Navigating DMA claims in the EU’s national courts (part 2): experts, damages and injunctions

Private claims under the EU’s Digital Markets Act (DMA) are beginning to reshape the European digital regulation landscape. In a previous post we looked at jurisdiction (‘where’), standing of consumer associations (‘who’) and third-party funding (‘with which funds’). In this post we discuss some key considerations regarding ‘how’ infringements of the DMA can be compensated and/or remedied: the role of expert evidence, the difficulties with establishing counterfactuals to calculate damages and powers to adopt injunctions.

Expert evidence in private DMA claims

The DMA has been framed as a ‘self‑executing’ regulation, intended to avoid lengthy debates between the European Commission, gatekeepers and their expert advisers. However, digital markets are technically complex, data‑intensive and fast‑moving. Most courts will not have the expertise and experience to assess the merits of private DMA claims unaided, particularly when these involve questions about platform design, algorithms and data use. As such, there is significant scope in private actions for technical and economic experts to explain how gatekeeper services operate, whether particular conduct breaches a DMA obligation and how to establish and quantify any resulting harm. 

Approaches to expert evidence differ significantly across jurisdictions. Some courts tend to adopt a more pragmatic approach and tend to rely on estimations, benchmarks and proxy measures where precise quantification is difficult. Others tend to engage rigorously with expert testimony and subject methodologies, datasets and assumptions to close scrutiny. 

For example, in a recent judgment, the Amsterdam District Court endorsed one of two alternative methodologies for calculating the overcharge in a cartel damages claim by relying on an ‘agree-disagree’ joint expert statement. Courts in the United Kingdom have developed detailed procedures for managing expert evidence, including concurrent expert evidence (‘hot-tubbing’) and active case management of expert reports. In Le Patourel v BT Group, for instance, the UK’s Competition Appeal Tribunal (CAT) conducted various hot tub discussions with the parties’ economic experts during which the Tribunal took an active role in questioning assumptions and testing the competing methodologies. In response to this case as well as several others involving lengthy and highly technical economic evidence, the CAT announced in a recent practice direction that it is likely to impose page limits on economic expert reports, will require the main submissions to be in plain English and will favour fact-based economic analysis using well-established techniques. 

Against this background, early engagement with technical and economic experts will be essential for both sides to shape pleadings, inform disclosure strategy and develop credible positions on liability and quantum. The diverging approaches to expert evidence across jurisdictions may also influence parties’ forum choices and broader jurisdictional strategies (on jurisdiction, see our previous post). 

Quantifying damages and the difficulties with establishing an appropriate counterfactual in fast-moving data-driven markets

Quantifying damages typically requires the national court to establish an appropriate counterfactual, ie the position the harmed party would have been in had the infringement not occurred. Establishing the relevant counterfactual is already a complex exercise in the offline world. Digital markets add the difficulty that the markets on which the alleged harm occurs shift rapidly and the volume of data to analyse is immense. Claimants will have to demonstrate how performance, pricing or innovation may have differed absent the alleged infringement. For defendants, there is ample scope to challenge the plausibility and precision of any counterfactual scenario. 

Consider Article 6(10) DMA as an example. This provision requires gatekeepers to provide business users, free of charge, with ‘effective, high‑quality, continuous and real‑time’ access to data, including personal data, that is provided for or generated through the use of the gatekeeper’s core platform service by those business users and by end users engaging with the latter’s products or services. Let’s assume that, following a (hypothetical) Commission non-compliance decision, a group of SMEs bring a follow‑on damages action. The decision finds that, for three years, the gatekeeper supplied only highly aggregated, delayed and incomplete dashboards and withheld raw or near real‑time product‑ and customer‑level data, despite it being technically feasible to do so. The sellers claim that, but for this breach of the DMA, they would have used Article 6(10)‑compliant data to optimise prices, promotions and product range on the marketplace, and to build a direct‑to‑consumer channel by better identifying and targeting high‑value marketplace customers.

The core counterfactual question is: what would the sellers’ profits have been had Article 6(10) been complied with from the outset? Their experts construct a ‘DMA‑compliant’ counterfactual in which the sellers have full, real‑time visibility of product‑ and customer‑level data. The gatekeeper contests this counterfactual, arguing that the sellers lacked the capability to exploit the data, that customers would have remained loyal to the marketplace regardless, and that market trends, rather than data access, explain the sellers’ performance.

The court’s challenge is to assess which scenario more accurately reflects the likely outcome and to determine the extent of any corresponding damages caused by the alleged practice. This challenge will be even greater if the Commission mirrors its approach in digital abuse of dominance cases, confining itself to establishing an infringement while remaining vague on what compliance entails (eg Google Shopping). 

Injunctions and the risk of regulatory fragmentation

Apart from imposing damages, national courts can also hear applications for injunctions to enforce the DMA’s obligations set out in Articles 5, 6 and 7 DMA. 

Through a negative injunction, a court prohibits certain conduct — for instance, ordering a gatekeeper to stop self-preferencing its own services and products vis-à-vis those of a third party under Article 6(5) DMA. Through a mandatory injunction, a national court orders a company to take a specific action. Looking at traditional competition law rules, a court could, for instance, order a dominant company to reinstate a piece of infrastructure that it removed to the detriment of its downstream competitor. 

While a national court may order a gatekeeper to comply with a given obligation in Articles 5, 6 or 7 DMA, it is not clear from the DMA whether it could specify which actions a gatekeeper must take to do so.

Article 8(2) DMA establishes a specific enforcement mechanism for these obligations. The Commission is empowered to adopt ‘specification measures’ through implementing acts, detailing the actions a gatekeeper must take to comply with Articles 6 and 7 DMA, and in exceptional cases, Article 5 DMA. These specification measures resemble mandatory injunctions, but Article 8(2) of the DMA reserves the power to adopt them exclusively to the Commission, without granting equivalent powers to national courts. 

The Commission’s powers should also be read in light of the DMA’s harmonisation objectives. A central rationale for the DMA was to prevent gatekeepers from facing a patchwork of diverging national legislation in the absence of harmonised EU-rules. This objective is articulated in Article 1(1) DMA and is also echoed in several of its recitals. Permitting national courts to impose mandatory injunctions to specify what measures gatekeepers must take to comply with the DMA’s substantive obligations would risk re-creating the regulatory fragmentation that the DMA is seeking to address. 

Accordingly, there is a compelling argument that national courts are precluded from imposing mandatory injunctions that specify how a gatekeeper must comply with the DMA’s substantive obligations. That being said, under the EU Representative Actions Directive (RAD), which applies to infringements of the DMA, qualified representatives acting on behalf of consumers may seek injunctive measures. Recital 33 RAD expressly acknowledges that such injunctive measures may require traders to take specific actions (eg provide information previously omitted).

The Court of Justice of the EU will ultimately need to clarify the scope of national courts’ powers in this respect. In the meantime, national courts would be well-advised to proceed with considerable caution when hearing applications for mandatory injunctions against gatekeepers under the DMA. 

Concluding thoughts

Private claims will significantly influence how the DMA’s obligations are interpreted and enforced. Much will depend on how courts handle expert evidence, quantify harm in fast‑moving, data‑driven markets and exercise their remedial powers. Early cases will start to reveal the main areas of tension in applying the DMA and the degree of divergence that may emerge between different national approaches. The Court of Justice of the EU has its work cut out to ensure the uniform interpretation of the DMA across the Union. 

Florence Danis is a Partner, Linklaters LLP. 

Harry Slachmuylders is an Associate, Linklaters LLP.

Thomas Reyntjens is a Managing Associate, Linklaters LLP.

Will Leslie is a Partner, Linklaters LLP.