Digital Markets Act

The gatekeepers have been designated,…

The Regulation on contestable and fair markets in the digital sector – better known as the Digital Markets Act (“DMA”) – entered into force in November 2022 and has applied since 2 May 2023.

The objective of the Regulation is to ensure fair competition and to safeguard the contestability of the markets for digital services by regulating “gatekeepers”, i.e. companies providing the core platform services defined in the DMA. These services can be considered a gateway between a large number of business users and consumers.

In September 2023, the European Commission designated Alphabet, Amazon, Apple, ByteDance, Meta and Microsoft as initial six gatekeepers with regard to a total of 22 core platform services. Further reviews are currently being carried out so that other companies may be added to the list (for further details see our Noerr News article).

… must comply with the legal do’s and don’ts,…

From the compliance day (7 March 2024), gatekeepers will have to regularly submit reports about their compliance with their obligations under the DMA to the European Commission (for background information in German, see here). The list of obligations under the DMA distinguishes between requirements that are applicable without further specification (e.g. the prohibition of tying or bundling and the prohibition of using most-favoured nation clauses) and obligations that are directly applicable but can be further specified for the individual gatekeeper by the European Commission (e.g. the prohibition of self-preferencing). Non-confidential versions of the compliance reports will be made publicly available by the European Commission, mainly to find out what platform users and competitors think and what their understanding of the market is.

… mainly monitored by the European Commission…

The European Commission is the sole enforcer of the DMA. However, the Member States’ competition authorities are expected to support the European Commission. It was for this reason, for example, that the German Federal Cartel Office was conferred investigation powers (such as powers to search and seize and the right to demand information from gatekeepers) by the latest amendment to the German Act against Restraints of Competition (“ARC”), which has been in force since 7 November 2023 (see section 32g ARC).

… and under the watchful eyes of the market participants.

Undertakings do not only have the possibility to contribute to the gatekeepers’ compliance procedure before the competition authorities in the European Union; they may also consider asserting rights by means of private enforcement. Steps to facilitate the enforcement of rights have already been taken in Germany. The provisions of German competition law at least partially expand the mechanisms set out in sections 33 onwards of the ARC, which are most known from the field of cartel damages. These mechanisms now also apply to breaches of the DMA and should make private enforcement of the DMA easier.

 

This article is part of the Competition Outlook 2024. You can find all Competition Outlook articles here.