Lukas Kestler

Contributions to Collected Editions, Commentaries, Handbooks and Encyclopaedias

Wettbewerbsrechtliche Herausforderungen durch international heterogene Gatekeeper-Regulierung – Plädoyer für ein strategisches Umdenken, in: Johannes Buchheim et al. (ed.), Plattformen - Grundlagen und Neuordnung des Rechts digitaler Plattformen (Assistententagung Grüner Bereich, 7), Nomos, Baden-Baden 2024, 143 - 162 (together with Liza Herrmann).

• Event: 8. Tagung GRUR Junge Wissenschaft - Kolloquium zum Gewerblichen Rechtsschutz, Urheber- und Medienrecht, Universität Potsdam, 2023-06-23

Journal Articles

Gatekeeper's Potential Privilege – the Need to Limit DMA Centralisation, Journal of Antitrust Enforcement 12, 1 (2024), 126 - 147 (together with Jörg Hoffmann, Liza Herrmann).

• The Digital Markets Act (DMA) aims at promoting contestable and fair markets for core platform services by setting out obligations for designated gatekeepers. As the DMA does not clearly define these two objectives, it comes into conflict with national legislation with overlapping objectives. This may include unfair competition laws and sector-specific regulation. Art. 1(5) DMA addresses this conflict by stipulating that Member States may not impose further obligations on gatekeepers for the purpose of ensuring contestable and fair markets. The effect this has is that national provisions vis-à-vis gatekeepers may not be applicable anymore and competences are centralised on the European level more broadly than potentially envisaged by the European legislature. This centralisation of competences runs the risk of inadvertently privileging gatekeepers by blocking national laws that are, however, still applicable to SMEs and other firms competing with gatekeepers. This paper suggests solutions to mitigate such risk.
• https://doi.org/10.1093/jaenfo/jnad040
• Also published as: Max Planck Institute for Innovation & Competition Research Paper No. 23-01

Position Statement of the Max Planck Institute for Innovation and Competition of 2 May 2023 on the Implementation of the Digital Markets Act (DMA), GRUR Int 72, 9 (2023), 864 - 875 (together with Josef Drexl et al.). DOI

• Also published as: Max Planck Institute for Innovation & Competition Research Paper No. 23-11

Strukturelle Abhilfemaßnahmen – erste (An-)Zeichen einer neuen Zeit?, NZKart - Neue Zeitschrift für Kartellrecht 11, 9 (2023), 463 - 467.

• https://beck-online.beck.de/Dokument?vpath=bibdata%2Fzeits%2Fnzkart%2F2023%2Fcont%2Fnzkart.2023.463.1.htm&anchor=Y-300-Z-NZKART-B-2023-S-463-N-1

Opinions

Position Statement of the Max Planck Institute for Innovation and Competition of 2 May 2023 on the Implementation of the Digital Markets Act (DMA), 2023, 33 pp. (together with Josef Drexl et al.).

• Regulation (EU) 2022/1925 of the European Parliament and of the Council of 14 September 2022 on contestable and fair markets in the digital sector (Digital Markets Act; DMA) entered into force on 1 November 2022 and applies from 2 May 2023. The DMA is a novel type of regulation laying down harmonised rules for core platform services provided or offered by gatekeepers to business users and end users established or located in the Union. It pursues the objective of achieving fairness and contestability in the digital sector across the Union where gatekeepers are present.
  In its position statement of 2 May 2023, the Institute acknowledges that uniform rules throughout the European Union and centralised enforcement are necessary to prevent internal market fragmentation and welcomes the first Commission Implementing Regulation for the DMA of 14 April 2023. However, it remains concerned by the DMA’s unique institutional design and its interaction with other laws as outlined under Articles 1(5), 1(6) and 1(7).
  In particular, the Institute raises awareness about the possible overly broad blocking effects of the DMA on national rules, which may have the unintended consequences of privileging gatekeepers by jeopardizing future national legislative initiatives. This ultimately obstructs the achievement of contestability and fairness in digital markets. A complementary application of the competition rules and effective enforcement of the DMA is, against this backdrop, crucial. Yet there is uncertainty over administrative enforcement mechanisms, and it is unclear what role private enforcement plays in the current legal design of the DMA. The position statement identifies and examines challenges in the implementation of the DMA, along with recommendations for overcoming them.
• Position_Statement_MPI_DMA.pdf
• Also published as: Max Planck Institute for Innovation & Competition Research Paper No. 23-11
• Also published in: GRUR International, Volume 72, Issue 9, September 2023, Pages 864–875