The Digital Markets Act (DMA)
1. We agree with the intentions of the DMA to harmonise rules to ensure
contestable and fair markets in the digital space where gatekeepers
2. No contradiction between the DMA and ex-ante rules enacted by
Member States should exist, it should remain without prejudice to
existing EU Competition Law. The DMA should apply and be enforced
3. Appropriate and clear criteria are needed to legally define what a
gatekeeper is to legally understand who is and who could potentially
become a gatekeeper. We support qualitative and quantitative
designation in this regard.
4. We support the goals of obligations listed in Art 5 & 6. Notably those
that ensure: fair access and use of data, an end to practices with lock-
in/entry barrier effects or self-preferencing/discriminatory access. We
support achieving greater device neutrality, interoperability, effective
data portability and more online advertising transparency.
5. We believe that Art 5 obligations should apply immediately without a
Commission dialogue. Art 6 obligations that are susceptible of being
further specified should have the option of an efficient Commission
6. We support the use of Art 9 be utilised in specific circumstances
where an overriding public interest exists. This should be based on a
clear description of the overriding public interest.
AVENUE DE CORTENBERGH 168 – BE 1000 BRUSSELS – BELGIUM
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EU Transparency register 3978240953-79
Tech companies have rapidly grown in the past decade. Some have been even more
successful than others, what is now known as “big-tech”, has substantially increased its
market capitalisation towards the end of 2019. This impressive growth has not only been
due to success among consumers but also among business users, bringing both benefits
as a result. At the same time, they have raised many issues related to fairness and
contestability of markets, particularly as businesses now increasingly depend on the
variety of digital services that they offer.
As stated in the DMA explanatory memorandum, “Large platforms have emerged
benefitting from characteristics of the sector such as strong network effects, often
embedded in their own platform ecosystems, and these platforms represent key
structuring elements of today’s digital economy, intermediating the majority of
transactions between end users and business users”.1
Against this backdrop, the issue
of platforms acting as gatekeepers, is an important one: it entails defining them precisely
to avoid side-effects which would penalise other businesses. A dedicated framework
could ensure a fair and contestable online environment to reach a better functioning
Digital Single Market. The Platform Observatory
explains that, the 50 top online platforms represent over 60%
of website traffic across the EU. Towards the end of 2020, it was estimated that 59% of
European companies derived more than 25% of their revenues from e-commerce. Nearly
30% of all of Europe’s hotel bookings were performed via online platforms. In fact, 30%
of global website traffic is dedicated solely to hospitality, social media and e-commerce
platforms. Overall, around 61% of businesses users consider their success highly or
completely dependent on online platforms. This trend continues to increase throughout
the COVID-19 crisis and impact of local lockdown measures. The consolidation
of these digital services is increasing. Around 40% of all business
acquisitions that took place between 2013 and 2020 involved online platforms.
A limited number of platforms are considered to already be in this “gatekeeper” position;
however, this does not automatically mean they are systematically abusing it. However,
their size and systemic economic importance are so high and develop so rapidly that we
need harmonised and future-proof measures to assess whether these markets remain
fair, effective and contestable overtime. If constructed and applied properly, the DMA will
benefit consumers, business users, providers of digital services and the wider EU
economy. We share the Commission’s ambition to ensure fair and contestable markets in
the platform economy. As a key societal stakeholder, BusinessEurope outlines its
reaction to the Commission proposal for the DMA, below:
We agree with the intentions of the proposal to set up and harmonise rules to ensure
contestable and fair markets in the EU digital space where gatekeepers are present. If
achieved, this should result in more choice, greater opportunities for competitors,
consumers and business users alike, as well as productivity, innovation, competitive
gains and competitive and fair prices.
1 COM(2020) 842 final,
While the DMA refers to harmonisation as an objective, it is also important that the DMA
includes provisions to make this actionable in relation to preclusion of separate national
rules regulating for the same substantial issues. It needs to be ensured that there is no
contradiction between the DMA and ex-ante rules enacted by Member States in this area
as well as applying without prejudice to existing EU Competition Law. We believe Art
1(6) could be strengthened in this regard.
Due to the globalised nature of the digital economy, we also agree that the DMA should
apply and therefore be enforced extraterritorially to digital platforms based outside of
Europe but offering their services to business users and end users based within it.
However, it is important for the stability of digital markets to define a legally certain
Regulation that enables clear and predictable rules.
It is also important to note that the EU is not alone in looking to adapt the legislative
framework in relation to digital markets to ensure fairness and contestability. As new
digital regulatory models are developed globally, there is a pressing need for greater
dialogue and collaboration amongst 3rd countries to support best practice-sharing and
identify if any areas of divergence exist.
Appropriate and clear criteria are needed to legally define what a gatekeeper is.
Participants and stakeholders of digital markets need to understand who is and who
could potentially become a gatekeeper. When defining these thresholds, we should avoid
the inclusion of smaller digital services that do not pose gatekeeper issues (eg. small
and specific industrial platforms that have different market realities to the wider platform
We agree that gatekeeper status can be determined with the qualitative criteria in Art
3(1) and the quantitative thresholds laid out on in Art 3(2). This should be used to instil
with legal clarity who are gatekeepers in the market.
We highlight that the definition of “Business user” (Art 2(17)) includes both natural and
legal persons just as the definition of “End user(s)” (Art 2(16)). While we agree that both
definitions are needed, for legal clarity, we question why a distinction between both
definitions has not been made? What constitutes an “active user” could also aid legal
Determining what a core platform service acting as an “important gateway for business
users to reach end users” under Art 3(1)(b) should ensure those providing a merely
technical service are not caught up in being designated a gatekeeper. The focus of the
DMA should be on those with a weight of importance for market access where
businesses will meet end users and therefore act as a true digital gateway. The nature
of a digital intermediary in bringing those two sides together should therefore be more
clearly defined (eg. to conceptually ensure they are a gatekeeper).
We support the need for Art 3(6) to designate a business with gatekeeper status in even
when they are not fulfilling the clear quantitative thresholds of Art 3(2), in accordance
with Art 15. To ensure effective use of Art 3(6), we believe a link to the qualitative criteria
laid out in Art 3(1) should be made. In support of designating gatekeepers using
qualitative criteria, we remind the Commission that legal certainty remains a key principle
of the DMA. These decisions should be adopted with caution and not be susceptible to
political influence. Therefore, these decisions should be based on evidence.
Art 3(6) could be useful in relation to margin cases and keep the DMA effective in
practice. Therefore, it could apply to potential gatekeepers that have considerable
economic power, are sufficiently large and dominant, have paramount significance and
raise fairness and contestability concerns.
In support of legal certainty, guidelines and a methodology to support the use of the
power to designate a gatekeeper without fulfilling quantitative thresholds of Art 3(2)
before the full application of the DMA applies would clarify its use (particularly in relation
to concepts of “other structural market characteristics” which currently remain too vague).
Suggestions recently made by a panel of economic experts on the DMA in relation to
“objectively measurable proxies”2 could be a good starting reference point to support
these guidelines and methodology, particularly in relation to dependence on referral
traffic and the extent of multi-homing. However, the publication of guidelines or
methodology in support of Art 3(6) should not delay the entry into force of the DMA.
If the Regulator needs the ability for more flexible application of the thresholds in Art 3(2)
as these business models typically progress rapidly, then the powers granted in Art 3(5),
to regularly adjust this Regulation to market realities are sufficient and could also be
useful in relation to Art 5 & 6 obligations (see below)
. However, substantial legislative
changes should not be implemented via delegated acts, but rather by ordinary legislative
We agree that gatekeeper status should be determined based on the nature of the overall
undertaking. The Regulator should use Art 3(7) to determine which services offered by
that undertaking can be viewed as “core services” pursuant to fulfilling specific criteria in
Art 3(2)(b). These “core services” should be listed by the Regulator. Many potential
gatekeepers have gatekeeper impacts in certain services markets but not others. We
should only place obligations on the relevant core services that are important gateways
for business users to reach end users.
We support the goals of obligations listed in Art 5 & 6. Notably the obligations that ensure:
fair access and use of data, an end to practices with lock-in/entry barrier effects or self-
preferencing/discriminatory access. We also support achieving greater device neutrality,
interoperability, effective data portability and more online advertising transparency. To
ensure proportionate outcomes and effective results, the impact of obligations on user
privacy, business intellectual property, cybersecurity and integrity of technologies should
be considered when determining what is expected from gatekeepers.
However, some of these obligations take specific market situations and business models
into account but will potentially be applied to a broad range of services and businesses.
This could make obligations too rigid in their application and inevitably have unintended
We believe the clearly blacklisted Art 5 obligations should apply immediately to ensure
gatekeeper compliance without the need for a dialogue with the Commission. Further to
this, we support the use of Art 7(2) to determine how Art 6 obligations that are susceptible
of being further specified can be efficiently complied with by the gatekeeper.
2 Pg 9, the EU Digital Markets Act,
the Joint Research Centre (2021)
Enabling the use of an efficient dialogue in relation to Art 6 should seek to ensure clear
and efficient gatekeeper compliance. It should be entered to in good faith and not be
used to try to negotiate lower obligations for the gatekeeper or result in evasion or an
unjustified delay of implementing them in practice. In this regard, we support the
Commission having the final decision in relation to the dialogue and ability to launch
further formal investigations.
We also support this period of dialogue being time limited so that Art 6 obligations always
apply, regardless of the outcome of the dialogue, following 6 months of gatekeeper
designation, as supported by Art 3(8). At the same time, the gatekeeper should be able
to waive the need for dialogue in relation to certain obligations if they believe their
intended remedy of compliance is sufficient.
While each Art 6 obligation should apply across the board, this efficient dialogue should
increase mutual knowledge, trust and ensure better compliance as the technical
implications that each obligation could have on those gatekeeper core services who will
implement them could be demonstrable to the regulator. This procedure would also be
an opportunity for the Regulator to consider the implications of solutions as to what each
obligation can achieve and how it impacts business users (particularly SME’s) and
consumers. This will support clearer market conditions and therefore investment in the
platform economy and enable these obligations to be applied to the well documented
diversity of Europe’s digital economy. In this regard, it would also be useful to take note
of other interested parties in this efficient dialogue, particularly the business users that
utilise the gatekeepers core services. This would also offer gatekeepers the ability to
explain how other legal frameworks they are subject to may impact the application of
these obligations and overall diminish the prospect of further appeals in courts.
While we support all Art 5 & 6 obligations we would like to highlight potential issues to
which policy makers could add further legal clarity to. In relation to Art 5(b) it is unclear
whether business users can offer different prices and conditions on their own website.
This seems to be the spirit of the measure and that restricting business users to platforms
only does not seem to be the goal, however, this should be more explicitly drafted in the
final text, otherwise, we are simply swapping one lock-in measure for another. In relation
to Art 6(1)(i), it is unclear as to whether this would mean that gatekeepers must share
data with one another? While we support the spirit of this obligation so that business
users gain more access to data generated in the context of their operations, we would
like to highlight the need to comply with the GDPR and general support for voluntary data
sharing practices where fairness and contestability issues, in light DMA application, are
not found to arise.
We believe that the use of powers in Art 10 should be exercised in a limited, rapid,
effective and punctual manner to ensure legal certainty. Just as Art 3 requires clear
criteria in terms of designating gatekeepers, businesses need clear and stable
commitments to fulfil once defined as a gatekeeper. However, we understand the need
for future-proof and flexible commitments. Overall, determination of the obligations and
designation of gatekeepers should not remain totally fluid, otherwise crucial elements of
this proposal will not be legally certain.
SUSPENSION & EXEMPTION
We support the possibility to use Art 9 in specific circumstances where an overriding
public interest exists. This should be based on a clear description of the overriding public
interest laid out in Art9 and not be open to Member State or Regulator flexibility or abuse.
We highlight that Art 9(2)(a) “public morality” could need further improvement by policy
makers to ensure legal certainty.
The procedure to request or apply should follow that mentioned in Art 32(4). It is clear,
particularly due to recent events such as COVID-19, there may be situations where
obligations of this Regulation could be suspended, at least until the public interest issue
has subsided, for services to be delivered if they are helping to achieve that public
interest goals as provided for in Art 9(2).
Although Art 8 is subject to strict conditions and only permissible upon Commission
agreement we are concerned that potentially permitting any gatekeeper or core service
of a gatekeeper to suspend itself in whole or part from these obligations as they endanger
their “economic viability” would send the wrong message to the digital single market. We
would be stating that unfair practices can continue if the business model that bases itself
on such practices and would lose its economic viability otherwise. However, if policy
makers intend to go forward with this provision we would certainly request legal clarity
as to how “economic viability” can be determined.
INVESTIGATION & ENFORCEMENT
We support the use of existing competition possibilities, such as information requests,
interviews and interim measures limited in time in order for the Regulator to effectively
enforce this Regulation. But it should be clear that the Regulator has a reason to
investigate before it uses the powers listed in Chapter V and uses these powers on the
principle of proportionality which while included in the Recitals, should be used in the
main body of this Chapter.
While we want an efficient framework we also believe that proportionate procedures
should be followed. The right to be heard within Art 30 will be vital in ensuring
proportionality. Therefore, the deadline of 14 days should be extendable, if requested by
the gatekeeper, undertaking or association of undertakings, and the extension granted
at the discretion of the regulator, on the basis of the complexity of obligations.
It is also unclear whether these investigative powers apply only to gatekeepers or also
3rd parties. We remain concerned with the impact of these investigations on the rest of
the supply chain. Particularly when enforcement measures could then be used for
mistaken, untimely, or incomplete information. Business user resources, particularly
among SMEs are low and should therefore be treated proportionally if they are involved
in an investigative procedure. We therefore believe Chapter V should clarify what
responsibilities are expected from 3rd parties during these investigative procedures which
currently remain unclear. The Commission should use information requests to non-
gatekeepers with caution, particularly due to the limited resources these businesses
have. Requests for access to databases and algorithms should be limited to the
gatekeepers themselves and not extend to 3rd parties.
We also note the recent European Court of Auditors report3 in relation to the lack of
resources available to the Commission for competition enforcement of competition
concerns, let alone adding this ex-ante Regulation on top. We should not underestimate
the task at hand, particularly considering the timelines outlined throughout the proposal.
Following entry into force, the Commission will be required to identify which undertakings
that provide core platform services are within the scope of the Regulation and monitor
compliance of 18 listed obligations. In the longer term, the Commission should have the
resources available to develop a detailed understanding of the markets they are
3 Special Report No 24/2020:
the Commission’s EU merger control and antitrust proceedings: a need to
scale up market oversight (2020)
regulating and the business models that are at play in those markets. We therefore
consider that more resources should be allocated to enforce the DMA.
Furthermore, although we strongly support centralised supervision and enforcement of
the DMA at EU level, national competition authorities can play an useful supporting role.
They have an important signalling function and easier access for businesses to raise
issues related to the DMA. We therefore believe that the involvement of national
competition authorities should be included in the Digital Markets Act (eg. by including
them in the Digital Advisory Committee under Art 32 or via a reference to the European
Competition Network (ECN)). In this sense, we believe that Member states should play
a more important role in the enforcement of the proposal to ensure its effectiveness.
Activities such as complaint handling, remedy compliance and consultation undertaking
could be carried out at Member State level. This would allow to free Commission
resources for the more strategic tasks required by the DMA. We also ask for the
Commission for further clarity as to how the Digital Advisory Committee will otherwise
cooperate with the ECN.
Finally, we would like to highlight the differences between the fines that can be utilised
to enforce the DMA, at 10% of turnover under Art 26(1), when compared to those being
proposed under the DSA at no more than 6% of turnover (Art 42) and existing under the
GDPR, at 4% of turnover (Art 83).
* * *