The Digital Markets Act (DMA) is with no doubt the Commission’s flagship to ensure an effective and fair competition in the Digital Economy. As this Regulation only applies to the big ones with the aim to relieve the competitive advantages enjoyed by their dominant market power and prevent a likely abuse of their position -in an ex ante way-, it is clear that everyone agrees that something should be done, and that the DMA is the right tool.
This is why we are not surprised that the Council and the European Parliament have sped up their internal discussions to issue their compromised amendment reports, ensuring a smooth debate alongside the Commission once the trilogues start early in January, 2022, with the goal to reach an agreement before July (still under the French Presidency).
Indeed, the proposals of both institutions tend to be constructive and make fair contributions to the Commission’s proposal, providing more legal certainty and quick application establishing clear and shorter deadlines; ensuring a better enforcement by involving Member States and their national authorities; covering new services that should be under the scope of this Regulation, and ensuring a full harmonization and complementarity between the ex-ante and ex-post intervention to gatekeepers.
In this sense, we believe that Member States need to play out a more proactive role in the way the DMA is enforced at national level. We believe so not only because national authorities are the last mile to engage with business users and consumers with respect to how gatekeepers are complying with the obligations, but also because their national regulatory and competent authorities have the expertise and know-how to ensure the well-functioning of the Regulation.
The Council’s proposal only seeks to ensure the no overlapping between the Commission and National Competition Authorities (NCAs), setting out the obligation for the latter to inform the Commission about any antitrust investigation dealt at national level which could in parallel lead the NCA to analyse whether the gatekeeper is complying with the obligations foreseen in the DMA, with the duty to step-out once the Commission decides to trigger an investigation.
We celebrate the European Parliament’s proposal for a more engagement of national regulatory and competent authorities, not only supporting and advising the Commission in the market investigations, but also introducing a reporting mechanism for complaints that will help the Commission understand what it is happening at national level. Moreover, we are happy with the more featuring role given to National Competition Authorities in the enforcement of the Regulation, as we should not forget that the DMA is born from the spirit of competition law. NCAs should be there, not only because of the background acquired in the last decade in the antitrust cases over digital, but also because there is bunch of dispositions in the Regulation that makes sense to be dealt by NCAs.
Regarding the obligations, we agree with the Commission that the antitrust experience gathered in cases against some of these big players should be brought to the DMA in the way of obligations that come from conducts considered anticompetitive under EU Competition Law. In this sense, we miss -and still do not understand why- the application of obligations that, being based on the principles of Art. 102 TFEU, are not applied in the same way to all gatekeepers active in the listed core platform services (CPS), which enjoy a significant market position.. We are referring to the non-tying obligation, only foreseen as an obligation for the gatekeeper to no link a given CPS to related CPS as a condition sine qua non to use the service. Therefore, and following Art. 102 TFEU, we are of the view that this obligation should be extended to any unconnected service provided by the gatekeeper. In addition, we also believe that the self-preferencing and FRAND (Fair, Reasonable and Non-Discriminatory) conditions should be extended to all CPS, and not only a few ones, a proposal that makes the European Parliament from the original proposal of the Commission.
On the new and enhanced obligations proposed from the original proposal, especially on the interoperability ones in the Operating System, social networking services and NI-ICS, we believe they are well pushed straight forward, as crucial obligations to boost the entry of new market players and fairness with business users.
Finally, we also welcome the added dispositions from the original proposal aimed at fostering the regulatory dialogue between the Commission and the gatekeeper, also allowing third-interested parties to be consulted in the specification of the measures. Likewise, the rise of the quantitative thresholds for the gatekeeper designation allows the Commission to very focus on the few players that really create competition problems in the Digital Economy due to their market power and vertically integrated ecosystems.
All in all, the DMA is the right way, the right tool and the good starting point for the European Institutions to ensure a Level Playing Field. Same services, same market power, same rules.