On Thursday 27 May, the Portuguese Presidency of the Council of the European Union presented, during the EU ‘Competitiveness’ Council, the state of play regarding the progress at technical level of the Digital Markets Act (DMA) and the Digital Services Act (DSA) legislative package (see EUROPE 12623/1).
“We had a discussion that allowed us to take stock of the relevant issues, which will allow the Portuguese Presidency to continue working on the subject. It is essential for Europe to have a regulatory instrument in the markets for our citizens and businesses, and to be able to rely on regulation in line with European values”, said the Portuguese Minister of Economy and Digital Transition, Pedro Siza Vieira, at a press conference held jointly with the Commissioner for the Internal Market, Thierry Breton.
Although the French Secretary of State for the Digital Transition, Cédric O, described the DMA text as “rather consensual”, in the margins of the EU Council, several aspects need to be clarified, according to the Ministers for Competitiveness, who met in Brussels. Firstly, the relationship between this legislation - which must serve, among other things, to safeguard fairness for users and contestability of markets - and European competition law.
On this point, the French, Dutch and Germans agreed and doubted that the Commission’s proposal fully addresses all the issues raised. “The two sets of rules should not interfere with each other, but complement each other”, the three delegations said.
See the Franco-German-Dutch declaration: https://bit.ly/2SwvUJp
In this respect, some Member States consider that there is a need for a lead entity to ensure coordination and cooperation between the Commission and the national competition authorities.
Several delegations have argued for a DMA that leaves sufficient leeway for national rules applicable to gatekeepers, so that the regulation complements what exists at national level.
“Member States should therefore remain able to set and enforce national rules including national competition law applicable to gatekeepers’ unilateral conduct”, the Netherlands argued.
As digital markets often evolve faster than legislation, some countries, such as Spain, have reiterated their commitment to a DMA that includes greater flexibility, in order to cope with the reality of digital markets and the rapidly changing behaviour of gatekeepers.
Lastly, attention was also focused on the control of mergers and acquisitions of gatekeepers, which a majority of Member States said should be strengthened in order to tackle the strategies of companies and platforms to buy up start-ups with the aim of limiting competition.
Illegal content and over-regulation
The second part of the digital package on the agenda, the Digital Services Act, was also examined by the delegations. The main focus was on the removal of illegal content online. On this point, Member States stressed the importance of acting quickly while ensuring that freedom of expression and fundamental rights are not the first victims of this process.
As with the DMA, the Member States also want to see greater collaboration between the national authorities - who have a detailed knowledge of the field - and the European Commission.
“The Commission would benefit from relying on the information that national authorities have”, asserted Belgium.
In addition to the concept of country of origin, a number of countries have also put the focus of their concerns back on defining gatekeepers and their responsibilities.
Finally, while this digital package should serve to protect consumers while helping small and medium-sized companies to develop, some countries such as Cyprus and the Czech Republic said that it was imperative to avoid “over-regulation, which would hamper innovation”.
In a document dated 6 May, the Portuguese Presidency of the EU Council stated that “most Member States” support the legal basis of the texts. It will table compromise texts by the end of June.
The French Secretary of State, Cédric O, recalled that the closure of these files would be a priority for the French Presidency of the EU Council in the first half of 2022.
See the DSA progress report: https://bit.ly/34lMizh
See the DMA progress report: https://bit.ly/3bXO9yl (Original version in French by Thomas Mangin)