The implementation of the DMA in the European Union is likely to bring important changes in major online platforms’ digital presence. These platforms are mainly Big Tech, such as Microsoft, Meta (Facebook), Alphabet (Google), Amazon. They have indeed established an important dominance on our digital landscape, and are often associated with the term “gatekeepers” (due to this disloyal dominance). The latter inevitably outshines new startups that wish to make their way on the market.
For this matter, the DMA establishes a list of specific criteria, which aims at defining a large online platform – also associated with the notion of “gatekeeper”. These criteria will be met if a company has:
- a strong economic position, significant impact on the internal market and is active in multiple EU countries
- a strong inter-mediation position, meaning it links a large user base to a large number of businesses
- an entrenched and durable position in the market, meaning it is stable over time if the company met the two previous criteria above of the last three financial years
“The DMA will change the digital landscape profoundly. With it, the EU is taking a pro-active approach to ensuring fair, transparent and contestable digital markets. A small number of large companies hold significant market power in their hands.” – Margrethe Vestager, European Commission Executive Vice-President
For now, the European Commission has not specifically designated which companies are concerned: this is to be settled by September 6, 2023. Companies meeting these criteria will hence have to comply with a predefined set of obligations to respect, including prohibiting them from engaging in certain behaviors. Here are two examples of do’s:
- allow their business users to access the data that they generate in their use of the gatekeeper’s platform
- allow third parties to inter-operate with the gatekeeper’s own services in certain specific situations
And two example of don’ts:
- threat services and products offered by the gatekeeper itself more favorably in ranking than similar services or products offered by third parties on the gatekeeper’s platform
- prevent users from uninstalling any pre-installed software or app if they wish to
“These obligations will help to open up possibilities for companies to contest markets and challenge gatekeepers based on the merits of their products and services, giving them more space to innovate” – The European Commission
Sanctions were also established in order “to ensure effectiveness of the new rules”, in case gatekeepers choose to ignore them. The European Commission reserves the right “to impose fines of up to 10% of the company’s total worldwide annual turnover or 20% in the event of repeated infringements and periodic penalty payments of up to 5% of the company’s total worldwide daily turnover”. Further remedies are planned in case of systemic infringements. They will be proportionate to the offense committed. The last resort option being non-financial sanctions, such as the divestiture of (parts of) a business.
Therefore, to ensure that the rules are well-respected, the EU Commission is committed to carry out regular market investigations. For now, the DMA is in its crucial implementation phase and will start applying from May 2, 2023. If they meet the criteria mentioned above, potential gatekeepers will have to notify the Commission by July 3, 2023 – at the latest. While tech giants are concerned about the DMA potential impact on innovation, the EU Commission is convinced that these new protections are to create real opportunities for startups to compete more effectively.