유럽 디지털시장법(Digital Markets Act): 목적, 기본원리와 접근방법을 중심으로

The debate over how online platforms should be regulated stems from a difference in perceptions of how new the power of big tech is, and how new the mechanisms to regulate it should be, even if it is a new power that is completely different from the past. In this context, the DMA is based on the recognition that the new power of big tech requires a new regulatory system that is different from the past. The DMA would, by its very nature, be somewhere between general competition law and special industry regulation. This is echoed by Margrethe Vestager, the European Commissioner for Competition, who said ʻʻWe also want to build better digital markets and the Digital Markets Act is a good example of the way in which competition law and regulation can complement each other to keep markets open.ʼʼ The DMA is based on the belief that European competition law is inadequate to address the problem of ʻʻconcentrationʼʼ of giant platforms. The nature of the DMA is broadly understood as a supplement to competition law. While the DMA has a regulatory system that is tailored to the unique characteristics and anti-competitive behavior of big tech in a way that is inspired by the competition law, it departs from the case-by-case approach of determining the anti-competitive nature of each individual case. In this regard, the DMA adopts a rather rigid standard that is primarily concerned with ease of law enforcement rather than a flexible standard that seeks specific justification for each individual case. This is where competition law differs from other areas of law in that it is inherently flexible and based on ex post regulation. Underlying the DMA is the recognition that markets with gatekeepers can quickly create competition in an artificial and more radical way. However, it is questionable whether platform markets are so manageable, and it should not be overlooked that competition law has a long history of adapting and improving to market changes. A more fundamental change should start with a shift in the methodology of competition law and policy in the digital economy to emphasize innovation, dynamic competition, and the innovative potential of platforms. The fact that the DMA is looking for a solution that is not in this direction suggests a precarious future for Europe. In order to find the right solution, the right diagnosis of the problem must be made. In the case of online platforms, the starting point is a careful assessment of whether there is an inevitable trend towards monopolization of core platform services, and whether the monopolization cannot be eliminated by other means to the extent that pre-designation and de jure regulation is necessary to promote innovation and competition in the platform market. Above all, it should be a regulatory law that can have a positive effect on free and fair competition without hindering the development and innovation of the digital economy. It is impossible to achieve the original purpose of a special law that has been hastily enacted without sufficient consideration, and furthermore, regulations that are not adapted to the competitive situation will cause adverse effects on the development of the platform industry, let alone effective competition. Given the rapidly changing and evolving nature of the digital marketplace, antitrust laws are highly resilient and flexible enough to respond. Given that the DMA itself is a European approach with no precedent, and that it regulates only a few big tech companies that provide core platform services and gatekeepers, rushing to enact a special law without a competition analysis of domestic platform services is highly experimental in the sense that no one knows the impact it will have in the future.