The need to update Directive 2000/31/EC:
With the advent of the Internet at the end of the 20th century, the increase in digital services, businesses and platforms has had a significant impact on the European economy, generating a need to regulate all these activities.
In 2000, Directive 2000/31/EC was approved, which regulated information society services and intermediary services for the first time.
The aim was to provide legal certainty for citizens and digital consumers.
Over the last 20 years, disparities have arisen between the national regulations of the member states and the European Directive 2000/31/EC.
This only obstructed the correct and effective development of the single European digital market.
Need of harmonization between member states and European regulations
Therefore, in order to correct all the disparities that have arisen, it is necessary to update the legal content of the aforementioned Directive.
Last July 2022, the digital legislative package consisting of the “Digital Markets Act” (DMA), on the one hand, and the “Digital Services Act” (DSA), on the other hand, was approved.
The purpose of both laws is none other than to ensure a secure digital space for the European citizen.
What does the Digital Markets Act (DMA) consist of?
The DMA was approved on July 18, 2022, and aims to put an end to unfair practices by companies acting as Access Guardian in the online platform economy by imposing obligations on them.
A gatekeeper is a provider of basic platform services.
If it complies with the requirements that will be discussed below, such company will be considered to be acting in accordance with the Digital Markets Law.
Basic platform services
The Digital Markets Law does not apply to all digital services, but to those called “basic platform services”. These services are:
- Online intermediation services. These are those that enable professional users to offer goods or services to consumers, facilitating the direct transaction between both.
- Online search engines, which allow users to search websites, using keywords: Bing, Google, Duck duck go….
- Online social networking services, which enable end users to connect and communicate with each other: Meta tik tok.
- Video sharing platform services, which offer users videos generated by the users themselves or by the platform: Vimeo, YouTube…
- Number-independent interpersonal communication services.
- Operating systems, which are system software, whose purpose is to establish control of the basic functions of the hardware or software: Apple, Microsoft…
- Cloud computing services, which consist in facilitating access to documents, in order to share them: Dropbox, Microsoft Office 365…
Requirements to be considered an Access Guardian
In order to be considered an Access Guardian, in accordance with Article 3.1 of the Digital Markets Law, three requirements must be met:
Significant impact on the internal market. That is:
- If the company to which it belongs achieves an annual business volume in the EES of EUR 6.5 billion or more in the last three financial years.
- Average market capitalization/fair market value amounts to at least EUR 65 billion in the financial year.
- The company must provide a basic platform service in at least three member states.
It operates a basic platform service that acts as an important gateway for professional users to access to end-users. That is:
- When it offers a basic platform service that has more than 45 million monthly active end users established or located in the European Union.
- More than 10,000 active professional users established in the European Union in the last financial year.
- Have an established and long-standing position in its operations. This is when the established thresholds in letter b) of the last 3 fiscal years have been met.
Procedure to follow once the requirements have been complied with
The platforms that are able to comply with the three requirements established in the law to be considered as Access Guardians, will have 2 months to communicate it to the European Commission.
If this does not happen, the Commission itself, after requesting the appropriate information, may also designate them as Access Guardians.
What should the information presented contain:
The platforms must provide in the communication to the European Commission all information relating to all basic services of the Access Guardians platform in which the established thresholds are exceeded.
Deadlines for European Commission action:
Once the European Commission has received all the information from the platform, it must designate, within 45 working days, the company that complies with the three requirements in one of the basic services it offers as Access Guardian.
In the event that the platform already designated as Access Guardian complies with the thresholds established in the second and third requirements in another basic service not included in the previous communication, it may, within two months of its achievement, notify the European Commission.
Exceptions to the appointment of Access Guardians
A. An Access Guardian may avoid being designated as such.
This will be so as long as:
- It presents sufficiently substantiated arguments in the notification to the European Commission.
- That such arguments demonstrate that, even though it meets the thresholds established in the Law, the company does not meet the necessary requirements, that is, that despite its high turnover, it does not have a significant impact on the market, nor does it have a long-lasting or established position.
If the European Commission considers that the arguments presented are sufficiently well-founded, it will conduct a market investigation.
It will then be able to define whether it is appropriate to declare the company in question an Access Guardian.
The Commission’s preliminary conclusions must be communicated to the company within 3 months, and the market investigation must be concluded within 5 months. After this time, it must adopt its final decision.
B. An operator may be considered an Access Guardian even if it does not comply with the established thresholds.
For this purpose, the European Commission may initiate a market investigation, taking into account:
- The size of the company: business volume, position….
- The number of professional users using the basic platform service and the number of users.
- Benefits derived from the access and collection of personal and non-personal data.
- Company activities outside the EU.
- Captivity of professional and end users.
- Vertical integration of the company providing basic platform services.
The European Commission will aim to communicate its preliminary findings to the company concerned within 6 months, and its investigation will be concluded within 12 months.
It may also appoint as emerging Access Guardian a company that, although it does not meet the requirement of not having an established or lasting position, will obtain one in the very near future.
Revision of companies appointed as “Access Guardian”.
The European Commission will perform regular revisions at least every 3 years to those companies appointed as Access Guardian, in order to verify whether they continue to comply with the requirements, or to verify whether or not the registration of basic platform services of such companies should be modified.
Such review will not have suspensive effect on the obligations imposed on the Access Guardians at the time of their appointment.
Additionally, an annual review will be carried out for all new companies offering basic platform services, to verify that they also comply with the requirements, and to check whether they can be considered as Access Guardians.
Obligations of Access Guardians.
The Digital Markets Act provides a catalog of general obligations, which will apply to the Access Guardians.
On the other hand, it includes specifiable obligations, which may be imposed on each Access Guardian after a procedure at the Commission.
This may be initiated ex officio or at the request of the interested party (the Access Guardian itself).
An example of this is the obligation to provide advertisers and publishers to whom it offers advertising services with appropriate information on the price paid.
Assurance of compliance with obligations.
The Access Guardian shall be responsible for ensuring and demonstrating compliance with all the obligations imposed.
To achieve this, it must have one or more individuals in charge, whose function is to verify compliance with the obligations.
These officers must have sufficient authority and resources to be able to ensure compliance with the obligations.
Suspension of obligations
The obligations imposed on the Access Guardian may be suspended on an exceptional basis, provided that compliance with such obligations would constitute a threat to the economic viability of its operations in the EU.
Such suspension should be made only to the extent necessary to address the threat to viability.
Therefore, if such a threat exists, the Access Guardian must make a reasoned request for the suspension of the obligations.
The European Commission must decide about the request within 3 months.
If there are reasons of urgency, it may agree to the provisional suspension of some of its obligations. If the suspension of obligations is finally possible, the European Commission shall fix the limits of the suspension, as well as its duration.
If the duration is longer than one year, the Commission will have to review the suspension of obligations on an annual basis.
Joint action by Member States and the European Commission
The European Commission is the only authoritative body with the power to impose new obligations, in addition to those already provided for in the Digital Markets Act (DMA).
Therefore, member states will not be empowered to establish obligations that are under the scope of application of the DMA.
In Spain, both the CNMC and the ANC will cooperate with the European Commission in the implementation of the Digital Markets Act (DMA).
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