In December 2020, the EU Commission presented a new standard for large platforms that act as gatekeepers in an attempt to create a fairer and more competitive market for online platforms in the EU. Under the new Digital Markets Act (DMA) platforms will have to comply with a set of anti-monopoly obligations, including rules on "preferential ranking" of platforms' own offerings in their search results.
Our first take was that there’s a lot to like in this draft proposal, but a lot of room for improvement. In our 2021 response to the Commission's consultation on the DMA, we gave additional feedback with concrete suggestions on how the EU Parliament and Council can improve the document:
Scope and Design
We support the DMA’s aim to create a fairer and more competitive market for online platforms by setting out a list of do’s and don’ts “gatekeeper platforms” must comply with. In particular, we strongly support regulation that is self-executing. New obligations, whether they be applicable obligations or obligations susceptible of being further specified, must be drafted in light of the need to avoid the occurrence of user and consumer harm. As proposed by the DMA, such rules should be accompanied by effective penalties to ensure compliance as well as structural remedies for platforms that can’t or won’t stop engaging in monopolistic behavior. It is a very important feature of the DMA that it contains a provision on future proofing: new anticompetitive practices will occur in the future and the lists must be updated in order for the DMA to stay relevant.
We appreciate several provisions, in particular the ban on mixing data ((Art 5(a)), the ban on forced single sign-ons (Article 5(e)), the ban on cross-tying (Art 5(f)) and the ban on lock-ins (Art 6(e)).
However, the DMA proposal misses the mark on several key issues. In general terms, we are concerned that the proposal mainly focuses on the relationship between core platforms and their business users whilst the end-user perspective is only a side-issue. As put forward in a joint letter submitted by civil society organizations, more needs to be done to create the conditions that foster the emergence of new platforms. The gatekeeper’s impact on end users’ rights also justifies a stronger inclusion of civil society groups, which can inform the Commission's decision-making process. Those groups should be granted a right to be heard before a decision is taken that affects their interests (to be included in Art 30) and the right to request the opening of a market investigation under Art 33.
A key element that could reduce the dependence of users on a few gatekeeper platforms is interoperability. Interoperability in ancillary services such as payment processing is nice to have, but not good enough. Art 6(f) under the DMA proposal will have the result that, for example, Facebook might have to let a competitor offer its own payment processing for Oculus apps, but not offer a competing social media network that interoperates with Facebook. Only a general interoperability obligation for platforms’ core services will foster innovation and put users back in control of their data, privacy, and online experience. We appreciate that the EU Commission introduced a real-time data portability mandate into the DMA under which platforms must provide effective tools that facilitate the exercise of data portability, and continuously and in real-time. However, data portability is only the low-hanging fruit of interoperability, as users can’t take advantage of it unless they have and keep an account on the gatekeeper service (and are thus still subject to potentially abusive terms of service).