Rebuttable gatekeeper presumption
The DMA introduces a rebuttable presumption to designate digital companies as ‘gatekeepers’ on the basis of specific turnover, market value and user thresholds. Even though these quantitative thresholds were increased following trilogue discussions between the Council, the European Parliament and the Commission, the ‘usual Big Tech suspects’ (e.g. Amazon, Apple, Google, Meta and Microsoft) are likely to still qualify as gatekeepers. It may therefore only be a matter of time before one of the Big Techs takes up the challenge of rebutting this gatekeeper presumption (see our Legal Alert of December 2020 on the Commission’s DMA proposal).
Once they are designated as gatekeeper, digital companies will need to comply with a number of upfront obligations in respect of their core platform services on, for instance, data access, interoperability and self-preferencing: see our infographic for an overview of the gatekeepers’ positive and negative key obligations.
In addition, identified gatekeepers will need to inform the Commission of all intended ‘digital’ concentrations, regardless of whether these concentrations are caught under the EU Merger Regulation or national merger control rules. Digital companies should beware that this information obligation, together with the revived Article 22 merger referral (see our October 2020 newsletter) and the possibility of imposing temporary merger bans, will make the Commission’s ability to scrutinise ‘digital’ mergers virtually airtight.
Interplay with antitrust investigations
Designated gatekeepers should realise that the DMA’s obligations, most of which were inspired by ‘regular’ antitrust investigations, do not exempt them from parallel investigations under the EU and national antitrust rules. According to Executive Vice-President Vestager, the DMA complements the enforcement of competition law at EU and national level; a ‘complementarity’ that was also recently confirmed by the European Court of Justice (see our April 2022 competition newsletter).
The Commission is currently dealing with several antitrust investigations into Google, Meta, Apple and Amazon, as well as a complaint regarding Microsoft. National competition authorities are also doing their fair share with recent ‘digital’ activities by the Dutch, German and Italian competition authorities. The DMA is therefore unlikely to reduce the current ‘overload’ on ‘digital’ antitrust enforcement work as of yet. However, the upcoming revision of Regulation 1/2003 may lead to speedier solutions under the ‘regular’ antitrust rules for also ‘digital’ investigations through, for instance, more informal guidance, updated detection tools and enhanced cooperation among competition authorities.
The final text of the DMA has yet to be finalised at a technical level and approved by both Parliament and Council before publication. Once it is published in the EU’s Official Journal, the DMA will come into force 20 days later, with its rules to become applicable six months after.
The DMA clock is therefore ticking. No time like the present for Big Tech to contemplate the impact of the DMA’s upcoming obligations on their internal processes and business policies.
This article was published in the Competition Newsletter of April 2022. Other articles in this newsletter:
- ECJ in Bpost and Nordzucker cleaner limits for non bis in idem
- ACM jumps on gun-jumping bandwagon
- The ECN+ Directive implemented in Belgium and introduction of merger filing fees