EU Competition Law and Digital Markets

dr. Miłosz Malaga

m.malaga@amu.edu.pl

law.amu.edu.pl
Overview of the course

1. Characteristics of digital markets and market actors

2. Primary rules and objectives of EU competition law
3. Specific competition challenges in digital markets and reactions in the light of
traditional legal framework
4. Specific competition challenges in digital markets: case studies (I)
5. Specific competition challenges in digital markets: case studies (II)
6. The Digital Markets Act: the need for specific regulation. Objectives and key concepts.
Social and economic role of digital services and online platforms regulation
7. The Digital Markets Act: specific obligations for gatekeepers
8. Competition rules in the Digital Services Act
9. Enforcement: general competition law, Digital Markets Act and Digital Services Act
10. Coherence and effectiveness of the new competition rules in digital markets
Digital Markets Act - Timeline
Designation of gatekeepers

https://ec.europa.eu/commission/presscorner/detail/en/ip_23_4328
Obligations of gatekeepers

Compliance with obligations and prohibitions – from 2024 (within 6 months of gatekeeper
designation)
▪ Gatekeeper shall comply with obligations and prohibitions laid down in Articles 5, 6
and 7
▪ Gatekeeper shall provide EC with a report describing the measures implemented to
ensure compliance
▪ Gatekeeper shall submit audit to EC describing customer profiling techniques
Obligations of gatekeepers – Article 5 DMA

2. The gatekeeper shall not do any of the following:

(a) process, for the purpose of providing online advertising services, personal data of end users
using services of third parties that make use of core platform services of the gatekeeper;
(b) combine personal data from the relevant core platform service with personal data from any
further core platform services or from any other services provided by the gatekeeper or with personal
data from third-party services;
(c) cross-use personal data from the relevant core platform service in other services provided
separately by the gatekeeper, including other core platform services, and vice versa; and
(d) sign in end users to other services of the gatekeeper in order to combine personal data,
unless the end user has been presented with the specific choice and has given consent within the
meaning of Article 4, point (11), and Article 7 of Regulation (EU) 2016/679.
Where the consent given for the purposes of the first subparagraph has been refused or withdrawn
by the end user, the gatekeeper shall not repeat its request for consent for the same purpose more
than once within a period of one year.
This paragraph is without prejudice to the possibility for the gatekeeper to rely on Article 6(1), points
(c), (d) and (e) of Regulation (EU) 2016/679, where applicable.
Obligations of gatekeepers – Article 5 DMA

3. The gatekeeper shall not prevent business users from offering the same products
or services to end users through third-party online intermediation services or
through their own direct online sales channel at prices or conditions that are different from
those offered through the online intermediation services of the gatekeeper.

4. The gatekeeper shall allow business users, free of charge, to communicate and
promote offers, including under different conditions, to end users acquired via its core
platform service or through other channels, and to conclude contracts with those end
users, regardless of whether, for that purpose, they use the core platform services of
the gatekeeper.

5. The gatekeeper shall allow end users to access and use, through its core platform
services, content, subscriptions, features or other items, by using the software
application of a business user, including where those end users acquired such items
from the relevant business user without using the core platform services of the gatekeeper.
Obligations of gatekeepers – Article 5 DMA

6. The gatekeeper shall not directly or indirectly prevent or restrict business users or
end users from raising any issue of non-compliance with the relevant Union or
national law by the gatekeeper with any relevant public authority, including national courts,
related to any practice of the gatekeeper. This is without prejudice to the right of business
users and gatekeepers to lay down in their agreements the terms of use of lawful
complaints-handling mechanisms.

7. The gatekeeper shall not require end users to use, or business users to use, to
offer, or to interoperate with, an identification service, a web browser engine or a
payment service, or technical services that support the provision of payment services,
such as payment systems for in-app purchases, of that gatekeeper in the context of
services provided by the business users using that gatekeeper’s core platform services.

8. The gatekeeper shall not require business users or end users to subscribe to, or register
with, any further core platform services listed in the designation decision pursuant to
Article 3(9) or which meet the thresholds in Article 3(2), point (b), as a condition for being
able to use, access, sign up for or registering with any of that gatekeeper’s core platform
services listed pursuant to that Article.
Obligations of gatekeepers – Article 5 DMA

9. The gatekeeper shall provide each advertiser to which it supplies online advertising
services, or third parties authorised by advertisers, upon the advertiser’s request, with
information on a daily basis free of charge, concerning each advertisement placed by the
advertiser, regarding:
a) the price and fees paid by that advertiser, including any deductions and
surcharges, for each of the relevant online advertising services provided by the
gatekeeper,
b) the remuneration received by the publisher, including any deductions and
surcharges, subject to the publisher’s consent; and
c) the metrics on which each of the prices, fees and remunerations are calculated.
In the event that a publisher does not consent to the sharing of information regarding the
remuneration received, as referred to in point (b) of the first subparagraph, the gatekeeper
shall provide each advertiser free of charge with information concerning the daily average
remuneration received by that publisher, including any deductions and surcharges, for the
relevant advertisements.
Prohibitions imposed on gatekeepers – Article 6 DMA

2. The gatekeeper shall not use, in competition with business users, any data that is
not publicly available that is generated or provided by those business users in the
context of their use of the relevant core platform services or of the services provided
together with, or in support of, the relevant core platform services, including data
generated or provided by the customers of those business users.
For the purposes of the first subparagraph, the data that is not publicly available shall
include any aggregated and non-aggregated data generated by business users that can
be inferred from, or collected through, the commercial activities of business users or their
customers, including click, search, view and voice data, on the relevant core platform
services or on services provided together with, or in support of, the relevant core platform
services of the gatekeeper.
Prohibitions imposed on gatekeepers – Article 6 DMA

3. The gatekeeper shall allow and technically enable end users to easily un-install
any software applications on the operating system of the gatekeeper, without
prejudice to the possibility for that gatekeeper to restrict such un-installation in relation to
software applications that are essential for the functioning of the operating system or of the
device and which cannot technically be offered on a standalone basis by third parties.
The gatekeeper shall allow and technically enable end users to easily change default
settings on the operating system, virtual assistant and web browser of the gatekeeper that
direct or steer end users to products or services provided by the gatekeeper. That includes
prompting end users, at the moment of the end users’ first use of an online search engine,
virtual assistant or web browser of the gatekeeper listed in the designation decision
pursuant to Article 3(9), to choose, from a list of the main available service providers, the
online search engine, virtual assistant or web browser to which the operating system of the
gatekeeper directs or steers users by default, and the online search engine to which the
virtual assistant and the web browser of the gatekeeper directs or steers users by default.
Prohibitions imposed on gatekeepers – Article 6 DMA

4. The gatekeeper shall allow and technically enable the installation and effective use
of third-party software applications or software application stores using, or
interoperating with, its operating system and allow those software applications or software
application stores to be accessed by means other than the relevant core platform services
of that gatekeeper. The gatekeeper shall, where applicable, not prevent the downloaded
third-party software applications or software application stores from prompting end users
to decide whether they want to set that downloaded software application or software
application store as their default. The gatekeeper shall technically enable end users who
decide to set that downloaded software application or software application store as their
default to carry out that change easily.
The gatekeeper shall not be prevented from taking, to the extent that they are strictly
necessary and proportionate, measures to ensure that third-party software applications or
software application stores do not endanger the integrity of the hardware or operating
system provided by the gatekeeper, provided that such measures are duly justified by the
gatekeeper.
Furthermore, the gatekeeper shall not be prevented from applying, to the extent that they
are strictly necessary and proportionate, measures and settings other than default
settings, enabling end users to effectively protect security in relation to third-party software
applications or software application stores, provided that such measures and settings
other than default settings are duly justified by the gatekeeper.
Prohibitions imposed on gatekeepers – Article 6 DMA

5. The gatekeeper shall not treat more favourably, in ranking and related indexing and
crawling, services and products offered by the gatekeeper itself than similar services
or products of a third party. The gatekeeper shall apply transparent, fair and non-
discriminatory conditions to such ranking.

6. The gatekeeper shall not restrict technically or otherwise the ability of end users to
switch between, and subscribe to, different software applications and services that are
accessed using the core platform services of the gatekeeper, including as regards the
choice of Internet access services for end users.
Prohibitions imposed on gatekeepers – Article 6 DMA

7. The gatekeeper shall allow providers of services and providers of hardware, free
of charge, effective interoperability with, and access for the purposes of interoperability
to, the same hardware and software features accessed or controlled via the operating
system or virtual assistant listed in the designation decision pursuant to Article 3(9) as are
available to services or hardware provided by the gatekeeper. Furthermore, the
gatekeeper shall allow business users and alternative providers of services provided
together with, or in support of, core platform services, free of charge, effective
interoperability with, and access for the purposes of interoperability to, the same operating
system, hardware or software features, regardless of whether those features are part of
the operating system, as are available to, or used by, that gatekeeper when providing such
services.

The gatekeeper shall not be prevented from taking strictly necessary and proportionate
measures to ensure that interoperability does not compromise the integrity of the operating
system, virtual assistant, hardware or software features provided by the gatekeeper,
provided that such measures are duly justified by the gatekeeper.
Prohibitions imposed on gatekeepers – Article 6 DMA

8. The gatekeeper shall provide advertisers and publishers, as well as third parties
authorised by advertisers and publishers, upon their request and free of charge, with
access to the performance measuring tools of the gatekeeper and the data
necessary for advertisers and publishers to carry out their own independent
verification of the advertisements inventory, including aggregated and non-aggregated
data. Such data shall be provided in a manner that enables advertisers and publishers to
run their own verification and measurement tools to assess the performance of the core
platform services provided for by the gatekeepers.

9. The gatekeeper shall provide end users and third parties authorised by an end user,
at their request and free of charge, with effective portability of data provided by the
end user or generated through the activity of the end user in the context of the use
of the relevant core platform service, including by providing, free of charge, tools to
facilitate the effective exercise of such data portability, and including by the provision of
continuous and real-time access to such data.
Prohibitions imposed on gatekeepers – Article 6 DMA

10. The gatekeeper shall provide business users and third parties authorised by a
business user, at their request, free of charge, with effective, high-quality, continuous and
real-time access to, and use of, aggregated and non-aggregated data, including personal
data, that is provided for or generated in the context of the use of the relevant core
platform services or services provided together with, or in support of, the relevant core
platform services by those business users and the end users engaging with the products
or services provided by those business users. With regard to personal data, the
gatekeeper shall provide for such access to, and use of, personal data only where the data
are directly connected with the use effectuated by the end users in respect of the products
or services offered by the relevant business user through the relevant core platform
service, and when the end users opt in to such sharing by giving their consent.
Prohibitions imposed on gatekeepers – Article 6 DMA

11. The gatekeeper shall provide to any third-party undertaking providing online
search engines, at its request, with access on fair, reasonable and non-discriminatory
terms to ranking, query, click and view data in relation to free and paid search
generated by end users on its online search engines. Any such query, click and view data
that constitutes personal data shall be anonymised.

12. The gatekeeper shall apply fair, reasonable, and non-discriminatory general
conditions of access for business users to its software application stores, online
search engines and online social networking services listed in the designation
decision pursuant to Article 3(9).
For that purpose, the gatekeeper shall publish general conditions of access, including an
alternative dispute settlement mechanism.
The Commission shall assess whether the published general conditions of access comply
with this paragraph.

13. The gatekeeper shall not have general conditions for terminating the provision of
a core platform service that are disproportionate. The gatekeeper shall ensure that the
conditions of termination can be exercised without undue difficulty.
Mergers – Article 14 DMA

1. A gatekeeper shall inform the Commission of any intended concentration within the
meaning of Article 3 of Regulation (EC) No 139/2004, where the merging entities or the
target of concentration provide core platform services or any other services in the
digital sector or enable the collection of data, irrespective of whether it is notifiable to
the Commission under that Regulation or to a competent national competition authority
under national merger rules.
A gatekeeper shall inform the Commission of such a concentration prior to its
implementation and following the conclusion of the agreement, the announcement of the
public bid, or the acquisition of a controlling interest.

▪ Killer acquisitions?
▪ The provision is to weak (inform)?
▪ Referral of non-notifiable concentrations to the Commission?
DMA v competition rules

DMA, recitals 10-11 (and Article 1 (6))

At the same time, since [DMA] aims to complement the enforcement of competition law, it
should apply without prejudice to Articles 101 and 102 TFEU, to the corresponding
national competition rules and to other national competition rules regarding unilateral
conduct that are based on an individualised assessment of market positions and behaviour,
including its actual or potential effects and the precise scope of the prohibited behaviour, and
which provide for the possibility of undertakings to make efficiency and objective justification
arguments for the behaviour in question, and to national rules concerning merger control.
However, the application of those rules should not affect the obligations imposed on
gatekeepers under this Regulation and their uniform and effective application in the internal
market.
Articles 101 and 102 TFEU and the corresponding national competition rules concerning
anticompetitive multilateral and unilateral conduct as well as merger control have as their
objective the protection of undistorted competition on the market. The [DMA] pursues an
objective that is complementary to, but different from that of protecting undistorted
competition on any given market, as defined in competition-law terms, which is to ensure
that markets where gatekeepers are present are and remain contestable and fair,
independently from the actual, potential or presumed effects of the conduct of a given
gatekeeper covered by this Regulation on competition on a given market. This Regulation
therefore aims to protect a different legal interest from that protected by those rules and it
should apply without prejudice to their application.
DMA v competition rules

• Parallel application?
• Ne bis in idem?