Regulating the gatekeepers: the Digital Market Act

On 2 May, EACA joined the webinar “(Re)Shaping the Digital Future of Europe?” organised by Fabernovel. The webinar examined how the Digital Markets Act intends to regulate the behaviour of gatekeepers by making them open up to the greater competition.

Gatekeepers are platforms that:

  • Have a significant impact on the internal market, act as an important ‘entry point’ through which business users reach consumers.
  • Enjoy, or are likely to enjoy, an established and long-lasting position, which may give them the power to act as private regulators and constitute a bottleneck between businesses and consumers.

Sometimes these companies have control over entire ecosystems of platforms. This means that if a gatekeeper engages in unfair commercial practices, the services of its users and retail competitors may not reach the consumer, or the access process may be slowed down. This is the case, for instance, when these practices result in the unfair use of the data of the companies active on these platforms or lead to situations where users are locked into a specific service and have little opportunity to choose another.

To combat this, the DMA states that gatekeepers must refrain from several conducts, for example:

  • users must be free to uninstall pre-installed software or apps.
  • Gatekeepers may not use data acquired from their business users to compete with those users.
  • Gatekeepers may not prevent their users from using services received outside the gatekeeper’s platform.

In addition, the DMA imposes several obligations on gatekeepers, such as:

  • interoperability, i.e., the ability to coexist with other smaller platforms without damaging them.
  • Sharing of data with business users operating on the platform.
  • Transparency in the management of advertising.
  • Freedom for business users to promote their offers outside the gatekeeper’s platform.

Finally, under existing antitrust law, fines for gatekeepers who engage in misconduct amount to 10% of their annual revenues. ln addition, the DMA gives the Commission the ability to conduct ad hoc investigations against gatekeepers.