Code≠Law
Digital gatekeepers

How can businesses navigate fragmented regulation?

The DMA imposes a host of compliance obligations on companies designated as “digital gatekeepers.” Though the DMA remains in its infancy, it has nonetheless already inspired other jurisdictions to pass similar ex-ante rules. That said, many jurisdictions have opted against this approach, resulting in an increasingly fragmented competition and consumer protection environment.

This poses difficulties for tech businesses wanting to remain compliant and commercially nimble. Ideally, they would have a clear and consistent regulatory framework that allows them to make business decisions that prioritise commercial imperatives and customer needs while ensuring compliance, rather than decision making being shaped by a committee of antitrust enforcers and complainants. Overlapping regulatory regimes and antitrust concepts can make this challenging, if not impossible. Shooting for DMA-inspired compliance globally could result in commercial consequences, as businesses would be unable to take advantage in jurisdictions with more flexible regimes. 

As Washington DC-based antitrust partner David Pearl warns: "While there may be some intuitive attraction to a uniform compliance programme around the world, that would end up exporting globally the most stringent regulatory requirements from any jurisdiction, potentially chilling innovation and costing money."

How are different regions approaching regulation in the tech sector?

Although variations in market structures and regulations create further difficulties for compliance models, sometimes it pays to have flexibility.

In Asia, the emergence of local powerhouses (including various ‘superapps’ that offer a sprawling range of digital services) means regulators and legislators face different market dynamics, and may have different enforcement priorities, compared to authorities in other regions. Consequently, adopting a ‘one-size-fits-all’ compliance programme could be too restrictive for platforms that want to build their presence across the region.

Some Asian markets have also seen the emergence of novel antitrust concepts according to Howard Chan, a Hong Kong-based of counsel in our competition team. These include the abuse of superior bargaining power infringement that has long been a feature of the regimes in Japan and Korea (and also Germany and France), but has now been introduced in China and is being considered in Indonesia. 

Chan believes this type of infringement – which applies not only to players that are ‘dominant’ under traditional antitrust principles – can create headaches for corporations seeking to monitor compliance in the region. “In principle, a company must assess its position as against each and every contractual counterparty to determine if it has a superior bargaining position,” he notes. This can be particularly challenging in the context of digital platforms.

In Africa, strong local and regional players are prevalent and competition law regimes are at different levels of maturity. Nick Altini, a Johannesburg-based competition partner, sees fragmentation in antitrust and consumer protection regulation. He points to Kenya’s move to amend legislation to specifically address digital markets, including concerns around “killer acquisitions”, and contrasts this with Nigeria’s adaptation of consumer protection rules. 

Creating compliance strategies for these markets is difficult because many regulators have fewer competition concerns around global tech companies. As Altini argues: “You’re in the conundrum of, ‘am I selling my business short if I clip our wings in a jurisdiction where we’re not at that threshold yet?’ That’s the real challenge from an Africa perspective."

Both EU and UK regimes lack clarity and have not yet been fully tested by the courts. The DMA’s black letter set of rules have also not created the certainty many expected. “There have been a number of enforcement decisions against various gatekeepers,” explains Joe Williams, a competition partner in our London office. "These decisions suggest compliance is not as simple as first thought, because the DMA leaves a lot to be decided about what some of these obligations mean and what compliance looks like.”

Although the DMA applies EU-wide, national regulators such as Germany’s Bundeskartellamt still have the power to target issues in parallel that fall outside the scope of the legislation.

As for the UK DMCCA regime, given the pace at which the CMA has adopted codes of conduct so far, much remains to be seen on how flexible the UK regime truly is, and whether there will be convergence with or divergence from the DMA.

Geopolitics is causing further uncertainty, with US officials expressing doubts over Europe’s hardline approach. There are widespread concerns that the US could retaliate in some way against European fines imposed against American companies.

What is the role of private enforcement?

Public enforcement is often perceived as slow, meaning private litigants have launched DMA-based claims in domestic courts, particularly in Germany and France, where claimants are getting restless waiting for the outcome of the European Commission's investigations into possible non-compliance issues. These private enforcements bring more complexity to already very challenging compliance structures.

Unlike the previous follow-on damages actions launched following regulatory enforcement decisions, this new crop of stand-alone cases marks a shift in claimant-driven litigation, not only for damages, but also for litigants seeking injunctive relief without waiting for public enforcement to kick in.

Tech firms must now not only assess regulatory and enforcement agendas, but also the willingness of other businesses to launch private actions.

“The DMA is a European regulation, meaning it's directly applicable in any Member State and can be applied by any court in that State,” notes Laurence Bary, a competition partner in Paris. “We see plaintiffs thinking ‘why wait for the European Commission to conclude its investigation when we have regulation which says clearly what those platforms can and cannot do. Why not just ask a court to decide on that?’”

Where are the hotspots for private enforcement?

Unlike the Antitrust Damages Directive, there is no EU-level harmonisation instrument for DMA private enforcement. However, Germany has drafted the 11th GWB amendment extending the existing traditional private enforcement toolkit, making the jurisdiction attractive for DMA-based claims. In August 2025, the Regional Court of Mainz ordered a designated gatekeeper to cease preferential treatment of its own email service over competing email products as part of the account registration process.

France is another private enforcement hotspot. In October 2025, a travel comparison platform launched an action against a designated gatekeeper, seeking an end to alleged self-preferencing in search results for flight queries and claiming financial compensation.

Although this poses another threat to Big Tech, Bary remarks that businesses can still seek a stay of proceedings in national courts if they can prove a European Commission decision is pending and there’s a risk a national decision could contradict the judgment of EU courts. “The courts would be reluctant to go ahead, even if formal proceedings have not yet been launched before the Commission, if they believe their decision could be later disavowed at the EU level,” she says.

Düsseldorf-based competition and litigation partner Thorsten Matthies agrees, but suggests defendants must nevertheless be prepared to move quickly in defeating preliminary injunctive actions. “It’s a game changer, because you must have everything ready and on hand with a task force in place for these kinds of cases.”

The UK also remains a breeding ground for private enforcement of competition law, with a number of very large claims proceeding against large tech firms, particularly under the UK’s dedicated class actions mechanism for competition claims. The ability to privately enforce DMCCA infringement decisions, codes of conduct and pro-competition interventions will only serve to increase private enforcement in years to come.

How do consumer protection rules interact with the competition landscape?

The EU’s Digital Services Act (DSA) and Artificial Intelligence Act (AI Act), and the UK’s Online Safety Act (OSA) are already three major consumer protection regimes that impose significant additional obligations on tech companies and digital platforms. The EU’s proposed Digital Fairness Act (DFA) and Kids Act will introduce even further changes to the bloc’s consumer protection landscape.

“The DSA, AI Act and OSA, and other related initiatives are concerned with online safety and consumer protection rather than competition,” says Morris Schonberg, a Brussels-based partner in the competition, regulatory and trade group. “There are certain similarities, however, in that some of these frameworks impose more significant obligations on operators that have greater market coverage and therefore greater reach, for instance, the stricter obligations that apply to so-called “Very Large Online Platforms” under the DSA.”

“The position is similar in the UK”, comments James Wood, a public law and regulatory disputes parter based in London. “The UK Online Safety Act is now being implemented at pace by the UK regulator. There are substantial compliance burdens on in-scope services, with the most widely used services being subject to additional duties.”

For tech companies and digital platforms, the combination of new competition and consumer protection standards demands compliance with multiple regulations and effective engagement with a greater number of enforcement authorities.

“There will be different regulators, and different teams within a regulator, responsible for enforcement, which means potential for inconsistency,” adds Schonberg. “But equally, regulators will be aware of the broader landscape and existing measures under other regulatory frameworks. These can be raised in discussions with them to identify what appropriate compliance looks like.” Schonberg believes that this can provide companies with a foundation for an effective compliance strategy: “It’s a case of recognising what you already have in place that may be pertinent and identifying what kind of uplifts can be positioned for broader compliance.”

Wood agrees that these compliance demands are complex, but they are not insurmountable. “There is also the potential for conflict between the approach taken under the different regimes given their varying objectives”, he says. “Early and proactive engagement with regulators is key in drawing attention to and navigating these issues.”

How do US federal and state priorities create multiple risk frontiers?

Though US federal antitrust enforcement under the second Donald Trump Presidency has in many ways shifted from the aggressive approach taken under the Joe Biden administration, one area that has been consistent across the two administrations has been the focus on large tech companies.

That approach has centred on litigation rather than ex ante regulatory schemes, as in Europe. “The same issues are being litigated publicly and privately in the US. But under the current administration, you're not going to see a sector-specific anti-Big Tech regime implemented in the same way as Europe,” explains Joe Williams.

Traditionally, US antitrust enforcement was driven by the DOJ and FTC, but individual states have taken on a bigger role in recent years, as more states enhance their own antitrust laws and state attorneys general have become increasingly willing to deviate from the routes taken by federal enforcers.

In 2025, New York banned AI-driven algorithmic tools that set rents or other terms of residential leases. In California, its AB 325 law (effective January 2026) amends the Cartwright Act to expressly prohibit common pricing algorithms. A more comprehensive update to the Cartwright Act was recently sent to the Governor of California, which could result in types of conduct amounting to monopolisation under California law when they don’t under federal law.

State attorneys general are now aggressively pursuing Sherman Act monopolisation cases and seeking to block high-profile mergers alongside – and in some instances contrary to – federal action. The rise of state attorneys general in the US has added complexity; states have always had the power to independently enforce federal antitrust laws, but their recent propensity to diverge from federal enforcers requires companies to develop more bespoke, state-specific strategies

“Previously, if the DOJ or FTC cleared a transaction or dropped an investigation, usually the states would follow suit,” says David Pearl. “But that’s not the case anymore, and that genie is not going back in the bottle.”

What are the strategic responses to an evolving antitrust environment?

With so many (often unclear) overlapping competition and consumer protection regimes and the rise of private enforcement actions, global compliance is not straightforward.

Dr Marcel Nuys, head of our German competition practice, urges new rules be central to international commercial strategies. “Compliance with this new regulatory landscape should be higher up the board agenda. These new rules are now an integral part of your business, and need to be factored into how your company operates.” That applies not only to designing compliance strategies but also to defending investigations and litigation. A robust defence doesn’t just need a strong legal and economic case, it requires a deep understanding of the products and technologies at issue where the business will play a vital role.

"Flexibility is needed to account for global disparities," suggests Williams.

“Most of these regimes have some form of common policy backbone allowing you to build something that is 75% good enough. Being able to identify that additional 25% and how to adjust your compliance strategy will be key, but that’s easier said than done in this complex and fast-moving space.”

Big Tech must also consider the AI products entering the economy. “AI is disrupting every industry, and digital markets are not immune. Indeed, new entry from AI-enabled players could rapidly alter the competitive landscape, even in spaces currently viewed by some as having a dominant player,” concludes Pearl. “Going forward, it will be important for tech companies defending against monopolisation or abuse of dominance claims to develop evidence concerning AI entry.”