Harmonised in Theory, Fragmented in Practice? The DMA Meets National Enforcement

The DMA promised a single approach to digital markets throughout the EU, to enhance effectiveness and reduce regulatory burden. Three years after its entry into force, these objectives are under pressure. National authorities are experimenting with their own laws to police gatekeepers’ conduct, as a recent case by the Italian Competition Authority – the Autorita’ Garante della Concorrenza (“AGCM”) – against Google demonstrates.

We look at what the digital industry and the Commission can do to reduce regulatory fragmentation.

Italy’s Google case: DMA via consumer law

Last month, the AGCM faulted Google for combining and cross-using personal data without valid user consent. This conduct squarely falls under Article 5(2) DMA and should be for the Commission to enforce against. But the AGCM applied Article 5(2) DMA through the backdoor, via an application of its consumer protection legislation.

It found Google’s consent requests misleading and aggressive, alleging that Google did not adequately inform users. It also criticised Google for temporarily blocking access to its services until a choice was made and for overemphasising a degraded user experience absent consent. Google accepted to modify its consent requests, to add an explicit reference and hyperlink to Article 5(2) DMA, to allow easier customisation and to amend the information on the consequences of refusing consent. These commitments seem to go beyond what Article 5(2) DMA would require.

The DMA’s harmonisation objectives under pressure

The DMA’s purpose is “to contribute to the proper functioning of the internal market by laying down harmonised rules” and thereby avoid a regulatory patchwork across the Member States (Article 1(1) DMA; see also Recital 8). To this end, the DMA prohibits imposing additional national law obligations on gatekeepers to ensure contestable and fair markets in the digital sector (Article 1(5) DMA) and designates the Commission as its sole enforcer (Article 37(7) DMA; see also Recital 91).

The AGCM’s action against Google appears at odds with these principles and objectives. It seems to create precisely the regulatory fragmentation and parallel enforcement that the DMA aims to avoid.

Challenging national enforcement of the DMA

The Commission and private parties can use various tools to avoid such fragmentation.

National courts as ‘gatekeepers’ of the DMA’s harmonisation objective

At the most adversarial end of the spectrum, companies that face quasi‑DMA enforcement by a national regulator can bring actions before national courts to challenge this enforcement and request interim relief. They can argue that the national authority is enforcing the DMA without competence, contrary to Articles 1(5) and 37(8) DMA, and ask the court to suspend the proceedings.

In this context, national courts can (or must) ask the Court of Justice for an interpretation of the relevant DMA provisions and the limits they impose on national legislation and enforcement. The Commission can intervene as an amicus curia in these proceedings to defend the DMA’s harmonisation objectives (Article 39(3) DMA).

Institutional coordination

At the less confrontational end of the spectrum is coordination between the Commission and national authorities, as provided for in Articles 37 and 38 of the DMA. The European Competition Network and more informal cooperation can often achieve an aligned approach and avoid duplication. At a more strategic level, the authorities can also align on the general interaction between the DMA and national laws.

A further forum to align policy and enforcement is the high‑level expert group for the DMA (Article 40 DMA). It brings together the Commission and representatives of networks such as the European Competition Network, the European Data Protection Board and the Consumer Protection Cooperation Network. The national authorities represented there are precisely those whose mandates are most likely to collide with the DMA. Even though the expert group’s main role is to provide advice and expertise to the Commission, it ought also to serve as a forum to identify problematic enforcement trends early and to clarify the proper delineation of competences between the Commission and national authorities.

Formal enforcement by the Commission

If informal coordination and policy engagement do not resolve the problem, the Commission should be prepared to use its enforcement powers under Article 258 of the Treaty on the Functioning of the European Union. In essence, this provision allows the Commission to pursue a Member State that fails to comply with its obligations under EU law. The Commission can first set out its concerns and invite observations, and, if the Member State does not change course, refer the matter to the Court of Justice, which can impose financial penalties. In the DMA context, this tool could be used where a Member State permits a national authority to enforce DMA‑type obligations via domestic law in a way that undermines the DMA’s harmonisation objective and the Commission’s exclusive enforcement role.

Regulatory fragmentation and the internal market

National DMA-like enforcement is costly and fragments the internal market for digital services. A “the more the better” approach would come at a high price for competitiveness. So far, national courts have been reluctant to draw red lines. The German Supreme Court did not involve the Court of Justice when ruling on Amazon’s and Apple’s “designation decisions” under Article 19a of the German Act against Restraints of Competition (Amazon judgment, paras 208 and following; Apple judgment, paras 188 and following). And authorities in the Member States will be keen to show that they have a role to play. If the Commission wants to double down on the internal market, digital services are a good place to start.

Looking ahead

The key question is not whether national authorities will test the limits of the DMA, but how quickly clear guardrails will be set around the use of adjacent national regimes to enforce the DMA through the backdoor. Early reactions by the Commission and national courts will determine whether such experiments remain isolated or harden into a pattern of patchwork enforcement.

For the time being, national enforcement is a reality that digital companies need to consider and complainants can exploit.

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References

AGCM Case PS12714 (Google), decision of 4 November 2025. The AGCM considered that Google’s conduct potentially violated Articles 20, 21, 22, 24 and 25 of the Italian Consumer Code. Available here.

German Federal Court of Justice (2025) Case KVB 61/23 (Apple), judgment of 18 March 2025. Available here.

German Federal Court of Justice (2024) Case KVB 56/22 (Amazon), judgment of 23 April 2024. Available here.