’ preference for either a human or an algorithmic decision-maker to redistribute income was observable. First, participants individually earned their initial income by completing three tasks. The three tasks mimicked three potential determinants of income that are central to major fairness theories: luck, effort and talent. Then, the players were matched into pairs and had to choose a decision-maker: either an algorithm or a third party human. The decision-maker decided how to redistribute the total earnings of the pair between the two members. To test the role of bias, a laboratory-induced source of potential discrimination for the human decision-maker was introduced. Then, the participants learned the decision and had to report their satisfaction and their rating of how fair a particular redistribution decision was.

The Findings

Contrary to previous findings, the authors find that the majority of participants ‒ with over 60% ‒ prefer the algorithm as a decision-maker over a human. Yet, this is not driven by concerns over biased decisions of a human. Despite the preference for algorithmic decision-makers, the decisions made by humans are regarded more favorably. Subjective ratings of the decisions are mainly driven by own material interests and fairness ideals. As far as fairness ideals are concerned, the players in the experiment show a remarkable flexibility: they tolerate any explainable deviation between the actual decision and their own ideals. They are satisfied and consider any redistribution decision that follows fairness principles to be fair, even if it does not correspond to their own principles. Yet, they react very strongly and negatively to redistribution decisions that do not fit any fairness ideals.

The Conclusion

The results of the study suggest that even in the realm of moral decisions algorithmic decision-makers might be preferred over human decision-makers, but the actual performance of the algorithm plays an important role in how the decisions are rated. To “live up to the expectations” and increase the acceptance of these AI decisions, the algorithm has to consistently and coherently apply fairness principles.

Directly to the publication of the study:

Marina Chugunova, Wolfgang J. Luhan
Ruled by Robots: Preference for Algorithmic Decision Makers and Perceptions of Their Choices
Max Planck Institute for Innovation & Competition Research Paper No. 22-04

Dr. Heiko Richter, LL.M. (Columbia)
Miscellaneous  |  02/24/2022

Digital Markets Act: New Rules for Tech Giants

The various European Union bodies came to a preliminary agreement on the new Digital Markets Act (DMA) on the 24 March 2022. The EU is planning to limit the market power of tech giants such as Google, Apple, Facebook/Meta, Amazon, and Microsoft in order to safeguard competition in the European market. In the following interview, Heiko Richter, Senior Research Fellow at the Institute, explains the purpose of the new legislation and some of its potential weaknesses.

Dr. Heiko Richter, LL.M. (Columbia)
Heiko Richter, Senior Research Fellow at the Max Planck Institute for Innovation and Competition

The idea of limiting the power of digital giants is not new. Rules punishing abuse of dominant position or unfair business practices already exist. What's about to change?

The Digital Markets Act, or DMA for short, which is currently being negotiated in non-public consultations between the EU Parliament, Council and Commission, aims to provide a uniform EU-wide legal framework for digital markets in order to proactively prevent distortions of competition and stop certain business practices.The aim is also to facilitate the application of the law and speed up the process.

Why are the existing rules insufficient?

So far, especially in antitrust law, we have only ex-post rules: these only take effect after an infringement has occurred or is suspected. As a result, it takes a very long time before the behavior is sanctioned. In some cases, the contested acts took place up to ten years ago and the legal proceedings have still not been concluded. The result is that antitrust law is too slow because it takes action reactively.

What should change?

The basic concept of the DMA is upfront regulation: it will impose a mandatory code of conduct on major online service providers. With this in mind, it contains over a dozen directives and prohibitions, formulated in more or less specific language, with which these service providers are required to comply a priori. Failure to comply could result in severe sanctions. For example, the EU Commission has the power to fine service providers up to 20 per cent of their annual global turnover.

We'll come to the new rules in a moment. But first: Who does the planned regulation actually apply to?

According to the European Council's first press release, a service provider will be considered a "gatekeeper" if the parent company generates an annual turnover in excess of €7.5 billion or has a market value of more than €75 billion in the EU. The service also has to have had over 45 million end users per month and 10,000 commercial users within the EU per year over the past three years.

The respective service provider also has to offer one or more core services, such as social networks, search engines, browsers, messenger services, or virtual assistants, in at least three EU member states. However, networked TVs are not included.

Which obligations will gatekeepers have in the future?

So far, there are 18 obligations, but the list of obligations may be larger after the negotiations. Particularly relevant, for example, are prohibitions on tying registration for one service to registration for another, or prohibiting commercial users from offering their products and services on third-party platforms at different prices and conditions. In addition, operating systems such as Google's Android or Apple's iOS would have to allow app stores other than their own to be installed on smartphones. Self-preferential practices are to be explicitly prohibited, for example by offering consumers preferential treatment for the company's own services, thereby closing the market to smaller or new competitors. In the future, it will also no longer be permitted to combine and use data for certain purposes, as Facebook is accused of doing.


The new interoperability requirement is also of particular relevance to consumers. For example, messaging services that have been classified as gatekeepers will be required to permit their users to exchange messages and make video calls between different platforms (e.g., Whatsapp and Threema).

Sounds like Lex Google, Lex Apple, Lex Facebook ...

Indeed, many of the specific provisions are based on cases in which the EU Commission and the national competition authorities have taken legal action against these companies. Individual laws cannot exist, but it is of course possible to define abstract criteria for market activity in the EU in order to prevent as much problematic behavior as possible.

Certainly, it will hit the U.S. tech giants in particular with their services at the beginning: Apple's and Google's Appstore, Microsoft's Bing in addition to Google's search engine, Facebook and Whatsapp or Amazon Marketplace. The cloud computing segment of Amazon, for example, which is important for B2B and accounts for the largest share of the corporate profit, will also be affected.  

However, the extent to which the regulations will apply to European platform services such as Booking or Zalando remains unclear.

Can the regulation make the digital markets more open and fairer?

The crucial point is how the regulations will be applied and enforced in practice. So whether the agreed procedure will work as intended – including, in particular, the dialogue foreseen between the EU Commission and the “gatekeepers” concerning the regulatory measures – will be clarified in due course. Another open question is whether the envisaged collaboration between the national authorities and the EU Commission will be effective. It also remains to be seen which role the national courts will ultimately play in enforcing the DMA regulations.

The EU Commission is expected to play a significant role. What is it?

Although it has been controversial among the member states, the EU Commission is to be given a very central role. The DMA permits the Commission to order a wide variety of measures against gatekeepers. These can be behavioral measures, i.e. that a company may no longer do something specific or must do something, and structural measures such as the separation of entire business units. At the same time, the Commission is supposed to monitor compliance with the orders. All this requires the EU Commission to create numerous additional positions with specific expertise. Indeed, the EU Commission will be taking on a completely new role as a regulatory authority, and it will be interesting to see if it will ultimately be able to stand up to the big tech companies on an equal footing.

Assuming everything goes according to plan and the European Parliament and Council give their official consent, the new regulation will come into force in 2023. Can all these innovative provisions be implemented immediately?

That remains to be seen. The problem is that many technical issues that are legally relevant are not solved, but only postponed. The fine-tuning is done by means of so-called Delegated Acts, which have yet to be issued by the Commission. In reality, this can take years. One example: Until now, Deutsche Bahn has not been obliged to make real-time information about its trains available to other transport information services such as Google Maps. The relevant EU Directive governing this has been in place since 2010, but the legal details came in 2017 in a Delegated Act from the Commission. The rules were not incorporated into the German Passenger Transportation Act until 2021, and it is still not clear to what extent Deutsche Bahn will have to provide real-time information.

What else is needed?

The effectiveness of enforcement by the public sector, in this case by the EU Commission, always depends on the political impetus. And priorities can change quickly in this regard. The current Commission, with Margrethe Verstager as Digital Commissioner, has the DMA high on its list, so the rules have come surprisingly fast. But it doesn't guarantee that if there is a new Commission with a new agenda, it will continue with the same verve.

The interview was conducted by Michaela Hutterer

Personal website of Heiko Richter