On 9 September, the Slovenian Presidency of the Council of the EU finalised a second version of the compromise text of the proposed Regulation on fair and competitive markets in the digital sector (DMA) (see EUROPE 12780/2).
In this new version of the text, the efforts made by the Slovenian Presidency have largely focused on gatekeepers. The Presidency of the EU Council therefore proposes that the European Commission be empowered to adopt delegated acts in order to adjust the methodology for measuring the number of monthly end-users.
The user threshold remains unchanged at 45 million active EU-based end-users per month and more than 10,000 active EU-based business users per year over the last financial year.
In view of the ”very rapid development of platform services”, the text presents the idea of a regular review of the status of gatekeepers. This also includes gatekeepers for whom it might be foreseen that they “will enjoy a sustainable and well-established position in their business in the near future”.
While the period of time between the two reviews is still to be defined, the text specifies that this period should not exceed 2 years.
Mandatory inspections
In the event that a company that meets the quantitative thresholds, but not specific other criteria, fails to comply with the European Commission’s investigative assessment measures within a reasonable period of time, the Commission would then be able to designate the company in question as a gatekeeper.
For their part, gatekeepers would be given the possibility to ask the European Commission to enter into dialogue with the aim of determining whether the actions that have been put in place to comply with the various obligations are actually sufficient.
It would then be up to the European Commission to initiate the discussion. A request such as this made by a gatekeeper should be accompanied by an explanation of why the measures taken are appropriate.
The Commission could order an inspection with which companies would be obliged to comply. The reason, date, sanctions and purpose of the visit should be specified in advance and the decision would only be taken after consultation with the relevant national competent authorities.
Finally, the Presidency of the EU Council notes the crucial notion of data protection, inviting gatekeepers to protect the personal data of end-users against possible risks.
Remaining on the subject of user protection, the text also insists that a gatekeeper should not be able to make it “difficult or complicated” to unsubscribe from one of its services.
See the compromise document: https://bit.ly/3u0Xehr (Original version in French by Thomas Mangin)