Dominant firms now have six months to ensure full compliance, while the EC investigates whether further services should be subject to ex-ante rules
Six gatekeepers, 22 services
On 6 September 2023, the EC made its first designation decisions under the Digital Markets Act (DMA). The EC has determined that six companies (Alphabet, Amazon, Apple, ByteDance, Meta, Microsoft) enjoy a dominant position across 22 core platform services, including social networking and operating systems. The announcement follows a 45-day review process conducted by the EC after the notification by Alphabet, Amazon, Apple, ByteDance, Meta, Microsoft and Samsung of their potential status as gatekeepers. The EC has also concluded that, although Gmail, Outlook.com and Samsung Internet Browser meet gatekeepers thresholds under the DMA, Alphabet, Microsoft and Samsung provided sufficient evidence to show that these services do not qualify as gateways for the respective core platform services.
The clock has started on the six-month compliance window
The DMA is the EU’s flagship legislation designed to rein in the power of large tech firms in online markets, to promote competition and choice for consumers. This first set of decisions brings the six gatekeepers into the EC’s regulatory spotlight, and they now have until 6 March 2024 to fully comply with the DMA’s provisions for each of their designated core platform services. However, some obligations will start applying as of designation, for example, the obligation to inform the EC of any intended acquisition. The EC will be closely monitoring gatekeepers’ compliance with the rules and can impose penalties of up to 10% of global turnover for infringements. 10% is a common level of fine in the markets we’ve analysed, although the EC can go further (up to 20%) and require behavioural or structural remedies in the event of repeated transgressions.
The EC still has work to do
The EC will remain busy with DMA implementation activity in the near-term having also opened four market investigations to further assess whether three Microsoft services (Bing, Edge and Microsoft Advertising) and Apple’s iMessage qualify as gateways. Submissions from the firms argue that, despite meeting the quantitative thresholds (e.g. 45m monthly active end users in the EU), these core platform services should not be designated. A decision on the rebuttals must be announced within the next five months. In parallel, the EC will investigate whether Apple's iPadOS should be designated as gatekeeper, despite not meeting the thresholds. Under the DMA, this investigation should be completed within a maximum of 12 months, although a decision is expected sooner.
