Digital Regulation: Publication of the Digital Markets Act

The Digital Markets Act ("DMA"), a European regulation aimed at making digital markets more open and competitive, has just been published in the OJEU (12 October 2022).

The DMA establishes a set of objective criteria to qualify a large online platform as a "gatekeeper". Companies qualified as such (mainly, but not only, GAFAMs), which are therefore in a position of "gatekeeper" vis-à-vis a large number of users, will have to comply with the obligations of the DMA, namely:

- to ensure the right of users to unsubscribe from the services of the core platform under conditions similar to subscription,
- for the most important software (e.g. web browser): not imposing such software by default when installing the operating system,
- ensuring interoperability of core functionality their instant messaging services,
- allowing app developers fair access to ancillary smartphone functionality (e.g., NFC chip),
- giving vendors access to their marketing or advertising performance data on the platform, and
- informing the European Commission of acquisitions and mergers they make.

In contrast, gatekeepers will no longer be able to:
- rank their own products or services more favorably than those of other market players,
- reuse personal data collected during one service for the purposes of another service,
- establish unfair terms for business users,
- pre-install certain software applications,
- require app developers to use certain services (payment system or identity provider, for example) in order to be listed in app stores.

The European Commission will have exclusive competence to enforce the DMA. It is regrettable that a complaint system open to companies, similar to the one that exists in competition law, has not been provided for. Nevertheless, litigation could be initiated not only by the "access controllers" who could challenge their designation as such, but also by third-party companies that could sue the "access controllers" before the national courts in the event of non-compliance with the DMA by the latter. Interactions with competition law litigation are also to be expected.

There is still a long way to go before the DMA is fully effective: although it will enter into force on November 1, the bulk of its provisions will only be applicable as of May 1, 2023. From that date, the process of designating "access controllers" will begin, which may take several months before the DMA's obligations are made effective.

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