“Trilogue” negotiations for the Digital Markets Act (“DMA”) have begun and the EU institutions are likely to conclude discussions by late March. That is great news.
Though we believe that no major change of direction is necessary (or realistic to expect), there are some areas that would benefit from improvement. As discussed in an earlier post, one such area relates to the designation of gatekeepers, where some efforts could still be made to find the right balance between over-inclusiveness and under-inclusiveness.
Another area of possible improvement concerns two procedural aspects relating to the interpretation and effective implementation of the DMA, namely the publication of guidelines by the Commission and the regulatory dialogue between the Commission and those platforms that will be designated as “gatekeepers”. The former would provide general guidance to all gatekeepers (but also their business users), while the latter would provide guidance that is tailored to the business model and commercial practices of each gatekeeper.
The need for interpretative guidelines
The list of dos and don’ts included in the DMA is based on the logic that certain duties that platforms will be expected to perform are more “straightforward” than others. This is why the DMA distinguishes between self-executing obligations (Article 5) and obligations susceptible to further specification (Article 6).
The DMA is undoubtedly a complex piece of legislation. Preparing for (and ensuring) compliance with the obligations it establishes will raise questions of interpretation. This concerns both Article 6 and Article 5 obligations.
It goes without saying that various interpretative issues will arise from the wording of Article 6. Most of the obligations included in that provision reflect antitrust proceedings that concerned a specific platform employing a specific business model. How those obligations apply to other platforms that may differ significantly from the platform that has been subject to antitrust scrutiny will not always be easy to determine. Other obligations that do not mirror the outcome of competition decisions, such as the provision mandating gatekeepers to grant access to data, raise their own set of challenges (e.g., what would qualify as “effective” data access business users should be granted?).
However, many questions of interpretation will also arise from the wording of Article 5, especially if the latter establishes obligations that the Commission’s proposal envisaged as obligations subject to further specification. For example, the Parliament proposes that the gatekeepers’ obligation to implement data silos where they are “in competition” with business users be moved from Article 6 to Article 5. Yet, what the term “in competition” with business users really means is unclear (the implementation of the DMA will not rely on market definition analysis).
Guidelines are important as they will contribute to the effective application of the rules, enabling both platforms and their business users to understand under what conditions a gatekeeper complies with the DMA. However, the European Commission’s proposal does not refer to any guidelines that could or would be adopted to facilitate implementation. The Parliament proposes a new provision (Article 36(a)) whereby “the Commission may accompany the obligations […] with guidelines.” The Council’s General Approach moves in the same direction, but further adds that “[s]uch guidance may in particular be based on the experience that the Commission obtains through the monitoring of compliance with this Regulation. The issuing of any guidelines under this Regulation is a prerogative and at the sole discretion of the Commission and should not be considered as a constitutive element to ensure compliance with the obligations under this Regulation by the undertakings or association of undertakings concerned.”
The amendments suggested by the Parliament and the Council trigger two observations. First, it is not clear why the co-legislators did not propose that the Commission be required to adopt guidelines. Such a requirement is not uncommon in EU law. For example, the Platform-to-Business (“P2B”) Regulation establishes the Commission’s obligation to adopt guidelines in order to assist platforms in complying with their duty to disclose the main parameters determining ranking. Similarly, the Audiovisual Media Services (“AVMS”) Directive establishes the Commission’s obligation to issue guidelines regarding the calculation of the “European works” quota that on-demand service providers must fulfil. In the same vein, the European Electronic Communications Code (“EECC”) provides that the Commission should adopt guidelines for market analysis and the assessment of significant market power.
It is paradoxical that the above instruments establish the Commission’s obligation to publish guidelines whereas the DMA might not. Taking the example of the P2B Regulation, the EU legislator thought it was appropriate to provide guidance on ranking transparency. The DMA is a far more extensive and complex instrument, regulating practices on inter alia interoperability, mandated data sharing, data silos, and FRAND access to the platform. In other words, the DMA is expected to raise far more issues than the P2B Regulation.
Second, the Council’s amendment suggests that guidelines could be adopted after the Commission has built some experience from monitoring compliance with the DMA. It is not clear why the Commission should follow a “wait and see” approach. The Commission proposed the DMA, and it is the institution that would be entrusted with overseeing effective implementation due to the expertise it has built in the area in recent years. In other words, the Commission already has a good idea of what gatekeepers need to do to comply with the DMA. It is worth noting that the other regulatory initiatives mentioned above did not subject the Commission’s obligation to adopt guidelines to the condition that it has gained compliance experience. Admittedly, digital markets move fast. However, this should not preclude the provision of guidance to all affected stakeholders before compliance experience has been gained. The EECC establishes a sensible approach, laying down that “[t]he Commission should review [its] guidelines regularly […] taking into account the case-law of the Court of Justice, economic thinking and actual market experience.” Adopting a different approach in the DMA would not make much sense.
In sum, similar to other regulatory initiatives that introduced new and complex obligations, there should ideally be an obligation for the Commission to publish guidelines helping with the interpretation of the obligations contained in Articles 5 and 6. Those guidelines could be fairly basic to start with and then be regularly reviewed to reflect the experience gained by the Commission in implementing and enforcing the DMA and the rapidly changing nature of digital markets.
The need for a proper regulatory dialogue
Aside from guidelines, which would provide general guidance as to the interpretation of the DMA obligations, there is a need for gatekeepers to be able understand how to comply with complex obligations imposed on them under the DMA, taking into account the specificities of their business model. The idea is not to give opportunities to designated gatekeepers to slow down and obfuscate implementation (and this is why reasonable timelines need to be set), but to contribute to the correct interpretation and effective application of the DMA by allowing a gatekeeper to ask the Commission whether the measures it intends to take are appropriate.
This is the objective of the so-called regulatory dialogue envisaged in the DMA. Given the novelty of this instrument and the wide array of businesses and practices it will cover, such dialogue will be particularly important for the first generation of gatekeepers navigating compliance with the DMA.
In this post, we will focus on two issues of concern regarding the regulatory dialogue: first, the limited scope of the regulatory dialogue, which may only take place with regard to Article 6 obligations; and second, questions that arise as to how the dialogue will work in practice.
The scope of regulatory dialogue
The Commission’s proposal provides that gatekeepers “may request the opening of proceedings pursuant to Article 18 for the Commission to determine whether the measures that the gatekeeper intends to implement or has implemented under Article 6 are effective in achieving the objective of the relevant obligation in the specific circumstances” (Article 7(7)). The possibility of a regulatory dialogue is, therefore, limited to questions of compliance with those obligations that are identified by the Commission as “susceptible of being further specified”. Both the Council and the Parliament, in their respective texts, maintain this focus of the regulatory dialogue on Article 6 obligations.
The limited scope of the regulatory dialogue to Article 6 obligations is not inherently problematic. Obligations that are sufficiently clear and precise and compliance with which could be achieved through the adoption of straightforward measures do not need to be subject to further discussion: gatekeepers should simply take the necessary measures to comply. But, to the extent that the final text of Article 5 contains obligations effective compliance with which would not be a simple task (either because it would not be clear how the obligation would apply in different contexts or because compliance would require additional and likely complex implementing measures), the possibility of a regulatory dialogue for such Article 5 obligations should not be dismissed from the outset. Whether the limited scope would be problematic would, therefore, depend on the final list of obligations included under Article 5. If, for example, obligations initially contained in Article 6 were to be moved to Article 5 or if new, complex obligations found their way into Article 5 during the trilogue negotiations, a limitation of the regulatory dialogue to Article 6 would not be ideal. Of course, the adoption of Commission guidelines could go a long way to address issues of interpretation that might arise with respect to Article 5 obligations, in which case a regulatory dialogue may not be necessary.
Overall, a delicate balance must be struck between the benefit of having the DMA obligations apply swiftly (i.e., without leeway for abuse of this process by gatekeepers seeking to stall compliance with the DMA) and the need to ensure that “good faith” gatekeepers, which genuinely wish to obtain guidance by the regulator as to whether the measures they intend to implement are appropriate, have the opportunity to do so. After all, there is nothing to gain if gatekeepers fail to effectively comply with the DMA simply because it has not been clear to them what measures to adopt to ensure compliance.
On a related note, the Council’s and the Parliament’s texts explicitly state that the Commission should have discretion to decide whether to engage in a regulatory dialogue once requested by the gatekeeper. While such discretion is understandable – and even warranted – as it would ensure the efficient allocation of the Commission’s resources and constitute a safeguard against abuse of this process by gatekeepers acting in “bad faith”, it should not result in situations where crucial questions would remain unanswered, thus hindering the effective compliance with the Regulation. In this regard, the proposal by both co-legislators whereby the Commission should, in deciding whether to engage in such a dialogue, respect equal treatment, proportionality and the principle of good administration/due process (and, in the case of the Parliament, the requirement to justify in writing why it decides to not engage in a dialogue) should be seen in a positive light.
The regulatory dialogue in practice
The currently adopted texts do not discuss the specifics of the regulatory dialogue process in any depth. While a detailed analysis on this point goes beyond the scope of this post, it should be noted that the co-legislators (and in particular the Parliament) have introduced amendments to the relevant provisions which make it difficult to understand how the regulatory dialogue will function in practice.
But perhaps the issue of greatest concern has to do with the interaction between the regulatory dialogue and the timeline for compliance with the DMA obligations. The Commission’s and the Council’s texts require gatekeepers to comply with the Article 5 and 6 obligations within six months following designation, while the Parliament shortens the respective timeframe to four months (Article 3(7)). Compliance with the DMA within such a short timeframe will be a burdensome task for gatekeepers, which must devote considerable time and effort to ensure that they have adopted the complex technical and organizational measures that are necessary to comply with the DMA obligations.
At the same time, this means that, for any questions that arise as to the appropriate implementing measures the gatekeeper should adopt, the window of opportunity to discuss such questions with the Commission and obtain answers is rather short. In fact, the timeline for compliance with the DMA obligations matches or (in the case of the unclear Parliament’s text) could be shorter than the timeline for the conclusion of the regulatory dialogue (and this, assuming that the gatekeeper will request the Commission to engage in a regulatory dialogue immediately after designation and that the Commission will open the relevant Article 18 proceedings without any delays). In other words, gatekeepers which are eager to comply with the DMA should already work on adapting their products and services to make them compliant before the Commission confirms that these measures are indeed appropriate. If the Commission were to find, following the regulatory dialogue, that the measures (intended to be) adopted by the gatekeeper were inadequate, the gatekeeper would find itself in a situation where it would have to reconsider these measures at a time when it should already be complying with the DMA. There is, therefore, a clear gap in the system, which must be closed.
The publication of interpretative guidelines by the Commission and the existence of a solid regulatory dialogue framework constitute two separate but complementary procedural aspects which would contribute significantly to the effective implementation of the DMA. While the case for adoption of interpretative guidelines is more clear-cut – with the benefit of having such guidelines adopted being unquestionable – the case for having a proper regulatory dialogue in place is more complex as it involves the balancing of various considerations. One thing is, however, certain: the DMA will make a difference only if it is clear how to comply with its provisions.
Co-authored by Konstantina Bania and Theano Karanikioti