The European Commission is in the process of tightening the screws on ‘big tech’. In our regular blog for Kluwer, Loyens & Loeff discusses where things currently stand and could be heading.

After two rounds of public consultations that ended 8 September 2020, the European Commission (‘Commission’) appears to be on track and make its proposals for new enforcement powers more concrete. The Commission intends to adopt two definitive legislative proposals before the end of 2020. In the second edition of our regular blog for Kluwer, we take a look at where the Commission stands in shaping its proposals, and where it might be heading.

Two pieces of legislation are in the pipeline

On the one hand, there is the Digital Services Act (DSA). The Commission aims to propose rules in respect of the responsibilities of digital service providers in order to address the risks faced by their users and to protect their rights. The second pillar of the Commission’s regulatory package is the so-called New Competition Tool (NCT). The exact contents of this potential new instrument for the Commission are still unclear, but the Commission proposed that it is given the powers to impose certain restrictive measures on digital platforms with significant market power (which in many cases will amount to a dominant position) even in the absence of (demonstrated) abusive conduct. The NCT may become part of a broader Digital Markets Act (DMA).

France and the Netherlands urge the Commission to move on

In a joint non-paper dated 15 October 2020, the French and Dutch governments plead – as input on the DSA and NCT consultations of the Commission – in favour of further regulation and provide clear advice regarding the direction they believe the Commission should take in the DSA and/or DMA. Their first recommendation is that the Commission should draw up a list with principle-based obligations and prohibited practices for gatekeeper platforms. Their second recommendation relates to case-by-case remedies. The joint governments propose that access obligations might be imposed to ensure market openness. The purpose of these measures would be to enhance competition by regulating access to relevant inputs, users, and online infrastructures. Finally, they advocate the introduction of hefty, deterring fines.

On 29 October, Martijn Snoep, chairman of the Netherlands Authority for Consumers and Markets (ACM), was quoted having said that the DMA should not lead to the creation of a new regulatory body but should instead seek to bolster and centralise regulatory oversight of big tech within an experienced authority. The proposal to adopt an ex ante code that would impose a list of ‘do’s and don’ts’ on large gatekeeper platforms will need a “strong and central” regulator that can act speedily and legitimately negotiate remedies with ‘big tech’, said Snoep.