▪ EU institutions are finalizing the adoption of the Digital Markets Act (DMA), but its impending passage and enforcement raise serious concerns.

▪ The initial objective behind the DMA was to avoid regulatory fragmentation in the EU’s Digital Single Market (DSM). But it fails to achieve this laudable goal because it encourages member states to increase regulatory fragmentation.

▪ The DMA’s shift from ex post to ex ante rules of per se antitrust prohibitions disregards the need to treat conduct that promotes competition differently than conduct that suppresses it.

▪ In so doing, the DMA fails to consider the benefits of economic efficiency and violates the EU’s principle of proportionality.

▪ Implementing the DMA will be problematic, since the few companies that are designated as Internet gatekeepers will have to comply with rules that contradict other EU regulations.

▪ EU judges will need to address the DMA’s pitfalls when adjudicating cases. Judicial review could minimize the regulation’s unintended consequences.