Europe’s DMA shows how vague antitrust rules can stifle innovation, invite political capture, and turn market oversight into a contest of influence—not a defense of consumers.
European iPhone users are missing out on Apple’s most innovative features available elsewhere, like live translation through AirPods, seamless iPhone-Mac mirroring, and location-based Maps updates. The reason isn’t technical. It’s regulatory.
Under the European Union’s Digital Markets Act (DMA), major tech firms must make new features interoperable with competitors’ devices before launching them. The rule often kills innovation before it starts. The result is slower progress, higher security risks, and a warning for the United States about where well-intentioned regulation can lead.
From Evidence to Ideology
For more than forty years, American antitrust law has relied on evidence rather than ideology. Before enforcers can act, they must prove actual consumer harm: higher prices, reduced quality, or diminished innovation. That standard, rooted in the consumer-welfare framework, keeps regulators accountable and provides businesses with clear rules. Courts review the evidence, and liability follows only when harm is real.
Europe has abandoned that discipline. The DMA designates certain companies as “gatekeepers” and imposes sweeping prohibitions before any harm is shown. Firms cannot favor their own products, combine services, or limit interoperability—not because those actions harm consumers, but because regulators label them unfair. Evidence is optional. Judicial review is minimal. Brussels decides what “fairness” means from case to case.
How Vague Rules Invite Capture
Vague rules shift power from markets to politics. When regulators can decide what is fair without proving harm, lobbying replaces competition. Both dominant platforms and their rivals can afford well-staffed offices in Brussels to shape outcomes. Consumers have no such voice.
The interoperability mandate illustrates the danger. It requires platforms to share proprietary technologies whenever regulators believe fairness demands it. Yet the DMA does not define what fair access means. Competitors now petition for data, message histories, and device integrations which advance their own interests, not those of users. Regulators have no objective basis to reject them. Influence, not merit, becomes the path to success.
Lessons from US Antitrust History
Mid-century America followed a similar path. Courts blocked mergers among firms with trivial market shares and punished efficient business practices under the banner of protecting small competitors. That era produced stagnant markets, which hurt Americans from all walks of life, until courts reintroduced economic proof and tied antitrust back to consumer outcomes. Once enforcement returned to measurable effects, innovation flourished.
Europe is repeating that mistake on a grander scale. By imposing categorical bans divorced from outcomes, the DMA creates a discretionary regime prone to capture. Bureaucrats gain power, companies seek advantage through lobbying, and consumers end up with fewer choices and slower progress.
The Case for Evidence-Based Enforcement
Supporters of the DMA claim fast-moving digital markets require proactive rules. They argue that by the time consumer harm can be demonstrated, dominance is already locked in. Yet American law already handles emerging threats through merger review, potential-competition analysis, and predatory-pricing doctrine. The evidentiary bar is not impossibly high; it simply demands proof.
Discretionary enforcement carries its own costs. Vague mandates invite interest groups to bend policy toward their agendas. Even if ex-ante rules could prevent harm, they fail when regulators apply them inconsistently. The DMA’s undefined standards ensure outcomes depend on politics, not principle.
When Regulation Becomes Political Leverage
Capture now extends beyond corporate lobbying. Platforms facing enforcement threats have strong incentives to make unrelated political concessions—on content moderation, data localization, or ideological priorities—to placate regulators. These bargains occur outside public view and beyond judicial review. The broader the discretion, the greater the temptation for political exchange. The DMA turns market oversight into a vehicle for policy leverage.
Several US proposals (S.1876, S.1671, and S.1073, to name but a few) mirror Europe’s approach. They would impose bright-line bans on platform conduct, expand agency discretion, and revive structural presumptions detached from consumer harm. The rhetoric is familiar: fairness, contestability, accountability. The risk is the same.
Evidence Works Better Than Fairness
The consumer-welfare standard’s evidentiary requirement is not a flaw. It is the safeguard that prevents politics from overtaking economics. Demanding proof limits the discretion that makes capture profitable. By focusing on measurable outcomes such as prices, quality, and innovation, it ensures that enforcement serves consumers rather than factions. Defining harm consistently across administrations provides the predictability essential for long-term investment.
Europe’s experience shows what happens when those constraints disappear. Innovation slows. Security weakens. Enforcement becomes a contest of influence. Consumers pay the price.
Before America imports the DMA model, policymakers should ask a simple question: if the goal is competition, why replace clear standards with vague mandates that reward lobbying? The answer should be equally clear. Fairness may sound appealing, but evidence keeps markets free.
About the Author: Justin Evan Smith
Justin Evan Smith is a Young Voices Senior Contributor and law student focused on antitrust at The Antonin Scalia Law School at George Mason University. Follow him on X @thejustinevan
Image: SuPatMaN/shutterstock
