Position paper - Consultation response: Digital Markets Act

Forming part of a comprehensive effort to transform society and govern in a digital age, the proposed Digital Markets Act (DMA) is intended to ensure digital markets remain fair and open by proposing new rules over online platforms now commonly being referred to as ‘gatekeepers’. As the EU considers how best to design the DMA, it is vital that any such new tool is clear in terms of its scope, including the companies to which it may apply; the obligations they may be subject to; and interaction with existing legislation at both EU and Member State level. Ultimately, it should be an effective and proportionate tool that supports the potential of the EU’s Internal Market.

The American Chamber of Commerce to the EU (AmCham EU) set out six areas where we seek further clarity from the European Commission in its proposed regulation.

• Interface with existing legislation: Where both the DMA and existing EU competition law could potentially apply, it is important for companies to know how the European Commission will determine whether to address potential concerns under the DMA or existing EU competition laws.
• Definition of gatekeepers: It is important that the range of core platform services and applicable thresholds ultimately included within the DMA is unambiguous. The current proposals carry significant uncertainty for a wide range of core platforms service providers as to whether or not they may be subject to gatekeeper designation and, in turn, subject to the obligations proposed.
• Scope of, and interaction between, Articles 5 and 6: It is not clear what circumstances may allow a company to present arguments that a particular obligation should not be applicable, even if it is designated with gatekeeper status. Further consideration could be given to how best to design the DMA to ensure the DMA is an effective but flexible tool.
• Scope and role of market investigations: Businesses need to understand the purpose and scope of any market investigations conducted by the European Commission under the DMA. Though Articles 14 – 17 set out to provide clarity, material questions remain.
• Investigation and enforcement powers: Given the wide range of proposed investigation and enforcement powers, the European Commission should clarify which body will be responsible for applying such powers.
• Scope of information obligation about concentrations: Broad information notification obligations should not be imposed by a regulation that does not form part of a merger control system. Thus, further clarity as to the interaction between the DMA and EU Merger Regulation is needed.

We invite you to read our response in full.