On 2 May 2023, the implementing regulation of the Digital Markets Act (DMA) issued by the European Commission (Commission) came into effect, revolutionizing the way in which so-called Big Tech is regulated in the EU. The DMA imposes stringent obligations on very large online platforms that act as “Gatekeepers”. These Gatekeepers are providers of core online platforms, such as online search engines, marketplaces and social networks. A Gatekeeper’s status is presumed where a company provides a “core platform service” in at least three EU Member States and meets specified quantitative criteria (including an EU turnover of at least EUR 7.5 billion or a market capitalization of at least EUR 75 billion, 45 million monthly active end users and 10,000 yearly active business users in the EU).
Potential Gatekeepers must, in accordance with the regulation, notify the Commission of their potential gatekeeper status by 3 July 2023. Such companies are also required to complete a ‘Form GD’ and provide information on which core platform services they provide, and on the DMA’s quantitative and qualitative thresholds.
Gatekeepers are subjected to several new and impactful requirements under the DMA, which aim to level the playing field in the online space, through transparency and trust. Some of these obligations result in the limitation of the Gatekeepers’ ability to process and use personal data, determine the ranking of its own and third parties’ offerings (through the imposition of certain non-discriminatory conditions to ranking, such as display and rating), negotiate certain conditions with business users and impose certain (access and other) restrictions on end users. In addition, the DMA imposes an obligation on Gatekeepers to inform the European Commission (Commission) of a proposed ‘concentration’ involving other companies from the digital sector or which are active in data collection, irrespective of whether the merger would otherwise be notifiable to the Commission or a national competition authority under the relevant merger control rules.
The Commission has the exclusive competence to apply the DMA in order to ensure uniform enforcement throughout the Union and has the ability to impose severe fines (of up to 10% or 20% of the worldwide group turnover in the preceding financial year, depending on whether there are repeated violations) and remedies for noncompliance. However, Member States may also authorise their respective national competition authorities to investigate possible violations of the DMA and to forward the results of their investigations to the Commission.
