31 May 2021
Nordic position on the DMA proposal
The emergence of the platform economy has in many ways benefited the commerce
sector, by allowing also smaller companies to reach customers globally. At the same
time companies are becoming more and more dependent on a few global platforms
which provide services such as payment processing, advertising, logistics, cloud
services, and not least online marketplaces. The unparalleled success of these new
business models is not problematic by default, but it becomes an issue when the
platforms use their size to impose unfair and restrictive practices, on their business
users, i.e., our members.
The Nordic commerce sector therefore welcomes the Commission’s proposal for a
Digital Markets Act (DMA) and strongly support the aim of ensuring a fair and
contestable digital market.
In particular, we welcome the fact that the proposal is a regulation (and not a
directive) as it will become directly applicable in the member states and thus ensure
a high level of harmonisation, targets specific practices shown by member state and
EU authorities to be problematic, and allows for the designation of gatekeepers to
be supported by qualitative elements when needed.
To ensure that the final DMA is a truly workable and self-executing regulation, we
urge the co-legislators to strengthen a few key areas of the proposal, which may
benefit from additional attention. These key areas include:
• Terms, definitions and obligations, which should be strengthened and
clarified, to prevent any misunderstanding or misuse by the relevant market
• Relevance and proportionally, which must be ensured, both when
designating gatekeepers and when imposing obligations.
• Overlap with existing EU legislation, which must be avoided to ensure legal
certainty for both gatekeepers, business users and end users.
Furthermore, we are concerned that whilst the DMA is not defined as competition
law, it is blurring the lines between competition law and internal market
regulation. As such, the DMA should remain a targeted solution for this specific
situation considering the rapidly changing digital environment.
Designation as a gatekeeper
The key to unlocking the obligations of the DMA, are the criteria for designating
gatekeepers. As such, the criteria must be objective, easily ascertainable and
considerate of the difference between the different core platform services (CPS).
We therefore welcome the designation process in Article 3 which allows for the
initial use of quantitative thresholds, to be supported by qualitative elements where
We would however encourage the co-legislators to include additional relevant
qualitative elements to the list, such as the user’s ability to multi-home and the
gatekeepers market share.
Furthermore, we are concerned that the current quantitative thresholds in Article
3(2)(b) does not sufficiently take into account the differences between CPSs, when
it comes to determining whether a CPS does in fact serve as an important gateway
for business users to reach end users.
The presumption in Article 3(2)(b) is, that a CPS which is present in more than 3
member states and which has in excess of 45 million monthly active end users and
10.000 yearly active business users established or located within the EU, will fulfil
the “important gateway” requirement for being designated a gatekeeper.
To our knowledge, there is currently no industry standard of when a user is “active”,
as the interaction required between a user and a CPS, for that user to be categorised
as active, may, to our understanding, be different from CPS to CPS, or even from
company to company. Due to the significance of this definition in complying with
the DMA, this definition should not be left to the gatekeepers or the Commission
(via delegated acts). We therefore encourage the co-legislators to further clarify
what is meant by “active”, preferably with respect to each of the eight CPSs.
By that same token, we also encourage the co-legislators to consider whether the
current presumption of 45 million monthly active end users and 10.000 yearly
active business users, is proportionate when applied to all providers of all the CPSs
or if the presumptions could benefit from being differentiated with respect to each
of the CPSs.
Obligations for Gatekeepers
Article 5 and 6 contains 18 obligations which gatekeepers either must or most not
apply. We welcome the inclusion of several of these obligations as we believe these
will benefit our members, not at least smaller retailers who are particularly
dependent on the gatekeepers to reach their consumers.
We are however generally concerned by the application of such lists, as they come
with certain drawbacks, including the risk of being disproportionate if directly
applicable to all gatekeepers and CPS, as well as the risk of quickly becoming
irrelevant and obsolete, or at least requiring very frequent updates.
We therefore encourage the co-legislator to clarify the scope and application of the
obligations, and to ensure that these are applied only where relevant and
A possibility could be a combination of the two ideas proposed by BEREC in their
11 March 2021 opinion on the DMA proposal and by the Commissions Economic
Experts in the JRC rapport on the DMA, to create a black and a grey list of
The black list would include obligations which are clearly anti-competitive and as
such directly applicable to all gatekeepers across all CPSs, without adaptation. One
such obligation could be the current obligation in Article 5(d) requiring that
gatekeepers may not prevent or restrict business users from raising issues with any
relevant public authority relating to any practice of gatekeepers.
The grey list would include obligations which are presumed anticompetitive and
thus only directly applicable to gatekeeper(s) providing a specific CPS and/or
subject to a pro-competitive defence with the burden of proof being on the
Furthermore, we firmly believe that delegated acts should only be used for
technical updates, while the addition of new business practices is of a political
nature and should therefore follow the normal legislative procedure. We are
therefore unable to support the approach suggested in Article 10 of granting the
Commission the mandate to update the lists through delegated acts.
Comments on specific obligations:
Point (b) – Most Favoured Nation Clauses
We welcome that the proposal contains a ban on so called broad price parity
clauses. This means that Gatekeepers will not be able to stop ecommerce
companies from offering the same goods at different terms and prices on other
platforms. This will increase competition and benefit both business users and
Point (c) – Promotion of offers outside the core platform
With a similar rational as the point above we welcome 5c as this will enable
business users to conclude contracts with consumers outside the core platform,
even if the first point of contact between seller and buyer was on the platform.
Point (d) – Complaint prohibition
We strongly agree with this obligation which ensures that business users, without
risk of retaliation, always have the possibility to complain to relevant authorities in
case they feel that the platform is not fulfilling their part of the contract.
Point (a) – Use of data in dual role situations
We welcome this provision that deals with a situation where the platform acts both
as a platform and as a seller. We welcome a ban on using data generated by the
business to compete against that same user as this constitute an unfair advantage
for the retail part of the platform.
Point (d) – Self-preferential ranking
We believe that self-preferencing should be possible under certain conditions.
However, it should always be made in a transparent manner.
Furthermore, the current wording requires the gatekeeper to refrain from treating
its own products/services more favourably and, at the same time, to apply fair and
non-discretionary conditions to it’s ranking. Presumably, if fair and non-
discretionary conditions are used, then it would not be possible for the gatekeeper
to simultaneously treat its own products/services more favourably. As such, the
wording of the obligation could benefit from a clarification.
Point (i) - Businesses can access their own data
We welcome this provision that requires gatekeepers to allow their business
customers to access the data about their sales, customers, and other commercial
activity and that this access must be high-quality, continuous and realtime.
Chief Policy Adviser, EU Affairs
and Corporate Law
+46 73 693 8382
Lasse Hamilton Heidemann
Head of EU- and International
Head of Policy / Commerce
+47 918 71 526
+45 3374 6595