On 24 March 2022, the French Presidency of the Council found an agreement with the European Parliament on the new EU Digital Markets Act (DMA). This new Act aims to restore fairness and competition in digital markets, through a set of obligations and prohibitions imposed on very large platforms considered as ‘gatekeepers’. Companies offering certain platform services in at least three Member States and which meet a set of cumulative quantitative thresholds will automatically be subject to the DMA (e.g. Amazon).
The Council and the European Parliament agreed that the Digital Markets Act would automatically apply to very large platforms that meet the following cumulative quantitative criteria:
- provide a service in at least three Member States; and
- reach an annual turnover of at least €7,5 billion within the European Union (EU) 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 very large platforms whose competitive position is proven but not yet sustainable. Moreover, a new market investigation tool is created, enabling the Commission to identify future new gatekeepers that do not meet the quantitative thresholds but meet the qualitative threshold mentioned in the DMA (i.e. the platform service has a significant impact on the single market, it is an important gateway for business users to reach consumers, it enjoys an entrenched durable position).
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 initially proposed by the Commission) 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 currently meet these cumulative quantitative criteria. A company like Amazon (and possibly Alibaba) 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 this type of marketplaces.
