The Slovenian Presidency of the Council of the EU presented the third version of its compromise text on contestable and fair markets in the digital sector (DMA) to the members of the Competition Working Group on Monday 18 October (see EUROPE 12801/15).
In this new draft, the EU Council Presidency has focused on the rules and obligations for gatekeepers.
For example, it proposes - in the face of a rapidly changing environment - that a review of the status of gatekeepers should take place every 4 years. The previous compromise text was based on a two-year period.
In addition, in order to control national concentration effects, this third version of the compromise text specifies the obligations inherent in acquisitions made by gatekeepers.
The text provides for an obligation to inform the European Commission of planned or concluded acquisitions. The European Commission must subsequently inform the competent national authorities.
The EU Council Presidency also worked on the subject of unfair practices. In this respect, the European Commission would have the power to launch an investigation to determine whether the obligations provided for are sufficient and appropriate. The rules could be updated at the initiative of the European Commission or if such a request has been made by at least three Member States.
In this event, Member States could include information on product offerings, services or software that are problematic for them in terms of “contestability or fairness”, the paper says.
Safety and regulatory dialogues
In terms of end-user security, the EU Council text does not rule out the possibility of giving gatekeepers some leeway. “The gatekeeper should not be prevented from taking necessary and proportionate technical measures” to ensure the protection of users, the compromise document says.
However, evidence that “these measures are necessary and justified and that there are no less restrictive means to achieve this objective” should be provided.
Similarly, as the overall approach is that security guarantees require clear rules, gatekeepers would have the option to request a “regulatory dialogue” from the European Commission. This would set out the measures that the gatekeeper must adopt in order to comply with the obligations of the Regulation.
Finally, this third version of the compromise text also clarifies the competences of the Member States and the national authorities. The latter could, on their own initiative, investigate a possible non-compliance with the DMA rules. The European Commission should be notified “before or immediately after the start of the measure”.
The national authority concerned would then have to forward the findings of its investigation to the European Commission, which would act as the “sole executor of the Regulation”.
See the compromise text: https://bit.ly/3n97G3L (Original version in French by Thomas Mangin)