On 24 March 2022, the French Presidency of the Council found an agreement with the European Parliament representatives on the new EU Digital Markets Act (DMA). This new legislation aims to make the digital sector fairer and more competitive through a set of obligations and prohibitions imposed on very large platforms considered as ‘gatekeepers’.
The Council and the European Parliament agreed that the Digital Markets Act will automatically apply to very large platforms that meet the following cumulative quantitative criteria:
- provide a service in at last three Member States; and
- reaching an annual turnover of at least €7,5 billion within the European Union in the past three years or have a market valuation of at least €75 billion; and
- have at least 45 million monthly end users and at least 10.000 business users established in the EU.
The category of ‘emerging gatekeeper’ is also provided for, which will enable the Commission to impose certain obligations on the very large platforms whose competitive position is proven but not yet sustainable. Moreover, a new market investigation tool is created, allowing the Commission to use it to identify future new gatekeepers.
The list of platform services falling in the scope was enlarged to cover online intermediation services such as marketplaces, app stores, search engines, social networking, cloud services, advertising services, voice assistants and web browsers.
Very large platforms falling into the scope of the Digital Markets Act will be subject to a set of obligations and prohibitions. The most relevant for the retail sector are the following ones:
- obligation to give sellers access to their marketing or advertising performance data on the platform (particularly useful for SME retailers using the Amazon marketplace);
- obligation to inform the European Commission of their acquisitions and mergers;
- ban on self-referencing of own products or services;
- ban on the reuse of private data collected during a platform service for the purposes of another service;
- prohibition of some unfair conditions for business users.
Once formally approved, the Digital Markets Act must be implemented within six months after its entry into force.
Overall, the compromise found on the quantitative thresholds (which are higher than the initial Commission proposal) means that only a very limited number of very large platforms will be covered by the DMA. Internal platforms of groups of independent retailers in principle do not meet currently these cumulative quantitative criteria. A company like Amazon should however fall into the scope, meaning that it will be bound by the new obligations/prohibitions which will protect the business activity of SME retailers using its marketplace.
