Recommendations for the Effective and Proportionate DMA Implementation

The Digital Markets Act (DMA) entered into force on 1 November 2022 and its rules will apply from 2 May 2023. The Commission should designate, for the first time, the gatekeepers subjected to the rules by September 2023, and those platforms should comply with prohibitions and obligations in March 2024.

Building on a series of issue papers as well as previous work done by CERRE on the DMA, this paper, coordinated by CERRE Academic Director Alexandre de Streel, will provide points of attention and recommendations on how to implement the DMA. Recommendations are divided into three sections in the paper: gatekeeper designation, obligations, and institutional design.

RECOMMENDATIONS FOR GATEKEEPER DESIGNATION

• Every decision to regulate a Core Platform Service (CPS) will require a designation that the undertaking in question is a gatekeeper in relation to the provision of that specific service;
• Evidential standards used to exclude a firm that otherwise meets the quantitative thresholds for gatekeeper designation should be the same as those used to include a firm that otherwise does not meet the same thresholds;
• And the application of Annex A of the DMA will need to be clarified through specific cases and firms should not be able to abuse this provision to evade designation.

RECOMMENDATIONS TO INTERPRET AND IMPLEMENT THE DMA OBLIGATIONS

• Material and geographical scope of application needs to be clarified in terms of several obligations, and those clarifications need to be consistent with the existing EU digital acquis;
• The precise meaning of some obligations need to be defined, for instance, on how many alternatives need to be included in the default setting or how many access points to switch a default should be offered by the gatekeeper;
• And how compliance with the obligation is assessed and demonstrated by the gatekeepers have to be further explained – through, for example, an agreement between the Commission, the gatekeepers, and the other main stakeholders on a set of quantitative measurements.

RECOMMENDATIONS FOR EFFECTIVE PROCESS AND INSTITUTIONAL DESIGN

• Compliance reports should set out both how the gatekeeper proposes to modify its conduct so as to comply as well as a demonstration that these measures are likely to prove effective. These reports should be living instruments that evolve with time and technological changes;
• An approach-based method on responsive regulation should be deployed, meaning that the Commission should be responsive to the actions of the gatekeeper and either facilitate compliance if the gatekeeper wishes to comply, or apply increasingly punitive sanctions to secure compliance;
• The Commission should monitor the evolution of the market conditions, particularly the quantitative measurements on the impact of obligations, to provide for an adaptative enforcement.

This recommendation paper is part of a bigger CERRE project entitled ‘Effective and Proportionate Implementation of the DMA’ which is a collection of nine papers focusing on the trade-offs around the different possible interpretations of the regulation. We encourage you to read our previous publications on the designation of gatekeepers and the regulatory principles, around the different groups of DMA obligations, and on the institutional and procedural matters related to the implementation of the act.