The Digital Markets Act (DMA) is a landmark proposal to regulate large online platforms such as Amazon, Google or Facebook, which are designated as “gatekeepers” because they play a systemic role in the digital ecosystem.
Ambassadors from the 27-member European Union unanimously adopted
their “general approach” to the DMA on Wednesday (10 November), bringing
several modifications to the European Commission’s proposal to rein in
the dominance of big players on the EU’s digital market.
“The compromise proposal provided by the Presidency represents an
overall balanced package, which could allow for a General Approach by
the Council. A broad consensus was reached,” says a document released
after the meeting and seen by EURACTIV.
EU diplomats endorsed amendments to the text on Wednesday, paving the way for its endorsement by the bloc’s ministers at the Competitiveness Council on 25 November.
Once the ministers hash out their position, they will be ready to
enter talks with the European Parliament in order to finalise approval
of the DMA, a groundbreaking piece of legislation tabled in December
2020 that seeks to rein in the dominance of big players on the EU’s
digital market.
A majority of EU countries have succeeded in rejecting the commitment
to a tight timeline for an agreement on two key pieces of digital
legislation that would have served well the French government ahead of
the presidential elections there in April next year.
Designation, obligations and regulatory dialogue
The legislation provides that, when a platform meets certain
criteria, the company is due to notify the European Commission to
trigger the designation procedure.
Contrary to the EU Parliament, where the quantitative threshold in
terms of market capitalisation and active users are the object of
intense negotiations, EU countries left these criteria untouched.
Rather, they decided to reduce the timeframe for the designation
procedure.
According to the proposal, the qualitative remedies the EU regulator
will be able to impose on the gatekeepers have been improved. In
particular, the text introduces measures to avoid user lock-in through
switching costs and behavioural bias as well as the so-called vertical
integration of the gatekeeper’s different services, for instance with
the combination of data from different sources.
The structure and the scope of obligations for gatekeepers (Art. 5
and Art. 6) were not significantly changed, although the general
approach states that “improvements were made to make them clearer and
ensure future-proofing and prevent circumvention.”
Only one obligation was added under Art. 6, specifying that users
must be able to terminate the usage of the platform’s services without
disproportionate conditions and undue difficulty.
The member states slightly modified the provisions on the regulatory
dialogue (Art. 7), under which the gatekeeper can request the Commission
whether the measures proposed effectively meet its obligations.
The EU executive has retained its discretionary power on whether to
engage in such discussions, but it must do so “respecting equal
treatment, proportionality and the principle of good administration.”
End-user definition
A new annex has been included in the proposal “to ensure legal
clarity and speed up the designation process.” The annex provides a
methodology for calculating the number of end-users – namely consumers,
business users, and companies.
The definitions are specified based on the type of core platform
service, and span across very different markets. These include online
marketplaces, search engines, social networks, video-sharing platforms,
number-independent interpersonal communication services (messaging
apps), operating systems, cloud computing and advertising services.
The annex confirmed significant distance in the definition of core
platform services compared to the proposal that is being discussed in
the European Parliament....
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