Despite the grievances of the “big names”, among which Apple’s rigid position stands out, which in recent days defended the closure of its ecosystem, the approval of the Digital Markets Act (or DMA) which has been discussed for a year is getting closer and closer. The Commission on the Internal Market and Consumer Protection has adopted its position on the DMA, establishing which companies will be considered Gatekeepers and to which sanctions they will meet if they do not move within the space granted to them.
We have reached an important milestone in creating a more open and competitive digital market – said Zdravko Počivalšek, Slovenian Minister of Economic Development and Technology. […] We are proud that Member States have unanimously supported the general approach, thus demonstrating that the EU is strongly committed to ensuring fair competition online. The proposed Digital Markets Act (DMA) shows our willingness and ambition to regulate big tech companies with the hope that it will lead to a global trend.
The EU Council announced that both general guidelines agreed on DMA and DSA (Digital Services Act) will be discussed by the European Parliament in 2022.
CRITERIA AND SANCTIONS FOR ‘GATEKEEPER’
The document approved by the Commission establishes the conditions to end up among the Gatekeepers: these are online platforms that offer services considered “basic” in today’s world – so to speak search engines, social networks, cloud services, app stores, etc. – that in the last three years they have had a turnover of at least € 6.5 billion within the European Economic Area (EEA), and with a minimum base of 45 million active users every month.
Europe wants to stem the phenomenon whereby a small number of actors, precisely Gatekeepers – in Italian goalkeepers -, catalyzing most of the market, end up dictating the rules of the same, instead of with the proposal “Ministers aim to create a level playing field in the digital sector, with clear rights and obligations for large online platforms”, in order to create conditions that can favor “digital equality”.
Here are the main changes to the Commission proposal:
- the Council text shortens deadlines and improves the criteria for designating gatekeepers
- the text includes an annex defining the “active end users” and “active commercial users”
- Improvements have been made to clarify the structure and scope of the obligations and ensure that they are adapted to future needs
- the text proposes a new obligation that strengthens the right of end users to unsubscribe from basic platform services
- the provisions on the regulatory dialogue have been improved to ensure that the European Commission’s discretion to participate in the dialogue is used appropriately
- to avoid fragmentation of the internal market, the text confirms that the European Commission is the only authority responsible for applying the regulation. Member States can empower national competition authorities to initiate investigations into possible infringements and transmit their results to the European Commission.
Gatekeepers who will not move within the poles set by the DMA may be sanctioned up to 10% of their turnover world.
‘IF ILLEGAL OFFLINE, ALSO ONLINE’
The Council also defined its general approach on the proposed law on Digital Services Act (DSA), which was created with the aim of protecting users from illegal goods, content, or services, thus ending up protecting fundamental rights online. The principle that moved the Council in the elaboration appears to be linear and acceptable: “What is illegal offline should also be illegal online”.
The element that unites the rules proposed in the context of the DSA is the asymmetry: the guiding principle is that the largest and therefore the most influential services on society should be burdened with more restrictive provisions than for those of smaller size. The following are the main changes to the Commission proposal regarding the DSA:
- The text clarifies and strengthens the provisions on the scope of the digital services law
- The Council text explicitly includes online search engines
- The Council text provides for greater protection of minors online
- Council text adds obligations for online marketplaces and online search engines, as well as stricter rules for very large online platforms
- The Council text extends the obligation to notify suspected serious crimes to all hosting services and not just online platforms
- To monitor compliance with the obligations under the Digital Services Act, the text contains more detailed provisions on the “compliance check function” that very large online platforms or very large online search engines must set up
- The text allows national authorities to place orders for illegal content online directly to service providers and imposes an obligation on them to keep national authorities informed about their actions (obligation to provide feedback)
- As regards effective application, the Council text preserves the country of origin principle and at the same time confers exclusive enforcement powers on the European Commission, which allow it to deal with systemic violations committed by very large online platforms or by very large online search engine
