July 28, 2023

Digital Markets Act: the first 7 potential gatekeepers

Last 3 July was the deadline for large systemic platforms to notify the European Commission of their compliance with the thresholds for qualifying as “gatekeepers” under the Digital Markets Act (DMA). This law aims to ensure that these platforms behave fairly online.    

The companies operating in our digital marketplace (in the European Union) that, at this stage, have declared themselves as gatekeepers are: Alphabet, Amazon, Apple, ByteDance, Meta, Microsoft and Samsung.   

The Digital Markets Act defines the set of criteria that are established for digital platforms to be considered “Gatekeepers”. Essentially, these standards are met as long as the platforms meet the following conditions:  

  • Have a strong economic position, a significant impact on the internal market and activities in many EU countries.  
  • Have a strong intermediary position, enabling them to connect a broad user base with a large number of companies.  
  • Have, or be about to have, an established and long-standing position in the market, which means having fulfilled the above two criteria in each of the last three financial years.  

What obligations do gatekeepers have?  

Once digital platforms have been designated as gatekeepers, they must comply with a number of rules and obligations. These include, among others, the following:  

  • They may not treat their own services and products more favourably.  
  • They must not prevent consumers from contacting businesses outside the gatekeeper’s platform.   
  • From now on, users will be able to uninstall pre-installed software or applications if they wish to do so, without hindrance from gatekeepers.  
  • They will also not be able to track end-users outside the core platform service for personalised advertising purposes, without effective consent being granted.  
  • They must allow business users to access the data they generate when using the platforms.  
  • They will also have to give permission to user companies to promote their offers and enter into contracts with their customers outside the platform.   

And if they do not comply with these obligations, what will happen to gatekeepers?  

To ensure that, despite the frenetic pace of digital markets, regulation does not become updated to ensure that the rules do not become outdated, the Commission will, on the one hand, dynamically update gatekeepers’ obligations in line with changes in the digital ecosystem.   

In addition, a series of corrective measures are established in the event that platforms considered “Gatekeepers” do not comply with their obligations.  

The measures include fines of up to 10% of the company’s total annual global volume, or up to 20% in the case of repeated infringements. The Commission will also apply periodic penalty payments of up to 5% of daily turnover. Finally, there will also be additional corrective measures which will be effective in case of systematic non-compliance with the obligations. These measures must be proportionate to the offence committed and, as a last resort, may become structural and non-financial. 

To learn more about the new regulation in the digital sphere, we also share as a reminder the article on what you need to know about the Digital Services Act