16 June 2021

European Commission’s proposal of a Digital Markets Act – EBF Key messages

Europe needs more competition to unlock all the opportunities that digital markets can bring. These opportunities, and healthy competition between firms, increasingly depend on timely access to relevant digital infrastructure, consumer gateways, data, and markets.

The EBF, therefore, welcomes the ex-ante regulatory approach and general principles underpinning the European Commission’s (EC) proposal for a Digital Markets Act (DMA) towards large online platforms acting as gatekeepers.  However, to ensure that current imbalances in relation to gatekeepers are addressed, the EBF recommends to:

1.  Include a definition of “provider of core platform services” which allows parts of the same undertaking to be considered as separate gatekeepers when they provide a different category of platform services while taking into account the whole undertaking for the purposes of the significant impact on the internal market.
2.  Treat payment aggregation services, when provided by a provider of any of the core platform services listed under Article 2, that is considered as a gatekeeper, as “core platform services” themselves. Payment aggregation services that connect many business users (e.g. payment service providers) with many end users may show strong network effects, lock-in effects, and a lack of multi-homing or vertical integration when provided in combination with other core platform services.
3.  Sharpen the criteria for the designation of gatekeepers by including clear definitions of “business users”, “end users”, and “active users” for each core platform service, as these concepts can be interpreted differently depending on the type of service and context.
4.  Strengthen the obligations for gatekeepers under Articles 5 and 6, with a particular focus on obligations regarding access to infrastructure and data. The Regulation must ensure that access to operating systems hardware or software features is under fair and equal conditions, which refers to conditions of economic technical, or any other nature. The obligation on data portability must clearly require a standardised transfer mechanism that would allow for easy, secure, real-time, and recurrent data transfers for end-users and business users.
5.  Reinforcing provisions to bolster gatekeeper compliance with obligations by enhancing article 7 and avoiding a situation where issues with implementation are only flagged and reviewed as part of a formal and potentially time-consuming processing.

EBF

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