#GMW-Blog: Current legal developments

Scare screens and dark patterns: The prohibition on circumvention pursuant to Article 13(4) DMA

Since March 7, 2024, gatekeepers designated by the European Commission – so far, Alphabet, Apple, Microsoft, Meta, Amazon and Bytedance – must comply with the Digital Markets Act (Regulation (EU) 2022/1925 on contestable and fair markets in the digital sector (hereinafter "DMA")). In practice, Articles 5 to 7 DMA are particularly relevant. Although Articles 5 to 7 DMA show some ambiguities, compared to the general rules under antitrust law, in particular Article 102 TFEU, they are very specific. This is both a strength and a weakness of the DMA. The enumeration of specific prohibitions in combination with the binding designation as gatekeeper allows for relatively simple application of the rules. Conversely, the regulatory approach of the DMA harbors the risk of circumvention. This is particularly true in the digital economy, where one and the same competitively harmful result can be achieved in many different ways and sometimes very subtly. Already now, it is possible to identify conduct of gatekeepers that appears to be in line with the wording of the DMA, but clearly contradict its objectives. As a result, one provision of the DMA that has not received much attention yet will be crucial: The prohibition on circumvention pursuant to Article 13(4) of the DMA. 

I. Introduction

Articles 5 to 7 DMA are at the heart of the DMA. Gatekeepers designated by the European Commission must comply with the prohibitions laid down therein. Undertakings are designated as gatekeepers if they provide so-called core platform services such as search engines, operating systems or certain communication services (Article 2 no 2 DMA), which serve business users as an important gateway to end users and with which gatekeepers exert a considerable influence on the internal market (Article 3(1) DMA). 

The prohibitions in Articles 5 to 7 DMA are "per-se rules". Unlike in antitrust law, no complex market definition, calculation of market shares, weighing of the interests or proof of (probable) effects in individual cases is required. The regulatory concept of the DMA is the EU legislator's response to the special features of digital markets. Their contestability and fairness (see Article1 (1) 1 DMA) cannot be guaranteed by traditional antitrust law alone.

This regulatory approach of the DMA has advantages and disadvantages. The enumeration of specific prohibitions is easy to apply. Beyond factual uncertainties (cf. Article 8(1) DMA) and questions of interpretation that arise naturally, the DMA allows for a straightforward and swift classification of the gatekeepers' conduct without individual proof of harmfulness.

This advantage comes at the cost of flexibility. Even with the broad interpretation adopted from antitrust law and based on the "effet utile doctrine"only those types of conduct are caught that fulfill the criteria set out in Articles 5 to 7 DMA. In contrast to Article 102 TFEU, it is not possible to rely solely on the effects of a certain practice. This disadvantage has a potentially serious impact on the DMA effectiveness, particularly in the digital economy. 

In order to prevent the DMA from being rendered ineffective, the legislator has provided various mechanisms to allow for a certain flexibility. One of these mechanisms is Article 12 DMA, which allows the Commission to supplement Articles 5 to 7. However, Article 12 DMA is limited to certain measures listed exhaustively in Article 12(2) DMA and can only be used following a market investigation pursuant to Article 19 DMA. The situation is different with Article 13 DMA, which prohibits conduct by means of which gatekeepers attempt to circumvent their obligations under Art 5 to 7 DMA. According to Article 13(4) DMA, a gatekeeper shall not

"engage in any behaviour that undermines effective compliance with the obligations of Articles 5, 6 and 7 regardless of whether that behaviour is of a contractual, commercial or technical nature, or of any other nature, or consists in the use of behavioural techniques or interface design."

II. Scare screens and dark patterns

Article 13(4) DMA covers conduct that may formally comply with Articles 5 to 7 DMA, but which is nevertheless incompatible with the spirit of the respective prohibition and the objectives of the DMA. Article 13(4) DMA is applicable to all gatekeeper practices, regardless of their form, as long as they correspond to the "type of practice" of the respective DMA prohibition. This is stated in recital 70:

"Given the substantial economic power of gatekeepers, it is important that the obligations are applied effectively and are not circumvented. To that end, the rules in question should apply to any practice by a gatekeeper, irrespective of its form and irrespective of whether it is of a contractual, commercial, technical or any other nature, insofar as the practice corresponds to the type of practice that is the subject of one of the obligations laid down by this Regulation. […]."

Against this background, the term "circumvention" is to be understood broadly and covers all practices of a gatekeeper which, by their outward appearance, seem to be in accordance with Articles 5 to 7 DMA but which in essence lead to results that contradict the purpose of the respective prohibition.

One example is the use of so-called scare screens, which through warnings, for example regarding the possible security for the smartphone when using an alternative provider, induce users not to make use of the options offered by the DMA. Such practices are more generally referred to as dark patterns. The term dark patterns refers to the design of user interfaces in a way that leads the user - without their knowledge - in a certain direction or to a certain decision. In addition to scare screens, this includes a variety of behaviors, such as nagging, i.e. the continuous (subtle) request to perform a certain action, or preselection, i.e. the default selection of a choice that is in the interest of the gatekeeper. Behavioral economics has long described the influence that such practices can have on human behavior.

The legislator is also critical of such measures, recital 70:

"Gatekeepers should not engage in behaviour that would undermine the effectiveness of the prohibitions and obligations laid down in this Regulation. Such behaviour includes the design used by the gatekeeper, the presentation of end-user choices in a non-neutral manner, or using the structure, function or manner of operation of a user interface or a part thereof to subvert or impair user autonomy, decision-making, or choice." 

Although Article 13(4) DMA is intended to shield Articles 5 to 7 DMA against circumventions and is therefore to be interpreted broadly, Article 13 para. 4 DMA is not a general rule that allows to capture all practices that have a negative impact on the contestability and fairness of digital markets. Rather, Article 13(4) DMA must be applied in conjunction with Articles 5 to 7 DMA and therefore does capture conduct that "undermines" a specific prohibition pursuant to Articles 5 to 7 DMA, i.e. undermines the spirit and objective of a concrete prohibition. 

III. Examples

When looking at the current compliance efforts of the designated gatekeepers, certain practices likely fall within the scope of Article 13(4) DMA. 

One example is the aggressive and excessive communication of security risks, for instance, with a view to the possibility of payment service providers to access all hardware and software functions of a mobile device without discrimination pursuant to Article 6(7) DMA. This, in particular, concerns the iOS NFC interface, which had been reserved for Apple's own payment app, Apple Pay (see also the European Commission's antitrust proceedings under file number COMP/AT.40452). Although Apple now allows access, it issued a clear public warning about the security risks that the use of alternative payment services could entail for the device as a whole and that Apple cannot control. This is likely to discourage Apple users from using competing services and undermines the intended effects of Article 6(7) DMA.

Equally relevant are attempts to circumvent the prohibitions on tying (Articles 5 (7) and (8) DMA). The behavior of users and their choice of services can be easily influenced by the design of registration processes, menu navigation or integrated references to the consequences of choosing a third-party provider. The effects of such practices are at least comparable to technical tying and therefore they are either caught by the prohibitions themselves or by Article 13 (4) DMA.

Finally, undermining measures are foreseeable in situations in which gatekeepers are obliged to provide their users with choices (e.g. under Article 5(2) DMA with regard to the merging of data or with a view to browser choice screens mandated under Article 6(3) DMA). Here, too, users are easy to influence. In addition to the aforementioned references to security risks, the display of the respective choices including the relevant information that is provided may easily steer users in one direction or another (for instance, users are likely to have a preference for well-known providers when they lack meaningful information on lesser-known providers).

IV. Outlook

The application and interpretation of Article 13(4) DMA will be decisive for the success of the DMA. The regulatory approach of the DMA can only achieve its objective of ensuring contestable and fair markets if its circumvention can be prevented effectively. In practice, the difficulty will be to distinguish between 

  • practices which are already covered by the prohibitions under Articles 5 to 7 DMA, 
  • practices that fall outside of Articles 5 to 7 DMA, but are covered by Article 13(4) DMA, and 
  • practices that may be harmful to competition but have simply not been addressed by the legislator so far.

In view of the controversial debates surrounding the compliance of the designated gatekeepers, in particular, during the compliance workshops held by the European Commission in March 2024, the European Commission and the courts will likely get the opportunity to test the effectiveness of Article 13(4) DMA in the near future.



Dr Christian Karbaum


Phone: +49 211 20052-160
Fax: +49 211 20052-100
Email: c.karbaum(at)glademichelwirtz.com


Dr Max Schulz


Phone: +49 211 20052-360
Fax: +49 211 20052-100
Email: m.schulz(at)glademichelwirtz.com


Dr Yannick Morath


Phone: +49 211 20052-210
Fax: +49 211 20052-100
Email: y.morath(at)glademichelwirtz.com