DMA - Gatekeepers

The Digital Markets Act (DMA) seeks to rebalance relations between the large digital platforms that control access to the digital market (known as 'gatekeepers') and business users, in particular by allowing small platforms to develop in order to promote competition for the benefit of consumers.

To do this, the DMA lays down harmonised rules to prevent unfair or disproportionate conduct by gatekeepers. Alongside the competition rules under which abuses of dominant position are sanctioned, the DMA imposes certain preliminary obligations on large platforms to guarantee compliance with free competition.

These rules seek to preserve fairness and equal opportunities for digital players within the European Union (EU), ensuring that the markets in which the gatekeepers operate remain contestable. In particular, they govern:

  • the contractual terms that these platforms impose on business users;
  • the clauses that restrict sales at a lower price on competitor platforms and on the company's own website;
  • the portability of the data and the effective interoperability of messaging services.

Who is concerned?

Designated gatekeepers

Who are the gatekeepers?

The DMA lays down obligations for gatekeepers who offer an essential platform service – namely:

  • online intermediation services (digital platforms);
  • app stores;
  • online search engines;
  • social media services;
  • certain messaging services;
  • video sharing platforms;
  • virtual assistants;
  • web browsers;
  • cloud IT services;
  • operating systems;
  • online marketplaces; and
  • advertising services.

According to what criteria are they designated?

Enterprises that offer one or more of these services can be designated by the European Commission as gatekeepers if:

  • they have significant weight on the domestic market, meaning that:
    • they offer services in at least 3 Member States; and
    • they have an annual EU turnover > EUR 7.5 billion or a market value > EUR 75 billion (over the last 3 years);
  • their essential platform service constitutes a major access point enabling business users to reach their end users:
    • at least 45 million monthly end users in the EU;
    • at least 10,000 business users a year established in the EU;
  • they most likely have or will have a solid and sustainable position in their activities.

Competent authorities

The European Commission is the only authority authorised to apply the DMA rules and therefore has extended investigative and coercive powers to investigate, control and enforce the rules laid down in the DMA. For example, they may require information from any enterprise or association of undertakings, access data and algorithms, and conduct inspections, interviews and market investigations.

However, the national competition authorities cooperate with the European Commission within the framework of a coordinated approach. The Competition Authority will then:

  • provide the European Commission with all the relevant information in its possession;
  • actively assist in any inspections that take place in Luxembourg;
  • attend, where appropriate, the interviews held in Luxembourg; and
  • support any European Commission market investigation conducted on the basis of the DMA.

Gatekeeper obligations

The obligations mentioned in the DMA primarily aim to prevent the use of a lever effect, facilitate switching and multi-homing and open up platforms and access to data.

In particular, since 6 March 2024, each gatekeeper must allow:

  • end users:
    • to easily uninstall any preinstalled applications and modify the default settings, in particular by selecting the default services of its choice the first time the operating system, virtual assistant or web browser is used;
    • to install and use third-party applications or third-party app stores that use or interact with its system;
    • to unsubscribe from the services of the main platforms as easily as they subscribed to them and to recover their data to facilitate switching (data portability);
  • the enterprises that advertise on its platform to access its performance measurement tools and the necessary information for advertisers and publishers to be able to carry out their own independent verification of the advertisements hosted by the gatekeeper;
  • professional users:
    • to promote their offers and conclude contracts under different conditions with their customers acquired through use of the essential platform service outside the platform;
    • to access the data generated by their activities on the platform;
    • to recover this data (data portability), in the event of switching, for example;
  • service providers and suppliers of IT equipment to interoperate free of charge and effectively with the same hardware and software characteristics as the gatekeeper, and to access these characteristics for the purposes of interoperability;
  • business users and other providers of services provided jointly with essential platform services, to interoperate effectively with the same operating system, hardware or software characteristics as those of the gatekeeper, and to access these characteristics for the purposes of interoperability.

Gatekeepers should also notify the European Commission of any planned mergers, when the merging entities or the acquired company provide essential platform services, are active in data collection or offer services in the digital sector.

The DMA also seeks to gradually establish interoperability between messaging services. At the request of the third-party providers of messaging services, the gatekeepers should make the basic features of their messaging services interoperable with those of the requesting messaging services provider.

Prohibited practices for gatekeepers

Each gatekeeper will also be prohibited from:

  • using data originating from business users to compete with these users;
  • ranking its own products or services more favourably than those of third parties;
  • preventing business users from offering the same products or services on other platforms at different prices or under different conditions ('non-parity clauses');
  • demanding that app developers use certain services (such as the payment system) to appear in the gatekeeper's app stores;
  • processing the personal data of users that employ third-party services that use its essential platforms for targeted advertising, without users' consent;
  • preventing or restricting data portability (i.e. the possibility of recovering data), and the interoperability of messaging services (i.e. the capacity of a messaging system to communicate with another messaging system).

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