EU Digital Markets Act update: potential gatekeepers submit notifications

On 4 July 2023, the European Commissioner for the Internal Market, Thierry Breton, revealed in a LinkedIn post the companies that have declared that they meet the thresholds to qualify as gatekeepers under the Digital Markets Act (DMA). The deadline for such notifications was yesterday, 3 July 2023. The list includes the following seven companies: Alphabet (Google's parent company), Amazon, Apple, ByteDance (TikTok's parent company), Meta (Facebook's parent company), Microsoft and, Samsung. Although only American and Asian companies have come forward so far, Dutch company Booking.com has declared it is likely to meet the thresholds by the end of the year and will then notify the Commission.

Following the procedure set out in Article 3 of the DMA, the Commission will now assess the submissions and designate the gatekeepers by 6 September 2023 (within 45 days of the submissions). In particular, the Commission will have to consider ByteDance's arguments pursuant to Article 3(5) of the DMA that, although it meets all the relevant thresholds, it does not satisfy the overall requirements for designation as a gatekeeper. It will also likely start considering whether to open investigations into companies which do not meet the quantitative thresholds in the DMA, and therefore did not submit notifications today, but may meet the criteria for designation on a qualitative basis.

Once designated, gatekeepers will have 6 months to comply with the rules set out in the DMA (see our previous post from October 2022 for an overview of these obligations). As part of preparing for implementation of the DMA, tomorrow, 5 July 2023, the Commission will close its public consultation on the draft template for the compliance report that gatekeepers will have to submit under the DMA. The Commission has already published an Implementing Regulation, made institutional changes in DG COMP, conducted stakeholder workshops, and Member States have developed national proposals granting National Competition Authorities powers (for updates on these developments, see our see our previous post from May 2023).

Reminiscent of classic American antitrust policy and indeed the core of the prohibition of abuse of a dominance contained in Article 102 TFEU, when announcing the notifications today Mr. Breton reminded his audience – and implicitly the potential gatekeepers – that "with great power comes great responsibility – and impeccable behaviour".

The notifications today indicate which companies may hold this "great power" of being a gatekeepers under the DMA, and from next spring will have to have taken steps to ensure they exercise this with "great responsibility" and have "impeccable behaviour". In practice the obligations in the DMA are slightly more specific, but should not in any way be underestimated - they may require significant changes to some of the gatekeepers' core platform services.

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