BRÈVE
La Commission européenne vise les Big Tech avec sa proposition de législation sur les marchés numériques / The European Commission targets gatekeepers with its proposal for a Digital Markets Act
Thomas Tombal
Le 15 décembre 2020, la Commission a adopté une proposition de législation sur les marchés numériques, qui vise à garantir que ceux-ci demeurent contestables et équitables, en remédiant aux pratiques déloyales des grandes plateformes. Son champ d'application est limité aux services de plateforme essentiels fournis par des contrôleurs d’accès.
The Commission adopted on 15 December 2020 a proposal for a Digital Markets Act. It aims at ensuring contestable and fair digital markets, by addressing market failures and large platforms’ unfair conduct in order to increase innovation and consumer choice. Its scope is limited to core platform services provided by gatekeepers.
As the second step of its European Strategy for data, the Commission has adopted, on 15 December 2020, its Digital Service Package, composed of proposals for a Digital Services Act and a Digital Markets Act. While the DSA deals with platform liability and content moderation, the DMA aims at ensuring contestable and fair digital markets. To do so, it aims at addressing market failures and large platforms’ unfair conduct in order to increase innovation and consumer choice in the digital sector.
To avoid overburdening smaller platforms, the scope of the DMA is limited to core platform services (listed in Art. 2.2, such as search engines, social media, video platforms…) provided by gatekeepers (Art. 1.2). A platform will meet the gatekeeper threshold if it fulfils three cumulative criteria: it has a significant impact on the internal market; it operates a core platform service which serves as an important gateway for business users to reach end users; and it enjoys an entrenched and durable position or it is foreseeable that it will enjoy such a position in the near future (Art. 3.1). In order to streamline this assessment, quantitative “presumption thresholds” have been set: the platform has an annual EEA turnover equal to or above 6.5 billion € in the last 3 years and it has more than 45 million monthly active European end users and more than 10 000 yearly active business users in the last 3 years (Art. 3.2).
If a platform meets all of these quantitative “presumption thresholds”, it will have to notify the Commission thereof (Art. 3.3). However, the Commission can also decide, on the basis of a market investigation, that a platform meets the gatekeeper threshold, even if it does not satisfy each of these quantitative thresholds, by considering qualitative indicators listed in Art. 3.6. As digital markets are dynamic and evolutive, the Commission will have to regularly review, at least every 2 years, the list of gatekeepers (Art. 4.2).
Gatekeepers will have to comply with Arts. 5 and 6, which contain obligations (some forms of data sharing and interoperability), as well as prohibited practices that limit contestability or that are unfair (some forms of tying, self-preferencing and personal data combination). The measures implemented by the gatekeeper will have to be effective and proportionate (Art. 7). The Commission will monitor their effective implementation and it may issue non-compliance or fining decisions in case of a breach of these provisions (Arts. 24 to 26). Arts. 5 and 6 can be updated by the Commission, on the basis of delegated acts, in order to address new practices that might emerge and that might be unfair or limit the contestability of digital markets (Art. 10).
Finally, the possibility for the Commission to launch market investigations has been integrated in the DMA, although in a downgraded form compared to the New Competition Tool proposal. The Commission can first conduct a market investigation in order to examine whether a provider of core platform services should be designated as a gatekeeper (Art. 15). Second, it can conduct a market investigation to determine whether a gatekeeper has systematically infringed the provisions laid down in Arts. 5 and 6 and has further strengthened or extended its gatekeeper position (Art. 15). Third, it may conduct a market investigation to examine whether the list of core platform services or the provisions contained in Arts. 5 and 6 need to be adapted (Art. 17).