Digital Markets & Services

While digital products such as software, films and games are ubiquitous, physical goods are also increasingly incorporating digital elements – from refrigerators to cars. Not only are such products subject to special contractual requirements in the B2C context, they are also subject to increasingly stringent product compliance requirements, such as the Cyber Resilience Act (CRA). In addition to the customer relationship, these requirements also impact supply chains. We advise on all contractual, product law and regulatory issues throughout the entire life cycle.

The digital transformation is creating new business models – from Software as a Service (SaaS), the Internet of Things (IoT) and artificial intelligence (AI) to Everything as a Service (XaaS). Due to legal requirements, special standards have been established for customer contracts that need to be passed on to suppliers. There are also new regulatory requirements, such as the Data Act and the AI Act. These apply in addition to the general antitrust requirements for data, AI and market power. Based on our in-depth knowledge of regulation, technology and markets, our interdisciplinary team provides customised support in all phases of a digital service.

Compared to purely physical objects, the sale of digital products and services has unique characteristics that require the close interaction of sales, IT law and regulatory expertise. For example, contractual relationships are typically not established in a chain from the manufacturer to the retailer and then to the customer; instead, licence agreements (EULAs) or service contracts are frequently concluded directly between customers and manufacturers. Against this background, the various contractual relationships must be particularly closely interlinked, taking into account distribution law, antitrust law and regulatory requirements.

Online platforms and marketplaces are a key playing field for digital markets. Up to now, the focus for platforms has primarily been on reducing their liability between service providers and recipients. In light of the new provisions of the Digital Services Act (DSA), this discussion now includes compliance with the specific obligations of the DSA for intermediaries according to their type and size. With our extensive expertise on all relevant topics, we advise both platform operators of all types and their commercial users.

Digital markets are becoming increasingly central to the economy and are being more strongly regulated by antitrust and competition law. This includes the further development of general antitrust requirements and the decisions of the European Commission, European courts and national antitrust authorities. In addition, with the Digital Markets Act (DMA), the European legislator has created a special regulation for so-called gatekeepers to ensure the contestability of digital markets. This results in far-reaching rights and new opportunities. Leveraging our many years of experience, we provide comprehensive advice on such antitrust and competition law issues and all interfaces with IP and contract law, as well as on the enforcement and defence of civil law claims for antitrust violations and individual rights under the DMA.

In digital markets, the central question often concerns the liability of companies that provide potentially unlawful digital products or services. Until now, the provider privilege from the E-Commerce Directive, supplemented by extensive European and national case law, has been central to this. These principles have now been transferred to the Digital Services Act (DSA) and are being supplemented by increasingly stringent requirements from product-specific regulations. Here too, our interdisciplinary team works hand in hand to design tailor-made solutions that minimise liability while effectively enforcing claims by or against intermediaries.

The regulation of digital markets and services is supported by extensive enforcement and dispute resolution mechanisms at both European and national levels as well as through private enforcement. The new European legal acts provide the responsible authorities with a range of significant sanctions that are modelled on those of the General Data Protection Regulation (GDPR). Initially, the focus will be on conducting official proceedings and taking legal action against such decisions before national and European courts. In addition, private enforcement also plays a major role due to the introduction of new collective proceedings for consumers across Europe. In this respect, we advise in integrated teams, considering all possible avenues and risks of dispute resolution to develop and implement an overall strategy.