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Digital Markets Act

The European Regulation on contestable and fair markets in the digital sector (Digital Markets Act – DMA) entered into force on 1 November 2022. The Act prohibits companies that provide digital platform services and act as so-called gatekeepers from engaging in certain practices that are detrimental to competition. Gatekeepers are digital platforms that provide an important gateway between business users and consumers, and whose position can grant them the power to act as a private rule maker, thus creating a bottleneck in the digital economy. To address these issues, the DMA defines a series of obligations for these gatekeepers, including prohibiting them from engaging in certain behaviours.

Dos and don’ts for gatekeepers

Gatekeeper platforms will have to, for example:

  • Allow their business users to access the data that they generate in their use of the gatekeeper’s platform
  • Provide their business users with access to the platform’s marketing or advertising data
  • Allow their business users to promote their offer and conclude contracts with their customers outside the gatekeeper’s platform
  • Inform the European Commission of acquisitions and mergers they carry out
  • Ensure that logging off platform services is as easy as logging in.

Gatekeeper platforms may no longer, for example:

  • Rank their own products and services more favourably than those offered by other market participants (self-preference)
  • Use personal data collected while one service is being used for another service
  • Request that app developers use certain services (e.g. payment systems) in order to be listed in an app store.

Gatekeepers

Companies providing one or several core platform services as defined in the Digital Markets Act are deemed to be gatekeepers if they meet the criteria outlined below. The DMA applies to the following services: online intermediation services such as app stores, online search engines, social networking services, certain messaging services, video sharing platform services, virtual assistants, web browsers, cloud computing services, operating systems, online marketplaces, and advertising services.

There are three main criteria that bring a company within the scope of the DMA:

  1. Size: when the company achieves a certain annual turnover in the European Economic Area (EEA) and it provides a core platform service in at least three EU Member States
  2. Gateway for business users to reach end consumers: when the company provides a core platform service to more than 45 million monthly active end users established or located in the EU and to more than 10,000 yearly active business users established in the EU
  3.  Entrenched and durable position: when the company has met the second criterion for the past three years.

Enforcement

The European Commission is the sole enforcer of the DMA; specifically it is entitled to impose fines and other sanctions. However, the national competition authorities should initiate proceedings in relation to potential breaches and inform the Commission of their findings.

Advisory committee and high-level group

To assist the European Commission and facilitate its work, an advisory committee and a high-level group are to be set up.

The advisory committee is made up of experts from the competent authorities within the Member States, among them the Austrian Federal Competition Authority (AFCA), and chaired by the European Commission. The AFCA is represented in the advisory committee by Alexandra Ivanova.

The high-level group is composed of the following European bodies and networks:

  • Body of European Regulators for Electronic Communications (BEREC)
  • European Data Protection Supervisor (EDPS)
  • European Data Protection Board (EDPB)
  • European Competition Network (ECN)
  • Consumer Protection Cooperation Network (CPC)
  • European Regulators Group for Audiovisual Media Services (ERGA).

Natalie Harsdorf-Borsch was nominated for a two-year period as representative of the ECN in the high-level group for the Digital Markets Act, alongside her Director General counterparts from the Danish, German, Greek, Polish and Spanish competition authorities.