chevron-down Created with Sketch Beta.


EU Digital Markets Act: A Discussion

Nina Jayne Carroll

EU Digital Markets Act: A Discussion
d3sign via Getty Images

The introduction of the Digital Markets Act (DMA) has served as a landmark development in the legislative footprint of the European Commission (EC) in its aspirations to regulate technology markets and the digital economy. Specifically, to regulate interactions between some of the largest market players in this space with consumers. This update provides a brief overview of the current status of, and developments under the DMA and discusses the DMA’s on-going impact on digital markets in Europe and beyond from a privacy perspective.

Under the DMA, certain companies providing important services that act as a gateway between businesses and consumers, so called “gatekeepers”, will fall subject to a myriad of obligations regarding their future conduct on the digital economy. To be designated as a gatekeeper, a company must satisfy three cumulative requirements, namely: (a) it has a significant impact on the internal market; (b) provides a core platform service(s) (CPS(s)) that serves as a gateway for business users to reach end users; and (c) it currently holds (or is foreseeable that it will hold) an entrenched and durable market position. The DMA covers 10 types of CPS, namely; online intermediation services, online search engines, online social networking services, video-sharing platform services, number-independent interpersonal communication services, operating systems, cloud computing services, advertising services, web browsers and virtual assistants.

On September 6, 2023, following an investigation into various digital economy market players, the European Commission (EC) designated a number of companies providing CPSs as “gatekeepers” under the DMA. This included a number of the largest tech platforms operating within the EU. More recently, in October 2023, the EC published a number of summary decisions setting out the rationale for its designation decisions, outlining how CPS as a concept will be considered. From such decisions, the EC has made it clear that every service offered by ‘Big Tech’ platforms will not necessarily fall to be considered as a single service under the DMA. Rather, certain services such as advertising and messaging services for example can be considered as separate CPSs. Various obligations will attach to “gatekeepers”, for which they will have to be compliant within 6 months from the above date of designation. Such obligations span tighter criteria concerning consent for targeted marketing, fair, reasonable and non-discriminatory app store accessibility, certain interoperability considerations and a prohibition on self-preferencing with respect of certain customer rankings to name a few.

A number of appeals by certain tech firms have since taken place, following the above designations. While the outcome of such appeals remains uncertain, on a recent visit to Silicon Valley, Margrethe Vestager, EU's Digital Commissioner, stressed that “of course, it's important that the court is there in order to settle these challenges, but for the companies in question, it doesn't have a suspensory effect. They will have to work on how to comply”.

It was also announced in October 2023, that a tender was issued by the EC, under the DMA, to commission a study pertaining to mobile ecosystems. This study has been noted to assist with the on-going enforcement of the DMA. When the study is completed, it is believed this will “demonstrate an in-depth understanding of current trends, emerging technologies, and best practices in the field of mobile ecosystems security”. Under this study, the EC is interested in issues that may arise with designated gatekeepers on this market, notably with gatekeepers who operate a closed mobile ecosystem.

The DMA, and also the Digital Services Act, is a display of an on-going interest the EC has taken in growing and nascent technologies, a trend set to continue in Brussels. While mobile ecosystems and their development is the latest focus of the EC in the cloud infrastructure space, social media, search functions and artificial intelligence are sectors that have also garnered heightened regulatory interest in the EU. Ensuring that the behaviour of large market players that operate on digital markets is monitored vis-á-vis smaller market players and consumers, is a clear goal the EC is seeking to promote through the DMA.

As the deadline of 6 March fast approaches for “gatekeepers” to ensure they are compliant with their obligations under the DMA, a “watch and wait” approach is being taken by commentators and international regulators alike to see how this landmark piece of legislation shapes the future of tech regulation both within the EU and the influence it is set to have on the global stage.