Online choice architecture and compliance with the DMA: insights from behavioural economics

Europe’s Digital Markets Act (DMA) regulates online platforms with the primary aim of making markets in the digital sector “fairer and more contestable”.[1]

In this article, Zita Vasas and Abul Fazal [2] focus on how the enforcement and compliance process has worked so far, specifically with respect to the Commission’s concerns about digital services’ choice architecture.

The views expressed in this article are the views of the authors only and do not necessarily represent the views of Compass Lexecon, its management, its subsidiaries, its affiliates, its employees or its clients.

Since March 2024, large platforms the European Commission (the Commission) designated as gatekeepers have been bound by the DMA’s specific obligations and prohibitions. The DMA’s scope is broad, and the Commission is currently reviewing its rules.[3] A comprehensive assessment of the DMA would consider the impact of its specific provisions, as well as its wider effects on markets and consumers.[4]

The objective of this article is narrower. First, we outline the relevance of behavioural economics to competition policy – to explain both: (a) competition authorities’ concerns about the negative impact digital choice architecture may have on users; and also (b) the benefits it can provide. Then, we summarise the emergence of ex ante regulation as the Commission’s preferred tool to address these issues.

We then review the compliance process so far, making three observations. In this initial phase:

• It has largely removed or deterred conduct that the Commission focussed on in its ex post investigations;
• It has been, for a regulatory process, relatively swift in identifying and investigating compliance concerns; but
• Compliance with the DMA’s obligations does not appear to be complete yet.

We conclude with three challenges that the Commission and gatekeepers will have to navigate going forward.

• The provisions aimed at improving choice architecture may not materially change outcomes in many services.
• The Commission and gatekeepers should use empirical testing to identify where changes to the choice architecture enhance the DMA’s objectives (while not imposing disproportionate costs on gatekeepers and business and end users).
• A major test for the compliance process will be whether it can adapt its assessments to new AI-enabled services, not just familiar ones – here too, effective testing will better guide the Commission’s priorities and understanding.

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