The European Union’s Digital Markets Act (DMA) depends on two terms that lawmakers never defined. “Fairness” and “contestability” determine how the European Commission measures gatekeeper compliance, imposes new obligations, and grades its own performance every three years. The law uses both terms liberally but explains neither.
Recital 79 even promises that the Commission will apply a “predefined standard” to identify unfair practices and practices that limit contestability. Anyone searching the DMA for that standard will come away empty-handed.
In a new white paper, I reconstruct what I argue is nonetheless a fully coherent framework implicit in the enacted text. The DMA’s provisions and its subsequent enforcement record, along with various guidance documents issued along the way, do reveal specific conceptions of fairness and contestability, even if lawmakers declined to state them openly. Put simply: “fairness” refers to a presumed structural imbalance in digital markets, and “contestability” is the redistribution program enacted to correct it
That reconstruction has practical consequences. It explains how the Commission is likely to assess the DMA’s success—and its own performance. It also identifies the policy choices that countries outside the European Union may adopt, often without expressly debating them, when they enact similar laws.
When Entry Proves Entrenchment
Start with what the text actually says. The DMA defines both concepts only by negation. Unfairness “should relate to an imbalance between the rights and obligations of business users where the gatekeeper obtains a disproportionate advantage” (Recital 33). Contestability is lacking when a gatekeeper’s position is difficult to challenge “even by more innovative or efficient market operators” (Recital 3). Scholars have criticized the resulting vagueness ever since the DMA’s enactment.
Now read between the lines. The DMA assumes that core platform markets are unfair by constitution, before any firm’s conduct enters the picture. It treats three market features as inherently suspect: network effects that make a service more valuable as more people use it, cost advantages derived from large datasets, and winner-take-most “tipping” dynamics. These features supposedly create imbalances that competition cannot correct.
That premise explains why designation depends on size alone, measured by market capitalization, turnover, and user numbers. It also explains why Recital 23 says efficiencies and market definition “should be discarded” during designation, and why conduct permitted for every other firm becomes unlawful once a company crosses the DMA’s gatekeeper thresholds.
Two years of enforcement have confirmed this reading. Consider TikTok, the only successful large-scale entrant into a core platform market in the past decade. Entry and rapid growth ordinarily provide strong evidence that a market is contestable. Yet the Commission treated both as evidence against contestability. Its designation decision concluded that TikTok’s “significant scale and growth … with an upward trajectory” supported a finding of entrenchment. The General Court approved that reasoning in July 2024.
The result initially seems puzzling. How can a new entrant already be entrenched? But under the DMA, contestability functions as a legal status attached to firms and inferred from their size and longevity. Economic theory, by contrast, treats contestability as a feature of markets.
William Baumol, who gave contestability its economic meaning, described markets in which incumbency offers no protection against entry. The DMA inverts his account. A successful entrant becomes an incumbent once it grows large enough, and the DMA treats incumbency itself as the problem.
Fairness, Billed to the Gatekeeper
The DMA’s second implicit principle concerns what fairness requires. If the existing distribution of rights and obligations is unfair to business users, fairness requires redistribution. The DMA’s conception is dialectical in a specific sense. It levels up business users and rivals while leveling down gatekeepers until the gap narrows.
That may sound abstract, but the DMA’s data provisions show how it works. Some provisions restrict how gatekeepers collect and combine data, while others require them to give data to rivals and business users. The same input becomes a barrier to entry in a gatekeeper’s hands and a resource for innovation in a rival’s. The DMA also favors innovation by rivals over innovation by incumbents. That preference reflects a political judgment that economic analysis alone cannot establish.
The Commission’s preliminary findings on Google’s search-data obligations formalize this logic through a newly minted “principle of parity.” Under that principle, Google parent Alphabet may retain no advantage from search data unless rivals receive equal access to it. The Commission now reads that group of rivals to include AI chatbots.
In other words, Google must provide the query, click, view, and ranking data it uses to improve its own service. Rivals must receive that data at the same frequency, any fees must exclude collection costs, and smaller companies must receive access below cost. Yet nothing in Article 6(11), which requires access on “fair, reasonable and non-discriminatory terms,” requires parity. The parity principle follows instead from the DMA’s implicit conception of fairness. If possessing an advantage is itself unfair, fairness requires nullifying it.
The DMA also makes gatekeepers the custodians and financiers of their competitors. Under the Apple interoperability decision, Apple must design access for rivals into new features from inception, provide “adequate and timely assistance,” and bear the costs. The Commission says it need not show that these duties help rivals offer competitive products. Requiring such proof, the Commission argues, “would re-import the effects analysis, which the legislator explicitly rejected.”
The joint guidelines issued by the Commission and the European Data Protection Board (EDPB) under the DMA and General Data Protection Regulation (GDPR) praise data portability for turning gatekeepers into “a stable source of data” for new services. The DMA thus requires gatekeepers to continue subsidizing their rivals.
A Standard No Gatekeeper Can Satisfy
The reconstruction has practical consequences. Because the DMA presumes that these markets were never fair, there is no earlier competitive balance to restore and no baseline for measuring progress. The first infringement decisions define fairness and contestability negatively, through the elimination of listed practices. They offer nothing more.
Consider the Apple anti-steering decision, which concerns restrictions on developers directing users to other purchasing options. The decision prohibits Apple from charging for “gatekeeper value,” meaning value derived from the platform’s position as an important gateway. Yet it never explains when a fee ceases to compensate Apple for its services and becomes a charge for gatekeeper value.
The Google decisions from July 2026, imposing €890 million in fines across two infringements, use the same approach. The Apple interoperability decision goes even further, conceding that even full compliance would leave Apple with an “intrinsic advantage” because Apple alone decides which iOS features to build.
Fairness, then, can never be achieved. An unattainable goal can justify intervention indefinitely. Gatekeepers know which practices the DMA prohibits. They cannot know when they have become fair enough.
The Only Good Gatekeeper Is a Smaller One
This brings us to the payoff. The DMA’s implicit principles determine how the Commission measures success. If fairness is a presumed structural imbalance and contestability is the program that corrects it, then the metric of success is not consumer prices, quality, or innovation. It is redistribution, as measured by inputs.
The Commission’s own impact assessment established this approach during the DMA’s design. It projected benefits through a decline in the Herfindahl-Hirschman Index (HHI), a common measure of market concentration, and quantified those benefits only once, before implementation. The Commission proceeded despite its Regulatory Scrutiny Board’s objection that the impact assessment assumed the alleged harms without demonstrating them.
The Commission’s first DMA review used the same criteria. It measures success by the uptake of nongatekeeper services, third-party access, and reduced “dependency” on gatekeepers. The review even counts users’ newfound ability to create Google accounts without Gmail addresses as progress, despite the fact that that option creates no new competition and offers no apparent consumer benefit. It merely reduces Gmail use, which is precisely the aim.
The DMA’s implicit principles explain that choice. As the impact assessment describes it, unfairness stems from the size of covered companies, measured by user numbers, turnover, and market capitalization. Anything that reduces their size can therefore count as progress.
Future scorecards and Article 18 market investigations into systematic noncompliance will likely use the same criteria. If gatekeepers’ market share goes down and rivals’ uptake goes up, then consumer benefits are assumed. The DMA’s recitals and accompanying documents acknowledge no tradeoffs in this outcome beyond costs to gatekeepers and possible short-term costs to consumers.
The Commission can always attribute disappointing results to lingering structural defects, so even full compliance may trigger yet another intervention. As I have argued before, when consumers decline to switch, regulators invariably conclude that the remedies were too weak.
Reaching this conclusion required neither leaked documents nor clairvoyance. It simply required reading the DMA and roughly 500 pages of accompanying documents and enforcement decisions. The law states its goals discreetly, as statutes often do when lawmakers anticipate resistance to a redistributive agenda. The DMA tells gatekeepers what to change. It never tells them when they have changed enough.
