The draft Implementing Regulation of the Digital Markets Act: Initial thoughts

On Friday 9 December 2022, the European Commission (“Commission”) published three documents relating to the implementation of the Digital Markets Act.

  • The draft implementing regulation, which provides further practical details as to the implementation of the DMA;
  • Annex 1, which is the Form GD (for gatekeeper designation); and
  • Annex 2, which deals with the format and length of the documents to be submitted.

Interested parties have until 6 January 2023 to comment on these documents.

The purpose of this blog post is not to provide a detailed description of these documents, but some first general impressions.

These documents give the impression that the Commission sees the notification and rebuttal processes laid down in Article 3 of the DMA as low-key affairs despite the very serious consequences that designation may have for the notifying undertaking. This impression is particularly conveyed by the strict page limits imposed by the Commission for Form GD (maximum 50 pp. for each core platform service (CPS)) and the rebuttal (maximum 25 pp. for each CPS). This certainly contrasts with what can be observed in the other main form of ex ante intervention carried out by the Commission, that is, merger control, where the notifying parties regularly submit hundreds of pages in the most important cases.

Limiting the rebuttal to 25 pp. will raise some eyebrows. Because Article 3(2) of the DMA presumes that the qualitative conditions are met on the basis of quantitative thresholds, some CPS providers might be caught under the scope of the DMA whereas they cannot be considered as gatekeepers under any reasonable economic definition of the term. In that context, the Commission should afford such “collateral victims” a proper opportunity to demonstrate that, although they fall under the quantitative thresholds set in Article 3(2), they do not satisfy the requirements of Article 3(1). Unless it affords such an opportunity, the Commission might expose itself to challenges before the General Court on the basis of the general principles of EU law (e.g., proportionality). One should note, however, the possibility for the notifying undertaking to obtain a page number extension based on Article 4 (see below).

The draft implementing Regulation

The draft Implementing Regulation lays down:

  • detailed arrangements in respect of the form, content and other details of notifications and submissions pursuant to Article 3 [which relate to notification and rebuttal], of reasoned requests pursuant to Articles 8(3), 9 and 10 [which relate to further specification measures, suspension, and exemption for grounds of public health and public security], of regulatory reports pursuant to Article 11, of notifications and submissions made pursuant to Articles 14 and 15 of the DMA [which relate to the obligation to inform about concentrations and the obligation of an audit of any techniques for profiling of consumers].
  • the practical arrangements of the proceedings pursuant to Article 29 of the DMA [which relates to non-compliance];
  • the practical arrangements for exercising rights to be heard and for the terms of disclosure provided for in Article 34 of the DMA; and
  • the practical arrangements regarding time limits.

Although as noted above, the purpose of this post is not to analyze the document in detail, here are a few observations:

  • Article 4 of the Implementing Regulation provides that the Commission “may, upon reasoned request, authorise an undertaking or association of undertakings to exceed those page limits [set in Annex II] where and to the extent that the undertaking or association of undertakings substantiates that it is objectively impossible to deal with particularly complex legal or factual issues within the relevant page limits”. Though this is a sensible approach, I assume that any page extension that is granted will still be limited. The submissions of the notifying undertaking will thus have to be focused.
  • The rules regarding the opening of proceedings (as per Article 29), right to be heard and access to the file seem quite standard, except that these processes will be subject to tight time constraints considering that, as per Article 29(2), the Commission “shall endeavour to adopt its non-compliance decision within 12 months from the opening of proceedings.” While investigations over non-compliance will be less time-consuming than, for instance, those under Article 102 TFEU as the obligations/prohibitions imposed on designated gatekeepers are essentially per se in nature, such a tight timeframe will be challenging for all those involved. That may lead to some tension with the possibility for the gatekeeper to exercise its rights of defence. 

Annex I: the Form GD

The Form GD is meant to be short and to the point (which is reflected by the page limitation discussed above). It essentially comprises two components: (i) the delineation of the CPS(s) and (ii) the fulfillment of the quantitative thresholds set in Article 3(2). If the notifying undertaking wants to submit a rebuttal, the latter will have to be added as an Annex.

Section 2 focuses on the delineation of such services, which will often be a tricky issue. In some cases, the Commission will for instance have to decide whether the notifying undertaking provides one CPS or several distinct CPSs. This of course has an impact on the fulfillment of the quantitative thresholds set in Article 3(2) of the DMA and the Commission will want to prevent the notifying undertaking from engaging in clever delineations of the CPS(s) it provides to escape designation. The Commission thus requests the notifying undertaking to provide information on any plausible alternative delineation of each of the CPS(s) it provides, and a detailed explanation of the boundaries between the distinct CPS, including the manner in which the methodology included in the annex of the DMA has been applied.

Section 3 focuses on the information relating to the quantitative thresholds in Article 3(2)(a) of the DMA (i.e., the financial thresholds), while Section 4 focuses on the information relating to the quantitative thresholds in Article 3(2)(b) and (c) of the DMA (i.e., the user number thresholds).

Annex II: The format and length of the documents

As already noted, the length of the Form GD is limited to 50 pp. and the rebuttal to 25 pp. The reasoned requests as per Articles 9 and 10 of the DMA will be limited to 30 pp., and the replies to the preliminary findings of the Commission with a view to adopting a decision pursuant to Articles 8, 9(1), 10(1), 17, 18, 24, 25, 29, 30 and 31(2) of the DMA will be limited to 50 pp.

The notifying undertaking will not be able to “cheat” on the page limits by using a super small font as “the text shall be in a commonly-used font (such as Times New Roman, Courier or Arial) in at least 12 point in the body of the text and at least 10 point in the footnotes, with single line spacing, and upper, lower, left and right margins of at least 2.5 cm.” The notifying undertakings may of course try to evade page limitations by shifting some of their arguments in annexes (as is often the case before the EU courts), but the Commission may seek to curb such attempts.

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