On 23 April 2025, the European Commission (“Commission”) imposed the first fines on gatekeepers for non-compliance with the Digital Markets Regulation, or ‘Digital Markets Act’ (“DMA”). Apple and Meta were fined €500 million and €200 million respectively. Apple violated the “anti-steering” obligation under the DMA; Meta violated its obligation to grant consumers the choice of a service that uses less of their personal data.

Although the obligations for so-called “gatekeepers” under the DMA have been in force since 7 March 2024, so far the focus has been on public enforcement of the DMA. With the Commission’s first non-compliance decisions, the important question arises what options are available for private enforcement of the DMA by victims. This blog provides an overview of the different remedies under (Dutch) civil law.

Overview

• Relevant preliminary questions: direct effect and application of competition law concepts
• Jurisdiction of the Dutch courts
• Follow-on or stand-alone
• Various options for private enforcement
• Conclusion

Relevant preliminary questions: direct effect and application of competition law concepts

An important preliminary question in the private enforcement of the DMA is whether private parties, such as natural persons (i.e., consumers) or legal persons (customers, competitors, etc.), can invoke the rights and obligations of the DMA against gatekeepers. This is only possible if there is horizontal direct effect.

This requires that the provisions of the DMA are sufficiently precise and unconditional to confer rights on individuals. This appears to be the case. The obligations under the DMA – as set out in particular in Articles 5, 6 and 7 of the DMA – do not require further detailed or implementing measures from the EU Member States. The fact that the obligations under the DMA have horizontal direct effect also appears to have been expressly intended by the EU legislator, given the explicit possibilities in the DMA for cooperation between the Commission and national courts in national proceedings (Article 39 DMA) and the inclusion of collective redress mechanisms (Article 42 DMA).

Another preliminary question concerns the relevance of competition law concepts in the application of the DMA. Although the DMA does not form part of generic competition law, it nonetheless shares several areas of overlap with (ex post) competition law enforcement. For example, a number of provisions in the DMA are substantively inspired by recent competition cases. Take for instance the prohibition of self-preferencing stipulated in Article 6(2) of the DMA and the recent competition law case concerning Amazon, or the prohibition of self-preferencing in the context of rankings as laid down in Article 6(5) of the DMA and the Google Shopping case.

Furthermore, the EU legislator seems to have deliberately aligned the definitions in the DMA with competition law. One of these is the concept of an undertaking. An undertaking within the meaning of the DMA is an entity engaged in an economic activity, regardless of its legal form and the way in which it is financed, including all affiliated undertakings or undertakings that form a group through the direct or indirect control of an undertaking by another. This concept is also used in competition law, in contrast to corporate law where terms such as “legal person” are used. The term “connected undertakings” used in the DMA is also consistent with its definition in other areas of law related to competition law, such as (European) State aid law.

It therefore appears that the DMA is in line with the competition law concept of an undertaking. This is important because this concept defines the group of entities that can be held (jointly and severally) liable. A relevant question is how this relates to the broad designation decisions, in which the Commission designates both the (ultimate) parent company, together with all its subsidiaries, as gatekeepers that must comply with the obligations of the DMA. For example, the designation decisions in respect of Alphabet stipulate that “Alphabet Inc., together with all legal entities directly or indirectly controlled by Alphabet Inc.” as such has been designated as gatekeeper. It can therefore be argued that all these entities are subject to the obligations under the DMA since they are included in the designation decisions. This could mean that each of the entities belonging to, in this case, Alphabet Inc. could be held directly and separately liable for (damages resulting from) non-compliance with the DMA.

However, whether this is the case remains unclear at this stage and is expected to be the subject of discussion before the national and European courts. Lastly, general principles of EU law relevant to the private enforcement of competition law, such as the principle of effectiveness, remain (also) fully applicable to the private enforcement of the DMA.

Jurisdiction of Dutch courts

The jurisdiction of (Dutch) courts is also a pivotal aspect of private enforcement. The international jurisdiction of the Dutch courts is determined pursuant to Brussels I bis (for defendants within the EU) or the section on private international law laid down in Articles 1-14 of the Rv (for defendants outside the EU and within the Netherlands). In both cases, the main rule is that the court of the defendant’s place of residence has jurisdiction.

In this respect, it is again relevant which entity or entities are designated as gatekeepers. As discussed above, these are the ultimate parent companies together with all their (direct and indirect) subsidiaries. This would mean that the Dutch court has jurisdiction to rule on claims brought under the DMA against a Dutch entity that is part of the designated gatekeeper under the main rule in Article 2 Rv. After all, that Dutch entity is being sued on the basis of its own “gatekeeper status”. An alternative would be to sue the (ultimate) parent company for its violations of the DMA and to base the jurisdiction of the Dutch court on special grounds of jurisdiction, such as the “anchor defendant rule” in Article 8 of Brussels I bis (cf. Article 7 of the Dutch Civil Procedure Act) or the “Erfolgsort/Handlungsort” in Article 7 of Brussels I bis (cf. Article 6(e) of the Code of Civil Procedure).

The anchor defendant rule entails that, in the event of multiple defendants, these defendants may be summoned to appear before the court of the seat of one of them (the anchor defendant). The idea is that the parent company (as gatekeeper) is sued in the Dutch courts together with its subsidiary established in the Netherlands (as anchor defendant). This requires that the anchor defendant be in the same position, in fact and in law, as the other defendant(s). In preliminary ruling proceedings, the CJEU emphasised that a parent entity can act as an anchor defendant if it controls virtually all the capital of the infringing subsidiary. Advocate General Kokott recently concluded more generally that the same factual and legal position exists when the anchor defendant belongs to the same undertaking as one of the other (infringing) defendants. The concept of an undertaking is explained in the Sumal judgment on the basis of two criteria: (i) the existence of legal, economic and organisational links and (ii) the existence of a concrete link between the economic activity of the entity in question and the subject matter of the infringement. If the DMA does indeed align itself with the competition law concept of an undertaking, international jurisdiction law must also be interpreted accordingly.

Alternatively, the jurisdiction of the Dutch court may be based on the (special) ground of jurisdiction under Article 7 of Brussels I-bis (cf. Article 6(e) of the Dutch Code of Civil Procedure). On that ground, the court of the place where the damage occurs or may occur has jurisdiction. This includes both the place where the damage occurs (Erfolgsort) and the place where the harmful event giving rise to the damage takes place (Handlungsort). The Erfolgsort is often linked to the place of residence or registered office of the victim of the infringement. Of particular interest in this regard are the preliminary questions referred by the Amsterdam District Court in the context of the application of jurisdiction rules in a digital context. The case concerns damages claims brought by three foundations on behalf of (Dutch) consumers as a result of Apple charging excessive commissions in its App Store. In that case, the court considered that for most users both the Handlungsort and the Erfolgsort were located in the Netherlands, because Apple specifically targets the Dutch market with its Dutch App Store. Consequently, the place where the harmful event occurred (charging excessive commissions) is therefore in the Netherlands. Preliminary questions on this interpretation are currently pending before the CJEU.

Follow-on or stand-alone

Civil proceedings against a gatekeeper may be brought on a stand-alone or follow-on basis. In a follow-on case, there is already a decision by the Commission establishing an infringement of the DMA by the gatekeeper. The unlawfulness of the conduct in question is therefore given; pursuant to Article 39 of the DMA, the national court may not deviate from the findings in that decision. The national civil proceedings then follow, as it were, on the Commission’s infringement decision. In a stand-alone case, on the other hand, the claims are brought without the existence of a prior infringement decision. the claimant will thus have to substantiate the actual conduct and its unlawfulness. In this context, it is relevant that Article 8 of the DMA leads to a reversal of the burden of proof in a public law context, as this article provides that the gatekeeper shall monitor and provide evidence of compliance with the obligations under Articles 5, 6 and 7 of the DMA. How this relates in practice to civil evidentiary law as laid down in Articles 149 and 150 Rv remains to be seen. Finally, it is important that, certainly in stand-alone cases, the national court always has the possibility to stay the proceedings, for example if the Commission initiates an investigation into the conduct in question while the national proceedings are (still) pending (Article 39(5) DMA). The Commission also has the option of joining a case as an amicus curiae (Article 39(3) of the DMA).

The existence of an infringement decision, as in the Meta and Apple cases, generally facilitates private enforcement. In the context of the DMA, it is relevant that the opening of an investigation into a gatekeeper’s compliance with the DMA also qualifies as a decision (Article 20 DMA). This is in contrast to competition law, where the opening of an investigation and the notification of objections are not formal decisions. The Commission has already taken a number of decisions against gatekeepers, launching investigations into their compliance with their obligations under the DMA. These investigations concern, among other things:

• the possible self-preferencing via Alphabet’s Google Search, including in relation to Google Shopping (Article 6(5) DMA; for the competition law equivalent, see the Google Shopping case);
• the prohibition of anti-steering measures in relation to the Google Play Store (Article 5(4) DMA).
• the contractual terms Apple applies to app developers, which, according to the Commission’s preliminary findings, infringe the DMA (Article 5(4) DMA);
• the possible self-preferencing by Amazon through the use of data from third-party sellers on its platform.

However, the value of these decisions to open an investigation for national civil proceedings seems limited as such. The decisions are relatively short and only describe the facts, such as the adjustments made by the gatekeeper that prompted the Commission’s investigation. The Commission also expressly states that the opening of an investigation does not prejudge the (il)legality of the conduct and the gatekeepers’ compliance with the DMA. For this reason, the limitation period will not start to run when a decision to open an investigation is taken. Such decisions do not contain any findings of unlawful conduct. For example, the Commission has since withdrawn a number of investigations, such as the investigation into Apple’s obligations regarding the possibility of removing apps and changing default settings within Apple’s iOS (Article 6(3) of the DMA).

However, it is possible to initiate civil proceedings pending the DMA investigation. Given the substantive overlap between the DMA and certain forms of abuse under Article 102 TFEU, it is therefore generally conceivable that proceedings could be brought against a gatekeeper on the basis of both the DMA and Article 102 TFEU. This could then be partly a stand-alone and partly a follow-on case, if a fine has already been imposed under the DMA or competition law. Involving competition law in a case concerning (alleged) DMA infringements has a number of advantages. The existence of a non-compliance decision under the DMA may make it easier to demonstrate an infringement of competition law and vice versa. It may also influence the amount of damages, as unlawful conduct under the DMA is limited in time (at most from March 2024), whereas the unlawfulness due to a breach of competition law may have continued for longer. This also makes it more attractive for litigation financiers to finance large cases against gatekeepers. Conversely, the decision to open a DMA investigation or a DMA infringement decision may be useful in determining the group of entities that are jointly and severally liable for the damage resulting from a competition decision.

Various possibilities for private enforcement

Victims of DMA infringements have various legal remedies available to them in the Netherlands.

Injunction or prohibition

Victims of DMA infringements can seek an injunction or prohibition against the gatekeeper. This can be done both in proceedings on the merits and before the preliminary relief judge in summary proceedings (Article 254 of the Code of Civil Procedure). A penalty payment may also be requested as an (additional) means of pressure. An urgent interest in the requested provisional relief is required.

Interim relief is particularly relevant when the gatekeeper’s unlawful conduct causes irreversible or difficult-to-recover damage to the victim, such as damage to the victim’s competitive position. Consider, for example, an order against the gatekeeper to achieve interoperability (Article 6(7) DMA) or to grant access to certain data (Article 6(10) DMA). A prohibition may be necessary, for example, where a gatekeeper competes on its platform with its business users and in doing so uses non-public data generated by those business users (self-enforcement), in breach of Article 6(2) of the DMA. If the Commission has already issued a non-compliance decision and the gatekeeper has not (yet) complied with that decision, it is likely that the interim measure will be granted. This is because the unlawfulness is then established and the national court is not permitted to deviate from the Commission decision pursuant to Article 39(5) of the DMA. However, even if no non-compliance decision has been taken, the obligations under the DMA can be enforced through the courts.

Of course, claiming an injunction or prohibition may be accompanied by a declaration for the court to rule on the matter and/or a claim for damages.

Damages

If damage has been suffered as a result of a breach of the DMA, damages may be claimed.

By violating the obligations under the DMA, the gatekeeper is acting in breach of a legal obligation (Section 6:162 of the Dutch Civil Code), for which both the damage suffered and the loss of profit can be claimed. Naturally, a declaration of law and/or an injunction can be sought as well.

As with competition law, quantifying the damage can be complex. This is often due to the complex (technical) market forces at play, which make it difficult to determine the correct counterfactual scenario. In addition, some obligations under the DMA relate to violations of data use, which is also complex to quantify as (monetary) damage. Finally, with regard to the quantification of damage, the obligations under the DMA will only take effect from March 2024 and the damage will therefore still be (relatively) minor. In that context, it may be useful to base claims for damages on generic competition law (Article 102 TFEU), as those obligations have been in force for some time and the unlawfulness has therefore persisted for longer.

When claiming damages for violations of the DMA, it is interesting to bundle claims. It is likely that gatekeepers’ conduct will quickly affect many parties simultaneously, from consumers to customers and competitors. In such cases, it is more efficient to bundle all claims, which are likely to be largely similar. This can be done using the “assignment model”, whereby a group of victims transfers their claims to a claim vehicle such as a foundation, for example by means of a power of attorney or assignment. The foundation then acts on behalf of these parties. If there is a large, perhaps not yet defined group of victims, initiating a collective action is a useful option for claiming damages (or possibly a declaration of law or an injunction).

Collective action

Under the WAMCA (Article 3:305a of the Dutch Civil Code), it is possible to claim damages in a collective action. Collective actions usually concern mass damage cases involving financial loss, but in principle the case may also have an intangible objective and relate, for example, to unlawful data use.

In a collective action, a foundation initiates proceedings in which it represents the interests of individuals. A number of admissibility requirements are imposed on this foundation, including in the areas of governance, financing and representativeness. See also this overview blog about the WAMCA and the process of a collective action.

As noted above, the European legislator has deliberately taken into account the possibility that violations of the DMA by gatekeepers may affect a large group of consumers. For this reason, Article 42 of the DMA declares the Directive on representative proceedings for the protection of collective consumer interests (2020/1828) applicable to the DMA. Most of the provisions of that Directive did not lead to any (significant) changes in the Netherlands, as they already applied through the WAMCA. What is new is that the Directive operates with a “list system” for representatives who wish to operate across borders and submit cross-border consumer claims. Member States must draw up a publicly accessible list of interest representatives (known as “competent bodies”) for cross-border claims. This list will then be forwarded to the European Commission. With this Directive, and its explicit application to (violations of) the DMA, it is possible to initiate domestic and cross-border collective actions on behalf of consumers against gatekeepers. For more information on how Directive 2020/1828 works, see this blog.

Conclusion

Whereas in the past year, since the entry into force of the obligations under the DMA, the focus has been mainly on public enforcement, the arrival of the first non-compliance decisions has (further) opened the door to private enforcement.

Although there is still some uncertainty about the exact scope and application of the DMA in national civil proceedings, it is clear that there are opportunities. Private enforcement of the DMA in the Netherlands is still in its infancy, but offers promising opportunities for market players to strengthen their position and enforce a level playing field, and for customers and consumers to safeguard their rights.

If you have any questions about the DMA and the possibilities for its enforcement, please contact Bas Braeken, Timo Hieselaar or Jade Versteeg.