On Thursday 25 November, the Ministers of the EU Member States responsible for the Internal Market and Industry adopted their position (‘general approach’) on the Digital Markets Act (DMA) and the Digital Services Act (DSA) (see EUROPE 12836/2).
“Less than a year after the Commission’s proposal, it is absolutely exceptional to reach this stage and meet the expectations of the European Council”, said European Commission Vice President for a Digital Europe Margrethe Vestager.
While the Member States have shown unanimous support for the two texts from the Slovenian Council Presidency, a number of issues are expected to be discussed in the forthcoming inter-institutional negotiations (‘trilogue’).
For example, for the DMA, several Member States have called for “fine-tuning” of the text, in particular regarding the definition of end-users.
“Andreas Schwab [rapporteur for the DMA in the European Parliament, see EUROPE 12838/6, ed.] is right, just because you go on a platform doesn’t make you an active user”, the German representative said.
The issue of coordination between national authorities and the European Commission also came up repeatedly among the ministers responsible for the DMA.
In this respect, several states have indicated their willingness to see greater involvement of national competition authorities in the application of the DMA.
“The compromise on the table is an improvement, but we are concerned about what is being said in the European Parliament. A veto right for the Commission would be a red line”, warned the German representative.
Some Member States, such as Luxembourg, Belgium and Ireland, would like to see the future French Presidency of the EU Council maintain the current approach. This consists in letting the Commission be the guarantor of the application of the Regulation. National authorities would have the capacity to launch investigations into potential violations of the DMA.
Several states, such as Italy, have also called for consideration to be given to including voice assistants and smart TV services in the scope of the text.
In addition to the issue of interoperability, which should also be at the heart of future trilogues and to which the Netherlands reiterated its commitment, several Member States, such as Ireland, stressed that they would not accept any extension of the scope without prior impact assessments.
Identification and hosting services
While most Member States welcomed the strengthening of the role of the European Commission in the application of the DSA, the retention of the country of origin principle, the extension of the scope to search engines or the work on the protection of minors, several points will also need to be discussed.
Austria, Sweden and Ireland, among others, have called for special attention to be paid to SMEs, to ensure that the application of the DSA does not represent too great an administrative burden.
In addition, Italy and Spain reiterated their desire to see the identification of companies and online service providers strengthened.
The Netherlands has indicated its willingness to look into the abuse of hosting services for illegal content. “There is certainly room for improvement in this area”, the Dutch minister summed up.
As with the DMA, some Member States also insisted that the DSA should not be “watered down” in future inter-institutional negotiations and that its future implementation should be the result of a “unified” approach within the EU.
“There is a tension between, on the one hand, the democratic and political urgency of content regulation and, on the other, the differences in culture and legislative frameworks between Member States”, concluded the French Minister.
France will begin its Presidency of the EU Council in January and confirmed on Thursday that it wants to reach an agreement on both texts before the end of its term. (Original version in French by Thomas Mangin)