EUROPEAN
COMMISSION
Brussels, 15.12.2020
COM(2020) 842 final
2020/0374 (COD)
Proposal for a
REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
on contestable and fair markets in the digital sector (Digital Markets Act)
(Text with EEA relevance)
{SEC(2020) 437 final} - {SWD(2020) 363 final} - {SWD(2020) 364 final}
EN EN
EXPLANATORY MEMORANDUM
1. CONTEXT OF THE PROPOSAL
• Reasons for and objectives of the proposal
Digital services have brought important innovative benefits for users and contributed to the
internal market by opening new business opportunities and facilitating cross-border trading.
Today, these digital services cover a wide range of daily activities including online
intermediation services, such as online marketplaces, online social networking services,
online search engines, operating systems or software application stores. They increase
consumer choice, improve efficiency and competitiveness of industry and can enhance civil
participation in society. However, whereas over 10 000 online platforms operate in Europe’s
digital economy, most of which are SMEs, a small number of large online platforms capture
the biggest share of the overall value generated.
Large platforms have emerged benefitting from characteristics of the sector such as strong
network effects, often embedded in their own platform ecosystems, and these platforms
represent key structuring elements of today’s digital economy, intermediating the majority of
transactions between end users and business users. Many of these undertakings are also
comprehensively tracking and profiling end users.1 A few large platforms increasingly act as
gateways or gatekeepers between business users and end users and enjoy an entrenched and
durable position, often as a result of the creation of conglomerate ecosystems around their
core platform services, which reinforces existing entry barriers.
As such, these gatekeepers have a major impact on, have substantial control over the access
to, and are entrenched in digital markets, leading to significant dependencies of many
business users on these gatekeepers, which leads, in certain cases, to unfair behaviour vis-à-
vis these business users. It also leads to negative effects on the contestability of the core
platform services concerned. Regulatory initiatives by Member States cannot fully address
these effects; without action at EU level, they could lead to a fragmentation of the Internal
Market.
Unfair practices and lack of contestability lead to inefficient outcomes in the digital sector in
terms of higher prices, lower quality, as well as less choice and innovation to the detriment of
European consumers. Addressing these problems is of utmost importance in view of the size
of the digital economy (estimated at between 4.5% to 15.5% of global GDP in 2019 with a
growing trend) and the important role of online platforms in digital markets with its societal
and economic implications.2
Although some of these phenomena specific to the digital sector and to core platform services
are also observed to some extent in other sectors and markets, the scope of the proposal is
limited to the digital sector as there the problems are the most pressing from an internal
market perspective.
1
Such tracking and profiling of end users online is as such not necessarily an issues, but it is important to
ensure that this is done in a controlled and transparent manner, in respect of privacy, data protection and
consumer protection.
2
For example, the importance of ensuring a level playing field that supports essential values such as cultural
diversity and media pluralism was for instance stressed by the Council in its conclusions on the strengthening
of European content in the digital economy and on safeguarding a free and pluralistic media system.
EN 1 EN
Weak contestability and unfair practices in the digital sector are more frequent and
pronounced in certain digital services than others. This is the case in particular for widespread
and commonly used digital services and infrastructures that mostly directly intermediate
between business users and end users. The enforcement experience under EU competition
rules, numerous expert reports and studies and the results of the OPC show that there are a
number of digital services that have the following features: (i) highly concentrated multi-sided
platform services, where usually one or very few large digital platforms set the commercial
conditions with considerable autonomy; (ii) a few large digital platforms act as gateways for
business users to reach their customers and vice-versa; and (iii) gatekeeper power of these
large digital platforms is often misused by means of unfair behaviour vis-à-vis economically
dependent business users and customers.3 The proposal is therefore further limited to a
number of ‘core platform services’ where the identified problems are most evident and
prominent and where the presence of a limited number of large online platforms that serve as
gateways for business users and end users has led or is likely to lead to weak contestability of
these services and of the markets in which these intervene. These core platform services
include: (i) online intermediation services (incl. for example marketplaces, app stores and
online intermediation services in other sectors like mobility, transport or energy) (ii) online
search engines, (iii) social networking (iv) video sharing platform services, (v) number-
independent interpersonal electronic communication services, (vi) operating systems,
(vii) cloud services and (viii) advertising services, including advertising networks,
advertising exchanges and any other advertising intermediation services, where these
advertising services are being related to one or more of the other core platform services
mentioned above.
The fact that a digital service qualifies as a core platform service does not mean that issues of
contestability and unfair practices arise in relation to every provider of these core platform
services. Rather, these concerns appear to be particularly strong when the core platform
service is operated by a gatekeeper. Providers of core platform providers can be deemed to
be gatekeepers if they: (i) have a significant impact on the internal market, (ii) operate
one or more important gateways to customers and (iii) enjoy or are expected to enjoy an
entrenched and durable position in their operations.
Such gatekeeper status can be determined either with reference to clearly circumscribed and
appropriate quantitative metrics, which can serve as rebuttable presumptions to determine the
status of specific providers as a gatekeeper, or based on a case-by-case qualitative assessment
by means of a market investigation.
The identified gatekeeper-related problems are currently not (or not effectively) addressed by
existing EU legislation or national laws of Member States. Although legislative initiatives
have been taken or are under consideration in several Member States, these will not be
sufficient to address the problems. Whilst such initiatives are limited to the national territory,
gatekeepers typically operate cross-border, often at a global scale and also often deploy their
business models globally. Without action at EU level, existing and pending national
legislation has the potential to lead to increased regulatory fragmentation of the platform
space.
The objective of the proposal is therefore to allow platforms to unlock their full potential by
addressing at EU level the most salient incidences of unfair practices and weak contestability
3
See also Section 5.2.1 of the Impact Assessment for further details.
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so as to allow end users and business users alike to reap the full benefits of the platform
economy and the the digital economy at large, in a contestable and fair environment.
The need to address these concerns in the digital economy was stressed in the Commission
Communication ‘Shaping Europe’s digital future’4 which considered that, ‘based on the
single market logic, additional rules may be needed to ensure contestability, fairness and
innovation and the possibility of market entry, as well as public interests that go beyond
competition or economic considerations’. It also announced that the Commission ‘will further
explore,(…), ex ante rules to ensure that markets characterised by large platforms with
significant network effects acting as gatekeepers, remain fair and contestable for innovators,
businesses, and new market entrants’.
• Consistency with existing policy provisions in the policy area
This proposal builds on the existing P2B Regulation5, without conflicting with it. The
definitions used in the present proposal are coherent with that Regulation, in particular the
definitions of ‘online intermediation services’ and ‘online search engines’. In addition to the
baseline of transparency and fairness rules applicable to all online platforms regardless of
their size or position introduced in the P2B Regulation, the present proposal establishes
clearly defined obligations vis-a-vis a very limited number of cross-border providers of core
platform services that serve as important gateways for business users to reach end users.
Finally, the Commission can benefit in its enforcement of those obligations from the
transparency that online intermediation services and online search engines have to provide
under the P2B Regulation on practices that could be illegal under the list of obligations if
engaged in by gatekeepers.
The proposal is also fully coherent with the proposal for a Digital Services Act (‘DSA’). The
DSA is a horizontal initiative focusing on issues such as liability of online intermediaries for
third party content, safety of users online or asymmetric due diligence obligations for
different providers of information society services depending on the nature of the societal
risks such services represent. In contrast, the DMA proposal is concerned with economic
imbalances, unfair business practices by gatekeepers and their negative consequences, such as
weakened contestability of platform markets.
• Consistency with other Union policies
The proposal is coherent with the Commission’s digital strategy in its contribution to ensuring
a fair and competitive digital economy, one of the three main pillars of the policy orientation
and objectives announced in the Communication ‘Shaping Europe's digital future’. It will
constitute a coherent, effective and proportionate framework to address problems in the digital
economy that currently cannot be tackled or cannot be tackled effectively.
The proposal complements existing EU (and national) competition rules. It addresses unfair
practices by gatekeepers that either fall outside the existing EU competition rules, or that
cannot be as effectively addressed by these rules, considering that antitrust enforcement
concerns the situation of specific markets, inevitably intervenes after the restrictive or abusive
conduct has occurred and involves investigative procedures to establish the infringement that
4
Regulation (EU) 2019/1150 of the European Parliament and of the Council of 20 June 2019 on promoting
fairness and transparency for business users of online intermediation services (Text with EEA relevance), OJ
L 186, 11.7.2019, p. 57.
5
Regulation (EU) 2019/1150 of the European Parliament and of the Council of 20 June 2019 on promoting
fairness and transparency for business users of online intermediation services (Text with EEA relevance), OJ
L 186, 11.7.2019, p. 57.
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take time. The current proposal minimises the detrimental structural effects of unfair practices
ex ante, without limiting the ability to intervene ex post under EU and national competition
rules.
The proposal is aligned with other EU instruments, including with the EU Charter of
Fundamental Rights and the European Convention of Human Rights (‘ECHR’), the General
Data Protection Regulation6, and the EU’s consumer law acquis.
The proposal complements the data protection laws. Transparency obligations on deep
consumer profiling will help inform General Data Protection Regulation (‘GDPR’)
enforcement, whereas mandatory opt-out for data combination across core platform services
supplements the existing level of protection under the GDPR. The proposal clarifies that it is
for the gatekeepers to ensure that compliance with the obligations laid down in the Regulation
should be done in full compliance with other EU law, such as protection of personal data and
privacy or consumer protection.
The proposal is also coherent with the targeted and tailor-made ex ante regulation of specific
sectors, including the rules applicable to electronic communication services or short-selling as
well as with existing initiatives targeting harmful trading practices in the offline world. 7
2. LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY
• Legal basis
Member States apply or are considering to apply divergent national rules to address the
problems arising from the significant degree of dependency of business users on core platform
services provided by gatekeepers and the consequent problems arising from their unfair
conduct vis-à-vis their business users. That situation creates regulatory fragmentation insofar
as the rules on addressing unfairness in dependency relationships with such gatekeepers and
contestability regarding those services diverge in particular as to the preconditions to
intervene and as to the depth of the intervention, and increase compliance costs for companies
operating in the internal market. Without action at EU level, this will be further aggravated
with the adoption of new initiatives pending in several Member States, whereas in other
Member States the unfairness and reduced contestability of core platform services provided
by gatekeepers remain unaddressed. Given the intrinsic cross-border nature of the core
platform services provided by gatekeepers, regulatory fragmentation will seriously undermine
the functioning of the Single Market for digital services as well as the functioning of digital
markets at large. Therefore, harmonisation at EU level is necessary and Article 114 of the
Treaty on the Functioning of the European Union (‘TFEU’) is the relevant legal basis for this
initiative.
6
Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection
of natural persons with regard to the processing of personal data and on the free movement of such data, and
repealing Directive 95/46/EC (General Data Protection Regulation) (Text with EEA relevance), OJ L 119,
4.5.2016, p. 1.
7
See for example Directive (EU) 2019/633 of the European Parliament and of the Council of 17 April 2019 on
unfair trading practices in business-to-business relationships in the agricultural and food supply chain. To
improve farmers’ and small and medium sized businesses’ position in the agri-food supply chain, the EU
adopted this legislation prohibiting certain unfair trading practices between weaker supplier towards stronger
buyers. These include (but are not limited to): late payments for perishable food products, last minute order
cancellations, unilateral changes to contracts, refusal to enter into a written contract, returning unsold or
wasted products or payment for buyer’s marketing.
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• Subsidiarity
The objectives of the proposal cannot be achieved by Member States acting alone, as the
problems are of a cross-border nature, and not limited to single Member States or to a subset
of Member States. The digital sector as such and in particular the core platform services
provided or offered by gatekeepers are of a cross-border nature, as is evidenced by the volume
of cross-border trade, and the still untapped potential for future growth, as illustrated by the
pattern and volume of cross-border trade intermediated by digital platforms. Almost 24% of
total online trade in Europe is cross-border.
Digital players typically operate across several Member States, if not on an EU-wide basis,
which, today, is particularly the case for services such as online advertising, online social
networking services, online marketplaces, cloud computing services, online search services,
video-sharing platform services, number-independent interpersonal communication services
or operating systems. Accordingly, the problems identified have Union relevance, as they
arise across borders and affect several Member States, thus not being limited to the territory
of a Member State.8 That is in particular the case for core platform services provided or
offered by gatekeepers.
Even those Member States who have not yet adopted legislation to address unfairness and
reduced contestability of core platform services provided or offered by gatekeepers are
increasingly considering national measures to that effect. Different national legislation within
the EU, besides being insufficiently effective, may lead to increased fragmentation and
compliance costs for large market players and the business users that rely on them. At the
same time, start-ups and smaller businesses are also negatively impacted by this situation, as
it impedes them from scaling-up and from cross-border expansion, thereby reaching new
markets, offering better and diversified products at more competitive prices and, as the case
may be, growing into challengers of established players in the digital sector. Therefore, by
addressing unfair practices in respect of core platform services operated by gatekeepers at
Union-level, the functioning of the internal market will be improved through clear
behavioural rules that give all stakeholders legal clarity and through an EU-wide intervention
framework allowing to address effectively harmful practices in a timely and effective manner.
One of the conditions for the designation as gatekeeper is that the provider of core platform
services has a significant impact on the internal market.
• Proportionality
The proposal aims to contribute to the proper functioning of the Single Market for digital
services by ensuring that markets across the Union where gatekeepers are present are
contestable and fair. This should promote innovation, high quality of digital products and
services, fair and competitive prices, and free choice for users in the digital sector.
In this context, the proposal focuses only on those digital services that are most widely used
by business users and end users (“core platform services”) and where, based on current
conditions, concerns about weak contestability and unfair practices by gatekeepers are more
apparent and pressing from an internal market perspective. The core platform services in
8
The replies of citizens and stakeholders to the Commission’s Open Public Consultation (‘OPC’) and the
feedback of the National Competition Authorities (‘NCAs’) replying to the Commission’s questionnaire
indicate that market failures appear to be widespread across the Union, in particular in digital markets of
cross-border nature. See Summary of the Stakeholder Consultation on the New Competition Tool and
Summary of the contributions of the NCAs to the impact assessment of the new competition tool. While
respondents indicated that market failures may occur in all industry sectors, several respondents emphasised
that they are particularly prominent in the digital sphere. See also Annex 5.4 of the Impact Assessment.
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scope are only those where there is strong evidence of (i) high concentration, where usually
one or very few large online platforms set the commercial conditions with considerable
autonomy from their (potential) challengers, customers or consumers; (ii) dependence on a
few large online platforms acting as gateways for business users to reach and have
interactions with their customers; and (iii) the power by core platform service providers often
being misused by means of unfair behavior vis-à-vis economically dependent business users
and customers.
The proposal therefore applies only to those providers that meet clearly defined criteria for
being considered a gatekeeper, which are set out above. The use of quantitative thresholds, as
the basis of a rebuttable presumption, is complemented by the use of qualitative criteria
specified in the proposal. That allows the Commission to designate as gatekeepers the
providers of core platform services that exhibit the same or similar risks for fairness and
contestability of the market and at the same time guarantees that the obligations apply to the
relevant providers of core platform services only.
The list of obligations foreseen by the proposal has been limited to those practices (i) that are
particularly unfair or harmful, (ii) which can be identified in a clear and unambiguous manner
to provide the necessary legal certainty for gatekeepers and other interested parties, and (iii)
for which there is sufficient experience. The proposal provides for the possibility of a tailored
application of some of the obligations through a dialogue between the Commission and the
gatekeepers concerned. In addition, it allows to cover in a flexible way additional practices
that are similarly unfair or that equally put fairness or contestability at risk after a thorough
market investigation on the impact of those practices. This mechanism ensures that there is no
over-regulation while at the same time avoiding a lack of intervention in relation to similar
practices by the same gatekeepers, where practices may evolve over time.
The proposed measures are proportionate since they achieve their objective by only imposing
a burden on undertakings in the digital sector in a targeted manner. The proposal requires the
cooperation of those companies that are subject to an investigation, but the administrative
costs would be proportional and would be unlikely to require significant additional costs in
view of the already existing regulatory structures due to the application of other pieces of EU
legislation (e.g. EU Merger Regulation; Consumer Protection Cooperation (‘CPC’)
Regulation). As regards the compliance costs for gatekeepers, they would be reasonable, since
they would largely substitute for the high costs that large providers of core platform services
incur for complying with divergent regulatory measures gradually put or likely to be put in
place in different Member States. Such costs would imply some additional legal compliance
officers to check company policies against the new rules and some employees to interface
with the Commission and respond to requests for information.9
• Choice of the instrument
Only a legislative instrument can effectively address the problems identified. A Regulation is
in addition necessary, as it is directly applicable in Member States, establishes the same level
of rights and obligations for private parties, and enables the coherent and effective application
of rules in the inherently cross-border online intermediated trade generated in the online
platform economy. This is most suited to address the problems of fairness and contestability
identified and prevent fragmentation of the Single Market for core platform services provided
or offered by a gatekeeper.
9
See Section 6.6.1. of the Impact Assessment for further analysis.
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3. RESULTS OF STAKEHOLDER CONSULTATIONS AND IMPACT
ASSESSMENTS
• Stakeholder consultations
The Commission has consulted widely on a broad range of online platform-related issues,
including the economic power of very large online platforms with a gatekeeping role.
First, between 2 June and 8 September 2020, the Commission ran two separate open public
consultations which were referring to two separate Inception Impact Assessments for (i) the
Digital Services Act package: Ex ante regulatory instrument for large online platforms with
significant network effects acting as gate-keepers in the European Union’s internal market;10
and the other one for (ii) the New Competition Tool.11
Second, the Commission ran a stakeholder consultation on the interim reports by the
Observatory for the Online Platform Economy12, supporting the current initiative.13
Thirdly, workshops,14 conferences15 as well as research conducted by the JRC informed the
problem definition and helped identify preliminary policy options. In addition to the
consultation tools used, the Commission's services also met bilaterally with stakeholders in
the context of the public consultations and the feedback period for the inception impact
assessments.
Finally, a structured dialogue with Member States, notably through the e-Commerce expert
group and bilateral and multilateral exchanges and conferences contributed to the design of
policy options.
In general, the public consultations offered strong support for an intervention tackling unfair
practices engaged in by gatekeepers. In fact, the large majority of the respondents to the
public consultations and to a separate questionnaire addressed to national competition
authorities agreed that there are structural problems that cannot be addressed under the
existing competition rules; the same majority believed that the Commission should be able to
intervene in markets where gatekeepers are present. This view was expressed by a large
majority of businesses and business associations, all civil society organisations (including
Non-Governmental Organisations (‘NGOs’) and trade unions) and all public authorities.16
Consumer organisations like BEUC have also prominently flagged the particular concerns
10
https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/12418-Digital-Services-Act-package-
ex-ante-regulatory-instrument-of-very-large-online-platforms-acting-as-gatekeepers and
https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/12416-New-competition-tool.
11
The detailed overview of the results of these consultations is presented in Annex 2 to the Impact Assessment.
12
https://platformobservatory.eu/.
13
https://ec.europa.eu/digital-single-market/en/news/commission-expert-group-publishes-progress-reports-
online-platform-economy.
14
Observatory for the Online Platform Economy Workshop on Market power and Online Advertising, 29
January 2020; on 28 July 2020 and 10 September 2020 ICF, WIK-Consult GmbH, Cullen International, and
CEPS organised high-level academic expert panels to support the Commission in the preparation of the
Impact Assessment of platforms with significant network effects acting as gatekeeper.
15
Such as the conference “Shaping competition policy in the era of digitisation”:
https://ec.europa.eu/competition/scp19/.
16
Summary of the Open Public Consultation Ex Ante Rules, Summary of the Stakeholder Consultation on the
New Competition Tool and Summary of the contributions of the NCAs to the impact assessment of the new
competition tool please see Annex 2 to the Impact Assessment.
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surrounding online platforms and digital markets.17 Those respondents considered that an
intervention tackling these concerns would both create the right innovation incentives, and
contribute to increased consumer choice paving the way for new platforms and innovative and
privacy-friendly services.
Online platforms were split on the issue, with the majority of large online platforms and their
representative associations questioning the need for a new gatekeeper instrument. On the
other side, many small and medium sized platforms, in particular those that are business users
of large online platforms, expressed their support for a new gatekeeper instrument.
Those disagreeing referred to the fact that the concept of a gatekeeper is too broad and should
instead be assessed on a case-by-case basis and that the Commission can already intervene in
the case of the conduct of a gatekeeper contravening Article 102 TFEU. However, the
Commission considered that Article 102 TFEU is not sufficient to deal with all the problems
associated with gatekeepers, given that a gatekeeper may not necessarily be a dominant
player, and its practices may not be captured by Article 102 TFEU if there is no demonstrable
effect on competition within clearly defined relevant markets. Moreover, Article 102 TFEU
does not always allow intervening with the speed that is necessary to address these pressing
practices in the most timely and thus most effective manner.
The vast majority of respondents also considered that dedicated rules on platforms should
include prohibitions and obligations for gatekeeper platforms. They also suggested that
remedies could be more procedural in nature rather than prescribing a given course of
conduct. The large majority of stakeholders believed that the proposed list of problematic
practices, or “blacklist”, should be targeted to clearly unfair and harmful practices of
gatekeeper platforms.
As regards the definition of a gatekeeping position, the stakeholder views were split. Some
platforms argued that incorporating different services into the offering of a single platform
company says little about the strength of a platform, as would also be the case for the ability
to leverage assets from one area to another. It was suggested that gatekeeper designations
should be business model agnostic, gatekeeper assessments should be reviewed periodically,
gatekeeper designations should apply to identified activities, and some rules should apply on a
sector-wide basis.
In general, stakeholders of all categories pointed out the need to ensure a high level of
coherence and legal certainty, the need to ensure that the criteria used to identify gatekeepers
should be transparent, objective and easily measurable. Users mostly referred to a
combination of both quantitative and qualitative criteria.
National Authorities expressed their support for a new gatekeeper instrument and the need for
an EU-level approach to avoid regulatory fragmentation, whilst emphasizing the importance
of involving the responsible national government representatives in the legislative project in
advance.
Civil society and media publishers also strongly supported a new gatekeeper instrument. Both
called for an adequate degree of transparency in the market as well as the guarantee of a
certain degree of media diversity and the respect of consumers' autonomy and choice.
• Collection and use of expertise
17
For example, BEUC’s reply to the OPC states that the “challenges posed in particular by large players in
digital markets require new instruments in addition to traditional competition law enforcement in order to
protect consumers’ interests in an effective and timely manner.”
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The present initiative is supported by an impact assessment study and several external support
studies.18 In addition, several public consultations and multiple studies and reports were
carried out by the Commission or external contractors between 2018 and 2020. The
Observatory for the Online Platform Economy supported by its expert group of 15 academic
experts as well as by a large support study, provided a number of reports and analytical papers
feeding into the work on the definition of problems. In-house economic research as well as
policy design support by the Joint Research Centre (‘JRC’) further informed the Impact
Assessment underlying this initiative. Member States were in addition consulted through an
online consultation, which fed into a meeting of the e-commerce expert group dedicated to
this initiative. Finally, the Commission organised a number of conferences, workshops and
meetings with academic experts, whose views have contributed to the problem framing and
evidence collection strategy. A number of Member States’ position papers on gatekeeper
platforms, as well as numerous reports and studies from countries outside the EU, all
contributed to the shaping of the instrument.19
• Impact assessment
The Impact Assessment underpinning the proposal was considered by the Commission's
Regulatory Scrutiny Board, which issued a positive opinion on 10 December 2020. The
opinion of the Board, the recommendations and an explanation of how they have been taken
into account are included in Annex 1 of the Staff Working Document accompanying this
proposal. Annex 3 provides an overview of who would be affected by this proposal and how.
The Commission examined different policy options to achieve the general objective of the
present initiative, which is to ensure the proper functioning of the internal market by
promoting effective competition in digital markets and in particular a contestable and fair
online platform environment.
In order to address the problems stemming from problematic gatekeeper conduct, three main
policy options were compared: Option 1 - Pre-defined list of gatekeepers and self-
executing obligations; Option 2 - Partially flexible framework of designation and
updating of obligations, including regulatory dialogue for the implementation of some;
and Option 3 - Flexible option based exclusively on qualitative scoping thresholds. Each
of these options left more detailed design choices open for political consideration, for
example around the precise combination and level of the quantitative scoping thresholds to be
used or the exact scope of the remedies available in case of a systematic non-compliance with
the obligations by the designated gatekeeper.
All options envisaged implementation, supervision and enforcement at the EU level by the
Commission as the competent regulatory body. Given the pan-European reach of the targeted
companies, a decentralised enforcement model does not seem to be a conceivable alternative,
including in light of the risk of regulatory fragmentation that the initiative is meant to address,
nor would it be proportionate given the limited number of gatekeepers that would be in scope
of the proposed framework. However, to integrate the national expertise in the platform
economy, the initiative envisages that the Commission consults before taking certain
decisions (e.g. on non-compliance; fines) a committee composed of representatives of
Member States – the Digital Markets Advisory Committee.
18
Impact Assessment Support Study (ICF); M. Motta & M. Peitz (2020), Intervention trigger and underlying
theories of harm - Expert advice for the Impact Assessment of a New Competition Tool; G. S. Crawford, P.
Rey, & M. Schnitzer (2020), An Economic Evaluation of the EC’s Proposed “New Competition Tool”.
19
See also Section 5 of Annex 1 of the Impact Assessment on the various sources of evidence used.
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The preferred option (Option 2) is constituted by (a) a closed list of core platform services;
(b) a combination of quantitative and qualitative criteria to designate providers of core
platform services as gatekeepers; (c) directly applicable obligations, including certain
obligations where a regulatory dialogue may facilitate their effective implementation; and (d)
a possibility for the Commission to update the instrument, following a market investigation,
as regards the obligations for gatekeepers, by way of delegated acts insofar as new practices
are identified that are equally unfair and likely to impair contestability and through amending
proposals in the other cases. Market investigations may also point to the need for an
amendment of the list of core platform services.
This option was considered to be able to address in the most effective way the objectives of
this initiative. It provides for timely intervention for all the identified problematic practices,
while allowing for some of these a regulatory dialogue for implementing measures by the
designated gatekeeper. It further allows tackling new unfair practices, thus enabling to address
market failures in the dynamically changing digital environment. At the same time, for those
gatekeepers that are foreseen to have an entrenched and durable position in their operations in
the near future, but who do not yet enjoy such a position, the proposal identifies a
proportionate sub-set of obligations that are particularly relevant to safeguard and enhance
contestability.
The preferred option will increase the contestability of core platform services and the broader
digital sector, and it will help businesses overcome the barriers stemming from market
failures or from gatekeepers’ unfair business practices. This will help to foster the emergence
of alternative platforms, which could deliver high-quality, innovative products and services at
affordable prices. Fairer and more equitable conditions for all players in the digital sector
would allow them to take greater advantage of the growth potential of the platform economy.
The benefits can be expected to lead to a greater innovation potential amongst smaller
businesses as well as an improved quality of service, with associated increases in consumer
welfare. The improved contestability of core platform services under the preferred option has
the potential to yield a consumer surplus estimated at EUR 13 billion, i.e. an increase of
around 6% as compared to the baseline scenario.20
The main cost relates to compliance costs for gatekeepers as a result of the new rules.
Businesses other than gatekeeper platforms may incur certain administrative costs when
complying with information requests. These latter costs are, however, unlikely to represent a
substantial increase from compliance costs businesses would otherwise incur due to
information requests in EU competition law cases or under different specific national rules.
The impacts of the policy options on different categories of stakeholders (gatekeepers,
competitors, business users, consumers, regulatory authorities) are explained in detail in
Annex 3 of the Impact Assessment supporting this initiative. The annex also assesses the
impact of each obligation per stakeholder category impacted. The assessment is both
quantitative and qualitative to the extent possible.
Concerning the impact of the initiative on SMEs, since they are very unlikely to qualify as
gatekeepers and would not be targeted by the list of obligations, this initiative would not
impose an additional burden on them. The new rules, by levelling the playing field would
instead allow SMEs (including business users and other providers of core platforms services)
to grow throughout the internal market as a result of the removal of important barriers to entry
and expansion. It could be expected that the measures envisaged would also result in more
20
See Annex 3 to the Impact Assessment.
EN 10 EN
competition among platforms for business users. This is expected to lead to higher quality
services at more competitive prices, coupled with a higher productivity. Business users would
also have more confidence in selling online, as they would be protected from unfair practices.
A more comprehensive enforcement toolkit will allow businesses to thrive on the merits of
their abilities. This will result in economic growth, which in turn translates into higher tax
revenues for national administrations. The burden on the Commission for implementing this
initiative is low (mainly redeployment of existing job positions) compared to the benefits for
the economy. National authorities would have to bear some minor administrative costs.
Fairness and enhanced contestability in the digital sector would result in higher productivity,
which would translate into higher economic growth. The promotion of greater contestability
of core platform services and digital markets is also of particular importance in increasing
trade and investment flows.
• Regulatory fitness and simplification
This proposal lays down measures that will apply to large providers of core platform services
that meet the conditions to be designated as gatekeepers. Other providers of core platform
services and of ancillary services, business users and end users will benefit from the clearly
defined and circumscribed obligations that are laid down therein. The proposal also
specifically aims at facilitating the sustainable growth of core platform services and the
platform economy more broadly and is designed to be fully technologically-neutral.
• Fundamental rights
The proposal is aligned with the EU Charter of Fundamental Rights, the European
Convention on Human Rights (‘ECHR’) as well as the GDPR.
The introduction of the dynamic updating of unfair practices would be subject to ensuring a
full respect for the fundamental rights to fair proceedings and good administration as
enshrined in the ECHR, which are binding on the EU institutions.
When acting under the new framework the Commission’s investigation powers would be
subject to the full scope of fair process rights such as the right to be heard, the right to a
reasoned decision and access to judicial review, including the possibility to challenge
enforcement and sanctioning measures. These rights apply in case of administrative
proceedings.21
Moreover, the fair and trusted legal environment that this proposal aims to create shall
contribute to safeguarding an appropriate balance between the respective freedoms to conduct
a business of providers of core platform services and their business users (Article 16 of the
Charter of Fundamental Rights of the European Union).
4. BUDGETARY IMPLICATIONS
In order to optimally achieve the objectives of this initiative, it is necessary to finance a
number of actions both at the Commission level, where the redeployment of 80 FTEs is
envisaged, and at Member State level through their active participation in the Digital Markets
Advisory Committee, composed of the representatives of Member States. The total financial
resources necessary for the implementation of the proposal in the 2021-2027 period will
amount to EUR 81,090 million, including EUR 50,640 million of administrative costs and
21
Ibid, at Chapter V and Chapter X.
EN 11 EN
EUR 30,450 million entirely covered by the allocations foreseen in the MFF 2021-27 under
the financial envelopes of the Single Market Programme and the Digital Europe Programme.
The financing will support inter alia activities such as carrying out the designation of
providers of core platform services, carrying out market investigations and performing any
other investigative actions, enforcement actions and monitoring activities. The financing will
also support carrying out a regular review of specific elements of the Regulation and an
evaluation of the Regulation, a continuous evaluation of the effectiveness and efficiency of
the measures implemented, as well as costs linked to maintaining, developing, hosting,
operating and supporting a central information system. A detailed overview of the costs
involved is provided in the “’financial statement” linked to this initiative.
5. OTHER ELEMENTS
• Implementation plans and monitoring, evaluation and reporting arrangements
Given the dynamic nature of the platform economy, the monitoring and evaluation of the
initiative constitutes an important part of the proposal. It also responds to explicit demands by
stakeholders, including Member States, for a dedicated monitoring function, and reflects the
importance given to a self-standing monitoring policy option considered in the Inception
Impact Assessment. The monitoring therefore will be divided into two parts: (i) continuous
monitoring, which will report on the latest developments in the market every second year,
potentially involving the EU Observatory of the Online Platform Economy, and (ii)
operational objectives and specific indicators to measure them.
Regular and continuous monitoring will cover the following main aspects: (i) monitoring on
scope-related issues (e.g. criteria for the designation of gatekeepers, evolution of the
designation of gatekeepers, use of the qualitative assessment in the designation process); (ii)
monitoring of unfair practices (compliance, enforcement patterns, evolution); and (iii)
monitoring as a trigger for the launch of a market investigation with the purpose of examining
new core platform services and practices in the digital sector.
The monitoring will also take due account of the conceptual work of the Expert Group of the
Online Platform Economy under its work stream on Measurement and Economic Indicators.22
The effectiveness and efficiency of the proposal will in addition be monitored using pre-
defined indicators to establish whether additional rules, including regarding enforcement, may
be required to ensure that digital markets across the EU are contestable and fair.
Consequently, the impact of the intervention will be assessed in the context of an evaluation
exercise and activate, if so required, a review clause, which will allow the Commission to take
appropriate measures, including legislative proposals.
Member States will also provide any relevant information they have that the Commission may
require for the evaluation purposes.
• Detailed explanation of the specific provisions of the proposal
Chapter I sets out the general provisions, including the subject matter, aim and scope of the
Regulation, including its harmonising effect in relation to certain national laws (Article 1),
and the definitions of the terms used in, as well as the objectives of the proposal (Article 2).
22
https://platformobservatory.eu/app/uploads/2020/07/ProgressReport_Workstream_on_Measurement_and_
Economic_Indicators_2020.pdf.
EN 12 EN
Chapter II contains the provisions concerning the designation of gatekeepers. More
specifically, it establishes the conditions under which providers of core platform services
should be designated as gatekeepers either based on the quantitative criteria (through a
presumption subject to counter-demonstration) or following a case-by-case assessment during
a market investigation (Article 3). Furthermore, it also establishes conditions under which a
designation of a gatekeeper may be reconsidered and an obligation to regularly review such a
designation (Article 4).
Chapter III sets out the practices of gatekeepers that limit contestability and that are unfair. In
particular, it lays down self-executing obligations (Article 5) and obligations that are
susceptible to specification (Article 6) that the designated gatekeepers should comply with in
respect of each of their core platform services listed in the relevant designation decision. In
addition, it establishes a framework for a possible dialogue between the designated gatekeeper
and the Commission in relation to measures that the gatekeeper implements or intends to
implement in order to comply with the obligations set out in Article 6 (Article 7). It also lays
down conditions under which the obligations for an individual core platform service may be
suspended in exceptional circumstances (Article 8) or an exemption can be granted on
grounds of public interest (Article 9). Additional provisions in this Chapter establish a
mechanism for updating the list of obligations (Article 10); a clarification that the obligations
laid down in the Regulation apply regardless of whether the relevant practice of the
designated gatekeeper is of a contractual, commercial, technical or any other nature (Article
11); an obligation to notify any intended concentration within the meaning of the EU Merger
Regulation (Article 12); and an obligation on the designated gatekeeper to submit any
techniques for profiling of consumers that the gatekeeper applies to or across its core platform
services to an independent audit (Article 13).
Chapter IV provides rules for carrying out market investigations, notably procedural
requirements for the opening of a market investigation (Article 14) and rules for carrying out
different types of market investigations: (i) designation of a gatekeeper (Article 15), (ii)
investigation of systematic non-compliance (Article 16) and (iii) investigation of new core
platform services and new practices (Article 17).
Chapter V contains the provisions concerning the implementation and enforcement of this
Regulation. It provides for procedural requirements for the opening of proceedings (Article
18). It then establishes rules in relation to different tools that can be used in the context of the
market investigations or procedures under the Regulation. These include the ability of the
Commission to request information (Article 19), conduct interviews and take statements
(Article 20) and on-site inspections (Article 21), adopt interim measures (Article 22) and
make voluntary measures binding on the gatekeepers (Article 23), as well as monitor their
compliance with the Regulation (Article 24).
In case of non-compliance, the Commission can issue non-compliance decisions (Article 25),
as well as impose fines (Article 26) and periodic penalty payments (Article 27) for breaches
of the Regulation by gatekeepers, as well as for the supply of incorrect, incomplete or
misleading information in the context of the investigation. The Regulation sets also a
limitation period for the imposition of penalties and for their enforcement (Articles 28 and
29).
Several provisions in this Chapter set the procedural guarantees before the Commission, in
particular the right to be heard and of access to the file (Article 30) and the protection of
professional secrecy (Article 31). It also provides for the consultation of the Digital Markets
EN 13 EN
Advisory Committee set up by this Regulation before adopting identified individual decisions
addressed to gatekeepers (Article 32). Finally, the Regulation provides for a possibility for
three or more Member States to request the Commission to open a market investigation
pursuant to Article 15 (Article 33).
Chapter VI contains further general provisions, such as an obligation to publish an identified
set of individual decisions adopted under the Regulation (Article 34), a clarification that the
Court of Justice of the European Union shall have unlimited jurisdiction in respect of fines
and penalty payments (Article 35), and the possibility to adopt implementing (Article 36) and
delegated (Article 37) acts.
Finally, the remaining provisions in this Chapter are the review clause (Article 38) and the
specification of the entry into force and dates of application of the Regulation (Article 39).
2020/0374 (COD)
Proposal for a
REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
on contestable and fair markets in the digital sector (Digital Markets Act)
(Text with EEA relevance)
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty on the Functioning of the European Union, and in particular
Article 114 thereof,
Having regard to the proposal from the European Commission,
After transmission of the draft legislative act to the national parliaments,
Having regard to the opinion of the European Economic and Social Committee23,
Having regard to the opinion of the Committee of the Regions24,
Having regard to the opinion of the European Data Protection Supervisor25,
Acting in accordance with the ordinary legislative procedure,
Whereas:
(1) Digital services in general and online platforms in particular play an increasingly
important role in the economy, in particular in the internal market, by providing new
business opportunities in the Union and facilitating cross-border trading.
(2) Core platform services, at the same time, feature a number of characteristics that can
be exploited by their providers. These characteristics of core platform services include
among others extreme scale economies, which often result from nearly zero marginal
costs to add business users or end users. Other characteristics of core platform services
23
OJ C , , p. .
24
OJ C , , p. .
25
OJ C , , p. .
EN 14 EN
are very strong network effects, an ability to connect many business users with many
end users through the multi-sidedness of these services, a significant degree of
dependence of both business users and end users, lock-in effects, a lack of multi-
homing for the same purpose by end users, vertical integration, and data driven-
advantages. All these characteristics combined with unfair conduct by providers of
these services can have the effect of substantially undermining the contestability of the
core platform services, as well as impacting the fairness of the commercial relationship
between providers of such services and their business users and end users, leading to
rapid and potentially far-reaching decreases in business users’ and end users’ choice in
practice, and therefore can confer to the provider of those services the position of a so-
called gatekeeper.
(3) A small number of large providers of core platform services have emerged with
considerable economic power. Typically, they feature an ability to connect many
business users with many end users through their services which, in turn, allows them
to leverage their advantages, such as their access to large amounts of data, from one
area of their activity to new ones. Some of these providers exercise control over whole
platform ecosystems in the digital economy and are structurally extremely difficult to
challenge or contest by existing or new market operators, irrespective of how
innovative and efficient these may be. Contestability is particularly reduced due to the
existence of very high barriers to entry or exit, including high investment costs, which
cannot, or not easily, be recuperated in case of exit, and absence of (or reduced access
to) some key inputs in the digital economy, such as data. As a result, the likelihood
increases that the underlying markets do not function well – or will soon fail to
function well.
(4) The combination of those features of gatekeepers is likely to lead in many cases to
serious imbalances in bargaining power and, consequently, to unfair practices and
conditions for business users as well as end users of core platform services provided
by gatekeepers, to the detriment of prices, quality, choice and innovation therein.
(5) It follows that the market processes are often incapable of ensuring fair economic
outcomes with regard to core platform services. Whereas Articles 101 and 102 TFEU
remain applicable to the conduct of gatekeepers, their scope is limited to certain
instances of market power (e.g. dominance on specific markets) and of anti-
competitive behaviour, while enforcement occurs ex post and requires an extensive
investigation of often very complex facts on a case by case basis. Moreover, existing
Union law does not address, or does not address effectively, the identified challenges
to the well-functioning of the internal market posed by the conduct of gatekeepers,
which are not necessarily dominant in competition-law terms.
(6) Gatekeepers have a significant impact on the internal market, providing gateways for a
large number of business users, to reach end users, everywhere in the Union and on
different markets. The adverse impact of unfair practices on the internal market and
particularly weak contestability of core platform services, including their negative
societal and economic implications, have led national legislators and sectoral
regulators to act. A number of national regulatory solutions have already been adopted
or proposed to address unfair practices and the contestability of digital services or at
least with regard to some of them. This has created a risk of divergent regulatory
solutions and thereby fragmentation of the internal market, thus raising the risk of
increased compliance costs due to different sets of national regulatory requirements.
EN 15 EN
(7) Therefore, business users and end-users of core platform services provided by
gatekeepers should be afforded appropriate regulatory safeguards throughout the
Union against the unfair behaviour of gatekeepers in order to facilitate cross-border
business within the Union and thereby improve the proper functioning of the internal
market and to address existing or likely emerging fragmentation in the specific areas
covered by this Regulation. Moreover, while gatekeepers tend to adopt global or at
least pan-European business models and algorithmic structures, they can adopt, and in
some cases have adopted, different business conditions and practices in different
Member States, which is liable to create disparities between the competitive conditions
for the users of core platform services provided by gatekeepers, to the detriment of
integration within the internal market.
(8) By approximating diverging national laws, obstacles to the freedom to provide and
receive services, including retail services, within the internal market should be
eliminated. A targeted set of harmonised mandatory rules should therefore be
established at Union level to ensure contestable and fair digital markets featuring the
presence of gatekeepers within the internal market.
(9) A fragmentation of the internal market can only be effectively averted if Member
States are prevented from applying national rules which are specific to the types of
undertakings and services covered by this Regulation. At the same time, since this
Regulation aims at complementing the enforcement of competition law, it should be
specified that this Regulation is without prejudice to Articles 101 and 102 TFEU, to
the corresponding national competition rules and to other national competition rules
regarding unilateral behaviour that are based on an individualised assessment of
market positions and behaviour, including its likely 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.
However, the application of the latter rules should not affect the obligations imposed
on gatekeepers under this Regulation and their uniform and effective application in the
internal market.
(10) 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.
This Regulation 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, likely or presumed effects
of the conduct of a given gatekeeper covered by this Regulation on competition on a
given market. This Regulation therefore aims at protecting a different legal interest
from those rules and should be without prejudice to their application.
(11) This Regulation should also complement, without prejudice to their application, the
rules resulting from other acts of Union law regulating certain aspects of the provision
of services covered by this Regulation, in particular Regulation (EU) 2019/1150 of the
European Parliament and of the Council26, Regulation (EU) xx/xx/EU [DSA] of the
26
Regulation (EU) 2019/1150 of the European Parliament and of the Council of 20 June 2019 on
promoting fairness and transparency for business users of online intermediation services (OJ L 186,
11.7.2019, p. 57).
EN 16 EN
European Parliament and of the Council27, Regulation (EU) 2016/679 of the European
Parliament and of the Council28, Directive (EU) 2019/790 of the European Parliament
and of the Council29, Directive (EU) 2015/2366 of the European Parliament and of the
Council30, and Directive (EU) 2010/13 of the European Parliament and of the
Council31, as well as national rules aimed at enforcing or, as the case may be,
implementing that Union legislation.
(12) Weak contestability and unfair practices in the digital sector are more frequent and
pronounced for certain digital services than for others. This is the case in particular for
widespread and commonly used digital services that mostly directly intermediate
between business users and end users and where features such as extreme scale
economies, very strong network effects, an ability to connect many business users with
many end users through the multi-sidedness of these services, lock-in effects, a lack of
multi-homing or vertical integration are the most prevalent. Often, there is only one or
very few large providers of those digital services. These providers of core platform
services have emerged most frequently as gatekeepers for business users and end users
with far-reaching impacts, gaining the ability to easily set commercial conditions and
terms in a unilateral and detrimental manner for their business users and end users.
Accordingly, it is necessary to focus only on those digital services that are most
broadly used by business users and end users and where, based on current market
conditions, concerns about weak contestability and unfair practices by gatekeepers are
more apparent and pressing from an internal market perspective.
(13) In particular, online intermediation services, online search engines, operating systems,
online social networking, video sharing platform services, number-independent
interpersonal communication services, cloud computing services and online
advertising services all have the capacity to affect a large number of end users and
businesses alike, which entails a risk of unfair business practices. They therefore
should be included in the definition of core platform services and fall into the scope of
this Regulation. Online intermediation services may also be active in the field of
financial services, and they may intermediate or be used to provide such services as
listed non-exhaustively in Annex II to Directive (EU) 2015/1535 of the European
Parliament and of the Council32. In certain circumstances, the notion of end users
27
Regulation (EU) …/.. of the European Parliament and of the Council – proposal on a Single Market
For Digital Services (Digital Services Act) and amending Directive 2000/31/EC.
28
Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the
protection of natural persons with regard to the processing of personal data and on the free movement of
such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (OJ L 119, 4.5.2016,
p. 1).
29
Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright
and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/ (OJ L
130, 17.5.2019, p. 92.).
30
Directive (EU) 2015/2366 of the European Parliament and of the Council of 25 November 2015 on
payment services in the internal market, amending Directives 2002/65/EC, 2009/110/EC and
2013/36/EU and Regulation (EU) No 1093/2010, and repealing Directive 2007/64/EC ( OJ L 337,
23.12.2015, p. 35).
31
Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the
coordination of certain provisions laid down by law, regulation or administrative action in Member
States concerning the provision of audiovisual media services (Audiovisual Media Services Directive)
(OJ L 95, 15.4.2010, p. 1).
32
Directive (EU) 2015/1535 of the European Parliament and of the Council of 9 September 2015 laying
down a procedure for the provision of information in the field of technical regulations and of rules on
Information Society services, OJ L 241, 17.9.2015, p. 1.
EN 17 EN
should encompass users that are traditionally considered business users, but in a given
situation do not use the core platform services to provide goods or services to other
end users, such as for example businesses relying on cloud computing services for
their own purposes.
(14) A number of other ancillary services, such as identification or payment services and
technical services which support the provision of payment services, may be provided
by gatekeepers together with their core platform services. As gatekeepers frequently
provide the portfolio of their services as part of an integrated ecosystem to which
third-party providers of such ancillary services do not have access, at least not subject
to equal conditions, and can link the access to the core platform service to take-up of
one or more ancillary services, the gatekeepers are likely to have an increased ability
and incentive to leverage their gatekeeper power from their core platform services to
these ancillary services, to the detriment of choice and contestability of these services.
(15) The fact that a digital service qualifies as a core platform service in light of its
widespread and common use and its importance for connecting business users and end
users does not as such give rise to sufficiently serious concerns of contestability and
unfair practices. It is only when a core platform service constitutes an important
gateway and is operated by a provider with a significant impact in the internal market
and an entrenched and durable position, or by a provider that will foreseeably have
such a position in the near future, that such concerns arise. Accordingly, the targeted
set of harmonised rules laid down in this Regulation should apply only to undertakings
designated on the basis of these three objective criteria, and they should only apply to
those of their core platform services that individually constitute an important gateway
for business users to reach end users.
(16) In order to ensure the effective application of this Regulation to providers of core
platform services which are most likely to satisfy these objective requirements, and
where unfair conduct weakening contestability is most prevalent and impactful, the
Commission should be able to directly designate as gatekeepers those providers of
core platform services which meet certain quantitative thresholds. Such undertakings
should in any event be subject to a fast designation process which should start upon
the entry into force of this Regulation.
(17) A very significant turnover in the Union and the provision of a core platform service
in at least three Member States constitute compelling indications that the provider of a
core platform service has a significant impact on the internal market. This is equally
true where a provider of a core platform service in at least three Member States has a
very significant market capitalisation or equivalent fair market value. Therefore, a
provider of a core platform service should be presumed to have a significant impact on
the internal market where it provides a core platform service in at least three Member
States and where either its group turnover realised in the EEA is equal to or exceeds a
specific, high threshold or the market capitalisation of the group is equal to or exceeds
a certain high absolute value. For providers of core platform services that belong to
undertakings that are not publicly listed, the equivalent fair market value above a
certain high absolute value should be referred to. The Commission should use its
power to adopt delegated acts to develop an objective methodology to calculate that
value. A high EEA group turnover in conjunction with the threshold of users in the
Union of core platform services reflects a relatively strong ability to monetise these
users. A high market capitalisation relative to the same threshold number of users in
the Union reflects a relatively significant potential to monetise these users in the near
future. This monetisation potential in turn reflects in principle the gateway position of
EN 18 EN
the undertakings concerned. Both indicators are in addition reflective of their financial
capacity, including their ability to leverage their access to financial markets to
reinforce their position. This may for example happen where this superior access is
used to acquire other undertakings, which ability has in turn been shown to have
potential negative effects on innovation. Market capitalisation can also be reflective of
the expected future position and effect on the internal market of the providers
concerned, notwithstanding a potentially relatively low current turnover. The market
capitalisation value can be based on a level that reflects the average market
capitalisation of the largest publicly listed undertakings in the Union over an
appropriate period.
(18) A sustained market capitalisation of the provider of core platform services at or above
the threshold level over three or more years should be considered as strengthening the
presumption that the provider of core platform services has a significant impact on the
internal market.
(19) There may be a number of factors concerning market capitalisation that would require
an in-depth assessment in determining whether a provider of core platform services
should be deemed to have a significant impact on the internal market. This may be the
case where the market capitalisation of the provider of core platform services in
preceding financial years was significantly lower than the average of the equity
market, the volatility of its market capitalisation over the observed period was
disproportionate to overall equity market volatility or its market capitalisation
trajectory relative to market trends was inconsistent with a rapid and unidirectional
growth.
(20) A very high number of business users that depend on a core platform service to reach a
very high number of monthly active end users allow the provider of that service to
influence the operations of a substantial part of business users to its advantage and
indicate in principle that the provider serves as an important gateway. The respective
relevant levels for those numbers should be set representing a substantive percentage
of the entire population of the Union when it comes to end users and of the entire
population of businesses using platforms to determine the threshold for business users.
(21) An entrenched and durable position in its operations or the foreseeability of achieving
such a position future occurs notably where the contestability of the position of the
provider of the core platform service is limited. This is likely to be the case where that
provider has provided a core platform service in at least three Member States to a very
high number of business users and end users during at least three years.
(22) Such thresholds can be impacted by market and technical developments. The
Commission should therefore be empowered to adopt delegated acts to specify the
methodology for determining whether the quantitative thresholds are met, and to
regularly adjust it to market and technological developments where necessary. This is
particularly relevant in relation to the threshold referring to market capitalisation,
which should be indexed in appropriate intervals.
(23) Providers of core platform services which meet the quantitative thresholds but are able
to present sufficiently substantiated arguments to demonstrate that, in the
circumstances in which the relevant core platform service operates, they do not fulfil
the objective requirements for a gatekeeper, should not be designated directly, but only
subject to a further investigation. The burden of adducing evidence that the
presumption deriving from the fulfilment of quantitative thresholds should not apply
to a specific provider should be borne by that provider In its assessment, the
EN 19 EN
Commission should take into account only the elements which directly relate to the
requirements for constituting a gatekeeper, namely whether it is an important gateway
which is operated by a provider with a significant impact in the internal market with
an entrenched and durable position, either actual or foreseeable. Any justification on
economic grounds seeking to demonstrate efficiencies deriving from a specific type of
behaviour by the provider of core platform services should be discarded, as it is not
relevant to the designation as a gatekeeper. The Commission should be able to take a
decision by relying on the quantitative thresholds where the provider significantly
obstructs the investigation by failing to comply with the investigative measures taken
by the Commission.
(24) Provision should also be made for the assessment of the gatekeeper role of providers
of core platform services which do not satisfy all of the quantitative thresholds, in light
of the overall objective requirements that they have a significant impact on the internal
market, act as an important gateway for business users to reach end users and benefit
from a durable and entrenched position in their operations or it is foreseeable that it
will do so in the near future.
(25) Such an assessment can only be done in light of a market investigation, while taking
into account the quantitative thresholds. In its assessment the Commission should
pursue the objectives of preserving and fostering the level of innovation, the quality of
digital products and services, the degree to which prices are fair and competitive, and
the degree to which quality or choice for business users and for end users is or remains
high. Elements that are specific to the providers of core platform services concerned,
such as extreme scale economies, very strong network effects, an ability to connect
many business users with many end users through the multi-sidedness of these
services, lock-in effects, a lack of multi-homing or vertical integration, can be taken
into account. In addition, a very high market capitalisation, a very high ratio of equity
value over profit or a very high turnover derived from end users of a single core
platform service can point to the tipping of the market or leveraging potential of such
providers. Together with market capitalisation, high growth rates, or decelerating
growth rates read together with profitability growth, are examples of dynamic
parameters that are particularly relevant to identifying such providers of core platform
services that are foreseen to become entrenched. The Commission should be able to
take a decision by drawing adverse inferences from facts available where the provider
significantly obstructs the investigation by failing to comply with the investigative
measures taken by the Commission.
(26) A particular subset of rules should apply to those providers of core platform services
that are foreseen to enjoy an entrenched and durable position in the near future. The
same specific features of core platform services make them prone to tipping: once a
service provider has obtained a certain advantage over rivals or potential challengers
in terms of scale or intermediation power, its position may become unassailable and
the situation may evolve to the point that it is likely to become durable and entrenched
in the near future. Undertakings can try to induce this tipping and emerge as
gatekeeper by using some of the unfair conditions and practices regulated in this
Regulation. In such a situation, it appears appropriate to intervene before the market
tips irreversibly.
(27) However, such an early intervention should be limited to imposing only those
obligations that are necessary and appropriate to ensure that the services in question
remain contestable and allow to avoid the qualified risk of unfair conditions and
practices. Obligations that prevent the provider of core platform services concerned
EN 20 EN
from achieving an entrenched and durable position in its operations, such as those
preventing unfair leveraging, and those that facilitate switching and multi-homing are
more directly geared towards this purpose. To ensure proportionality, the Commission
should moreover apply from that subset of obligations only those that are necessary
and proportionate to achieve the objectives of this Regulation and should regularly
review whether such obligations should be maintained, suppressed or adapted.
(28) This should allow the Commission to intervene in time and effectively, while fully
respecting the proportionality of the considered measures. It should also reassure
actual or potential market participants about the fairness and contestability of the
services concerned.
(29) Designated gatekeepers should comply with the obligations laid down in this
Regulation in respect of each of the core platform services listed in the relevant
designation decision. The mandatory rules should apply taking into account the
conglomerate position of gatekeepers, where applicable. Furthermore, implementing
measures that the Commission may by decision impose on the gatekeeper following a
regulatory dialogue should be designed in an effective manner, having regard to the
features of core platform services as well as possible circumvention risks and in
compliance with the principle of proportionality and the fundamental rights of the
undertakings concerned as well as those of third parties.
(30) The very rapidly changing and complex technological nature of core platform services
requires a regular review of the status of gatekeepers, including those that are foreseen
to enjoy a durable and entrenched position in their operations in the near future. To
provide all of the market participants, including the gatekeepers, with the required
certainty as to the applicable legal obligations, a time limit for such regular reviews is
necessary. It is also important to conduct such reviews on a regular basis and at least
every two years.
(31) To ensure the effectiveness of the review of gatekeeper status as well as the possibility
to adjust the list of core platform services provided by a gatekeeper, the gatekeepers
should inform the Commission of all of their intended and concluded acquisitions of
other providers of core platform services or any other services provided within the
digital sector. Such information should not only serve the review process mentioned
above, regarding the status of individual gatekeepers, but will also provide information
that is crucial to monitoring broader contestability trends in the digital sector and can
therefore be a useful factor for consideration in the context of the market
investigations foreseen by this Regulation.
(32) To safeguard the fairness and contestability of core platform services provided by
gatekeepers, it is necessary to provide in a clear and unambiguous manner for a set of
harmonised obligations with regard to those services. Such rules are needed to address
the risk of harmful effects of unfair practices imposed by gatekeepers, to the benefit of
the business environment in the services concerned, to the benefit of users and
ultimately to the benefit of society as a whole. Given the fast-moving and dynamic
nature of digital markets, and the substantial economic power of gatekeepers, it is
important that these obligations are effectively applied without being circumvented.
To that end, the obligations in question should apply to any practices by a gatekeeper,
irrespective of its form and irrespective of whether it is of a contractual, commercial,
technical or any other nature, insofar as a practice corresponds to the type of practice
that is the subject of one of the obligations of this Regulation.
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(33) The obligations laid down in this Regulation are limited to what is necessary and
justified to address the unfairness of the identified practices by gatekeepers and to
ensure contestability in relation to core platform services provided by gatekeepers.
Therefore, the obligations should correspond to those practices that are considered
unfair by taking into account the features of the digital sector and where experience
gained, for example in the enforcement of the EU competition rules, shows that they
have a particularly negative direct impact on the business users and end users. In
addition, it is necessary to provide for the possibility of a regulatory dialogue with
gatekeepers to tailor those obligations that are likely to require specific implementing
measures in order to ensure their effectiveness and proportionality. The obligations
should only be updated after a thorough investigation on the nature and impact of
specific practices that may be newly identified, following an in-depth investigation, as
unfair or limiting contestability in the same manner as the unfair practices laid down in
this Regulation while potentially escaping the scope of the current set of obligations.
(34) The combination of these different mechanisms for imposing and adapting obligations
should ensure that the obligations do not extend beyond observed unfair practices,
while at the same time ensuring that new or evolving practices can be the subject of
intervention where necessary and justified.
(35) The obligations laid down in this Regulation are necessary to address identified public
policy concerns, there being no alternative and less restrictive measures that would
effectively achieve the same result, having regard to need to safeguard public order,
protect privacy and fight fraudulent and deceptive commercial practices.
(36) The conduct of combining end user data from different sources or signing in users to
different services of gatekeepers gives them potential advantages in terms of
accumulation of data, thereby raising barriers to entry. To ensure that gatekeepers do
not unfairly undermine the contestability of core platform services, they should enable
their end users to freely choose to opt-in to such business practices by offering a less
personalised alternative. The possibility should cover all possible sources of personal
data, including own services of the gatekeeper as well as third party websites, and
should be proactively presented to the end user in an explicit, clear and straightforward
manner.
(37) Because of their position, gatekeepers might in certain cases restrict the ability of
business users of their online intermediation services to offer their goods or services to
end users under more favourable conditions, including price, through other online
intermediation services. Such restrictions have a significant deterrent effect on the
business users of gatekeepers in terms of their use of alternative online intermediation
services, limiting inter-platform contestability, which in turn limits choice of
alternative online intermediation channels for end users. To ensure that business users
of online intermediation services of gatekeepers can freely choose alternative online
intermediation services and differentiate the conditions under which they offer their
products or services to their end users, it should not be accepted that gatekeepers limit
business users from choosing to differentiate commercial conditions, including price.
Such a restriction should apply to any measure with equivalent effect, such as for
example increased commission rates or de-listing of the offers of business users.
(38) To prevent further reinforcing their dependence on the core platform services of
gatekeepers, the business users of these gatekeepers should be free in promoting and
choosing the distribution channel they consider most appropriate to interact with any
end users that these business users have already acquired through core platform
EN 22 EN
services provided by the gatekeeper. Conversely, end users should also be free to
choose offers of such business users and to enter into contracts with them either
through core platform services of the gatekeeper, if applicable, or from a direct
distribution channel of the business user or another indirect distribution channel such
business user may use. This should apply to the promotion of offers and conclusion of
contracts between business users and end users. Moreover, the ability of end users to
freely acquire content, subscriptions, features or other items outside the core platform
services of the gatekeeper should not be undermined or restricted. In particular, it
should be avoided that gatekeepers restrict end users from access to and use of such
services via a software application running on their core platform service. For
example, subscribers to online content purchased outside a software application
download or purchased from a software application store should not be prevented from
accessing such online content on a software application on the gatekeeper’s core
platform service simply because it was purchased outside such software application or
software application store.
(39) To safeguard a fair commercial environment and protect the contestability of the
digital sector it is important to safeguard the right of business users to raise concerns
about unfair behaviour by gatekeepers with any relevant administrative or other public
authorities. For example, business users may want to complain about different types of
unfair practices, such as discriminatory access conditions, unjustified closing of
business user accounts or unclear grounds for product de-listings. Any practice that
would in any way inhibit such a possibility of raising concerns or seeking available
redress, for instance by means of confidentiality clauses in agreements or other written
terms, should therefore be prohibited. This should be without prejudice to the right of
business users and gatekeepers to lay down in their agreements the terms of use
including the use of lawful complaints-handling mechanisms, including any use of
alternative dispute resolution mechanisms or of the jurisdiction of specific courts in
compliance with respective Union and national law This should therefore also be
without prejudice to the role gatekeepers play in the fight against illegal content
online.
(40) Identification services are crucial for business users to conduct their business, as these
can allow them not only to optimise services, to the extent allowed under Regulation
(EU) 2016/679 and Directive 2002/58/EC of the European Parliament and of the
Council33, but also to inject trust in online transactions, in compliance with Union or
national law. Gatekeepers should therefore not use their position as provider of core
platform services to require their dependent business users to include any
identification services provided by the gatekeeper itself as part of the provision of
services or products by these business users to their end users, where other
identification services are available to such business users.
(41) Gatekeepers should not restrict the free choice of end users by technically preventing
switching between or subscription to different software applications and services.
Gatekeepers should therefore ensure a free choice irrespective of whether they are the
manufacturer of any hardware by means of which such software applications or
services are accessed and should not raise artificial technical barriers so as to make
switching impossible or ineffective. The mere offering of a given product or service to
33
Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the
processing of personal data and the protection of privacy in the electronic communications sector
(Directive on privacy and electronic communications) (OJ L 201, 31.7.2002, p. 37).
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end users, including by means of pre-installation, as well the improvement of end user
offering, such as better prices or increased quality, would not in itself constitute a
barrier to switching.
(42) The conditions under which gatekeepers provide online advertising services to
business users including both advertisers and publishers are often non-transparent and
opaque. This opacity is partly linked to the practices of a few platforms, but is also due
to the sheer complexity of modern day programmatic advertising. The sector is
considered to have become more non-transparent after the introduction of new privacy
legislation, and is expected to become even more opaque with the announced removal
of third-party cookies. This often leads to a lack of information and knowledge for
advertisers and publishers about the conditions of the advertising services they
purchased and undermines their ability to switch to alternative providers of online
advertising services. Furthermore, the costs of online advertising are likely to be
higher than they would be in a fairer, more transparent and contestable platform
environment. These higher costs are likely to be reflected in the prices that end users
pay for many daily products and services relying on the use of online advertising.
Transparency obligations should therefore require gatekeepers to provide advertisers
and publishers to whom they supply online advertising services, when requested and
to the extent possible, with information that allows both sides to understand the price
paid for each of the different advertising services provided as part of the relevant
advertising value chain.
(43) A gatekeeper may in certain circumstances have a dual role as a provider of core
platform services whereby it provides a core platform service to its business users,
while also competing with those same business users in the provision of the same or
similar services or products to the same end users. In these circumstances, a
gatekeeper may take advantage of its dual role to use data, generated from transactions
by its business users on the core platform, for the purpose of its own services that offer
similar services to that of its business users. This may be the case, for instance, where
a gatekeeper provides an online marketplace or app store to business users, and at the
same time offer services as an online retailer or provider of application software
against those business users. To prevent gatekeepers from unfairly benefitting from
their dual role, it should be ensured that they refrain from using any aggregated or
non-aggregated data, which may include anonymised and personal data that is not
publicly available to offer similar services to those of their business users. This
obligation should apply to the gatekeeper as a whole, including but not limited to its
business unit that competes with the business users of a core platform service.
(44) Business users may also purchase advertising services from a provider of core
platform services for the purpose of providing goods and services to end users. In this
case, it may occur that the data are not generated on the core platform service, but are
provided to the core platform service by the business user or are generated based on its
operations through the core platform service concerned. In certain instances, that core
platform service providing advertising may have a dual role, as intermediary and as
provider of advertising services. Accordingly, the obligation prohibiting a dual role
gatekeeper from using data of business users should apply also with respect to the data
that a core platform service has received from businesses for the purpose of providing
advertising services related to that core platform service.
(45) In relation to cloud computing services, this obligation should extend to data provided
or generated by business users of the gatekeeper in the context of their use of the cloud
computing service of the gatekeeper, or through its software application store that
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allows end users of cloud computing services access to software applications. This
obligation should not affect the right of gatekeepers to use aggregated data for
providing ancillary data analytics services, subject to compliance with Regulation
2016/679 and Directive 2002/58/EC as well as with the relevant obligations in this
Regulation concerning ancillary services.
(46) A gatekeeper may use different means to favour its own services or products on its
core platform service, to the detriment of the same or similar services that end users
could obtain through third parties. This may for instance be the case where certain
software applications or services are pre-installed by a gatekeeper. To enable end user
choice, gatekeepers should not prevent end users from un-installing any pre-installed
software applications on its core platform service and thereby favour their own
software applications.
(47) The rules that the gatekeepers set for the distribution of software applications may in
certain circumstances restrict the ability of end users to install and effectively use third
party software applications or software application stores on operating systems or
hardware of the relevant gatekeeper and restrict the ability of end users to access these
software applications or software application stores outside the core platform services
of that gatekeeper. Such restrictions may limit the ability of developers of software
applications to use alternative distribution channels and the ability of end users to
choose between different software applications from different distribution channels
and should be prohibited as unfair and liable to weaken the contestability of core
platform services. In order 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 the gatekeeper concerned may implement proportionate
technical or contractual measures to achieve that goal if the gatekeeper demonstrates
that such measures are necessary and justified and that there are no less restrictive
means to safeguard the integrity of the hardware or operating system.
(48) Gatekeepers are often vertically integrated and offer certain products or services to end
users through their own core platform services, or through a business user over which
they exercise control which frequently leads to conflicts of interest. This can include
the situation whereby a gatekeeper offers its own online intermediation services
through an online search engine. When offering those products or services on the core
platform service, gatekeepers can reserve a better position to their own offering, in
terms of ranking, as opposed to the products of third parties also operating on that core
platform service. This can occur for instance with products or services, including other
core platform services, which are ranked in the results communicated by online search
engines, or which are partly or entirely embedded in online search engines results,
groups of results specialised in a certain topic, displayed along with the results of an
online search engine, which are considered or used by certain end users as a service
distinct or additional to the online search engine. Other instances are those of software
applications which are distributed through software application stores, or products or
services that are given prominence and display in the newsfeed of a social network, or
products or services ranked in search results or displayed on an online marketplace. In
those circumstances, the gatekeeper is in a dual-role position as intermediary for third
party providers and as direct provider of products or services of the gatekeeper.
Consequently, these gatekeepers have the ability to undermine directly the
contestability for those products or services on these core platform services, to the
detriment of business users which are not controlled by the gatekeeper.
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(49) In such situations, the gatekeeper should not engage in any form of differentiated or
preferential treatment in ranking on the core platform service, whether through legal,
commercial or technical means, in favour of products or services it offers itself or
through a business user which it controls. To ensure that this obligation is effective, it
should also be ensured that the conditions that apply to such ranking are also generally
fair. Ranking should in this context cover all forms of relative prominence, including
display, rating, linking or voice results. To ensure that this obligation is effective and
cannot be circumvented it should also apply to any measure that may have an
equivalent effect to the differentiated or preferential treatment in ranking. The
guidelines adopted pursuant to Article 5 of Regulation (EU) 2019/1150 should also
facilitate the implementation and enforcement of this obligation.34
(50) Gatekeepers should not restrict or prevent the free choice of end users by technically
preventing switching between or subscription to different software applications and
services. This would allow more providers to offer their services, thereby ultimately
providing greater choice to the end user. Gatekeepers should ensure a free choice
irrespective of whether they are the manufacturer of any hardware by means of which
such software applications or services are accessed and shall not raise artificial
technical barriers so as to make switching impossible or ineffective. The mere offering
of a given product or service to consumers, including by means of pre-installation, as
well as the improvement of the offering to end users, such as price reductions or
increased quality, should not be construed as constituting a prohibited barrier to
switching.
(51) Gatekeepers can hamper the ability of end users to access online content and services
including software applications. Therefore, rules should be established to ensure that
the rights of end users to access an open internet are not compromised by the conduct
of gatekeepers. Gatekeepers can also technically limit the ability of end users to
effectively switch between different Internet access service providers, in particular
through their control over operating systems or hardware. This distorts the level
playing field for Internet access services and ultimately harms end users. It should
therefore be ensured that gatekeepers do not unduly restrict end users in choosing their
Internet access service provider.
(52) Gatekeepers may also have a dual role as developers of operating systems and device
manufacturers, including any technical functionality that such a device may have. For
example, a gatekeeper that is a manufacturer of a device may restrict access to some of
the functionalities in this device, such as near-field-communication technology and the
software used to operate that technology, which may be required for the effective
provision of an ancillary service by the gatekeeper as well as by any potential third
party provider of such an ancillary service. Such access may equally be required by
software applications related to the relevant ancillary services in order to effectively
provide similar functionalities as those offered by gatekeepers. If such a dual role is
used in a manner that prevents alternative providers of ancillary services or of software
applications to have access under equal conditions to the same operating system,
hardware or software features that are available or used in the provision by the
gatekeeper of any ancillary services, this could significantly undermine innovation by
providers of such ancillary services as well as choice for end users of such ancillary
services. The gatekeepers should therefore be obliged to ensure access under equal
34
Commission Notice: Guidelines on ranking transparency pursuant to Regulation (EU) 2019/1150 of the
European Parliament and of the Council (OJ C 424, 8.12.2020, p. 1).
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conditions to, and interoperability with, the same operating system, hardware or
software features that are available or used in the provision of any ancillary services
by the gatekeeper.
(53) The conditions under which gatekeepers provide online advertising services to
business users including both advertisers and publishers are often non-transparent and
opaque. This often leads to a lack of information for advertisers and publishers about
the effect of a given ad. To further enhance fairness, transparency and contestability of
online advertising services designated under this Regulation as well as those that are
fully integrated with other core platform services of the same provider, the designated
gatekeepers should therefore provide advertisers and publishers, when requested, with
free of charge access to the performance measuring tools of the gatekeeper and the
information necessary for advertisers, advertising agencies acting on behalf of a
company placing advertising, as well as for publishers to carry out their own
independent verification of the provision of the relevant online advertising services.
(54) Gatekeepers benefit from access to vast amounts of data that they collect while
providing the core platform services as well as other digital services. To ensure that
gatekeepers do not undermine the contestability of core platform services as well as
the innovation potential of the dynamic digital sector by restricting the ability of
business users to effectively port their data, business users and end users should be
granted effective and immediate access to the data they provided or generated in the
context of their use of the relevant core platform services of the gatekeeper, in a
structured, commonly used and machine-readable format. This should apply also to
any other data at different levels of aggregation that may be necessary to effectively
enable such portability. It should also be ensured that business users and end users can
port that data in real time effectively, such as for example through high quality
application programming interfaces. Facilitating switching or multi-homing should
lead, in turn, to an increased choice for business users and end users and an incentive
for gatekeepers and business users to innovate.
(55) Business users that use large core platform services provided by gatekeepers and end
users of such business users provide and generate a vast amount of data, including data
inferred from such use. In order to ensure that business users have access to the
relevant data thus generated, the gatekeeper should, upon their request, allow
unhindered access, free of charge, to such data. Such access should also be given to
third parties contracted by the business user, who are acting as processors of this data
for the business user. Data provided or generated by the same business users and the
same end users of these business users in the context of other services provided by the
same gatekeeper may be concerned where this is inextricably linked to the relevant
request. To this end, a gatekeeper should not use any contractual or other restrictions
to prevent business users from accessing relevant data and should enable business
users to obtain consent of their end users for such data access and retrieval, where such
consent is required under Regulation (EU) 2016/679 and Directive 2002/58/EC.
Gatekeepers should also facilitate access to these data in real time by means of
appropriate technical measures, such as for example putting in place high quality
application programming interfaces.
(56) The value of online search engines to their respective business users and end users
increases as the total number of such users increases. Providers of online search
engines collect and store aggregated datasets containing information about what users
searched for, and how they interacted with, the results that they were served. Providers
of online search engine services collect these data from searches undertaken on their
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own online search engine service and, where applicable, searches undertaken on the
platforms of their downstream commercial partners. Access by gatekeepers to such
ranking, query, click and view data constitutes an important barrier to entry and
expansion, which undermines the contestability of online search engine services.
Gatekeepers should therefore be obliged to provide access, on fair, reasonable and
non-discriminatory terms, to these ranking, query, click and view data in relation to
free and paid search generated by consumers on online search engine services to other
providers of such services, so that these third-party providers can optimise their
services and contest the relevant core platform services. Such access should also be
given to third parties contracted by a search engine provider, who are acting as
processors of this data for that search engine. When providing access to its search data,
a gatekeeper should ensure the protection of the personal data of end users by
appropriate means, without substantially degrading the quality or usefulness of the
data.
(57) In particular gatekeepers which provide access to software application stores serve as
an important gateway for business users that seek to reach end users. In view of the
imbalance in bargaining power between those gatekeepers and business users of their
software application stores, those gatekeepers should not be allowed to impose general
conditions, including pricing conditions, that would be unfair or lead to unjustified
differentiation. Pricing or other general access conditions should be considered unfair
if they lead to an imbalance of rights and obligations imposed on business users or
confer an advantage on the gatekeeper which is disproportionate to the service
provided by the gatekeeper to business users or lead to a disadvantage for business
users in providing the same or similar services as the gatekeeper. The following
benchmarks can serve as a yardstick to determine the fairness of general access
conditions: prices charged or conditions imposed for the same or similar services by
other providers of software application stores; prices charged or conditions imposed
by the provider of the software application store for different related or similar
services or to different types of end users; prices charged or conditions imposed by the
provider of the software application store for the same service in different geographic
regions; prices charged or conditions imposed by the provider of the software
application store for the same service the gatekeeper offers to itself. This obligation
should not establish an access right and it should be without prejudice to the ability of
providers of software application stores to take the required responsibility in the fight
against illegal and unwanted content as set out in Regulation [Digital Services Act].
(58) To ensure the effectiveness of the obligations laid down by this Regulation, while also
making certain that these obligations are limited to what is necessary to ensure
contestability and tackling the harmful effects of the unfair behaviour by gatekeepers,
it is important to clearly define and circumscribe them so as to allow the gatekeeper to
immediately comply with them, in full respect of Regulation (EU) 2016/679 and
Directive 2002/58/EC, consumer protection, cyber security and product safety. The
gatekeepers should ensure the compliance with this Regulation by design. The
necessary measures should therefore be as much as possible and where relevant
integrated into the technological design used by the gatekeepers. However, it may in
certain cases be appropriate for the Commission, following a dialogue with the
gatekeeper concerned, to further specify some of the measures that the gatekeeper
concerned should adopt in order to effectively comply with those obligations that are
susceptible of being further specified. This possibility of a regulatory dialogue should
facilitate compliance by gatekeepers and expedite the correct implementation of the
Regulation.
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(59) As an additional element to ensure proportionality, gatekeepers should be given an
opportunity to request the suspension, to the extent necessary, of a specific obligation
in exceptional circumstances that lie beyond the control of the gatekeeper, such as for
example an unforeseen external shock that has temporarily eliminated a significant
part of end user demand for the relevant core platform service, where compliance with
a specific obligation is shown by the gatekeeper to endanger the economic viability of
the Union operations of the gatekeeper concerned.
(60) In exceptional circumstances justified on the limited grounds of public morality,
public health or public security, the Commission should be able to decide that the
obligation concerned does not apply to a specific core platform service. Affecting
these public interests can indicate that the cost to society as a whole of enforcing a
certain obligation would in a certain exceptional case be too high and thus
disproportionate. The regulatory dialogue to facilitate compliance with limited
suspension and exemption possibilities should ensure the proportionality of the
obligations in this Regulation without undermining the intended ex ante effects on
fairness and contestability.
(61) The data protection and privacy interests of end users are relevant to any assessment of
potential negative effects of the observed practice of gatekeepers to collect and
accumulate large amounts of data from end users. Ensuring an adequate level of
transparency of profiling practices employed by gatekeepers facilitates contestability
of core platform services, by putting external pressure on gatekeepers to prevent
making deep consumer profiling the industry standard, given that potential entrants or
start-up providers cannot access data to the same extent and depth, and at a similar
scale. Enhanced transparency should allow other providers of core platform services to
differentiate themselves better through the use of superior privacy guaranteeing
facilities. To ensure a minimum level of effectiveness of this transparency obligation,
gatekeepers should at least provide a description of the basis upon which profiling is
performed, including whether personal data and data derived from user activity is
relied on, the processing applied, the purpose for which the profile is prepared and
eventually used, the impact of such profiling on the gatekeeper’s services, and the
steps taken to enable end users to be aware of the relevant use of such profiling, as
well as to seek their consent.
(62) In order to ensure the full and lasting achievement of the objectives of this Regulation,
the Commission should be able to assess whether a provider of core platform services
should be designated as a gatekeeper without meeting the quantitative thresholds laid
down in this Regulation; whether systematic non-compliance by a gatekeeper warrants
imposing additional remedies; and whether the list of obligations addressing unfair
practices by gatekeepers should be reviewed and additional practices that are similarly
unfair and limiting the contestability of digital markets should be identified. Such
assessment should be based on market investigations to be run in an appropriate
timeframe, by using clear procedures and deadlines, in order to support the ex ante
effect of this Regulation on contestability and fairness in the digital sector, and to
provide the requisite degree of legal certainty.
(63) Following a market investigation, an undertaking providing a core platform service
could be found to fulfil all of the overarching qualitative criteria for being identified as
a gatekeeper. It should then, in principle, comply with all of the relevant obligations
laid down by this Regulation. However, for gatekeepers that have been designated by
the Commission as likely to enjoy an entrenched and durable position in the near
future, the Commission should only impose those obligations that are necessary and
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appropriate to prevent that the gatekeeper concerned achieves an entrenched and
durable position in its operations. With respect to such emerging gatekeepers, the
Commission should take into account that this status is in principle of a temporary
nature, and it should therefore be decided at a given moment whether such a provider
of core platform services should be subjected to the full set of gatekeeper obligations
because it has acquired an entrenched and durable position, or conditions for
designation are ultimately not met and therefore all previously imposed obligations
should be waived.
(64) The Commission should investigate and assess whether additional behavioural, or,
where appropriate, structural remedies are justified, in order to ensure that the
gatekeeper cannot frustrate the objectives of this Regulation by systematic non-
compliance with one or several of the obligations laid down in this Regulation, which
has further strengthened its gatekeeper position. This would be the case if the
gatekeeper’s size in the internal market has further increased, economic dependency of
business users and end users on the gatekeeper’s core platform services has further
strengthened as their number has further increased and the gatekeeper benefits from
increased entrenchment of its position. The Commission should therefore in such cases
have the power to impose any remedy, whether behavioural or structural, having due
regard to the principle of proportionality. Structural remedies, such as legal, functional
or structural separation, including the divestiture of a business, or parts of it, should
only be imposed either where there is no equally effective behavioural remedy or
where any equally effective behavioural remedy would be more burdensome for the
undertaking concerned than the structural remedy. Changes to the structure of an
undertaking as it existed before the systematic non-compliance was established would
only be proportionate where there is a substantial risk that this systematic non-
compliance results from the very structure of the undertaking concerned.
(65) The services and practices in core platform services and markets in which these
intervene can change quickly and to a significant extent. To ensure that this Regulation
remains up to date and constitutes an effective and holistic regulatory response to the
problems posed by gatekeepers, it is important to provide for a regular review of the
lists of core platform services as well as of the obligations provided for in this
Regulation. This is particularly important to ensure that behaviour that may limit the
contestability of core platform services or is unfair is identified. While it is important
to conduct a review on a regular basis, given the dynamically changing nature of the
digital sector, in order to ensure legal certainty as to the regulatory conditions, any
reviews should be conducted within a reasonable and appropriate time-frame. Market
investigations should also ensure that the Commission has a solid evidentiary basis on
which it can assess whether it should propose to amend this Regulation in order to
expand, or further detail, the lists of core platform services. They should equally
ensure that the Commission has a solid evidentiary basis on which it can assess
whether it should propose to amend the obligations laid down in this Regulation or
whether it should adopt a delegated act updating such obligations.
(66) In the event that gatekeepers engage in behaviour that is unfair or that limits the
contestability of the core platform services that are already designated under this
Regulation but without these behaviours being explicitly covered by the obligations,
the Commission should be able to update this Regulation through delegated acts. Such
updates by way of delegated act should be subject to the same investigatory standard
and therefore following a market investigation. The Commission should also apply a
predefined standard in identifying such behaviours. This legal standard should ensure
EN 30 EN
that the type of obligations that gatekeepers may at any time face under this
Regulation are sufficiently predictable.
(67) Where, in the course of a proceeding into non-compliance or an investigation into
systemic non-compliance, a gatekeeper offers commitments to the Commission, the
latter should be able to adopt a decision making these commitments binding on the
gatekeeper concerned, where it finds that the commitments ensure effective
compliance with the obligations of this Regulation. This decision should also find that
there are no longer grounds for action by the Commission.
(68) In order to ensure effective implementation and compliance with this Regulation, the
Commission should have strong investigative and enforcement powers, to allow it to
investigate, enforce and monitor the rules laid down in this Regulation, while at the
same time ensuring the respect for the fundamental right to be heard and to have
access to the file in the context of the enforcement proceedings. The Commission
should dispose of these investigative powers also for the purpose of carrying out
market investigations for the purpose of updating and reviewing this Regulation.
(69) The Commission should be empowered to request information necessary for the
purpose of this Regulation, throughout the Union. In particular, the Commission
should have access to any relevant documents, data, database, algorithm and
information necessary to open and conduct investigations and to monitor the
compliance with the obligations laid down in this Regulation, irrespective of who
possesses the documents, data or information in question, and regardless of their form
or format, their storage medium, or the place where they are stored.
(70) The Commission should be able to directly request that undertakings or association of
undertakings provide any relevant evidence, data and information. In addition, the
Commission should be able to request any relevant information from any public
authority, body or agency within the Member State, or from any natural person or
legal person for the purpose of this Regulation. When complying with a decision of
the Commission, undertakings are obliged to answer factual questions and to provide
documents.
(71) The Commission should also be empowered to undertake onsite inspections and to
interview any persons who may be in possession of useful information and to record
the statements made.
(72) The Commission should be able to take the necessary actions to monitor the effective
implementation and compliance with the obligations laid down in this Regulation.
Such actions should include the ability of the Commission to appoint independent
external experts, such as and auditors to assist the Commission in this process,
including where applicable from competent independent authorities, such as data or
consumer protection authorities.
(73) Compliance with the obligations imposed under this Regulation should be enforceable
by means of fines and periodic penalty payments. To that end, appropriate levels of
fines and periodic penalty payments should also be laid down for non-compliance with
the obligations and breach of the procedural rules subject to appropriate limitation
periods. The Court of Justice should have unlimited jurisdiction in respect of fines and
penalty payments.
(74) In order to ensure effective recovery of fines imposed on associations of undertakings
for infringements that they have committed, it is necessary to lay down the conditions
EN 31 EN
on which the Commission may require payment of the fine from the members of the
association where the association is not solvent.
(75) In the context of proceedings carried out under this Regulation, the undertakings
concerned should be accorded the right to be heard by the Commission and the
decisions taken should be widely publicised. While ensuring the rights to good
administration and the rights of defence of the undertakings concerned, in particular,
the right of access to the file and the right to be heard, it is essential that confidential
information be protected. Furthermore, while respecting the confidentiality of the
information, the Commission should ensure that any information relied on for the
purpose of the decision is disclosed to an extent that allows the addressee of the
decision to understand the facts and considerations that led up to the decision. Finally,
under certain conditions certain business records, such as communication between
lawyers and their clients, may be considered confidential if the relevant conditions are
met.
(76) In order to ensure uniform conditions for the implementation of Articles 3, 6, 12, 13,
15, 16, 17, 20, 22, 23, 25 and 30, implementing powers should be conferred on the
Commission. Those powers should be exercised in accordance with Regulation (EU)
No 182//2011 of the European Parliament and of the Council35.
(77) The advisory committee established in accordance with Regulation (EU) No
182//2011 should also deliver opinions on certain individual decisions of the
Commission issued under this Regulation. In order to ensure contestable and fair
markets in the digital sector across the Union where gatekeepers are present, the power
to adopt acts in accordance with Article 290 of the Treaty should be delegated to the
Commission to supplement this Regulation. In particular, delegated acts should be
adopted in respect of the methodology for determining the quantitative thresholds for
designation of gatekeepers under this Regulation and in respect of the update of the
obligations laid down in this Regulation where, based on a market investigation the
Commission has identified the need for updating the obligations addressing practices
that limit the contestability of core platform services or are unfair. It is of particular
importance that the Commission carries out appropriate consultations and that those
consultations be conducted in accordance with the principles laid down in the
Interinstitutional Agreement on Better Law-Making of 13 April 201636. In particular,
to ensure equal participation in the preparation of delegated acts, the European
Parliament and the Council receive all documents at the same time as Member States'
experts, and their experts systematically have access to meetings of Commission
expert groups dealing with the preparation of delegated acts.
(78) The Commission should periodically evaluate this Regulation and closely monitor its
effects on the contestability and fairness of commercial relationships in the online
platform economy, in particular with a view to determining the need for amendments
in light of relevant technological or commercial developments. This evaluation should
include the regular review of the list of core platform services and the obligations
addressed to gatekeepers as well as enforcement of these, in view of ensuring that
digital markets across the Union are contestable and fair. In order to obtain a broad
35
Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011
laying down the rules and general principles concerning mechanisms for control by Member States of
the Commission’s exercise of implementing powers, (OJ L 55, 28.2.2011, p. 13).
36
Interinstitutional Agreement between the European Parliament, the Council of the European Union and
the European Commission on Better Law-Making (OJ L 123, 12.5.2016, p.1).
EN 32 EN
view of developments in the sector, the evaluation should take into account the
experiences of Member States and relevant stakeholders. The Commission may in this
regard also consider the opinions and reports presented to it by the Observatory on the
Online Platform Economy that was first established by Commission Decision
C(2018)2393 of 26 April 2018. Following the evaluation, the Commission should take
appropriate measures. The Commission should to maintain a high level of protection
and respect for the common EU rights and values, particularly equality and non-
discrimination, as an objective when conducting the assessments and reviews of the
practices and obligations provided in this Regulation.
(79) The objective of this Regulation is to ensure a contestable and fair digital sector in
general and core platform services in particular, with a view to promoting innovation,
high quality of digital products and services, fair and competitive prices, as well as a
high quality and choice for end users in the digital sector. This cannot be sufficiently
achieved by the Member States, but can only, by reason of the business model and
operations of the gatekeepers and the scale and effects of their operations, be fully
achieved at Union level. The Union may adopt measures, in accordance with the
principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In
accordance with the principle of proportionality, as set out in that Article, this
Regulation does not go beyond what is necessary in order to achieve that objective.
This Regulation respects the fundamental rights and observes the principles recognised in
particular by the Charter of Fundamental Rights of the European Union, in particular Articles
16, 47 and 50 thereof. Accordingly, this Regulation should be interpreted and applied with
respect to those rights and principlesHAVE ADOPTED THIS REGULATION:
Chapter I
Subject matter, scope and definitions
Article 1
Subject-matter and scope
1. This Regulation lays down harmonised rules ensuring contestable and fair markets in
the digital sector across the Union where gatekeepers are present.
2. This Regulation shall apply to core platform services provided or offered by
gatekeepers to business users established in the Union or end users established or
located in the Union, irrespective of the place of establishment or residence of the
gatekeepers and irrespective of the law otherwise applicable to the provision of
service.
3. This Regulation shall not apply to markets:
(a) related to electronic communications networks as defined in point (1) of
Article 2 of Directive (EU) 2018/1972 of the European Parliament and of the
Council37;
37
Directive (EU) 2018/1972 of the European Parliament and of the Council of 11 December 2018
establishing the European Electronic Communications Code (Recast) (OJ L 321, 17.12.2018, p. 36).
EN 33 EN
(b) related to electronic communications services as defined in point (4) of Article
2 of Directive (EU) 2018/1972 other than those related to interpersonal
communication services as defined in point (4)(b) of Article 2 of that Directive.
4. With regard to interpersonal communication services this Regulation is without
prejudice to the powers and tasks granted to the national regulatory and other
competent authorities by virtue of Article 61 of Directive (EU) 2018/1972.
5. Member States shall not impose on gatekeepers further obligations by way of laws,
regulations or administrative action for the purpose of ensuring contestable and fair
markets. This is without prejudice to rules pursuing other legitimate public interests,
in compliance with Union law. In particular, nothing in this Regulation precludes
Member States from imposing obligations, which are compatible with Union law, on
undertakings, including providers of core platform services where these obligations
are unrelated to the relevant undertakings having a status of gatekeeper within the
meaning of this Regulation in order to protect consumers or to fight against acts of
unfair competition.
6. This Regulation is without prejudice to the application of Articles 101 and 102
TFEU. It is also without prejudice to the application of: national rules prohibiting
anticompetitive agreements, decisions by associations of undertakings, concerted
practices and abuses of dominant positions; national competition rules prohibiting
other forms of unilateral conduct insofar as they are applied to undertakings other
than gatekeepers or amount to imposing additional obligations on gatekeepers;
Council Regulation (EC) No 139/200438 and national rules concerning merger
control; Regulation (EU) 2019/1150 and Regulation (EU) …./.. of the European
Parliament and of the Council39.
7. National authorities shall not take decisions which would run counter to a decision
adopted by the Commission under this Regulation. The Commission and Member
States shall work in close cooperation and coordination in their enforcement actions.
Article 2
Definitions
For the purposes of this Regulation, the following definitions apply:
(1) ‘Gatekeeper’ means a provider of core platform services designated pursuant to
Article 3;
(2) ‘Core platform service’ means any of the following:
(a) online intermediation services;
(b) online search engines;
(c) online social networking services;
(d) video-sharing platform services;
(e) number-independent interpersonal communication services;
38
Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between
undertakings (the EC Merger Regulation) (OJ L 24, 29.1.2004, p. 1).
39
Regulation (EU) …/.. of the European Parliament and of the Council – proposal on a Single Market
For Digital Services (Digital Services Act) and amending Directive 2000/31/EC.
EN 34 EN
(f) operating systems;
(g) cloud computing services;
(h) advertising services, including any advertising networks, advertising exchanges
and any other advertising intermediation services, provided by a provider of
any of the core platform services listed in points (a) to (g);
(3) ‘Information society service’ means any service within the meaning of point (b) of
Article 1(1) of Directive (EU) 2015/1535;
(4) ‘Digital sector’ means the sector of products and services provided by means of or
through information society services;
(5) ‘Online intermediation services’ means services as defined in point 2 of Article 2 of
Regulation (EU) 2019/1150;
(6) ‘Online search engine’ means a digital service as defined in point 5 of Article 2 of
Regulation (EU) 2019/1150;
(7) ‘Online social networking service’ means a platform that enables end users to
connect, share, discover and communicate with each other across multiple devices
and, in particular, via chats, posts, videos and recommendations;
(8) ‘Video-sharing platform service’ means a service as defined in point (aa) of Article
1(1) of Directive (EU) 2010/1340;
(9) ‘Number-independent interpersonal communications service’ means a service as
defined in point 7 of Article 2 of Directive (EU) 2018/1972;
(10) ‘Operating system’ means a system software which controls the basic functions of
the hardware or software and enables software applications to run on it;
(11) ‘Cloud computing services’ means a digital service as defined in point 19 of Article
4 of Directive (EU) 2016/1148 of the European Parliament and of the Council41;
(12) ‘Software application stores’ means a type of online intermediation services, which
is focused on software applications as the intermediated product or service;
(13) ‘Software application’ means any digital product or service that runs on an operating
system;
(14) ‘Ancillary service’ means services provided in the context of or together with core
platform services, including payment services as defined in point 3 of Article 4 and
technical services which support the provision of payment services as defined in
Article 3(j) of Directive (EU) 2015/2366, fulfilment, identification or advertising
services;
(15) ‘Identification service’ means a type of ancillary services that enables any type of
verification of the identity of end users or business users, regardless of the
technology used;
40
Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the
coordination of certain provisions laid down by law, regulation or administrative action in Member
States concerning the provision of audiovisual media services (Audiovisual Media Services Directive)
(OJ L 95, 15.4.2010, p. 1).
41
Directive (EU) 2016/1148 of the European Parliament and of the Council of 6 July 2016 concerning
measures for a high common level of security of network and information systems across the Union (OJ
L 194, 19.7.2016, p. 1).
EN 35 EN
(16) ‘End user’ means any natural or legal person using core platform services other than
as a business user;
(17) ‘Business user’ means any natural or legal person acting in a commercial or
professional capacity using core platform services for the purpose of or in the course
of providing goods or services to end users;
(18) ‘Ranking’ means the relative prominence given to goods or services offered through
online intermediation services or online social networking services, or the relevance
given to search results by online search engines, as presented, organised or
communicated by the providers of online intermediation services or of online social
networking services or by providers of online search engines, respectively, whatever
the technological means used for such presentation, organisation or communication;
(19) ‘Data’ means any digital representation of acts, facts or information and any
compilation of such acts, facts or information, including in the form of sound, visual
or audiovisual recording;
(20) ‘Personal data’ means any information as defined in point 1 of Article 4 of
Regulation (EU) 2016/679;
(21) ‘Non-personal data’ means data other than personal data as defined in point 1 of
Article 4 of Regulation (EU) 2016/679;
(22) ‘Undertaking’ means all linked enterprises or connected undertakings that form a
group through the direct or indirect control of an enterprise or undertaking by another
and that are engaged in an economic activity, regardless of their legal status and the
way in which they are financed;
(23) ‘Control’ means the possibility of exercising decisive influence on an undertaking, as
understood in Regulation (EU) No 139/2004.
Chapter II
Gatekeepers
Article 3
Designation of gatekeepers
1. A provider of core platform services shall be designated as gatekeeper if:
(a) it has a significant impact on the internal market;
(b) it operates a core platform service which serves as an important gateway for
business users to reach end users; and
(c) it enjoys an entrenched and durable position in its operations or it is
foreseeable that it will enjoy such a position in the near future.
2. A provider of core platform services shall be presumed to satisfy:
(a) the requirement in paragraph 1 point (a) where the undertaking to which it
belongs achieves an annual EEA turnover equal to or above EUR 6.5 billion in
the last three financial years, or where the average market capitalisation or the
equivalent fair market value of the undertaking to which it belongs amounted
to at least EUR 65 billion in the last financial year, and it provides a core
platform service in at least three Member States;
EN 36 EN
(b) the requirement in paragraph 1 point (b) where it provides a core platform
service that has more than 45 million monthly active end users established or
located in the Union and more than 10 000 yearly active business users
established in the Union in the last financial year;
for the purpose of the first subparagraph, monthly active end users shall refer to
the average number of monthly active end users throughout the largest part of
the last financial year;
(c) the requirement in paragraph 1 point (c) where the thresholds in point (b) were
met in each of the last three financial years.
3. Where a provider of core platform services meets all the thresholds in paragraph 2, it
shall notify the Commission thereof within three months after those thresholds are
satisfied and provide it with the relevant information identified in paragraph 2.. That
notification shall include the relevant information identified in paragraph 2 for each
of the core platform services of the provider that meets the thresholds in paragraph 2
point (b). The notification shall be updated whenever other core platform services
individually meet the thresholds in paragraph 2 point (b).
A failure by a relevant provider of core platform services to notify the required
information pursuant to this paragraph shall not prevent the Commission from
designating these providers as gatekeepers pursuant to paragraph 4 at any time.
4. The Commission shall, without undue delay and at the latest 60 days after receiving
the complete information referred to in paragraph 3, designate the provider of core
platform services that meets all the thresholds of paragraph 2 as a gatekeeper, unless
that provider, with its notification, presents sufficiently substantiated arguments to
demonstrate that, in the circumstances in which the relevant core platform service
operates, and taking into account the elements listed in paragraph 6, the provider
does not satisfy the requirements of paragraph 1.
Where the gatekeeper presents such sufficiently substantiated arguments to
demonstrate that it does not satisfy the requirements of paragraph 1, the Commission
shall apply paragraph 6 to assess whether the criteria in paragraph 1 are met.
5. The Commission is empowered to adopt delegated acts in accordance with Article 37
to specify the methodology for determining whether the quantitative thresholds laid
down in paragraph 2 are met, and to regularly adjust it to market and technological
developments where necessary, in particular as regards the threshold in paragraph 2,
point (a).
6. The Commission may identify as a gatekeeper, in accordance with the procedure laid
down in Article 15, any provider of core platform services that meets each of the
requirements of paragraph 1, but does not satisfy each of the thresholds of paragraph
2, or has presented sufficiently substantiated arguments in accordance with paragraph
4.
For that purpose, the Commission shall take into account the following elements:
(a) the size, including turnover and market capitalisation, operations and position
of the provider of core platform services;
(b) the number of business users depending on the core platform service to reach
end users and the number of end users;
EN 37 EN
(c) entry barriers derived from network effects and data driven advantages, in
particular in relation to the provider’s access to and collection of personal and
non-personal data or analytics capabilities;
(d) scale and scope effects the provider benefits from, including with regard to
data;
(e) business user or end user lock-in;
(f) other structural market characteristics.
In conducting its assessment, the Commission shall take into account foreseeable
developments of these elements.
Where the provider of a core platform service that satisfies the quantitative
thresholds of paragraph 2 fails to comply with the investigative measures ordered by
the Commission in a significant manner and the failure persists after the provider has
been invited to comply within a reasonable time-limit and to submit observations, the
Commission shall be entitled to designate that provider as a gatekeeper.
Where the provider of a core platform service that does not satisfy the quantitative
thresholds of paragraph 2 fails to comply with the investigative measures ordered by
the Commission in a significant manner and the failure persists after the provider has
been invited to comply within a reasonable time-limit and to submit observations, the
Commission shall be entitled to designate that provider as a gatekeeper based on
facts available.
7. For each gatekeeper identified pursuant to paragraph 4 or paragraph 6, the
Commission shall identify the relevant undertaking to which it belongs and list the
relevant core platform services that are provided within that same undertaking and
which individually serve as an important gateway for business users to reach end
users as referred to in paragraph 1(b).
8. The gatekeeper shall comply with the obligations laid down in Articles 5 and 6
within six months after a core platform service has been included in the list pursuant
to paragraph 7 of this Article.
Article 4
Review of the status of gatekeepers
1. The Commission may upon request or its own initiative reconsider, amend or repeal
at any moment a decision adopted pursuant to Article 3 for one of the following
reasons:
(a) there has been a substantial change in any of the facts on which the decision
was based;
(b) the decision was based on incomplete, incorrect or misleading information
provided by the undertakings.
2. The Commission shall regularly, and at least every 2 years, review whether the
designated gatekeepers continue to satisfy the requirements laid down in Article 3(1),
or whether new providers of core platform services satisfy those requirements. The
regular review shall also examine whether the list of affected core platform services
of the gatekeeper needs to be adjusted.
Where the Commission, on the basis of that review pursuant to the first
subparagraph, finds that the facts on which the designation of the providers of core
EN 38 EN
platform services as gatekeepers was based, have changed, it shall adopt a
corresponding decision.
3. The Commission shall publish and update the list of gatekeepers and the list of the
core platform services for which they need to comply with the obligations laid down
in Articles 5 and 6 on an on-going basis.
Chapter III
Practices of gatekeepers that limit contestability or are unfair
Article 5
Obligations for gatekeepers
In respect of each of its core platform services identified pursuant to Article 3(7), a gatekeeper
shall:
(a) refrain from combining personal data sourced from these core platform services with
personal data from any other services offered by the gatekeeper or with personal data
from third-party services, and from signing 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 provided consent in the sense of Regulation (EU)
2016/679. ;
(b) allow business users to offer the same products or services to end users through third
party online intermediation services at prices or conditions that are different from
those offered through the online intermediation services of the gatekeeper;
(c) allow business users to promote offers to end users acquired via the core platform
service, and to conclude contracts with these end users regardless of whether for that
purpose they use the core platform services of the gatekeeper or not, and allow end
users to access and use, through the core platform services of the gatekeeper, content,
subscriptions, features or other items by using the software application of a business
user, where these items have been acquired by the end users from the relevant
business user without using the core platform services of the gatekeeper;
(d) refrain from preventing or restricting business users from raising issues with any
relevant public authority relating to any practice of gatekeepers;
(e) refrain from requiring business users to use, offer or interoperate with an
identification service of the gatekeeper in the context of services offered by the
business users using the core platform services of that gatekeeper;
(f) refrain from requiring business users or end users to subscribe to or register with any
other core platform services identified pursuant to Article 3 or which meets the
thresholds in Article 3(2)(b) as a condition to access, sign up or register to any of
their core platform services identified pursuant to that Article;
(g) provide advertisers and publishers to which it supplies advertising services, upon
their request, with information concerning the price paid by the advertiser and
publisher, as well as the amount or remuneration paid to the publisher, for the
publishing of a given ad and for each of the relevant advertising services provided by
the gatekeeper.
EN 39 EN
Article 6
Obligations for gatekeepers susceptible of being further specified
1. In respect of each of its core platform services identified pursuant to Article 3(7), a
gatekeeper shall:
(a) refrain from using, in competition with business users, any data not publicly
available, which is generated through activities by those business users,
including by the end users of these business users, of its core platform services
or provided by those business users of its core platform services or by the end
users of these business users;
(b) allow end users to un-install any pre-installed software applications on its core
platform service without prejudice to the possibility for a 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;
(c) allow the installation and effective use of third party software applications or
software application stores using, or interoperating with, operating systems of
that gatekeeper and allow these software applications or software application
stores to be accessed by means other than the core platform services of that
gatekeeper. The gatekeeper shall not be prevented from taking 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;
(d) refrain from treating more favourably in ranking services and products offered
by the gatekeeper itself or by any third party belonging to the same undertaking
compared to similar services or products of third party and apply fair and non-
discriminatory conditions to such ranking;
(e) refrain from technically restricting the ability of end users to switch between
and subscribe to different software applications and services to be accessed
using the operating system of the gatekeeper, including as regards the choice of
Internet access provider for end users;
(f) allow business users and providers of ancillary services access to and
interoperability with the same operating system, hardware or software features
that are available or used in the provision by the gatekeeper of any ancillary
services;
(g) provide advertisers and publishers, upon their request and free of charge, with
access to the performance measuring tools of the gatekeeper and the
information necessary for advertisers and publishers to carry out their own
independent verification of the ad inventory;
(h) provide effective portability of data generated through the activity of a business
user or end user and shall, in particular, provide tools for end users to facilitate
the exercise of data portability, in line with Regulation EU 2016/679, including
by the provision of continuous and real-time access ;
(i) provide business users, or third parties authorised by a business user, free of
charge, with effective, high-quality, continuous and real-time access and use of
aggregated or non-aggregated data, that is provided for or generated in the
context of the use of the relevant core platform services by those business users
EN 40 EN
and the end users engaging with the products or services provided by those
business users; for personal data, provide access and use only where directly
connected with the use effectuated by the end user in respect of the products or
services offered by the relevant business user through the relevant core
platform service, and when the end user opts in to such sharing with a consent
in the sense of the Regulation (EU) 2016/679; ;
(j) provide to any third party providers of online search engines, upon their
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 online search engines of the gatekeeper, subject to
anonymisation for the query, click and view data that constitutes personal data;
(k) apply fair and non-discriminatory general conditions of access for business
users to its software application store designated pursuant to Article 3 of this
Regulation.
2. For the purposes of point (a) of paragraph 1 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 on the core platform service of the gatekeeper.
Article 7
Compliance with obligations for gatekeepers
1. The measures implemented by the gatekeeper to ensure compliance with the
obligations laid down in Articles 5 and 6 shall be effective in achieving the objective
of the relevant obligation. The gatekeeper shall ensure that these measures are
implemented in compliance with Regulation (EU) 2016/679 and Directive
2002/58/EC, and with legislation on cyber security, consumer protection and product
safety.
2. Where the Commission finds that the measures that the gatekeeper intends to
implement pursuant to paragraph 1, or has implemented, do not ensure effective
compliance with the relevant obligations laid down in Article 6, it may by decision
specify the measures that the gatekeeper concerned shall implement. The
Commission shall adopt such a decision within six months from the opening of
proceedings pursuant to Article 18.
3. Paragraph 2 of this Article is without prejudice to the powers of the Commission
under Articles 25, 26 and 27.
4. In view of adopting the decision under paragraph 2, the Commission shall
communicate its preliminary findings within three months from the opening of the
proceedings. In the preliminary findings, the Commission shall explain the measures
it considers to take or it considers that the provider of core platform services
concerned should take in order to effectively address the preliminary findings.
5. In specifying the measures under paragraph 2, the Commission shall ensure that the
measures are effective in achieving the objectives of the relevant obligation and
proportionate in the specific circumstances of the gatekeeper and the relevant service.
6. For the purposes of specifying the obligations under Article 6(1) points (j) and (k),
the Commission shall also assess whether the intended or implemented measures
ensure that there is no remaining imbalance of rights and obligations on business
EN 41 EN
users and that the measures do not themselves confer an advantage on the gatekeeper
which is disproportionate to the service provided by the gatekeeper to business users.
7. A gatekeeper 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. A gatekeeper may,
with its request, provide a reasoned submission to explain in particular why the
measures that it intends to implement or has implemented are effective in achieving
the objective of the relevant obligation in the specific circumstances.
Article 8
Suspension
1. The Commission may, on a reasoned request by the gatekeeper, exceptionally
suspend, in whole or in part, a specific obligation laid down in Articles 5 and 6 for a
core platform service by decision adopted in accordance with the advisory procedure
referred to in Article 32(4), where the gatekeeper demonstrates that compliance with
that specific obligation would endanger, due to exceptional circumstances beyond the
control of the gatekeeper, the economic viability of the operation of the gatekeeper in
the Union, and only to the extent necessary to address such threat to its viability. The
Commission shall aim to adopt the suspension decision without delay and at the
latest 3 months following receipt of a complete reasoned request.
2. Where the suspension is granted pursuant to paragraph 1, the Commission shall
review its suspension decision every year. Following such a review the Commission
shall either lift the suspension or decide that the conditions of paragraph 1 continue
to be met.
3. The Commission may, acting on a reasoned request by a gatekeeper, provisionally
suspend the application of the relevant obligation to one or more individual core
platform services already prior to the decision pursuant to paragraph 1.
In assessing the request, the Commission shall take into account, in particular, the
impact of the compliance with the specific obligation on the economic viability of
the operation of the gatekeeper in the Union as well as on third parties. The
suspension may be made subject to conditions and obligations to be defined by the
Commission in order to ensure a fair balance between these interests and the
objectives of this Regulation. Such a request may be made and granted at any time
pending the assessment of the Commission pursuant to paragraph 1.
Article 9
Exemption for overriding reasons of public interest
1. The Commission may, acting on a reasoned request by a gatekeeper or on its own
initiative, by decision adopted in accordance with the advisory procedure referred to
in Article 32(4), exempt it, in whole or in part, from a specific obligation laid down
in Articles 5 and 6 in relation to an individual core platform service identified
pursuant to Article 3(7), where such exemption is justified on the grounds set out in
paragraph 2 of this Article. The Commission shall adopt the exemption decision at
the latest 3 months after receiving a complete reasoned request.
2. An exemption pursuant to paragraph 1 may only be granted on grounds of:
EN 42 EN
(a) public morality;
(b) public health;
(c) public security.
3. The Commission may, acting on a reasoned request by a gatekeeper or on its own
initiative, provisionally suspend the application of the relevant obligation to one or
more individual core platform services already prior to the decision pursuant to
paragraph 1.
In assessing the request, the Commission shall take into account, in particular, the
impact of the compliance with the specific obligation on the grounds in paragraph 2
as well as the effects on the gatekeeper concerned and on third parties. The
suspension may be made subject to conditions and obligations to be defined by the
Commission in order to ensure a fair balance between the goals pursued by the
grounds in paragraph 2 and the objectives of this Regulation. Such a request may be
made and granted at any time pending the assessment of the Commission pursuant to
paragraph 1.
Article 10
Updating obligations for gatekeepers
1. The Commission is empowered to adopt delegated acts in accordance with Article 34
to update the obligations laid down in Articles 5 and 6 where, based on a market
investigation pursuant to Article 17, it has identified the need for new obligations
addressing practices that limit the contestability of core platform services or are
unfair in the same way as the practices addressed by the obligations laid down in
Articles 5 and 6.
1. A practice within the meaning of paragraph 1 shall be considered to be unfair or limit
the contestability of core platform services where:
(a) there is an imbalance of rights and obligations on business users and the
gatekeeper is obtaining an advantage from business users that is
disproportionate to the service provided by the gatekeeper to business users; or
(b) the contestability of markets is weakened as a consequence of such a practice
engaged in by gatekeepers.
Article 11
Anti-circumvention
1. A gatekeeper shall ensure that the obligations of Articles 5 and 6 are fully and
effectively complied with. While the obligations of Articles 5 and 6 apply in respect
of core platform services designated pursuant to Article 3, their implementation shall
not be undermined by any behaviour of the undertaking to which the gatekeeper
belongs, regardless of whether this behaviour is of a contractual, commercial,
technical or any other nature.
2. Where consent for collecting and processing of personal data is required to ensure
compliance with this Regulation, a gatekeeper shall take the necessary steps to either
enable business users to directly obtain the required consent to their processing,
where required under Regulation (EU) 2016/679 and Directive 2002/58/EC, or to
comply with Union data protection and privacy rules and principles in other ways
including by providing business users with duly anonymised data where appropriate.
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The gatekeeper shall not make the obtaining of this consent by the business user
more burdensome than for its own services.
3. A gatekeeper shall not degrade the conditions or quality of any of the core platform
services provided to business users or end users who avail themselves of the rights or
choices laid down in Articles 5 and 6, or make the exercise of those rights or choices
unduly difficult.
Article 12
Obligation to inform about concentrations
1. A gatekeeper shall inform the Commission of any intended concentration within the
meaning of Article 3 of Regulation (EC) No 139/2004 involving another provider of
core platform services or of any other services provided in the digital sector
irrespective of whether it is notifiable to a Union competition authority under
Regulation (EC) No 139/2004 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.
2. The notification pursuant to paragraph 1 shall at least describe for the acquisition
targets their EEA and worldwide annual turnover, for any relevant core platform
services their respective EEA annual turnover, their number of yearly active business
users and the number of monthly active end users, as well as the rationale of the
intended concentration.
3. If, following any concentration as provided in paragraph 1, additional core platform
services individually satisfy the thresholds in point (b) of Article 3(2), the gatekeeper
concerned shall inform the Commission thereof within three months from the
implementation of the concentration and provide the Commission with the
information referred to in Article 3(2).
Article 13
Obligation of an audit
Within six months after its designation pursuant to Article 3, a gatekeeper shall submit to the
Commission an independently audited description of any techniques for profiling of
consumers that the gatekeeper applies to or across its core platform services identified
pursuant to Article 3. This description shall be updated at least annually.
Chapter IV
Market investigation
Article 14
Opening of a market investigation
1. When the Commission intends to carry out a market investigation in view of the
possible adoption of decisions pursuant to Articles 15, 16 and 17, it shall adopt a
decision opening a market investigation.
2. The opening decision shall specify:
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(a) the date of opening of the investigation;
(b) the description of the issue to which the investigation relates to;
(c) the purpose of the investigation.
3. The Commission may reopen a market investigation that it has closed where:
(a) there has been a material change in any of the facts on which the decision was
based;
(b) the decision was based on incomplete, incorrect or misleading information
provided by the undertakings concerned.
Article 15
Market investigation for designating gatekeepers
1. The Commission may conduct a market investigation for the purpose of examining
whether a provider of core platform services should be designated as a gatekeeper
pursuant to Article 3(6), or in order to identify core platform services for a
gatekeeper pursuant to Article 3(7). It shall endeavour to conclude its investigation
by adopting a decision in accordance with the advisory procedure referred to in
Article 32(4) within twelve months from the opening of the market investigation.
2. In the course of a market investigation pursuant to paragraph 1, the Commission
shall endeavour to communicate its preliminary findings to the provider of core
platform services concerned within six months from the opening of the investigation.
In the preliminary findings, the Commission shall explain whether it considers, on a
provisional basis, that the provider of core platform services should be designated as
a gatekeeper pursuant to Article 3(6).
3. Where the provider of core platform services satisfies the thresholds set out in Article
3(2), but has presented significantly substantiated arguments in accordance with
Article 3(4), the Commission shall endeavour to conclude the market investigation
within five months from the opening of the market investigation by a decision
pursuant to paragraph 1. In that case the Commission shall endeavour to
communicate its preliminary findings pursuant to paragraph 2 to the provider of core
platform services within three months from the opening of the investigation.
4. When the Commission pursuant to Article 3(6) designates as a gatekeeper a provider
of core platform services that does not yet enjoy an entrenched and durable position
in its operations, but it is foreseeable that it will enjoy such a position in the near
future, it shall declare applicable to that gatekeeper only obligations laid down in
Article 5(b) and Article 6(1) points (e), (f), (h) and (i) as specified in the designation
decision. The Commission shall only declare applicable those obligations that are
appropriate and necessary to prevent that the gatekeeper concerned achieves by
unfair means an entrenched and durable position in its operations. The Commission
shall review such a designation in accordance with the procedure laid down in
Article 4.
Article 16
Market investigation into systematic non-compliance
1. Where the market investigation shows that a gatekeeper has systematically infringed
the obligations laid down in Articles 5 and 6 and has further strengthened or
extended its gatekeeper position in relation to the characteristics under Article 3(1),
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the Commission may by decision adopted in accordance with the advisory procedure
referred to in Article 32(4) impose on such gatekeeper any behavioural or structural
remedies which are proportionate to the infringement committed and necessary to
ensure compliance with this Regulation. The Commission shall conclude its
investigation by adopting a decision within twelve months from the opening of the
market investigation.
2. The Commission may only impose structural remedies pursuant to paragraph 1 either
where there is no equally effective behavioural remedy or where any equally
effective behavioural remedy would be more burdensome for the gatekeeper
concerned than the structural remedy.
3. A gatekeeper shall be deemed to have engaged in a systematic non-compliance with
the obligations laid down in Articles 5 and 6, where the Commission has issued at
least three non-compliance or fining decisions pursuant to Articles 25 and 26
respectively against a gatekeeper in relation to any of its core platform services
within a period of five years prior to the adoption of the decision opening a market
investigation in view of the possible adoption of a decision pursuant to this Article.
4. A gatekeeper shall be deemed to have further strengthened or extended its gatekeeper
position in relation to the characteristics under Article 3(1), where its impact on the
internal market has further increased, its importance as a gateway for business users
to reach end users has further increased or the gatekeeper enjoys a further entrenched
and durable position in its operations.
5. The Commission shall communicate its objections to the gatekeeper concerned
within six months from the opening of the investigation. In its objections, the
Commission shall explain whether it preliminarily considers that the conditions of
paragraph 1 are met and which remedy or remedies it preliminarily considers
necessary and proportionate.
6. The Commission may at any time during the market investigation extend its duration
where the extension is justified on objective grounds and proportionate. The
extension may apply to the deadline by which the Commission has to issue its
objections, or to the deadline for adoption of the final decision. The total duration of
any extension or extensions pursuant to this paragraph shall not exceed six
months.The Commission may consider commitments pursuant to Article 23 and
make them binding in its decision.
Article 17
Market investigation into new services and new practices
The Commission may conduct a market investigation with the purpose of examining whether
one or more services within the digital sector should be added to the list of core platform
services or to detect types of practices that may limit the contestability of core platform
services or may be unfair and which are not effectively addressed by this Regulation. It shall
issue a public report at the latest within 24 months from the opening of the market
investigation.
Where appropriate, that report shall:
(a) be accompanied by a proposal to amend this Regulation in order to include additional
services within the digital sector in the list of core platform services laid down in
point 2 of Article 2;
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(b) be accompanied by a delegated act amending Articles 5 or 6 as provided for in
Article 10.
Chapter V
Investigative, enforcement and monitoring powers
Article 18
Opening of proceedings
Where the Commission intends to carry out proceedings in view of the possible adoption of
decisions pursuant to Article 7, 25 and 26, it shall adopt a decision opening a proceeding.
Article 19
Requests for information
1. The Commission may by simple request or by decision require information from
undertakings and associations of undertakings to provide all necessary information,
including for the purpose of monitoring, implementing and enforcing the rules laid
down in this Regulation. The Commission may also request access to data bases and
algorithms of undertakings and request explanations on those by a simple request or
by a decision.
2. The Commission may request information from undertakings and associations of
undertakings pursuant to paragraph 1 also prior to opening a market investigation
pursuant to Article 14 or proceedings pursuant to Article 18.
3. When sending a simple request for information to an undertaking or association of
undertakings, the Commission shall state the purpose of the request, specify what
information is required and fix the time-limit within which the information is to be
provided, and the penalties provided for in Article 26 for supplying incomplete,
incorrect or misleading information or explanations.
4. Where the Commission requires undertakings and associations of undertakings to
supply information by decision, it shall state the purpose of the request, specify what
information is required and fix the time-limit within which it is to be provided.
Where the Commission requires undertakings to provide access to its data-bases and
algorithms, it shall state the legal basis and the purpose of the request, and fix the
time-limit within which it is to be provided. It shall also indicate the penalties
provided for in Article 26 and indicate or impose the periodic penalty payments
provided for in Article 27. It shall further indicate the right to have the decision
reviewed by the Court of Justice.
5. The undertakings or associations of undertakings or their representatives shall supply
the information requested on behalf of the undertaking or the association of
undertakings concerned. Lawyers duly authorised to act may supply the information
on behalf of their clients. The latter shall remain fully responsible if the information
supplied is incomplete, incorrect or misleading.
6. At the request of the Commission, the governments and authorities of the Member
States shall provide the Commission with all necessary information to carry out the
duties assigned to it by this Regulation.
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Article 20
Power to carry out interviews and take statements
The Commission may interview any natural or legal person which consents to being
interviewed for the purpose of collecting information, relating to the subject-matter of an
investigation, including in relation to the monitoring, implementing and enforcing of the rules
laid down in this Regulation.
Article 21
Powers to conduct on-site inspections
1. The Commission may conduct on-site inspections at the premises of an undertaking
or association of undertakings.
2. On-site inspections may also be carried out with the assistance of auditors or experts
appointed by the Commission pursuant to Article 24(2).
3. During on-site inspections the Commission and auditors or experts appointed by it
may require the undertaking or association of undertakings to provide access to and
explanations on its organisation, functioning, IT system, algorithms, data-handling
and business conducts. The Commission and auditors or experts appointed by it may
address questions to key personnel.
4. Undertakings or associations of undertakings are required to submit to an on-site
inspection ordered by decision of the Commission. The decision shall specify the
subject matter and purpose of the visit, set the date on which it is to begin and
indicate the penalties provided for in Articles 26 and 27 and the right to have the
decision reviewed by the Court of Justice.
Article 22
Interim measures
1. In case of urgency due to the risk of serious and irreparable damage for business
users or end users of gatekeepers, the Commission may, by decision adopt in
accordance with the advisory procedure referred to in Article 32(4), order interim
measures against a gatekeeper on the basis of a prima facie finding of an
infringement of Articles 5 or 6.
2. A decision pursuant to paragraph 1 may only be adopted in the context of
proceedings opened in view of the possible adoption of a decision of non-compliance
pursuant to Article 25(1). This decision shall apply for a specified period of time and
may be renewed in so far this is necessary and appropriate.
Article 23
Commitments
1. If during proceedings under Articles 16 or 25 the gatekeeper concerned offers
commitments for the relevant core platform services to ensure compliance with the
obligations laid down in Articles 5 and 6, the Commission may by decision adopted
in accordance with the advisory procedure referred to in Article 32(4) make those
commitments binding on that gatekeeper and declare that there are no further
grounds for action.
2. The Commission may, upon request or on its own initiative, reopen by decision the
relevant proceedings, where:
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(a) there has been a material change in any of the facts on which the decision was
based;
(b) the gatekeeper concerned acts contrary to its commitments;
(c) the decision was based on incomplete, incorrect or misleading information
provided by the parties.
3. Should the Commission consider that the commitments submitted by the gatekeeper
concerned cannot ensure effective compliance with the obligations laid down in
Articles 5 and 6, it shall explain the reasons for not making those commitments
binding in the decision concluding the relevant proceedings.
Article 24
Monitoring of obligations and measures
1. The Commission may take the necessary actions to monitor the effective
implementation and compliance with the obligations laid down in Articles 5 and 6
and the decisions taken pursuant to Articles 7, 16, 22 and 23.
2. The actions pursuant to paragraph 1 may include the appointment of independent
external experts and auditors to assist the Commission to monitor the obligations and
measures and to provide specific expertise or knowledge to the Commission.
Article 25
Non-compliance
1. The Commission shall adopt a non-compliance decision in accordance with the
advisory procedure referred to in Article 32(4) where it finds that a gatekeeper does
not comply with one or more of the following:
(a) any of the obligations laid down in Articles 5 or 6;
(b) measures specified in a decision adopted pursuant to Article 7(2);
(c) measures ordered pursuant to Article 16(1);
(d) interim measures ordered pursuant to Article 22; or
(e) commitments made legally binding pursuant to Article 23.
2. Before adopting the decision pursuant to paragraph 1, the Commission shall
communicate its preliminary findings to the gatekeeper concerned. In the preliminary
findings, the Commission shall explain the measures it considers to take or it
considers that the gatekeeper should take in order to effectively address the
preliminary findings.
3. In the non-compliance decision adopted pursuant to paragraph 1, the Commission
shall order the gatekeeper to cease and desist with the non-compliance within an
appropriate deadline and to provide explanations on how it plans to comply with the
decision.
4. The gatekeeper shall provide the Commission with the description of the measures it
took to ensure compliance with the decision adopted pursuant to paragraph 1.
5. Where the Commission finds that the conditions of paragraph 1 are not met, it shall
close the investigation by a decision.
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Article 26
Fines
1. In the decision pursuant to Article 25, the Commission may impose on a gatekeeper
fines not exceeding 10% of its total turnover in the preceding financial year where it
finds that the gatekeeper, intentionally or negligently, fails to comply with:
(a) any of the obligations pursuant to Articles 5 and 6;
(b) the measures specified by the Commission pursuant to a decision under Article
7(2);
(c) measures ordered pursuant to Article 16(1);
(d) a decision ordering interim measures pursuant to Article 22;
(e) a commitment made binding by a decision pursuant to Article 23.
2. The Commission may by decision impose on undertakings and associations of
undertakings fines not exceeding 1% of the total turnover in the preceding financial
year where they intentionally or negligently:
(a) fail to provide within the time-limit information that is required for assessing
their designation as gatekeepers pursuant to Article 3(2) or supply incorrect,
incomplete or misleading information;
(b) fail to notify information that is required pursuant to Article 12 or supply
incorrect, incomplete or misleading information;
(c) fail to submit the description that is required pursuant to Article 13;
(d) supply incorrect, incomplete or misleading information or explanations that are
requested pursuant to Articles 19 or Article 20;
(e) fail to provide access to data-bases and algorithms pursuant to Article 19;
(f) fail to rectify within a time-limit set by the Commission, incorrect, incomplete
or misleading information given by a member of staff, or fail or refuse to
provide complete information on facts relating to the subject-matter and
purpose of an inspection pursuant to Article 21;
(g) refuse to submit to an on-site inspection pursuant to Article 21.
3. In fixing the amount of the fine, regard shall be had to the gravity, duration,
recurrence, and, for fines imposed pursuant to paragraph 2, delay caused to the
proceedings.
4. When a fine is imposed on an association of undertakings taking account of the
turnover of its members and the association is not solvent, the association shall be
obliged to call for contributions from its members to cover the amount of the fine.
Where such contributions have not been made to the association within a time-limit
set by the Commission, the Commission may require payment of the fine directly by
any of the undertakings whose representatives were members of the decision-making
bodies concerned of the association.
After having required payment in accordance with the second subparagraph, the
Commission may require payment of the balance by any of the members of the
association which were active on the market on which the infringement occurred,
where necessary to ensure full payment of the fine.
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However, the Commission shall not require payment pursuant to the second or the
third subparagraph from undertakings which show that they have not implemented
the infringing decision of the association and either were not aware of its existence or
have actively distanced themselves from it before the Commission started
investigating the case.
The financial liability of each undertaking in respect of the payment of the fine shall
not exceed 10 % of its total turnover in the preceding financial year.
Article 27
Periodic penalty payments
1. The Commission may by decision impose on undertakings, including gatekeepers
where applicable, periodic penalty payments not exceeding 5 % of the average daily
turnover in the preceding financial year per day, calculated from the date set by that
decision, in order to compel them:
(a) to comply with the decision pursuant to Article 16(1);
(b) to supply correct and complete information within the time limit required by a
request for information made by decision pursuant to Article 19;
(c) to ensure access to data-bases and algorithms of undertakings and to supply
explanations on those as required by a decision pursuant to Article 19;
(d) to submit to an on-site inspection which was ordered by a decision taken
pursuant to Article 21;
(e) to comply with a decision ordering interim measures taken pursuant to Article
22(1);
(f) to comply with commitments made legally binding by a decision pursuant to
Article 23(1);
(g) to comply with a decision pursuant to Article 25(1).
2. Where the undertakings have satisfied the obligation which the periodic penalty
payment was intended to enforce, the Commission may by decision adopted in
accordance with the advisory procedure referred to in Article 32(4) set the definitive
amount of the periodic penalty payment at a figure lower than that which would arise
under the original decision.
Article 28
Limitation periods for the imposition of penalties
1. The powers conferred on the Commission by Articles 26 and 27 shall be subject to a
three year limitation period.
2. Time shall begin to run on the day on which the infringement is committed.
However, in the case of continuing or repeated infringements, time shall begin to run
on the day on which the infringement ceases.
3. Any action taken by the Commission for the purpose of an investigation or
proceedings in respect of an infringement shall interrupt the limitation period for the
imposition of fines or periodic penalty payments. The limitation period shall be
interrupted with effect from the date on which the action is notified to at least one
undertaking or association of undertakings which has participated in the
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infringement. Actions which interrupt the running of the period shall include in
particular the following:
(a) requests for information by the Commission;
(b) on-site inspection;
(c) the opening of a proceeding by the Commission pursuant to Article 18.
4. Each interruption shall start time running afresh. However, the limitation period shall
expire at the latest on the day on which a period equal to twice the limitation period
has elapsed without the Commission having imposed a fine or a periodic penalty
payment. That period shall be extended by the time during which limitation is
suspended pursuant to paragraph 5.
5. The limitation period for the imposition of fines or periodic penalty payments shall
be suspended for as long as the decision of the Commission is the subject of
proceedings pending before the Court of Justice of the European Union.
Article 29
Limitation periods for the enforcement of penalties
1. The power of the Commission to enforce decisions taken pursuant to Articles 26 and
27 shall be subject to a limitation period of five years.
2. Time shall begin to run on the day on which the decision becomes final.
3. The limitation period for the enforcement of penalties shall be interrupted:
(a) by notification of a decision varying the original amount of the fine or periodic
penalty payment or refusing an application for variation;
(b) by any action of the Commission or of a Member State, acting at the request of
the Commission, designed to enforce payment of the fine or periodic penalty
payment.
4. Each interruption shall start time running afresh.
5. The limitation period for the enforcement of penalties shall be suspended for so long
as:
(a) time to pay is allowed;
(b) enforcement of payment is suspended pursuant to a decision of the Court of
Justice.
Article 30
Right to be heard and access to the file
1. Before adopting a decision pursuant to Article 7, Article 8(1), Article 9(1), Articles
15, 16, 22, 23, 25 and 26 and Article 27(2), the Commission shall give the
gatekeeper or undertaking or association of undertakings concerned the opportunity
of being heard on:
(a) preliminary findings of the Commission, including any matter to which the
Commission has taken objections;
(b) measures that the Commission may intend to take in view of the preliminary
findings pursuant to point (a) of this paragraph.
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2. Gatekeepers, undertakings and associations of undertakings concerned may submit
their observations to the Commission’s preliminary findings within a time limit
which shall be fixed by the Commission in its preliminary findings and which may
not be less than 14 days.
3. The Commission shall base its decisions only on objections on which gatekeepers,
undertakings and associations of undertakings concerned have been able to comment.
4. The rights of defence of the gatekeeper or undertaking or association of undertakings
concerned shall be fully respected in any proceedings. The gatekeeper or undertaking
or association of undertakings concerned shall be entitled to have access to the
Commission's file under the terms of a negotiated disclosure, subject to the legitimate
interest of undertakings in the protection of their business secrets. The right of access
to the file shall not extend to confidential information and internal documents of the
Commission or the authorities of the Member States. In particular, the right of access
shall not extend to correspondence between the Commission and the authorities of
the Member States. Nothing in this paragraph shall prevent the Commission from
disclosing and using information necessary to prove an infringement.
Article 31
Professional secrecy
1. The information collected pursuant to Articles 3, 12, 13, 19, 20 and 21 shall be used
only for the purposes of this Regulation.
2. Without prejudice to the exchange and to the use of information provided for the
purpose of use pursuant to Articles 32 and 33, the Commission, the authorities of the
Member States, their officials, servants and other persons working under the
supervision of these authorities and any natural or legal person, including auditors
and experts appointed pursuant to Article 24(2), shall not disclose information
acquired or exchanged by them pursuant to this Regulation and of the kind covered
by the obligation of professional secrecy. This obligation shall also apply to all
representatives and experts of Member States participating in any of the activities of
the Digital Markets Advisory Committee pursuant to Article 32.
Article 32
Digital Markets Advisory Committee
1. The Commission shall be assisted by the Digital Markets Advisory Committee. That
Committee shall be a Committee within the meaning of Regulation (EU) No
182/2011.
2. Where the opinion of the committee is to be obtained by written procedure, that
procedure shall be terminated without result when, within the time-limit for delivery
of the opinion, the chair of the committee so decides or a simple majority of
committee members so request.
3. The Commission shall communicate the opinion of the Digital Markets Advisory
Committee to the addressee of an individual decision, together with that decision. It
shall make the opinion public together with the individual decision, having regard to
the legitimate interest in the protection of professional secrecy.
4. Where reference is made to this paragraph, Article 4 of Regulation (EU) No
182/2011 shall apply.
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Article 33
Request for a market investigation
1. When three or more Member States request the Commission to open an investigation
pursuant to Article 15 because they consider that there are reasonable grounds to
suspect that a provider of core platform services should be designated as a
gatekeeper, the Commission shall within four months examine whether there are
reasonable grounds to open such an investigation.
2. Member States shall submit evidence in support of their request.
Chapter VI
General provisions
Article 34
Publication of decisions
1. The Commission shall publish the decisions which it takes pursuant to Articles 3, 7,
8, 9, 15, 16, 17, 22, 23(1), 25, 26 and 27. Such publication shall state the names of
the parties and the main content of the decision, including any penalties imposed.
2. The publication shall have regard to the legitimate interest of gatekeepers or third
parties in the protection of their confidential information.
Article 35
Review by the Court of Justice of the European Union
In accordance with Article 261 of the Treaty on the Functioning of the European Union, the
Court of Justice of the European Union has unlimited jurisdiction to review decisions by
which the Commission has imposed fines or periodic penalty payments. It may cancel, reduce
or increase the fine or periodic penalty payment imposed.
Article 36
Implementing provisions
1. The Commission may adopt implementing acts concerning: 3, 6, 12, 13, 15, 16, 17,
20, 22, 23, 25 and 30
(a) the form, content and other details of notifications and submissions pursuant to
Article 3;
(b) the form, content and other details of the technical measures that gatekeepers
shall implement in order to ensure compliance with points (h), (i) and (j) of
Article 6(1).
(c) the form, content and other details of notifications and submissions made
pursuant to Articles 12 and 13;
(d) the practical arrangements of extension of deadlines as provided in Article 16;
(e) the practical arrangements of the proceedings concerning investigations
pursuant to Articles 15, 16, 17, and proceedings pursuant to Articles 22, 23 and
25;
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(f) the practical arrangements for exercising rights to be heard provided for in
Article 30;
(g) the practical arrangements for the negotiated disclosure of information
provided for in Article 30;
2. the practical arrangements for the cooperation and coordination between the
Commission and Member States provided for in Article 1(7).Those implementing
acts shall be adopted in accordance with the advisory procedure referred to in Article
32(4). Before the adoption of any measures pursuant to paragraph 1, the Commission
shall publish a draft thereof and invite all interested parties to submit their comments
within the time limit it lays down, which may not be less than one month.
Article 37
Exercise of the delegation
1. The power to adopt delegated acts is conferred on the Commission subject to the
conditions laid down in this Article.
2. The power to adopt delegated acts referred to in Articles 3(6) and 9(1) shall be
conferred on the Commission for a period of five years from DD/MM/YYYY. The
Commission shall draw up a report in respect of the delegation of power not later
than nine months before the end of the five-year period. The delegation of power
shall be tacitly extended for periods of an identical duration, unless the European
Parliament or the Council opposes such extension not later than three months before
the end of each period.
3. The delegation of power referred to in Articles 3(6) and 9(1) may be revoked at any
time by the European Parliament or by the Council. A decision to revoke shall put an
end to the delegation of the power specified in that decision. It shall take effect the
day following the publication of the decision in the Official Journal of the
European Union or at a later date specified therein. It shall not affect the validity of
any delegated acts already in force.
4. Before adopting a delegated act, the Commission shall consult experts designated by
each Member State in accordance with the principles laid down in the Inter-
institutional Agreement of 13 April 2016 on Better Law-Making.
5. As soon as it adopts a delegated act, the Commission shall notify it simultaneously to
the European Parliament and to the Council.
6. A delegated act adopted pursuant to Articles 3(6) and 9(1) shall enter into force only
if no objection has been expressed either by the European Parliament or by the
Council within a period of two months of notification of that act to the European
Parliament and to the Council or if, before the expiry of that period, the European
Parliament and the Council have both informed the Commission that they will not
object. That period shall be extended by two months at the initiative of the European
Parliament or of the Council.
Article 38
Review
1. By DD/MM/YYYY, and subsequently every three years, the Commission shall
evaluate this Regulation and report to the European Parliament, the Council and the
European Economic and Social Committee.
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2. The evaluations shall establish whether additional rules, including regarding the list
of core platform services laid down in point 2 of Article 2, the obligations laid down
in Articles 5 and 6 and their enforcement, may be required to ensure that digital
markets across the Union are contestable and fair. Following the evaluations, the
Commission shall take appropriate measures, which may include legislative
proposals.
3. Member States shall provide any relevant information they have that the Commission
may require for the purposes of drawing up the report referred to in paragraph 1.
Article 39
Entry into force and application
1. This Regulation shall enter into force on the twentieth day following that of its
publication in the Official Journal of the European Union.
2. This Regulation shall apply from six months after its entry into force.
However Articles 3, 15, 18, 19, 20, 21, 26, 27, 30, 31 and 34 shall apply from [date
of entry into force of this Regulation].
3. This Regulation shall be binding in its entirety and directly applicable in all Member
States.
Done at Brussels,
For the European Parliament For the Council
The President The President
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LEGISLATIVE FINANCIAL STATEMENT
1. FRAMEWORK OF THE PROPOSAL/INITIATIVE
1.1. Title of the proposal/initiative
1.2. Policy area(s) concerned in the ABM/ABB structure
1.3. Nature of the proposal/initiative
1.4. Objective(s)
1.5. Grounds for the proposal/initiative
1.6. Duration and financial impact
1.7. Management mode(s) planned
2. MANAGEMENT MEASURES
2.1. Monitoring and reporting rules
2.2. Management and control system
2.3. Measures to prevent fraud and irregularities
3. ESTIMATED FINANCIAL IMPACT OF THE PROPOSAL/INITIATIVE
3.1. Heading(s) of the multiannual financial framework and expenditure budget
line(s) affected
3.2. Estimated impact on expenditure
3.2.1. Summary of estimated impact on expenditure
3.2.2. Estimated impact on operational appropriations
3.2.3. Estimated impact on appropriations of an administrative nature
3.2.4. Compatibility with the current multiannual financial framework
3.2.5. Third-party contributions
3.3. Estimated impact on revenue
EN 57 EN
LEGISLATIVE FINANCIAL STATEMENT
1. FRAMEWORK OF THE PROPOSAL/INITIATIVE
1.1. Title of the proposal/initiative
Regulation of the European Parliament and of the Council on Digital Markets Act
1.2. Policy area(s) concerned in the ABM/ABB structure1
Policy area: Single Market
Digital Europe
The budgetary impact concerns the new tasks entrusted with the Commission,
including the direct supervisory tasks.
1.3. Nature of the proposal/initiative
The proposal/initiative relates to a new action
The proposal/initiative relates to a new action following a pilot
project/preparatory action2
The proposal/initiative relates to the extension of an existing action
The proposal/initiative relates to an action redirected towards a new action
1.4. Objective(s)
1.4.1. The Commission's multiannual strategic objective(s) targeted by the
proposal/initiative
The general objective of this initiative is to ensure the proper functioning of the
internal market by promoting effective competition in digital markets, in particular a
contestable and fair online platform environment. This objective feeds into the
strategic course set out in the Communication ‘Shaping Europe’s digital future’.
1.4.2. Specific objective(s) and ABM/ABB activity(ies) concerned
To address market failures to ensure contestable and competitive digital markets for
increased innovation and consumer choice.
To address gatekeepers’ unfair conduct.
To enhance coherence and legal certainty to preserve the internal market.
1
ABM: activity-based management; ABB: activity-based budgeting.
2
As referred to in Article 54(2)(a) or (b) of the Financial Regulation.
EN 58 EN
1.4.3. Expected result(s) and impact
Specify the effects which the proposal/initiative should have on the beneficiaries/groups targeted.
Interventions aiming at increasing the contestability of the digital sector would have
a significant positive and growing contribution to achieve all of the potential benefits
of a Digital Single Market, also resulting in lower prices and greater consumer
choice, productivity gains and innovation.
Efficiency gains from the Digital Single Market, would contribute to a 1.5% increase
in GDP per year until 2030 and create between 1 and 1.4 million jobs. 3 In particular,
the impact of a more efficient Digital Single Market ranges from 0.44 to 0.82%
changes in GDP and between 307 and 561 thousand additional FTEs.
Addressing gatekeepers’ unfair business practices would have a positive impact on
the online platform economy in general. The envisaged measures would limit the
chilling effects unfair conduct has on sales. Businesses, especially smaller ones,
would be more confident in engaging with gatekeepers if the latter are obliged to
comply with clear fairness rules.
A regulatory action is expected to result not only in more sales through smaller
platform but also to have a positive impact on market growth. It would reinforce trust
in the platform business environment since they foresee an adaptable framework,
based both on a clear set of obligations and a flexible list of obligations subject to an
assessment of the applicability of the conducts to the specific case.
The benefits can be expected to lead to greater innovation potential amongst smaller
businesses as well as improved quality of service, with associated increases in
consumer welfare. Assuming that interventions foreseen would reduce competitive
asymmetries between gatekeepers and other platforms, a consumer surplus could be
estimated at 13 billion euros, i.e. around 6% increase as compared to the baseline.
1.4.4. Indicators of results and impact
Specify the indicators for monitoring implementation of the proposal/initiative.
Specific objective Operational objectives Potential Measuring indicators
Limit the diverging national Number of regulatory interventions
Enhance coherence and legal
regulatory interventions at the national level
certainty in the online platform
environment in the internal
Ensure coherent interpretation of Number of clarification requests per
market
obligations year
Number of compliance interventions
by the Commission per gatekeeper
Address gatekeeper platforms' Preventing identified unfair self- platform/per year
unfair conduct preferencing practices
Number of sanction decisions per
gatekeeper platform/per year
3
M. Christensen, A. Conte, F. Di Pietro, P. Lecca, G. Mandras, & S. Salotti (2018), The third pillar of
the Investment Plan for Europe: An impact assessment using the RHOMOLO model (No. 02/2018).
JRC Working Papers on Territorial Modelling and Analysis.
EN 59 EN
Preventing unfair practices
concerning access to gatekeeper Share of users multi-homing with
Address market failures to ensure
platforms’ services and platforms different platforms or services
contestable and competitive
digital markets for increased
Preventing unfair data related Share of users switching between
innovation and consumer choice
practices and ensuring the different platforms and services
compliance with obligations
1.5. Grounds for the proposal/initiative
1.5.1. Requirement(s) to be met in the short or long term
The Regulation should be directly applicable after 6 months from its adoption, and
by that time the EU governance should allow that effective procedures are in place
for the designation of the core platform services and enforcement of the rules. By
that moment, therefore, the Commission will be empowered to adopt decisisions
concerning the designation of the gatekeepers, specifying the measures that the
gatekeeper concerned should implement, carry out market investigations and be
ready to perform any other investigative, enforcement and monitoring powers.
At the same time, Member States shall have appointed representatives to the Digital
Markets Advisory Committee.
1.5.2. Added value of EU involvement
For the purposes of this point 'added value of Union involvement' is the value
resulting from Union intervention which is additional to the value that would have
been otherwise created by Member States alone.
Reasons for action at European level (ex-ante):
In order to ensure the proper functioning of the single market, the intervention
provides, inter alia, for the appropriate regulatory framework for core platform
services acting as gatekeepers. By promoting effective competition in digital markets
and in particular a contestable and fair online platform environment, it supports trust,
innovation and growth in the single market.
There is an emerging fragmentation of the regulatory landscape and oversight in the
Union, as Member States address platform related problems at national level. This is
suboptimal in light of the cross border nature of the platform economy and the
systemic importance of gatekeeper platforms for the internal market. Divergent
fragmentation could create legal uncertainty and higher regulatory burdens for
participants in the platform economy. Such fragmentation puts at risk the scaling-up
of start-ups and smaller businesses and their ability to thrive in digital markets.
This initiative therefore aims at improving coherent and effective oversight and
enforcement of measures against core platform services.
Expected generated Union added value (ex-post):
This initiative is expected to lead to greater innovation potential amongst smaller
businesses as well as improved quality of service. By preserving the internal market
in the platform space cross-border trade, this would lead to a gain of EUR 92.8
billion by 2025.4
4
Cross-border e-commerce in Europe was worth EUR 143 billion in 2019, with 59% of this market being
generated by online marketplaces. This is projected to increase to 65% in 2025 (CNECT/GROW study).
EN 60 EN
With regard to added value in the enforcement of measures, the initiative creates
important efficiency gains. Assuming that interventions foreseen would reduce
competitive asymmetries between gatekeepers and other platforms, a consumer
surplus could be estimated at EUR 13 billion.
1.5.3. Lessons learned from similar experiences in the past
The E-commerce Directive 2000/31/EC provides the core framework for the
functionning of the single market and the supervision of digital services and sets a
basic structure for a general cooperation mechanism among Member States, covering
in principle all requirements applicable to digital services. The evaluation of the
Directive pointed to shortcomings in several aspects of this cooperation mechanism, 5
including important procedural aspects such as the lack of clear timeframes for
response from Member States coupled with a general lack of responsiveness to
requests from their counterparts.
At national level, some Member States already started to adopt national rules in
response to the problems associated to the conduct of gatekeepers in the digital
sector. Fragmentation already exists with regard to platform-specific regulation, as
for example in the cases of transparency obligations and MFN clauses. Divergent
fragmentation gives rise to legal uncertainty and higher regulatory burdens for those
players. Therefore, action at the EU level is deemed necessary.
1.5.4. Compatibility and possible synergy with other appropriate instruments
This initiative leverages existing platform regulation, without conflicting with it,
while providing for an effective and proportionate enforcement mechanism that
matches the need to strictly enforce the targeted obligations vis-a-vis a limited
number of cross-border platform providers that serve as important gateways for
business users to reach consumers.
Different from the P2B Regulation, it foresees EU-level enforcement of a narrow set
of very precise unfair practices engaged in by a restricted group of large, cross-
border gatekeepers. This EU-level enforcement mechanism is consistent with the
enforcement of the P2B Regulation. Gatekeepers integrate several cross-border core
platform services, and a central EU-level regulator with strong investigatory powers
is required both to prevent fragmented outcomes as well as to prevent circumvention
of the new rules. To this end, the new EU-level regulator can leverage the
transparency that each of the online intermediation services and online search
engines have to provide under the P2B Regulation on practices that could precisely
be illegal under the list of obligations – if engaged in by gatekeepers.
The Digital Services Act (‘DSA’) is complementary to the proposal for the update of
the e-Commerce Directive (‘ECD’) under the DSA. While the DSA is a horizontal
initiative focusing on issues such as liability of online intermediaries for third party
content, safety of users online or asymmetric due diligence obligations for different
providers of information society services depending on the nature of the societal
risks such services represent, the present initiative is concerned with economic
imbalances, unfair business practices by gatekeepers and their negative
5
Member States have repeatedly raised these issues in the consultation conducted in 2019, the targeted
consultation of 2020 as well as in the open public consultation and discussion in the e-Commerce
Expert Group in October 2019.
EN 61 EN
consequences, such as weakened contestability of platform markets. To the extent
that the DSA contemplates an asymmetric approach which may impose stronger due
diligence obligations on very large platforms, consistency will be ensured in defining
the relevant criteria, while taking into account the different objectives of the
initiatives.
EN 62 EN
1.6. Duration and financial impact
Proposal/initiative of limited duration
– Proposal/initiative in effect from [DD/MM]YYYY to [DD/MM]YYYY
– Financial impact from YYYY to YYYY
Proposal/initiative of unlimited duration
– Implementation with a start-up period from 2022 to 2025,
– followed by full-scale operation.
1.7. Management mode(s) planned6
Direct management by the Commission
– by its departments, including by its staff in the Union delegations;
– by the executive agencies
Shared management with the Member States
Indirect management by entrusting budget implementation tasks to:
– third countries or the bodies they have designated;
– international organisations and their agencies (to be specified);
– the EIB and the European Investment Fund;
– bodies referred to in Articles 208 and 209 of the Financial Regulation;
– public law bodies;
– bodies governed by private law with a public service mission to the extent that
they provide adequate financial guarantees;
– bodies governed by the private law of a Member State that are entrusted with
the implementation of a public-private partnership and that provide adequate
financial guarantees;
– persons entrusted with the implementation of specific actions in the CFSP
pursuant to Title V of the TEU, and identified in the relevant basic act.
– If more than one management mode is indicated, please provide details in the ‘Comments’ section.
Comments
6
Details of management modes and references to the Financial Regulation may be found on the
BudgWeb site: http://www.cc.cec/budg/man/budgmanag/budgmanag_en.html
EN 63 EN
2. MANAGEMENT MEASURES
2.1. Monitoring and reporting rules
Specify frequency and conditions.
The Regulation will be reviewed and evaluated every third year. Moreover, in the
context of the application of the measures, the Commission in its continuous
evaluation of the effectiveness and efficiency of the measures, including supervision
and analysis of emerging issues, will carry out several monitoring actions. In
particular, a review may be required when additional rules, including regarding
enforcement, are determined necessary to ensure that digital markets across the EU
are contestable and fair.
The Commission must report on the findings to the European Parliament, the Council
and the European Economic and Social Committee.
2.2. Management and control system
2.2.1. Risk(s) identified
With regard to the implementation of the Regulation, the following main risks can be
identified:
Risks for the effectiveness of the the Regulation, due to legal uncertainties relating to
certain key aspects of the obligations; and
Risks for the effectiveness of the the Regulation, possibility of due to material
changes in facts.
With regards to expenditures the following main risks can be identified:
Risk of poor quality of selected sectoral experts and poor technical implementation,
reducing the impact of the monitoirng due to inadequate selection procedures, lack of
expertise or insufficient monitoring; and
Risk of inefficient and ineffective use of funds awarded for procurement (sometimes
limited number of economic providers making it difficult to compare prices).
Risk as regards management of IT-projects in particular in terms of delays, of cost-
risk overruns and overall governance.
2.2.2. Information concerning the internal control system set up
With regard to the implementation of the Regulation, the following internal control
system is foreseen:
A dialogue between the Commission and the gatekeeper concerned may be required
to ensure that measures considered or implemented by the gatekeepers better achieve
its goals. By introducing the possibility for such a dialogue, the initiaitve can be
expected to be more effective in addressing unfair practices hampering market
contestability and competition. It will, at the same time, be proportionate for the
gatekeepers concerned, since they would have certain margin of appreciation in
implementing measures that effectively ensure compliance with the identified
obligations.
The designation of the gatekeeper is also subject to regular reviewed where there
would be a material change in any of the facts on which the designation decision was
EN 64 EN
based, and where the decision was based on incomplete, incorrect or misleading
information provided by the undertakings.
Finally, this initiative comprises a dynamic mechanism allowing to update the list of
obligations in case new practices are deemed unfair after a market investigation.
With regards to expenditures, the following internal control system is foreseen:
These risks related to expenditures can be mitigated by better targeted proposals and
tender documents and the use of simplified procedures as introduced in the latest
financial regulation. The activities as regards financial resources, will be
implemented mainly through public procurement under direct management mode.
Therefore the associated legality and regularity risks are considered to be (very) low.
Many of these risks are linked to the inherent nature of these projects and will be
mitigated by means of appropriate project management system and project
management reporting, including risk reports that will be submitted to senior
management as required.
The internal control framework is built on the implementation of the Commission's
Internal Control Principles. In line with the requirement of the Financial Regulation,
an important objective of the Commission's "budget focused on results strategy" is to
ensure cost-effectiveness when designing and implementing management and control
systems which prevent or identify and correct errors. The control strategy therefore
considers a higher level of scrutiny and frequency in riskier areas and ensures cost-
effectiveness.
There will be a constant link with policy work, which will ensure the necessary
flexibility for adapting the resources to actual policy needs in an area subject to
frequent changes.
2.2.3. Estimate of the costs and benefits of the controls and assessment of the expected level
of risk of error
The costs of controls are estimated to be less than 3% of total expenditure. The
benefits of controls in non-financial terms cover: better value for money, deterrence,
efficiency gains, system improvements and compliance with regulatory provisions.
The risks are effectively mitigated by means of controls put in place, and the level of
risk of error is estimated to less than 2%.
2.3. Measures to prevent fraud and irregularities
Specify existing or envisaged prevention and protection measures.
The prevention and protection measures focus on increasing transparency in
management meetings and contacts with stakeholders, following the best public
procurement practices, including usage of e-procurement and e-submission tool. The
actions also will prevent and detect possible conflict of interests.
EN 65 EN
3. ESTIMATED FINANCIAL IMPACT OF THE PROPOSAL/INITIATIVE
3.1. Heading(s) of the multiannual financial framework and expenditure budget
line(s) affected
Existing budget lines
In order of multiannual financial framework headings and budget lines.
Type of
Budget line expenditure
Contribution
Heading of
multiannual from from within the
financial meaning of
Diff./Non- EFTA candidate from third
framework Article 21(2)(b) of
diff.1 countries2 countries3 countries the Financial
Regulation
1 03 02 Single Market Programme (incl Diff. YES NO NO NO
SMEs)
1 02 04 05 01 Digital Europe Programme Diff. YES NO NO NO
20.0206 Other management
7 Non-diff. NO NO NO NO
expenditure
1
Diff. = Differentiated appropriations / Non-diff. = Non-differentiated appropriations.
2
EFTA: European Free Trade Association.
3
Candidate countries and, where applicable, potential candidate countries from the Western Balkans.
EN 66 EN
3.2. Estimated impact on expenditure
3.2.1. Summary of estimated impact on expenditure
EUR million (to three decimal places)
Heading of multiannual financial
1 Single Market Innovation and Digital1
framework
Post
2021 2022 2023 2024 2025 2026 2027 TOTAL
2027
Commitments (1) N/A 0,667 3,667 4,633 4,133 3,667 3,533 20,300
Operational appropriations – 03 02
Single Market Programme
Payments (2) N/A 0,333 2,167 4,150 4,383 3,900 3,600 1,767 20,300
Commitments (1) N/A 0,333 1,833 2,317 2,067 1,833 1,767 10,150
Operational appropriations - 02 04 05
01 Digital Europe Programme
Payments (2) N/A 0,167 1,083 2,075 2,192 1,950 1,800 0,883 10,150
Appropriations of an administrative
Commitments =
nature financed from the envelope of Payments
(3) N/A N/A N/A N/A N/A N/A N/A N/A
the programme
TOTAL appropriations Commitments =1+3 N/A 1,000 5,500 6,950 6,200 5,500 5,300 30,450
under HEADING 1
of the multiannual financial Payments =2+3 N/A 0,500 3,250 6,225 6,575 5,850 5,400 2,650 30,450
framework
Heading of multiannual financial 7 ‘Administrative expenditure’
1
The breakdown of the budget between programmes is indicative.
EN 67 EN
framework
EUR million (to three decimal places)
Post
2021 2022 2023 2024 2025 2026 2027 TOTAL
2027
Human resources N/A 3,000 5,320 7,845 10,300 10,300 10,300 47,065
Other administrative expenditure N/A 0,050 0,675 1,125 0,625 0,575 0,525 3,575
TOTAL appropriations
under HEADING 7 (Total commitments =
Total payments)
N/A 3,050 5,995 8,970 10,925 10,875 10,825 50,640
of the multiannual financial
framework
EUR million (to three decimal places)
Post
2021 2022 2023 2024 2025 2026 2027 TOTAL
2027
TOTAL appropriations Commitments N/A 4,050 11,495 15,920 17,125 16,375 16,125 81,090
under HEADINGS 1 to 7
of the multiannual financial 2,650
Payments N/A 3,550 9,245 15,195 17,500 16,725 16,225 81,090
framework
EN 68 EN
3.2.2. Estimated impact on operational appropriations
It is not possible to provide an exhaustive list of outputs to be delivered by means of financial interventions, average cost and numbers
as requested by this section as this is a new initiative and there is no previous statistical data to draw from.
The Regulation aims at (i) addressing market failures to ensure contestable and competitive digital markets for increased innovation and
consumer choice, (ii) addressing gatekeepers’ unfair conduct and (iii) enhancing coherence and legal certainty in the online platform
environment for a preserved internal market. All these objectives contribute to achieving the general objective of ensuring the proper
functioning of the internal market (through effective competition in digital markets and through a contestable and fair online platform
environment).
In order to optimally achieve these objectives, it is foreseen inter alia to finance the following actions:
(1) carry out designation of providers of core platform services subject to the Regulation through a declaratory process;
(2) carry out market investigations, perform any other investigative actions, enforcement actions and monitoring activities;
(3) regularly carry out review of specific elements of the Regulation and evaluation of the Regulation;
(4) continuous evaluation of the effectiveness and efficiency of the measures implemented;
(5) maintain, develop, host, operate and support a central information system in compliance with the relevant confidentiality and data
security standards;
(6) follow-up experts evaluations, where these appointed; and
(7) other administrative costs incurred in connection with the implementation of the various actions, such as:
(7.i) costs related to missions for staff, including in case of on-site inspections ;
(7.ii) costs related to the organisation of meetings, namely Advisory Committees;
(7.iii) costs relating to training for staff; and
(7.iv) costs relating to expert advice.
EN 69 EN
3.2.3. Estimated impact on appropriations of an administrative nature
3.2.3.1. Summary
– The proposal/initiative does not require the use of appropriations of an
administrative nature
– The proposal/initiative requires the use of appropriations of an administrative
nature, as explained below:
EUR million (to three decimal places)
Years 2021 20221 2023 2024 2025 2026 2027 TOTAL
HEADING 7
of the multiannual
financial framework
Human resources N/A 3,000 5,320 7,845 10,300 10,300 10,300 47,065
Other administrative
expenditure
N/A 0,050 0,675 1,125 0,625 0,575 0,525 3,575
Subtotal HEADING 7
of the multiannual N/A 3,050 5,995 8,970 10,925 10,875 10,825 50,640
financial framework
Outside HEADING 72
of the multiannual
financial framework
Human resources N/A N/A N/A N/A N/A N/A N/A N/A
Other expenditure
of an administrative N/A N/A N/A N/A N/A N/A N/A N/A
nature
Subtotal
outside HEADING 7
N/A N/A N/A N/A N/A N/A N/A N/A
of the multiannual
financial framework
TOTAL N/A 3,050 5,995 8,970 10,925 10,875 10,825 50,640
The appropriations required for human resources and other expenditure of an administrative nature will be met by
appropriations from the DG that are already assigned to management of the action and/or have been redeployed within the
DG, together if necessary with any additional allocation which may be granted to the managing DG under the annual
allocation procedure and in the light of budgetary constraints.
1
Year N is the year in which implementation of the proposal/initiative starts.
2
Technical and/or administrative assistance and expenditure in support of the implementation of
EU programmes and/or actions (former ‘BA’ lines), indirect research, direct research.
EN 70 EN
3.2.3.2. Estimated requirements of human resources
– The proposal/initiative does not require the use of human resources.
– The proposal/initiative requires the use of human resources, as explained
below:
The Digital Markets Act is a new regulatory initiative that feeds into the strategic
course set out in the Communication ‘Shaping Europe’s digital future’. This has a
horizontal nature and cross-cuts various competence domains of the Commission,
such as those related to internal market, digital services and protection of
competition.
To ensure that the regulation is implemented by the companies, ex-ante controls and
monitoring, such as designate gatekeepers, monitor compliance by gatekeepers,
adopt non-compliance decisions, assess exemption requests, conduct market
investigations and enforce the resulting decisions and implement acts, will have to be
put in place at the level of EU. When estimating the budget and the number of staff
required for the initiative, efforts to create synergies and build on existing framework
have been made in order to avoid the need to build from scratch, which would
require even more staff than the current calculation.
Although synergies in terms of staff, knowledge and infrastructure can be found
within the three leading DGs and the Commission services, the importance and
extent of the initiative goes beyond the current framework. The Commission will
have to increase its presence in the Digital Markets, moreover, as the regulation
foresees legal deadlines also means that resources must be allocated to these tasks
without delays. To reallocate the required human resources within the three leading
DGs is currently not possible without jeopardising all other areas of enforcement. It
is therefore important to also re-deploy staff from sources outside the three leading
DGs if we are to meet the objective of the initiative as well as the objectives of the
three leading DGs.
Estimate to be expressed in full time equivalent units
Post
Years 2021 2022 2023 2024 2025 2026 2027
2027
Establishment plan posts (officials and temporary staff)
Headquarters and
Commission’s Representation 20 30 43 55 55 55 55
Offices
Delegations
Research
External staff (in Full Time Equivalent unit: FTE) - AC, AL, END, INT and JED 3
Heading 7
Financed - at
10 17 25 25 25 25
from Headquarters
HEADING 7
of the - in
multiannual Delegations
financial
3
AC= Contract Staff; AL = Local Staff; END = Seconded National Expert; INT = agency staff;
JPD= Junior Professionals in Delegations.
EN 71 EN
framework
Financed - at
from the Headquarters
envelope of
the - in
programme 4 Delegations
Research
Other (specify)
TOTAL 20 40 60 80 80 80 80
The human resources required will be met by staff from the DG who are already assigned to management of the
action and/or have been redeployed within the DG, together if necessary with any additional allocation which
may be granted to the managing DG under the annual allocation procedure and in the light of budgetary
constraints.
Description of tasks to be carried out:
Officials and temporary staff Adopt designation decisions and conduct market investigations aimed at designating
gatekeepers.
Monitor compliance with the list of obligations and, if relevant, adopt non-compliance
decisions
Conduct market investigations in relation to new services and new practices
Preparation and drafting of implementing and delegated acts, in compliance with this
Regulation
External staff Adopt designation decisions and conduct market investigations aimed at designating
gatekeepers.
Monitor compliance with the list of obligations and, if relevant, adopt non-compliance
decisions
Conduct market investigations in relation to new services and new practices
Preparation and drafting of implementing and delegated acts, in compliance with this
Regulation
4
Sub-ceiling for external staff covered by operational appropriations (former ‘BA’ lines).
EN 72 EN
3.2.4. Compatibility with the current multiannual financial framework
– The proposal/initiative is compatible the current multiannual financial framework.
The initiative can be fully financed through redeployment within the relevant heading of the Multiannual Financial
Framework (MFF). The financial impact on operational appropriations will be entirely covered by the allocations
foreseen in the MFF 2021-27 under the financial envelopes of the Single Market Programme and the Digital Europe
Programme.
– The proposal/initiative will entail reprogramming of the relevant heading in the
multiannual financial framework.
– The proposal/initiative requires application of the flexibility instrument or revision of the
multiannual financial framework.
3.2.5. Third-party contributions
– The proposal/initiative does not provide for co-financing by third parties.
EN 1 EN
3.3. Estimated impact on revenue
The initiative has the following financial impact on other revenue.
The amount of the revenue cannot be estimated in advance as it concerns fines on undertaking for not complying
with obligations laid down in the Regulation.
EUR million (to three decimal places)
Budget revenue Impact of the proposal/initiative
line: Appropriations
available for
Chapter 42 – the current Enter as many years as
Year Year Year Year
fines and financial year necessary to show the duration
N N+1 N+2 N+3
penalties of the impact (see point 1.6)
Article p.m p.m. p.m. p.m. p.m. p.m.
………….
ANNEX
to the LEGISLATIVE FINANCIAL STATEMENT
Name of the proposal/initiative:
Regulation of the European Parliament and of the Council on Digital Markets Act
NUMBER and COST of HUMAN RESOURCES CONSIDERED
NECESSARY
COST of OTHER ADMINISTRATIVE EXPENDITURE
METHODS of CALCULATION USED for ESTIMATING COSTS
Human resources
Other administrative expenditure
ADDITIONAL REMARKS to the LEGISLATIVE FINANCIAL
STATEMENT and its ANNEX
EN 2 EN
This annex must accompany the legislative financial statement when the inter-services consultation is launched.
The data tables are used as a source for the tables contained in the legislative financial statement. They are strictly
for internal use within the Commission.
EN 3 EN
Cost of human resources considered necessary
The proposal/initiative requires the use of human resources, as explained below:
EUR million (to three decimal places)
2021 2022 2023 2024 2025 2026 2027 TOTAL
HEADING 7
of the multiannual
financial framework FTE Appropriations FTE Appropriations FTE Appropriations FTE Appropriations FTE Appropriations FTE Appropriations FTE Appropriations FTE Appropriations
Establishment plan posts (officials and temporary staff)
Headquarters and
Commission’s
AD 17 2,550 25 3,750 37 5,550 47 7,050 47 7,050 47 7,050 33,000
Representation
Offices
AST 3 0,450 5 0,750 6 0,900 8 1,200 8 1,200 8 1,200 5,700
1
External staff
AC 6 0,480 10 0,800 15 1,2 15 1,200 15 1,200 4,880
Global envelope END 4 0,340 7 0,595 10 0,850 10 0,850 10 0,850 3,485
INT
Subtotal –
HEADING 7
of the
multiannual 20 3,000 40 5,320 60 7,845 80 10,300 80 10,300 80 10,300 47,065
financial
framework
The administrative appropriations required will be met by the appropriations which are already assigned to management of the action and/or which have been redeployed, together if
necessary with any additional allocation which may be granted to the managing DG under the annual allocation procedure and in the light of existing budgetary constraints.
1
AC = Contract Staff; AL = Local Staff; END = Seconded National Expert; INT= agency staff; JPD= Junior Professionals in Delegations.
EN 4 E
Cost of other administrative expenditure
The proposal/initiative requires the use of administrative appropriations, as explained below:
EUR million (to three decimal places)
HEADING 7
of the multiannual financial 2021 2022 2023 2024 2025 2026 2027 Total
framework
At headquarters:
Mission and representation expenses -- -- 0,050 0,050 0,050 0,050 0,050 0,250
Advisory committees -- 0,050 0,100 0,150 0,150 0,150 0,150 0,750
Studies and consultations -- -- 0,500 0,900 0,400 0,350 0,300 2,450
Training of staff -- -- 0,025 0,025 0,025 0,025 0,025 0,125
Information and management systems -- -- -- -- -- -- -- --
1
ICT equipment and services -- -- -- -- -- -- -- --
Subtotal HEADING 7
of the multiannual financial -- 0,050 0,675 1,125 0,625 0,575 0,525 3,575
framework
1
ICT: Information and Communication Technologies: DIGIT must be consulted.
EN 5 E
EUR million (to three decimal places)
Outside HEADING 7
2021 2022 2023 2024 2025 2026 2027 Total
of the multiannual financial framework
Expenditure on technical and administrative
assistance (not including external staff) from
operational appropriations (former 'BA' lines)
- at Headquarters -- -- -- -- -- -- -- --
- in Union delegations -- -- -- -- -- -- -- --
Other management expenditure for research -- -- -- -- -- -- -- --
Other budget lines (specify where necessary) -- -- -- -- -- -- -- --
2
ICT equipment and services -- -- -- -- -- -- -- --
Sub-total – Outside HEADING 7
-- -- -- -- -- -- -- --
of the multiannual financial framework
1. TOTAL
2. HEADING 7 and Outside HEADING 7 -- 0,050 0,675 1,125 0,625 0,575 0,525 3,575
of the multiannual financial framework
The administrative appropriations required will be met by the appropriations which are already assigned to management of the action and/or which have been redeployed, together if
necessary with any additional allocation which may be granted to the managing DG under the annual allocation procedure and in the light of existing budgetary constraints.
2
ICT: Information and Communication Technologies: DIGIT must be consulted.
EN 6 E
Methods of calculation used to estimate costs
Human resources
The Digital Markets Act is a new regulatory initiative that feeds into the strategic course set
out in the Communication ‘Shaping Europe’s digital future’. This has a horizontal nature and
cross-cuts various competence domains of the Commission, such as those related to internal
market, digital services and protection of competition.
To ensure that the regulation is implemented by the companies, ex-ante controls and
monitoring, such as designate gatekeepers, monitor compliance by gatekeepers, adopt non-
compliance decisions, assess exemption requests, conduct market investigations and enforce
the resulting decisions and implement acts, will have to be put in place at the level of EU.
When estimating the budget and the number of staff required for the initiative, efforts to
create synergies and build on existing framework have been made in order to avoid the need
to build from scratch, which would require even more staff than the current calculation.
Although synergies in terms of staff, knowledge and infrastructure can be found within the
three leading DGs and the Commission services, the importance and extent of the initiative
goes beyond the current framework. The Commission will have to increase its presence in the
Digital Markets, moreover, as the regulation foresees legal deadlines also means that
resources must be allocated to these tasks without delays. To reallocate the required human
resources within the three leading DGs is currently not possible without jeopardising all other
areas of enforcement. It is therefore important to also re-deploy staff from sources outside the
three leading DGs if we are to meet the objective of the initiative as well as the objectives of
the three leading DGs.
1. HEADING 7 of the multiannual financial framework
Officials and temporary staff
Assuming adoption by 2022, the Commission will have to set-up the resources needed to ensure the fulfilment of
its new tasks, including the adoption of the implementing and delegated acts mandated by the Regulation.
As from the date of application of the obligations (2022), it is estimated that new tasks related to the DMA
(designate gatekeepers, monitor compliance by gatekeepers, adopt non-compliance decisions, assess exemption
requests, conduct market investigations and enforce the resulting decisions, implement acts) initially require
additional 20 FTE (17 AD + 3 AST), increasing up to 55 FTE (47 AD + 8 AST) by 2025.
External staff
As from the second year of application of the obligations (2023), it is estimated that new tasks related to the
DMA (designate gatekeepers, monitor compliance by gatekeepers, adopt non-compliance decisions, assess
exemption requests, conduct market investigations and enforce the resulting decisions, implement acts) initially
require additional 10 FTE (6 AC + 4 END), increasing up to 25 FTE (15 AC + 10 END) by 2025.
2. Outside HEADING 7 of the multiannual financial framework
Only posts financed from the research budget - N/A
External staff – N/A
Other administrative expenditure
EN 7 EN
3. HEADING 7 of the multiannual financial framework
Missions and representation expenses
It is estimated that 10 on-site investigations of gatekeepers is needed per year as of 2023. Average cost
per investigation is estimated to 5.000 EUR per mission, assuming 2 FTEs on site with a duration of
5 days
Advisory Committes
5 advisory committee meetings are estimated to take place in 2022, 10 in 2023, 15 per annum in 2024-
2027. The costs per meeting are estimated to 10.000 EUR.
Training
Training budget for staff is an important component in assuring the quality and specific competence in
this field. It is estimated that the costs will be 25.000 EUR per year.
Studies and consultations
Expenditure for highly specialised sectoral experts will be necessary to provide technical support in the
designation of gatekeepers and to monitor compliance with the measures established under this
Regulation. It is estimated to perform up to 6-7 monitoring studies between 2023-2027 with a
complexity ranging from low to very complex, corresponding contracts value between 50.000-
1.000.000 EUR. It is expected that the needs for these expert will be higher in the beginning of the
period.
4. Outside HEADING 7 of the multiannual financial framework
N/A
Additional remarks to the Legislative Financial statement and its annex
The operational expenditure will be divided between DG COMP and DG GROW for the Single
Market Programme and DG CNECT for the Digital Europe Programme.
The administrative expenditure will be divided between DG COMP, DG GROW and DG CNECT.
EN 8 EN
EUROPEAN
COMMISSION
Brussels, 15.12.2020
SWD(2020) 363 final
PART 1/2
COMMISSION STAFF WORKING DOCUMENT
IMPACT ASSESSMENT REPORT
Accompanying the document
Proposal for a
REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
on contestable and fair markets in the digital sector (Digital Markets Act)
{COM(2020) 842 final} - {SEC(2020) 437 final} - {SWD(2020) 364 final}
EN EN
GLOSSARY
Term or acronym Meaning or definition
Australian Competition and Consumer Commission (Australia competition
ACCC
authority)
B2B Business-to-business
B2C Business-to-consumers
BEUC European Consumer Organisation
CPC Consumer protection cooperation
CMA Competition and Markets Authority (United Kingdom competition authority)
DESI Digital Economy and Society Index
DMU Digital Markets Taskforce
DSA Digital Services Act
ECA European Court of Auditors
EEA European Economic Area
ECD e-Commerce Directive
ECHR European Convention on Human Rights
ECN European Competition Network, consisting of NCAs
FTE Full-time equivalent
GDP Gross Domestic Product
Regulation (EU) 2016/679 on the protection of natural persons with regard to the
GDPR processing of personal data and on the free movement of such data, and repealing
Directive 95/46/EC (‘General Data Protection Regulation’)
ICN International Competition Network
ICT Information and Communication Technologies
IMCO Internal Market and Consumer Protection
JURI Legal Affairs Committee
LIBE Committee on Civil Liberties, Justice and Home Affairs
MCAD Misleading and Comparative Advertising Directive
MFN Most Favoured Nation
NCA National Competition Authority of the EEA
NCT New Competition Tool
NFC Near-Field-Communication
NGO Non-Governmental Organisation
OECD Organisation for Economic Co-operation and Development
OPC Open Public Consultation
Regulation (EU) 2019/1150 of the European Parliament and of the Council of 20
P2B Regulation June 2019 on promoting fairness and transparency for business users of online
intermediation services
SME Small and Medium Enterprise
TFEU or Treaty Treaty on the Functioning of the European Union
Directive 2005/29/EC of the European Parliament and of the Council of 11 May
2005 concerning unfair business-to-consumer commercial practices in the internal
market and amending Council Directive 84/450/EEC, Directives 97/7/EC,
UCPD
98/27/EC and 2002/65/EC of the European Parliament and of the Council and
Regulation (EC) No 2006/2004 of the European Parliament and of the Council
(‘Unfair Commercial Practices Directive’)
Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer
UCTD
contracts (‘Unfair Contract Terms Directive’)
UNCTAD United Nations Conference on Trade and Development
EN EN
CONTENTS
1. INTRODUCTION: POLITICAL AND LEGAL CONTEXT .................................................... 1
1.1. Political context .................................................................................................................................. 1
1.2. Field of intervention ............................................................................................................................ 4
1.3. Relationship of the initiative with other ongoing initiatives ................................................................ 6
2. PROBLEM DEFINITION .......................................................................................................... 7
2.1. What are the problems?...................................................................................................................... 7
2.1.1. Weak contestability of, and competition in, platform markets, or risk thereof ............................... 8
2.1.2. Unfair gatekeeper practices vis-à-vis business users ...................................................................... 10
2.1.3. Legal uncertainty for market players .............................................................................................. 14
2.2. What is the size of the problem? ....................................................................................................... 15
2.3. Problem drivers ................................................................................................................................. 18
2.3.1. Market failures................................................................................................................................ 18
2.3.2. Fragmented regulation and oversight ............................................................................................ 25
2.3.3. Conclusion: problem drivers’ effects .............................................................................................. 25
2.4. How will the problem evolve? ........................................................................................................... 26
3. WHY SHOULD THE EU ACT? ............................................................................................... 28
3.1. Legal basis ......................................................................................................................................... 28
3.2. Subsidiarity: necessity and added value of EU action ........................................................................ 28
4. OBJECTIVES: WHAT SHOULD BE ACHIEVED? .............................................................. 29
4.1. General objective .............................................................................................................................. 29
4.2. Specific objectives ............................................................................................................................. 30
4.2.1. Address market failures to ensure contestable and competitive digital markets for increased
innovation and consumer choice ..................................................................................................................... 30
4.2.2. Address gatekeepers’ unfair conduct ............................................................................................. 30
4.2.3. Enhance coherence and legal certainty to preserve the internal market ...................................... 30
4.3. How do the objectives link to the problems identified? .................................................................... 31
5. WHAT ARE THE AVAILABLE POLICY OPTIONS? ......................................................... 31
5.1. What is the baseline from which policy options are assessed? .......................................................... 31
EN EN
5.2. What are the main parameters that determine the range of available policy options? ..................... 36
5.2.1. Scope: core platform services, gatekeepers, thresholds ................................................................ 36
5.2.2. Unfair practices ............................................................................................................................... 50
5.2.3. Speed and Flexibility ....................................................................................................................... 61
5.2.4. Enforcement framework ................................................................................................................. 62
5.2.5. Summary and main trade-offs ........................................................................................................ 63
5.3. Policy options .................................................................................................................................... 64
5.3.1. Option 1 – Pre-defined list of gatekeepers and immediately applicable obligations ..................... 65
5.3.2. Option 2 – Partially flexible framework of designation and updating of obligations, including
regulatory dialogue for implementation of some ............................................................................................ 68
5.3.3. Option 3 - Flexible option based exclusively on qualitative scoping thresholds ............................ 72
5.4. Policy options discarded at an earlier stage ...................................................................................... 74
5.4.1. A broad scope across platforms...................................................................................................... 74
5.4.2. Information obligations without addressing unfair conduct .......................................................... 76
5.4.3. A broad scope across markets ........................................................................................................ 77
6. WHAT ARE THE IMPACTS OF THE POLICY OPTIONS? .............................................. 78
6.1. Internal market ................................................................................................................................. 79
6.2. Growth and productivity ................................................................................................................... 80
6.3. Competition and Innovation ............................................................................................................. 82
6.4. International trade ............................................................................................................................ 85
6.5. Employment ...................................................................................................................................... 87
6.6. Businesses ......................................................................................................................................... 88
6.6.1. Gatekeepers .................................................................................................................................... 88
6.6.2. SMEs ............................................................................................................................................... 90
6.7. Consumers ........................................................................................................................................ 92
6.8. Regulatory Authorities ...................................................................................................................... 96
7. HOW DO THE OPTIONS COMPARE?................................................................................. 96
7.1. Effectiveness ..................................................................................................................................... 96
7.2. Efficiency ......................................................................................................................................... 104
7.3. Coherence ....................................................................................................................................... 107
7.3.1. Coherence with the Digital Strategy ............................................................................................. 107
7.3.2. Coherence with the DSA ............................................................................................................... 107
7.3.3. Coherence with other instruments ............................................................................................... 107
7.4. Proportionality ................................................................................................................................ 109
EN EN
7.5. Subsidiarity ..................................................................................................................................... 111
7.6. Conclusion ....................................................................................................................................... 112
8. PREFERRED OPTION ......................................................................................................... 114
8.1. The main building blocks of the preferred option............................................................................ 114
8.2. The scope of application ................................................................................................................. 114
8.2.1. Identification of core platform services ........................................................................................ 114
8.2.2. Designation of gatekeepers .......................................................................................................... 115
8.2.3. Obligations applicable to gatekeepers’ core platform services .................................................... 117
8.3. Enforcement framework and governance ....................................................................................... 118
9. HOW WILL ACTUAL IMPACTS BE MONITORED AND EVALUATED? .................. 120
EN EN
1. INTRODUCTION: POLITICAL AND LEGAL CONTEXT
1. The digital transformation has profoundly changed the functioning of the global
economy and society. The Covid-19 crisis and the increased importance and use of
digital services has only further evidenced the importance of ensuring a borderless, fair,
and contestable Single Market for digital services where companies can thrive and
where citizens have genuine choices and control.
2. This Impact Assessment examines the possible policy options to ensure a competitive
Single Market for digital services and in particular fair and contestable platform
markets. It combines the assessment of two initiatives previously presented in separate
Inception Impact Assessments: (i) the Digital Services Act (‘DSA’) package: ex ante
regulatory instrument of very large online platforms acting as gatekeepers;1 and (ii) the
New Competition Tool.2 These two initiatives have been subject to two parallel public
consultations.3
3. Given the breadth of the topics covered, both Inception Impact Assessments – including
their respective consultations – were initially published separately. However, since the
outset, both consultations were aimed at complementary solutions by “ensur[ing] a joint
analysis of the results”, “with a view to exploring synergies and ensuring consistency on
the policy options pursued, in particular as regards possible remedies and
enforcement”.4 The holistic approach presented in this impact assessment is the result of
such exercise.
1.1. Political context
4. Over the last years, a wide range of studies at international level as well as by National
Competition Authorities (‘NCAs’) have brought to the fore the acute problems afflicting
digital markets in terms of contestability as well as of the fact that a number of large
platforms are taking advantage of their position to restrict competition including by
means of the imposition of unfair conditions on their trading partners and on consumers.
5. In this respect, the Commission has initiated a reflection process about the role of
competition policy in a fast-changing world, which included commissioning a report
from a group of independent Special Advisers to Commissioner Vestager published in
April 2019. Among other aspects, the report concluded that “the specificities of
competition in the digital world […] make market power “sticky”, and there is
legitimate fear that the market power [large platforms] have acquired will be hard to
1
Inception Impact Assessment for the Digital Services Act package.
2
Inception Impact Assessment of the New Competition Tool.
3
Open Public Consultation on Single Market - new complementary tool to strengthen competition
enforcement and Open Public Consultation on Digital Services Act package – ex ante regulatory instrument
of very large online platforms acting as gatekeepers.
4
Inception Impact Assessment of the New Competition Tool, at page 3; and Inception Impact Assessment for
the Digital Services Act package, at page 4.
EN 1 EN
challenge. Furthermore, they have been able to build, on top of their core competencies,
entire ecosystems which make it hard for new entrants to compete on the merit and
which, many observers feel, face little competitive pressure”.5
6. A subset of issues pertaining to all digital platforms had previously been addressed
through regulation in the so-called ‘Platform-to-Business Regulation’ (‘P2B
Regulation’), aiming to increase transparency and fairness in platforms that can easily
hold asymmetric bargaining power. To analyse further emerging issues addressed in the
independent Special Adviser Report, the Commission also established the ‘EU
Observatory on the Online Platform Economy’ supported by an expert group6, to
support the Commission in monitoring and analysing the developments in the online
platform economy. Evidence gathered by this expert group further confirmed the
findings of the previous reports.
7. Similar reflections are taking place in some of the EU’s major trading partners,
including the United States of America (‘US’), Japan, the United Kingdom (the ‘UK’),
Australia and China. These reflections include calls for a new regulatory framework for
platforms with “significant and durable market power” (US House of Representatives
Majority Staff report7), “substantial market power” (ACCC report8), “strategic market
status” (Furman report9) and “bottleneck power” (Stigler Center report10). The US report
notably concludes that each investigated platform now serves as main gateway to
consumers and other businesses that each platform uses this role as major gateway to
maintain its market power; and that the firms have abused their role as intermediaries to
further entrench and expand their dominance.
8. The need to address these concerns in digital markets was expressed in Commission
President von der Leyen’s mission letter for Executive Vice-President Vestager,
where she stated that in “striving for digital leadership, we must focus on making
markets work better for consumers, business and society”. The letter tasked Executive
Vice-President Vestager with ensuring “that competition policy and rules are fit for the
modern economy”.11
9. This objective was reiterated in the Commission’s Communication Shaping Europe's
digital future, as “it is important that the competition rules remain fit for a world that is
changing fast, is increasingly digital and must become greener”.12 In the same
5
J. Crémer, Y.-A. de Montjoye & H. Schweitzer (2018), Digital policy for the digital era, page 70.
6
EU Observatory on the Online Platform Economy.
7
US House of Representatives Majority Staff Report, Investigation of Competition in Digital Markets,
October 2020.
8
ACCC report, Digital Platforms Inquiry, Final Report, June 2019.
9
Furman report, Unlocking digital competition, Report of the Digital Competition Expert Panel, March 2019.
10
Stigler Center report, Committee for the Study of Digital Platforms Market Structure and Antitrust
Subcommittee Report, July 2019.
11
Mission letter to Executive Vice-President Vestager, 10 September 2019.
12
European Commission Communication, Shaping Europe’s digital future, 19 February 2020, at page 5.
EN 2 EN
Communication, the Commission further stated that “competition policy alone cannot
address all the systemic problems that may arise in the platform economy”. Against this
background, the Commission also announced that it “will further explore, in the context
of the DSA package, ex ante rules to ensure that markets characterised by large
platforms with significant network effects acting as gatekeepers, remain fair and
contestable for innovators, businesses, and new market entrants”.13
10. In the European Parliament, the Committee on the Internal Market and Consumer
Protection (‘IMCO’), the Committee on Civil Liberties, Justice and Home Affairs
(‘LIBE’) and the Legal Affairs Committee (‘JURI’) published draft reports in April and
in May 2020, as legislative own-initiative reports.14 The final IMCO and LIBE
Committees reports were adopted in September 202015 and the draft JURI report in
October 2020.16 In parallel to these reports, the European Parliament also adopted a
resolution on competition policy on 18 June 2020, where it “calls on the Commission to
assess the possibility of imposing ex ante regulatory obligations where competition law
is not enough to ensure contestability in these markets”.17 The Digital Markets Act
(‘DMA’), by proposing ex ante rules for certain large platforms and aiming at ensuring
fair and contestable digital markets, responds to these calls for action.
11. The European Council confirmed the need to act in its New Strategic Agenda 2019-
2024, by stating that “[w]e will continue to update our European competition
framework to new technological and global market developments”.18 The Council of the
European Union (‘Council’) also “supports the Commission’s intention to collect
evidence of the issue and further explore ex ante rules to ensure that markets
characterised by large platforms with significant network effects, acting as gate-
keepers, remain fair and contestable for innovators, businesses and new market
entrants”.19
13
Ibid, at page 5.
14
Pursuant to Article 225 of the Treaty on the Functioning of the European Union (‘TFEU’).
15
https://emeeting.europarl.europa.eu/emeeting/committee/en/agenda/202009/IMCO.
16
In its draft report, the IMCO considered that “by reducing barriers to market entry and by regulating large
platforms, an internal market instrument imposing ex-ante regulatory remedies on these large platforms has
the potential to open up markets to new entrants, including SMEs and start-ups, thereby promoting consumer
choice and driving innovation beyond what can be achieved by competition law enforcement alone”. The
draft report of JURI considers that “the acquisition of significant market power by dominant platforms has
led to a situation in which “the winner takes it all”, and the market is composed of a small number of players
each exerting market dominance over their competitors and imposing their business practices on users”. It
further “calls on the Commission to assess the possibility of defining fair contractual conditions to facilitate
data sharing with the aim of addressing imbalances in market power; suggests, to this end, to explore options
to facilitate the interoperability and portability of data”.
17
European Parliament resolution of 18 June 2020 on competition policy – annual report 2019
(2019/2131(INI)), 18 June 2020.
18
European Council, A new strategic agenda 2019-2024, 20 June 2019. See also European Council
Conclusions of 22 March 2019.
19
Council of the European Union Conclusions of 9 June 2020, responding to the Commission’s
Communication Shaping Europe’s Digital Future.
EN 3 EN
12. Furthermore, the Council welcomed the public consultation on a ‘New Competition
Tool to address structural competition problems across markets’ and expressed its
willingness to discuss the Commission’s proposal for a DSA Package. 20 The Council
underlined “that new policy approaches for the Single Market have to be fit for the
digital age [and] able to cope with new and agile business models, especially in the
digital economy”.21 Finally, the Council reiterated the importance of swift action on the
DSA package in its most recent conclusions, in which it “looks forward to the
Commission’s proposal for a Digital Services Act by the end of this year”.22
1.2. Field of intervention
13. The feedback and evidence collected pointed to an urgent need to act in the digital
sector, due to the particular features of digital markets. On that basis, the present impact
assessment focuses on intervention options with regard to digital markets, with a focus
on those markets characterised by the presence of large digital platforms where
problems are most prominent, and action appeared most pressingly needed.
14. In the digital sector, there is a small number of online platforms – often embedded in
their own ecosystems – which have come to play a crucial role in the lives of millions –
if not, billions – of individuals and companies. They intermediate a significant portion
of transactions between consumers and businesses, and have emerged as a key
structuring element of today’s digital economy. As such, these platforms have a major
impact on, control the access to, and are entrenched in digital markets, leading to
extreme dependencies of many businesses on these important platforms. The evidence
points to negative effects on effective competition and on the contestability of the
markets concerned. Member States in the EU observing these tendencies have begun to
take regulatory initiatives to address these effects, potentially fragmenting the Internal
Market.
Online platforms cover presently a wide-ranging set of activities including online
advertising platforms, marketplaces, search engines, social media and creative
content outlets, application distribution platforms, communications services, payment
systems, and platforms for the collaborative economy. They share some important
and specific characteristics, in particular:
they have the ability to create and shape new markets, to challenge traditional
ones, and to organise new forms of participation or conducting business based
on collecting, processing, and editing large amounts of data;
20
Council of the European Union, Conclusions on a deepened Single Market for a strong recovery and a
competitive, sustainable Europe, 11 September 2020.
21
Ibid.
22
Council of the European Union, Special Meeting of the European Council– conclusions, 2 October 2020.
EN 4 EN
they operate in multi-sided markets but with varying degrees of control over
direct interactions between groups of users;
they benefit from network effects;
they rely on information and communications technologies to reach their users,
instantly and effortlessly, benefitting from economies of scale and scope; and
they play a key role in digital value creation, notably by capturing significant
value (including through data accumulation), facilitating new business
ventures, and creating new strategic dependencies.
15. The scope of this initiative is limited to the digital sector. In fact, the market
concentration tendencies and the underlying market dynamics in the digital sector, as
well as other characteristics of digital markets, have contributed to several market
failures in this area, which are likely to lead to inefficient market outcomes in terms of
higher prices, lower quality, less choice and innovation to the detriment of European
consumers (see Section 2.2).
16. Even though some of relevant market features are also observed to some extent in other
markets, they are most prevalent in digital markets. They include market features such
as extreme scale economies, often resulting from nearly zero marginal costs to add
customers and business users –- in contrast to off-line business models where such
upscaling would involve major investments – and strong network effects associated to
the multi-sidedness of online platforms, as well as data driven-advantages that often
fundamentally change the competitive process, leading to sudden and radical decreases
in competition (see Section 2.3.1). The presence of large platforms, often vertically or
horizontally integrated in large ecosystems, exacerbates the negative effects that these
features can trigger, thus making it impossible for the markets to self-correct.
17. The problems in the digital sector are also most pressing from an internal market
perspective. In fact, the OPC and the targeted consultation of NCAs have largely shown
that the most salient examples of market failures today stem from the digital sector.23
Consumer organisations like BEUC have also prominently flagged the particular
concerns surrounding digital markets.24 Likewise, digital markets featured prominently
in the expert reports commissioned for the Impact Assessment.25
23
Summary of the Stakeholder Consultation on the New Competition Tool and Summary of the contributions
of the NCAs to the impact assessment of the new competition tool.
24
For example, BEUC’s reply to the OPC states that the “challenges posed in particular by large players in
digital markets require new instruments in addition to traditional competition law enforcement in order to
protect consumers’ interests in an effective and timely manner.”
25
See Annex 5.3 to the Impact Assessment.
EN 5 EN
18. On the basis of the available evidence, including the Commission’s regulatory and
competition enforcement experience, the Commission has mapped a number of ‘core
platform services’ which exhibit these features and where absent regulatory intervention
the identified market failures would effectively remain un-addressed.
19. These ‘core platform services’ are those where the problems identified in Section 2.1
are most evident and prominent and where the presence of a limited number of large
online platforms that serve as gateways for business users and customers has led or is
likely to lead to weak contestability of markets. On the basis of the evidence collected
for this Impact Assessment (see Section 5.2.1), the screening of problems led to the
identification of the following core platform services: (i) online intermediation
services (including marketplaces and app stores) (ii) online search engines, (iii) social
networking (iv) video sharing platform services, (v) number-independent
interpersonal electronic communication services, (vi) operating systems, (vii) cloud
services and (viii) advertising services, including advertising intermediation services,
provided by providers of one or more of the above.
20. Furthermore, as explained in Section 5.2.1, it should be possible to designate
gatekeepers whenever it can be demonstrated that a provider of core platform services:
(i) has a significant impact on the internal market, (ii) operates one or more
important gateways to customers and (iii) enjoys or is expected to enjoy an
entrenched and durable position in its operations.
21. While this Impact Assessment focuses on issues caused by gatekeepers operating in
digital markets, it does also fully recognise the benefits that online platforms bring to
the economy and society. The purpose of the DMA initiative is therefore to allow these
platforms to unlock their full potential by addressing the most salient incidences of
unfair practices and weak contestability so as to allow consumers and business users
alike to reap the full benefits of the platform economy.
1.3. Relationship of the initiative with other ongoing initiatives
22. In parallel to the present Impact Assessment, the Commission is also presenting an
Impact Assessment for the Digital Services Act (‘DSA’), an initiative seeking to
address primarily societal risks of digital markets and, more specifically, of very large
platforms. The definition of ‘gatekeepers’ in the DMA is different in nature and scope
from the definition of ‘very large platforms’ falling within the scope of the asymmetric
obligations under the DSA. Whilst a handful of gatekeepers may be subject to both the
DSA and the DMA, the risks addressed by the DSA and DMA are, however, very
different. The DMA addresses risks to contestability and fairness in digital markets
where gatekeepers as defined are present. The DSA addresses risks derived from the
fact that very large platforms have become de facto public spaces, playing a systemic
role for millions of citizens and businesses, creating a need for more accountability for
the content which these providers distribute on their platforms. The different risks that
EN 6 EN
both initiatives seek to tackle also translate in different obligations, the content and
applicability of which is clearly distinguishable.
23. The impact assessment of the DMA is also being conducted in parallel with a number of
ongoing reviews of certain competition rules, most notably the review of the Block
Exemption Regulations for horizontal and vertical agreements, including in the
motor vehicle sector.26 These reviews are without prejudice to the Impact Assessment of
the DMA, an initiative of a regulatory nature that does not affect – and is not affected by
– those reviews. The Block Exemption Regulations pursue a different objective. They
apply Article 101(3) of the TFEU by regulation to certain categories of agreements
falling within Article 101(1) TFEU, thereby block exempting them from the application
of Article 101(1) TFEU.
24. Also ongoing is the review of the Market Definition Notice, which is without prejudice
to the Impact Assessment of the DMA.27 The Market Definition Notice pursues a
different objective since it is a soft law instrument providing guidance as regards how
the Commission “applies the concept of relevant product and geographic market” in its
enforcement of EU competition law.28
2. PROBLEM DEFINITION
2.1. What are the problems?
25. Over the past decade, online platforms have established their presence as important
economic players and boosting efficiency, as well as spurring innovation and the
development of new business models. Online platforms play an important role in many
industries, allowing buyers and sellers of goods and services to trade and communicate
with each other. They increase consumer choice and convenience, improve efficiency
and competitiveness of industry and can enhance civil participation in society. Online
platforms are key drivers of innovation in the digital world and their success is closely
tied to the success of a range of businesses that use platforms to reach customers.
Platforms allow especially smaller businesses to extend their operations beyond their
home state, catering for consumers across the entire Single Market.29
26. At the same time, they also raise new issues relating to fairness, transparency and
market distortions. According to the evidence collected by the Commission, digital
markets are particularly vulnerable to the following three problem clusters.
26
See the dedicated webpages on DG Competition’s website at:
https://ec.europa.eu/competition/consultations/2018_vber/index_en.html (VBER),
https://ec.europa.eu/competition/consultations/2019_hbers/index_en.html (HBERs),
https://ec.europa.eu/competition/sectors/motor_vehicles/legislation/mvber_review.html (MVBER).
27
See the dedicated webpages on DG Competition’s website at:
https://ec.europa.eu/competition/consultations/2020_market_definition_notice/index_en.html.
28
Commission Notice on the definition of relevant market for the purposes of Community competition law, OJ
97/C 372/03, at point 2.
29
See brochure How do online platforms shape our lives and businesses?
EN 7 EN
27. First, in many digital markets large digital providers have emerged as gatekeepers
serving as gateways for their business users and consumers. Some of these gatekeepers
exercise control over whole platform ecosystems that are essentially impossible to
contest by existing or new market operators, irrespective of how innovative and
efficient they may be (‘weak contestability of platform markets’). As a result of the
weak competitive pressure experienced by these large players, the likelihood increases
that these markets do not function well – or may soon fail to function well – and thus do
not deliver the best outcome for consumers in terms of prices, quality, choice, and
innovation (weak competition in digital markets, or risk thereof).
28. Second, many businesses are increasingly dependent on these gatekeepers, which in
many cases leads to gross imbalances in bargaining power and, consequently, unfair
practices resulting in conditions for business users that would not be achievable under
normal circumstances (‘unfair business conditions for business users’).30 Such
imbalances in bargaining power, coupled with the economic dependency of many
business users and costumers on gatekeepers, allow the latter to obtain conditions that
they would not be able to obtain in case of well-functioning and competitive markets.
29. Third, digital players typically operate at a global scale and deploy global business
models. As a result, different national legislations within the EU31 may lead to increased
regulatory fragmentation and increased compliance costs for these large market players
and the business users that rely on them (‘fragmented regulation and oversight’).
Smaller players and startups are also negatively affected by this situation, as it impedes
them from scaling up easily within the Internal Market in order to grow into contenders
vis-à-vis the large, established players in the market.
30. This section describes each of the three problem clusters above in more detail.
2.1.1. Weak contestability of, and competition in, platform markets, or risk
thereof
31. The market features of digital markets tend to favour the emergence of a few large firms
that have become gatekeepers for many digital products and services. These gatekeepers
represent a key segment of the digital economy and play an important role in providing
third parties with online access to a large number of European consumers. 32 Where such
markets have not yet gravitated towards high concentration, they are at the risk of doing
so in the near to medium term.
30
In this Impact Assessment the notion of unfair business practices refers to both terms and conditions as well
as the actual business practices of gatekeepers.
31
Where appropriate in this Impact Assessment, references to EU should be understood as comprising the
EEA.
32
In the OPC on Ex Ante Rules a majority of stakeholders note that “certain platforms and their ecosystems
have become unavoidable to access a large variety of contents and services on the internet. Those structuring
platforms have become gatekeepers not only within their services, but for the internet at large.” See Annex
2.1: Synopsis Report Open Public Consultation Ex Ante Rules.
EN 8 EN
32. There is evidence for a trend of growing market concentration (and, relatedly,
growing mark-ups) at the industry level, which has been documented both for the US
and for the EU.33 In digital markets in particular, the level of concentration of economic
power is unprecedented: the top seven of the large platforms account for 69% of the
total EUR 6 trillion valuation of the platform economy, as a result of vertical and
horizontal integration.34 Large online platforms intermediating between businesses and
consumers are growing at an exponential pace. They have several hundreds of millions
of users (both businesses and citizens/consumers).35 Total net revenues of some of these
platforms (of billions of euros) double and triple over a few years. Moreover, five out of
the world’s ten largest companies by market capitalisation are digital conglomerates
(see Figure 3).
33. Several respondents, including startups, research institutes and trade associations, point
out the positive impact of platforms on startups: by lowering the barriers to entry and
extending to companies of all sizes the advantages of cost and speed that can be gained
from trading online, they stimulate innovation and the dissemination of new products
and technologies.36 Nevertheless, the large majority of respondents to the OPC37 and
NCAs38 broadly agreed that “one or few large players on the market (i.e. concentrated
market)” constitutes a very important or important source or part of the reasons for
market failures. In certain markets, it may be challenging to maintain ‘competition in
the market’, notably where having only one network may be the most beneficial
outcome for consumers. However, in such a situation it is essential to keep
‘competition for the market’ open. Any successful attempt by a firm to lock in a group
of consumers, so that the market is no longer contestable for a new entrant, will prevent
such ‘competition for the market’, with possible adverse consequences for prices,
quality, choice and innovation.39
34. Large gatekeepers benefit significantly from the entry barriers characterising digital
markets. In this context, new market operators that may want to enter or expand in
digital markets where a gatekeeper is present may find it extremely difficult to
overcome some of the inherent barriers to entry or expansion without access to a
33
M. Bajgar, G. Berlingieri, S. Calligaris, C. Criscuolo & J. Timmisn (2019), Industry Concentration in Europe
and North America, OECD Productivity Working Paper; G. Grullon, Y. Larkin, & R. Michaely (2019), Are
US Industries Becoming More Concentrated?, Review of Finance, Volume 23(4), pages 697–743; Market
Concentration - Note by Jason Furman, Hearing on Market Concentration, 7 June 2018; G. Gutiérrez & Th.
Philippon (2017), Declining Competition and Investment in the U.S.,; G. Gutiérrez & Th. Philippon (2018),
How European Markets Became Free: A Study of Institutional Drift.
34
Source: R. Fijneman, K. Kuperus, J. Pasman (2018), Unlocking the value of the platform economy, KPMG
report for the Dutch Transformation Forum
35
Observatory expert group Progress report on the Measurement of the Online Platform Economy.
36
See Annex 2.1: Synopsis Report Open Public Consultation Ex Ante Rules.
37
See Summary of the Stakeholder Consultation on the New Competition Tool.
38
See Summary of the contributions of the NCAs to the impact assessment of the new competition tool.
39
See M. Motta & M. Peitz (2020), Intervention trigger and underlying theories of harm - Expert advice for the
Impact Assessment of a New Competition Tool, Chapter 2, and G. S. Crawford, P. Rey, & M. Schnitzer
(2020), An Economic Evaluation of the EC’s Proposed “New Competition Tool”, Section V.C.
EN 9 EN
sufficiently large user base.40 For instance, a new entrant must convince a sufficient
number of users (due to the importance of network effects) to coordinate their migration
to a new service, taking e.g. part of the social network along, or other associated data
assets such as purchase or preference histories, or ratings. This lack of contestability due
to high barriers to entry is extensively echoed in the academic literature.41
35. These gatekeepers therefore have an entrenched market position, which is hard to
contest, and which they further expand through the creation of ecosystems. The largest
platform companies are active across many different markets, creating extended data-
driven ecosystems around their core activities, often cross-subsidising one service with
data or revenues from another. In this regard, a large number of respondents identified
online intermediation services, search engines, operating systems for smart devices,
consumer reviews, network and/or data infrastructure/cloud services, digital identity
services, online advertising intermediation services, payment services, fulfilment
services and data management platforms as activities that can strengthen the gatekeeper
role of such large online platforms when any or all of these are integrated within a
single corporate structure.42
36. It is sometimes argued that incumbent offer their services often for free and that
competition is ‘just one click away’ or that it is vigorous in some segments. This is a too
narrow and selective view of the overall dynamics of the digital platform economy.
However, the entrenched position of gatekeepers has shown to be lasting and essentially
unchallenged by competing platforms, thus leading to weak inter-platform competition.
2.1.2. Unfair gatekeeper practices vis-à-vis business users
37. Gatekeepers’ successful business models based on platform economy specificities have
allowed them to gain strong market positions and economic power, enabling them to
create ecosystems for which they set the rules by which other economic players should
abide. If set in an unfair manner, these rules can be detrimental to business users, and
limit Small and Medium Enterprises’ (‘SMEs) online visibility and associated sales.
38. The enforcement experience and input to the OPC show that unfair practices can take on
different forms. They could relate to gatekeepers’ size, their capacity to acquire and
40
In the OPC on Ex Ante Rules, respondents in general consider that unfair practices by gatekeepers have a
concerning impact on competition, innovation and consumer choice. Competition is hampered when
gatekeepers create barriers for new market operators to enter the market, thereby resulting in reduction of
investments and innovation and consumer choice stifling. Unfair practices are considered to be the means by
which digital platforms increase the cost of switching or multi-homing for users, thereby limiting market
contestability and preserving their market power. See Annex 2.1: Synopsis Report Open Public Consultation
Ex Ante Rules.
41
G. Biglaiser, E. Calvano & J. Crémer (2019), Incumbency advantage and its value, Journal of Economics and
Management Strategy, volume 28(1), pages 41-48; A. Afilipoaie, K. Donders & P. Ballon (2019), What Are
the Pro- and Anti-Competitive Claims Driving the European Commission’s Platform Policies? A Case Study
Based Analysis of the European Commission’s Take on Platform Cases.
42
In the OPC on Ex Ante Rules, several hundreds of respondents identified each of these activities. See Annex
2.1: Synopsis Report Open Public Consultation Ex Ante Rules.
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monopolise data, imposition of contractual conditions or preferential treatment and/or
the interplay between these elements. For a full overview of different unfair
gatekeepers’ practices and the ongoing and closed investigations and antitrust cases
please see Section 5.2.2 and Annex 5.6 to the Impact Assessment.
39. One of such unfair practices is the imposition on business users of ‘anti-steering’
provisions, by which gatekeepers prevent business users from directing acquired
consumers to offers other than those provided on the platform, even though such
alternative offers may be cheaper or otherwise potentially more attractive. 43 For
instance, an app store that does not allow its business users to advertise alternative
subscription options outside its platform to acquire customers. Also, cross-platform
parity clauses,44 i.e. clauses that oblige business users to offer the same or better retail
conditions as those offered on other platforms to the contract party, tend to
disincentivise competition between platforms. In particular, they prevent business users
from ‘rewarding’ other platforms that may provide better or cheaper platform services,
by offering better retail prices or conditions on those platforms.
40. Another example is the imposition of the platform’s ID services, which is a lock-in
strategy where the user is required to sign up/register with an email service of the
gatekeeper’s core platform services when using another of its products (e.g. an
operating system, social network). The US House of Representatives Judiciary
Committee also describes lock-in strategies including free tier offerings for cloud
services.45
41. The broad category of ‘self-preferencing’ refers to practices in which a usually
vertically integrated gatekeeper acting in the dual role of providing core platform
services to business users and at the same time competing with them when providing
ancillary services applies more favourable conditions to its own services compared to
the third-party services hosted on the gatekeepers’ platform. Self-preferencing occurs in
many situations in the online and offline world (e.g. in supermarkets with own brands).
Such behaviour may not be considered generally anti-competitive under the EU
competition rules or unfair in all business relationships. However, certain forms of self-
preferencing may amount to an unfair business practice. An important concern here is
the fair balancing of interests, in this case those of the gatekeeper platforms versus that
of their business users.46 In particular, the special position of gatekeeper platforms that
43
Several stakeholders, such as media publishers or game developers, raised concerns about this specific issue
in the OPC on Ex Ante Rules as well as through different legal actions taken both in the Europe and the US.
44
Often called Wide Most Favoured Nation (‘MFN’) clauses. These clauses generally also apply to the
business user’s direct sales channels, however this element of such clauses would not be affected by the
options presented in this impact assessment.
45
https://judiciary.house.gov/calendar/eventsingle.aspx?EventID=3113.
46
See I. Graef (2018), Algorithms and Fairness: What Role for Competition Law in Targeting Price
Discrimination towards End Consumers?, Columbia Journal of European Law, volume 541, pages 546–8.
and I. Graef (2019), Differentiated Treatment in Platform-to-Business Relations: EU Competition Law and
Economic Dependence, Yearbook of European Law, Volume 38, pages 448–499.
EN 11 EN
play a dual role and may engage in favouring their own services may lead to the
exclusion of alternatives by business users that are largely dependent on these
gatekeeper platforms to reach consumers, reducing choice for them, and potentially
undermining the quality of service and increasing prices.47
42. One example is an app store, which markets a number of its own popular apps and at the
same time maintains a marketplace for competitors, self-preferencing its own
marketplace by applying more favourable policies for its own products and selectively
drafting rules favouring its own products. Another example is a search engine or
marketplace treating more favourably its own products and services in the results
displayed to end users.
43. Feedback to the OPC shows that business users consider self-preferencing to be a very
common practice deployed by large, vertically integrated platforms. Responses by
business users suggest that search and ranking algorithms often give preference to the
platform’s own services, but also that a platform often has an incentive to bias its
recommendations towards the content provider charging a lower royalty.48
44. Business users are faced with limited or no access to vast amount of data (e.g. app store
limiting the information that third-party app providers receive about their subscribers)
as well as lack of any or meaningful interoperability to access such data that may be
collected by gatekeepers.
45. The Impact Assessment study and input to the OPC point to practices that prevent both
consumers and business users from switching. In the digital sector, being able to port
both historical and real-time data is an important precondition for both multi-homing
and switching. Business users and consumers alike repeatedly raise the issue of not
being able to use any other platform or service because the incumbent refuses to provide
an enhanced and continuous real-time ability to port personal and non-personal data in
interoperable format. These practices affect contestability, and limit business users’
possibilities to move to or rely on alternative platforms or services. As yet another
example, an advertising intermediation services provider collecting multiple datasets
from business users’ services which it uses for better targeting and attribution
measurement, but does not share them with advertisers.
46. Another example of a data related practice that could be considered unfair, and has been
raised by many stakeholders in the context of the OPC, is the situation where a
gatekeeper restricts business users from accessing and using the data that they provide,
receive from their customers or generate in the course of their use of the gatekeeper’s
platform or service, as is the case as regards an app store limiting the information that
third-party app providers receive about their subscribers or an online intermediation
service restricting data generated in the curse of the use of its platform by third party
47
Observatory expert group report on differentiated treatment.
48
See Annex 2.1: Synopsis Report Open Public Consultation Ex Ante Rules.
EN 12 EN
sellers and their customers. Feedback to the OPC shows that business users are regularly
confronted with the imposition by large platforms of proprietary services and an
authentication through the platform even when third party services are used to create a
direct link with customers to the detriment of third-party providers. Respondents
suggest that gatekeepers exclude business users from access to user data and attempt to
remove the direct link between the client and third party suppliers (so-called
disintermediation).49
47. Other examples include (i) gatekeepers that use certain data that they received from
business users for a particular use, for instance advertising services, for other, unrelated
purposes, (ii) gatekeepers operating a marketplace benefit from their dual role and
ability to evaluate product, sales and customer data generated from the sales of goods
provided by third party merchant business users on its marketplace, or (iii) gatekeepers
operating a video sharing platform that has access to a rich set of (first party) data about
its consumers, data that it can re-use to improve its own products, including in other
areas, but restricts the access to this rich set of data to its competitors.
48. Thanks to their strong market position, gatekeepers, can either limit access to their
platform or make such access conditional upon specific requirements. Gatekeepers often
impose unfair terms of access to business users, for instance in relation to price for
the services they offer or accepting specific bundles which do not allow the mix-and-
match by customers (e.g. a provider of cloud services bundling this service with other
services or a social network services provider applying terms and conditions, which
make the use of its services conditional on the possibility to collect and combine user
data from multiple sources).
49. Another example is gatekeepers limiting the access to or the interoperability of
certain of their platform services/functionalities (e.g. operating system) with the services
offered by business users, reserving those functionalities to their own services. For
example, in certain circumstances third-party providers of payment wallets may require
access to near-field-communication (‘NFC’) functionalities in the hardware and the
gatekeeper exclusively reserves such functionality to its own services.
50. The work supporting this Impact Assessment shows that the above problematic
practices are most prominent in relation to the following core platform services: e-
commerce marketplaces, online search engines, app stores, social networks, video-
sharing services, operating systems, cloud, number-independent messaging services,
and online advertising.50 Also the negative effects of the problem drivers are most
severe in relation to these core platform services. These services present characteristics
that have been identified as driving the problematic practices assessed in this document,
i.e. they have a multi-sided character, which allows them to accumulate data on all sides
49
See Annex 2.1: Synopsis Report Open Public Consultation Ex Ante Rules.
50
For a more detailed overview see IA support study.
EN 13 EN
of the market and thus benefit from strong indirect network effects (e.g. social network
services, video sharing services); they have an important intermediation function (e.g.
marketplaces, app stores) and/or playing important ‘visibility’ role (e.g. online search,
operating systems), and are characterised by the presence of big ‘gatekeepers’ (e.g.
number-independent messaging services) which often are vertically integrated and
operate a large ecosystem (e.g. cloud services).
51. From the foregoing, it becomes apparent that there is substantive evidence concerning
the urgent need to address unfair practices by gatekeepers. The fact that this evidence
cuts across not only jurisdictions of both common and civil law, but also across
numerous enforcement bodies of different kinds and with diverse mandates is yet
another indication of the urgency underlying the intervention. In fact, as outlined by the
evidence quoted in this impact assessment and the numerous reports, there are only few
other questions currently triggering a similar level of consensus between enforcement
authorities, judicial bodies and law makers around the world like the need to tackle
problems related to digital gatekeepers.
2.1.3. Legal uncertainty for market players
52. While in many areas of the single market, the objective is to ensure further integration,
the online platform market is naturally integrated (due to the intrinsically cross-border
nature of the platform economy). However, there is an increasing regulatory
fragmentation of the online platform space in the EU (see Annex 5.4 and 5.5 to the
Impact Assessment). In addition, coordination among national legislators may be
insufficient, leading to potentially heterogeneous responses across the EU.
53. Such fragmentation becomes problematic where it creates increased compliance costs
for all market players. This is particularly harmful for smaller platforms and startups,
potential entrants and smaller business users since it creates regulatory barriers to entry
and limits their ease of scaling up across the Single Market. At the same time, diverging
laws may also endanger the benefits stemming from large platforms’ activity; such costs
may imply regulatory shopping, ultimately resulting in unequal impacts on EU
consumers. If emerging platforms are unable to grow sufficiently in order to compete
with gatekeepers, the latter would be able to further gain power, strengthening their
ability to establish market rules and (potentially) behave unfairly. This would
exacerbate the above described issues of weak market contestability and competition, as
well as unfair business practices.
54. In the OPC, respondents from all categories mention that EU level rules would prevent
further legal fragmentation across Member States, considering that several Member
States have already started to introduce new rules to address concerns arising from the
presence of gatekeepers. Stakeholders generally consider that an effective coordination
between EU bodies and the relevant national regulatory authorities is needed, especially
in light of the fact that issues related to gatekeepers are likely to have an important
EN 14 EN
cross-border component. Platforms in particular point out the need to minimise
fragmentation and allow for a pan-European approach.51
2.2. What is the size of the problem?
55. As explained in more detail in Section 2.1.1, the characteristics of digital markets often
favour the lack of market contestability and the emergence of strong concentration,
which tends to be accompanied by rising mark-ups and weaker competition. The trend
of increasing industry concentration has been documented for both digital and non-
digital industries alike. For instance, in 2014 the mean European high ‘digital intensity’
industry52 had 4 percentage point higher sales concentration than in 2000.53
56. As regards trends in mark-ups, empirical studies suggest that company mark-ups have
increased by 4% to 6% for the period 2001-2014, on average across country,54 and that
the result is mainly driven by the top of the mark-up distribution in the digital sector.55
For the top 10% of the firms in the sample, the growth in mark-ups over the period
2001-2014 amounted to 20%, while the remaining firms in the sample exhibit a flat
trend, i.e. mark-ups stayed roughly the same.56 To the extent that this observed trend of
increasing market power of this top 10% of firms is a sign of insufficient competitive
constraints faced by these firms, increasing competition in these markets could
contribute to slowing down the growth trend in mark-ups, decrease prices and increase
choice, quality and innovation. For example, a recent study shows that more
concentrated industries also feature a more negative relation between markups and
investment and innovation.57
57. As regards the size of the problems related to unfair practices by gatekeepers (explained
in Section 2.1.2), it is importance to note that the number of merchants and small
51
See Annex 2.1: Synopsis Report Open Public Consultation Ex Ante Rules.
52
This notion of ‘digital intensity’ is rather broad and encompasses all firms with relatively high exposure to
‘Information and Communication Technologies’ (in terms of their investments, or input purchases), as well
as firms reporting online sales. For the definition of ‘digital intensity’, see F Calvino, C Criscuolo, L
Marcolin, & M Squicciarini (2018), A taxonomy of digital intensive sectors, OECD Science, Technology and
Industry Working Papers 2018/14.
53
M. Bajgar, G. Berlingieri, S. Calligaris, C. Criscuolo & J. Timmis, (2019), Industry Concentration in Europe
and North America, OECD Productivity Working Papers, 2019-18, OECD Publishing, Paris.
54
The study used firm-level data sourced from the commercial dataset Orbis® by Bureau van Dijk (BVD). It
provides information on firms' localisation, annual balance sheet and income statements, although the
number of observations per country can vary significantly. It covers the period 2001-2014 for 26 countries:
Australia, Austria, Belgium, Bulgaria, Denmark, Estonia, France, Finland, Hungary, Germany, Indonesia,
India, Ireland, Italy, Japan, Republic of Korea, Luxembourg, the Netherlands, Portugal, Romania, Slovenia,
Spain, Sweden, Turkey, the UK, US. See also J. Federico, D. Leigh & S. Tambunlertchai (2018), Global
Market Power and its Macroeconomic Implications, IMF Working Paper WP/18/137.
55
See S. Calligaris, C. Criscuolo, & L. Marcolin (2018), Mark-ups in the Digital Era, OECD Science,
Technology and Industry Working Papers 2018/10. See also J. De Loecker, & J. Eeckhout (2017), The Rise
of Market Power and the Macroeconomic Implications.
56
Ibid.
57
See J. Federico, D. Leigh & S. Tambunlertchai (2018), Global Market Power and its Macroeconomic
Implications, IMF Working Paper WP/18/137.
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businesses affected by gatekeepers’ conduct varies depending on the sector, but can be
estimated to reach between one and four million.58
58. A good indicator of businesses’ dependence on platforms is turnover from sales and
share of revenue via online platforms as a proportion of the company’s total revenue
from e-commerce. According to the Observatory’s estimates, around half of enterprises
derived more than 25% of their revenues from online platforms. For almost 10% of
companies, online platform sales exceed 75% of all revenues; while according to
Statista estimates, in 2017, 18% of company revenues across the EU-28 came from e-
commerce, the highest proportion being 33%.59
59. Another indicator of businesses’ dependence on platforms is the use of platforms to
publish online advertising. Of SMEs in the EU that sell online, more than eight in ten
rely on search engines as a mean of marketing their products or services. In 2018, an
average of 26.2% of enterprises across the EU paid to advertise online. In northern
European countries, such as Sweden and Denmark, this figure was over 44%.60
60. The degree to which businesses have integrated into and depend on the platform
economy is further illustrated by the fact that in some cases more than 50% of goods
sold on a marketplace come from third-party sellers. There are over 26.4 million
software developers in the world who depend entirely on large platforms providing the
infrastructure and setting the rules for the distribution of their apps.
61. Gatekeepers’ unfair practices affecting businesses do not represent a one-off problem,
but are systemic and recurrent. In the OPC on Ex Ante Rules, 88% of the businesses and
business users that replied, encountered issues concerning trading conditions on large
platforms.61 According to Cullen International’s database, around 30 antitrust
investigations concerning platforms have been formally opened in the EU (by DG
Competition or NCAs) since 2015.62 However, the prevalence of unfair practices by
large gatekeeper platforms is evidenced not only in the number of cases that have been
investigated by competition authorities, but also from the interviews and case studies
run in the context of the support study for the Impact Assessment.63
62. As regards the anti-competitive use of third party data, both the Commission and NCAs
(Italy, the Netherlands and Germany) are running a number of investigations against
four different large online platforms. In case of preferential treatment, except for the
58
According respectively to estimates from the P2B Impact Assessment and the Online Platform Economy
Observatory.
59
https://platformobservatory.eu/state-of-play/power-over-users/.
60
https://platformobservatory.eu/state-of-play/power-over-users/.
61
In general, most of the issues presented by the users are due to a perceived imbalance in bargaining power
between platforms and business users, which hampers competition, fosters uncertainty in relation to
contractual terms and also results in lock-in of consumers. See Annex 2.1: Synopsis Report Open Public
Consultation Ex Ante Rules.
62
See IA support study.
63
See IA support study.
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Commission cases, also at least two NCAs (Italy and the Netherlands) are running
investigations concerning self-preferencing by online platforms. With respect to
inadequate or late access to own (business-user related) data and lack of access to key
functionality, the investigations were initiated in each case against three different online
platforms in three different Member States, while anti-steering and MFN clauses were
recently subject to investigations against two different online platforms.
63. The size of the market and the implications of the issues identified are also an angle of
approaching the ‘the size of the problem’ question. The digital economy is estimated to
account for between 4.5% to 15.5% of global Gross Domestic Product (‘GDP’) in 2019,
depending on the definition.64 The top 50 online platforms, representing an average of
over 60% of traffic share65 across the Member States, achieved worldwide revenues of
almost EUR 276 billion in 2018, and employed almost 600 000 people.66 Online
platforms’ role is constantly increasing due to e-commerce upward trends; it has further
strengthened with the widely introduced lockdowns due to the COVID 19 outbreak in
2020; consumers have shifted their habits more towards search engines, social media
and online entertaining media.67
64. The ongoing fragmentation in the Digital Single Market might also reverse the positive
trends in cross-border online trade. Assuming a 10% decrease per year in online cross-
border trade, the opportunity cost of the digital market fragmentation would be EUR
1.76 trillion after 10 years (see Annex 5.5 to the Impact Assessment).
65. The reduced contestability of digital markets in which gatekeepers operate seems to
result in suboptimal innovation levels, with notably implications for societal welfare.68
Relevant data supports the view that many markets are becoming more concentrated and
display less competition. Profit margins are widening, with a few firms reaping a
significant share. Innovation levels are also sub-optimal.69
66. Gatekeepers bring benefits for consumers in terms of convenience, increased choice of
free of charge online products and services. However, there are also important adverse
consequences for consumers, namely reduced choice in terms of number of competitive
platforms70, insufficiently informed choice decisions71, and lack of data/privacy-friendly
64
UNCTAD (2019), Digital economy report.
65
According to the Online Platform Economy Observatory, traffic share is the most revealing indicator of the
economic significance of online platforms.
66
https://platformobservatory.eu/news/covid-19-and-online-platform-economy/.
67
Ibid.
68
A. Ezrachi & M. Stucke, Digitalisation and its impact on innovation, R&I Paper Series, Working Paper
2020/07, European Union 2020, page 34.
69
Ibid., page 22.
70
The choice for consumers is limited by lock-in effects and lack of innovative alternatives blocked out of the
gatekeeper platform(s).
71
The Online Observatory report on differentiated treatment shows that they may be subject to search
diversion, i.e. platforms may have incentives to a biased order of products/services presentation, which would
EN 17 EN
services72. Also, due to the distorted intra- and inter-platform competition described in
the problem definition, consumers risk experiencing higher prices and/or less quality.
2.3. Problem drivers
67. This section describes the problem drivers for the problem clusters described in Section
2.1. These problem drivers can be grouped into two overarching categories, namely
gatekeeper related market failures (Section 2.3.1), and fragmented regulation and
oversight (Section 2.3.2).
2.3.1. Market failures
68. From the competition law perspective, the term ‘market failure’ indicates a situation in
which a market does not allow consumers to benefit from the results of effective
competition in terms of low prices, better quality, as well as more choice and
innovation, while firms are able to earn supra-normal profits which are not competed
away over time.73
69. While markets typically feature self-correcting mechanisms, there can be obstacles that
prevent these mechanisms from operating, leading to non-transitory losses of economic
value.74 For instance, abnormally high profits in a market should in principle not be
sustainable in the long run because they would attract new entry into this market. As the
new competitors start offering the same or very similar products as the incumbent(s),
they will steal market share, and hence profits, from them, until the abnormally high
profits will gradually be competed away. However, this self-correcting mechanism may
be impaired when there are, for instance, barriers to entry that make it very difficult or
even impossible for potential competitors to enter the market and challenge the
incumbents. Such barriers to entry are particularly salient in digital markets, because
they do not allow entrants to be cost effective (because of scale and scope economies),
to replicate the incumbent’s products or services (because of data dependency or
vertical integration), or to induce consumers to switch away from the incumbent(s)
(because of network effects, switching costs, or asymmetric information). Such barriers
to entry therefore allow incumbents to sustain market power, which in turn leads to
divert consumers from products/services they initially intended to buy, pushing them to purchase more and/or
more expensive products/services.
72
Gatekeepers’ extraction of information leads to consumer profiling, unwanted advertisement targeting and
privacy concerns.
73
See for instance J. De Loecker, J. Eeckhout & G. Unger (2020), The Rise of Market Power and the
Macroeconomic Implications, The Quarterly Journal of Economics, Volume 135(2), Pages 561–644; J. De
Loecker & J. Eeckhout (2018), Global Market Power, NBER Working Paper No. 24768; S. Barkai (2020),
Declining Labor and Capital Shares, Journal of Finance, Volume 75, Issue 5; S. Calligaris, C. Criscuolo, &
L. Marcolin (2018), Mark-ups in the Digital Era, OECD Science, Technology and Industry Working Papers
2018/10, on trends in firm-level mark-ups across 26 countries for the period 2001-14. They find that average
mark-ups are higher and have grown more in ‘digital intensive’ sectors than in less ‘digital intensive’ sectors
over the 2001-2014 period.
74
See M. Motta & M. Peitz (2020), Intervention trigger and underlying theories of harm - Expert advice for the
Impact Assessment of a New Competition Tool, Chapter 2.
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longer-term societal losses in terms of higher prices and less product variety for
consumers, and less dynamic innovation.75
70. It is important to stress that the features of a market include both structural and
behavioural ones and that demand-side considerations, in particular the behaviour of
customers, play an equally important role in this regard. Therefore, in many cases, there
is a combination of those elements leading to or constituting a market failure.76
71. This section analyses a list of gatekeeper related market failures, notably: (i) entry
barriers to gatekeeper markets (Section 2.3.1.1) and (ii) economic dependence and
imbalanced bargaining power (Section 2.3.1.2).
2.3.1.1. Entry barriers to gatekeeper markets
72. Market players in the digital economy face important barriers to entry. This is due to the
fact that digital market features can be exploited by gatekeeper platforms to strengthen
their market position and prevent market entry.
73. There has been broad consensus among the NCAs77, as well as among the respondents
to the OPC78 that extreme economies of scale and scope, high start-up costs, high fixed
operating costs, high degree of vertical integration, single-homing, switching costs,
multi-sidedness, network effects, zero-pricing markets, information asymmetry, data
dependency access to data, and behavioural bias are important or very important sources
for market failures in digital markets. Moreover, according to an International
Competition Network (‘ICN’) report, an important proportion of respondents indicated
that most of these factors were playing an important role in digital markets’ power
assessment in the competition enforcement cases that they have investigated.79
74. Regarding economies of scale, the Commission in Google Shopping, based its
dominance assessment for the market for general search services among other things on
the existence of barriers to expansion and entry, notably the significant investments in
terms of time and resources required to establish a fully-fledged general search engine.80
Likewise, in its Google Android decision, the Commission found that “developing a
75
See M. Motta (2014), Competition Policy -Theory and Practice, Cambridge University Press.
76
See R. Whish (2020), The New Competition Tool: Legal comparative study of existing competition tools
aimed at addressing structural competition problems, with a particular focus on the UK’s market
investigation tool.
77
See Summary of the contributions of the NCAs to the impact assessment of the new competition tool. Some
NCAs indicated that some of the questions in the questionnaire did not apply to them, because they did not
have come across this particular feature or scenario in their recent case-work. When reporting on the views
expressed by NCAs on particular issues, this Impact Assessment only reflects the views of those NCAs that
did in fact express such a view.
78
See Summary of the Stakeholder Consultation on the New Competition Tool.
79
77% for network effects, 51% for economies of scale, 49% for data, 44% for consumer bias 41% for
switching costs. See ICN ‘Report on results of the ICN survey dominance/substantial market power in digital
markets’ (‘ICN Report on digital markets’).
80
Case AT.39740 Google Search (Shopping), Commission Decision of 27 June 2017, paragraph 272.
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smart mobile OS [operating system] is a costly and time-consuming process”.81 As
regards economies of scope, the Commission made particular reference in its
Preliminary Assessment in the Amazon e-book MFNs case to “[t]he ability of e-book
readers to drive sales and lock-in customers: that with its Kindle e-book reader,
Amazon operates a closed "ecosystem" (or "walled garden"). Customers who own a
Kindle can use that e-book reader only for ebooks purchased in Amazon's Kindle
store”.82 In the same case, the Commission also found substantial economies of scale
for e-book retailing, in particular because of the need to construct a sufficiently large
catalogue of available titles (which requires agreements with a large number of E-book
Suppliers), and because of the scale and scope of investments needed to set up a viable
e-book distribution platform. The Special Advisers Report refers to “the presence of
strong economies of scope favouring the development of ecosystems and giving
incumbents a strong competitive advantage. Indeed, experience shows that large
incumbent digital players are very difficult to dislodge”.83
75. Due to the two-sided nature of platform markets, once a gatekeeper managed to bring
both sides of the market on board, it becomes very difficult for a new, emerging
platform, to establish itself in the market, as it has to convince both users and
developers simultaneously that it is a viable alternative to the already established
platform. For instance, in establishing Google’s market power in the Google Android
case, the Commission quoted Orange as saying that “[g]iven the two-sided character of
this market (attracting enough developers requires having a large user base and users
will reciprocally be attracted to shops offering many apps) it is indeed very difficult to
offer an app shop in competition with Google Play given (i) its link with Android OS
and (ii) its current size”.84
76. The problem of challenging a gatekeeper is often exacerbated in situations where at
least one side of the market (typically the final users) is served at zero prices by the
incumbent platform - with firms monetising their services through advertising and/or
access to consumer data85 - so that there is no room for the entrant platform to attract
final users through aggressive pricing policies.86
77. The zero pricing strategies described above also explain why network effects tend to
favour large incumbents preventing smaller rivals from effectively challenging
incumbents and stealing market shares from them. The Commission has found in the
Microsoft case, for instance, that network effects represented a relevant barrier to entry
81
Case AT.40099 Google Android, Commission Decision of 18 July 2018, paragraph 462.
82
Case AT.40153 E-book MFNs and related matters (Amazon), Article 9 Decision of 4 May 2017, paragraph
65.
83
J. Crémer, Y.-A. de Montjoye & H. Schweitzer (2018), Digital policy for the digital era, page 70.
84
Case AT.40099 Google Android, Commission Decision of 18 July 2018, paragraph 600.
85
See M. Motta & M. Peitz (2020), Intervention trigger and underlying theories of harm - Expert advice for the
Impact Assessment of a New Competition Tool, Chapter 2.
86
See OECD Policy Roundtable on Two-Sided Markets, 2009, in particular the contribution by the European
Commission, pages 157-186.
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because “[a] media player would not meet with significant consumer demand if there
was no or no significant amount of corresponding digital content which this player
could play back”.87 In Google Android, the Commission found that “network effects
arise because, when deciding which licensable smart mobile OS to develop for, app
developers consider the revenue potential of that OS and since they ‘earn their profits
mainly by app downloads, mobile OSs with a large user base are considered more
attractive by app developers”.88
78. Indirect network effects are particularly strong for large-scaled platforms also due to
their unlimited capacity to expand data sets, i.e. data-driven network effects. In addition
to this network amplification function, data is a major asset in the digital economy. It is
particularly important for a business to have access to data related to its consumers and
stemming from its activity on a platform since such data allow the business to adapt its
market strategy. Business users’ dependency on data could be used to prevent them
from competing effectively on the platform. This is particularly problematic when the
business user is in direct competition with a gatekeeper who can use data generated by
the business user’s activity to its own interest. Data can thus be used by gatekeepers as a
barrier to entry, expansion and competition and is therefore an essential element for
enabling market contestability. In the Google Shopping case, the Commission identified
the availability of data in the form of user search queries, paired with users’ tendency to
single-home on Google for their general searches, as an important barrier to entry89:
“[B]ecause a general search service uses search data to refine the relevance of its
general search results pages, it needs to receive a certain volume of queries in order to
compete viably. The greater the number of queries a general search service receives,
the quicker it is able to detect a change in user behaviour patterns and update and
improve its relevance”.90
79. The presence of network effects and the multi-sidedness of certain markets imply that
even markets where initially multiple competitors are active are particularly prone to
tipping: once a firm has obtained a certain advantage over rivals in terms of market
share, its position may become unassailable and the market may gravitate towards a
situation of dominance or (quasi)-monopoly. This advantage can be due to its presence
in other related services, access to data or simply because it is the first mover into the
market. In these cases, markets may not yet have generated a gatekeeper, but show clear
signs of increasing market power in the hands of one firm. Respondents to the OPC
generally considered that important or very important market features of a tipping
market are the following: (i) direct network effects; (ii) indirect network effects; (iii)
87
Case COMP/C-3/37.792 Microsoft, Commission Decision of 24 March 2004, paragraph 420.
88
Case AT.40099 Google Android, Commission Decision of 18 July 2018, paragraph 464.
89
In addition, in Apple/Shazam (Case M. M.8788 Apple/Shazam, Commission Decision of 6 September 2018,
paragraphs 221 ff.), the Commission found that the merger would give Apple access to Shazam’s consumer
data, which would give it the “[a]bility to use the Customer Information to put competitors at a competitive
disadvantage”, while the evidence on Apple’s incentives to do so was mixed.
90
Case AT.39740 Google Search (Shopping), Commission Decision of 27 June 2017, paragraph 287.
EN 21 EN
users predominantly single-home and (iv) economies of scale. Respondents generally
considered that tipping is common or to some extent common in digital markets.91
When asked about the need for the Commission to be able to intervene early in cases of
emerging gatekeepers to preserve/improve competition, the large majority of
respondents agreed, including the majority of businesses and business associations, civil
society organisations (i.e. consumer associations, NGOs and citizens) and public
authorities (including NCAs).92
80. Behavioural bias is another important feature of digital markets. This feature merits
further attention in this section since it contributes to increasing switching costs and
keeping users locked into the gatekeeper platform, i.e. leading to user lock-in, thus
strengthening entry barriers. Platform companies routinely design services to optimise
their users’ experience, often using advanced behavioural profiling and testing
techniques, such as A/B testing93, or finely targeted personalisation of their service
offerings. Gatekeepers use various techniques94 (e.g. design of choices, misdirection,
social pressure, sneaking items into the user’s shopping basket, and inciting a sense of
urgency or scarcity) that ‘nudge’ users into certain decisions. A recent search on 11 000
shopping websites identified 1 818 patterns of practices used to incite users doing things
they have not intended to do.95
81. From the perspective of platform competition, research on the basis of ‘agent-based
simulations’ also found evidence of biases that reinforce consumer lock in, such as
‘escalation of commitment’, and ‘availability bias’.96 In ‘escalation of commitment’,
users commit themselves to one platform, even when switching may provide higher user
utility. Hence, those users never switch platforms. For instance, a consumer purchasing
on a large e-commerce marketplace offering a range of products, would not switch to
one or several other platforms even if the latter are specialised in the specific type of
goods the consumer is interested in. Convenience and user habits would prevail over the
benefit (e.g. higher quality) potentially resulting from the use of a more specialised
91
See Summary of the Stakeholder Consultation on the New Competition Tool.
92
See Summary of the Stakeholder Consultation on the New Competition Tool and Summary of the
contributions of the NCAs to the impact assessment of the new competition tool.
93
A/B testing (also known as split testing) is a process of showing two variants of the same web page to
different segments of visitors at the same time and comparing which variant drives more conversions. A/B
testing is one of the most important ways to optimise a website's funnel in digital marketing.
94
A recent JRC report - Technology and Democracy: Understanding the influence of online technologies on
political behaviour and decision-making - describes such techniques as “design choices that benefit an online
service by coercing, steering, or deceiving users into making unintended and potentially harmful decisions”.
There are patterns used in websites and apps that make users do things that they didn't mean to, like buying
or signing up for something (see https://darkpatterns.org/). To explain such coercive and manipulative
techniques, the JRC report refers to the “roach motel” example, i.e. it is easy for users to get into a certain
situation, but difficult to get out. For instance, creating an account would require just a few clicks, but
deleting it would involve more than 10 steps that are difficult to achieve without instructions.
95
A. Mathur, G. Acar, M. J. Friedman, E. Lucherini, J. Mayer, M. Chetty, & A. Narayanan (2019), Dark
patterns at scale, Proceedings of the ACM on Human-Computer Interaction, volume 3, pages1–32.
96
This section quotes E. Katsamakas & H. Madany (2019), Effects of user cognitive biases on platform
competition, Journal of Decision Systems, volume 28(2), pages 138-161.
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platform. Users subject to an ‘availability bias’ may make platform choice decisions
using a heuristic that relies on vivid or recent data. For example, users may easily recall
a platform that has many users, as social media would be mentioning such a platform.
Social norming (e.g. follow friends’ behaviour) may play an additional role for user
lock-in and increase switching costs. Behavioural bias discourages switching to
different alternatives (such as a different browser, different search engine, etc.)
whenever certain software products come pre-installed on consumers’ devices, and
therefore has similar adverse effects on competition as would limited information about
the existence of these alternatives.
82. For instance, in the Google Android case, the Commission found that “users that find
apps pre-installed and presented to them on their smart mobile devices are likely to
‘stick’ to those apps”.97 In other words, users suffer from ‘default bias’ or ‘status quo
bias’, which in turn makes pre-installation of operating systems, app stores, search
engines, etc., a powerful tool to lock in users to these specific services: “In 2016,
approximately 260 million smartphones were sold in Europe, of which approximately
197 million smartphones or 76% were Google Android devices. Practically all of these
Google Android smartphones had the Google Search app pre-installed with the rest of
the GMS bundle”.98
83. The Commission’s enforcement practice under Article 102 TFEU has shown that that
the presence of high switching costs makes it more difficult for entrants to contest the
market position of firms that have already acquired a large customer base. For instance,
in an internal document, Microsoft itself stated that “The Windows API […] is so deeply
embedded in the source code of many Windows apps that there is a huge switching cost
to using a different operating system instead”.99 Switching costs are also relevant where
customers are businesses, not final consumers. This is demonstrated by the Google
Android case, where the Commission found that “OEMs wishing to switch to other
licensable smart mobile OSs face switching costs. […] For example, Sony has estimated
that the initial development cost ‘to implement the Android OS on our devices was
approximately 50 million Euro, with lead time of 1.5-2 years’”.100 One implication of
high switching costs in the platform context is that either one (or both sides) of the
platform tend to single-home for specific purposes, i.e. users only use one platform,
rather than using several platforms simultaneously. 101 For instance, the vast majority of
smartphone users owns either an iPhone or an Android phone, but not both at the same
time, and they tend to be very loyal to their operating system.
97
Case AT.40099 Google Android, Commission Decision of 18 July 2018, paragraph 781.
98
Case AT.40099 Google Android, Commission Decision of 18 July 2018, paragraph 783.
99
Case COMP/C-3/37.792 Microsoft, Commission Decision of 24 March 2004, paragraph 463.
100
Case AT.40099 Google Android, Commission Decision of 18 July 2018, paragraph 470.
101
See Support study to the Observatory for the Online Platform Economy, Report on the main obstacles and
opportunities for multihoming, https://platformobservatory.eu/research/.
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84. The above entry barriers are gradually reinforcing each other due to the ‘winner–
take-all’ dynamics in digital markets. The bigger the platform, the stronger the
indirect network effects, the larger the amount of data and the higher its quality. This
leads to increased insight into user profiles and preferences, allowing gatekeepers to
offer them more personalised services and advertisements, thus attracting even more
users and reinforcing consumer lock-in, favouring single-homing and rendering
switching to alternative platforms more difficult.
2.3.1.2. Economic dependence and imbalanced bargaining power
85. Dependence and imbalanced bargaining power characterise business relations with all
platforms102 including small ones. What distinguishes however relations with
gatekeepers, is the particularly strong level of dependency and the important scale of
power imbalance, which together with unfair conduct engaged in by these gatekeepers
can have serious harmful effects on the business users and customers.
86. First, gatekeepers have become a strategic business partner; an enterprise not present on
these platforms would not reach a very significant number of consumers. Figures in
some sectors illustrate well the strong degree of dependence. In 2024, consumers are
projected to download 181 billion apps from biggest app stores.103 Over 80% of social
referrals to e-commerce sites come through the most used social platforms some of
which having more than 2 billion monthly active users and 7 million active
advertisers.104 This explains the millions business pages and companies using these
social media every month105 to target this large audience.
87. Gatekeepers’ role as key trading partners is constantly strengthened due to e-commerce
trends. The Business-to-consumers (‘B2C’) e-commerce turnover was growing at an
average pace of 13% between 2014 and 2019 with turnover forecasted to hit EUR 621
billion in 2019.106 On average, 16.2% of retail trade in 2020 in Europe takes place on
line, almost double in comparison to 2018. The share of online shoppers in Europe
making cross-border online purchase has also increased significantly over the past
decade, nearing 50% in 2019. Cross-border B2C e-commerce sales in Europe are
projected to grow at a double-digit rate at least through 2022.107
88. Second, the incomparable economic strength of gatekeeper platforms show the extent to
which their commercial relations with business users are imbalanced. In 2019, the
102
See Regulation (EU) 2019/1150 of the European Parliament and of the Council of 20 June 2019 on
promoting fairness and transparency for business users of online intermediation services.
103
https://www.statista.com/statistics/1010716/apple-app-store-google-play-app-downloads-forecast/
104
https://www.businessofapps.com/data/facebook-statistics/.
105
https://www.businessofapps.com/data/facebook-statistics/.
106
Ecommerce report 2019.
107
Report European Cross Border B2C E-Commerce Market 2020 Double Digit Growth Expected after 2020.
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biggest app stores generated over USD 83 in revenue.108 In 2019, one of the most
important social networks had over USD 70 billion in revenue.109
2.3.2. Fragmented regulation and oversight
89. Various national rules in the EU are emerging in partial response to the problems
identified. In addition, insufficient coordination among different national authorities
setting rules vis-à-vis platforms may lead to potentially heterogeneous responses across
the EU. Fragmentation already exists with regard to platform-specific regulation, as for
example in the cases of transparency obligations and MFN clauses.
90. Furthermore, fragmentation results also from differing legislation relating to
dependency situations in place in various Member States (Belgium, Bulgaria, France,
Germany, Hungary and Italy) while in the remaining Member States there is no
legislation addressing dependency in place. Regarding MFN clauses there are two
different types of fragmentation: fragmentation due to the fact that some Member States
imposed legislative bans and some Member States did not. Furthermore, fragmentation
is observable due to differences in the MFN-legislations in those Member States where
they are in place. For instance, in some Member States (Austria, Belgium, France, Italy)
all types of price parity clauses are prohibited, i.e. also narrow MFN clauses, while in
the remaining Member States MFN clauses may be challenged under EU competition
law only.
2.3.3. Conclusion: problem drivers’ effects
91. The above-described problem drivers can lead to a number of issues. The economic
dependence of business users on gatekeeper platforms and the imbalance of
bargaining power - between these two types of players as well as between gatekeepers
and smaller platforms - can result in important economic harm. Business users need to
be present on gatekeeper platforms in order to reach consumers as the above analysis
show, which allows gatekeepers to set the rules of access and use of their platforms in
an unfair way. Gatekeepers can undermine the trading conditions for dependent
business users by behaving unfairly, thus limiting (national and cross-border) sales and
trust in the platform economy.
92. Digital markets’ features (see in particular discussion on market failures in Section
2.3.1) have mutually reinforcing effects which in the winner takes it all dynamics of
these markets constitute unsurmountable entry barriers. The latter drive a number of
issues related to weak market contestability and gatekeepers’ sustained market position
leading to longer term societal losses in terms of products’ and services’ prices,
consumer choice and suboptimal innovation opportunities (as illustrated in Section 2.2
and further described in Section 6). Gatekeepers control the conditions for innovation
108
Source: Statista.
109
https://sproutsocial.com/insights/facebook-stats-for-marketers/.
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and entry by independent firms. An important effect of the exercise of control by
gatekeepers is that they can inhibit innovation by potential alternative platforms or by
applications providers operating on their platform. Potential competitors, which might
offer an alternative route to customers, may find it challenging to gain a foothold in
markets with gatekeepers.
93. The extensive nature of problems associated with gatekeepers has led a number of
Member States to take or consider their own measures to address gatekeeper power.
However, isolated and uncoordinated national approaches to addressing a problem
which concerns cross-border platforms, and is hence pan-European in scope, risk
creating different national rules which increase the compliance costs for platforms
(and especially entrants or small scale platforms) operating cross border, and for
business users, including SMEs, providing services across the EU.110
2.4. How will the problem evolve?
94. Concentration and mark-ups in most digital markets have been increasing over the last
years, and there is no indication that this trend will be inverted during the next years. In
some cases, markets have already stabilised at a high concentration level and do not
show any evidence of possible increase in competitiveness in the future. Data is also
becoming more and more important, exacerbating the market failures associated with
the control of data.111
95. The COVID-19 crisis has dramatically increased the importance of e-commerce and
trading via digital platforms in the EU’s economy.112 This has only accelerated the
dependency of users and businesses on the services provided by the few gatekeepers –
as evidenced indirectly by the increase in stock market valuation of some of the largest
platform companies.
96. The following graph illustrates the stock price development for five major big tech
companies from 2014-2018.113 To the extent that stock prices reflect market
expectations of future profitability, this graph can be interpreted as measuring (future)
profits of the respective companies. When comparing these figures to the S&P 500
index114, which grew by about 60-70% over the same period, this graph shows how the
five digital operators – Alphabet (Google’s parent company), Apple, Facebook,
Amazon, and Netflix – have consistently outperformed the market average.
110
See IA support study.
111
The amount of data created each year in the digital economy is growing at an exponential rate. In 2020, it is
estimated to reach 47 zettabytes at worldwide level compared to 12 zettabytes in 2015. Forecasts point to 142
zettabytes in 2035. Source: Statista (2019), Digital Economy Compass.
112
https://platformobservatory.eu/news/covid-19-and-online-platform-economy/.
113
Stock prices of each company are normalised to 100 in 2014, i.e. they are expressed relative to their
respective value in 2014. This graph therefore allows to compare the development of stock prices across
different companies, but not their absolute level.
114
The S&P 500 is a stock market index that measures the stock performance of 500 large companies listed on
stock exchanges in the United States. It is one of the most commonly followed equity indices.
EN 26 EN
Figure 1 - Stock price development for 5 big tech companies, 2014-2018
97. Absent any EU intervention, the economic drivers are likely to increase, exacerbating
the observed problems. As an illustration, further development and use of voice
assistants can also be expected to reinforce gatekeeper platforms’ position. Voice-
activated services may create concerns in relation to search for online
products/services/information. The provision of a single answer to a search request
limits the possibility to access alternative results, thus reducing choice and limiting
competition.115
98. Innovation would remain concentrated within a small number of gatekeepers, ultimately
limiting consumers’ possibility to access innovation and data-friendly services provided
by a larger number of platforms than gatekeepers.
99. Regarding fragmentation likely to occur in the near future, legislation to address
imbalances in the relationships between digital platforms with economic power and
their business users is currently in process to be adopted in several Member States (e.g.
Germany, France and Romania). Some Member States (Belgium, Luxemburg and the
Netherlands) are currently mainly supporting action at EU level. However, they would
most likely take legislative action at national level in the absence of action at EU level.
Those legislative projects already in the process of adoption and also those likely to be
tabled in the absence of action taken at EU level demonstrate the likelihood of further
fragmentation.116
115
Competition in the voice-assistant markets will become more and more difficult as the algorithms
underpinning the assistants benefit from the concentration of access to customers’ and users’ accumulated
data. Incumbent platforms benefitting from large volume and variety of datasets will be able to provide more
refined search results through their own assistants. This is an important competitive advantage vis-à-vis
smaller and/or start-up platforms.
116
The likelihood of forthcoming legislative action is further supported by numerous reports of influential
national authorities.
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3. WHY SHOULD THE EU ACT?
3.1. Legal basis
100. Given the intrinsic cross-border nature of the services provided by gatekeeper platforms
and the risk of further regulatory fragmentation regarding functioning of the Single
Market for digital services, in particular in relation to gatekeeper platforms as well as
functioning of digital markets, Article 114 TFEU is the relevant legal basis for this
initiative.
101. As set out above, the current regulatory approaches at Member States level are a
patchwork of existing or proposed regulatory solutions (see detailed description in
Annex 5.4 to the Impact Assessment). This creates legal uncertainty for companies
operating in the internal market, whether at national or on a pan-European basis and
risks creating an appreciable distortion of competition in the internal market and
undermine fundamental freedoms protected by the Treaty.
3.2. Subsidiarity: necessity and added value of EU action
102. The objectives of the intervention cannot be achieved by Member States acting alone, as
the problems are of a cross-border nature, and not limited to single Member States or to
a subset of Member States. The digital markets at stake (including those featuring
gatekeeper platforms) are often of a cross-border nature, as is evidenced by the volume
of cross-border trade, and the still untapped potential for future growth, as illustrated by
the pattern and volume of cross-border trade intermediated by digital platforms. Almost
24% of total online trade in Europe is cross-border. It is estimated that by 2025 online
marketplaces will represent 65% of cross-border online sales in Europe.117
103. Even where these digital markets may be geographically defined as national in scope,
the problems at stake nevertheless remain of a cross-EU nature for three main reasons.
First, the goods and services offered by the market players concerned are typically of a
cross-border nature. Second, digital players typically operate across several Member
States, if not on an EU-wide basis, which is particularly the case for markets such as
online advertising, social media, online retail, cloud services, e-commerce or online
search. This is not to say that services such as online advertising and search do not have
to be tailored to Member States’ languages - however, the overall business strategy will
normally be EU-wide.
104. Accordingly, market failures in digital markets have Union relevance, as they can arise
across borders and affect several Member States, thus not being limited to a specific
national market of a Member State.118
117
See IA support study.
118
The replies of citizens and stakeholders to the Commission’s OPC and the feedback of the NCAs replying to
the Commission’s questionnaire indicate that market failures appear to be widespread across the Union, in
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105. As regards the particular case of unfair business practices, in the absence of an EU
measure, there is a high risk that with national approaches, business users or application
developers seeking to serve the internal market will need to understand a range of
diverse rule-sets and pursue actions in multiple countries across the EU, which is likely
to fragment the Single Market for digital services, create barriers to expansion and
compliance costs, especially for start-ups and SMEs. A lack of harmonised rules in this
space risks complicating the regulatory landscape faced by platforms operating on a
pan-European or indeed global basis. An intervention at the EU level is therefore more
efficient, insofar as it introduces a common set of rules across Member States to address
in a consistent manner the same unfair business practices carried out by large digital
gatekeepers across the Union.
106. Similarly, intervention by individual Member States or NCAs would be ineffective in
tackling gatekeeper related market failures across the Union. Each Member State can
only address market failures in its own territory,119 imposing its own remedies, whereas
market failures may affect the territory of several Member States because of the wider
geographic scope of the relevant market concerned or the cross-border business
activities of the market players concerned. Addressing market failures with a cross-
border dimension at national level could also lead to inconsistencies in the remedies
imposed, with the ensuing risk of fragmenting the Digital Single Market.
107. Therefore, by addressing market failures in respect of key digital markets, the
functioning of the internal market will be improved through clear behavioural rules that
give all stakeholders legal clarity and through an EU-wide intervention framework
allowing to address market failures in a timely and effective manner.
4. OBJECTIVES: WHAT SHOULD BE ACHIEVED?
4.1. General objective
108. The general objective of this initiative is to ensure the proper functioning of the internal
market by promoting effective competition in digital markets, in particular a fair and
contestable online platform environment. This objective feeds into the strategic course
set out in the Communication ‘Shaping Europe’s digital future’ as shown in Section 1.
particular in digital markets of cross-border nature. See Summary of the Stakeholder Consultation on the
New Competition Tool and Summary of the contributions of the NCAs to the impact assessment of the new
competition tool. While respondents indicated that market failures may occur in all industry sectors, several
respondents emphasised that they are particularly prominent in the digital sphere.
119
In addition, Member States may not have the means to adopt appropriate measures to tackle market failures.
Only some NCAs of Member States have instruments that enable them to tackle, to a certain extent, market
failures, such as Greece and Romania. It can be expected that further Member States will adopt such national
tools. Eight NCAs signalled that the competition rules applicable in their respective Member States have
been amended in order to deal with market failures or that there are plans for doing so, namely Belgium,
Bulgaria, Austria, Romania, Lithuania, Iceland, Germany and Greece. See Summary of the contributions of
the NCAs to the impact assessment of the new competition tool.
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4.2. Specific objectives
4.2.1. Address market failures to ensure contestable and competitive digital
markets for increased innovation and consumer choice
109. As explained in Section 2.3.1.1, certain digital markets may not be functioning well and
delivering competitive outcomes due to their particular features, in particular extreme
scale (or scope) economies, and a high degree of vertical integration; direct or indirect
network effects; multi-sidedness; data dependency; switching costs; asymmetric and
limited information, and related biases in consumer behaviour as well as the conduct of
gatekeepers. Therefore, a specific policy objective is to allow identifying and addressing
such market failures in respect of key digital markets to ensure that these markets
remain contestable and competitive. This will contribute to digital markets delivering
low prices, better quality, as well as more choice and innovation to the benefit of EU
consumers.
4.2.2. Address gatekeepers’ unfair conduct
110. As explained in Section 2.3.1.2, gatekeepers’ economic strength, their position of
intermediaries between businesses and consumers together with markets dynamics
fueling gatekeepers’ growth lead to an imbalance in power between gatekeepers and
their business users. This enables gatekeepers to impose unfair commercial conditions
on business users, thus hampering competition on the platform. Such unfair behaviour
does also have a negative impact on (the emergence of) alternative platforms since it
strengthens consumer lock-in thus preventing multi-homing. In light of this, a specific
policy objective is to lay out a clearly-defined set of rules addressing identified
gatekeepers’ unfair behaviour, thereby facilitating more balanced commercial
relationship between gatekeepers and their business users, which would be also
expected to create the right incentives for multi-homing.
4.2.3. Enhance coherence and legal certainty to preserve the internal market
111. The gatekeeper-related problems identified above are currently not (or not effectively)
addressed by Member States in existing regulation. The national legislative initiatives
may partially address problems identified but also lead to increased regulatory
fragmentation. In addition, tackling issues identified through legislation at national level
is suboptimal in light of the cross-border nature of the platform economy. Moreover, the
systemic importance of gatekeepers for the internal market deserve a better coordinated
and more effective intervention across the EU. As explained in Section 2.3.2, national
laws lead to legal fragmentation of the platform space and increase compliance costs for
all market players. Therefore a specific policy objective is to improve coherence and
effectiveness of oversight and enforcement of measures vis-à-vis gatekeepers, thus
contributing to increased legal certainty.
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4.3. How do the objectives link to the problems identified?
112. The figure below shows how different objectives are linked with the problems and the
underlying problem drivers. It also shows that the specific objectives, i.e. address
market failures to ensure contestable and competitive digital markets for increased
innovation and consumer choice, address gatekeepers’ unfair conduct and enhance
coherence and legal certainty in the online platform environment for a preserved
internal market, contribute to achieving the general objective of ensuring the proper
functioning of the internal market (through effective competition in digital markets and
through fair and contestable online platform environment).
Figure 2: Intervention logic tree – problem drivers, problems and objectives
Problem drivers Problems Specific objectives General objective
Economic Unfair
dependence and gatekeeper Address gatekeepers’ Ensure the
imbalanced practices vis-à- unfair conduct proper
bargaining power vis business users functioning of
the internal
Weak Address market failures market by
contestability of, to ensure contestable promoting
Entry barriers to and competition and competitive digital effective
gatekeeper in, platform markets for increased competition in
markets markets, or risk innovation and digital markets,
thereof consumer choice in particular a
fair and
Enhance coherence and contestable
Fragmented Legal uncertainty online platform
legal certainty to
regulation and for market environment
preserve the internal
oversight players
market
5. WHAT ARE THE AVAILABLE POLICY OPTIONS?
113. This section presents the three policy options retained (Section 5.3), the baseline
scenario from which they will be assessed (Section 5.1), and the options that have been
considered but discarded (Section 5.4).
5.1. What is the baseline from which policy options are assessed?
114. Gatekeepers are currently subject to two main sets of laws: first, competition laws
which are applicable across all sectors of the economy, and, second, EU rules of a more
sector-specific scope or with a less punitive nature including, among others, the P2B
regulation, the General Data protection regulation (‘GDPR’) and the EU consumer law.
115. Broadly speaking, the EU competition policy toolbox includes rules on antitrust, merger
control, State aid, and public undertakings and services. Generally, a distinction is made
between competition rules allowing for an intervention ex post or ex ante. Antitrust
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enforcement – under Articles 101 and 102 TFEU and the accompanying implementing
regulations – belongs to the first category, as it aims at detecting anti-competitive
behaviour by companies that has the actual or likely effect of causing distortions of
competition. Merger control and state aid rules aim at preventing anti-competitive
outcomes by assessing ex ante whether a merger between undertakings or the granting
of State aid would negatively affect competition. Intervention under the existing EU
competition rules can therefore only occur if: (i) a company is dominant pursuant to
Article 102 TFEU and abuses this position, (ii) there is an anticompetitive agreement or
concerted practice between two or more undertakings covered by Article 101 TFEU,
(iii) there is a merger/acquisition with EU dimension falling under the EU merger
control rules120 or (iv) a Member State grants aid falling under the EU State aid rules.
116. Under the baseline scenario, the Commission would not propose any changes to the
current competition legal framework. This means that the Commission would continue
to vigorously apply and enforce the existing competition law framework, in particular
Articles 101 and 102 TFEU, against gatekeepers in digital markets, should the
conditions for such intervention be met. Competition enforcement by the Commission
would include making full use of the existing tools within this framework. The ongoing
reviews of existing legislation (e.g. the Block Exemption Regulations for horizontal and
vertical agreements) as well as of the Market Definition Notice would continue as
planned.
117. The majority of the respondents to the OPC indicated in their replies that, while some of
the issues connected to gatekeeper powers could potentially be addressed by
competition law enforcement through procedural and/or organisational changes, there
were restrictions that could not be overcome with competition law enforcement.
Respondents argued that the main challenges with regard to the enforcement of Article
102 TFEU relate to situations where dominance does not exist, and the difficulties with
remedying a conduct found to be anti-competitive in an appropriate and effective
manner, notably once the damage has already occurred. They considered that these
challenges also have a negative effect on the duration of antitrust investigations and the
ability of the existing competition law framework to ensure the contestability of the
markets concerned. Respondents also highlighted the need for a regulatory solution
regarding conduct recurrently showing negative effects on competition, as well as the
need to pursue more exploitative cases and to take non-economic objectives into
account in the competitive assessment.121 A minority of respondents to the OPCs argued
that Articles 101 and 102 TFEU are suitable and sufficiently effective in addressing
120
A merger or acquisition will be of an ‘EU dimension’ where the aggregate turnover of the undertakings
concerned exceeds given thresholds; irrespective of whether or not the undertakings effecting the
concentration have their seat or their principal fields of activity in the EU, provided they have substantial
operations there. Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations
between undertakings (the EC Merger Regulation), OJ L 24, 29.1.2004, pages 1–22, Article 1(2).
121
See Summary of the Stakeholder Consultation on the New Competition Tool and Annex 2.1: Synopsis Report
Open Public Consultation Ex Ante Rules.
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market failures, and were primarily satisfied with the level of enforcement of the
existing competition rules. These respondents pointed towards interim measures, sector
inquiries, merger control and deadlines as potential ways to tackle any shortcomings
that competition law may have. Some respondents also pointed to the ongoing reviews
of competition legislation such as the Market Definition Notice, as well as the rules
applicable to vertical and horizontal agreements as other ways to improve the existing
competition law framework. Some respondents also argued for a broader use of sector
inquiries and a review of the EU merger regulation.122
118. The Commission considers that the current legal framework would not allow it to
address the market failures described in Section 2.3.1 for the following reasons.
119. First, existing EU competition rules cannot conceptually deal with market failures
resulting from the behaviour of gatekeepers in the absence of some preconditions, such
as the existence of an anticompetitive agreement in the case of Article 101 TFEU or of a
dominant position in the case of Article 102 TFEU. In addition, in some instances,
existing EU competition rules may be able to prevent or address a market failure, but
not in the most effective manner. The Commission’s enforcement of Articles 101 and
102 TFEU rules can only take place ex post, i.e. after a competition problem has
emerged. As a recent report by the European Court of Auditors (‘ECA’) also indicates
“particularly in the digital economy, this may be too late to tackle a competition
problem”. The ECA report also flags that “the Commission has currently no tools in its
hands that would allow it to intervene ex ante i.e. before competition problems would
occur”.123 Moreover, – even when using interim measures, explained below –
competition law enforcement requires a detailed economic and legal analysis which,
jointly with the procedural safeguards, bring the duration of the investigations to at least
around two years and usually more than that. In markets characterised by powerful
network effects and economies of scope, competition law interventions may mean not
only delays in the interventions but also that irreparable effects such as tipping may no
longer be reversible.
120. Second, market failures associated to tipping markets cannot be tackled on the basis of
the existing competition rules, notably where market tipping is triggered primarily by
the market structure, and not (or only to a lesser extent) by any specific conduct.
121. Third, the existing EU competition rules do not necessarily capture all unfair business
practices by large digital gatekeepers. This is because these practices do not necessarily
have an anticompetitive object or effect under Article 101 TFEU, or may not be
122
See Summary of the Stakeholder Consultation on the New Competition Tool.
123
European Court of Auditors, Special Report 24/2020: EU audit report: merger control and antitrust
proceedings, 19 November 2020, at paragraph 59.
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captured by Article 102 TFEU, if there is no effect on competition on clearly
identifiable relevant markets.124
122. Fourth, specific competition tools cannot address the gatekeeper related market failures:
Prohibition (fines) and commitments decisions (Articles 7 and 9 of Regulation
1/2003125) are decisions addressed to individual companies for a breach of the EU
competition rules, and not suitable for addressing market failures that are not, or not
exclusively, caused by such breach of the EU competition rules.
Sector inquiries (Article 17 of Regulation 1/2003) are investigations that the
Commission carries out when it suspects possible breaches of the competition rules in
specific sectors of the economy. There is, however, no possibility to impose remedies
following a sector inquiry.
Interim measures (Article 8 of Regulation 1/2003) are a tool allowing the
Commission to intervene in “cases of urgency due to the risk of serious and
irreparable damage to competition” where a ‘prima facie’ infringement of the EU
competition rules can be shown. Interim measures, however, would not allow the
Commission to tackle the problems explained in this Impact Assessment for two main
reasons: first, interim measures can only be imposed where a prima facie
infringement of Articles 101 or 102 TFEU can be shown, and second, interim
measures are founded on a very specific test requiring the finding of ‘urgency’ as well
as ‘serious and irreparable damage’. Interim measures have only been used twice in
the last nineteen years.
123. Fifth, the ongoing reviews of existing legislation (e.g. Block Exemption Regulations for
horizontal and vertical agreements) as well as of the Market Definition Notice will also
not tackle or address the problem drivers:
The ongoing reviews of Block Exemption Regulations cannot tackle or address the
problem drivers. The Block Exemption Regulations pursue a different objective than
the DMA. They are by their very nature not aimed at addressing specific competition
issues and/or market failures, but at block exempting agreements that are on balance
efficiency enhancing, thus helping companies to self-assess compliance of their
agreements with Article 101 TFEU.
124
While certain forms of unfair business practices can be abusive under Article 102(a) TFEU, finding such an
abuse not only requires a dominant undertaking but generally also an effect on competition. If an undertaking
imposes on its trading partners or obtains from them terms and conditions that are unjustified,
disproportionate or without consideration but without affecting competition on the market, competition law
generally does not apply (See recital 9 of Regulation (EC) No 1/2003. Some national competition laws also
prohibit the abuse of economic dependence). Such behaviour resulting from imbalances in bargaining power
that do not affect competition is usually the domain of unfair trading laws.
125
Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition
laid down in Articles 81 and 82 of the Treaty, OJ L 001 4.1.2003, page 1.
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The ongoing evaluation of the Market Definition Notice cannot, by its very nature,
tackle or address the problem drivers as it is a soft law document to provide guidance
on the definition on the relevant market and on the relevant parameters to be taken
into account for it when using Articles 101 and 102 TFEU or the EU Merger
Regulation (Regulation (EC) 139/2004). The Market Definition Notice cannot
therefore address competition issues and/or market failures in digital markets.
124. Some respondents to the OPC – across different stakeholder categories – considered that
there was no need for the DMA and that the Commission should rather reassess the
situation after the P2B Regulation had shown its effects. A minority of respondents,
mainly several large platforms and their trade associations, and some research institutes
and academics, disagreed with the need for the proposal of new ex ante rules as they
consider that the risks posed by gatekeepers can be addressed with existing regulation.
Some platforms, trade associations and national authorities emphasised the need to
focus the regulatory attention towards specific actions and perceived market failures. 126
125. Under the baseline scenario, the Commission would continue to apply and enforce the
existing more sector-specific EU rules including, among others, the P2B regulation, the
GDPR and EU consumer law. The Commission considers however that the current
regulations will also not tackle or address the problem drivers described in Section 2.3
for the following reasons:
Regulation (EU) 2019/1150 on fairness and transparency for business users of online
intermediation services (the ‘P2B Regulation’) entered into force on 12 July 2020. It
is the first EU-level legislation specifically targeted at commercial issues engaged in
by online platforms, or online intermediation services, as well as by online search
engines. It applies to more than 10 000 platforms in Europe and reflects the fact that
a certain dependency of professionals, or business users, is inherent in any successful
online platform. This feature of online platforms means that the fairness,
transparency and redress rights and obligations that the P2B Regulation provides are
necessarily high-level and principles-based. Since this legal framework establishes a
general ‘safety net’ for all professionals active in the online platform economy, it
does not address issues deriving from the concentration of economic power and
unfair business practices of a limited number of very large gatekeeper platforms.
EU data protection legislation127 specifies the fundamental right to the protection of
personal data. It therefore covers business-to-citizen and government-to-citizen
interactions, rather than commercial and competition-related issues. Article 20 of the
126
See Annex 2.1: Synopsis Report Open Public Consultation Ex Ante Rules.
127
Regulation (EU) 2016/679 on the protection of natural persons with regard to the processing of personal data
and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection
Regulation), OJ/L 119/1 (2016).
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GDPR provides a limited right to data portability128, though it is broadly considered
that there are still many implementation challenges and that this right is at present
insufficient to significantly lower entry barriers and to facilitate the contestability of
markets.129
EU consumer law does address a range of potentially harmful practices, at EU level
notably through the Unfair Commercial Practices Directive (‘UCPD’) 130 and the
Unfair Contract Terms Directive (UCTD).131 While these directives define a number
of relevant concepts, such as 'professional diligence' and 'good faith', their scope is
explicitly limited to business-to-consumer transactions. Conversely, the Misleading
and Comparative Advertising Directive (MCAD)132 covers certain Business to
Business (‘B2B’) relations. However, the provisions set forth in the MCAD are
limited to a narrow subset of advertising practices, which are not specific to online
platforms or digital markets, and do not deal with the unfair business practices
carried out by large gatekeeper platforms.
126. Finally, in the absence of further EU legislation, and subject to enforcement of the
existing legal framework, the legal fragmentation is likely to further increase as
Member States are likely to continue to adopt horizontal or sector specific national
measures against gatekeepers, as shown in Annex 5.4 to the Impact Assessment.
5.2. What are the main parameters that determine the range of available policy
options?
127. The problems and drivers map on to a set of parameters that characterise the range of
available policy options. These parameters include (a) the scope of the intervention; (b)
the range of unfair practices at stake; (c) the speed of the instrument and the degree of
flexibility offered; and (d) the investigative and enforcement framework available and
appropriate. Before presenting the options, this section explains these main parameters
and highlights some of the inherent trade-offs.
5.2.1. Scope: core platform services, gatekeepers, thresholds
128. As highlighted in Section 2.1, the scope of the intervention is characterised by two
particular concepts – the nature of the ‘core platform services’ where problems arise,
and the notion of ‘gatekeepers’, i.e. companies that offer one or more core platform
128
While some voluntary efforts for data portability by some platforms have been underway since 2017 in the
‘Data Transfer Project’, the project described itself still as ‘early stage’ and activity peaked in 2018 on the
project. It should not be underestimated that this ‘Data Transfer Project’ is at present limited to only several
large online platforms, which means that actual or potential competitors do not (yet) benefit from this project.
129
See for example O. de Hert, V. Papakonstantinou & G. Malgieri (2018), The right to data portability in the
GDPR: Towards user-centric interoperability of digital services, Computer Law & Security Review, volume
34(2), pages 193-203.
130
https://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1601555056590&uri=CELEX:32005L0029.
131
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A31993L0013.
132
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32006L0114.
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services. Core Platform Services and Gatekeepers can be identified robustly by a series
of criteria, as set out below.
Identification of core platform services
The enforcement experience under EU competition rules both at the EU and national
level, numerous expert reports and studies – including the study supporting the present
Impact Assessment – and the results of the OPC show that there are number of services
that have the following features:
(a) highly concentrated multi-sided platform services, where usually one or very
few large digital platforms set the commercial conditions with considerable
autonomy from their competitors, customers or consumers;
(b) few large digital platforms act as gateways for business users to reach their
customers and vice-versa; and
(c) gatekeeper power of these large digital platforms is often misused by means of
unfair behaviour vis-à-vis economically dependent business users and
customers.
While these concepts are broad, the work supporting this Impact Assessment shows
that unfair practices by gatekeepers are more prominent in some platform services than
in others133; in identifying the core platform services to which the regulation of the
DMA should apply, the Commission was guided by the following principles:
(a) Clearly defined obligations should apply only to those services and gatekeepers
where the identified problems are most prominent and egregious;
(b) To ensure the highest level of legal certainty for gatekeepers and other market
participants alike, it is important to identify services as clearly as possible in the
rules themselves.
The Commission identified several services, which meet these criteria and where
absent regulatory intervention the identified problems in Section 2 could effectively
remain un-addressed.134 Such core platform services are:
133
Sources supporting the assessment include the existing enforcement experience under competition rules, both
within the EU and beyond, and other areas of law (e.g. protection of personal data); the numerous expert
studies and reports both within the EU as well as internationally; complaints from business users and
customers of gatekeepers as well as several on-going regulatory (e.g. Australia; Japan) or enforcement
interventions (e.g. US); the reports and support studies for the Observatory on the Online Platform Economy
drawn up by the independent Observatory Expert Group and external contractors respectively; the IA support
study, which provided both quantitative (e.g. data analysis; case studies) and qualitative input; and the broad
consultation across stakeholder groups.
134
The activity undertaken by the firm has been also considered in a recent advice by the CMA on the Digital
Markets Unit. CMA is recommending Digital Markets Taskforce (‘DMU’) initially prioritising digital firms
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(a) online intermediation services (including marketplaces and app stores),
(b) online search engines,
(c) operating systems,
(d) cloud computing services;
(e) video sharing platform services,
(f) number-independent interpersonal electronic communication services,
(g) social networking services and
(h) advertising services, including advertising networks, advertising exchanges
and any other advertising intermediation services, provided by providers of one
or more of the above services.135
The mere fact that a given service is identified as a core platform service does not
suggest however that any provider of such a service will automatically be considered as
a gatekeeper. Determination of these services as core platform services just means that
they satisfy the criteria identified above and that therefore any provider of these
services, if meeting the conditions for being designated as a gatekeeper would have to
comply with the relevant regulatory obligations as set out in the different policy
options.
Other categories of digital services were also considered for the scope of ‘core platform
services’, such as streaming services or B2B industrial platforms. However, these were
excluded from the scope of such core platform services at this point either because (a)
they lack the multi-sided market characteristics (e.g. for video streaming or video-on-
demand services136); or (b) they do not exhibit at this point the strong asymmetry in
bargaining power that results from the presence of a service provider acting as gateway
between consumers and business (e.g. for industrial B2B platforms137).
active in particular activities (e.g. online marketplaces, app stores, social networks, web browsers, online
search engines, operating systems and cloud computing services).
135
The IA support study contains an analysis of business areas including mobile operating systems, app stores,
desktop operating systems, search, social media, advertising (incl. search, display & video), e-commerce and
cloud services. See also Annex 5.6 to the Impact Assessment.
136
Video streaming or video-on-demand services are currently characterised by less pronounced network effects
(given the high costs of producing the distributed content) and switching costs are also not particularly high
as subscriptions can be easily cancelled. In addition, there is no evidence of the presence of the problems
described in Section 2.1 in video streaming or video-on-demand services.
137
In industrial B2B platforms the clients tend to be big, sophisticated companies which are not easily swayed by
the platforms choice of ranking. They do not exhibit a similar dependency of the provider-side of the market
at present. Switching costs are significantly lower: if products or services are delisted, corporate clients can
insist that they be reinstated. Corporate clients have more leverage over platform decision. Support study to
the Observatory for the Online Platform Economy, Developments concerning B2B platforms and emerging
issues.
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129. The table below summarises the main features and practices in relation to the core
platform services retained. The details about the evidence supporting those elements are
provided in Sections 2.3.1 and 5.2.2. There is no consistent publicly available data about
the mark-ups in each of these core platform services. In addition, some of these services
do not generate direct revenue as prices are set at zero (e.g. online search services,
social network services, number-independent messaging services), but are monetised
via advertising services on the other side of the platform. Nevertheless, the players
active on those services are some of the most profitable companies in the world (see
Section 6.6.1).
130. There is also not much research developed about the impact of concentration in the
innovation efforts in relation to these services. According to the Stigler report
“Disruptive innovation in markets that are characterized by high concentration levels
and network effects is likely to be reduced compared to a competitive market. […]
Entrepreneurs may expect a low payoff to developing a free-standing product because
of entry barriers and exclusionary conduct by the incumbent platform.”138 This report
further concludes that “The incipient but growing technical research supports a concern
for the impact of big tech on innovation” based on some studies on the innovation in
social platforms, internet software (e.g. operating systems and other related apps) and
internet retail.
Table 1: List of core platform services
Core platform Main features and practices
service
Online Main features: online marketplaces and app stores are examples of core platform services
intermediation that benefit from strong network effects given that the higher the number of users on one
service (such as side (e.g. buyers) the more valuable is the platform for the other side (e.g. for sellers or app
for example developers) and vice-versa. These intermediation platforms also benefit from data driven
marketplaces or advantages (e.g. information about the preference of consumers) and the presence of high
app stores) switching costs (e.g. resulting from consumer bias or from the fact that they are part of an
integrated offer), resulting in many cases in consumers single-homing. Often these services
are vertically integrated with the downstream services that they distribute (e.g. app stores
and applications). These features result in very concentrated structures. For instance, app
stores (e.g. Google Play) generally enjoy quasi monopoly positions in their respective
markets.139
Online intermediation services have been the subject of several studies and reports that
describe the market power of the main platforms offering these services and their weak
contestability and predominance of unfair practices. See for instance the study by the Dutch
NCA on app stores140, the US House of Representatives Majority Staff report (pages 84-87,
93-100, 211-223, 253-302 and 333-372)141, the Furman report (paragraphs 1.54-1.59, 1.145,
1.174, and 2.113)142 and the Stigler Center report (pages 11, 15 and 51) 143. See also Support
138
Stigler Center report, Committee for the Study of Digital Platforms Market Structure and Antitrust
Subcommittee Report, July 2019.
139
See for instance, Case AT.40099 Google Android, Commission Decision of 18 July 2018, section 9.4.
140
ACM, Market study into mobile app stores, 11 April 2019.
141
US House of Representatives Majority Staff Report, Investigation of Competition in Digital Markets,
October 2020.
142
Furman report, Unlocking digital competition, Report of the Digital Competition Expert Panel, March 2019.
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Core platform Main features and practices
service
Study to the Observatory for the Online Platform Economy: Report on Business user and
third party access to data,144 Report on Platform data access and secondary data sources,145
Report on Differentiated treatment146.
Practices: Online intermediation services involve many different types of services, and thus
the list of practices by gatekeepers of these platforms is also diversified.
In the particular case of online marketplaces, the types of practices often observed are:
An online marketplace benefiting from its dual role and thus having the incentives
to give more prominence to its own products or services as compared to those
offered by other sellers directly competing with it. This reduces the possibility for
customers to choose third party products or services.
An online marketplace restricting access to data generated in the course of the use
of its platform by third party sellers and their customers, thus gaining an unfair
advantage vis-à-vis those sellers.
An online marketplace benefiting from its dual role and ability to evaluate product,
sales and customer data generated from the sales of products and services provided
by third party sellers on its marketplace.
In the case of app stores, the types of practices often observed are:
An app store requiring sign-in with its provider’s email service thus being able to
combine the data from several sources and foreclose other email service providers.
An app store, which markets several of its own popular apps and at the same time
maintains a marketplace (dual role), self-preferencing by applying more favourable
policies for its own apps and selectively drafting rules favouring its own apps. This
reduces the possibility for customers to choose third party apps.
An app store not allowing its business users to advertise alternative subscription
options to consumers, thus preventing its customers from benefitting from such an
alternative offer.
An app store app limiting the information that third-party app providers receive
about their subscribers, limiting their ability to make innovative offers to those
subscribers.
An app store charging unfair conditions to distribute third party applications.
An app store preventing the un-installation of its own pre-installed apps or
restricting the installation of third party apps (e.g. another app store), thus
foreclosing access to an important distribution channel.
An app store reserving for its sister-services or for some providers with whom it
has partnership agreements certain functionalities, thus preventing consumer
switching to a different internet access provider.
More in general, other practices are also observed:
An online intermediation service preventing sellers from offering the same
products or services (e.g. holiday package, hotel, publishers’ content, applications)
to customers through another channel (e.g. direct channel or a third party
distribution channel) at prices or conditions that are different from those offered
through that intermediation service.
An online intermediation service preventing sellers from promoting their products
and services (publishers’ content) and concluding contracts with customers
143
Stigler Center report, Committee for the Study of Digital Platforms Market Structure and Antitrust
Subcommittee Report, July 2019.
144
https://platformobservatory.eu/app/uploads/2020/09/Analytical-Paper-5-Business-user-and-third-party-
access-to-data_final.pdf.
145
https://platformobservatory.eu/app/uploads/2020/09/Analytical-paper-1-Platform-data-access-and-secondary-
data-sources_final.pdf.
146
https://platformobservatory.eu/app/uploads/2020/09/Analytical-Paper-2-Differentiated-treatment_final.pdf.
EN 40 EN
Core platform Main features and practices
service
acquired on that platform outside the platform.
Online search Main features: These are two sided platforms that, on the on hand, allow users to perform
services searches of ‘all websites’147 for free and, on the other hand, provide inventory for
advertisers. They are also an important channel of user traffic for businesses. Search engines
benefit from strong economies of scale (associated to a high fixed cost and minimal
marginal costs) and network effects (the higher the number of users the more valuable is the
platform for advertisers) as well as a data driven advantage (in particular in relation to tail
queries). A provider of search engine may also benefit from consumer bias when it takes
advantage from the pre-installation in certain devices or default positions in certain
browsers. These features result in supply of online search services being very concentrated,
with one platform having a share of more than 90% in Europe in 2019. 148
Online search services have been the subject of several studies and reports that describe the
market power of the main platform offering these services and their weak contestability and
predominance of unfair practices. See for instance the CMA report on advertising (section
3)149, the US House of Representatives Majority Staff report (pages 77-84 and 177-206)150,
the Furman report (paragraphs 1.77 and 2.25)151, Stigler Center report (page 11)152 and
ACCC report (section 2.4)153.
Practices: The most usual the types of practices observed in the field of online search
services are:
A provider of online search engines preferencing its own vertically integrated
services in its search engine results, e.g. shopping or travel services featured on top
of the search results page.
A provider of online search services applying terms and conditions which make the
use of its services conditional on the possibility to collect and combine user data
from multiple sources.
A provider of online search service making use of its a data advantage over
competitors to raise barriers to entry as it has access to a vast amount of query data
especially on long tail queries
See also practices related to advertising and operating systems.
Social network Main features: These services represent an important gateway not only for consumers but
services also for business users, notably advertisers, to reach consumers. Social network services
benefit from strong network effects and data driven advantages given that a greater number
of users increases the value of the social network for each user and the ability to improve
services and offer personalised advertising. User prices are almost always set at zero. They
are also characterised by high switching costs as the user of a social network would not
easily switch to a new network since all his/her friends are on the incumbent network. These
features result in the supply of social network services being very concentrated, with one
platform having a share of close to 80% in Europe in 2019.154
Social network services have been the subject of several studies and reports that describe the
market power of the main platform offering these services and their weak contestability and
147
As defined in Directive (EU) 2016/1148.
148
Source: Statcounter.
149
CMA report on Online platforms and digital advertising.
150
US House of Representatives Majority Staff Report, Investigation of Competition in Digital Markets,
October 2020.
151
Furman report, Unlocking digital competition, Report of the Digital Competition Expert Panel, March 2019.
152
Stigler Center report, Committee for the Study of Digital Platforms Market Structure and Antitrust
Subcommittee Report, July 2019.
153
ACCC report, Digital Platforms Inquiry, Final Report, June 2019.
154
Source: Statcounter.
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Core platform Main features and practices
service
predominance of unfair practices. See for instance the CMA report on advertising (section
3)155, the US House of Representatives Majority Staff report (pages 88-93 and 134-170)156
the Furman report (paragraph 1.80)157, Stigler Center report (pages 11, 44 and 50-51)158 and
ACCC report (section 2.3)159.
Practices: The most usual the types of practices observed in the field of social network
services are:
A provider of social network services ranking its own services more prominently in
users´ timelines than those of third-party, thus foreclosing distribution of rival
services.
A provider of social network service applying terms and conditions which make the
use of its services conditional on the possibility to collect and combine user data
from multiple sources.
See also practices related to advertising.
Video sharing Main features: These services benefit from economies of scale and strong network effects,
platform services and can become the default platform to consume and share video content. In this case, it is
almost impossible for video content producers not to be present on this video sharing
platform. Likewise, its enormous audience facilitates the ability for advertisers to reach a
large audience even with very specific targeting parameters. A video sharing platform has
access to a rich set of (first party) data about its consumers, data that it can re-use to improve
its own products, including in other areas. These features result in the supply of these
services being very concentrated, with two main platforms being used by consumers.160
Video sharing platform services have been the subject of several studies and reports that
describe the market power of the main platform offering these services and their weak
contestability and predominance of unfair practices. See for instance the CMA report on
advertising (section 3)161, the US House of Representatives Majority Staff report (pages 88-
93,190 and 211)162 and the Furman report (paragraph 5.5)163.
Practices: In the case of video sharing platform services, the types of practices often
observed are:
A provider video sharing platform restricting the access to their rich set of data to
its competitors, thus raising barriers to entry and expansion to those competitors
A provider of video sharing platform restricting the access to its must-have online
inventory, access which is of particular importance to compete for the provision of
the so-called ad tech products, and providing exclusive access to its own ad tech
products, thereby favouring its own products to the detriment of competitors.
A provider of video sharing platform refusing access to detailed performance data
to video content providers that prevents them from improving their offerings.
See also practices related to advertising.
155
CMA report on Online platforms and digital advertising.
156
US House of Representatives Majority Staff Report, Investigation of Competition in Digital Markets,
October 2020.
157
Furman report, Unlocking digital competition, Report of the Digital Competition Expert Panel, March 2019.
158
Stigler Center report, Committee for the Study of Digital Platforms Market Structure and Antitrust
Subcommittee Report, July 2019.
159
ACCC report, Digital Platforms Inquiry, Final Report, June 2019.
160
See CMA report on Online platforms and digital advertising, page 119-123.
161
CMA report on Online platforms and digital advertising.
162
US House of Representatives Majority Staff Report, Investigation of Competition in Digital Markets,
October 2020.
163
Furman report, Unlocking digital competition, Report of the Digital Competition Expert Panel, March 2019.
EN 42 EN
Core platform Main features and practices
service
Number- Main features: These services are characterised by strong network effects resulting in
independent ‘bimodal distributions’ of reach, meaning that they achieve an all-or-nothing reach, with
messaging market shares at either above 90% or below 10% and a high incidence of tipping. 164 They
services also benefit from strong economies of scale (associated to a high fixed cost and minimal
marginal costs) and consumer lock-in given the high switching costs if all his/her friends
stay in the incumbent network and are thus not reachable. Often these services are integrated
with other core platform services (e.g. social network services).
Number-independent messaging services have been the subject of several studies and reports
in the context of the assessment of social network services (see above). See also and the
Furman report (paragraphs 1.80 and 1.87)165 and Stigler Center report (pages 44 and 50-
51)166.
Practices: In the case of number-independent messaging services, the types of practices
often observed are:
Providers of number-independent messaging services imposing on users the
possibility to combine the rich set of (first party) data about them with other data
sources in order to build a super profile.
See also practices related to advertising.
Operating Main features: Operating systems are very important for the visibility and distribution of
systems most applications. Operating system are characterised by economies of scale (associated to
high development costs) and high switching costs (given that a user often has to buy new
hardware to change the operating system provider and is generally has a behavioural bias for
a given operating system). They also benefit from network effects given that applications
need to be coded for a given operating system and the large number of users the more
attractive is a platform for developers and vice-versa. These features result in the supply of
operating system being very concentrated, with three platforms having a share of close to
90% in Europe in 2019.167 Each of these operating systems are particularly strong in specific
platforms (e.g. mobile or desktop).
Operating systems have been the subject of several studies and reports that describe the
market power of the main platforms offering these services and their weak contestability and
predominance of unfair practices. See for instance the US House of Representatives
Majority Staff report (pages 100-107, 211-223 and 333-372)168, the Furman report (pages 29
and 47-48)169 and Stigler Center report (pages 11 and 46-47)170.
Practices: The most usual the types of practices observed in the field of operating systems
are:
A provider of operating systems giving differentiated conditions of access to its
operating systems or device features to both business users and third-party
providers of ancillary platform services (e.g. payment, user ID, fulfilment) - as
compared to those used by the its own services or ancillary platform services. This
prevents third parties from competing in a level playing field.
A provider imposing a lock-in strategy where the user is required to sign up/register
164
See for instance data at worldwide level (including platforms mostly active in China) in Statista.
165
Furman report, Unlocking digital competition, Report of the Digital Competition Expert Panel, March 2019.
166
Stigler Center report, Committee for the Study of Digital Platforms Market Structure and Antitrust
Subcommittee Report, July 2019.
167
Source: Statcounter.
168
US House of Representatives Majority Staff Report, Investigation of Competition in Digital Markets,
October 2020.
169
Furman report, Unlocking digital competition, Report of the Digital Competition Expert Panel, March 2019.
170
Stigler Center report, Committee for the Study of Digital Platforms Market Structure and Antitrust
Subcommittee Report, July 2019.
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Core platform Main features and practices
service
with an email service of that provider when using the functionalities of the
operating system.
A provider imposing a lock-in strategy requiring the use of its own ancillary
services (browsers, search engines…) or preventing its un-installation.
A provider limiting the access to or the interoperability of its operating system and
respective functionalities (e.g. NFC) with the services offered by business users,
reserving those functionalities to their own services.
Cloud services Main features: These services provide infrastructure to support and enable functionality in
services offered by others and at the same time offer a range of products and services across
multiple sectors, and mediate many areas of society. Cloud services can reduce barriers to
entry for start-ups by providing them with access to technical capabilities that might
otherwise be beyond their reach. They benefit from strong economies of scale (associated to
a high fixed cost and minimal marginal costs) and high switching costs (associated to the
integration of business users in the cloud). The vertical integration of the large cloud
services providers and the business model they deploy has contributed to further
concentration on the market, where it is very difficult for other less-integrated players, or
market actors operating in just one market segment to compete. 171 Consequently, these start-
ups are likely to be completely reliant on large online platform companies.
See Stigler Center report (page 51)172.
Practices: The most usual the types of practices observed in the field of cloud services are:
A provider of cloud services imposing obstacles to interoperability and data
portability as well as strengthening lock-in of cloud service providers’ customers,
due to high switching costs.
A provider of cloud services bundling several different services, including services
where they are a gatekeeper.
A provider of cloud services copying and using a software that other cloud
providers have developed and used.
Online Main features: These services are often provided in connection with some of the services
advertising described above, namely online search services, social network services, online
services intermediation services, video sharing services, etc. They correspond to the side of the
platform that is monetised. The intermediation of advertising services, even when not
directly related to the services above, also benefits from those as the data collected is of
extreme importance for the provision of these services. These services are characterised by
data driven advantages as well as network effects. These features result in the supply of
online advertising services being very concentrated. 173
Online search services have been the subject of several studies and reports that describe the
market power of the main platform offering these services and their weak contestability and
predominance of unfair practices. See for instance the CMA report on advertising (section
5)174, the US House of Representatives Majority Staff report (pages 129-133, 170-174 and
206-211)175, the Furman report (pages 27-28 and 112-117)176, Stigler Center report (pages
22, 25, 38-41 and 50)177 and ACCC report (section 3)178. See also Support Study to the
171
See for instance shares reported by Statista at a worldwide level.
172
Stigler Center report, Committee for the Study of Digital Platforms Market Structure and Antitrust
Subcommittee Report, July 2019.
173
See CMA report on Online platforms and digital advertising, section 5.
174
CMA report on Online platforms and digital advertising.
175
US House of Representatives Majority Staff Report, Investigation of Competition in Digital Markets,
October 2020.
176
Furman report, Unlocking digital competition, Report of the Digital Competition Expert Panel, March 2019.
177
Stigler Center report, Committee for the Study of Digital Platforms Market Structure and Antitrust
Subcommittee Report, July 2019.
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Core platform Main features and practices
service
Observatory for the Online Platform Economy, Report on Transparency in online
advertising.179
Practices: The most usual the types of practices observed in the field of online advertising
services are:
The presence of big platforms on both the supply and demand side of the ad supply
chain gives rise to conflicts of interest and a possible preferential treatment of one’s
own integrated services.
On ‘walled gardens’, major platforms collect multiple datasets from logged-in users
and partner services which they use for better targeting and attribution
measurement, but do not share user-level data with advertisers, only committing to
placing the ad in front of the targeted demographics. As there is currently no
uniform standard of metric for online ad effectiveness, advertisers cannot compare
the effectiveness of their ad spend across several walled gardens and the open web.
This restricts the ability of advertisers and publishers to make informed decisions.
A provider of advertising intermediation services refusing to provide information
about the price paid for each of the intermediation services used to deliver the ad to
both advertisers and publishers, thus preventing them from comparing with
alternative offers.
A provider of advertising services (that could also offer on the other side of the
platform search services, social network services, etc) using certain data that it
received from business users for other unrelated purposes, including competing
against those business users in other markets.
131. As mentioned above, the identification of core platform services is relevant for both the
designation procedure for gatekeepers, and the identification of those services provided
by the designated gatekeeper. The evidence gathered during the OPCs indicated two
guiding principles.
132. First, there is a wide agreement that gatekeepers exist and that their role and practices
are increasingly determining the conditions of market participation on the consumer
side as well as conditions of individual commercial relationships they engage in on the
business user side. In circumstances where such practices are unfair, this may
undermine balanced commercial relationships and the contestability of platform
markets.
133. Second, while there is no consensus as to a single means to identify gatekeepers in the
digital sector, to the extent that different sources refer to qualitative criteria as a means
of identifying gatekeepers there is relatively broad consensus that such criteria need to
take into account factors such as access to data, network effects and ability of these
providers to leverage their economic power to multiple services. Similar qualitative
criteria (e.g. access to data, financial resources, level of vertical integration) are also
promoted by a recent initiative on the update of the German competition law. The OPC
provided mixed views on this, with a majority of stakeholders calling for a combination
178
ACCC report, Digital Platforms Inquiry, Final Report, June 2019.
179
https://platformobservatory.eu/research/.
EN 45 EN
of quantitative and qualitative criteria to identify gatekeepers and only very small
number of respondents promoting use of qualitative criteria only.180
Conditions for the designation of gatekeepers
A gatekeeper within the meaning of the DMA is a provider of core platform services
which:
(a) has a significant impact on the internal market;
(b) operates a core platform service which serves as an important gateway for
business users to end users; and
(c) enjoys an entrenched and durable position in its operations or is expected to
enjoy such a position in the near future.181
The analysis underpinning the selection of these criteria for the identification of
gatekeepers under the present Impact Assessment is based on the following
principles:
(a) Conditions should well reflect the identified problems and be supported by the
available evidence base;
(b) Conditions should allow for an objective determination of a gatekeeper status;
(c) Conditions should guarantee a high level of legal certainty for gatekeepers and
other market participants alike; and
(d) Conditions should be easily identified and measurable.
134. This designation of gatekeepers in this way leads to another important design parameter,
namely on the choice of thresholds. Stakeholders generally support a mix of
quantitative and qualitative parameters (see paragraph 133).
135. Suitable quantitative thresholds can be constructed from indicators for size (such as
turnover and presence in various Member States) and for economic dependency (such
as the number of business users and end users served on the platform). The weak inter-
platform competition that results from such gatekeepers’ services having become
entrenched would be captured by measures of persistence (such as the number of core
platform services offered by the same group of undertakings, and the number of years
this group has held its position). Depending on the precise indicators used and the level
180
See Annex 2.1: Synopsis Report Open Public Consultation Ex Ante Rules.
181
Very similar criteria have been considered by the CMA in its recent Advice on the DMU (see in particular
point 4.19 of the Advice; available here:
https://assets.publishing.service.gov.uk/media/5fce7567e90e07562f98286c/Digital_Taskforce_-_Advice_--
.pdf).
EN 46 EN
at which these are set, the addressable population can obviously be larger or smaller.
Importantly, the combination of these quantitative parameters would in all cases only
include a very limited number of companies and would exclude a very large set of
providers of digital services. It would therefore not cause any undue lack of legal
certainty, and the option of using higher or lower thresholds is a legitimate political
choice, presenting some of the trade-offs described in this section.
136. Subject to the overarching criteria of size, dependency and persistence, a wide range of
different indicators have also been investigated during the Impact Assessment.182
137. A reliable set of specific indicators has been used to identify the effects of fixing the
thresholds at higher or lower levels in terms of the number and identity of the
undertakings that could potentially be brought within the scope of the different options.
This exercise confirmed the accuracy of the methodology.
138. Alternative methods for designating gatekeepers were analysed but discarded, notably
those that are directly inspired by notions of ‘significant market power’ as it is used
for example in the regulatory framework for telecommunications services. While such
models can serve as inspiration, and do capture notions of concentration, they are
difficult to transpose directly as the diversity of platform business models is poorly
captured by such a market-based analysis, and the relevant bottleneck power at stake in
this Impact Assessment also derives from the tendency of gatekeeper companies to
diversity.
139. The below paragraph specifies the quantitative parameters used to identify gatekeeper
companies and their core platform services.
140. For this exercise, the following were selected as proxies for the main three criteria:
141. For Size & internal market impact, the proxy selected is the EEA annual turnover of
the group ( > EUR X billion) or the average market capitalisation183 or the equivalent
fair market value of the group ( > EUR X billion) in combination with its presence in
more than three EU countries.
142. A significant turnover in the Union or the market capitalisation and the provision of a
core platform service in at least three Member States is a good indicator that the
provider of that service has a significant impact on the internal market. In other words, a
provider of a core platform service should be deemed to have a significant impact on the
internal market where it provides a core platform service in at least three Member States
and where either its group turnover realised in the Union is equal to or exceeds a
182
See IA support study, indicator and cluster analysis.
183
Market capitalisation is the aggregate valuation of the company based on its current share price and the total
number of outstanding stocks. It is calculated by multiplying the current market price of the company's share
with the total outstanding shares of the company and reflects the relatively significant potential to monetise
these users in the near future.
EN 47 EN
specific, high threshold or the market capitalisation of the group is equal to or exceeds a
certain high absolute value. Both parameters are reflective of gatekeepers’ ability to
monetise their users and of their financial capacity, including the ability to leverage
access to financial markets to reinforce their already strong position.
143. For Dependency: the proxy selected concerns the number of users ( > X million EU
users) in combination with the number of business users ( > X EU business users)
across all core platforms services, as this is a proxy for the bottleneck power that
characterises the problem.
144. A very high number of business users that depend on a core platform service to reach
end users and a very high number of monthly active end users are indicative of the
provider’s role as an important gateway.184
145. For Persistence, the proxy used relates to the number of large core platform services
showing dependency, as well as the number of recent years during which the size and
dependency criteria have been met.
146. Likelihood of an entrenched and durable position or the foreseeability of achieving such
a position in future is very high where the contestability of the gatekeeper’s position is
limited. This is likely to be the case where that provider has provided a core platform
service in at least three Member States to a very high number of business users and end
users during at least three years.
147. Other proxies, such as criteria estimating the degree of multi-homing or the rate of
innovative entry have been suggested in the literature, but were discarded for the
purpose of finding objective quantitative criteria that also have a relationship with the
impact of the gatekeepers in the EU.
148. The above quantitative parameters could be combined in different ways with a view to
providing consistent thresholds.185 Two meaningful thresholds would be the following:
Low threshold: Fixing the EEA annual group turnover threshold at the level of
EUR 6.5-7.5 billion and the required number of core platform services showing
dependencies at 30-45 million end users and 10 000 business users during a
number of years at a single one. This threshold would result in 10 to 15 providers
of core platform services.
184
The respective relevant levels should be set at a level reflecting a substantive percentage of the entire Union
population when it comes to end users and of the entire population of businesses using platforms to
determine the threshold for business users.
185
Very similar parameters pointing to digital firms with the likely Strategic Market Status (‘SMS’) have
recently been considered and proposed by the CMA in its Advice of the DMU. For example, CMA proposes
the use of the firm’s revenue as a criteria for the focus of the DMU’s enforcement activities, which should be
on firms with annual UK revenue in excess of GBP 1 billion, and particularly those which also have annual
global revenue in excess of GBP 25 billion.
EN 48 EN
High threshold: Fixing the threshold at an EEA annual group turnover of EUR 5-6
billion but also including a minimum of two core platform services, with at least
one showing dependencies at 30-45 million end users and 10 000 business users
would reduce the group of providers captured to an estimated number of five to
seven companies.
149. Other possible combinations of parameters (e.g. market capitalisation, required
turnover, number of business users or end users, number of core platform services;
EBITDA) could be used for defining plausible quantitative thresholds capturing the type
of gatekeepers targeted by the initiative under this assessment, i.e. gatekeepers engaging
in the problematic practices described in Section 5.2.2. The above two combinations of
parameters for a low and a high threshold have been selected as representative examples
for the purpose of providing clarity in assessing impacts and trade-offs while comparing
options, without prejudging other plausible use of parameters and their combinations.
Small variations around those numbers do not produce significant changes in the
number of possible gatekeepers. At the same time, some combinations have been
considered but judged inappropriate. For instance, fixing the EEA annual group
turnover at EUR 1 billion and the required number of core platform services showing a
dependency (during a number of years) at a single one would mean that more than 25
providers of core platform services would be captured.186 It was concluded that such
thresholds would give rise to many false positives.
150. An alternative to quantitative criteria is to use qualitative criteria. Such a designation
based on qualitative criteria would require a market investigation, which would assess
whether the provider of core platform services has a significant impact on the internal
market, operates a core platform service which serves as an important gateway for
business users to customers, and enjoys (or is expected to enjoy) an entrenched and
durable position in its operations. This could be the case where the contestability of the
core platform service is affected, or risks being affected, on a lasting basis, due to the
position of the gatekeeper, entry barriers derived from network effects, in particular in
relation to its access to and collection of personal and non-personal data or analytics
capabilities, scale and scope effects, customer bias or other structural market
characteristics, with the effect of impeding innovation, high quality of digital products
and services, fair and competitive prices and choice for business customers and users.
151. In summary the scope of the intervention is characterised by the main parameters of
choice of core platform service where the data-driven advantages and network effects
are strong drivers, as well as the criteria that determine the gatekeeper companies in
scope. While there is a good consensus that the criteria should focus on size,
186
This estimate as well as other estimates as to the number of gatekeepers to be covered under different options
is largely based on publicly available data, supplemented with data on end user numbers sourced from
different external providers.
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intermediation power, and entrenched position187, there are choices available on the
quantitative thresholds, or the use of qualitative thresholds.
5.2.2. Unfair practices
152. The public consultation offered strong support for an intervention tackling gatekeepers’
unfair practices. In fact, the large majority of the respondents to the OPCs and to the
NCA questionnaire agreed that the Commission should be able to intervene in markets
where gatekeepers are present, including a large majority of businesses and businesses
associations, all civil society organisations (including consumer associations, NGOs and
trade unions) and all public authorities.188 Those respondents considered that this would
both create the right innovation incentives across the market, and contribute to increased
consumer choice paving the way for new platforms and innovative and privacy-friendly
services.
153. Those disagreeing refer to the fact that the concept of a gatekeeper is too broad and
should instead be assessed on a case-by-case basis and that the Commission can already
intervene in the case of gatekeeper’s conduct using Article 102 TFEU. As explained in
Section 5.1, the Commission considers that Article 102 is not sufficient to deal with all
the problems associated with gatekeepers given that a gatekeeper may not necessarily be
a dominant player, and its practices may not be captured by Article 102 TFEU if there is
no demonstrable effect on competition. Moreover, Article 102 does not always allow
intervening with the speed that is necessary to address these pressing practices in the
most timely and thus most effective manner.
Identification of obligations applicable to gatekeepers’ core platform services
The different sources supporting the present Impact Assessment refer to a number of
alleged or proven unfair practices by gatekeepers in the digital sector. There is a
relatively wide consensus that such practices can be grouped into certain categories,
such as (i) unfair data driven practices, (ii) unfair self-preferencing, and (iii) unfair
access conditions.
In identifying which of the specific unfair practices may require ex ante regulatory
intervention, the Commission followed several principles:
(a) There should be sufficient experience with the harmful effects of the
identified unfair practices;
(b) Such experience should point to the egregious nature of the unfair practices in
187
See notably CERRE Report, Digital Markets Act: Making economic regulation of platforms fit for the digital
age, 24 November 2020.
188
See Annex 2.1: Synopsis Report Open Public Consultation Ex Ante Rules, Summary of the Stakeholder
Consultation on the New Competition Tool and Summary of the contributions of the NCAs to the impact
assessment of the new competition tool.
EN 50 EN
question, which would justify the clear identification of obligations related to
them;
(c) To the extent possible, these obligations should be directly applicable; and
(d) The unfair practices should be identified in a clear and unambiguous manner
to provide the necessary legal certainty for gatekeepers who would need to
comply with them, as well as for business users or consumers that may avail
themselves of the choices provided for them.
Based on these criteria, several unfair practices have been identified as those that
require immediate attention by the Commission, given their likelihood to cause direct
harm to business users and to negatively affect the contestability of core platform
services. These practices are well-documented and can be relatively easily
circumscribed in ex ante regulation, which also addresses an emerging legal
fragmentation. These egregiously unfair practices should therefore be subject to
clearly defined obligations addressed to gatekeepers in the proposed EU-level
framework.
However, for a number of other, allegedly unfair practices it would not seem justified
to intervene at this point in time. For example, it could be disproportionate to require
providers of software application stores not to exclusively pre-install their own
software application store, especially taking into account that the proposed framework
would already tackle specific unfair practices that a provider of such a software
application store may engage in.
154. The table below summarises the list of obligations retained associated to the key unfair
practices identifed against the evidence for each practice. A key element for such a list
of practices is the applicability to a gatekeeper’s core platform services. In some cases,
the practices at stake target specific core platform services.
155. The evidence included in the table consists of (i) antitrust decisions adopted by the
Commission and other competition authorities, (ii) examples of complaints and
investigations compiled by an external contractor in the context of the Impact
Assessment study, (iii) evidence from the study supporting the Observatory for the
Online Platform Economy, (iv) evidence from the reports by the expert group for the
Observatory on the Online Platform Economy, complemented with stakeholder input,
(v) studies conducted on digital sectors by other public authorities, and (vi) other Impact
Assessments and regulations.189 For some of the practices listed below there is no
decision or judgment confirming its effects on the market. Nevertheless, the multiple
complaints, investigations and studies raising awareness, and suggesting solutions, to
189
See also Annexes 5.3 and 5.6 to the Impact Assessment.
EN 51 EN
those practices are a strong indication of their relevance and of their negative impact on
the internal market.
156. Beyond the practices identified in the table, a range of other practices were examined.
For example, economic regulation of costs and prices was examined and discarded.
Other examples of specific practices examined but not retained include generic and
broad rules on fair access conditions to any core platform service, or rules which would
allow any provider of ancillary service to get full access and interoperability with a
gatekeeper’s service. Other practices considered and frequently proposed in the
literature – like for example banning the pre-installation of software – were replaced by
more proportionate obligations – in this case, the possibility to give customers the
possibility to always un-install applications – or dropped completely – for example, a
general ban on tying.
157. Aside specific practices examined and discarded, a category of other obligations was
also considered but rejected, namely broadly formulated or generic practices (such as
self-preferencing in general) that would require an in-depth competition like analysis to
be carried out.
EN 52 EN
Table 2: List of obligations with examples and underlying evidence
Obligations / unfair practices Concrete example/evidence
Gatekeepers shall not be combining personal data German NCA found that Facebook abused its dominance by applying terms and conditions, which made the use
originating from different core platform services with of its social network conditional upon Facebook’s possibility to collect and combine user data from multiple
personal data from their other services or data from sources.190
third party services or automatically signing in end
Italian NCA found that WhatsApp forced its users to share their personal data with Facebook. 191
users to other services of the gatekeeper in order to
combine data without providing an effective possibility According to the IA support study, there are some pending antitrust investigations in this area in relation to online
to opt-out intermediation services.
Example: provider of online social network site collecting IA support study, in particular Annex 4, Case 8: Digital ID – Facebook and Google.
data from its users obtained through several different
Support Study to the Observatory, Business user and third-party access to online platform data.
services.
Stigler Center report, Committee for the Study of Digital Platforms Market Structure and Antitrust Subcommittee
Report, page 44.
Ability – due to gatekeeper’s size and associated network
US House of Representatives Majority Staff Report, Investigation of Competition in Digital Markets, pages 209-
effects - to accumulate data and use it as a competitive
211
advantage
CMA report on Online platforms and digital advertising, pages 188-193.
EDPB report on social media and impact of profiling on competition, page 7 explains that “the unrivalled insight
capabilities provided by the platform may make it an 'unavoidable trading partner' for online marketers”.
This issue that is also covered by the GDPR but in a narrower sense and based on opt-in.
Gatekeepers shall not prevent business users from Case AT.40153 E-book MFNs and related matters (Amazon), Commission Decision of 4 May 2017: the
offering the same products or services to customers Commission considered that MFN clauses included in Amazon's e-books distribution agreements could make it
through third party online intermediation services at more difficult for other e-book platforms to compete with Amazon by reducing publishers' and competitors'
prices or conditions that are different from those ability and incentives to develop new and innovative e-books and alternative distribution services.
offered through the online intermediation services of
As demonstrated in the Annex 5. 4 to the Impact Assessment wide parity clauses were removed in a large part of
the gatekeeper.
Member States, while in some Member States also narrow MFN clauses were banned via legislative action. This
Example: a provider of online intermediation services is the case in France, Austria, Italy and Belgium. The laws of those MS prohibit all MFN clauses.
does not allow hotels/e-books publishers to offer better
190
https://www.bundeskartellamt.de/SharedDocs/Entscheidung/DE/Entscheidungen/Missbrauchsaufsicht/2019/B6-22-16.pdf?__blob=publicationFile&v=8.
191
https://en.agcm.it/en/media/press-releases/2017/5/alias-2380.
EN 53 EN
Obligations / unfair practices Concrete example/evidence
prices on different online travel agents/e-books platforms US House of Representatives Majority Staff Report, Investigation of Competition in Digital Markets, pages 295-
296.
Exclusive dealing requirements possible due to gatekeeper
size and businesses’ dependence (indispensability to be P2B Impact Assessment on MFNs: “issues have also arisen in the context of so-called 'most-favoured nation'
present on the platform) ('MFN') clauses, also known as 'parity' or 'price-parity' clauses. These are common in Online Travel Agents
('OTAs'), but also exist to a more limited extent on e-commerce platforms, app stores or price comparison tools.”
J. Crémer, Y.-A. de Montjoye & H. Schweitzer (2018), Digital policy for the digital era, pages 55-57.
Furman report, Unlocking digital competition, Report of the Digital Competition Expert Panel, page 48.
Gatekeepers shall not prohibit their business users According to the IA support study, there are some pending antitrust investigations in this area in relation to app
from promoting and subsequently concluding contracts stores.
with their customers acquired on gatekeeper’s
Anti-steering provisions are raised by many stakeholders replying to the OPC as a concern (e.g. publishers; media
platform outside a gatekeeper’s platform.
companies).192
Example: a publisher cannot inform a new user through its
According to the IA support study, Annex 4: Case 4: Restriction of access and use of business users to data about
newspaper app that the subscription is cheaper if
their customers – Apple App Store there are several antitrust investigations in this area in relation to online
concluded via the publisher´s website.
intermediation services.
Gatekeepers shall not prohibit consumers from
Support Study to the Observatory, the Significant Market Status.
accessing and consuming, on the gatekeeper’s platform
or services, services which have been acquired outside
of the gatekeeper’s platform or services.
Example: a music streaming subscription is concluded
through a website, but cannot be subsequently used via the
app.
Ability to set market rules
Gatekeepers shall not prevent or restrict business users Some indications in antitrust investigations that complaints to authorities or sharing of information with the
from raising issues with any relevant public authority authorities.
relating to any behaviour of gatekeepers
Example: business users would like to complain about
unfair practice by gatekeeper, but is effectively prevented
192
See Annex 2.1: Synopsis Report Open Public Consultation Ex Ante Rules.
EN 54 EN
Obligations / unfair practices Concrete example/evidence
doing so due to contractual constraints.
Ability to impose requirements on other businesses, due to
their economic dependence on the gatekeeper
Gatekeepers shall not impose their own user ID IA support study, in particular Annex 4, Case 8: Digital ID – Facebook and Google.
services on business users when the latter offer service
Stigler Center report, Committee for the Study of Digital Platforms Market Structure and Antitrust Subcommittee
using the core platform service of the gatekeeper.
Report, pages 31 and 89.
Example: an app store operator unilaterally requires all
app developers to integrate the app store´s own user ID
functionality in their apps and to show this ID
functionality to the customers of their apps.
Ability to impose market rules due to gatekeeper’s market
position
Gatekeepers shall not require business users or Case AT.40099 Google Android, Commission Decision of 18 July 2018: the Commission considered that Google
customers of these business users to subscribe to or has ensured that its Google Search app is pre-installed on practically all Android devices sold in the EEA by tying
register with any core platform service other than the it pre-installation with the pre-installation of the Google Play Store. Google's practice has reduced the incentives
core platform service provided by the gatekeeper, as a of manufacturers to pre-install competing search apps, as well as the incentives of users to download such apps.
condition to access, sign up or register to any of their This reduced the ability of rivals to compete effectively with Google.
core platform services
According to the IA support study, Annex 4: Case 3: Unjustified tying and bundling – Microsoft 365 bundling
Example: consumer would like to subscribe to social with cloud services and Case study 8: Digital ID – Facebook and Google there are several antitrust investigations
networking service by a gatekeeper, but is effectively in this area in relation to cloud, social networks and search services.
prevented from doing so without subscribing to other
Stigler Center report, Committee for the Study of Digital Platforms Market Structure and Antitrust Subcommittee
services of that gatekeeper.
Report, page 31.
Ability to impose conditions of access to the platform due
Furman report, Unlocking digital competition, Report of the Digital Competition Expert Panel, page 36.
to strong market position
CMA report on Online platforms and digital advertising page 279.
J. Crémer, Y.-A. de Montjoye & H. Schweitzer (2018), Digital policy for the digital era, page 37.
US House of Representatives Majority Staff Report, Investigation of Competition in Digital Markets, pages 241-
242, 286-290, 397.
Gatekeepers shall provide advertisers and publishers Support Study for the Observatory, Report on Transparency in the Online Advertising Market.
with information concerning the price paid for the
Observatory Expert Group Report: Market power and transparency issues in open display advertising.
impression of a given ad, including for each of the
relevant advertising services provided by the
EN 55 EN
Obligations / unfair practices Concrete example/evidence
gatekeeper Lack of transparency in the advertising value chain is raised by many stakeholders in the OPC. 193
Example: advertisers and publishers would like to obtain CMA report on Online platforms and digital advertising pages 297-303.
information about all the intermediation fees charged by
ACCC report, Digital Platforms Inquiry, Final Report, pages 150-157.
the adtech services provider, but they are refused so.
Ability to impose unclear pricing rules due to the
gatekeeper’s strategic position of intermediary
Gatekeepers should not use data provided by or According to the IA support study, there are several pending antitrust investigations in this area.
generated through activities of business users of its core
IA support study, in particular Annex 4, Case 5: Prohibition of self-preferencing – Amazon Marketplace.
platform services in competition with those business
users Japanese Fair Trade Commission Report regarding trading practices on digital platforms, identifies use of sellers´
data as priority issue for continued investigation. 194
Example: an e-commerce marketplace using commercially
sensitive data collected from individual sellers to compete Support Study to the Observatory, Business user and third-party access to online platform data.
with these sellers on its own online marketplace
CMA report on Online platforms and digital advertising, page 109-110.
Ability to accumulate third-parties’ generated data and
use it as a competitive advantage US House of Representatives Majority Staff Report, Investigation of Competition in Digital Markets, pages 218.
Furman report, Unlocking digital competition, Report of the Digital Competition Expert Panel, page 34, 47.
Stigler Center report, Committee for the Study of Digital Platforms Market Structure and Antitrust Subcommittee
Report, page 52.
Gatekeepers shall not prevent customers from un- There is a strong consumer bias towards pre-installed software (see Google Android195 and Microsoft (tying)196
installing any pre-installed software applications on its antitrust decisions.
core platform services.
The IA support study, Annex 4, Case 2: Unjustified tying and bundling – Google advertising ecosystem.
Example: app stores/operating systems preventing users
CMA report on Online platforms and digital advertising, page 106-109.
from un-installing some of the pre-installed apps, in
particular where these are not essential for running the US House of Representatives Majority Staff Report, Investigation of Competition in Digital Markets, pages 210-
hardware. 217.
193
See Annex 2.1: Synopsis Report Open Public Consultation Ex Ante Rules.
194
https://www.jftc.go.jp/en/pressreleases/yearly-2019/October/191031.html.
195
Case AT.40099 Google Android, Commission Decision of 18 July 2018.
196
Case AT. 39530 Microsoft (Tying), Commission Decision of 16 December 2009.
EN 56 EN
Obligations / unfair practices Concrete example/evidence
Ability to impose market rules due to its intermediary
function
Gatekeeper shall allow the installation and effective use The IA support study, in particular Annex 4, Case 4: Restriction of access and use of business users to data about
of third party software applications or software their customers – Apple App Store, referring to on-going antitrust investigations in this area.
application stores using, or interoperating with,
operating systems of that gatekeeper As demonstrated by the OPC submissions, providing obstacles to interoperability and data portability and lock- in
of cloud service providers’ customers, due to high switching costs are the most common practices in the cloud
Example: consumer is prevented from installing an app
space.197
store of the mobile game provider and the relevant
applications directly from its app store. US House of Representatives Majority Staff Report, Investigation of Competition in Digital Markets, pages 210-
217.
Ability to impose market rules due to its intermediary
function
Gatekeepers shall not treat more favourably in ranking Case AT.39740 Google Search (Shopping), Commission Decision of 27 June 2017: Google leveraged its
their own services and products compared to similar dominance in general internet search services to the separate comparison shopping service (CSS) market by
services or products of third-party business users and favouring Google Shopping on its general web search results page.
shall apply fair conditions to such ranking
Korea FTC imposes fine and remedies on Naver for ranking self-preferencing and anti-steering.198
Example: a search engine preferring its own vertically
The IA support study, Annex 4, Case 2: Unjustified tying and bundling – Google advertising ecosystem.
integrated services in its search engine results (e.g.
shopping or travel services are featured on top of search US House of Representatives Majority Staff Report, Investigation of Competition in Digital Markets, pages 187-
results); a social network ranking its own dating service 193, 282-286, 359.
more prominently in users´ timelines than those of third-
party dating services. CMA report on Online platforms and digital advertising, page 109-110.
Ability to misuse its intermediation position to its own Furman report, Unlocking digital competition, Report of the Digital Competition Expert Panel, pages 31, 44 and
117.
competitive advantage
P2B evidence. “The favouring of own products or services by online platforms was identified as one of three most
commonly experienced problematic trading practices by business respondents to the public consultation on
platforms.”
197
See Annex 2.1: Synopsis Report Open Public Consultation Ex Ante Rules.
198
https://www.ftc.go.kr/solution/skin/doc.html?fn=508d97db636c2f7f0961bf6361cfd44f09977d1a7a06f4dd5603f17c11d61013&rs=/fileupload/data/result/BBSMSTR_
000000002402/.
EN 57 EN
Obligations / unfair practices Concrete example/evidence
Gatekeepers shall not technically restrict the ability of Furman report, Unlocking digital competition, Report of the Digital Competition Expert Panel, pages 35-37.
end users to switch between and subscribe to different
software applications and services to be accessed using
the operating system of the gatekeeper
Example: an app store reserving for some providers with
whom it has partnership agreements certain
functionalities, thus preventing consumer switching to a
different internet access provider.
Ability to impose conditions of access
Gatekeepers shall not prevent business users and DE law on access to technical infrastructures supporting payment services. This has already been regulated in
providers of ancillary services access to and Germany to ensure fair access of other service providers to NFC. Necessary to make above obligation function.
interoperability with the same operating system, NFC antenna just one element of a broader hard/software functionality.
hardware or software features that are available to or
According to IA support study, Annex 4 Case 6: Device Neutrality – Browser Neutrality and Case 9: Slack –
used by any ancillary services provided by the
Interoperability / API.
gatekeeper.
Italian NCA opens investigation into Google Maps, brought by Enel competing mapping service. 199
Example: provider of financial services online would like
to obtain access to certain features available to the Dutch NCA opens investigation into NFC access, following their study Big Tech and the Dutch payment
payment services of the gatekeeper that are needed to market.200
perform certain operations, but is refused access to such
features.
Ability to restrain access
Gatekeepers shall not refuse to provide advertisers and Similar reasons as to above for facilitating/ensuring transparency in the advertising value chain. Grounds similar
publishers upon their request, with access to the and linked to concerns raised by the business users of advertising services. 201
performance measuring tools of the gatekeeper and the
CMA report on Online platforms and digital advertising pages 297-303.
information necessary for advertisers and publishers to
199
https://www.agcm.it/dettaglio?db=41256297003874BD&uid=C66CBC6B87379163C125840000581AE0&view=vw0301&title=A529-
GOOGLE/COMPATIBILITÀ%20APP%20ENEL%20X%20ITALIA%20CON%20SISTEMA%20ANDROID%20AUTO&fs=%20%2082_CE/102_CE-
Abuso%20di%20posizione%20dominante.
200
https://www.acm.nl/en/publications/big-tech-and-dutch-payment-market-tightening-rules-needed-maintain-level-playing-field.
201
See Annex 2.1: Synopsis Report Open Public Consultation Ex Ante Rules.
EN 58 EN
Obligations / unfair practices Concrete example/evidence
carry out their own independent verification of the ad ACCC report, Digital Platforms Inquiry, Final Report, pages 145-150.
inventory.
Support Study for the Observatory, Report on Transparency in the Online Advertising Market, Observatory
Example: advertisers would like to obtain access to Expert Group Report: Market power and transparency issues in open display advertising.
performance measuring tools of gatekeepers to assess
effectiveness of its advertising campaign, but is refused
access to such tools.
Ability to refuse accountability on the level of service
provided, possible due to the gatekeeper’s market position
Gatekeepers shall provide business users with effective According to the IA support study, there are several antitrust investigations in this area.
data porting possibilities for data generated on core
Lock-in on the business user-side. Also undermines effectiveness on end user-side (cf. Article 5(1)(i)).
platform services, subject to GDPR consent
requirements as applicable. Support Study to the Observatory, Business user and third-party access to online platform data.
Example: third-party provider of online newspaper may Stigler Center report, Committee for the Study of Digital Platforms Market Structure and Antitrust Subcommittee
need access to data of the potential user (i.e. subscriber) of Report, pages 88-89.
its services in real time.
Furman report, Unlocking digital competition, Report of the Digital Competition Expert Panel, chapter 2.
Ability to refuse access to data on which businesses
US House of Representatives Majority Staff Report, Investigation of Competition in Digital Markets, page 20.
depend
ACCC report, Digital Platforms Inquiry, Final Report, pages 115-116.
Gatekeepers shall not prevent free of charge, IA support study, Annex 4, Case 7: Device Neutrality – Apple Wallet/Pay.
unhindered access to and use of non-aggregated and
There are many complaints in particular by app developers about so called disintermediation. That is to say that
aggregated data that is provided for, generated in the
the gatekeeper gathers and controls the customer data and those who are in a business relationship with a specific
context of, or inferred from, the use of the relevant core
customer actually lack access to customer data and are therefore disintermediated form their own customers.
platform services by those business users and the
customers acquiring the products or services provided P2B Impact Assessment: “In the Flash Eurobarometer 43960 42% of the respondents said that they usually do
by those business users. not get the data they need about their customers from online marketplaces.”
Example: online newspaper asks the provider of online Support Study to the Observatory, Business user and third-party access to online platform data and Platform data
intermediation service for contacts of the customer who access and secondary data sources.
subscribed to its service through software application
store of the gatekeeper, but is refused such data on privacy
grounds, even if subscriber was never asked for consent,
or lack of it, for such data sharing.
Ability to limit access to data relevant for the business
EN 59 EN
Obligations / unfair practices Concrete example/evidence
user’s activity
Gatekeepers shall not prevent access, upon request of Gatekeepers in search have a data advantage over competitors and business user insofar as they have access to a
business users and any third party providers of online vast amount of query data especially on long tail queries (see Case AT.39740 Google Search (Shopping),
search engines, to query, click and view data in relation Commission Decision of 27 June 2017).
to free and paid search generated by consumers on the
Vertical and horizontal integration reinforced by agreement, for example Apple-Google exclusivity deal targeted
online search engines of the gatekeeper.
by US DoJ, limits contestability of online search engines. 202
Example: provider of competing online search engine
CMA report on Online platforms and digital advertising, pages 92-96.
services asks the gatekeeper to provide access to its click-
and-query data, which is refused without any ACCC report, Digital Platforms Inquiry, Final Report, pages 66-67.
consideration or explanation.
Ability to refuse access to data
Gatekeepers shall apply fair and non-discriminatory According to the IA support study, in particular Annex 4, Case study 4: Restriction of access and use of business
general conditions of access for business users to its users to data about their customers – Apple App Store there are several antitrust investigations in this area in
software application store. relation to app stores.
Example: provider of an app store charges different The Dutch competition authority found in a study on app stores that: “app providers have only limited options for
commission rates to different business users without clear reaching consumers on their iPhone outside of the App Store. Even though it is technically possible on Android
identification of reasons for such differentiation. for app providers to reach consumers circumventing the Play Store, this is only a realistic alternative for
companies with an already established user base accomplished on other distribution channels. Furthermore, in
Ability to apply discriminatory pricing due to its strategic
this market study, ACM concluded that the majority of app providers have limited bargaining power vis-àvis the
market position
app store.”
US House of Representatives Majority Staff Report, Investigation of Competition in Digital Markets, pages 343.
Furman report, Unlocking digital competition, Report of the Digital Competition Expert Panel, page 46.
P2B evidence of unfair contract terms. 203
202
https://www.justice.gov/opa/pr/justice-department-sues-monopolist-google-violating-antitrust-laws.
203
https://ec.europa.eu/digital-single-market/en/news/study-contractual-relations-between-online-platforms-and-their-professional-users.
EN 60 EN
158. Finally, it is also worth noting that gatekeepers frequently raise arguments concerning
the efficiencies that their practices bring about as a way to counterbalance and justify
their potential negative effects. These arguments – raised not only in the OPC but also
in numerous past and ongoing investigations (in fields such as antitrust, consumer
protection or privacy) – are often one-sided and do not seem to match the evidence
underlying this Impact Assessment including the calls for regulation raised by an
overwhelming majority of respondents to the OPCs. Such efficiency-related defenses
have also been rejected by the Courts as being unfounded.204
5.2.3. Speed and Flexibility
159. Another important design parameter for the available policy options concerns the
architecture of the intervention, notably speed of intervention, and the degree of
flexibility concerning the main elements of the intervention.
160. Concerning the speed of application, the main choices are between (a) model of
immediately applicable obligations, (b) a model where a degree of appreciation is
necessary, notably as regards the implementation of a given obligation, and (c) a fully
flexible model, where obligations or remedies are only imposed subsequent to an
investigation carried out by an authority.
161. Such models have regulatory precedents or analogues in other acts of Union law. For
instance, the Unfair Commercial Practices Directive (‘UCPD’)205 and the Directive on
Unfair trading practices in the agricultural and food supply chain 206 have models of
immediately applicable black-lists of practices that are essentially lists of prohibited
conduct.
162. In contrast, the European Electronics Communication Code offers a more flexible, case-
by-case regulatory framework, whereby a regulator can impose a set of remedies
following an analysis of problems in the internal market related to the
telecommunications sector.207
163. For the flexibility element, there are essentially three parameters that could characterise
the main choices. First, a flexibility on the designation of a gatekeeper, e.g. by using
only qualitative thresholds, or by updating the thresholds in light of market
developments. Second, a flexibility on the list of practices that should be subject to a
remedy and to their implementation. For instance, the list of practices could be left fully
204
Csse T-201/04 Microsoft v Commission, judgment of 17 September 2007, at paragraphs 1091 ff.
205
Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair
business-to-consumer commercial practices in the internal market and amending Council Directive
84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council
and Regulation (EC) No 2006/2004 of the European Parliament and of the Council.
206
Directive (EU) 2019/633 of the European Parliament and of the Council of 17 April 2019 on unfair trading
practices in business-to-business relationships in the agricultural and food supply chain.
207
Directive (EU) 2018/1972 of the European Parliament and of the Council of 11 December 2018 establishing
the European Electronic Communications Code (Recast).
EN 61 EN
open, subject to an update, or selected after a market investigation or an analysis from a
pre-determined list of practices. A third source of flexibility concerns the type of core
services in scope, as discussed in the previous section. It is easily conceivable that
future technological developments require different core services to be in scope of the
instrument.
164. Stakeholders in the OPC have generally supported a mix of approaches, combining the
speed of immediately applicable obligations and a more flexible approach.208
5.2.4. Enforcement framework
165. A final important design parameter is linked to the enforcement powers necessary and
available to ensure that the rules concerned are not undermined, ineffective or absent
enforcement. This concerns individual cases of non-compliance as well as cases of more
systematic non-compliance by gatekeepers. It is relevant to all options, and also linked
to the monitoring of the implementation.
166. In order to ensure effective compliance with the ex ante rules, in any enforcement
framework the Commission should have investigative and enforcement powers to allow
it to investigate, enforce and monitor the ex ante rules, while at the same time ensuring
the respect of the fundamental right to be heard and to have access to the file in the
context of the enforcement proceedings. In particular, the Commission should have
access to any relevant documents, data and information necessary to open and conduct
investigations and to monitor the compliance with the obligations addressed to
designated gatekeepers, irrespective of who possesses the documents, data or
information in question, and regardless of their form or format, their storage medium, or
the place where they are stored.
167. In order to have sufficient deterrence powers it is necessary that after a due process the
Commission shall be able to impose fines and periodic penalties or take the necessary
measures to restore compliance. In this respect the Regulation 1/2003 offers a well-
known and legally sound model that can be replicated in Options presented in this
Impact Assessment.
168. In the extreme case, where an investigation shows that a gatekeeper has systematically
infringed the obligations and has further strengthened or extended its gatekeeper
position, the Commission should be able as it is the case of Article 7 209 of Regulation
1/2003 to impose the structural remedies necessary to guarantee that market participants
208
See Annex 2.1: Synopsis Report Open Public Consultation Ex Ante Rules.
209
Article 77 of the Code establishes that where “the national regulatory authority concludes that the
appropriate obligations […] have failed to achieve effective competition and that there are important and
persisting competition problems or market failures identified in relation to the wholesale provision of certain
access product markets, it may, on an exceptional basis […] impose an obligation on vertically integrated
undertakings to place activities related to the wholesale provision of relevant access products in a business
entity operating independently”. Article 77 as well as its accompanying recitals establish a series of
proportionality criteria that must be fulfilled prior to the imposition of such a requirement.
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are not irreversibly harmed by this repeated and illicit behaviour. This consideration
applies to all categories of intervention in terms of effectiveness.
169. However, to guarantee proportionality of the intervention the Commission should only
impose structural remedies either where there is no equally effective behavioural
remedy or where any equally effective behavioural remedy would be more burdensome
for the gatekeeper concerned than a structural remedy.
170. In addition, the notion of systematic non-compliance should be linked with repeated
infringements. Gatekeepers shall be deemed to have engaged in a systematic non-
compliance in cases where the Commission issued at least two or more non-compliance
or fining decisions. The Commission shall have the duty to explain whether and which
remedy or remedies it preliminarily considers necessary and proportionate. At any point
in time during the proceedings gatekeepers shall be put in condition to offer
commitments that if accepted would terminate the infringement.
171. The above-described system is construed to safeguard proportionality of the
intervention. It is based on existing instruments.
172. Structural measures are to be seen an ultima ratio measure for repeated infringement
and to be taken into account where every other possibility has failed. To be noted that in
the application of Regulation 1/2003 this circumstance has never occurred.
5.2.5. Summary and main trade-offs
173. In summary, the key parameters that determine the choice of options are related to the
scope, the set of obligations related to unfair trading practices, the flexibility of the
architecture and the scope of enforcement powers. These parameters are linked via a set
of trade-offs that are set out below, mainly in terms of considerations of overall
proportionality and effectiveness.
174. The first trade-off is linked to the gatekeepers in scope and the intensity of obligations.
A wider scope of gatekeeper platforms corresponds with a lower intensity of the
obligations linked to unfair practices and vice-versa, as the degree of harm caused by
unfair practices is linked to the strength of the gatekeeper power.
175. The second trade-off is linked to the catalogue of obligations and the flexibility of the
instrument. The more flexible the intervention, the less prescriptive the obligations need
to be and vice-versa.
176. A third trade-off is linked to the speed and flexibility of the intervention. An
intervention that requires a detailed analysis for each case will necessarily be slower in
effect than an intervention based on a list of immediately applicable prohibitions.
177. The fourth trade-off is linked to the scope of the remedies in case of systematic non-
compliance. An intervention that requires a structural remedy will necessarily be slower
since it will require several enforcement steps before the effective compliance will be
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ensured. However, at the same time, it is an ultima ratio remedy that will only be
considered if all other measures do not produce the required result.
178. While the set of parameters and trade-offs in this section theoretically allow many
different combinations, not all of them are credible or meaningful.
5.3. Policy options
179. Based on the analysis of the main parameters that characterise the problem, and the
trade-offs presented in the previous section, three distinct policy options have emerged
from the available matrix of combinations as plausible ones and will therefore be fully
assessed.
180. Option 1 is a non-dynamic option with a set of immediately applicable obligations
addressing clearly defined unfair practices by gatekeepers designated solely on
quantitative thresholds in specific core platform services. This option contains no
dynamic elements, but is presented with distinct two sub-options on scope as distinct
alternatives, on the basis of different thresholds. Sub-option A is presented as a sub-
option with a small number of gatekeeper companies in scope (some 5-7 companies)
while sub-option B contains a wider scope of gatekeeper companies (some 10-15
gatekeepers), based on a lower quantitative threshold.
181. Option 2 is a semi-flexible option, combining a set of immediately applicable
obligations with some degree of flexibility, notably through a dialogue on some of the
obligations and a mechanism for updating the practices and obligations. It further
comprises a mechanism designating gatekeepers based on a combination of quantitative
and qualitative thresholds and including the designation of emerging gatekeepers.
Again, this semi-flexible option is presented with two sub-options that reflect
alternatives on the scope. Sub-options A and B are sub-options on this semi-flexible
option, following the same distinction on the quantitative threshold as Option 1.
182. Option 3 is a fully flexible option providing for a dialogue on all the obligations listed
and a dynamic updating mechanism allowing for the inclusion of additional core
platform services and of additional obligations where following a market investigation
such an inclusion is considered appropriate and justified. Further, the designation of
gatekeepers is based only on qualitative thresholds.
183. These options represent distinct alternatives based on the inherent trade-offs that
underline the problem definition. They are distinguished by the architectural element
relating to the flexible or dynamic character of the proposed intervention.
184. The table below gives an overview of these policy options.
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Table 3: Parameters of policy options
Option Flexibility Obligations Scope
1.A High quantitative thresholds
Non- Immediately
1
dynamic applicable obligations 1.B Low quantitative thresholds
Immediately High quantitative thresholds
2.A
applicable + + qualitative designation
Obligations with
Semi-
2 regulatory dialogue
dynamic Low quantitative thresholds
+ 2.B
+ qualitative designation
Updating mechanism
for new practices
Obligations with
regulatory dialogue
Fully +
3 3 Qualitative criteria only
dynamic Updating mechanism
for new practices and
core platform services
5.3.1. Option 1 – Pre-defined list of gatekeepers and immediately applicable
obligations
5.3.1.1. Summary of option 1
185. Option 1 would consist of the following elements:
(a) a closed list of core platform services identified in Section 5.2.1;
(b) designation of providers of core platform services as gatekeepers based solely on
the quantitative thresholds; and
(c) the whole list of obligations identified in Section 5.2.2 would be immediately
applicable without any ability of a regulatory dialogue.
5.3.1.2. Identification of core platform services
186. Option 1 would provide for a new targeted ex ante regulatory framework, which would
apply to identified ‘core platform services’ (see Section 5.2.1) provided by designated
gatekeepers. These core platform services define the perimeter both for the designation
of gatekeepers as such, and for the identification of those individual core platform
services provided by the designated gatekeeper which would have to comply with the
clearly defined closed list of obligations identified in Section 5.2.2.
5.3.1.3. Designation of gatekeepers
187. Under Option 1, providers of core platform services would be designated as gatekeepers
based on pre-defined quantitative thresholds. These quantitative thresholds would
provide a high degree of legal certainty for market operators. Conversely, Option 1
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would not allow any flexibility to identify gatekeepers on the basis of criteria other than
the quantitative ones and would also not enable the providers of core platform services
to, in exceptional circumstances, demonstrate based on serious and substantiated
arguments that they do not meet the conditions in paragraph 133. This would also
exclude any type of case-by-case analysis following an in-depth market investigation.
188. In view of this, and as explained in paragraph 148, two sub-options could be considered:
Sub-option 1-A, i.e. high threshold implying the designation of five to seven
gatekeepers.
Sub-option 1-B, i.e. low threshold implying the designation of 10 to 15
gatekeepers.
189. Under Option 1, the fixed quantitative criteria would also exclude any possibility to
identify and designate those providers of core platform services that are expected to
enjoy an entrenched and durable position in the near future.
5.3.1.4. Identification of obligations applicable to gatekeepers’ core
platform services
190. Under Option 1, a closed list of obligations that the designated gatekeepers would have
to comply with would be defined in the rules themselves. These obligations would be
set on the basis of the criteria presented in Section 5.2.2 and are identified in the Table
2.
191. The designated gatekeepers would be required to comply with all the obligations laid
down in the rules. Under Option 1 the gatekeepers concerned could not engage in a
dialogue with the regulator about the measures they intend to take or have taken in order
to comply with these obligations (i.e., the whole set of obligations would be
immediately applicable).
5.3.1.5. Enforcement framework
192. Option 1 foresees implementation, supervision and enforcement at the EU level by the
Commission as the competent regulatory body. Given the pan-European reach of the
targeted companies, a decentralised enforcement model does not seem to be a
conceivable option, including in light of the fragmentation that the initiative is supposed
to address, nor would it be proportionate given the limited number of gatekeepers that
would be in scope of the proposed framework. However, to integrate the national
expertise in the platform economy, the initiative would envisage that the Commission
consults a ‘network of regulators’ before taking decisions that could be considered
under Option 1 (e.g. designation of gatekeepers; non-compliance; fines; period penalty
payments; remedies decisions in case of systematic non-compliance).
193. To be able to effectively carry out its work, the Commission would enjoy clearly-
defined and circumscribed procedural powers, which would include:
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The power to request information from the gatekeepers or third parties to
determine compliance with the rules;
The power to conduct on-site inspections to collect any information that may be
necessary to establish such a non-compliance;
The ability to adopt interim measures in case of a risk of serious and irreparable
damage for business users or end users of gatekeepers, where there are strong
indications of a prima facie finding of infringement of obligations addressed to
gatekeepers;
The ability to make legally binding voluntary measures that the gatekeepers may
offer in the context of the non-compliance procedure to ensure the effective
implementation and compliance with their obligations; and
The ability to adopt non-compliance decisions, including fines and period
penalty payments where necessary and justified.
194. In order to ensure the effectiveness and speed of intervention – as well as a way to
ensure legal certainty and to replicate the obligatory nature that data-gathering powers
would have on gatekeepers – proceedings would be subject to binding legal deadlines.
Respondents to the OPCs and NCAs, generally argued in favour of binding deadlines
for both the Commission and the businesses concerned in order to ensure expediency
and legal certainty.210 Respondents also added that deadlines would ensure a swifter
outcome, which is all the more necessary, in particular in digital sectors, both for a swift
resolution of the case and for providing sufficient legal certainty to the market. As
regards binding deadlines for the businesses concerned, respondents argued that this
would avoid risks of certain businesses slowing down the process with dilatory
conducts, and that these deadlines should be coupled with the possibility of imposing
fines for non-compliance to ensure speed and effectiveness.
195. In addition, in order to ensure due process and protection of rights of the parties to the
procedure, it is important that any addressee of the decision has the opportunity of being
heard on the final decision considered and that all decisions taken are subject to judicial
review.
196. Finally, under this option the Commission would also have the power to ensure that in
case of a systematic non-compliance further appropriate and proportionate measures are
taken to ensure that objectives of the ex ante rules are not undermined. The exact scope
of such behavioural or structural measure should be proportionate to the infringement
committed and necessary to ensure compliance with the ex ante rules (see Section
5.2.4).
210
See Summary of the Stakeholder Consultation on the New Competition Tool and Summary of the
contributions of the NCAs to the impact assessment of the new competition tool.
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197. The enforcement powers required to enforce the prohibitions and obligations under this
option are not new creations but on the contrary largely reproduce existing powers that
the Commission has under the competition and regulatory frameworks211.
198. As regards the powers inspired from the EU competition acquis, the main source of
reference would be Regulation 1/2003, the legal text governing the conduct of
competition investigations by the European Commission. In this respect, Regulation
1/2003 contains also tools which largely mimic the five investigative measures
referenced in paragraph 193 as being necessary for the enforcement of this option. Some
differences between the investigative measures under Regulation 1/2003 and this option
would, however, need to be included. Most notably, this would involve the inclusion of
an explicit power to access databases, algorithms and other technical elements that are
characteristic to the digital economy. While under Regulation 1/2003 the Commission
also has the ability to access and conduct searches into these elements, the nature of the
tool under the current impact assessment justify the inclusion of an explicit power in
this respect. Remedies sanctioning a refusal to access those should also be provided for.
Another difference would concern the fact that – at least for the time being – the ability
to inspect other premises under Article 21 of Regulation 1/2003 would not seem
necessary for the purposes of the current instrument.
199. In a similar vein, powers to request information from companies or the ability to
propose commitments to the regulators are also commonplace in regulatory systems.
One such example can be found, for example, in Article 78 of the EU’s
telecommunications framework.212
5.3.2. Option 2 – Partially flexible framework of designation and updating of
obligations, including regulatory dialogue for implementation of some
5.3.2.1. Summary of option 2
200. Option 2 would consist of the following elements:
(a) a closed list of core platform services identified in Section 5.2.1;
(b) a combination of quantitative and qualitative criteria to designate providers of
core platform services as gatekeepers;
(c) the obligations identified in Section 5.2.2 would consist of immediately applicable
obligations including some obligations where regulatory dialogue may facilitate
their effective implementation; and
211
See for example also Article 9 of Regulation (EU) 2017/2394 of the European Parliament and of the Council
of 12 December 2017 on cooperation between national authorities responsible for the enforcement of
consumer protection laws and repealing Regulation (EC) No 2006/2004 (Text with EEA relevance), OJ L
345, 27.12.2017, page 1.
212
Directive (EU) 2018/1972 of the European Parliament and of the Council of 11 December 2018 establishing
the European Electronic Communications Code (Recast).
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(d) new practices may be added on the basis of a market investigation.
5.3.2.2. Identification of core platform services
201. Option 2 would also provide for a new targeted ex ante regulatory framework, which
would apply to identified ‘core platform services’ (see Section 5.2.1) provided by
designated gatekeepers. These core platform services would again serve as the perimeter
for the designation of gatekeepers as such, and for the identification of those individual
core platform services provided by the designated gatekeeper which would have to
comply with the clearly defined obligations as set out in Section 5.2.2.
202. Similarly to Option 1, once this list of core platform services would be identified, there
would be no possibility to update such list beyond the revision of the rules themselves
and there would be no ability to update them by means of tools provided in the rules
themselves.
5.3.2.3. Designation of gatekeepers
203. Under Option 2, providers of core platform services would be designated as gatekeepers
based on the combination of pre-defined quantitative thresholds but also following a
case-by-case assessment in the context of a market investigation.
204. Like under Option 1, also under Option 2, two quantitative thresholds could be
considered as defined in paragraph 148:
Sub-option 2-A, i.e. high threshold implying the designation of five to seven
gatekeepers.
Sub-option 2-B, i.e. low threshold implying the designation of 10 to 15
gatekeepers.
205. Because of the combination of quantitative and qualitative thresholds, Option 2 would
include a certain degree of flexibility, which would allow to capture two important
dynamic elements of the platform ecosystem.
206. First, Option 2 would have the ability to designate gatekeepers not yet enjoying an
entrenched and durable position, but which are expected to enjoy such a position in their
operations in the near future. Such a designation would prevent core platform services,
where these emerging gatekeepers operate, to tip because of weak contestability of the
market concerned. The phenomenon of tipping – an irreversible loss of competition in a
given market that occurs in a sudden manner – is further explained in Section 2.3.1.1
above.
207. Second, Option 2 would also foresee that the designation of the gatekeeper should be
regularly reviewed where there would be a material change in any of the facts on which
the designation decision was based, and where the decision was based on incomplete,
incorrect or misleading information provided by the undertakings.
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208. Finally, under Option 2, in view of the dynamic element and combination with the
qualitative assessment of the gatekeeper status, the provider of core platform services
would be able to present, in exceptional circumstances, serious and substantiated
arguments to demonstrate that, in circumstances in which the relevant core platform
service operates, it does not fulfil the objective requirements for a gatekeeper (see
paragraph 133) and should therefore not be designated directly based on the application
of quantitative thresholds, but only subject to a further investigation. The purpose of
such an implementation of a legal presumption would not be to demonstrate, on pure
economic grounds, efficiencies deriving from a specific type of behaviour by the
provider of core platform services since this is not relevant to designation of such a
provider as a gatekeeper.
5.3.2.4. Identification of obligations applicable to gatekeepers’ core
platform services
209. As under Option 1, a closed list of obligations that the designated gatekeepers would
have to comply with would be defined in the rules themselves. These obligations would
be set on the basis of the criteria presented in Section 5.2.2 and are identified in the
Table 2.
210. The designated gatekeepers would be required to comply with all the obligations laid
down in the rules. However, for some obligations, Option 2 would provide the
gatekeeper with the possibility to discuss with the Commission the measures it intends
to take or has taken in order to ensure their effectiveness. This would provide additional
flexibility in tailoring the implementing measures by the gatekeepers to the given
obligation and circumstances of each gatekeeper.
211. Option 2 would also include a flexible element by allowing to update the list of
obligations whenever new unfair practices would be determined following a market
investigation. Consideration was given to the question whether an additional flexibility
in relation to the possibility to also update the list of core platform services should not
be included in this option. This possibility has not be retained since it would bring
Option 2 too close to Option 3; while the options’ design was aimed at ensuring a set of
options that are not only plausible but also well distinct from each other as regards the
relevant trade-offs, thus providing a wider array of policy choices.
5.3.2.5. Market investigation framework
212. Option 2 would envisage a possibility for the Commission to carry out a market
investigation in the following types of situations.
213. First, the Commission would carry out a market investigation in order to designate on a
case-by-case basis a provider of core platform services that meet the conditions referred
to Section 5.2.1 as a gatekeeper. In doing so, the Commission would take into account a
number of elements, such as the size, operations, the number of business users
depending on the core platform service to reach end users and the number of end users,
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entry barriers derived from network effects and data driven advantages, in particular in
relation to provider’s access to and collection of personal and non-personal data or
analytics capabilities or scale and scope effects the provider benefits from including
with regard to data.
214. In the context of the market investigation, the Commission could identify as a
gatekeeper not only a provider of core platform services that already enjoys an
entrenched and durable position, but also those providers that are expected to enjoy such
an entrenched and durable position in the near future.
215. Second, the Commission could initiate a market investigation to identify possible new
practices. A report summarising such a market investigation could serve as a basis for a
possible revision of the Regulation, either based on a dedicated empowerment for the
Commission enabling it to update the obligations in the rules themselves or by means of
a full review of the rules. Under a market investigation additional digital services could
also be assessed. However, in order to maintain some legal certainty, this could only
result in an update of the list of core platform services in the context of the review of the
Regulation, which could possibly take place every three years.
216. Third, the Commission would carry out a market investigation when there is the
suspicion that a gatekeeper has systematically infringed the obligations laid down and
has further strengthened or extended its gatekeeper position.
217. The different procedures to be followed by the market investigation framework would
be uniquely designed for this option but would nevertheless have some similarities with
the frameworks under EU competition law and sector-specific regulation.
218. In this respect, market investigations – like competition investigations – would be
initiated by opening decisions and gatekeepers which are the object of them would have
the opportunity to be heard in relation to the allegations raised by the Commission.
Unlike in procedures under Regulation 1/2003, the use of the market investigation
framework would also in some cases also be subject to timeframes.
219. In a similar vein, the procedures governing the market investigation framework would
also have parallelisms with regulatory systems. One such example would, for example,
be Article 63 of the EU’s telecommunications framework allowing for the designation
of ‘undertakings with significant market power’.213
5.3.2.6. Enforcement framework
220. Similarly to Option 1, also Option 2 foresees implementation, supervision and
enforcement at the EU level by the Commission as the competent regulatory body for
the reasons explained in Section 5.3.1.5.
213
Directive (EU) 2018/1972 of the European Parliament and of the Council of 11 December 2018 establishing
the European Electronic Communications Code (Recast).
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221. Furthermore, the new rules under Option 2 would envisage the same set of enforcement
powers for the Commission as envisaged under Option 1.
222. Finally, under this option the Commission would also have the power to ensure that in
case of a systematic non-compliance further appropriate and proportionate behavioural
or structural measures are taken to ensure that objectives of the ex ante rules are not
undermined (see Section 5.2.4).
5.3.3. Option 3 - Flexible option based exclusively on qualitative scoping
thresholds
5.3.3.1. Summary of Option 3
223. Option 3 would consist of the following elements:
(a) a closed list of core platform services identified in Section 5.2.1;
(b) designation of providers of core platform services as gatekeepers following a pure
qualitative assessment;
(c) the obligations identified in Section 5.2.2 would all be subject to a regulatory
dialogue; and
(d) new practices and new core services may be added on the basis of a market
investigation.
224. Consideration was given to the question whether some quantifiable elements should not
be included in this option. This possibility has not be retained since it would bring
Option 3 too close to Option 2; while the options’ design was aimed at ensuring a set of
options that are not only plausible but also well distinct from each other as regards the
relevant trade-offs, thus providing a wider array of policy choices.
5.3.3.2. Identification of core platform services
225. Option 3 would also provide for a new targeted ex ante regulatory framework, which
would apply to identified ‘core platform services’ (see Section 5.2.1) provided by
designated gatekeepers. These core platform services would again serve as the perimeter
for the designation of gatekeepers as such, and for the identification of those individual
core platform services provided by the designated gatekeeper which would have to
comply with the clearly defined obligations as set out in Section 5.2.2.
226. While Option 3 would start by focusing on a list of core platform services, the flexibility
of the tool would mean that it should also be able to assess whether new digital services
need to be incorporated. Where such a need is proven after a market investigation, the
new digital service in question would be added to the scope of the rules.
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5.3.3.3. Designation of gatekeepers
227. Option 3 does not include any quantitative thresholds and is solely based on case-by-
case qualitative assessments. As such, these qualitative assessments would be the only
way to determine which gatekeepers would fall under the scope of the rules and would
seek to determine whether the provider of the core platform service has a significant
impact on the internal market, operates a core platform service which serves as an
important gateway for business users to customers, and enjoys (or is expected to enjoy)
an entrenched and durable position in its operations.
228. Similarly to Option 2, Option 3 would have the ability to designate gatekeepers not yet
enjoying an entrenched and durable position, but which are expected to enjoy such a
position in their operations in the near future. However, contrary to Option 2, Option 3
would not be bound by any quantitative elements. While the inclusion of quantitative
elements as guidance could in principle be implemented while preserving the flexibility
of the tool, such elements would also defeat the purpose of Option 3 as they would still
constrain its ability to look at any company, regardless of its size or position in the
market. The inclusion of such thresholds would also undermine the flexibility of this
option as it would require regular reviews of the legislation in order to update the
(indicative) thresholds in a manner that does not constrain its flexibility.
229. As compared to Option 2, however, Option 3 could result in the designation of a higher
number of gatekeepers, namely those active in the new digital services added to the
scope of the rules after a market investigation.
230. Option 3 would also foresee that the designation of the gatekeeper should be regularly
reviewed where there would be a material change in any of the facts on which the
designation decision was based, and where the decision was based on incomplete,
incorrect or misleading information provided by the undertakings.
5.3.3.4. Identification of obligations applicable to gatekeepers’ core
platform services
231. As under Option 1 and 2, a closed list of obligations that the designated gatekeepers
would have to comply with would be defined in the rules themselves. These obligations
would be set on the basis of the criteria presented in Section 5.2.2 and are identified in
Table 2. Similarly to Option 2, Option 3 would include a flexible element by allowing
to update the list of obligations whenever new unfair practices would be determined
following a market investigation. Option 3 could comprise more obligations than
Option 2 in case additional core platform services were to be included in the scope and
new practices as regards those additional services were determined to be unfair.
232. Option 3 entails a maximum degree of flexibility amplifying the level of dialogue to the
point of allowing potential gatekeepers to present allegations as regards all obligations.
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5.3.3.5. Market investigation framework
233. Option 3 would envisage a possibility for the Commission to carry out a market
investigation in the following types of situations.
234. First, by not including any list of quantitative criteria, the Commission would always
need to engage in a market investigation to determine which providers of core platforms
services should be considered as gatekeepers. In order to do this, the Commission would
pay attention to the conditions prevailing in the market as well as to the position of the
provider of services.
235. Second, a market investigation would also be used by the Commission to specify the
services in which the provider would be behaving as a gatekeeper. In case the service in
question is not pre-defined in the list of core platform services, the Commission could
update the list prior to imposing any obligations.
236. Third, the Commission could also use a market investigation to update the list of
practices that are unfair or are contributing to a lessening of the contestability of the
market. Once this practice or practices are identified, possible obligations could be
added to the list of obligations imposed.
237. Fourth, the Commission would carry out a market investigation when there is the
suspicion that a gatekeeper has systematically infringed the obligations laid down and
has further strengthened or extended its gatekeeper position.
238. The procedures to be followed by the market investigation framework would be similar
to the ones described in Option 2.
5.3.3.6. Enforcement framework
239. Similarly to Option 1 and 2, also Option 3 foresees implementation, supervision and
enforcement at the EU level by the Commission as the competent regulatory body for
the reasons explained in Section 5.3.1.5. Furthermore, the new rules under Option 3
would envisage same set of enforcement powers for the Commission as envisaged under
Option 1 and 2.
240. Finally, under this option the Commission would also have the power to ensure that in
case of a systematic non-compliance appropriate and proportionate behavioural or
structural measures are taken to ensure that objectives of the ex ante rules are not
undermined (see Section 5.2.4).
5.4. Policy options discarded at an earlier stage
5.4.1. A broad scope across platforms
241. As indicated in the Inception Impact Assessment, an option of amending the P2B
Regulation was considered. Further horizontal rules could be established for all 10 000
online intermediation services and search engines that are currently falling within the
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scope of the P2B Regulation. This could cover prescriptive rules on different specific
practices that are currently addressed by transparency obligations and beyond.
242. The impact of this option on the internal market would be further harmonisation in a
wider range of areas, but without necessarily addressing the issues at stake. As such, the
option would include a risk for these issues to be addressed at national level, resulting in
no substantial improvement in the functioning of the Single Digital Market.
243. Imposing stringent measures horizontally would risk being disproportionate and have a
negative impact on innovation and competition in the online platform economy. Stricter
rules under this option would be intrusive for many of the 10 000 entities currently
falling within the scope of the P2B Regulation, but could be especially harmful for
smaller platforms, possibly also limiting their growth. The option would be expected to
increase innovation for platforms’ business users but the extra burden for smaller
platforms would stifle their potential to invest in innovation. In the same way, this
option would risk to negate any positive impact on the ability of business users to
compete by the negative impact on the ability of smaller platforms to compete. Given
the large number of platforms covered, and in order to avoid a disproportionately
negative effect on smaller players, there is also a risk that the rules have to be toned
down with the result that problems relating to gatekeepers would not be addressed in the
most adequate and vigorous manner.
244. As any stricter rules would apply to all platforms, compliance costs would be more
burdensome for smaller platforms with limited resources. As such these rules would
have a limited impact on gatekeepers, and possible a negative impact on smaller
platforms due to the disproportionate regulatory burden on them. Because of its wider
scope encompassing all platforms, this option would also lead to high enforcement and
coordination costs for authorities.
245. The impact on business users and SMEs would be dependent on whether they would
qualify as platforms themselves. For non-platforms, the stricter rules would provide
benefits across all platforms. For platforms, the impact would be beneficial if the costs
they incur for complying with new rules are lower than the benefit from a fairer
behaviour by the platform they use and/or compete with (and vice versa).
246. The impact on consumers would be limited, as the mitigated impact on the platform
economy (due to its scope regulating also smaller platforms) would also limit this
option’s positive impact on consumers.
247. Therefore, an option based on the P2B Regulation, targeting not only gatekeepers but all
platforms, was discarded as this would constitute a mismatch with the problems and
their drivers as identified in this Impact Assessment.
248. The reversed scenario – i.e. changing the scope of P2B Regulation to gatekeepers only –
would not be a conceivable way forward as it would eliminate the beneficial impact of
its fairness and transparency rules addressed to non-gatekeeper platforms.
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5.4.2. Information obligations without addressing unfair conduct
249. Furthermore, at the Inception Impact Assessment stage, an option was considered which
would empower a regulatory body to collect information from large online platforms
acting as gatekeepers. These data-gathering powers would be supported by enforcement
powers in case of refusal to supply this information. The purpose would be to better
inform the implementation of the existing legal framework by gaining, for example,
further insights into gatekeepers’ business practices and their impact on these platforms’
users and consumers, the scope of gatekeepers’ data gathering, treatment of their own
downstream operations compared with those of third parties and indicators of the
outcomes resulting from these practices.
250. The impact of this option on the internal market would consist of a better knowledge of
platform ecosystems but it would not lead to any improvement of the internal market
functioning as it would not set any behaviour-changing rules. Furthermore, by leaving
the problems unaddressed the option would include a risk for the identified issues to be
addressed at national level, resulting in legal fragmentation limiting the digital market
functioning.
251. In the same way, the impact of this option on growth, innovation and competition would
be limited, as it would only increase regulators’ understanding of gatekeepers’ trading
practices and business models but not foresee any regulatory measures. There might be
a reputational effect associated with more transparency but this would not affect
competition (substantially).
252. The impact on platforms would be limited and focused on gatekeeper platforms as other
platforms would not be subject to legal obligations and information requests would be
proportionate. There would be a benefit to smaller platforms in the long run due to
regulators’ better understanding of the issues and their effective redress. Enforcement
costs would be incurred by the Commission, but this would be in the public interest
since it would allow a better understanding of the platform economy and hence increase
EU public administration capacity to tackle related issues.
253. The impact on business users and SME’s would also be limited. Irrespective of the type
of business user concerned, i.e. platform or not, the information-gathering mechanism
would only allow a better understanding of issues at hand but would not change
competing business users’ situation vis-à-vis gatekeepers. While SME platforms and
business users could be requested to provide information to enforcement authorities, this
would not be a legal obligation for them. The authorities’ increased insight into
gatekeepers’ practices would enable better regulation and enforcement and thus have a
positive impact on all SMEs. This impact would, however, be delayed in time given the
time-frames applicable to any legislative process.
254. There would not be a concrete impact on consumers in the short term, as this option
would only provide further insight in how gatekeepers treat consumers and the role
played by consumers in business models.
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255. Therefore, an option limited to improving access to information on the issues at stake
was discarded as it would be insufficient to address the problems identified in this
Impact Assessment or affect their drivers.
5.4.3. A broad scope across markets
256. Finally, as indicated in the Inception Impact Assessment, an option of having a market
investigation regime with a horizontal scope (i.e. extending to all markets) as
opposed to just a digital scope was considered. Under this option, market investigations
would also be applicable to non-digital markets, which are not directly part of the
objectives of this initiative. In fact, respondents to the OPC indicated that market
failures occur in all sectors and markets and highlighted that no sector is immune to
(potential) market failures.214 At the same time, a high number of respondents who
indicated that market failures can occur in all sectors and markets mainly pointed to
digital examples in their replies. Respondents indicating that market failures mainly or
solely occur in digital sectors/markets argued that the characteristics of the digital sector
(e.g. economies of scale and scope, data accumulation and dependency, network effects,
lock-in, zero pricing) make digital markets particularly prone to the emergence of quasi-
monopolistic market structures.
257. BEUC pointed out that competition law enforcement in digital markets, though
important, has not been effective enough in dealing with all problems in these markets
and consequently not been able to remedy, let alone prevent, harm to consumers in a
timely manner.215 Indeed, there is an extensive economic literature and numerous
reports as explained in Section 2 describing the growth of digital markets and their
particular characteristics that makes them prone to market failures, and where resources
would be better focused, at least at the initial stage of any new investigation regime.
258. This option would not allow an immediate and continuous response to the most pressing
instances of gatekeeper related market failures in respect of key digital markets. In fact,
it would divert the focus of investigations to other markets which are not in the scope of
this initiative and would therefore not be very effective in addressing the market failures
listed in Section 2.3.1. In the particular case of the problem driver related to the
fragmented regulation of digital markets, this option would not be effective as it would
not set common rules to address unfair practices and increase market contestability in
digital markets and would therefore not lead to a more coherent regulatory approach
across the EU.
214
See Summary of the Stakeholder Consultation on the New Competition Tool.
215
See workshop with BEUC members on the Impact Assessment for a possible New Competition Tool, 1
October 2020. See also BEUC’s response to the OPC on the NCT: “challenges posed in particular by large
players in digital markets require new instruments in addition to traditional competition law enforcement in
order to protect consumers’ interests in an effective and timely manner.”
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259. In terms of efficiency, this option would result in a large amount of resources being
dedicated to other investigations, and thus limit those available to tackle the pressing
problems in digital markets. The costs for the regulatory authority would be necessarily
higher than all the alternatives considered with no additional benefits in terms of its
ability to achieve the objectives listed in Section 4.
260. Therefore, an option to have a market investigation regime extended to all markets was
discarded as it would be out of the scope of this initiative and not focused in addressing
the problems identified in this Impact Assessment or affect their drivers.
6. WHAT ARE THE IMPACTS OF THE POLICY OPTIONS?
261. This section presents the main impacts of the three options described in Section 5.3
compared to the baseline scenario.
262. The categories of stakeholders which would be affected, directly or indirectly, by the
retained policy options are: platforms (gatekeepers and non-gatekeeper platforms),
business users depending on platforms (e.g. hotels, sellers in marketplaces, app
developers, banks) and possibly competing with the gatekeeper, competitors (e.g.
innovative entrants), consumers, and regulatory authorities. Impacts for these
stakeholder categories have been assessed in the following sub-sections covering the
internal market (Section 6.1), growth and productivity (Section 6.2), competition and
innovation (Section 6.3), international trade (Section 6.4), employment (Section 6.5),
businesses – i.e. gatekeepers and SMEs in their role both as competitors and business
users – (Section 6.6), consumers (Section 6.7) and regulatory authorities (Section 6.8).
263. By way of background, among the respondents who replied to the relevant question in
the OPC, 91% agree that there is a need to consider dedicated regulatory rules to
address negative societal and economic effects of gatekeeper platforms. 216 This view is
supported by many targeted submissions by different groups of stakeholders, such as
small and medium platforms and their associations, telecom operators and their
associations as well by national regulatory authorities in different sectors (e.g. electronic
communication services).
264. For the impacts developed in this section see also Annex 3 to the Impact Assessment,
which specifies in detail who would be affected by the preferred option and how.
265. The problems and their underlying drivers as identified in Section 2 can lead,
individually and jointly, to a number of negative outcomes specified where relevant in
this section.
216
See Annex 2.1: Synopsis Report Open Public Consultation Ex Ante Rules.
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6.1. Internal market
266. Preventing fragmentation of the internal market is one of the most important policy
objectives enshrined in the Treaties of the EU, and preserving the cross-border nature of
the platform economy contributes to this objective. A 2016 European Commission
Communication on the opportunities and challenges of online platforms for the Digital
Single Market stressed the pivotal role of online platforms in the European single
market. Services and products such as search engines, price comparison websites, online
marketplaces and creative content outlets offer strong links to the rest of the
economy.217 A conservative estimate at the time of the Communication put the number
of EU companies in Europe ´heavily´ using online platforms to trade goods and services
at one million, with more than 50% of these being SMEs.
267. A study requested by the IMCO committee of the European Parliament concludes that
interventions aiming at increasing the contestability of the digital sector would have a
significant positive and growing contribution to achieve all of the potential benefits of a
Digital Single Market, also resulting in lower prices and greater consumer choice,
productivity gains and innovation.218
219
268. Christensen et al (2018) estimated, using the RHOMOLO model , that implementing
the third pillar of the Investment Plan for Europe, including efficiency gains from the
Digital Single Market, would contribute to a 1.5% increase in GDP per year until 2030
and create between 1 and 1.4 million jobs.220 In particular, the impact of a more efficient
Digital Single Market ranges from 0.44 to 0.82% changes in GDP and between 307 and
561 thousand additional full-time equivalents (‘FTEs’).
269. As explained in Section 2, national legislations have started appearing or are under
consideration in different Member States, which drives fragmentation of the Digital
Single Market in the platform space. One of the main objectives of this initiative is
therefore precisely to prevent the fragmentation of digital markets. Option 1 would
already allow some quick alignment of platform-related rules across the EU through
horizontal measures by relying on automatic quantitative criteria to identify gatekeepers
and implementing immediately all obligations. However, given its static nature, it would
leave scope for some market fragmentation. Under sub-option 1-A, the obligations
would be applied to a smaller number of gatekeepers. This could create some
fragmentation resulting from the different treatment given to the largest (and thus
captured by the quantitative designation process) gatekeepers, as platforms exhibiting
similar features and characteristics as the largest gatekeepers would be subject to no
217
https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52016DC0288&from=EN.
218
Contribution to Growth: European Digital Single Market: Delivering economic benefits to citizens and
businesses (2019).
219
For more information see: https://ec.europa.eu/jrc/en/rhomolo.
220
M. Christensen, A. Conte, F. Di Pietro, P. Lecca, G. Mandras, & S. Salotti (2018), The third pillar of the
Investment Plan for Europe: An impact assessment using the RHOMOLO model (No. 02/2018). JRC
Working Papers on Territorial Modelling and Analysis.
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obligations. Under sub-option 1-B, this possible difference in treatment between
gatekeepers is less likely but there is a risk that some platforms which do not exhibit
gatekeepers features and characteristics are forced to comply with the obligations,
reducing their ability to compete with the gatekeepers.
270. Option 2 would capture a broad scope of unfair practices (via a dynamic updating
mechanism) and gatekeepers (including those platforms falling only under the
qualitative criteria as well as those platforms that are expected to enjoy a gatekeeper
position in the near future). Gatekeepers would thus be treated in a harmonised way
across the EU. It would still imply some delay in enforcing the obligations for
gatekeepers designated on the basis of the qualitative criteria. Under sub-option 2-A,
and as compared to sub-option 2-B, these delays would be more predominant, as a
higher number of gatekeepers would have to be designated via a market investigation.
In any case, the possible fragmentation associated to the unequal treatment of
gatekeepers discussed under Option 1 would be less likely and only occur temporarily.
271. Option 3 would, on the one hand, add to Option 2 by tackling a broader scope of unfair
practices by gatekeepers in additional digital services, thus allowing full harmonisation
across the EU. On the other hand, this option could result in a staggered implementation
of the measures because of the delays associated to the need for the regulator (i) to
conduct market investigations to designate every gatekeeper and (ii) to engage in
dialogue with each gatekeeper for the implementation of all obligations.
6.2. Growth and productivity
272. The platform economy contributes heavily to the European economy as revealed by its
size and is expected to continue to grow steadily. The digital economy was estimated to
account for between 4.5% to 15.5% of global GDP in 2019, depending on the
definition.221 Traffic share is one of the most important proxies of the sector. The top 50
online platforms represent 60% of the traffic share in Europe reaching revenues for
about EUR 276 billion in 2018 and employing almost 600 000 people.
273. The European market of online platforms makes a significant contribution to GDP and
the European economy as a whole. Revenues of the sector in Germany for instance
reached EUR 33 billion in 2015. Cross-border ecommerce in Europe was worth EUR
143 billion in 2019 (without travel), and 59% of this market, EUR 84 billion, is
generated by online marketplaces. Marketplaces with European capital represent 11% of
the market, an increase of 17% compared to one year before.222
274. As already explained in the recent P2B Regulation impact assessment, trade
intermediated through online platforms is expected to follow an upward trend as most
221
UNCTAD (2019), Digital economy report.
222
Cross-border Europe, annual analysis of the best global cross-border platforms operating in Europe, EU 28.
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consumers opt for platforms when purchasing goods and services online.223 B2C e-
commerce turnover was growing at an average pace of 13% between 2014 and 2019
with turnover forecasted to hit EUR 621 billion in 2019 and is set to be worth EUR 717
billion in 2020. This sector is expected to increase in value by around 14% per year. 224
In addition, the COVID-19 crisis accelerated the shift to online retail at an
unprecedented pace pointing to the importance of the online platform economy. Usage
of digital devices has increased significantly during the COVID pandemic, which is
likely to increase the relative importance of online platforms compared with the off-line
world. Specifically, following the lockdown, one global survey found that consumers
spent more time on social media and mobile applications (by 47% and 36%
respectively).225
275. More generally, several empirical studies confirm that more competition on markets
results in higher productivity in affected industries, which translates into economic
growth.226 Other studies also confirm the positive effects of competition on the
productive efficiency of companies due to (i) ‘between-firms’ effect, by which better
companies succeed while the worst ones fail and leave the market, and (ii) a ‘within-
firm’ effect by which companies in competitive environments are better managed.227
276. Addressing gatekeepers’ unfair business practices would have a positive impact on the
online platform economy in general. The envisaged measures would limit the chilling
effects unfair conduct has on sales. Since gatekeepers are such an important channel to
reach markets and consumers, business users argue that unfair practices (e.g. pretended
privacy considerations, limitation to data access, etc.) would lead to up to 15% loss in
223
Impact Assessment Annexes, SWD(2018) 138 final: 71% of consumers would have preferred platforms for
their purchases. This figure is an underestimate given the COVID epidemics but provides already an idea of
the important use of platforms by consumers.
224
European Ecommerce Report 2017. While the causal link between GDP growth and the economy of online
platforms is difficult to demonstrate, considering these figures, it is reasonable to expect a relatively
significant positive and growing contribution of the platform economy to the digital internal market and
economic growth.
225
Hootsuite Digital 2020 global statshot report.
226
Ahn (2002) similarly concluded that “[a] large number of empirical studies confirm that the link between
product market competition and productivity growth is positive and robust. […] Empirical findings from
various kinds of policy changes […] also confirm that competition brings about productivity gains,
consumers’ welfare gains and long-run economic growth". S. Ahn (2002), Competition, Innovation and
Productivity Growth: A Review of Theory and Evidence, OECD Economics Working Paper No. 317. See also
S. Nickell (1996), Competition and Corporate Performance, Journal of Political Economy, volume 104(4),
pages 724-746, which found that the most competitive firms experienced productivity growth rates 3.8-4.6%
higher than the least competitive. See also R. Disney, J. Haskel & Y. Heden (2003), Restructuring and
productivity growth in UK manufacturing, The Economic Journal, volume 113(489), pages 666-694; R.
Blundell, R. Griffith & J. van Reenen (1999), Market Share, Market Value and Innovation in a Panel of
British Manufacturing Firms, Review of Economic Studies, volume 66(3), pages 529-54; S.I. Januszewski, J.
Köke & J.K. Winter (2002), Product market competition, corporate governance and firm performance: an
empirical analysis for Germany, Research in Economics, volume 56(3), pages 299-332.
227
J.M. Arnold, G. Nicoletti & S. Scarpetta (2011), Regulation, Resource Reallocation and Productivity
Growth, European Investment Bank Papers, volume 16(1), pages 90-115; OECD’s project of 2013 on
Supporting Investment in Knowledge Capital, Growth and Innovation.
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their sales.228 Businesses, especially smaller ones, would be more confident in engaging
with gatekeepers if the latter (are obliged to) comply with clear fairness rules. From that
perspective, a regulatory action would be expected to result not only in more sales
through smaller platform but also to have a positive impact on market growth.
277. Importantly, competitive entrants contribute to growth in the digital sphere; the
obligations considered – e.g. data access or interoperability - can allow entrants to grow
and compete effectively. While digital market features exacerbating the problem drivers
(such as e.g. network effects) cannot be changed, the rewarding effect on gatekeepers’
further expansion - when that expansion is due to unfair business conduct - can be
attenuated by the measures proposed. The measures would thus create fairer and more
equitable conditions for all market players, allowing them to take greater advantage of
the growth potential of the platform economy.
278. All three options considered would reinforce trust in the platform business environment.
Option 1 would do it in a quick but relatively static way, and could originate some
frictions in the business environment by leaving no room for any implementation
dialogue. In terms of sub-options, under sub-option 1-A those frictions would only
affect the largest gatekeepers, while under sub-option 1-B, there could be a larger
number of gatekeepers impacted. Option 2 would be less immediate but particularly
effective in that it foresees an adaptable framework, based both on a clear set of
immediately applicable obligations and a flexible list of obligations subject to an
assessment of the applicability of the conducts to the specific case. It would also allow
tackling practices in markets where there is a risk of tipping, and contribute to a more
competitive platform ecosystem. Option 3 would additionally allow a dynamic
updating of the list of core platform services, thus tackling a potentially larger set of
digital services than Options 1 and 2. However, it would have the drawback of delaying
(i) the implementation of obligations which could be made immediately aplicable under
Option 2 and (ii) the designation of the largest gatekeepers that could be quickly
identified on basis of quantitative criteria under both Options 1 and 2. By giving too
much discretionarity power to the regulator, Option 3 could also give rise to a risk of a
lower level of legal certainty, which would impact negatively the business environment.
6.3. Competition and Innovation
279. Weak market contestability and lack of competition - driven by gatekeepers’ strong
bargaining power and market features leading to entry barriers - are among the
problems identified in this Impact Assessment. There are strong links between patterns
of innovation and competition. When businesses compete more fairly on their merits,
this incentivises them to innovate and offer a better range of higher quality products and
services that meet consumers' expectations. Greater competition also drives efficiency
in processes, technology and service. According to Federico et al. (2019), a significant
228
Commission services’ meetings with stakeholders.
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amount of innovation is driven by disruptive firms. By making its offer to customers
attractive in a new way, a disruptive firm can destroy a great deal of incumbent profit
while creating a large amount of consumer surplus. Competition enforcement precisely
seeks to protect the competitive process by which disruptive firms challenge the status
quo.229 Several empirical studies confirm that an increase in competition leads to a
significant increase in R&D investment by neck-and-neck firms.230 Conversely, the
view according to which market concentration or large firm size is associated with a
higher level of innovation is not supported by empirical evidence.231 Shapiro (2012)
highlights the considerable empirical evidence that greater competition spurs
innovation.232
280. Innovation patterns in the online platform economy are characterised by the following
trends. On the one hand, online platforms drive innovation, driven by a competitive
strategy. On the other hand, network effects drive higher concentration which may
hinder innovation because it remains concentrated among a reduced number of players.
At the same time, gatekeepers – due to their impact on the entire ecosystem - are able to
set innovation trends for their sector and even beyond (i.e. to non-platform companies).
This has the double effect of spreading gatekeepers’ innovative solutions to smaller
players but could also limit the emergence of other types of innovation.
281. Although the online platform sector invests heavily in innovation, smaller companies
that depend on gatekeepers are discouraged from innovating so as not to compete with
the gatekeeper.233 Preventing patents or pre-emptive activities, for instance, is one way
to gain monopoly power and to increase barriers to entry. If this pattern is dominant, the
pace of innovation in the long run slows down.234 Acquisition of startups is another way
for gatekeepers to cement their market power.235 While acquisitions may have a positive
229
G. Federico, F. Scott Morton & C. Shapiro (2019), Antitrust and Innovation: Welcoming and Protecting
Disruption, NBER Working Paper No. 26005.
230
P. Aghion, N. Bloom, R. Blundell, R. Griffith & P. Howitt (2005), Competition and Innovation: an Inverted-
U Relationship, The Quarterly Journal of Economics, volume 120(2), pages 701-728. On empirical work, see
P. Aghion, S. Bechtold, L. Cassar & H. Herz (2014), The causal effects of competition on innovation:
Experimental evidence, Journal of Law, Economics, and Organization, volume 34 (2), pages 162-195.
231
S. Ahn (2002), Competition, Innovation and Productivity Growth: A Review of Theory and Evidence, OECD
Economics Working Paper No. 317; R. Gilbert (2007), Competition and innovation, Competition Policy
Centre, UC Berkeley.
232
C. Shapiro (2012), Competition and innovation. Did Arrow hit the bull’s eye?, chapter 7 of Josh Lerner and
Scott Stern (eds.), The Rate and Direction of Inventive Activity Revisited, pages 361-404.
233
https://ec.europa.eu/digital-single-market/en/news/impact-assessment-proposal--promoting-fairness-
transparency-online-platforms.
234
R. Gilbert & D. Newbery (1982), Preemptive patenting and the persistence of monopoly. The American
Economic Review, volume 74(1), pages 514-526.
235
The magnitude of online firms' acquisition is on the rise as highlighted by the Furman report, Unlocking
digital competition, Report of the Digital Competition Expert Panel, reporting that the top 5 larger online
platforms have carried out more 400 acquisitions worldwide in the last 10 years.
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effect for entrepreneurship and innovation, in the long-run they may result in higher
market concentration and insufficient diffusion of innovation.236
282. The evidence shows the concentration of R&D investment among few dominant firms,
and with a sustained trend. The trends in the investment in R&D depicted in our Impact
Assessment study suggest a cluster of high volumes of investment among big five
companies; and a widening gap across time between large and small companies. The
study shows that financial resources that could be invested in R&D are diverted to
mergers and acquisitions, which results in higher market concentration instead of
increase in the quality and quantity of products and services for consumers. The pattern
of innovation dedicated to competing 'for the market' has a detrimental effect on
consumer choice and surplus.237
283. Moreover, market concentration results in accumulation of cash-flow that is available
for R&D investment and innovation or mergers and acquisitions. The Impact
Assessment study illustrates the concentration of liquidity among the top five
companies, each of them ranging between 10% up to 30%, while the remaining 17
companies are on average below 1%. Five companies accumulate 90% of total free
cash-flow that could be distributed among all 22 companies. This suggests that smaller
companies may face some financial constraints, failing to attract venture capital to
finance R&D projects, while large firms have enough own funds to embark on
innovation.
284. Furthermore, Carayannis et al (2014) shows that innovation and productivity are
important drivers for competitiveness.238 Autor et al (2020) and Decker et al (2018)
show that a growing productivity gap between very big firms and the rest may result in
lower business dynamism and lower productivity growth.239 A more efficient Digital
Single Market with the right incentives to innovate should contribute to a more
competitive EU digital economy. The measures under consideration are the most
effective in increasing market contestability and can be expected to contribute to lower
prices for business users due to increased competitive pressure. For instance, promoting
switching through e.g. rules against the misuse of data, self-preferencing, or lack of
inter-operability can enhance competition and contribute to dynamic patterns of
innovation.
236
K.A. Bryan & E. Hovenkamp (2020), Antitrust limits on startup acquisitions, Review of Industrial
Organization, volume 56, pages 615–636.
237
See IA support study.
238
E. Carayannis & E. Grigoroudis (2014), Linking innovation, productivity, and competitiveness: implications
for policy and practice, The Journal of Technology Transfer, volume 39(2), pages 199-218.
239
D. Autor, D. Dorn, L.F. Katz, C. Patterson, & J. Van Reenen (2020), The fall of the labor share and the rise
of superstar firms, The Quarterly Journal of Economics, volume 135(2), pages 645-709 and R.A. Decker,
J.C. Haltiwanger, R.S. Jarmin & J. Miranda (2018), Changing business dynamism and productivity: Shocks
vs. responsiveness. Technical report, NBER.
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285. Option 1 is expected to have a positive and quick impact on overall innovation and
competitiveness since it would immediately create a fairer and more balanced business
environment for business users and platforms; the largest gatekeepers’ compliance costs
may decrease to certain extent gatekeepers’ innovation ability but given those
gatekeepers’ financing capabilities, the regulation would not substantially affect their
innovation capacity. The lack of flexibility of Option 1 in relation to the implementation
of all the obligations could however have a negative impact on the innovation efforts of
those companies. Depending on the sub-option considered, the potential effects would
be different: in case of sub-option 1-A, this lack of flexibility would affect only very
large platforms (which are nonetheless the ones with the highest financial capabilities),
while under sub-option 1-B, it would affect many more platforms (including some that
may not exhibit the features and characteristics of a gatekeeper).
286. Options 2 and 3 would in principle affect more platforms, including those that are
expected to enjoy an entrenched gatekeeper position in the near future. In theory this
could have a direct negative impact on the innovation incentives of some smaller
gatekeepers. However, by more broadly and flexibly addressing the issues encountered
by gatekeepers’ business users and creating more competitiveness opportunities, these
two options would allow the creation of a healthier business environment for other
platforms contributing to restoring and/or installing competitive dynamics in the
platform economy. Alternative platforms are currently facing a number of challenges
e.g. for developing compelling offers (lack of data and consumers due to strong network
effects), for accessing venture capital for competing services, portability, risk of
leverage, etc. Also, business users (e.g. e-commerce merchants, service providers and
application developers) face issues such as dependency, unfair contractual relations,
unequal distribution of revenues/profits and exclusion. In light of this, the expectations
for Options 2 and 3 are to spur overall technological innovation in the digital markets
(concentrated so far within a limited number of gatekeepers) to other market players,
thus creating more competition and innovation to the ultimate benefit of consumers.
Both options are in this respect estimated to yield direct benefits of many billions of
euros annually, in addition to improved innovation levels and entrepreneurship, which
are complex to quantify in precise terms but likely equally if not more important in size
and impact. Option 3 could have a broader impact than Option 2 by potentially affecting
companies in a larger set of digital markets, but would also give rise to a lower level of
legal certainty for gatekeepers and business users as a result of the excessive
discretionary powers attributed to the regulator, and thus potentially risk some of these
companies’ innovation efforts.
6.4. International trade
287. The promotion of higher competitiveness of digital markets is of particular importance
in increasing trade and investment flows. According to an United Nations Conference
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on Trade and Development (‘UNCTAD’) report,240 digitalisation contributes
significantly to increasing the scale, scope and speed of trade. 'Information and
Communication Technologies (‘ICT’) products are already a significant part of the
global trade (in 2017 they are estimated to have reached USD 530 billion, representing
10% of total global trade in services).
288. All three options are designed in such a way as to target any gatekeeper platform in an
objective and non-discriminatory manner (see Section 5.2.1). The objective scoping
criteria applicable to all options target EU presence and do not take into account the
location of the corporate headquarters of the company in question. In doing so, the
options would be future-proof and consistent with the EU’s international obligations,
including non-discrimination under the General Agreement on Tariffs and Trade and the
World Trade Organisation. The EU is a major market which will remain open for
business but competition in the EU should remain fair and markets contestable.
289. In addition, as mentioned in Section 1.1, an intense debate is on-going about the need to
regulate gatekeepers in most jurisdictions around the world such as Japan241,
Australia242, US243 or China pointing to the global consensus on the need to complement
competition policy with ex ante measures (see also Annex 5.3 to the Impact
Assessment). This debate has included deep reflection processes in most of the EU’s
main trading partners, many of which are considering options similar to the ones
presented in this Impact Assessment.
290. For example in the US, antitrust hearings of Amazon, Apple, Facebook, and Google
have taken place in the US Congress House of Representatives and before the Federal
Trade Commission.244 In October 2020, the House of Representatives’ Committee on
the Judiciary issued a Majority Staff Report in which a broad range of significant
remedies are proposed, following a detailed assessment of the effects of a number of
unfair and anticompetitive practices by these platforms, in order to restore competition
in digital markets.245 These remedies notably include structural separation, line of
business restrictions as well as non-discrimination rules for dominant platforms
including on access and pricing.
291. Finally, the present initiative would establish a proportionate regulatory framework
promoting a fair and contestable online platform environment in the EU, one in which
240
UNCTAD (2019), Digital economy report.
241
Japanese Fair Trade Commission Report regarding trading practices on digital platforms, October 2019.
242
ACCC report, Digital Platforms Inquiry, Final Report, June 2019; Japanese Fair Trade Commission Report
regarding trading practices on digital platforms, October 2019.
243
Stigler Center report, Committee for the Study of Digital Platforms Market Structure and Antitrust
Subcommittee Report, July 2019.
244
https://judiciary.house.gov/calendar/eventsingle.aspx?EventID=3113; https://on.ft.com/33Bnq6T;
https://www.ftc.gov/policy/hearings-competition-consumer-protection
245
US House of Representatives Majority Staff Report, Investigation of Competition in Digital Markets,
October 2020.
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new platforms can emerge and scale-up, to the benefit of users around the globe, not
just in the EU.
6.5. Employment
292. An overview by the OECD of the main literature covering the links between
competition and employment confirms that market competition stimulates employment
growth in the long term.246 The aggregate effect mainly results from a positive impact
on productivity growth, which increases labour demand, and through aggregate demand,
given that more competition lowers prices and therefore tends to increase real wages.
This generates a virtuous circle of output and demand growth in the long run.247
293. In the short run, the response to increased competition can lead to an increase in
unemployment, e.g. through process innovation that replaces labour intensive
machinery with new machines to increase productivity at the cost of labour. However,
econometric simulations of the effect of increased competition leading to redundancies
in an industry demonstrate a return to a steady growth path with rising employment after
two to three years.248
294. According to an UNCTAD report,249 digital transformation has strongly contributed to
job creation across the G20. Between 2006 and 2016, total employment in the G20 grew
by 13%, a net gain of almost 127 million jobs with highly digital-intensive sectors
contributing with 43% of these net job gains. Jobs in the ICT sector comprised 11.8% of
total employment of the G20 countries, in 2017. The Covid-19 crisis called for the
adoption of new labour regulations favouring teleworking regimes. Digital services are
of extreme importance as tools enabling teleworking regimes. Therefore, making these
services more accessible is even more important today for a functional labour market.
295. One of the studies carried out by the Commission250 suggests the possible creation of
thousands of additional jobs in case of regulatory corrective measures (see Annex 3 to
the Impact Assessment). Even under the assumption that no additional jobs would be
created, given the millions of people employed in the sector and the millions of SMEs
depending on online platforms to reach their customers, taking adequate measures to
ensure the proper functioning of the platform economy would safeguard these millions
of jobs.
246
OECD (2015), Does competition kill or create jobs?, OECD Global Forum on Competition,
DAF/COMP/GF(2015)9.
247
See also A. Dierx, J. Heikkonen, F. Ilzkovitz, B. Pataracchia, M. Ratto, A. Thum-Thysen & J. Varga (2015),
Distributional macroeconomic effects of EU competition policy – A general equilibrium analysis, paper to be
published in a World Bank-OECD publication on Competition Policy, Shared Prosperity and Inclusive
Growth, who estimate that enforcement of the EU competition rules by the European Commission has a
sizeable impact on the creation of new jobs (they estimate around 650 000 after 10 years).
248
OECD (2015), Does competition kill or create jobs?, OECD Global Forum on Competition,
DAF/COMP/GF(2015)9, paragraph 78.
249
UNCTAD (2019), Digital economy report.
250
See IA support study.
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6.6. Businesses251
6.6.1. Gatekeepers
296. First and foremost, it should be stressed that there is broad consensus across various
firms of different sizes and business models in the tech community that there is a need
for rules addressing the detrimental impact of gatekeeper practices and conduct.252 Most
respondents to the OPC, including businesses and business associations, consumer
associations and NGOs, also agreed with the possibility to adopt a combination of
policy options to address concerns in digital markets.253
297. Second, as explained in Section 5.2.1, this initiative also foresees a mechanism for the
designation of gatekeepers subject to the list of obligations that would capture those that
are effectively gatekeepers prone to engaging in unfair conduct and/or reducing the
contestability and competition in digital markets.
298. Third, the targeted scope of options imposing rules only on the largest platforms, or on
undertakings contributing to a market failure, strongly contributes to the proportionality
of any potentially resulting compliance costs.
299. Evidence shows gatekeepers’ increasing supra-normal profits as well as their ability to
(i) obtain conditions that would not be possible under normal market circumstances, and
(ii) act independently from competitors, business users and consumers. For instance, the
graph below shows that some of the largest companies by market capitalisation included
in the S&P 500 index in November 2020 are the companies running some of the most
important digital platforms.254 Also the multiple antitrust investigations on abuse of
dominance against many gatekeepers provide relevant evidence about the unfair
conditions imposed on business users by those gatekeepers (see Section 5.2.2).
251
Detailed overview of the preferred option’s implications for gatekeepers (but also for competitors, business
users and consumers) is presented in Annex 3 to the Impact Assessment.
252
OPC, direct submissions.
253
See Summary of the Stakeholder Consultation on the New Competition Tool.
254
Source: Statista.
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Figure 3 – Market capitalisation of largest companies included in the S&P 500 index,
Nov 2020
300. Compliance costs under all three options would largely substitute for the already high
costs large platforms incur for complying with divergent regulatory measures gradually
put in place in different Member States. Such costs would imply some additional legal
compliance officers to check company policies against the new rules; some employees
to interface with the regulator and respond to requests for information. These would be
higher the longer the list of obligations and the broader the digital services in scope.
Compliance costs would thus be the highest under Option 3 and Option 2 as compared
to Option 1 as it would include potentially more practices as a result of the updating
mechanism and the need to reply to more requests for information in the context of
market investigations. On the other hand, the fact that Option 1 would not allow for any
dialogue for the implementation of the obligations, would give rise to additional
compliance costs as compared to the other two options. In terms of the sub-options, sub-
option A would result in lower total costs than sub-option B as it would affect a smaller
number of gatekeepers, although the cost per gatekeeper should be the same for both
sub-options.
301. Compliance costs under all options would be miniscule as compared to the gatekeepers
revenues and could be absorbed by gatekeepers with little incentive for them to pass on
costs to business users (e.g. by limiting their access to the gatekeeper platform) or to
consumers (see Section 6.1.8).
302. Indirect (other than compliance) costs may be higher, as proposed measures are
expected to have impact on gatekeepers’ business models and potentially reduce their
supra-normal profits. The impact of such changes is difficult to quantify. While some
loss of revenue for gatekeeper is expected, there are no indications that this would result
in significantly higher fees and/or reduced quality for businesses and consumers.
Consumers are at the core of platforms’ business strategy and, due to the relevance of
indirect network effects and economies of scale, gatekeepers need to attract an
important number of consumers in order to be able to (i) attract businesses (and vice
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versa) thus allowing online matching of offer and demand, and (ii) benefit from the
virtual growth cycle characterising the platform economy.
303. All three options would moreover not be geared towards eliminating legitimate
monetisation opportunities. They would aim at eliminating unfair behaviour towards
business users and other market failures, thus rather enhancing trust in the platform
business model. A set of measures that contribute to a more dynamic online platform
economy and more contestable markets would particularly benefit smaller competitors
who would face lower barriers when entering the market. It can therefore be expected
that an increased market contestability would continue to incentivise gatekeepers to
bring innovative products to the market and compete for consumers and business users;
this even in case gatekeepers’ business models are impacted by the regulatory measures.
304. Fourth, all options are designed in a targeted way, taking into account the currently
available experience and evidence about the impact of specific unfair practices by
gatekeepers on their business users and customers as well as on the contestability of
digital markets.
305. Given that the rules only aim to prevent unfair and harmful conduct, they should not
hamper market entry (even) by gatekeepers if the latter is based on fair means of
competition. As far as they do not use their market positon in an abusive way their ‘first
mover advantage’ could be preserved.
6.6.2. SMEs
306. SMEs would not be targeted by the list of obligations as they are very unlikely to
qualify as gatekeepers. On the contrary, the adoption of rules levelling the playing field
would allow SMEs (including business users competing with gatekeepers) to grow
throughout the internal market.
307. All three options foresee a comprehensive form of regulatory oversight and SMEs
would benefit from a more innovative and competitive business environment
incentivising them to seize the digital single market opportunities and grow (see Annex
3 to the Impact Assessment).
308. Competitors and new entrants would benefit from the levelling of the playing field
and from enhanced opportunities to scale up and compete with these gatekeepers as a
result of the removal of important barriers to entry and expansion. Measures preventing
unfair self-preferencing and limitations in interoperability would give them the ability to
compete on the merits (e.g. develop their own distribution channels or their own ID
services). Data-related rules, including data portability, which would facilitate switching
and multi-homing and thereby increase potential user base would allow them to bring
innovative solutions to the market. Measures promoting multi-homing and user
switching would give competitors and new entrants a real chance to capture a new
stream of demand, propose competitive offers and grow. The increase transparency
would give them opportunities to compete more equally with the gatekeepers. Rules on
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MFN clauses would increase incentives for competitors to develop alternative (to the
gatekeepers’ ones) distribution channels, since they could expect that better service or
lower price can be awarded by the business user with better commercial conditions.
309. Given that measures envisaged under all three options are aimed at increasing market
contestability, it could be expected that they would result in more competition for
business users. Business users would have more confidence in selling online, as they
would be protected from unfair practices. Measures against data misuse would prevent
that their data are exploited for the only benefit of the platform. Access to data
generated by business users’ activity on the platform would allow them to adjust their
business model to demand and better meet customers’ expectations. Business users
would have the ability and incentive to choose among different platforms where to offer
their service/product. Business users would have an increased possibility to multi-home
and switch thus benefitting from increased choice of services and the ability to combine
services according to their actual needs and interests (due to the obligation for
gatekeepers not to make the use of the core service conditional upon the use of ancillary
services). They could as a result benefit from lower prices for intermediation services
and reduced distribution costs.
310. Finally, access to digital markets allow SMEs to increase their productivity and reduce
their costs. According to a study from OECD countries, in 2015 only 20% of SMEs
engaged in sales through e-commerce, against 40% of large firms. This digital gap
slows productivity growth and widens inequalities. More competitive digital markets
resulting in more affordable services would allow SMEs an easier access to digital
technologies. Ultimately, given that SMEs are the bulk of many national economies, a
massive adoption of digital technologies by them would generate a shift of aggregate
productivity and welfare.255 Since several of the business models of the gatekeepers are
extensively benefiting from network effects and thereby large number of business users
or end users, it is not expected that the obligations introduced by a new framework
would result in gatekeepers terminating provision of services to SMEs that are often
dependent on these gatekeepers and their core platform services. Not only would this
remove many of the benefits that gatekeepers enjoy due to their unique position, but
could further accelerate switching by both business users and end users to alternative
providers of same or similar core platform services.
311. Option 2 and 3 as compared to Option 1 would allow the Commission to address the
issues SMEs face in the dynamic digital markets in a more agile way, including issues
associated to markets that risk tipping in the absence of an intervention and new unfair
practices by gatekeepers. By foreseeing a dialogue between the regulator and
gatekeepers for (some of) the obligations, they would allow a more flexible
implementation of those obligations that would disrupt less the commercial relationship
between gatekeepers and their business users. By foreseeing the possibility to resolve
255
See https://www.oecd.org/going-digital/sme/resources/D4SME-Brochure.pdf.
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problems stemming from additional core platform services, Option 3 would additionally
allow capturing the fast changing character of digital markets, but at the same time
would give rise to a risk of a lower level of legal certainty to gatekeepers and business
users as a result of the discretionary power given to the regulator. On the other hand,
Option 1 could have an immediate effect on SMEs by allowing the automatic
identification of all gatekeepers under scope and the immediately implementation of all
obligations. In terms of sub-options, sub-option A would benefit more the business
users of the largest platforms that would be captured by a high quantitative threshold,
while sub-option B would benefit also business users of smaller platforms.
6.7. Consumers
312. Digital markets are becoming more and more relevant for consumers. According to the
Digital Economy and Society Index (‘DESI’) 2020’, internet use has continued to
increase year-on-year with 85% of Europeans surfing the internet at least once per
week.256 Using the internet for listening to music, playing games or watching videos is
still the most common activity (81% of individuals). Reading news online is the second
most popular activity (72% of individuals), followed by e-commerce (71%), bank
online (66%) and social networks (65%). According to Eurostat figures, more than six
out of 10 consumers from the EU28 made online purchases in 2019, the highest
proportion made purchases three to five times in a period of three months and bought
goods or services for a total of between EUR 100 to EUR 499.257 Improving
competition enforcement in digital markets is thus particularly relevant for the
protection of European consumers.
313. Even though the digital sector and the companies offering digital services contribute
strongly to consumer surplus, the increased market concentration in digital markets does
not allow consumers to enjoy the full potential of these dynamic markets. In fact, the
high concentration level is detrimental for consumer surplus as it results mainly in lower
choice and higher prices/costs. Although data to estimate the loss in consumer surplus is
limited, there is some illustrative evidence. For example, if commission fees in large
app stores were to be reduced from 30% to 15%, the average prices of apps and digital
content acquired through these apps would fall, which would increase consumer surplus
by up to EUR 490 million in the EU per year based on Statista data.258
314. The choices for consumers are limited by lock-in effects and lack of innovative
alternatives that are restricted by gatekeepers’ unfair business practices and more
generally by the market failures in digital markets. In the longer run, consumers risk
experiencing lower quality and/or less innovative services and/or higher prices. This
256
See https://ec.europa.eu/digital-single-market/en/use-internet.
257
See https://ec.europa.eu/eurostat/statistics-explained/pdfscache/46776.pdf.
258
See IA support study.
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initiative aims at addressing these concerns with a view to ensuring optimal and secure
consumer experience online.
315. A regime that protects EU consumers from business practices that keep the prices of
goods and services artificially high would ensure that consumers have access to better
quality, wider choice and innovative goods and services at affordable prices. Numerous
studies confirm the benefits of competitive markets for consumers.259 More competitive
digital markets will allow consumers to multi-home among alternative platforms
offering differentiated commercial propositions. In addition, some of the measures
considered under the options aim at reducing the search and switching costs associated
with mulit-homing, for instance by allowing portability of data, creating conditions for
interoperability, increasing transparency in the market, etc.
316. All options would indirectly contribute to safeguarding value added for consumers and
to ensuring greater respect of privacy and consumer interests.260 This would be achieved
by contributing to (i) fairer competition on gatekeeper platforms (intra-platform
competition) and among platforms (inter-platform competition), (ii) stronger
contestability of the markets where gatekeepers are present, and (iii) better functioning
of the internal market through enhanced regulatory oversight at EU level.
317. It is also important to notice that although interventions foreseen by this initiative may
require changes to the existing business models, this does not risk harming consumers.
The need for gatekeepers to maintain a large user base in order to optimise indirect
network effects and higher level of contestability and competition in which the assessed
measures would result, will rather increase gatekeepers’ incentive to innovate and offer
lower prices.
318. It could also be argued that the rules under assessment would lead to curtailing the size
of network effects and economies of scale thus reducing associated advantages for
consumers. It is important to note that the objectives behind the measures considered
aim at allowing also non gatekeeper platforms benefitting from such advantages. This
would contribute to a competitive dynamics that benefits consumers who will be able to
259
See for instance S. Ahn (2002), Competition, Innovation and Productivity Growth: A Review of Theory and
Evidence, OECD Economics Working Paper No. 317. See also for example, a study by the European
Commission (2015) on The Economic Impact of enforcement of competition policies in the functioning of EU
energy markets, which found that the Commission's decision finding an abuse of dominance by E.ON lead to
a reduction in prices for both wholesalers and retailers to the benefit of consumers. See also the Note by the
UNCTAD Secretariat (2014), The benefits of competition policy for consumers.
260
Online platforms benefit from asymmetry of information (they dispose of large data sets compared to
consumers). Platforms’ analytical capacity gives them the possibility to use advanced algorithms and
machine learning techniques to facilitate targeting, discriminatory practices and behavioural manipulation.
BEUC considers that such practices can have an impact on demand and distribution of wealth – “the most
vulnerable consumers might end up paying higher prices than under a competitive price scenario (when
personalisation is combined with commercial practices seeking to increase the individual consumer’s
willingness to pay). They may also be used to target biases and reinforce existing or desired viewpoints with
the aim of keeping users engaged with the firm’s platform so as to generate advertising revenues.” BEUC
(2019), The Role of Competition Policy in Protecting Consumers’ Well-being in the Digital Era.
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benefit from larger choice while gatekeepers can continue enjoying important network
effects and economies of scale and scope.
319. It should be stressed that the obligations under this initiative will neither ban specific
monetisation models (such as ad-based models) nor prevent the uptake of new services
by gatekeepers - they prevent them from acting unfairly in their operations and reduce
competition in the markets where they are present. The obligations envisaged would
also not prevent an emerging gatekeeper from enjoying network effects and economies
of scale and scope, instead they would ensure that other market players can also benefit
from those features and would thus be able to compete under fair terms and innovate.
320. Even in those cases where, due to the multi-sided character of platform markets, there is
a cross-subsidisation between the different sides with consumers benefitting from zero
prices, additional regulation-compliance costs for gatekeepers cannot be expected to
translate into ‘higher’ prices for consumers. This is so since, as explained in Section 6.6,
consumers are at the core of platforms’ business strategy of indirect network effects and
feedback loops. This is evidenced by the fact that in services like general search and
social networks, even smaller platforms offer their services to consumers for free while
obtaining their revenues via advertisers. In addition, gatekeepers would not risk losing
consumers by setting prices for services which are currently free of charge. Consumers
would expect zero-priced services to remain free of charge. Setting a price for
gatekeepers’ services that are currently free would be perceived by consumers
differently as compared to increases in already existing monetary prices (i.e. not zero).
Consequently, any attempt by gatekeepers to make users pay for services that were
previously offered for free would imply the risk for them of reducing the attractiveness
of their services and of encouraging users to switch to other platforms continuing to
offer their services free of charge.261
321. Instead of increase in consumer prices, the expected increase in market contestability
and competition would increase the diversity of offers available to consumers and
would reduce the prices for advertisers, which would then indirectly translate in lower
prices charged by those advertisers when selling their products and services to
consumers.262,263 Current excessive expenditures on advertising per user are driven by
high market concentration, and could be a proxy for consumer detriment. For example,
in 2019 a total of EUR 55.4 billion was spent in digital ads in 21 countries of the EU
(including the UK)264, corresponding to around EUR 110 on advertising per user per
year. A more contestable and competitive market would reduce those costs significantly
(e.g. a reduction of 10% in ads expenditure would already generate gains of more than
261
Cf. General Court in Cisco and Messagenet.
262
In fact, higher advertising prices represent increased costs to the companies producing goods and services
which are purchased by consumers. These costs are expected to be passed through to consumers in terms of
higher prices for goods and services, even if the downstream market is highly competitive.
263
See Section 6 of CMA report on Online platforms and digital advertising.
264
See IAB Europe AdEx Benchmark 2019 Report.
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EUR 5 billion per year). In addition, for many digital markets where consumers are
offered services ‘free of charge’, in practice they receive the service in exchange for
their attention and their data, which can then be monetised through digital advertising.
In a more contestable and competitive market, it would be clear to consumers what data
is collected about them and how it is used and, crucially, consumers would have more
control over their data.265
322. Moreover, the Impact Assessment study for this initiative estimates that gatekeepers’
financial resources that could be invested in R&D are currently diverted to mergers and
acquisitions, which results in higher market concentration instead of increase in the
quality and quantity of consumer products and services. This pattern of innovation
dedicated to competing 'for the market' has a detrimental effect on consumer choice and
surplus. In addition, the positive impact on innovation stemming from higher market
contestability is not limited only to diversion of money from mergers and acquisitions to
R&D. Other expected indirect effects include an increase in entrepreneurship and
creation of new products and solutions meeting consumers' needs rather than focused on
exploiting a gatekeeping position. This may have a multiplicative effect increasing the
size of the European single market, and hence, GDP and online cross-border trade. All
options are estimated to allow to recover to a large extent this opportunity cost. All
options would thus have a clearly positive effect on overall welfare.
323. As shown in Section 6.6.2, all three options would lead to positive implications for
business users who would benefit from reduced prices for intermediation services. This
in turn would allow business users to lower prices for consumers and offer them higher
quality of service. Consequently, consumers would benefit from increased choice of
products and services, better tailored to their needs (since they would e.g. be able to
have a direct contact with businesses), and offered by different business users possibly
through a larger number of platforms. This could lead to higher search costs but
consumers would still have the possibility to use the gatekeeper services, if they find it
preferable to use a single platform; their choice would however not be limited to offers
provided through/on the gatekeeper platform. They would also benefit from lower
prices for intermediation services which would be passed down to consumers in the
form of lower prices for goods and services, thus generating cost savings to consumers.
324. Following the above, all three options would generate high benefits for consumers.
Option 1 would generate immediate benefits but to a smaller extent given the risk
associated the static nature of its application. Option 2 would be more flexible, thus
favouring a more effective implementation of obligations and designation of
gatekeepers. This would create more competitiveness opportunities. It would also allow
tackling practices in markets where there is a risk of tipping as well as new unfair
practices by gatekeepers, and thus generate more consumer benefits. Option 3 would on
the one hand generate benefits for consumers of a broader range of services, and on the
265
See Section 6 of CMA report on Online platforms and digital advertising.
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other hand, risk some innovation efforts by businesses (because of the low levels of
legal certainty) with the consequent negative impact on consumers. In terms of sub-
options, sub-option A would benefit more the consumers of the largest platforms and of
the business users of those platforms, while sub-option B would benefit also the
consumers of smaller platforms and respective business users. A possible drawback of
sub-option B would be the risk of preventing platforms that are wrongly designated as
gatekeepers from competing intensively with those gatekeepers, which would thus
reduce their ability to innovate and launch new services in the market.
325. Detailed overview of the implications for gatekeepers, competitors, business users and
consumers is presented in Annex 3 to the Impact Assessment.
6.8. Regulatory Authorities
326. All three options imply enforcement costs to be essentially incurred by the EU
Commission, with some administrative burden for national authorities. This includes the
costs with preparing and processing information requests as well as the preparation of
guidelines, designation of gatekeepers, enforcement of the general obligations,
including the specification of some of the obligations. Annex 3 to the Impact
Assessment provides a qualitative and quantitative overview of these costs. As
compared to Option 1, Option 2 and Option 3 imply additional resource-related costs
both for the Commission and for national authorities. However, it can be objectively
considered that this higher administrative burden would be largely outbalanced by the
benefits of reducing the impact of practices which severely undermine the trading
conditions for millions of business users and further entrench gatekeepers’ incontestable
positions.
7. HOW DO THE OPTIONS COMPARE?
327. This section assesses the effectiveness, efficiency, coherence, proportionality and
subsidiarity of the different policy options as compared to the baseline scenario and
among each other.
7.1. Effectiveness
328. Three parameters appear essential for assessing the effectiveness of each option: legal
certainty, speed of intervention and flexibility of the approach. The relative importance
given to each of these three parameters is specified in the following three paragraphs.
329. Speed of intervention is essential in digital markets where, due to the market
specificities explained in Section 2, the larger the gatekeeper the greater and quasi-
automatic its capacity to gain power and strengthen its position, further reinforcing its
ability to engage in unfair practices. In particular, in the digital sector it is common to
observe markets tipping quickly in favour of one gatekeeper once that gatekeeper has
obtained a certain advantage over rivals. The unfair practices identified is this Impact
assessment are harmful and action is required in the most efficient manner possible.
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They affect negatively SME business users and small scale platforms, which may force
the latter to exit the market, thus further weakening market contestability and
strengthening legal fragmentation issues. Such negative effects of the problems
identified could not be easily reversed and should therefore be addressed in a timely
manner preventing their further proliferation and irreversibility. Speed is therefore given
important consideration in the options’ comparison in this Section and in Table 4.
330. Legal certainty is important for meeting expectations of all economic actors interacting
in a given ecosystem. Together with regulatory predictability, legal certainty guarantees
business trust and creates the right incentives for investment and innovation, for both
gatekeepers and SMEs. It is therefore given important weight in Table 4 and in the
overall assessment in this section.
331. Flexibility is an important criterion with a view to guaranteeing that a system is future-
proof and agile. In the present case flexibility could be introduced at several levels of
the options, namely, in relation to the designation of gatekeepers, the implementation of
the obligations, the update of the list of obligations and of the list of core platform
services. Some of these elements are more relevant than others and an excess of
flexibility may not always be desirable as it creates negative externalities on other
parameters. In fact, the optimal level of flexibility needs to strike the right balance
between a regulation being agile and providing for a solid regulatory intervention
setting a stable and clear framework. Flexibility has therefore been given less weight
when comparing options’ effectiveness.
332. By including a set of obligations on gatekeepers’ behaviour the three options would
contribute to both objectives of addressing unfair practices by gatekeepers and
facilitating further contestability of the platform markets concerned. Measures related to
data portability as well as interoperability and self-preferencing are particularly
important for the objective of addressing unfair practices by gatekeepers. Such
measures allow business users to benefit from fairer business conditions in relation to
gatekeepers’ core platform services, thus also contributing to a level playing field.
Gatekeepers would no longer be able to benefit from preferential treatment that derives
from unfair behaviour, e.g. in terms of display/ranking or conditions of data access,
portability, interoperability, which would also facilitate further contestability of the
platform markets concerned. Rules set for anti-steering, side-loading as well as
obligations concerning other unfair practices address the issue of unfair platform-to-
business practices in specific contexts (i.e. economic dependence of one of the parties;
imbalance in commercial relationship) thus contributing to more balanced P2B relations
and acting on the imbalance of bargaining power (i.e. one of the drivers behind the
fairness concerns). At the same time, such rules allow to address the weak contestability
on digital markets since they would contribute to business users’ and consumers’ ability
to use alternative services to those offered, or in certain circumstances even imposed by
gatekeepers, thus attenuating both entry barriers (driving weak market contestability),
and consequently businesses’ economic dependence on gatekeepers (the other driver
behind unfairness). Consumer choice – which is closely related to competition and
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hence to market contestability - could also increase directly, notably requiring consumer
portability provisions for gatekeepers, making it easier for consumers to switch (thus
acting on the entry barriers driving the weak contestability problem). Indirectly,
consumer benefits would also derive from lower prices for gatekeepers, although rules
would need to be designed to avoid adverse effects on security and privacy, for instance.
333. Option 1 would contribute to the objectives of addressing gatekeepers’ unfair conduct
and ensuring contestable and competitive digital markets, by allowing to tackle those
gatekeepers’ unfair practices on the basis of a list of obligations. Given that all
obligations under this option would be immediately applicable, they would have direct
quick effects.
334. However, given that the designation of gatekeepers is based only on quantitative
criteria, it could lead to type I errors (false positives) or type II errors (false negatives)
depending on whether the threshold would be set at a low level (as per sub-option 1-B)
or at a high level (as per sub-option 1-A). In fact, in the case of sub-option 1-A there
would be the risk of failing to identify gatekeepers that, similar to the designated
gatekeepers, may equally have an important internal market impact, operate an
important gateway to end users and have an entrenched position, but which are
relatively smaller. This would result in the unfair practices by those gatekeepers not
being tackled. In the case of sub-option 1-B, there would be the risk of designating an
excessive number of platforms as gatekeepers, including those that are not engaging in
unfair practices but that, since they would be above the thresholds, would have to
comply with the obligations.
335. Option 1 would fail to include in scope emerging gatekeepers whose position is likely to
become entrenched in the near future as well as any new unfair practices by gatekeepers
not part of the initial list of obligations. It would accordingly be a very static approach
to deal with the dynamics of digital markets and, where potentially equally harmful
gatekeeper behaviour would not be adequately addressed.
336. With respect to the objective of enhanced coherence and legal certainty, Option 1
allows an immediate aligning of platform-related rules across the EU through horizontal
measures by relying on automatic quantitative criteria to identify gatekeepers and
implementing immediately all obligations. These rules would preclude Member States
from legislating in the areas covered by the new framework. Option 1 provides for
effective and coherent EU-wide oversight through the establishment of a single
regulator at the EU level, in cooperation with a network of national authorities. By
basing the gatekeepers’ designation process on pure quantitative elements, this would
provide a high degree of legal certainty through a clear signaling effect to the market.
However, given its static nature, Option 1 would leave margin for some market
fragmentation to remain. Under sub-option 1-A, only very large gatekeepers would be
in scope. This could create some fragmentation resulting from the different treatment
given to the largest gatekeepers (and thus captured by the identification process), as
platforms exhibiting similar features and characteristics as the largest gatekeepers would
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not be subject to the obligations. Under sub-option 1-B, this possible difference in
treatment between gatekeepers is less likely but there is a risk that some platforms
which do not exhibit gatekeepers features and characteristics are forced to comply with
the obligations, reducing their ability to compete with the real gatekeepers.
337. Option 2 would be effective in curtaining a wider range of unfair practices and
increasing contestability in digital markets in a flexible way. For some of the practices a
dialogue between the competent regulatory body and the gatekeepers concerned may be
required to ensure that measures considered or implemented by the gatekeepers better
achieve its goals. By introducing the possibility for such a dialogue, Option 2 can be
expected to be more effective in addressing unfair practices hampering market
contestability and competition. It will, at the same time, be proportionate for the
gatekeepers concerned, since they would have certain margin of appreciation in
implementing measures that effectively ensure compliance with the identified
obligations. Therefore, it would be legitimate to expect that it would both create the
right innovation incentives across the market, and contribute to increased consumer
choice in terms of number of platforms proposing innovative and privacy-friendly
services. By comprising a dynamic updating mechanism, Option 2 would also allow
tackling new unfair practices. It would also allow tackling market failures related to
gatekeepers that are expected to have an entrenched position in the near future. Option 2
is therefore also more effective in fulfilling the specific objective of addressing weak
market contestability and competition than Option 1.
338. A drawback of Option 2 as compared to Option 1 is the fact that, by being based on
market investigations to designate additional gatekeepers and by foreseeing a dialogue
between the competent regulatory body and gatekeepers for some of the obligations, it
could generate some delays in the implementation of those obligations and for those
gatekeepers.
339. Similarly to Option 1, the sub-options in Option 2 would be subject to a trade-off. In the
case of sub-option 2-A, the impact of the intervention would be less immediate given
that a higher number of gatekeepers would have to be designated via a market
investigation, and thus unfair practices by those gatekeepers would not be tackled for a
period of time. In the case of sub-option 2-B, more gatekeepers would be automatically
designated by means of the quantitative criteria but this would entail the risk of
designating platforms that do not qualify as gatekeepers and that as a result of that type I
error, these platforms would have a reduced capacity to compete with the gatekeepers.
340. As regards the objective of enhanced coherence and legal certainty, similarly to Option
1, Option 2 provides for effective and coherent EU-wide oversight through the
establishment of a single regulator at the EU level, in cooperation with a network of
national authorities (same regulatory design as under Option 1), thus contributing to
legal certainty. The flexibility of tackling new unfair practices by gatekeepers and
including gatekeepers that are expected to have an entrenched position in the near future
could be expected to further reduce regulatory interventions at national level, thus
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contributing to the extent possible to preserving the digital single market in the online
platform space. Given the combination of quantitative and qualitative criteria, type II
errors would be less likely and thus gatekeepers would be treated in a more harmonised
way across the EU than under Option 1. The possibility for the provider of core
platform services to present, in exceptional circumstances, serious and substantiated
arguments to demonstrate that it does not fulfil the objective requirements for a
gatekeeper and should therefore not be designated directly based on the application of
quantitative thresholds, but only subject to a further investigation, allows to address
most of the concerns related to the possible lack of reliability and robustness of the
quantitative thresholds set.
341. Option 2 would however imply some delay in enforcing the obligations for gatekeepers
designated on the basis of the qualitative criteria, which could result in a temporary
fragmentation of the market. Under Sub-option 2-A, these delays would be more
relevant, as a higher number of gatekeepers would have to be designated via a market
investigation, but the possible fragmentation associated to the unequal treatment given
to gatekeepers discussed under Option 1 would be less likely.
342. Like under Option 1, to integrate national expertise in the platform economy, this option
would also envisage that the Commission consults a ‘network of regulators’ before
taking decisions. Option 2 would thus contribute to both addressing legal uncertainty
(the problem identified) and to reducing fragmentation of regulatory approaches across
the EU (the driver) in relation to a defined list of practices within a closed list of core
services.
343. Option 3 provides for a fully flexible approach in achieving the specific objective of
addressing gatekeepers’ unfair conduct and ensuring contestability of digital markets,
including the possibility to include in scope new unfair practices by gatekeepers (as in
Option 2) and additional digital services.266 The inclusion of new digital services in
scope is however not very likely as the core platform services listed in Section 5.2.1 are
precisely the ones for which there is strong evidence that market failures are present and
need to be addressed. In addition, it would always be possible under Options 1 and 2 to
also include new digital services in scope during the review of the Regulation, which
could possibly take place every three years.
344. Option 3 does however have the drawback of being slow in effectively addressing the
problems compared to Options 1 and 2. In fact, given the need for a market
investigation to designate all gatekeepers, and the possibility for a dialogue with the
latter to determine the implementation of all the obligations, Option 3 would not allow
an immediate response to the most pressing instances of gatekeeper related market
266
As explained in Sections 5.3.3.3 and 5.3.3.4, the inclusion of additional core platform services in the scope
could also imply the inclusion of additional obligations that would relate to those services and additional
gatekeepers that would be active in those services.
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failures. Given the importance of a timely regulatory response to the issues identified
(explained above), this is an important drawback.
345. Regarding the objective of enhancing coherence and legal certainty, Option 3 provides
for an effective and coherent EU-wide oversight through the establishment of a single
regulator at the EU level, in cooperation with a network of national authorities. Option 3
would, on the one hand, add to Option 2 by tackling a broader scope of unfair practices
by gatekeepers in additional digital services, thus reducing even more the need for
intervention at national level and contributing to a more homogeneous approach to the
issues at stake. However, the regulatory powers would be less circumscribed and may
create a lower level of legal certainty. In addition, the need for the regulator (i) to
conduct market investigations to designate all gatekeepers, and (ii) to engage in a
dialogue with each gatekeeper for the implementation of all obligations would result in
a staggered implementation of the measures. This may in turn create chilling effect and
counteract the positive impact of the effectively addressed unfair behaviour on market
contestability, which could also negatively affect innovation and consumer choice.
Consequently, Option 3 would have a mitigated impact on the objective of ensuring
market contestability and competition.
346. In light of the above, Option 2 – offering a reasonable trade-off between speed, legal
certainty and flexibility, appears as meeting the overall general objective of improving
the internal market functioning the most effectively since it allows for a more adaptive
solution, which is a more appropriate way to tackle issues arising in the fast-changing
platform environment.
347. It is essential to stress that the effectiveness of the measures (including their underlying
remedies) under all options depend on their enforcement. Experience and evidence
show that sanctions such as fines would not be sufficient to incentivise the gatekeepers
targeted in this Impact Assessment to stop unfair practices they are engaging in. This is
an important consideration to make when assessing the proportionality of the regulatory
rules considered.
348. Table 5 below compares the effectiveness of the three options in achieving each specific
objective pursued taking into consideration their respective speed of intervention,
flexibility and legal certainty.
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Table 4: Comparison of options in terms of effectiveness
Address unfair practices and market Ensure increased consistency
Option Legal certainty Flexibility Speed
contestability across the EU
Given that only a limited (5 to 7) number of Some regulatory fragmentation This would create legal No flexibility, as this is a Immediate effect on
providers of core platform services would be would persist since only a limited certainty by basing the fully static option given that the market.
designated, there would be the risk of failing to number of gatekeepers would be designation of gatekeepers (i) all gatekeepers are
identify some gatekeepers (type II error). designated, and the lack of on pure quantitative designated via quantitative
flexibility would likely lead to more criteria. criteria, (ii) all obligations
Allows to quickly tackle the largest gatekeepers’
1-A national regulatory initiatives. are immediately applied,
unfair practices on the basis of a list of The main drawback relates
with no dialogue possible,
obligations, leading to positive impact on market to the immediate
and (iii) no new practices
contestability, innovation and consumer choice. application all obligations
could be added to the list of
which would preclude the
It would not tackle market failures in tipping obligations.
possibility to exchange
markets and new unfair practices.
with the regulator to
Compared to Option 1-A, a higher number of Addresses a significant share of specify the application of
providers of core platform services (10 to 15) emerging regulatory fragmentation the certain obligations.
would be designated, with a risk of capturing as the same obligations are applied
those that are not engaging in unfair practices but to a larger set of gatekeepers.
1-B that, since they would be above the thresholds,
would have to comply with the gatekeeper
obligations (type I error). This could risk some
innovation efforts by those platforms.
It automatically captures a number of gatekeepers Addresses most of the regulatory Creates legal certainty for Flexible option, by Medium speed as it
falling under the quantitative threshold (5-7) as fragmentation problems as gatekeepers designated complementing static still requires market
well as a number of gatekeepers designated on the obligations are applied to both both on the basis of quantitative designation investigations to
basis of the qualitative criteria. gatekeepers designated on the basis quantitative and qualitative criteria and immediate designate some of the
of quantitative and qualitative criteria. implementation of some gatekeepers and a
Allows to tackle the gatekeepers’ unfair practices
criteria, including emerging obligations with flexible dialogue to
on the basis of a list of obligations, leading to Possibility of a dialogue
2-A gatekeepers. elements in the qualitative implement some of
positive impact on market contestability, for some of the obligations
designation and the the obligations.
innovation and consumer choice. It also allows covering new would also help to create
implementation dialogue.
practices. legal certainty.
It would additionally allow to tackle market
Flexibility also resulting
failures in tipping markets and those associated to Some temporary fragmentation
from the possibility to add
new forms of unfair conduct. remains as a result of delays in
new unfair practices by
enforcing the obligations for
gatekeepers to the list of
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Address unfair practices and market Ensure increased consistency
Option Legal certainty Flexibility Speed
contestability across the EU
gatekeepers designated on the basis obligations.
of the qualitative criteria.
Similarly to Option 2-A, addresses unfair Similar to Option 2-A, it addresses Creates legal certainty for Flexible option, although, to Faster than Option 2-
behaviour, including new unfair practices by most of the regulatory gatekeepers designated a less extent than Option 2- A since most
gatekeepers and tipping markets, leading to fragmentation. both on the basis of A given that most of the gatekeepers would be
positive impact on market contestability, quantitative and qualitative gatekeepers would be designated via the
It is less likely to result in delays in
innovation and consumer choice. criteria. designated via the static quantitative criteria.
enforcing the obligations than
quantitative criteria.
2-B However, a higher (10 to 15) number of providers Option 2-A. Possibility of a dialogue
of core platform services would be automatically for some of the obligations
designated, with a risk of including those that are would also help to create
not engaging in unfair practices but that, since legal certainty.
they would be above the thresholds, would have
to comply with the obligations (type I error).
Addresses unfair behaviour and weak Implies several market Low legal certainty given Fully flexible option both in Very slow impact on
contestability for a relatively high number of investigations that could not be the discretionary power of terms of designating the market given the
gatekeepers designated via qualitative criteria, carried out in parallel, thus leading the regulator in relation to gatekeepers and the need to conduct a
including emerging gatekeepers. to a fragmented/staggered approach the designation of possibility of a dialogue for market investigation
to the market. gatekeepers, the tailored implementation to designate all
It would additionally allow to tackle market
implementation of of the obligations. gatekeepers and the
failures in tipping markets and those associated to
3 obligations as well as the possibility of a
new forms of unfair conduct and services other Full flexibility also resulting
possibility to add new dialogue for all
those in scope. from the fact that the
unfair practices and obligations.
regulator could add new
services to the scope of
unfair practices and
regulation.
additional digital services to
the scope of the regulation.
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7.2. Efficiency
349. The efficiency comparison is based on a benefit estimate for the preferred option and on
a cost comparison between the options (both detailed in Annex 3 to the Impact
Assessment). A robust quantitative cost-benefit comparison between the different
options proves however difficult for the initiative under consideration given the absence
of reliable data, and thus estimates of costs and benefits are only provided for the
preferred option, which serves as a reference for the magnitude of the remaining
options. The approach taken for estimating costs and benefits under each of the options
is as follows: assumptions in relation to costs are overestimated in order to ensure that
costs stemming from the measures assessed are not minimized; assumptions in relation
to benefits are conservative to guarantee that benefits are not overestimated.
350. All options imply (a) regulatory costs at EU and national levels, i.e. for the Commission
as the competent regulatory body at EU level to ensure implementation, supervision and
information gathering, and for the network of national regulators to respond to eventual
consultations from the Commission; (b) compliance costs for gatekeepers to deal with
new rules and to respond to the regulator’s requests for information; and (c) (minimal)
costs for the business users and platforms not subject to the obligations but which may
at times need to respond to the regulator’s requests for information.267
351. It needs to be noted that while all obligations would be legally applicable to all
designated gatekeepers, not all obligations would be relevant for each gatekeeper, since
not every gatekeeper would be engaging in all unfair practices targeted by the initiative.
If a gatekeeper were engaging in one or more of the unfair practices, this would require
changes in its behaviour but would not necessarily translate in direct costs. Compliance
costs have been estimated at EUR 1.41 million per year and per platform. This
regulatory burden should be weighed in light of the economic power of gatekeepers in
scope and against the fact that they would have already existing internal services to
comply with other pieces of EU legislation (e.g. EU Merger Regulation; Consumer
protection cooperation (‘CPC’) Regulation). This possible synergy in terms of
compliance would further reduce the impact of additional costs which is marginal as
compared to the enormous revenues earned by gatekeepers. In addition, the regulatory
dialogue foreseen under Options 2 and 3 for obligations requiring further specification
would reduce the burden on gatekeepers since it would allow tailoring the specific
obligation to the particular situation of the gatekeeper concerned, which can be expected
to reduce the overall compliance cost. Benefits stemming from the initiative would
amount to billions (see following paragraphs) and lead to greater innovation potential
amongst smaller businesses as well as improved quality of service, with associated
increases in consumer welfare (as specified below).
267
See detailed explanation in Annex 3 to the Impact Assessment.
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352. Under Option 1, five to seven platforms would be covered under sub-option 1-A and 10
to 15 platforms under sub-option 1-B, which implies an overall annual cost for
platforms’ compliance with rules ranging between EUR 9.87 million and EUR 21.15
million. This calculation is based on the estimate of the compliance costs per platform,
i.e. EUR 1.41 million per year. Based on benchmarks of similar practices within the
Commission, networks and national authorities, enforcement cost for the Commission
can be estimated at between EUR 6.4 million (under sub-option 1-A) and EUR 10.5
million (under sub-option 1-B) while for national authorities, these are estimated at
EUR 4.3 million per year when summing the costs of all 27 Member States.
353. The estimates on the number of platforms under Option 2 are based on screening of the
quantitative criteria and an assumption on the number of additional gatekeepers
designated via a market investigation. In relation to the latter, this is very difficult to
estimate upfront given that only after a market investigation it would be possible to
determine whether a given provider of core platform services meets the criteria. In this
context, and for the purpose of these calculations, it is assumed that Option 2 would
cover up to a maximum of between 15 gatekeepers (sub-option 1-A) and 20 gatekeepers
(sub-option 1-B).268 This implies an overall compliance cost ranging between EUR
21.15 million and EUR 28.2 million per year. The administrative costs for the EU
Commission are estimated at EUR 16.7 million per year. Costs for national authorities
(for all 27 Member States) are estimated at EUR 6 million per year.
354. While a precise assessment of the number of gatekeepers targeted under Option 3
would be misleading (since their designation would be based on qualitative criteria
only), it is assumed to be 25 (as an upper bond) for the purpose of quantification and
options’ comparison. The number of gatekeepers designated under Option 3 could
theoretically be higher than the number of gatekeepers designated under Option 2, given
that it could also include gatekeepers active in core platform services that could be
added after a market investigation. The above upper bond assumption has been made in
order to provide a cost estimate in the worst case scenario, i.e. reflecting the highest
possible costs that the measures could generate under this option. Under this
assumption, Option 3 would imply a compliance cost per year for gatekeepers of around
EUR 35.25 million. The administrative costs for the EU Commission are estimated at
EUR 18.2 million per year, and those for national authorities (for all 27 Member States),
at EUR 6 million per year.
355. In terms of benefits, while a quantified comparison of the different options269 proves
difficult to establish, it is an objective qualitative assessment to consider that the impact
of putting in place an effective and proportionate regulation addressing dysfunctions in
268
For sub-option 2-A, five to seven out of the 15 gatekeepers would be identified on the basis of the
quantitative threshold; the corresponding number would be 10 to 15 for sub-option 1-B.
269
Annex 3 to the Impact Assessment aims at quantifying benefits for the preferred option. It seems difficult to
distinguish however which benefits could be attributed to each of the options. It appears therefore that a
quantitative comparison of benefits would not be sufficiently reliable.
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the platform economy in an effective and flexible way (as foreseen under Option 2)
would lead to a different profit distribution, i.e. with a greater societal benefit. Concerns
about excessive gatekeeper profits that could be extracted based on their grossly
imbalanced bargaining power would be effectively addressed and any such profits
would be distributed to business users and consumers; hence, the more appropriate
(effective but also proportionate) the regulatory measures, the more optimal the re-
distribution of profit.
356. If we assume that the measures foreseen under Option 2 contribute to preserving the
internal market in the platform space - thus allowing cross-border trade projections by
2025 to be maintained - this would lead to EUR 92.8 billion benefits.270 The benefits
can be expected to lead to greater innovation potential amongst smaller businesses as
well as improved quality of service, with associated increases in consumer welfare.
Assuming that interventions foreseen would reduce competitive asymmetries between
gatekeepers and other platforms, a consumer surplus of the preferred option could be
estimated to increase by EUR 13 billion, i.e. around 6% increase as compared to the
baseline.271 Impact on economic growth is estimated to range between EUR 12 billion
and EUR 23 billion.272 Benefits would be similar under sub-options 2-A and 2-B, with
the former having the advantage of not incurring in a type II error, and the latter having
the advantage of implementing the obligations on gatekeepers quicker than if they
would only be captured after a market investigation under sub-option 2-A.
357. The benefits under Option 1 would be lower, they would cover a more limited set of
market failures given that it would not be possible to add new unfair practices to the
scope neither to tackle market failures in tipping markets. The benefits stemming from
Option 3 could potentially be higher than under Option 2 given that additional services
could be added to the scope of the obligations. However, as explained in Section 7.1,
the inclusion of additional services in scope is not very likely to take place given that
the core platform services listed in Section 5.2.1 are precisely the ones for which there
is strong evidence that market failures are present.273 The potentially higher benefits
under Option 3 could therefore not materialise. Furthermore, Option 3 would also
originate a lower level of legal certainty, which would result in a chilling effect and
counteract the positive impact sought on market contestability.
270
Cross-border e-commerce in Europe was worth EUR 143 billion in 2019, with 59% of this market being
generated by online marketplaces. This is projected to increase to 65% in 2025 (Ecommerce News Europe
(2020)).
271
In line with the impact assessment requirements an attempt was made by JRC (see Annex 4.2 to the Impact
Assessment) to quantify consumer surplus which would stem if the measures foreseen under the preferred
option were to be adopted and implemented. It is important to stress however, that such quantification
remains a highly theoretical exercise; this is the reason why the qualitative assessment of implications for
consumers should be considered as a more reliable analysis of the impacts of a regulatory intervention.
272
Higher investment in R&D in the ICT sector in EU27 leads to an overall increase in the EU27 income
between 0.09% to 0.17% of 2014 EU GDP, this is between EUR 12 billion and EUR 23 billion; input-output
micro-econometric modelling, See Annex 3 to the Impact Assessment.
273
In addition, it would always be possible under Option 2 to also include new digital services in scope during
the review of the Regulation, which could possibly take place every three years.
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7.3. Coherence
358. An assessment was carried out of the various policy options’ coherence with (i) the
Commission’s digital strategy, (ii) the DSA and (iii) other regulatory instruments.
7.3.1. Coherence with the Digital Strategy
359. All three options are coherent with the Commission’s digital strategy in their
contribution to ensuring a fair and competitive digital economy, one of the three main
pillars of the policy orientation and objectives announced in the Communication
Shaping Europe's digital future. They would constitute a coherent, effective and
proportionate framework to address problems in the digital economy that currently
cannot be tackled or cannot be tackled effectively.
7.3.2. Coherence with the DSA
360. All three options are coherent with and complementary to the proposal for the update
of the e-Commerce Directive (‘ECD’) under the DSA. While the DSA is a horizontal
initiative focusing on issues such as liability of online intermediaries for third party
content, safety of users online or asymmetric due diligence obligations for different
providers of information society services depending on the nature of the societal risks
such services represent, the present options are concerned with economic imbalances,
unfair business practices by gatekeepers and their negative consequences, such as
weakened contestability of platform markets. To the extent that the DSA contemplates
an asymmetric approach which may impose stronger due diligence obligations on very
large platforms, consistency will be ensured in defining the relevant criteria, while
taking into account the different objectives of the initiatives.
7.3.3. Coherence with other instruments
361. All three options align with other EU instruments, including with the EU Charter of
Fundamental Rights and the European Convention on Human Rights (‘ECHR’), the
GDPR, the EU’s consumer law acquis and the P2B regulation.
362. The definitions to be used under all options are coherent with the definitions used in EU
existing legislation, in particular the definitions of ‘online intermediation services’ and
‘online search engines’ used in the P2B Regulation. With their scope targeted to
gatekeepers, the options complement well the horizontal obligations for all online
platforms under the P2B Regulation. All options also complement existing EU
competition law by addressing ex ante unfair practices by gatekeepers that either fall
outside the existing EU competition rules, or cannot be addressed in the most effective
manner by these rules.
363. All options complement the data protection laws. Transparency obligations on deep
consumer profiling will actually help inform GDPR enforcement, whereas mandatory
opt-out for data combination across core platform services goes beyond GDPR
protections. Anti-circumvention clauses will clarify that compliance with obligations in
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this initiative may require consent under GDPR. This is also without prejudice to data
minimisation principle, including using anonymised data where possible. The
introduction of the dynamic updating of core platform services and gatekeepers’
practices would be subject to full respect of the fundamental rights to fair proceedings
and good administration as enshrined in the ECHR, which are binding on the EU
institutions. Given that the mechanism for the imposition of remedies is administrative
in nature and not criminal or quasi-criminal, the fundamental rights of the Charter
enjoyed in the case of criminal proceedings would not apply.274 However, when acting
under the new framework in general and market investigation regime in particular, the
Commission’s investigation powers would be counterbalanced by ensuring that
undertakings involved enjoy effective fair process rights such as the right to be heard,
the right to a reasoned decision and access to judicial review, including the possibility to
challenge enforcement measures. These rights apply in case of administrative
proceedings.275 This design to preserve fundamental rights is also consistent with – if
not superior to – the safeguards applicable similar investigation regimes elsewhere in
the world.276
364. All options leverage existing platform regulation, without conflicting with it, while
providing for an effective and proportionate enforcement mechanism that matches the
need to strictly enforce the targeted obligations vis-a-vis a limited number of very large
cross-border providers.
365. Different from the P2B Regulation277, all options foresee EU-level enforcement of a
narrow set of very precise unfair practices engaged in by a restricted group of large,
cross-border gatekeepers. This EU-level enforcement mechanism is consistent with the
enforcement of the P2B Regulation. Gatekeepers are likely to exist in respect of several
cross-border core platform services, and a central EU-level regulator with strong
investigatory powers is required both to prevent fragmented outcomes as well as to
prevent circumvention of the new rules. To this end, the new EU-level regulator can
leverage the transparency that each of the online intermediation services and online
274
See H. Schweitzer (2020), The New Competition Tool: Its institutional set up and procedural design, Chapter
II.
275
Ibid, at Chapter V and Chapter X.
276
See R. Whish (2020), The New Competition Tool: Legal comparative study of existing competition tools
aimed at addressing structural competition problems, with a particular focus on the UK’s market
investigation tool, at Chapter 4 and Chapter 7.
277
The P2B Regulation applies to all online intermediation services and all online search engines, regardless of
their size. Given the relatively wide scope of the P2B Regulation, which includes many services that are
provided locally, the regulation is enforced at the level of Member States. Given that the Regulation mainly
requires the relevant providers to engage in one-off actions that simultaneously benefit their entire user bases
(e.g. providing transparency in general terms and conditions, or putting in place an internal complaint-
handling mechanism), the regulation’s dual private and public enforcement mechanism is geared towards
finding ‘systemic’ breaches of the regulation, which generally will not require in-depth investigations and
economic analyses by regulators. For example, a regulator or commercial court will likely only find that an
online intermediation services provider breached the obligation to provide internal complaint-handling if they
can establish that it is entirely absent or that a pattern exists of unfairly rejected complaints.
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search engines have to provide under the P2B Regulation on practices that could
precisely be illegal under the list of obligations – if engaged in by gatekeepers.
366. All three options would - while recognising the differences – align with the experiences
from the targeted and tailor-made ex ante regulation of specific sectors, including the
rules applicable to electronic communication services or short-selling. All options
would be coherent with existing initiatives targeting harmful trading practices in the
offline world. These existing initiatives are designed to tackle practices relevant to and
specific for the offline sector or context in which they arise.278 They do not overlap with
the unfair practices described under Section 2.1.2 which, together with the different
business models by which gatekeepers operate, are very different and warrant separate
treatment.
7.4. Proportionality
367. Option 1 would be targeted to gatekeepers above a pure quantitative threshold. This
would create legal certainty for gatekeepers. The obligations it would cover would be
identified based on objective criteria supported by the evidence gathered. However, the
absence of dialogue between the regulator and gatekeepers would preclude the
possibility to exchange with the regulator to specify the application of certain
obligations.
368. Option 1-A would leave uncovered some gatekeepers that would be similar to the
designated gatekeepers, in the sense that they may equally have an important internal
market impact, operate an important gateway to end users and have an entrenched
position, but which are relatively smaller. This would call for a potential intervention by
the Member States or competition law to tackle those. This would thus leave more room
for action at national level but at the same time raise a concern of further regulatory
fragmentation. Option 1-B would cover a larger number of platforms, thus reducing the
risk of regulatory fragmentation as the obligations are applied to a larger set of
platforms. However, it would risk capturing under scope providers of core platform
services that would be above the thresholds but that do not present features and
characteristics similar to gatekeepers. There is thus a risk of disproportionality in
relation to the application of the obligations to those platforms.
369. Option 2 allows achieving the objectives effectively since it sets a comprehensive ex
ante framework providing for a list of obligations that are clearly identified and
circumscribed. Option 2-A would also result in a uniform application of obligations to
designated gatekeepers (including those that are expected to enjoy an entrenched
278
See for example Directive (EU) 2019/633 of the European Parliament and of the Council of 17 April 2019 on
unfair trading practices in business-to-business relationships in the agricultural and food supply chain. To
improve farmers’ and small and medium sized businesses’ position in the food supply chain, the EU adopted
this legislation banning certain unfair trading practices. These include (but are not limited to): late payments
for perishable food products, last minute order cancellations, unilateral changes to contracts, refusal to enter
into a written contract, returning unsold or wasted products or payment for buyer’s marketing.
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position in the near future) that although not falling under the high quantitative
threshold criteria would nonetheless operate core platform services that exhibit similar
features and characteristics to those of gatekeepers corresponding to the quantitative
criteria. The main drawback of sub-option 2-A would be the possible temporary
fragmentation resulting from having gatekeepers automatically designated and others
designated via longer market investigations. Sub-option 2-B would, similarly to the case
of sub-option 1-B, provide for a harmonised application of the obligations given that a
larger set of platforms would be in scope, but still risking to capture providers of core
platform services that would be above the thresholds but do not present features and
characteristics similar to gatekeepers. In both cases compliance costs for gatekeepers are
reasonable thus allowing to safeguard the benefits they create for the internal market.
370. Option 2 is proportionate since it would be also addressing the wider possible range of
unfair practices at EU-wide level identified on the basis of similar criteria as Option 1,
while at the same time providing for a regulatory dialogue in relation to the application
of some of the obligations, where necessary and justified. Similarly to Option 1, Option
2 foresees cooperation with NCAs and with sectorial bodies.
371. Option 3 leaves strong discretionary power to the regulator in terms of both designation
of gatekeepers (based on qualitative criteria only assessment) and scope of intervention
(given the flexibility left to the regulator to include additional digital services and
practices in the scope). Option 3 would from that perspective lead to a lower level of
legal certainty, which is essential for a thriving business environment. Option 3 allows
however for extensive regulatory dialogues, which possibly makes it less burdensome
than regulatory measures not allowing for such dialogues. At the same time the longer
procedures which would stem from the market investigation nature of this option limit
its potential for addressing the problems identified in a timely manner.
372. For all options, and as explained in Section 5.2.1, the core platform services in scope are
only those where there is strong evidence of (i) high concentration, where usually one or
very few large digital platforms set the commercial conditions with considerable
autonomy from their competitors, customers or consumers; (ii) few large digital
platforms acting as gateways for business users to reach their customers and vice-versa;
and (iii) gatekeeper power often misused by means of unfair behaviour vis-à-vis
economically dependent business users and customers. Option 3 provides for the
possibility of other digital services being added to the list after a market investigation
and based on an empowerment given to the Commission. This would allow to cover in a
flexible way all the digital services where there is weak contestability and gatekeepers
engage in unfair behaviour, but would create lower legal certainty.
373. As explained in Section 5.2.1, the gatekeepers in scope under Option 1 would only be
those that meet the quantitative criteria that serve as a proxy for the features
characterising gatekeeper status. This could risk including too few providers of core
platform services in scope if thresholds are set at a too high level (false negatives) or too
many platforms in case lower thresholds are fixed (false positives). Under Options 2 and
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3, gatekeepers in scope are more likely to correspond to those which (i) have a
significant impact on the internal market; (ii) operate a core platform service which
serves as an important gateway for business users to customers; and (iii) enjoy an
entrenched and durable position in their operations or are expected to enjoy such a
position in the near future.
374. Finally, and as explained in Section 5.2.2, the list of obligations foreseen under all
options is justified as the obligations have been limited to those practices that (i) are of
egregious nature, (ii) can be identified in a clear and unambiguous manner to provide
the necessary legal certainty for gatekeepers, and (iii) for which there is sufficient
experience with the harmful effects. Option 2 and 3 provide for the possibility of a
regular dialogue between the Commission and the gatekeepers concerned, as well as for
the addition of other practices if deemed unfair following a market investigation and
based on an empowerment by the Commission.
375. In order to ensure the effectiveness of the tool, all options could include a series of
remedies to ensure that designated gatekeepers comply with the obligations. This would
include initially fines and penalty payments in case gatekeepers do not comply with the
obligations. As a last resort, and in case of systematic failure to comply with the
obligations, even after the imposition of fines and penalty payments, other types of
measures could be envisaged under specific conditions and circumstances (see Section
5.2.4). These would however be applied in extreme cases, i.e. once all other means to
ensure fair behaviour have proven insufficient, and thus not put at risk the
proportionality of the measures, under all three options.
7.5. Subsidiarity
376. All three options respect the subsidiarity principle. The intrinsic cross-border nature of
the digital economy and of the provision of core platform services provided by
gatekeepers, suggests that the objectives pursued cannot be effectively reached by
Member States alone. Rather to the contrary, as shown in Annex 5.4 to the Impact
Assessment, regulatory initiatives by Member States lead to divergent regulatory
solutions and regulatory fragmentation. EU action would avoid further fragmentation of
the single market into different, potentially contradictory frameworks – including the
resulting jurisdictional issues. This is expected to decrease gatekeepers’ incentives to
develop unfair practices in relation to new core platform services or expand further
unfair behaviour related to existing practices.
377. Furthermore, while all three options foresee enforcement and strong coordination at EU
level, they also envisage the involvement of national authorities in the decision making
process to ensure that Member States’ expertise is taken into account. The new ex ante
framework would harmonise rules in the areas targeted by these rules, without prejudice
to the right of Member States to consider further measures in order to improve
contestability of markets or to fight against acts of unfair competition that are unrelated
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to the presence of gatekeepers within the meaning of the new framework and where
such obligations would be compatible with EU law.
7.6. Conclusion
Table 5: Policy options - comparison
Efficiency
Option Effectiveness Coherence Proportionality Subsidiarity
Benefits Costs
1-A + + Small ++ + ++
1-B + + Medium ++ + ++
2-A ++ ++ Medium ++ ++ ++
2-B ++ ++ Medium ++ ++ ++
3 + ++ High ++ ++ ++
378. Effectiveness. Compared to Option 1, Options 2 and 3 would allow tackling new unfair
practices and market failures related to gatekeepers that are expected to have an
entrenched position in the near future. Option 1 would be particularly effective in
quickly dealing with the market failures in digital markets. The combination of
immediately applicable obligations and of the possibility for a regulatory dialogue with
gatekeepers for some of the obligations would make Option 2 more effective than
Options 1 and 3. The latter two would be: too static (in the case of Option 1) or too
flexible (in the case of Option 3). Option 1-A could give rise to type II errors (false
negatives) while Option 1-B could result in type I errors (false positives). Under Option
2-A, the risk of false negatives would be minimised by the possibility of designating
gatekeepers also on the basis of qualitative criteria. In that case, the drawback in
comparison with sub-option 2-B would be the delays associated to the need of
conducting market investigations to designate some of the gatekeepers.279 Option 3 is
future-proof and would reduce the risk of type I or type II errors by basing designation
on a pure qualitative test. At the same time, it does not allow addressing the problems in
a timely manner, implies less legal certainty than the other two options and would result
in a staggered approach to the market.
379. Efficiency. Compared to Option 1, Options 2 and 3 would generate higher benefits
because they would allow tackling a higher number of market failures. Option 3 could
in theory target even more market failures given the possibility to add other digital
services to the scope of the regulation, following a market investigation. This is though
unlikely to take place. However, as a consequence of discretionary power given to the
regulator, Option 3 would also create a lower level of legal certainty which would result
279
The possibility of false positives under Option 2 is partially addressed by the fact that the provider of core
platform services would be able to present, in exceptional circumstances, serious and substantiated arguments
to demonstrate that it does not fulfil the objective requirements for a gatekeeper.
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in a chilling effect, thus counteracting the positive impact (that measures effectively
addressing unfair behaviour would have) on market contestability. As regards sub-
options A and B, magnitude of benefits would be similar, with the former having the
advantage of not incurring in type II errors and the latter of implementing quicker the
obligations to gatekeepers (that would otherwise be captured after a market
investigation under sub-option 2-A). In relation to compliance costs, they would be
miniscule as compared to the profits of gatekeepers. They would also be insignificant as
compared to the range of benefits resulting from tackling unfair practices in digital
markets. Nevertheless, Option 1 would result in lower compliance costs as gatekeepers
would not be subject to any market investigation and less practices would be tackled.
Option 3 would imply the highest compliance costs given the need to conduct a market
investigation for any designation and the possibility to designate gatekeepers from
services other than the current core services. As for sub-options 2-A and 2-B, the former
would result in lower compliance costs since it would imply designating a lower
number of gatekeepers, although the higher number of market investigations associated
to sub-option 2-A could imply higher costs of replying to requests for information.
380. Coherence: All three options are coherent with other EU instruments and EU
international commitments.
381. Proportionality. Option 1 would be too static, in the designation process and the
implementation of the obligations. This could originate a disproportional
implementation of obligations. Options 2 and 3, by allowing a more flexible approach
would be more proportionate. Sub-option 2-A could lead to temporary fragmentation
resulting from some gatekeepers being automatically designated while others via longer
market investigations; under sub-option 2-B there would be the risk of capturing
platforms that do not present features and characteristics similar to gatekeepers’ ones.
Option 3 would lead to a lower level of legal certainty which is essential for a thriving
business environment.
382. All three options respect the subsidiarity principle.
383. In light of the above, political choice is needed on whether Option 2-A or Option 2-B
would better address the issues at stake and achieve the policy objectives pursued.
Option 2 allows for timely intervention for the most egregious practices and more
gradual approach for measures needing further tailoring and specification. The
comparison between Options 2-A and 2-B leads to a trade-off to be made between the
speed of the regulatory intervention and the scope of the target population. As specified
above, in the case of sub-option 2-A, the impact of the intervention would be less
immediate (given that a higher number of gatekeepers would have to be designated via a
market investigation), and thus the unfair practices by those gatekeepers would not be
tackled for a period of time. In the case of sub-option 2-B, more gatekeepers would be
automatically designated but with the risk of designating platforms that do not qualify
as gatekeepers. Both sub-options (i) address unfair behaviour, including new unfair
practices and tipping markets, leading to positive impact on market contestability,
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innovation and consumer choice, (ii) address most of the regulatory fragmentation
problems as obligations are applied to both gatekeepers designated on the basis of
quantitative and qualitative criteria, including emerging gatekeepers, and (iii) create
legal certainty for those.
8. PREFERRED OPTION
8.1. The main building blocks of the preferred option
384. The core substantive elements of the preferred option are explained in Section 5.3.2.
The preferred option provides for a new ex ante regulatory framework built around the
following elements:
(a) First, the ex ante framework would only apply to clearly identified and closed
list of core platform services (i.e. a numerous clausus of core platform services)
that are most broadly used by business users and end users and where, based on
the evidence collected and presented in this Impact Assessment, more apparent
and urgent concerns about weak contestability and unfair practices by
gatekeepers arise;
(b) Second, only providers of core platform services that meet the specific
conditions analysed could be designated as gatekeepers. Such designation would
take place by applying mix of quantitative and qualitative thresholds;
(c) Third, designated gatekeepers would be required to comply with the set of
clearly defined obligations in order to address a negative impact of unfair
practices discussed in Section 5.2.2 on fairness in commercial relationship
between these gatekeepers and their business users and contestability of platform
markets. Such obligations would encompass (i) immediately applicable
obligations and (ii) obligations where a degree of appreciation would be required
in view of the implementation of a given obligation.
8.2. The scope of application
8.2.1. Identification of core platform services
385. The preferred option foresees up-front a set of clearly identified core platform services
that feature number of specific characteristics discussed in Section 5.2.1.
386. The analysis underpinning the Impact Assessment shows that there are number of core
platform services that meet these characteristics, notably:
(a) Online intermediation services, such as online marketplaces and software
application stores which enable business users to reach and contact end users, to
provide or offer services or products to the latter. They can become a key access
point for business users to reach end users.
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(b) Online search engines that can significantly affect the commercial success of
business users and therefore unfair practices carried out by a gatekeeper providing
such online search engine services have the capacity to affect a large number of end
users and businesses alike.
(c) Operating systems are at the heart of devices and ecosystems and are characterised
in particular by economies of scale and high switching costs, and benefit from
network effects. A gatekeeper can use its control over the operating system to
engage in unfair practices limiting the contestability of the services concerned.
(d) Online social networking services are characterised in particular by strong network
effects, data driven advantages and high switching costs. When controlled by a
gatekeeper, online social networking services represent an important gateway not
only for end users but also increasingly for business users.
(e) Video-sharing platform services that can become the default or at least a
preeminent platform to consume and to share video content online. When operated
by a gatekeeper, they are thus a very important access point for video content
providers and offer significant audiences for advertisers.
(f) Number-independent interpersonal communication services are services for
which network effects are particularly strong when they are run by a gatekeeper, the
risk of unfair business practices and a lack of contestability is particularly strong.
(g) Cloud computing services provide infrastructure to support and enable
functionality in digital services offered by others and at the same time offer a range
of products. The vertical integration by a gatekeeper of a large cloud computing
services provider can lead to unfair business conditions, for instance unjustified
limitations to interoperability and data portability.
(h) Online advertising services are often related to other core platform services, such
as online search engines and online social networking services. Gatekeepers
operating the latter types of core platform services very often also provide online
advertising services and may engage in unfair practices, which goes in particular to
the detriment of their business users that is, advertisers and publishers and also
further limit contestability.
8.2.2. Designation of gatekeepers
387. The addressees of the preferred option would be those providers of core platform
services that meet the following conditions: (i) have a significant impact on the single
market, (ii) operate one or more important gateways for business users to reach end
users, and (iii) they enjoy or are expected to enjoy an entrenched and durable position in
their operations.
388. Under the preferred option, these providers of core platform services would be
designated based on combined application of quantitative and qualitative criteria. Where
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a provider of core platform services would meet cumulatively a set of quantitative
thresholds established in the regulation it would be automatically designated as a
gatekeeper by the Commission. This allows a fast and effective protection of the interest
of all the business users affected by the gatekeepers’ unfair behaviour. Two specific
combinations of parameters, for a low and a high threshold respectively, have been
selected for the purpose of providing clarity in assessing impacts and trade-offs for the
options’ comparison. As explained in Section 5.2.1, other plausible policy options exist
as to the use of the economic parameters or their possible combinations. These
thresholds act as quantifiable proxies of the qualitative criteria in terms of size and reach
of the business, number of business users and duration in time of the market position.
Such a quantitative threshold may be set at a high level (sub-option 2-A) or low level
(sub-option 2-B). In choosing between sub-options 2-A or 2-B it is preferable that these
thresholds should be set at a sufficiently high level. This is to ensure that only very large
systemic players with a significant internal market presence and which are gateways to
a large number of end users, clearly holding an entrenched and durable position, should
be deemed to be a gatekeeper on the basis of quantitative criteria. Such undertakings
should be subject to a fast designation process which is limited to verifying whether the
quantitative criteria are met.
389. While considering the high probative value of the considered quantitative threshold, it
cannot be completely excluded that in very exceptional circumstances a provider of core
platform services that meets these quantitative thresholds nonetheless does not act as a
gateway for its business users and end users. To ensure necessary proportionality in
such exceptional circumstances, the provider of core platform services should have the
opportunity to present serious and substantiated arguments in order to demonstrate that,
in the circumstances in which the relevant core platform service operates, and taking
into account other relevant elements280, the provider does not meet the conditions
discussed in paragraph 387. It is important however to note that the purpose of the
possibility to rebut the legal presumption is not to demonstrate, on pure economic
grounds, efficiencies deriving from a specific type of behaviour by the provider of core
platform services since this is not relevant to designation of such a provider as a
gatekeeper.
390. Furthermore, even if a provider of core platform services does not meet the quantitative
thresholds that does not in itself mean that it may not constitute a gatekeeper. In fact, the
preferred option would envisage a possibility to designate the provider of core platform
services as a gatekeeper following a market investigation, which would have to show
280
Such relevant elements would include: (i) the size, including turnover and market capitalisation, operations
and position of the provider of core platform services; (ii) the number of business users depending on the
core platform service to reach end users and the number of end users; (iii) entry barriers derived from
network effects and data driven advantages, in particular in relation to the provider’s access to and collection
of personal and non-personal data or analytics capabilities; (iv) scale and scope effects the provider benefits
from, including with regard to data; (v) business user or end user lock-in; and (vi) other structural market
characteristics.
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that the provider of core platform services meets the conditions discussed in paragraph
139.
391. This would also ensure the regulatory playing field and regulatory symmetry of the
obligations laid down in the rules. This also represents the optimal trade-off in terms of
necessity to assess the market conditions and time that would take to designate
gatekeepers and thereby time within which the problems identified would be effectively
addressed. In this respect it is to be noted that quantitative thresholds set at a high level
would take comparatively more time and resources than a more straightforward
designation based on lower quantitative thresholds. Conversely, while relatively low
quantitative threshold level would allow immediately capturing the majority of
gatekeepers, it would entail the risk of extending disproportionately gatekeeping
obligations to a large number of platforms.
392. The designation of a provider of core platform services as a gatekeeper following a
mechanism that combines quantitative and qualitative indicators features strong support
by stakeholders and is considered as an appropriate mix of ensuring flexibility, speed
and legal certainty.
393. Under the preferred option, the qualitative criteria would allow designating not only
providers that are already enjoying an entrenched and durable position in their
operations, but also those for which this is not yet the case, but which are rapidly
acquiring market strength and building towards becoming gateway due to specific
market features and their capacity to put competitors at a disadvantage in the market,
i.e. emerging gatekeepers.
394. The preferred option would provide for regular review of the gatekeepers status, a
possibility which seems particularly important in such a dynamic market environment.
Such a regular review of the gatekeeper status would in principle have to be carried out
on regular intervals of two years.
395. The designation decision addressed to providers of core platform services that meet the
conditions would be subject to judicial review and would, beyond the regular review,
also foresee reassessment at the request of the affected firm in case of material changes
concerning the designation conditions.
8.2.3. Obligations applicable to gatekeepers’ core platform services
396. Under the preferred option, once a provider of core platform services is designated as a
gatekeeper, all its core platform services that individually meet the conditions of being
an important gateway for business users to reach end users would have to comply with a
clearly defined set of obligations relating to a clearly identified set of unfair practices.
397. The obligations under the preferred option would address the unfair practices by
gatekeepers that weaken market contestability (Section 2.1.1) and undermine the
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fairness of commercial relationship of gatekeepers towards their business users or in
some cases towards third parties (Section 2.1.2).
398. The obligations under the preferred option would be either immediately applicable or
would in certain cases envisage the possibility of a regulatory dialogue between the
Commission and the gatekeeper concerned in view of ensuring that the measures
gatekeepers intend to implement ensure effective compliance with the obligations. The
set of obligations that would be included in the preferred option is explained in details
in Section 5.2.2.
399. The distinction between immediately applicable obligations and obligations subject to
dialogue is based on the analysis of the measures in question. The obligations relative to
transparency and non-discrimination are self-evident. Obligations which require
evaluation of interoperability conditions or customisation considering the specific
nature of the core platform service offered are subject to a dialogue. Such a dialogue can
be launched by the Commission, either upon request of the gatekeeper concerned, or
where the Commission finds on its own initiative that any measures that the gatekeeper
has already implemented or still intends to implement are likely to fall short of what is
required to ensure compliance with the obligations concerned. This possibility of a
regulatory dialogue should facilitate compliance by gatekeepers and allow them to
signal any circumstances.
400. As an additional element to ensure proportionality, gatekeepers should be given an
opportunity to request the suspension of a specific obligation in exceptional
circumstances that lie beyond the control of the gatekeeper. Where compliance with a
specific obligation is shown by the gatekeeper to endanger the broader economic
viability of the EU operations of the gatekeeper concerned, for example because an
unforeseen external shock has temporarily eliminated a significant part of end user
demand for the relevant core platform service, it would ultimately harm innovation and
welfare if that core platform service were unable to continue its operations once the
exceptional circumstances would cease to apply. Similarly, in exceptional
circumstances solely justified on the limited grounds of public morality, public health or
public security, and based on a reasoned request by the gatekeeper, the Commission
could decide that the obligation concerned does not apply to a specific core platform
service.
401. The combination of a regulatory dialogue to facilitate compliance with limited
exemption possibilities will ensure the proportionality of the obligations without
undermining the intended ex ante effects on fairness and contestability.
8.3. Enforcement framework and governance
402. Under the preferred option implementation, supervision and enforcement would be
carried out at the EU level by the Commission as the competent regulatory body.
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403. The preferred option is built on the clearly identified behavioural measures, which will
be laid down in the new rules. These rules will be based on a legal presumption that, to
meet the objectives of safeguarding contestability of core platform services and fairness
of their commercial relationships, gatekeepers need to comply with such regulatory
behavioural measures, i.e. obligations. This will ensure the necessary legal certainty and
predictability of the rules as well as ensure that the rules apply only where this is
necessary and justified, i.e. are proportionate to the objective sought.
404. The preferred option would also lay down adequate and proportionate enforcement
powers of the Commission with clearly defined procedural enforcement framework and
clearly set deadlines that the Commission would need to respect. The enforcement
powers and processes applicable would be unique to the preferred option. However, as
explained in Sections 5.3.1.5 and 5.3.2.5 they would nevertheless be able to learn in
some of their aspects from existing regulatory and competition law powers. In addition,
the procedural framework would also lay down clear rules on redress available to
gatekeepers or other concerned parties, including access to judicial remedies.
405. The ex ante rules under the preferred option will be complemented by the possibility for
the Commission to launch a market investigation in a limited and well identified
number of cases:
(a) to designate gatekeepers that meet the conditions laid down in Section 5.2.1, or
may meet them in near future;
(b) to update the list of unfair practices and corresponding obligations laid down in
the rules; and
(c) to serve as a basis for further remedial action if the behavioural measures clearly
prescribed by the rules are systematically infringed by the designated gatekeepers.
406. It is worth recalling that the possibility of updating the core platform services by means
of empowerment by the Commission following a market investigation has been
excluded from the preferred option. The reason is linked to legal limits to the market
investigation powers under the chosen ex ante legal instrument that cannot include
implicit powers to adapt the scope. Instead, the Commission should propose the
necessary legislative adaptations by including in the evaluation of the effectiveness of
the regulation the regular review of the list of core platform services in view of ensuring
that digital markets across the EU are contestable and fair.
407. Under the preferred option, further remedies (see Section 5.2.4) would be envisaged for
the purpose of ensuring effective remedies against systematic non-compliance.
408. Such remedies should be modelled on the well-established precedent of Regulation
1/2003, and offer a graduated, step-by-step process of increasing sanctions, with due
process rights at each step. This enforcement framework reflects the potentially limited
dissuasive power of monetary fines alone, and may, as explained in Section 5.2.4.,
contain as ultima ratio behavioural or structural remedies after all other avenues have
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been exhausted, noting that even in established legislation such a tool has never been
used.
409. In the preferred option the Commission will ensure close cooperation with and between
the competent independent authorities of the Member States, with a view to informing
its implementation and to building out the Union´s expertise in tackling fairness and
contestability issues in the digital sector. In this context, the Commission will establish
an information exchange and consultation network consisting of relevant independent
authorities of the Member States, which shall also deliver opinions on the individual
decisions of the Commission.
410. As regards the possible integration of the new Commission powers under the Digital
Markets Act and responsibilities of the Board envisaged under the DSA it is important
to note the very different objectives of the two sets of rules and corresponding expertise
and competences that may be required from the competent enforcement bodies to ensure
compliance with the respective rules.
411. The Board under the DSA, including the participation of the national Digital Services
Coordinators, enhances the cooperation system, particularly necessary for ensuring the
supervised risk management approach for regulating the due diligence of very large
platforms. This system ensures in particular that primarily systemic societal, and not
economic, concerns brought by those platforms with an EU-wide impact are
appropriately addressed through cooperation at the EU level supported by the activities
of the Board, thereby ensuring sufficient expertise and appropriate competencies.
However, the main regulatory compliance activities continue to be carried out by the
competent national Digital Services Coordinators.
412. Furthermore, contrary to the decentralised approach under the DSA, where the focus of
regulatory compliance activities is on the competent national Digital Services
Coordinators, the implementation and enforcement of harmonised rules under the DMA
is to be ensured at the EU level by the Commission who has the necessary means and
expertise, without any decentralised competences.
413. In view of this, it could not be considered under the preferred option that any of the
investigation and enforcement competences and powers could effectively be carried out
by the Board whose tasks relate to facilitating implementation, cooperation and
enforcement of very different rules as those envisaged by the DMA.
9. HOW WILL ACTUAL IMPACTS BE MONITORED AND EVALUATED?
414. Given the dynamic nature of online platforms, monitoring and evaluation of impacts
needs to constitute an important part of the proposal. It also responds to explicit
demands by stakeholders, including Member States (e.g. France), for a dedicated
monitoring function, and reflects the self-standing monitoring option considered in the
Inception Impact Assessment. The monitoring therefore will be divided into two parts:
(i) continuous monitoring which will report on the latest developments in the market
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every second year potentially involving the EU Observatory of the Online Platform
Economy, and (ii) operational objectives and specific indicators to measure them.
415. Regular and continuous monitoring will cover the following main aspects:
a) Monitoring scope-related issues (e.g. indicators for the designation of gatekeepers,
range of designated gatekeepers and its evolution, use of the margin of appreciation in the
designation);
b) Monitoring unfair practices (compliance, enforcement patterns, evolution); and
c) Monitoring as a trigger for launch of a market investigation.
416. The following indicators would be potentially used:
Table 6: Measuring indicators
Specific objective Operational objectives Potential Measuring indicators
Enhance coherence and legal Limit the diverging national Number of regulatory interventions
certainty in the online platform regulatory interventions at the national level
environment in the internal
market Ensure coherent interpretation of Number of clarification requests per
obligations year
Number of compliance interventions
by the Commission per gatekeeper
Address gatekeeper platforms' Preventing identified unfair self- platform/per year
unfair conduct preferencing practices
Number of sanction decisions per
gatekeeper platform/per year
Preventing unfair practices
Address market failures to
concerning access to gatekeeper Share of users multi-homing with
ensure contestable and platforms’ services and platforms different platforms or services
competitive digital markets for
increased innovation and Preventing unfair data related Share of users switching between
consumer choice practices and ensuring the different platforms and services
compliance with obligations
417. The monitoring will also take due account of the conceptual work of the Expert Group
of the Online Platform economy under its work stream on Measurement and Economic
Indicators.281
418. Of particular importance in the monitoring framework is the evolution of the market, in
terms of new unfair practices, additional core platform services, and new gatekeepers.
The monitoring framework, including through the dedicated Observatory of the Expert
Group on the Online Platform Economy as well as through the market investigation part
281
https://platformobservatory.eu/app/uploads/2020/07/ProgressReport_Workstream_on_Measurement_and_
Economic_Indicators_2020.pdf.
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of the preferred option, will continuously monitor the evolution of these factors. This is
a core part of keeping the regulation future proof.
419. To this end, the preferred option contains a specific obligation on the Commission to
review whether designated gatekeepers continue to meet the scope of the obligation.
This monitoring function is essentially part of the preferred option to keep the rules in
line with market developments.
420. Furthermore, specifically the legislation proposed should be reviewed at least every
three years, to ensure that other elements, notably other scope related issues (such as
new services) require adjustments.
421. Finally, the monitoring framework also needs to monitor compliance with the
regulation, and the effectiveness of the enforcement framework, including to which
extent the range of available remedies were actually used, the effectiveness of the
implementation dialogues, and the responsiveness of the companies in scope to the
obligations.
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EUROPEAN
COMMISSION
Brussels, 15.12.2020
SWD(2020) 363 final
PART 2/2
COMMISSION STAFF WORKING DOCUMENT
IMPACT ASSESSMENT REPORT
ANNEXES
Accompanying the document
Proposal for a
REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
on contestable and fair markets in digital sector (Digital Markets Act)
{COM(2020) 842 final} - {SEC(2020) 437 final} - {SWD(2020) 364 final}
EN EN
Annex 1: Procedural information
1. LEAD DG, DeCIDE PLANNING/CWP REFERENCES
Three Directorates-General are in the lead for this impact assessment. These are the
Directorate-General for Competition (DG Competition), the Directorate-General for
Communications Networks, Content and Technology (DG Connect) and the Directorate-
General for Internal Market, Industry, Entrepreneurship and SMEs (DG Grow).
The impact assessment compiles information on two projects:
- Initiative for a New Competition Tool, led by DG Competition and registered in
Decide as PLAN/2020/7913; and
- Initiative for a Digital Services Act package: ex ante regulatory instrument of
very large online platforms acting as gatekeepers, led by DG CNECT and DG
GROW and registered in Decide as PLAN/2020/7452.
2. ORGANISATION AND TIMING
The inception impact assessments for both initiatives were published on 2 June 2020.
These inception impact assessments set out the background of the initiatives as well as
their purpose and scope. The inception impact assessments also presented the
consultation activities that would be conducted by the Commission (notably a public
consultation, external support studies, exchanges with dedicated stakeholders and, for the
New Competition Tool, a targeted consultation of the national competition authorities).
The inception impact assessments also explained the data collection methodology that
would be followed to gather relevant information for the purpose of the impact
assessment.
The impact assessment was carried out in close cooperation with other interested
Commission services. The inter-service steering group (‘ISSG’) set up for that purpose
comprises representatives of the Directorates-General FPI, JRC, HOME, ENV, FISMA,
AGRI, JUST, EAC, TRADE, RTD, TAXUD, ENER, MARE, SANTE, EMPL, MOVE,
and ECFIN, the EEAS, as well as the Secretariat-General and the Legal Service, which
are associated by default to any such initiative.
The impact assessment for the New Competition Tool, was carried out in close
cooperation with the NCAs, which were consulted on the milestones for the evaluation
study and the study on consumer purchasing behaviour. The different milestones of the
evaluation phase are reflected in the table below:
1
Timing Step
2 June 2020 Launch of the initiative in the Commission’s Decide
2 June 2020 Publication of the Inception Impact Assessments (4-week
comment period) and launch of the open public consultation (2
June until 8 September 2020)
3 July 2020 Upstream Meeting with the Regulatory Scrutiny Board on the
Digital Services Act
10 September 2020 Upstream Meeting with the Regulatory Scrutiny Board on the
New Competition Tool
6 October 2020 ISSG Meeting to consult on the draft Impact Assessment
8 October 2020 Publication of the following documents concerning the NCT
pillar:
- Summary report of the public consultation
- Summary of the NCA consultation
- External support studies
30 October 2020 Quality check-list
4 November 2020 Consultation of the Regulatory Scrutiny Board
6 November 2020 First (negative) Opinion by the Regulatory Scrutiny Board
10 December 2020 Second (positive) Opinion by the Regulatory Scrutiny Board
3. EXTERNAL SUPPORT STUDIES
3.1. EXTERNAL SUPPORT STUDIES CONDUCTED IN THE CONTEXT OF THE
DIGITAL SERVICES ACT (‘DSA’) PACKAGE: EX ANTE REGULATORY
INSTRUMENT OF VERY LARGE ONLINE PLATFORMS ACTING AS
GATEKEEPERS (‘GATEKEEPER INSTRUMENT’)
3.1.1. Impact Assessment Support study
DG CNECT commissioned a support study for the an impact assessment, Platforms with
Significant Network Effects Acting as Gatekeeper, run by Consortium composed of ICF
(lead), WiK and CEPS, with a budget of EUR 597 850 [VIGIE 2020-00630]. The study
had three objectives:
1. Providing a structured analysis of (i) the issues raised by digital platforms with
strong data-driven network effects and (ii) analysis of the ability of current
regulation (e.g. competition law; P2B regulation) to address these issues (regulatory
failures).
2. Scoping the parameters of intervention which match the problem analysis (identify
economic players in scope of the initiative, and criteria relevant to identify these
players).
3. In agreement and cooperation with Commission services, help the identification of
possible policy options, and provide evidence in analysing their impact.
2
3.1.2. Support study to the Observatory for the Online Platform Economy
DG CNNECT and DG GROW commissioned a support study to the Observatory for the
Online Platform Economy run by a consortium composed of PPMI (lead) with Open
Evidence, IW and Rand Europe (SMART 2018/0034), with a budget of EUR 830 000.
The contractor produced the following analytical papers (AP):
AP1:Differentiated treatment (IW)
AP2:Platform data access and secondary data sources (PPMI)
AP3:Transparency in the business-to business commercial relations in the online
advertising market (Open Evidence)
AP4: Significant Market Status (RAND)
AP5: Business user and third-party access to digital platform data (PPMI)
AP6: The main obstacles and opportunities for multihoming (PPMI)
AP7: The structure of the online platform economy post COVID-19 outbreak
(Open Evidence)
AP8: Developments concerning B2B platforms and emerging issues (RAND)
3.2. EXTERNAL SUPPORT STUDIES CONDUCTED IN THE CONTEXT OF THE NEW
COMPETITION TOOL
DG COMP commissioned expert advice reports by renowned academics to inform the
most appropriate set-up of the NCT, including:
a. A study by Massimo Motta and Martin Peitz on structural competition problems
in digital and other markets, as well as a possible intervention trigger for the NCT
based on the commonalities between the scenarios identified;1
b. A study by Alexandre De Streel and Pierre Larouche on the interplay of the NCTs
and sector-specific regulation, as well as possible ways to ensure
complementarity between both;2
c. A study by Heike Schweitzer on the institutional and procedural set-up of the
NCT, with the aim of ensuring effective and timely intervention, while
safeguarding the right to be heard and judicial review;3 and
d. A comparative study by Richard Whish of existing market investigation tools,
with a particular focus on the UK Competition and Markets Authority’s market
investigation reference tool.4
1
Massimo Motta is a professor at the Pompeu Fabra University in Barcelona and served as Chief
Competition Economist of the European Commission from 2013 to 2016. Martin Peitz is a professor of
economics at the University of Mannheim.
2
Alexandre De Streel is professor of European law at the Universities of Namur and Louvain, Professor
Larouche is professor in law and innovation at the Faculty of Law at the Université de Montréal.
3
Heike Schweitzer is a professor in the Humboldt University of Berlin and was one of the special
advisers authoring the Competition policy for the digital era report.
4
Richard Whish is emeritus professor of Law at King's College London and one of the leading
competition law scholars.
3
DG COMP also contacted three members of the Economic Advisory Group on
Competition Policy (EAGCP), namely Gregory Crawford, Patrick Rey and Monika
Schnitzer, who prepared an economic evaluation of the NCT.5
These reports are referenced in Annex 5.1.
4. CONSULTATION OF THE RSB
The meeting of the Regulatory Scrutiny Board (‘RSB’) took place on 4 November 2020.
The outcome was a negative opinion, issued on 6 November. Following a substantial
rethinking of the document in light of the comments of the RSB, the text was resubmitted
for a second time. The RSB delivered its second positive opinion with reservations on 10
December 2020.
The following table provides information on how the comments made by the RSB in its
first negative opinion were addressed in this Staff Working Document:
RSB comments Actions taken
(1) The impact We acknowledge that the first submitted impact assessment
assessment is unfinished. was unfinished, and have since then fundamentally reworked
Work on integrating the the approach, notably on the basis of the feedback from the
two pillars of the RSB. In particular, the original two-pillar structure of the
initiative is incomplete. impact assessment was abandoned and integrated into a ‘single
track’ approach to the problem definition and options’
assessment. The impact assessment further substantiates the
internal market nature of the issues at stake and of the
measures considered to address those.
The entire Impact Assessment has been thoroughly overhauled,
and no longer contains any distinctions between any pillars
present in the previous version of the Impact Assessment.
As a result of the substantial rethinking of the problem
definition – no longer based on a distinction between pillars –
genuinely unified policy options ex novo have been created for
the impact assessment. This new structure has allowed an
objective comparison of the three options presented, in line
with the Better Regulation requirements.
(2) The report does not A new Section 1.2 has been included in the impact assessment
sufficiently justify the in order to explain the focus of the initiative not only on digital
restriction of its scope to markets, but more specifically on (i) selected core platform
digital markets. It does services of (ii) certain gatekeepers engaging in (iii) certain
not justify the selection behaviour. Moreover, the evidence on the special incidence of
of platform services market failures on digital markets has been further added in the
5
Gregory S. Crawford is a professor of Applied Microeconomics at the University of Zurich, Patrick
Rey is Professor of Economics at the Toulouse School of Economics, Monika Schnitzer is a member of
the German Council of Economic Experts and a professor of comparative economics at the Ludwig-
Maximilian-University Munich.
4
RSB comments Actions taken
within the digital sector text.
nor does it clarify the An entire new section 5 explains the main parameters that set
concept of gatekeeper out the options space, including explicitly a discussion of the
platforms. different parameters that set the scope. This includes a
clarification and a rationale of the notion of gatekeeper
platforms, and provides an explicit overview of which services
are in scope and which companies might qualify depending on
the choice of criteria.
(3) The report does not The problem definition has been redone from scratch in order
provide an integrated to present an integrated problem definition for the initiative.
problem definition for In addition to doing away with the Pillar I and Pillar II
the initiative. It does not classification, the distinction between problem drivers and
appropriately describe problems as well as their interlinkage have been clarified.
the shortcomings the Moreover, for the purpose of clarity, the problem definition
initiative intends to part no longer distinguishes between existing and emerging
address and does not market failures.
provide a proper
evidence base for them. Following this new problem definition, the impact assessment
now presents a single, more coherent intervention logic,
reflecting problems, their underlying drivers and policy
objectives pursued.
The evidence base for the problems identified – in particular as
regards the specific unfair practices – is now explicit, notably
in the tables in Section 5, and in updated Annexes (notably
5.6); concrete examples of these problems and of their
underlying drivers and evidence have been included.
(4) The report does not The new Impact Assessment provides a new structure for the
provide policymakers Options design. It sets out upfront the main parameters that
with real choices on the determine the options range, and their trade-offs. A completely
different policy options. new set of options (with sub-options as alternatives) is now
It does not provide a full presented that provide genuine alternatives within the
range of options and it parameters of the problem definition.
does not develop these in The new Impact Assessment also explains in greater detail the
sufficient detail. It discarded options and why they have been discarded.
therefore cannot assess
their impacts on different
stakeholders. 1. Option 1 is a non-dynamic option with a set of self-
executing obligations addressing clearly defined unfair
practices by gatekeepers designated solely on
quantitative thresholds in specific core platform services.
This option contains no dynamic elements, but is
presented with distinct two sub-options on scope as
distinct alternatives, on the basis of different thresholds.
5
RSB comments Actions taken
Sub-option 1-A is presented as a sub-option with a small
perimeter of gatekeeper companies in scope (some 5-7
companies in scope) while sub-option 1-B contains a
wider scope of gatekeeper companies (some 10-15
gatekeeper companies), based on a lower quantitative
threshold.
2. Option 2 is a semi-flexible option, combining a set of
self-executing obligations with some degree of
flexibility, notably through a dialogue on some of the
obligations, through a mechanism for updating the
practices and obligations, and a mechanism designating
gatekeepers based on a combination of quantitative and
qualitative thresholds and including the designation of
emerging gatekeepers. Again, this semi-flexible option is
presented with two sub-options that reflect alternatives
on the scope platforms. Sub-options 2-A and 2-B are
sub-options on this semi-flexible option, following the
same distinction on the quantitative threshold as Option
1.
3. Option 3 is a fully flexible option providing for a
dynamic updating mechanism allowing for the inclusion
of additional core platform services and of additional
obligations where following a market investigation such
an inclusion is considered appropriate and justified, and
where the designation of gatekeepers is based only on
qualitative (not quantitative) thresholds.
The impact section is completely updated and revised, and now
includes more detailed assessments and comparisons of each
option against the baseline and against each other.
(5) The report fails to Section 5 now outlines the trade-offs upfront that motivate the
assess all risks and trade- choice and design of options. Section 7 now explicitly
offs of the policy compares the new options against each other in terms of trade-
options. It does not offs, and motivates a preferred option.
clarify the extent to The substantial changes in the design of the Impact
which the preferred
Assessment – including the disappearance of the pillars – has
option, and in particular led to a unified set of measures no longer distinguishing
the interaction between between regulatory measures and market investigation.
the regulatory measures
and the market A fresh quantitative and qualitative assessment has been
investigation regime, is carried out for the preferred option. Annex 3 also includes a
coherent and qualified and quantified overview of costs associated with each
futureproof. of the three options. Special attention has been given to the
monitoring framework of the intervention under the preferred
option.
6
The following table provides information on how the comments made by the RSB in its
second positive opinion with reservations were addressed in this Staff Working
Document:
RSB comments Actions taken
(1) The report should make clearer A conclusion was added on drivers’ effects (Section
how the problem drivers may lead to 2.3.3) explaining in more detail how the problem
the identified negative outcomes. It drivers lead to negative outcomes. Section 6 has
should consider the negative been updated, where relevant, to better reflect the
consequences of curtailing the size link between problem drivers and identified
advantages following from network impacts.
economies and economies of scale Section 6.7 is now considering the point of
for consumers. It should better curtailing gatekeepers’ size advantages and is
distinguish problems relating to size assessing the impact on consumers.
advantages from the monopolisation
of data and the imposition of market
rules like exclusive dealings.
(2) The report should better justify Table 2 (in Section 5.2.2) illustrates all practices
the identification and selection of the resulting from misuse of gatekeepers’ power vis-à-
core platform services. It should vis dependent business users and customers. The
present evidence of what determines Table specifies now under each example of unfair
persistent misuse of gatekeepers’ practice the type of behavior concerned (e.g. data-
power vis-à-vis dependent business related, size-related, dependence-related, etc.). The
users and customers. It should more evidence provided for each practice was also
convincingly demonstrate for each strengthened.
of the selected core platform Table 1 has been included in Section 5.2.1
services that the identified weak explaining the main features of each of the eight
contestability has negative effects in core platform services in scope. Reference to
terms of higher mark-ups, lower several points of evidence describing the unfair
quality of service, or reduced practices and weak contestability in these services
innovation. The report should better was also added, as well as a list of the most
justify why other platform services, common practices for each services.
such as content streaming providers,
would not meet the selection criteria. As an introduction to Table 1 it is also explained the
limitations as regards a granular assessment of
mark-ups and innovation for each of these services.
Nevertheless, some additional information was
added in relation to these variables.
Finally, some justifications are provided on the
question why video streaming content services and
industrial B2B platforms do not meet the criteria.
(3) The report should better define In Section 5.2.1 more detail is now provided about
and justify the measures covered the reliability of each quantitative proxy for the
under the options. It should determination of the status of gatekeeper.
demonstrate why the proposed set of Some additional data was collected and analysed
cumulative quantitative thresholds
during the period of review by the RSB. This
(under the ‘non-dynamic’ and ‘semi- resulted in a slight change in the value of the
7
RSB comments Actions taken
flexible’ options) can be considered thresholds considered, without changing the number
as a robust and reliable trigger across of gatekeepers under each sub-option. This also
all selected core platform services shows that small variations in the turnover and
for the (quasi-automatic) designation number of users do not have a significant impact in
of gatekeepers and the imposition of the designation of gatekeepers.
obligations. It should better explain The description of Option 2 in Section 5.3.2 (as
why a market investigation is not well as in Section 8) now explains in more detail a
deemed necessary or proportionate flexible element that minimises the risks associated
in these situations. to the possible lack of robustness and reliability of
the quantitative triggers. Also circumstances where
a market investigation can take place when there is
a doubt about the application of the quantitative
thresholds are explained. This is also reflected in
the comparison about effectiveness.
(4) From a future proofing Section 5.3.2.5 now includes an explanation about
perspective, the report should the possibility under Option 2 to update the list of
explain why the possibility of core platform services, namely in the context of the
updating the list of core platform review of the Regulation. Any additional flexibility
services following a market level would defeat the legal certainty created by a
investigation was discarded for the fixed scope of core platform services.
‘semi-flexible’option, while Section 5.3.3.3 now includes an additional
maintained as a key element for the explanation as to why even guiding thresholds
‘fully flexible’ option. As regards would defeat the purpose of Option 3 by
the ‘fully flexible’ option, it is not undermining its inherent flexibility.
clear why certain beneficial
guidance elements (including
indicative quantitative thresholds),
which could have provided further
legal clarity, have not been
considered in the design of this
option.
(5) The report should clarify the Section 5.3.3.4 now clarifies the distinction
distinction between the ‘semi- between Option 2 and Option 3 in terms of the
flexible’ and ‘fully flexible’ options obligations that can be added.
in terms of the obligations that can Sections 5.3.2 and 5.3.3 now include several
be added following a market paragraphs comparing the enforcement powers and
investigation. It should also explain, processes of Regulation 1/2003 with those of the
where the market investigation instrument that is the object of this impact
powers and process deviate from the assessment.
envisaged model and rules under
Regulation 1/2003.
(6) The report should improve the The relative importance of the tree parameters
comparison of options in terms of (speed, legal certainty and flexibility) has been
effectiveness and benefits (including specified in Section 7.1, and reflected throughout
in summary table 5) given that the the options’ comparison carried out in Section 7.
‘fully flexible’ option seems to score
8
RSB comments Actions taken
best in minimising false The narrative has been further specified and
negatives/positives and future substantiates better the scoring in Table 5.
proofing. The report should clarify The effectiveness and efficiency criteria have been
the relative weight given to the reviewed, and adjusted whenever needed.
different assessment criteria (e.g.
legal certainty vs. flexibility vs. The different assumptions made have been further
speed). It should better substantiate explained in Sections 5.3 and 7.
the assumption that the ‘fully
flexible’ option would lead to a
higher number of large platforms
being covered, and why the
decisions taken under this option
would be ‘arbitrary’ (given that they
would be based on market
investigation).
(7) The report should better explain An explanation of the sources of evidence and their
the limitations of the methodology limitations was included before Table 2.
used. When presenting evidence the Table 2 was updated making clear which evidence
report should differentiate more comes from established case law, which comes
clearly between cases which are still from cases being investigated and which one comes
being investigated or pending and from public authorities’ reports.
the established case law. The Board
notes the estimated costs and
benefits of the preferred options in
this initiative, as summarised in the
attached quantification tables.
5. OTHER EVIDENCE, SOURCES AND QUALITY
Reports by the expert group for the Observatory on the Online Platform Economy 6
Measurement of the Online Platform Economy
Differentiated treatment
Data in the Online Platform Economy
Published for feedback on 9 July.7
6
https://ec.europa.eu/digital-single-market/en/expert-group-eu-observatory-online-platform-economy
7
https://ec.europa.eu/digital-single-market/en/news/commission-expert-group-publishes-progress-reports-
online-platform-economy
9
Studies supporting the P2B initiative with relevant input for this proposal
ECORYS, Business-to-Business relations in the online platform environment
FWC ENTR/300/PP/2013/FC-WIFO, 2017 (commissioned by DG GROW &
DG CNECT ).
ERNST&YOUNG, Contractual Relationships between Online Platforms and
Their Professional Users, SMART 2017/0041 (commissioned by DG
CNECT).
VVA, Data in platform-to-business relations, November 2017 (commissioned
by DG GROW).
GfK et al., Behavioural study on advertising and marketing practices in online
social media, June 2018 (commissioned by DG JUST).
Research conducted by the Joint Research Centre
B. Martens (2020), An economic perspective on data and platform market power,
JRC Digital Economy Working Paper 2020-09.8
B. Martens, M. Sobolewski, & N. Duch-Brown (2020), Market power in app
stores, JRC Digital Economy working paper 2020-10JRC.9
B. Martens & N. Duch-Brown (2020), From platforms to ecosystems: The role of
data in linking seemingly separate markets, JRC Digital Economy Working
Paper 2020-11.10
N. Duch-Brown (2020), Entry and contestability in online platform markets, JRC
Digital Economy working paper 2020-12.11
JRC, Quality discrimination in online multi-sided markets, 2017.12
JRC, Platform to business relations in online platform ecosystems, 2017.13
JRC, The Competitive landscape of online platforms, 2017.14
JRC, An Economic Policy Perspective on Online Platforms, 2016.15
Other data sources
Dealroom economic report, Global platforms and marketplaces custom policy
intelligence, April 2020.
Report on the Monitoring Exercise Carried out in the Online Hotel Booking
Sector by EU Competition Authorities in 2016.
8
https://publications.jrc.ec.europa.eu/repository/handle/JRC122896
9
https://publications.jrc.ec.europa.eu/repository/handle/JRC122897
10
https://publications.jrc.ec.europa.eu/repository/handle/JRC122898
11
https://publications.jrc.ec.europa.eu/repository/handle/JRC122899
12
https://ec.europa.eu/jrc/sites/jrcsh/files/jrc109185.pdf.
13
https://ec.europa.eu/jrc/sites/jrcsh/files/jrc109186.pdf.
14
https://ec.europa.eu/jrc/sites/jrcsh/files/jrc106299.pdf.
15
https://ec.europa.eu/jrc/sites/jrcsh/files/JRC101501.pdf.
10
CERRE reports and events:
The role of data for digital markets contestability, September 2020.16
Seminar of 4 March 2020, How should Europe address gatekeeping platforms.17
Market Definition and Market Power in the Platform Economy, May 2019.18
Implementing effective remedies for anti-competitive intermediation bias on
vertically integrated platforms, October 2019.19
Big data and competition policy, February 2017.20
Internet Platforms and Non-Discrimination, December 2017.21
Sources from the Member States
Austrian position Paper, Digitalisation and Competition Law, June 2020.
Dutch Competition Authority (ACM), Market Study into mobile app stores,
April 2019.22
Digital gatekeepers - Assessing exclusionary conduct – a study by e-Conomics
commissioned by the Dutch government, October 2019.23
Dutch position, Future-proofing of competition policy in regard to online
platforms, May 2019.24
Seminar on the regulatory challenges posed by ‘structuring platforms’ organised
on 24 February 2020 in Paris by the French government.
Non-paper by the French Ministry of Economy and Finance, Regulating
structuring digital platforms in favour of competition and innovation in the
digital economy.25
French paper, Regulation of structuring platforms: the case of operating systems
and app stores, ‘gatekeepers’ of our devices.
Position of French Competition Authority.26
ARCEP’s working paper on the structuring platforms, December 2019.
16
https://cerre.eu/events/contestability-digital-markets-role-essential-data.
17
https://cerre.eu/events/designing-eu-intervention-standard-digital-gatekeepers.
18
https://cerre.eu/sites/cerre/files/2019_cerre_market_definition_market_power_platform_economy.pdf.
19
https://www.cerre.eu/sites/cerre/files/cerre_intermediationbiasremedies_report.pdf.
20
https://cerre.eu/publications/big-data-and-competition-policy.
21
https://cerre.net/publications/internet-platforms-non-discrimination/.
22
https://www.acm.nl/sites/default/files/documents/market-study-into-mobile-app-stores.pdf.
23
https://www.government.nl/documents/reports/2019/10/07/digital-gatekeepers.
24
https://www.government.nl/documents/letters/2019/05/23/future-proofing-of-competition-policy-in-
regard-to-online-platforms.
25
https://www.tresor.economie.gouv.fr/Articles/7690058a-00e4-44a7-8aed-
9a2ee5a04d51/files/c888861f-5516-4e4e-b3ce-a96af66b3c34.
26
https://www.autoritedelaconcurrence.fr/fr/communiques-de-presse/lautorite-publie-sa-contribution-au-
debat-sur-la-politique-de-concurrence.
11
The Report by the German Competition Commission, 2020.27
German report, A New Competition Framework for the Digital Economy, 9
September 2019.28
German Ministry for Economic Affairs and Energy Study, Modernising the law
on abuse of market power (2018).29
Position paper by German telecom and competition authorities on monitoring
digital platforms, May 2020.30
DE Monopolies Commission Policy Brief 4/2020, 10th amendment to the
Competition Act – meeting challenges in digital and regional markets!.
Italian AGCM/AGCOM/DPA Report on big data and policy recommendations –
20 Feb 2020.31
Joint memorandum of the Belgian, Dutch and Luxembourg competition
authorities on challenges faced by competition authorities in a digital world
(2 October 2019).
Economic Affairs Ministries of DE, FR, PL: Modernising EU Competition
Policy.
Spanish National Commission on Markets and Competition (CNMC)
contribution to conference Shaping competition policy in the era of digitisation.32
Sources from non-EU states and international organisations
US House of Representatives Majority Staff report, Investigation of Competition
in Digital Markets, October 2020.33
Furman report, Unlocking digital competition, Report of the Digital Competition
Expert Panel (the UK), March 2019.34
OFCOM, Online market failures and harms, An economic perspective on the
challenges and opportunities in regulating online services, October 2019.35
27
https://monopolkommission.de/images/HG23/HGXXIII_Gesamt.pdf#page36.
28
https://www.bmwi.de/Redaktion/EN/Downloads/a/a-new-competition-
framework.pdf?__blob=publicationFile&v=2.
29
https://www.bmwi.de/Redaktion/DE/Downloads/Studien/modernisierung-der-missbrauchsaufsicht-fuer-
marktmaechtige-unternehmen-zusammenfassung-englisch.pdf?__blob=publicationFile&v=3.
30
https://www.bwb.gv.at/news/detail/news/rtr_praesentiert_methodenpapier_in_enger_kooperation_mit_b
wb_zu_monitoring_digitaler_plattformen/.
31
https://www.agcom.it/documents/10179/17633816/Allegato+10-2-2020+1581347457837/c4139504-
3777-4674-ad6d-ac6b9d501608?version=1.0.
32
https://ec.europa.eu/competition/information/digitisation_2018/contributions/comision_nacional_de_los
_mercados_y_la_competencia.pdf.
33
US House of Representatives Majority Staff Report, Investigation of Competition in Digital Markets,
October 2020.
34
https://www.gov.uk/government/publications/unlocking-digital-competition-report-of-the-digital-
competition-expert-panel.
35
https://www.ofcom.org.uk/__data/assets/pdf_file/0025/174634/online-market-failures-and-harms.pdf.
12
CMA, Online platforms and online advertising – Market study final report, July
2020.36
Stigler Center Report, George J. Stigler Center for the Study of the Economy and
the State The University of Chicago Booth School of Business, July 2019.37
ACCC Report, Digital Platforms Inquiry, June 2019,38and Interim Report of
September 2020.39
Japanese Fair Trade Commission Report regarding trading practices on digital
platforms, October 2019,40 and the Interim Report on the Evaluation of
Competition in the Digital Advertising Market.41
BEUC, The role of competition policy in protecting consumers’ well-being in the
Digital Era, October 2019.42
OECD, Rethinking antitrust tools in multisided markets, 2018.43
External expertise
The European Commission sought external expertise before drafting this Impact
Assessment. Views of the experts have contributed to the problem framing and evidence
collection strategy. Consultation of experts listed here below does not imply automatic
endorsement on their side of the Impact Assessment report.
JRC expert panel
At the request of DG CNECT, the Joint Research Centre (JRC) of the European
Commission established a high-level Panel of Economic Experts on Platform issues with
a mandate to produce a report with an economic opinion on the proposed ex-ante
regulatory tool, based on existing economic research and evidence. The members of the
Panel are well-known economists with a strong track-record in economic research on
digital platforms and competition policy. They include: Luis Cabral, Justus Haucap,
Geoffrey Parker, Georgios Petropoulos, Marshall Van Alstyne and Tommaso Valletti.
Panel members are independent and contribute pro bono to the report.44
Philip Marsden, workshop of 29 January 2020.
Paul Belleflamme, workshop of 29 January 2020.
Stephen Adshead, workshop of 29 January 2020.
36
https://www.gov.uk/cma-cases/online-platforms-and-digital-advertising-market-study#final-report.
37
https://research.chicagobooth.edu/-/media/research/stigler/pdfs/market-structure-
report.pdf?la=en&hash=E08C7C9AA7367F2D612DE24F814074BA43CAED8C.
38
https://www.accc.gov.au/system/files/Digital%20platforms%20inquiry%20-%20final%20report.pdf.
39
https://www.accc.gov.au/publications/serial-publications/digital-platform-services-inquiry-2020 -
2025/digital-platform-services-inquiry-september-2020-interim-report.
40
https://www.jftc.go.jp/en/pressreleases/yearly-2019/October/191031Report.pdf.
41
https://www.kantei.go.jp/jp/singi/digitalmarket/pdf_e/documents_200616-1.pdf.
42
https://www.beuc.eu/publications/beuc-x-2019-054_competition_policy_in_digital_markets.pdf.
43
http://www.oecd.org/daf/competition/Rethinking-antitrust-tools-for-multi-sided-platforms-2018.pdf.
44
https://publications.jrc.ec.europa.eu/repository/handle/JRC122910
13
Francesco Decarolis, workshop of 29 January 2020
Daniel Knapp, workshop of 29 January 2020.
Wolfgang Kerber, Updating Competition Policy for the Digital Economy? An
Analysis of Recent Reports in Germany, UK, EU, and Australia, September
2019.45
Alexandre de Streel and Peter Alexiadis, Designing an EU Intervention Standard
for Digital Platforms, Robert Schuman Centre for Advanced Studies, Research
Paper No. 2020/14.46
Experts for the Observatory on the Online Platform Economy.47
45
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3469624.
46
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3544694.
47
https://platformobservatory.eu/about-observatory/group-of-experts/.
14
Annex 2: Stakeholder consultation
1. THE STAKEHOLDERS ENGAGEMENT STRATEGY
This annex presents the results of the consultation activities performed in the context of
the Inception Impact Assessments: (i) the Digital Services Act (‘DSA’) package: ex ante
regulatory instrument of very large online platforms acting as gatekeepers;48 and (ii) the
New Competition Tool (‘NCT’).49
Given the breadth of the questions asked, both consultations were conducted separately
and the results are presented separately below. However, since the outset, both
consultations were aimed at complementary solutions by “ensur[ing] a joint analysis of
the results”, “with a view to exploring synergies and ensuring consistency on the policy
options pursued, in particular as regards possible remedies and enforcement.”50
As presented in the initiatives’ Inception Impact Assessments, the objective of both
consultations was to consult as widely as possible through various means in order to
deliver an in-depth impact assessment of the different policy options and their perceived
impact on the Commission’s ability to improve effective competition in digital markets.
As will be presented below, this objective was largely met. To illustrate this, it is worth
noting that a total of 3051 respondents participated in both open public consultations.
These respondents represented all possible categories of stakeholders.
In developing the stakeholder engagement strategy for the both initiatives, the merged
stakeholder mapping included:
1. Businesses and their associations, including digital players (online intermediaries,
other digital players, third parties involved in the ecosystem around digital services);
2. Trade associations and labour unions;
3. Consumers, including users of digital services;
4. Civil society and consumer organisations;
5. National authorities including law enforcement, competition, data protection and
consumer protection authorities, and other relevant regulatory bodies in Member
States and, to the extent possible, in regions and municipalities;
6. Academics from the technical, legal and social science communities;
7. International organisations; and
8. General public, in particular through the open public consultations.
48
Inception Impact Assessment for the Digital Services Act package.
49
Inception Impact Assessment of the New Competition Tool.
50
Inception Impact Assessment of the New Competition Tool, at page 3; and Inception Impact
Assessment for the Digital Services Act package, at page 4.
15
2. CONSULTATION ACTIVITIES IN THE CONTEXT OF THE DIGITAL SERVICES ACT
(‘DSA’) PACKAGE: EX ANTE REGULATORY INSTRUMENT OF VERY LARGE ONLINE
PLATFORMS ACTING AS GATEKEEPERS (‘GATEKEEPER INSTRUMENT’)
2.1 Consultation on the Inception Impact Assessment
The Inception Impact Assessment was published on 2 June 2020 with the deadline for
comments running until 30 June 2020. During this period, 85 formal submissions were
received from a variety of stakeholders (e.g. online platforms; business associations;
telecom operators; media publishers; civil society; consumers).
The largest group of respondents were from the private sector, amounting to more than
half of all respondents. Among the private sector, online platforms constituted the largest
group of respondents (one third of all respondents).
Overall, a two-third majority of stakeholders expressed its (general) support of
Gatekeeper Instrument, with a one-fifth minority explicitly opposing its introduction.
Although most replies were of a preliminary nature, many focused on ‘option 3’ with
mixed support for and opposition to blacklisted practices and/or a case-by-case approach.
Online platforms are split on the issue, with the majority of large online platforms and/or
their representative associations questioning the need for a Gatekeeper Instrument. On
the other side, many small and medium sized platforms, in particular those that are
business users of large online platforms, expressed their support for a Gatekeeper
Instrument.
Market operators from some specific sectors (e.g. telecoms; financial services) have
expressed equally strong support for a Gatekeeper Instruments and were specifically
referring to the ineffectiveness of ex post competition rules in addressing some of the
emerging issues. Having said that, some telecom operators referred to the relatively static
nature of a blacklist/whitelist approach, which they therefore consider to not always be
an appropriate and effective solution in a very dynamic online platform environment.
National Authorities expressed their support of a Gatekeeper Instrument and the need for
an approach on an EU level to avoid regulatory fragmentation, whilst emphasizing the
importance of involving the responsible national government representatives in the
legislative project in advance.
Civil society and media publishers also strongly supported a Gatekeeper Instrument.
Both called for an adequate degree of transparency in the market as well as the guarantee
of a certain degree of media diversity and the respect of consumers' autonomy and
choice.
16
2.2 Consultation on the Impact Assessment51
The open public consultation on the DSA, including the Gatekeeper Instrument was
launched on 2 June 2020 and open for feedback until 8 September 2020. During this
period, a total of 2863 contributions were received, of which 2128 citizens, 621
organisations and 59 administrations represented stakeholders from across all Member
States.
In terms of geographical distribution of respondents, the majority of answers came from
respondents from Germany (28%) followed by the United Kingdom (21%) and France
(14%). Other Member States represented in higher proportions are Belgium (9%),
Netherlands (4%) and Austria (3%). Member States contributed with response rates
lower than 3%. Among respondents originating outside the EU, the highest share comes
from respondents from the United States of America (3%).
Among respondents, the vast majority fully agree (71%) and agree to a certain extent
(20%) that there is a need to consider dedicated regulatory rules to address negative
societal and economic effects of gatekeeper power of large platforms. The majority of
stakeholders considers that, while some of the issues connected to gatekeeper powers can
potentially be addressed by improving the efficiency of competition law enforcement
through procedural and/or organisational changes, there are restrictions that cannot be
overcome with competition law enforcement.
The vast majority of respondents (85% of those who replied to the relevant question)
considers that dedicated rules on platforms should include prohibitions and obligations
for gatekeeper platforms. Most of the stakeholders suggest that, rather than having
certain practices categorically prohibited, the Commission should scrutinise certain
practices and prohibit them on a case-by-case basis in circumstances when they are most
likely to have detrimental effects. It is also suggested that remedies could be more
procedural in nature rather than prescribing a given course of conduct.
According to the vast majority of stakeholders, the proposed list of problematic practices,
or ‘blacklist’, should be targeted to clearly unfair and harmful practices of gatekeeper
platforms; specific enough to avoid confusion of what is and is not permitted; adaptable
to a dynamic, fast moving sector; and specific to certain gatekeepers as they would
otherwise risk hurting smaller players trying to compete with them.
The unfair practices listed by the respondents cover exclusionary conducts, exploitative
conducts and transparency-related problems, such as: self-preferencing; lack of data
sharing and accumulation of data; limited data portability and data access due to lack of
interoperability; imbalance on how the revenues are split between platforms and right
owners in relation to user generated content; imposition of unfair and unilateral terms and
conditions; imposition of exclusionary terms and conditions for attaining and/or retaining
51
See for a more elaborate synopsis report the OPC results on the Ex Ante Tool Annex 2.1 below.
17
access; cross-financing and cross-subsidising of otherwise unprofitable subsidiary
companies; and default settings which adversely impact customer choice.
The respondents consider all the characteristics mentioned in the questionnaire (large
user base, wide geographical coverage, large share of total market revenue, impact on a
certain sector, exploitation of strong network effects, leverage of assets to enter new
areas of activity, raising of barriers to entry, accumulation of valuable and diverse data
and information, lack of alternative services, lock-in of users) are relevant in determining
the gatekeeper role of large online platforms.
Respondents among platforms show diverse views on what would define a gatekeeping
position. Some platforms argue that incorporating different services into a platform’s
offering says little about the strength of a platform, as it is also the case with the ability to
leverage assets from one market to another. It is suggested that gatekeeper designations
should be business model agnostic, gatekeeper assessments should be reviewed
periodically, gatekeeper designations should apply to identified activities in specific
markets, and some rules ought to apply on a sector-wide basis.
In general, stakeholders of all categories point out the need to ensure a high level of
coherence and legal certainty, the criteria used should be transparent, objective and easily
measurable. At the same time, stakeholders also state that a one-size-fits-all approach
might be unfeasible, and that a merely cumulative approach might not be sufficient.
Users mostly refer to a combination of both quantitative and qualitative criteria.
2.3 Summary of the targeted consultation of Member States
The e-Commerce Expert group was set up in 2005 to coordinate with Member States and
exchange views on issues relating to electronic commerce and related services, facilitate
the exchange of information, experiences and good practices in the area of electronic
commerce in order to advise and assist the Commission in the preparation of legislative
proposals and policy initiatives.
During the 21st meeting of the Expert group on 26 May 2020, the preparation of DSA
package was presented in detail and discussed with the Member States. The Commission
provided a presentation on the context and thinking behind the Gatekeeper Instrument,
outlining possible options that might be elaborated in the Impact Assessment and
emphasising that the final options will need to be looked at very carefully.
Throughout the impact assessment, the Commission also met bilaterally with
stakeholders that requested this, primarily in the context of the public consultation and
the feedback period for the inception impact assessment. These meetings were requested
by the parties concerned and aimed primarily at discussing the submissions made by
stakeholders, either in the context of the public consultation or outside of it
During the following Questions & Answers session, Member States welcomed the details
provided by the Commission, mentioned ongoing national initiatives and discussions,
18
and asked complementary questions on the possible scope of the proposed tool and
evidence base.
2.4 Summary of targeted stakeholder workshops
2.4.1. EU Observatory for the Online Platform Economy
Workshop, January 2020
On 29 January 2020, the Commission organised a closed Workshop to support its policy
making in the area of online platform economy. The participants included the experts
from the expert group for the Observatory on the Online Platform Economy, the
Commission Observatory staff from DG CNECT, GROW, COMP and JUST and invited
external experts: both from academia (Paul Belleflamme, Francesco Decarolis); industry
(Daniel Knapp, Stephen Adshead ) and regulatory authorities ( Philip Marsden).
The Workshop was devoted to two main topics: market power and transparency in online
advertising. The presentation and debate that followed fed into the reports prepared by
the expert group and evidence supporting this Impact Assessment.
2.4.2. Expert Panel – Support Study for the IA
On 28 July 2020 and 10 September 2020 ICF, WIK-Consult GmbH, Cullen International,
and CEPS organised a high-level academic expert panels to support the Commission in
the preparation of the Impact Assessment of platforms with significant network effects
acting as gatekeeper. The members of the academic panel were selected in consultation
with the Commission by virtue of their in-depth experience in issues relevant to the
governance of digital platforms and markets. The panel included the following experts:
Martin Kenney, Jan Krämer, Marshall Van Alstyne, William E. Kovacic, Pierre
Larouche, Giorgio Monti.
The expert discussed a wide range of issues concerning the platforms with significant
network effects acting as gatekeepers, including among others objectives of the future
regulatory framework, problems definition, thresholds for intervention, remedies and
institutional design.
2.4.3. Stakeholder Consultation
The progress reports by the expert group on: (i) Measurement of the Online Platform
Economy; (ii) Differentiated treatment; and (iii) Data in the Online Platform Economy,
were published for feedback on 9 July. The Commission received nine contributions
from citizens, industry associations, platforms and regulatory authorities.
2.5 Other consultation activities
In addition to the above-mentioned consultations and targeted stakeholder exchanges, the
Commission received a number of spontaneous submissions from stakeholders. Some of
these contributions were submitted by stakeholders that had participated in the public
consultation and were therefore intended to supplement their views with additional
19
evidence. Other submissions were received from EU government bodies and business
associations that had not participated in the public consultation. These submissions
largely echoed the issues already raised in the different consultation activities.
Throughout the impact assessment, the Commission also met bilaterally with
stakeholders that requested this, primarily in the context of the public consultation and
the feedback period for the inception impact assessment. These meetings were requested
by the parties concerned and aimed primarily at discussing the submissions made by
stakeholders, either in the context of the public consultation or outside of it.
3. CONSULTATION ACTIVITIES IN THE CONTEXT OF THE NEW COMPETITION TOOL
(‘NCT’)
3.1 Consultation on the Inception Impact Assessment
The Inception Impact Assessment was published on 2 June 2020 with the deadline for
comments running until 30 June 2020. During this period, 73 formal submissions were
received. The largest group of respondents were businesses and business associations,
amounting to more than half of all respondents. Among businesses, technological
companies constituted the largest group of respondents.
Respondents generally agreed that there are structural competition problems that cannot
be addressed under the existing competition rules, with some expressing explicit support
for an NCT proposal. Respondents expressed different opinions as to whether
competition problems should be tackled with competition-based or regulatory tools.
Consumer associations pointed out that there is a need for the NCT to complement the
current EU toolbox.
Regarding possible problematic sectors, most views referred to issues relating to digital
markets. Most respondents argued that it was less clear which were the structural
competition problems outside the digital area that could not be addressed by Articles 101
and 102 Treaty on the Functioning of the European Union (‘TFEU’).
Given that most respondents did not appear familiar with the investigative processes of
similar tools, they questioned how such a tool would work at EU level. Respondents
expressing support emphasised that any new intervention tool would require a careful
design to ensure legal certainty and procedural safeguards.
3.2 Consultation on the Impact Assessment
The open public consultation on the NCT was launched on 2 June 2020 and open for
feedback until 8 September 2020. During this period, a total of 188 contributions were
received, with 154 respondents representing stakeholders from 18 Member States.
Businesses (68) and their associations (54) represented more than 2/3 of respondents.
Other respondents included NGOs, consumer organisations and academic/research
institutions. Nineteen contributions were received outside the open public consultation,
which largely echoed the issues raised in the contributions to the public consultation. The
20
figures in this summary are based only on contributions to the public consultation
submitted through the online questionnaire.
Respondents generally agreed that there are structural competition problems that Articles
101/102 TFEU cannot tackle or address in the most effective manner. Respondents also
generally agreed that an NCT could help address the limits of the existing competition
rules.
More specifically, respondents confirmed that certain market features may lead to
structural competition problems. Respondents also confirmed that the examples of
structural competition problems set out in the questionnaire, in particular leveraging and
monopolisation strategies, as well gatekeepers scenarios and tipping markets, may raise
competition concerns that Articles 101/102 TFEU are not suitable or sufficiently
effective to address, and that the Commission should be able to intervene in such
scenarios. Respondents considered that such structural competition concerns commonly
occur in digital markets, while pointing out that there are indications that they are not
limited to digital markets.
As regards the intervention trigger for the NCT, the majority of respondents that
expressed a view in this regard considered that such a tool should focus on structural
competition problems, thus being applicable to all companies in a market, rather than
only to dominant companies or gatekeepers or digital platforms. As regards the scope of
application, the majority of respondents considered that such a tool should be applicable
to all markets. A majority of respondents that expressed a view also indicated that the
tool should not be limited to only markets/sectors affected by digitisation. However, a
large number of those respondents who indicated that the tool should apply in all sectors
and markets nevertheless provided explanations that mainly highlighted how the tool
would be especially beneficial if applied to the problems found in digital markets.
As regards the interplay with other instruments and policy options, such as those
included in the DSA package, there is general support for ex ante rules consisting of
obligations and prohibitions for digital gatekeepers in order to address issues in digital
markets raised by gatekeeper platforms. Most respondents emphasised that, in order to
effectively address contestability issues in digital markets, there is a need for a combined
approach, consisting of more than one policy solution. In those respondents’ view, this
should include ex ante rules and an enforcement tool applicable to digital markets.
A more detailed summary of the replies received in the context of the open public
consultation on the NCT can be found on DG Competition's website.52 A full list of
supporting materials available on that website is also attached as Annex 5.1 to this
document.
52
https://ec.europa.eu/competition/consultations/2020_new_comp_tool/index_en.html.
21
3.3 Summary of the targeted consultation of National Competition
Authorities
In the context of the European Competition Network – a network bringing together the
Commission, the EFTA Surveillance Authority and all the National Competition
Authorities (‘NCAs’) of the EEA – the Commission submitted a questionnaire to gather
the views on the NCT within the Network.
NCAs generally agreed that there exist certain features that may lead to structural
competition problems that Articles 101 and 102 TFEU cannot tackle conceptually or
cannot address in the most effective manner. The consultation showed a consensus
among NCAs with relevant experience that there was a need for a new competition tool
to deal with these structural competition problems. More specifically, NCAs pointed out
that such a tool should enable the Commission to conduct investigations in markets with
structural problems since a case-by-case enforcement against abuses of dominance is not
sufficient in the increasingly fast-paced and interconnected economy.
NCAs with relevant experience were split as to the question in which sectors structural
competition problems can occur. According to half of the respondents, structural
competition problems may occur in all sectors/markets, whereas others argued that
structural competition problems may occur in some specific sectors/markets, including
but not limited to digital sectors/markets. NCAs, however, suggested that digital markets
were more prominently affected by structural competition problems than other markets.
NCAs with relevant experience also indicated that a new competition tool to tackle such
structural competition problems would only be effective if it were accompanied with
adequate and proportionate investigative powers, but also by soft and hard powers to deal
with structural competition problems, including possibly imposing structural remedies
(e.g. divestitures or granting access to key infrastructure or inputs) where duly justified.
NCAs with relevant experience generally considered that not adapting existing
competition law tools would be at most ‘somewhat effective’, meaning that an ex-ante
regulation would in itself not be sufficient to address structural competition problems.
A more detailed summary of the replies received from NCAs in the context of their
consultation on the NCT can be found on DG Competition's website.53 A full list of
supporting materials available on that website is also attached as Annex 5.1 to this
document.
3.4 Summary of targeted stakeholder workshops
Consultation activities have also included the participation of the project team in a
number of exchanges with stakeholders across various sectors. Given the particular
circumstances of the Covid-19 crisis, all these exchanges took place in a virtual
environment.
53
See https://ec.europa.eu/competition/consultations/2020_new_comp_tool/index_en.html.
22
First, as is the standard practice concerning pan-European competition policy matters, the
Commission organised two meetings in the context of the European Competition
Network (‘ECN’) in order to gather the views of NCAs as regards the NCT. These
meetings were complemented by a series of questionnaires, whose replies are
summarised in Section 2.3 above.
Second, bilateral calls were organised with a number of national government bodies and
NCAs who requested additional information on the ongoing impact assessment. Upon
their request, the Commission also introduced the impact assessment to working groups
within the European Parliament and the Council of the European Union.
Third, the Commission also held extensive discussions with all EEA competition
authorities (i.e. Greece, Romania) and non-EEA competition authorities (Mexico’s
COFECE, South Africa’s Competition Commission and the United Kingdom’s
Competition and Markets Authority) having similar tools.
Fourth, a virtual meeting was also held with the Body of European Regulators for
Electronic Communications.
Fifth, exchanges were also organised, at their request, with consumer organisations
(through BEUC), as well as with a number of private sector stakeholders in the context of
events organised by trade associations (e.g. European Round Table for Industry).
3.5 Other consultation activities
In addition to the above-mentioned consultations and targeted stakeholder exchanges, the
Commission received a number of spontaneous submissions from stakeholders. Some of
these contributions were submitted by stakeholders that had participated in the public
consultation and were therefore intended to supplement their views with additional
evidence. Other submissions were received from EU government bodies and business
associations that had not participated in the public consultation. These submissions
largely echoed the issues already raised in the different consultation activities.
All such submissions are published on the dedicated webpage on DG Competition's
website,54 except for a few submissions which stakeholders had asked the Commission
not to publish for confidentiality reasons. The Commission used the latter to enhance its
understanding of a particular stakeholder position and to complement its views on the
issues subject to consultation.
Throughout the impact assessment, the Commission also met bilaterally with
stakeholders that requested this, primarily in the context of the public consultation and
the feedback period for the inception impact assessment. These meetings were requested
by the parties concerned and aimed primarily at discussing the submissions made by
stakeholders, either in the context of the public consultation or outside of it.
54
See https://ec.europa.eu/competition/consultations/2020_new_comp_tool/index_en.html.
23
Annex 2.1: Synopsis Report of the results of the open public
consultation on the DSA package - Ex Ante Regulatory
Instrument for large online platforms acting as gatekeepers
I. OUTLINE
The Commission has undertaken an Open Public Consultation (“OPC”) on the Digital
Services Act package (“DSA Package”) following the Commission's Communication
“Shaping Europe's Digital Future” of 19 February 2020.
The purpose of the OPC is to collect views and evidence from respondents as regards the
experience with the application of the existing regulatory framework, in particular e-
commerce Directive and collect input about the possible future digital services rulebook.
To this end, an online questionnaire ran from 2 June 2020 to 8 September 2020, available
in all official EU languages. Responses to the questionnaire were submitted online.
This synopsis report summarises and analyses the views of respondents on the scopes,
the specific perceived problems and the implications, definitions and parameters for
addressing possible issues deriving from the economic power of large, gatekeeper
platforms.55
II. PARTICIPANTS AND METHODOLOGY
1. Participants - general
In total, 2863 responses to the OPC on the DSA Package have been received.
Additionally, around 300 position papers were received in the context of the OPC.
Respondents were asked to categorize themselves into different groups namely
academic/research institutions, business associations, companies/business organisations,
consumer organisations, environmental organisations, EU-citizens, non-EU-citizens,
non-governmental organizations (NGOs), public authorities, trade unions and others.
By far most feedback was received from EU-citizens (66.2%) and non-EU-citizens
(8.2%), companies/business organisations (7.4%), business associations (6.3%) and
NGOs (5.6%). This was followed by public authorities (2.2%), others (1.9%),
academic/research institutions (1.2%), trade unions (0.9%), as well as consumer and
environmental organisations (0.4%) and several international organisations.
55
This synopsis report of the open public consultation is based on the analysis of the replies performed by
College of Europe contracted by the Commission to support in the qualitative and quantitative analysis.
24
Figure 1: Type of respondent
2% 2% EU citizen
6% 1%
1% Non-EU citizen
7% Academic/research institution
Business association
6%
Company/business organisation
1%
Consumer or environmental organisation
8% NGO
66% Other
Public authority
Trade Union
In terms of geographical distribution of respondents (Figure 1), most of the respondents
are located in the EU, the majority of respondents are from Germany (27.8%, i.e. 797
respondents) followed by the United Kingdom (20.6%, i.e. 591 respondents), France
(14.3%, i.e. 410 respondents). Other Member States that are represented in a slightly
higher proportion are Belgium (9.3%, i.e. 266 respondents), the Netherlands (4%, i.e. 104
respondents) and Austria (3%, i.e. 92 respondents).
The respondents from the remaining Member States contributed to a smaller extent, with
responses rates lower than 3%. Among respondents originating outside the EU, the
highest share comes from respondents from the United States of America (3%, i.e. 79
respondents).
Figure 2: Country of Origin of Respondents
5% 3% Austria
3% 9%
1% Belgium
Denmark
1% Finland
France
21%
Germany
Ireland
14% Italy
2% Netherlands
Poland
2%
Portugal
Spain
2% Sweden
1% Switzerland
United Kingdom
1% 4% United States
Countries with ≤ 15 submissions
2% 28%
2%
2. Participants - Companies/Businesses organizations and business associations
Of the 211 participating companies/business organizations, 80.1% specified that they
were established in the EU and 11.4% indicated that they were established outside of the
25
EU. 26.5% described themselves as a conglomerate, offering a wide range of services
online. 21.3% identified as a scale-up and 6.6% as a start-up.
In terms of annual turnover, more than half of the participating companies/business
organizations indicated a turnover of over EUR 50 million per year. 13.3% make an
annual turnover of smaller than or equal to EUR 2 million, 3.8% of the respondent
revealed an annual turnover of smaller than or equal to EUR 10 Mio, whereas 6.2%
specified an annual turnover of smaller than or equal to EUR 50 Mio.
28.4% of the responding companies/business organizations were online intermediaries,
24.6% were other types of digital services. 12.3% indicated that they were an association,
representing the interest of the types of businesses named prior. Of the 180 participating
business associations, 15% indicated that they were representing online intermediaries,
19.4% specified that they are working on behalf of digital service providers other than
online intermediaries, and 40% indicated that they represented the interests of other
businesses.
3. Participants - NGOs
Of the 159 participating NGOs, almost half (49.7%) stated, that they represented
fundamental rights in the digital environment. 22.6% dealt with flagging illegal activities
or information to online intermediaries for removal, and 22% represented consumer
rights in the digital environment. Furthermore, 18.9% specified that they were fact
checking and/or cooperating with online platforms for tackling harmful, (but not illegal)
behaviours and 13.2% represented the rights of victims of illegal activities online. 10.7%
represented interests of providers of services intermediated by online platforms,
including trade unions, and 10.7% gave no answer. 30.8% of the responding NGOs
indicated “other”.
4. Participants - Public authorities
59 public authorities participated in the open public consultation, of which 43
representing authorities at national level (72.9%), 8 at regional level (13.6%), 6 at
international level (10.2%), and 2 at local level (3.4%). Among EU Member States,
authorities replied from Austria, Belgium, the Czech Republic, Denmark, Estonia,
Finland, France, Germany, Greece, Ireland, Italy, Latvia, Luxembourg, and Poland.
About half of the responding public authorities were governments, administrative or
other public authorities other than law enforcement in a member state of the EU (49.2%).
15.3% indicated that they were a law enforcement authority in a Member State of the EU
and 15.3% specified that they were another independent authority in a member state of
the EU. These replies are complemented by a targeted consultation ran by the
Commission with Member States.
26
Figure 3: Type of responding public authority
4% 2% Government, administrative or other public
5% authority other than law enforcement in EU
MS
Law enforcement authority in a EU MS
17% Other, independent authority in EU MS
55% Other
International level authority other than at
EU level
17%
EU-level authority
5. Participants – Subcategories
For this report, respondents were categorized in 18 different categories to take into
account different perspectives, as presented in Figure 4 below. These categories are:
telecoms and mere-conduit; caching services; hosting services, other than platforms;
large platforms; scale up and startup platforms; creative industry and publishers; brand
owners and other businesses selling through platforms; other services; business
associations representing the interests of platforms; business associations representing the
interests of actors other than platforms; civil society organisations; trade unions; national
authorities; European authorities; International Organisations; academia and think-tanks;
technical community; and the general public.
Figure 4: Distribution of Respondents per Category56
Caching Services 0,07%
Technical Community 0,07%
International Organisation 0,14%
European Authorities 0,14%
Hosting services, other than Platforms 0,31%
Scale Up Platforms & Startup Platforms 0,42%
Trade Unions 0,63%
Trade Business Associations (Platforms) 0,70%
Telecoms & Mere-Conduit 0,73%
Brands Owners & Businesses Selling through Platforms 0,87%
Academia & Think-Tanks 1,78%
Large Platforms 1,85%
National Authorities 1,92%
Other Services 2,27%
Civil Society Organisations 3,88%
Creative Industry & Publishers 4,30%
Trade Business Associations (Other) 5,52%
General Public 74,40%
0% 10% 20% 30% 40% 50% 60% 70% 80%
56
Sample size: 2863.
27
6. Methodology
The responses to the OPC were subjected to quantitative and qualitative analysis. In the
quantitative analysis, the responses will be analysed in the following main steps:
Ordering the respondents into the main categories considered relevant for the
analysis;
Analysis and mapping of respondents/stakeholders. In the mapping of
stakeholders, the principles of Better regulation Toolbox were applied57;
Correlating main categories of respondents/stakeholders to their answers to
identify patterns as regards “who thinks what?”.
A methodological challenge of quantitative analysis is that the low numerical frequency
of organisations makes it difficult to make statistical generalisations as to what type of
organisation thinks what. In contrast, it is less challenging to make generalisations as
regards the citizens because their number is much higher.
In the qualitative analysis the open, qualitative answers were analysed in the following
main steps:
The lists of open answers were grouped per type of issue they bring up. In other
words, the answers are put in the same group if they bring up the same type of
issues, although with different wording.
The content of the group of answers was summarised in bullet points, condensing
the main messages of the respondents. Where relevant, some examples of
authentic responses are quoted.
The bullet points, each condensing the issue and main messages, are listed. The
most frequently mentioned issues are listed first, followed by the less frequently
mentioned.
In addition to the grouping of the most frequent issues and views, unique
responses have been analysed and presented. Especially, if these were extensive,
well-informed, and reflective.
In order to reach this thorough analysis, quantitative text analysis techniques have been
used to group answers by the uniqueness of information and double-check if any relevant
input was missing. We used:
Deduplication methodology: the responses were duplicated by comparing their
lexical similarity. For doing so, all the answers to each question were transformed
into a document term matrix. Each response was processed by tokenizing and
turning it into a vector of stemmed words weighted by their Term Frequency-
Inverse Document Frequency (TF-IDF).58 Next, for each question, the cosine
57
https://ec.europa.eu/info/sites/info/files/better-regulation-toolbox.pdf.
58
i.e. we weighted the term frequency for term i and document j by the natural log of the number of
documents over the number of other documents containing word i.
28
similarity of each pair of responses was computed. If a pair achieved a cosine
similarity higher or equal than 0.85, only one would be kept for the analysis.
Automatic summarization methodology: Some of the larger submitted reports
were automatically summarized. Use was made of the python module
“gensim.summarization” which implements the “TextRank” algorithm, a graph
based sentence ranking methodology. For each document, a proportion of the
sentences with the highest rank would be selected conditional on the length of the
document.
III. SURVEY OUTCOME
1. Unfair practices by gatekeeper platforms
There is a wide-ranging majority across all stakeholder groups that there is a need for
rules addressing the negative impact of gatekeepers’ practices and conduct.59 Among
businesses and business users who replied to the relevant question, 88% encountered
issues concerning allegedly unfair trading conditions on large platforms (Table 1).
Table 1: Business users of large platforms encountering issues
with trading conditions on large online platforms
In general, the vast majority of respondents across stakeholder groups – in particular
among businesses and business users, civil society organisations and telecom operators -
report that the experienced issues are due to a perceived imbalance in bargaining power
between large platforms and business users, which they consider hampers competition,
fosters uncertainty in relation to contractual terms and also results in lock-in of
consumers. These respondents also consider that unfair practices by gatekeeper platforms
have a concerning impact on competition, innovation and consumer choice. On the other
hand, a few platforms, academic institutions and representatives of startups emphasised
the positive impact of gatekeeper platforms on innovation and consumer choice. Among
national authorities, both points of view were expressed. Generally, respondents, in their
replies, consider unfair practices to be the means, legal or illegal, by which digital
platforms with a gatekeeper role limit market contestability and preserve their position of
power.
Among the 1715 stakeholders who replied to the question, 58% somewhat disagree or
fully disagree with the statement that consumers have sufficient choices and alternatives
to the offering of online platforms, while 27% somewhat agree or fully agree with this
statement (Table 2). The distribution of responses is homogeneous between each
59
See section 5 below.
29
stakeholder group as well as within groups, with the majority of respondents somewhat
disagreeing or fully disagreeing with this statement.60 The only stakeholder group for
which the majority of respondents consider that consumers have sufficient choices and
alternatives are business associations representing the interests of platforms.
Table 2: View of the respondents on whether consumers have sufficient choices and
alternatives to the offering from online platforms
The unfair practices listed by respondents cover exclusionary conducts, exploitative
conducts and transparency-related problems. Practices mentioned most often include:
1. Self-preferencing is considered to be very common by large platforms when
services are vertically integrated, where they often favour their own services or
products in detriment of third providers that rely on the large platform’s
infrastructure or to favour paid-for content by certain content providers or
advertisers. It is for instance perceived that search and ranking algorithms give
preference to the platform’s own services or when the platform has an incentive
to bias its recommendations toward the content provider charging a lower royalty.
2. Lack of data sharing and accumulation of data, also linked to the imposition of
proprietary services and an authentication through the platform even when third
party services/products are used to create a direct link with customers to the
detriment of third-party providers. It is considered that gatekeeper platforms
incentivize disintermediation as they preserve monopoly access to user data and
attempt to remove the direct link between the client and third-party suppliers,
creating therefore privileged relation with the client.
3. Limited data portability and data access due to lack of interoperability (e.g., APIs,
limits to sharing customer data, restrictions to access key components, software or
hardware), which creates obstacles for emerging competitors and also favours
consumers lock-in. Several stakeholders refer to “walled-gardens”, which allow
60
See Annex B, Table B.1 for the overview of responses among different stakeholders’ categories. E.g.
about 73% of the 11 telecom operators, 67% of the 52 civil society organisations and 44% of the 9 scale
up and startup platforms responding to the question, fully disagree that consumers have sufficient
choices to the offering of the online platforms. Looking at large platforms, 33% of the 33 respondents
somewhat disagree that consumers have sufficient choices.
30
to determine who can access the data uploaded by their end-users and on which
terms and conditions.
4. Imbalance on how the revenues are split between platforms and right-owners in
relation to User Generated Content (UGC).
5. The imposition of unfair and unilateral terms and conditions, which cover pricing,
non-price terms, most favoured nation (“MFN”) clauses, restrictions/abusive
conditions on data sharing and use, exclusivity clauses, obligations regarding
IPR, exclusivity or illegal restrictions, unfair access fees, among others.
6. The imposition of exclusionary terms and conditions for attaining and/or retaining
access such as unfair delisting, and unreasonable performance targets.
7. Cross-financing and cross-subsidizing of otherwise unprofitable subsidiary
companies as a strategy to gain market power in adjacent markets are considered
to negatively impact competition.
8. Default settings which adversely impact customer choice. Similarly, the way
privacy settings are presented to users by platforms are considered to potentially
lead to manipulation of users into “consenting” to contractual terms of service.
9. Bundling of services with ‘must have’ services and apps, which makes the use of
a certain service dependent on the use of further services of the company.
10. General lack of transparency on business practices on platforms (e.g. use of
algorithms, content prioritization, lack of clarity in the terms of use, etc.).
Regarding app stores, the issues, raised by stakeholder groups that make use of app
stores, include high commission fees, unreasonable transfers of liability to the app
developer without mutual liability being accepted by the platform operator, and the lack
of notice given for technical changes in the app stores, which then requires apps to be
amended in some cases resulting in lack of functionality.
Regarding the travel sector, on one hand, it is reported by a business association that 56%
of hoteliers feel pressured by online travel agents (“OTAs”) to accept platforms terms
and conditions (e.g. regarding cancellation policy, special discounts) that hotels would
otherwise voluntarily not offer. On the other hand, OTAs report that a large platform acts
as a gatekeeper and diverts traffic away from OTAs and metasearch search engines
(“MSEs”) to its own vertical search products, for accommodation, flights and vacation
rentals.
Book publishers consider that the balance of power between gatekeeper platforms and
book publishers is uneven and publishers often have to bear unfair terms and conditions,
lacking sufficient bargaining power and/or the possibility to switch to another business
partner. Unfair practices cited by book publishers relate to shortage claims, price-related
claims, special agreement on freight costs, high number of returns, delivery rules, lack of
31
communication access, cancellations, tight delivery slots, hard rejects/wrong codes,
among other issues.61
Among financial services providers there are concerns related to the fact that large digital
platforms provide technical infrastructure and related functionalities that are increasingly
relevant for the provision of digital financial services. This infrastructure includes
devices and their associated functionalities, such as biometric authentication or
communication protocols like Bluetooth and near field communication (“NFC”) and app
stores and pre-installed apps on devices. It is reported that this infrastructure is not
always available on an equal basis to all market participants, with elements controlled by
some market players and/or technical providers. Financial services providers also raise
the issue that, under the Revised Payment Services Directive (“PSD II”), banks have to
offer application programming interfaces (“APIs”) for competitors as to certain payment
services, while there is no such obligation for platform providers. This is considered to
place financial service firms at a direct disadvantage, as financial data can be shared
easily with platforms (who can then combine it with non-financial data in order to
generate insights that may be relevant for the provision of financial services, other
products or advertising), while data held in those platforms cannot be shared with
financial services providers on the same terms.
In particular digital rights’ associations pointed to the lack of data access and meaningful
interoperability as important barriers to entry and called for measures that would address
them. In addition, telecom operators recognised the right of data portability in Article 20
of the General Data Protection Regulation, but referred to the fact that its scope is limited
to specific cases and subject to specific legal bases for processing. In particular, this right
does not foresee continued and far-reaching access possibilities to different categories of
data but is limited to receive the data ‘provided’ by the user, to avoid lock-in effects for
individuals.
Regarding the use of gatekeeper platforms by minors, specific issues have been raised
which include: overly complex terms and conditions; lack of transparency and redress;
lack of standardised frameworks for age-appropriate terms and conditions; significant
amount of data gathereing without the knowledge of minors; and behavioural advertising.
2. Gatekeepers and media plurality
Respondents representing the media sector and publishers consider in their replies that
social media and search engines have a strong impact on the consumption, distribution
and production of news. They impact the way in which information is accessed (demand
side) as online platforms act as access points to information, as well as the way revenues
are distributed (offer side).
Respondents consider that traditional business models, mostly based on revenues from
advertisements and subscriptions to print media, are particularly challenged by
61
Positions of publishers on media plurality are further assessed in the next section.
32
digitalisation. The respondents from the media and publishing sector consider that, on the
one hand, gatekeeper platforms have left media without direct contact to their readers,
losing access to full audience data and at the will of any changes in company policy and
ranking algorithms, with consequent perceived threats on media plurality. On the other
hand, it is perceived that the role and importance of online platforms in capturing the
lion's share of online advertising spend has had a dramatic impact on newspapers and
newswires that rely on advertising to finance their operations. In fact, press publishers
consider that platforms exploit and monetise publishers’ content and take advantage of
their primary and direct access to users and users’ data.
It is stated that, without access to sufficient advertising revenues, many media companies
struggle to continue to offer valuable content. News publishers also consider that there is
a lack of contractual transparency, especially with regards to the value created by
leveraging on the content created by the publishers, which raises concerns that the
current model is not sustainable and represents an existential threat to quality press
media. Press publishers are worried that gatekeeper platforms not only can determine the
success or failure of journalistic and editorial publications, but also ultimately have the
power to steer political and cultural opinion as well as economic prosperity in the EU.
3. Platforms and startups
Generally, all categories of stakeholders consider that startups and small companies are
more and more dependent on large platforms for reaching their customers, in particular, 3
of 4 scaleups and 4 of 5 startups answered this question accordingly. Their reliance on
platforms is considered to vary heavily according to their fields and/or business models.
It is argued that startups often end up in a dependent relationship with these mega-
platforms from the very beginning. In addition, all categories of stakeholders appear
concerned with the practice of acquiring startups and scaleups, since it is considered
detrimental for competition and can raise serious concerns related to the accumulation of
data (‘killer acquisitions’). It is also pointed out that, by acquiring startups while they are
still a niche product, gatekeepers avoid the impression of impeding competition but in
practice they prevent the emergence of competition in a targeted market.
However, some respondents, including several startups, research institutes and business
associations, also point out the positive impact of platforms for startups: by lowering the
barriers to entry and extending to companies of all sizes the advantages of cost and speed
that can be gained from trading online.
4. Scope and criteria for large gatekeepers
The respondents consider all the characteristics mentioned in the questionnaire62 are
relevant in determining the gatekeeper role of large online platforms. In particular, the
62
I.e. large user base, wide geographical coverage, large share of total market revenue, impact on a
certain sector, exploitation of strong network effects, leverage of assets to enter new areas of activity,
33
most relevant characteristics for respondents are: the accumulation of valuable and
diverse data and information (74% of 1304 stakeholders who replied to the relevant
question consider this characteristic very relevant), large user base (70% of the 1300
replies received), and the fact that large platforms raise barriers to entry for competition
(68% of 1293 replies received) (Figure 5).
Figure 5: Most relevant characteristics in determining a gatekeeper platform63
Accumulation of Large User Base Creation of barriers to
valuable & diverse entry for competitors
1-data and information 1- 1-
not not not
relev 2 relev relev
3 2 2
ant 3% ant 3 ant
7% 2% 2% 3
3% 3% 9% 3%
10%
4 4
13% 4
16% 17%
5- 5- 5-
very very very
relev relev relev
ant ant ant
74% 70% 68%
For the definition of gatekeeper platforms, some stakeholders suggest to consider the
criteria of ‘economic dependence’ on certain platforms which makes them unavoidable
trading partners and make it more difficult for consumers to avoid dealing with them.
Other relevant criteria to define gatekeeper platforms suggested by news publishing are
the ability to utilise a platform which can direct consumer attention combined with the
power to choose which information is displayed to consumers or otherwise set the terms
on how information is displayed. The Body of European Regulators for Electronic
Communications (“BEREC”) proposes to identify digital platforms with significant
intermediation power based on a combination of structural and specific criteria in
different Areas of Business (“AoBs”). An AoB could be e.g. e-commerce, app stores,
online search, OS, voice assistants etc., and would be characterised by features such as
strong direct and indirect network effects, significant economies of scale and scope,
significant barriers to entry and expansion relating to technical and/or legal aspects, high
switching costs and/or consumer inertia.
Respondents among platforms show diverse views on what would define a gatekeeping
position. Some platforms argue that incorporating different services into a platform’s
offering says little about the strength of a platform, as it is also the case with the ability to
leverage assets from one market to another. In addition, one platform stated that utilizing
a company’s own assets to enter new markets is actually welfare enhancing. It is
raising of barriers to entry, accumulation of valuable and diverse data and information, lack of
alternative services, lock-in of users.
63
Figure 3. “Accumulation of valuable & diverse data and information”, sample size 1304; “Large user
base”, sample size 1300; “Creation of barriers to entry for competitors”, sample size 1293.
34
suggested that gatekeeper designations should be business model agnostic, gatekeeper
assessments should be reviewed periodically, gatekeeper designations should apply to
identified activities in specific markets, and some rules ought to apply on a sector-wide
basis. Some large platforms, foreign business associations and a limited number of
national authorities are worried that the regulatory proposal would focus on defining the
companies it wants to regulate rather than focussing on determining the market and
consider that using generic criteria would not be appropriate. Several platforms and
foreign business associations highlight the need to ensure that any requirements to define
‘gatekeepers’ are non-discriminatory regarding the national origin of those companies
and agnostic to different business models approaches.
In general, stakeholders of all categories point out the need to ensure a high level of
coherence and legal certainty, the criteria used should be transparent, objective and easily
measurable, and that a merely cumulative approach might not be sufficient. At the same
time, some respondents from different stakeholder categories (including platforms,
business associations and telecom operators) state that a one-size-fits-all approach might
be unfeasible, while others (mainly from business associations) state that the new
legislation should be general in nature, so that it may be applicable regardless of industry,
sector, technology or business-model. Some respondents from the telecom sector argue
that there should be dynamic methodology with a case-by-case assessment of the
companies that should be subject to ex ante regulation. Respondents from the general
public mostly refer to a combination of both quantitative or qualitative criteria.
Several respondents have referred to the operation of the EU telecoms ex ante regulatory
regime, that provides valuable lessons as to how different criteria could be assessed to
determine the extent of competition, consolidation of market power and the potential of
consumer harm. This would ensure proportionality and legal certainty. In addition,
several respondents, mainly telecom providers, argue that the new sectorial ex ante
instrument for platforms should exclude from its scope those services that are already
subject to sectorial ex ante rules that promote competition, as it is the case for electronic
communication services and networks.
5. Need for a regulatory framework
Of the 1476 respondents who replied to the relevant question, the vast majority fully
agree (70%) or agree to a certain extent (20%) that there is a need to consider dedicated
regulatory rules to address negative societal and economic effects of gatekeeper power of
large platforms (Table 3). This majority holds also within each group of stakeholders,
including platforms, with 73% of the respondents agreeing or fully agreeing with the
need for dedicated regulatory rules.64
64
See Annex B, Table B.2 for the overview of responses among different stakeholders’ categories.
Among the respondents to this question, 25 out of 32 large platforms and 5 out of 9 scaleup/startup
platforms replied that they agree or fully agree with the need to consider dedicated regulatory rules for
gatekeeper platforms, that is 30 out of 41 platforms (73%).
35
Table 3: Respondents’ view on the need to consider dedicated regulatory rules for
gatekeeper platforms
In general, there is a shared understanding among stakeholders that there are structural
competition issues that EU competition rules cannot address or cannot deal with
effectively. The majority of stakeholders consider that, while some of the issues
connected to gatekeeper powers can potentially be addressed by improving the efficiency
of competition law enforcement through procedural and/or organisational changes, there
are restrictions that cannot be overcome with competition law enforcement. These
include the fact that ex post enforcement is not always best suited to tackle anti-
competitive practices in fast-moving digital markets so that by the time an investigation
has been concluded, the market may have irreversibly tipped in favour of the dominant
firm and it may be very hard to restore competition. Moreover, competition
investigations are ad hoc, limited to the narrow facts of the particular case, and may do
little to address the same issues arising in different contexts, and the remedies imposed
may do little to reinvigorate competition.
While telecom operators generally argue for the need to ex ante rules for gatekeepers,
they also mention the need to carefully assess the results of the implementation of the
Platform to Business Regulation (“P2B Regulation”), which only came into effect in July
2020 and the New Deal for Consumers, before suggesting any ex ante regulation. In fact,
they consider that these policy instruments address the same market failures that the
gatekeeper regulation seeks to address. Similarly, respondents from different
stakeholders’ categories consider the need to reassess the situation after the P2B
Regulation has shown its effects.
A minority of respondents, mainly several large platforms and their business associations
and some research institutes and academics, disagree with the proposal for new ex ante
rules. These stakeholders consider that the risks posed by gatekeeper platforms can be
sufficiently addressed with existing competition and antitrust law and tools (enforcement
of Articles 101 and 102 TFEU) and other existing regulation. Some platforms, business
associations and national authorities emphasized the need to focus the regulatory
attention at specific actions and perceived market failures.
Regarding the form of the new ex ante rules, the majority agree that the rules should
include prohibitions of certain practices considered particularly harmful for users and
36
consumers (Table B.3)65 as well as specific obligations (Table B.4)66, as presented below
in section 7. However, respondents have diverse views on what would be the best design
for such prohibitions and obligations. Some stakeholders’ groups, in particular among the
general public, civil society organizations and the representatives of the creative and
publishing industry, argue for strict prohibitions and obligations to all gatekeepers, while
some respondents among business associations, academia and platforms caution against
applying the same restrictions to all gatekeepers. Some respondents have highlighted the
need to tailor the new rules to the different markets in which gatekeepers operate. As
shown in the next section, the majority of respondents also argue that a case-by-case
assessment and tailor-made development of remedies would be necessary to ensure
proportionality and satisfactory policy outcome (Table B.5).67
It is argued by many stakeholders, especially among platforms, business associations,
civil society organisations and academia, that new EU level rules would prevent further
legal fragmentation across Member States, considering that several Member States have
already started to introduce new regulation to address concerns arising from the presence
of gatekeeper platforms. When considering the introduction of ex ante rules for online
gatekeeper platforms, stakeholders across all categories have pointed out the need for
these rules to be flexible enough to take into account the wide diversity of business
models and future-proof against the evolution of these business models and technology.
6. Case-by-case regulation of gatekeeper platforms
80% of the 1216 respondents who replied to the Figure 6. Need for regulatory
relevant question, considers that there is the intervention against specific large
online platform companies, with
need for regulatory intervention on a case-by- case by case remedies
case basis (Figure 6). This majority holds all
13%
stakeholder groups and, in particular, 100% of
European authorities and International 7%
Organisations as well as hosting services other
Yes
than platforms and telecom operators agree
with the need for case-by-case remedies against No
specific large online platform companies with I don't 80%
know
gatekeeper role (Table B.5).
It is argued that regulatory intervention should consider the high variety of online
platforms’ business models and digital markets they operate in, as well as the specific
harms that should be addressed. Following the identification of large online platform
companies with a gatekeeper role, competent authorities should be empowered to
65
Sample Size: 1346. The only exception are business associations representing the interest of platforms
among which 38% agree with the need to prohibit certain practices and 50% replied that they do not
know.
66
Sample Size: 1274.
67
Sample Size: 1216.
37
monitor markets, select the remedies needed, attune them to the competition concerns of
each particular case and enforce compliance.
In general, the majority of respondents consider that case-by-case remedies to respond to
specific behaviours should go hand in hand with ex ante rules that apply horizontally to
all gatekeepers. It is argued that the digital world is evolving rapidly, so a list of ‘dos’
and ‘don’ts’ might not capture all types of detrimental practices. Several stakeholders
refer to the approach taken by the European Commission on Standards Essential Patents
(SEPs) and on the Fair Reasonable and non-discriminatory (FRAND) commitment, as
they consider that it might prove very instructive in the digital platforms’ context.
Among platforms, some argue that case-by-case intervention following a market
assessment would be more effective and efficient than blanket prohibitions in targeting
specific market failures. One consumer association instead argues that ex ante rules
should focus on a list of obligations and prohibited practices, while case-by-case
investigations are better left to competition law.
7. Practices by gatekeeper platforms that should be prohibited or obliged
The vast majority of respondents (85% of 1274 respondents to the relevant question)
consider that dedicated rules on platforms should include prohibitions and obligations for
gatekeeper platforms (Figure 7).68
According to the majority of respondents, the Figure 7. Rules & obligations on
proposed list of problematic practices, or large online platform companies
‘blacklist’, should be targeted to clearly unfair with gatekeeper role
and harmful practices of gatekeeper
10%
platforms; specific enough to avoid confusion
5%
of what is and is not permitted; adaptable to a
dynamic, fast moving sector; and specific to
certain gatekeepers as they would otherwise
risk hurting smaller players trying to compete Yes
with them. It is also suggested that remedies
85%
could be more procedural in nature rather than
prescribing a given course of conduct.
Most of the respondents suggest that, rather than having certain practices categorically
prohibited for all gatekeepers, the Commission should scrutinize certain practices and
prohibit them for some gatekeepers in circumstances when they are most likely to have
detrimental effects.
Some respondents from the telecom sector argue that a list of prohibited unfair practices
and specific obligations should be introduced to prevent the most frequent and harmful
abusive behaviours, while the case-by-case approach would allow to apply specific
68
See Annex B, Tables B.3 and B.4 for the overview of responses among different stakeholders’
categories.
38
remedies that reflect the gravity of specific threats to competition and to contestability in
a targeted market.
Some respondents among business associations, research institutes and platforms
consider that a ‘blacklist’ of prohibited practices should require careful consideration in
relation to a dynamic industry that has multiple business models, types of users, and
types of business partners, and it should result from an assessment of market failures to
be resolved. In addition, several platforms are of the opinion that blanket banning of
market behaviours risks being inefficient, negatively impacting consumers and actually
risk worsening competition by limiting the ways in which entrants can innovatively
challenge the incumbents.
The suggested obligations and prohibitions cover mainly issues of transparency,
interoperability, portability, and non-discrimination. The suggestions are linked to the
unfair practices which are reported by the respondents69 and include, among a wide
variety of others:
the prohibition of discrimination through self-preferencing;
elimination of certain clauses in the terms and conditions in contracts considered
unfair, such as obligations to use platform’s ancillary services, unilateral liability
issues, contract modifications with retroactive effect;
longer notification times for major changes on business-to-business contracts and
market practices; the obligation of interoperability of datasets and APIs;
transparency obligations in relation to interconnection, access, ranking of services
and suspension of accounts, practices of micro-targeting;
the prohibition of bundling when it results in restricting consumer choice;
the prohibition of combination of data collected across different services when it
results in unfair competitive advantage over rivals (‘data unbundling’);
the prohibition of excessive intermediation fees;
the obligation to connect businesses intermediated directly with their customers
and to provide these businesses with more data of the transactions;
a general prohibition on discrimination in access to infrastructure;
restrictions on the use of pre-installation and default settings (in particular for
browsers and search engines) and of ‘nudging techniques’;
the provision of consumers control over data use, sharing and mobility, including
additional obligations to facilitate the portability of both personal and non-
personal data between service providers;
algorithmic accountability and transparency audits (including to verify whether in
practice the platforms are operating a preferential treatment for their own
services);
the provision of access to individualized data to businesses about their operations
or customers/consumers;
69
See Section 1 on ‘unfair practices by gatekeeper platforms’.
39
imposing accounting, structural or functional separation or firewalls between
different businesses under common ownership of a gatekeeper platform.
Issues relating to data sharing are considered especially important by national authorities.
Regarding the issue of ‘killer acquisitions’, it is proposed by national authorities to
extend the time for the notification of mergers, so that the competent authorities can carry
out in-depth investigations on the impact of a certain acquisition/merger on competition
and innovation in the internal market. National authorities also consider highly urgent the
issue of algorithmic transparency and accountability.
Some platforms have offered detailed responses on some of the potential obligations and
prohibitions. In particular, they have pointed out that mandating interoperability should
only be considered on the basis of a careful analysis on its effects on the market,
especially when multi-sided. Similarly, it is considered that unconditional and misguided
data access obligations would undermine the platforms’ ability to innovate. More
generally, they argue that the remedies should be proportional and that there should be a
clear link between a specific conduct considered anticompetitive and consumer harm.
Regarding IP infringement, some respondents from telecom sector, brand owners and
representatives of the creative industry have argued that gatekeeper platforms should be
liable for facilitating infringements taking place on the platforms to the extent that the
financial benefits have to be refunded to the IP owner.
In relation to media pluralism, representatives of this sector as well as some civil society
organizations is suggested to impose specific media requirements to ensure adequate
remuneration of press publishers for their content used by or uploaded on large online
platforms. Other suggestions specific to the media sector include: the requirement for
platforms to share data with news media businesses about the interaction of users with
the content of the publisher, early notification of changes to the ranking or display of
news content, the obligation that the digital platform actions to not impede news media
businesses’ opportunities to monetise their content appropriately on the digital platform’s
sites or apps, and the requirement for the digital platforms to “fairly negotiate with” news
media businesses as to how direct and indirect revenue should be shared. It is also
pointed out that consumers must always have the choice to choose the relevance of
content/media and never be left in the dark on why they see certain articles while not
being served others. More generally regarding content diversity, some digital rights’
associations consider that platforms should take steps to ensure that users are exposed to
sufficiently diverse content and balanced coverage of issues of public interest by default.
Yet, platforms and some civil society organisations consider that a regulatory
intervention would not be the most appropriate way to ensure media pluralism.
One specific suggestion put forward by one digital rights’ association to respond to
excessive concentration in social media market is the decentralisation of content
moderation. The association suggests a combination of data portability, interoperability
and unbundling of hosting and content curation activities, consistent with data protection
laws.
40
Specific suggestions have also been put forward in relation to the protection of minors,
including the requirement to implement a privacy impact assessments to determine how
products and services affect children’s privacy, the minimization of the information
being collected on children and applying enhanced security measures to protect any
personal data that is collected, the provision and communication of child-friendly terms
and conditions, making children’s online profiles private by default, and offering
simplified, accessible reporting and complaints mechanisms for minors.
8. Regulatory authority for gatekeeper platforms
70% of the 1215 respondents who
Figure 8. Need for a specific regulatory
authority to enforce dedicated rules to
replied to the relevant question consider
gatekeeper platforms that there is the need for a specific
regulatory authority to enforce the new
18% prohibitions and obligations that might
be imposed to gatekeeper platforms,
while 80% of the respondents who
12%
Yes replied to the relevant question consider
that there is the need for a specific
No
70% regulatory authority to enforce the case-
I don't by-case remedies that might be imposed
know
to gatekeeper platforms.
These stakeholders agree that there should be only one authority overseeing these issues
and they point out the need to avoid overlapping with the competence of other
authorities. Respondents from the media sector, consumers’ associations and some
business associations are among those who advocate for such a solution as they consider
that only a specialised interdisciplinary regulatory authority can grasp the complexities of
the digital ecosystem. Some national authorities and research institutes instead consider
the need to build on existing structures in other to avoid creating parallel structures.
These stakeholders suggest to rely on cooperation among Member States authorities as
gatekeeper platforms are usually based in only one Member State.
In addition, several respondents, including some business associations and some national
authorities, consider that only competition authorities should deal with potential harm to
competition and point out the need to utilise as much as possible the current structure to
enforce the rules. These stakeholders consider that there should be very special and
weighty reasons for establishing a new regulatory authority for monitoring the online
platform market.
The respondents generally consider that an effective coordination between EU bodies and
the relevant national regulatory authorities is needed, especially in the light of the fact
that issues related to gatekeepers are likely to have an important cross-border component.
Platforms in particular point out the need to minimise fragmentation and allow for a pan-
European approach. The majority of respondents consider that regulatory oversight
should be both at the EU and national level (63%), while 27% consider that oversight
41
should be only at the EU level and 6% consider that oversight should be only at the
national level (Figure 9).70
Figure 9. Platforms regulatory oversight level71
70,00%
62,78%
60,00%
50,00%
40,00%
30,00% 26,95%
20,00%
10,00% 6,41%
3,86%
0,00%
I don't know At national level At EU level Both at EU and
national level.
In particular, the majority of large platforms (70%) and of scale-up/startup platforms
(57%) consider that the oversight should be at the EU level. 72 Among business
associations representing the interest of platforms, 50% consider the oversight should be
at the EU level and 50% consider that it should be done both at the EU and national level.
On the other hand, the majority of national authorities (68%) consider that the oversight
should be done both at the EU and national level and 7% of them consider that the
oversight should be done at the national level only. Among business associations, 54%
consider that the oversight should be done both at the EU and national level, while 40%
consider that the oversight should be at the EU level. Among civil society organizations,
49% consider that the supervision should be done both at the EU and the national level,
while 47% of consider that the supervision should be done at the EU level only.
In addition, respondents across stakeholder groups consider that the regulatory authority
overseeing the gatekeeper platforms should: rely on an institutional cooperation with
other authorities addressing related sectors; support swift and effective cross-border
assistance across Member States; have a high level of technical capabilities, including
data processing and auditing capacities; have a pan-European scope and cooperate with
extra-EU jurisdictions. Several respondents have referred to National Regulatory
Authorities (“NRAs”, i.e. telecom regulatory bodies dealing with ex ante regulation for
the telecoms sector) to be involved in the monitoring of gatekeeper platforms. Some also
referred to the mechanism in place for the enforcement of EU competition law according
to Regulation 1/2003, which creates a system of parallel competences between the
European Commission and national authorities.
70
See Annex B, Table B.6 for the overview of responses among different stakeholders’ categories.
71
Sample size: 1295.
72
The only respondent categorized as ‘caching services’ also expressed the preference for oversight at EU
level only.
42
There is a general agreement between all the stakeholders that the ex ante rules for
gatekeeping platforms should complement the current sector-specific framework with a
view to granting simplification, harmonization and consistency with the acquis.#
IV TABLES
Table B.1. Degree of agreement: Consumers have sufficient choices and alternatives to
the offerings from online platforms (rating per category).73
Table B.2. Need for dedicated regulatory rules to address any negative societal and
economic effects of the gatekeeper role that large online platform companies exercise
over whole platform ecosystems (rating per category).74
73
Sample Size: 1715.
74
Sample Size: 1476.
43
Table B.3. Need for dedicated rules that prohibit certain practices by large online
platform companies with gatekeeper role that are considered particularly harmful for
users and consumers of these large online platforms (rating per category).75
Table B.4. Need for dedicated rules that impose obligations on large online platform
companies with gatekeeper role that are considered particularly harmful for users and
consumers of these large online platforms (rating per category).76
75
Sample Size: 1346.
76
Sample Size: 1274.
44
Table B.5. Need for case-by-case remedies against specific large online platform
companies with gatekeeper role when necessary (rating per category).77
Table B.6. Platforms regulatory oversight level (rating per category).78
77
Sample Size: 1216.
78
Sample Size: 1295.
45
Annex 3: Who is affected and how?
1. WHO IS AFFECTED BY THE DIGITAL MARKETS ACT?
The Digital Markets Act will have an impact on businesses, including gatekeeper
platforms subject to the regulation, competing platforms, business users and SMEs, as
well as on consumers and regulatory authorities.
1.1. BUSINESSES
The Digital Markets Act would benefit businesses in many different aspects. First, this
initiate would allow the Commission to address gatekeepers’ unfair conduct and weak
contestability of, and competition in, platform markets, or risk thereof. More open and
competitive markets where companies compete on their merits enable wealth and job
creation.
Second, and in accordance with the results of numerous empirical studies,79 an
improvement of market competition would result in higher productivity, which would
translate into higher economic growth. These effects are expected to be particular
relevant in digital markets where structural market features may lead or contribute to
market failures, preventing healthy competition between market players.
Third, more open and competitive markets would provide more incentives for companies
to innovate and offer a better range of high quality products and services. The economic
literature shows that firms facing more competition from rivals innovate more than
monopolies.80 Greater competition also drives efficiency in processes, technology and
service and creates the conditions to make European's markets more attractive to
investors.81
A set of measures that contribute to a more dynamic online platform ecosystem and more
contestable market would particularly benefit SMEs who would face lower barriers when
entering the market. It can therefore be expected that an increased contestability of the
markets would, even with some changes to their business model due to the regulatory
79
OECD, 2014, Fact-sheet on how competition policy affects macro-economic outcomes.
80
See G. Federico, F. Scott Morton & C. Shapiro (2019), Antitrust and Innovation: Welcoming and
Protecting Disruption, NBER Working Paper No. 26005 and P. Aghion, N. Bloom, R. Blundell, R.
Griffith & P. Howitt (2005), Competition and Innovation: an Inverted-U Relationship, The Quarterly
Journal of Economics, volume 120(2), pages 701-728. On empirical work, see P. Aghion, S. Bechtold,
L. Cassar & H. Herz (2014), The causal effects of competition on innovation: Experimental evidence,
Journal of Law, Economics, and Organization, volume 34 (2), pages 162-195 and C. Shapiro (2012),
Competition and innovation. Did Arrow hit the bull’s eye?, chapter 7 of Josh Lerner and Scott Stern
(eds.), The Rate and Direction of Inventive Activity Revisited, pages 361-404.
81
As evidenced by Gutmann & Voigt (2014), there is a significant relationship between the introduction
of competition law and annual growth arising mainly from more investment. J. Gutmann & S. Voigt
(2014), Lending a Hand to the Invisible Hand? Assessing the Effects of Newly Enacted Competition
Laws.
46
intervention, continue to incentivise gatekeeper platforms to bring innovative products to
the market and compete for consumers and business users.
Fourth, it is worth mentioning that the measures envisaged would limit the chilling
effects unfair conduct has on sales. While gatekeepers are an important channel to reach
markets and consumers, business users argue that unfair practices would lead to up to
15% loss in their sales. Businesses, especially smaller ones, would be more confident in
engaging with gatekeepers if the latter (are obliged to) comply with clear fairness rules.
A detailed assessment of the way different categories of enterprises are affected is
presented in Section 6 as well as in the following parts of this Annex.
1.2. CONSUMERS
A regime that protects EU consumers from business practices that keep the prices of
goods and services artificially high would ensure that consumers have access to better
quality, wider choice and innovative goods and services at affordable prices. Numerous
studies confirm the benefits of competitive markets for consumers.82
A more competitive digital market will allow consumers to multi-home among
alternative platforms offering differentiated commercial proposition. The fact that
consumers can multi-home, altough resulting in possible search and switching costs,
would generate a net benefit for consumers as they would only multi-home if the benefits
of using alternative platforms compensate for those possible costs. In addition, some of
the measures considered under the options aim at reducing those search and switching
costs, for instance by allowing portability of data, creating conditions for interoperability,
increasing transparency in the market, etc.
This initiative would indirectly contribute to safeguard value added for consumers and
would contribute to ensuring greater respect of privacy and consumers’ interests.83 This
would be achieved by contributing to (i) fairer competition on gatekeeper’s platform
(intra-platform competition) and among platforms (inter-platform competition), (ii)
stronger contestability of the markets where gatekeepers are present and (iii) better
82
See for instance S. Ahn (2002), Competition, Innovation and Productivity Growth: A Review of Theory
and Evidence, OECD Economics Working Paper No. 317. See also for example, a study by the
European Commission (2015) on The Economic Impact of enforcement of competition policies in the
functioning of EU energy markets, which found that the Commission's decision finding an abuse of
dominance by E.ON lead to a reduction in prices for both wholesalers and retailers to the benefit of
consumers. See also the Note by the UNCTAD Secretariat (2014), The benefits of competition policy
for consumers.
83
Online platforms benefit from asymmetry of information (they dispose of large data sets compared to
consumers). Platforms’ analytical capacity gives them the possibility to use advanced algorithms and
machine learning techniques to facilitate targeting, discriminatory practices and behavioural
manipulation. BEUC considers that such practices can have an impact on demand and distribution of
wealth – “the most vulnerable consumers might end up paying higher prices than under a competitive
price scenario (when personalisation is combined with commercial practices seeking to increase the
individual consumer’s willingness to pay). They may also be used to target biases and reinforce
existing or desired viewpoints with the aim of keeping users engaged with the firm’s platform so as to
generate advertising revenues.” BEUC (2019), The Role of Competition Policy in Protecting
Consumers’ Well-being in the Digital Era.
47
functioning of the internal market through enhanced regulatory oversight at EU level.
It is also important to notice that although some interventions under this initiative may
require changes to the existing business models, the evidence from the supra-normal
profits that gatekeepers are accruing, their ability to obtain conditions that would not be
possible under normal market circumstances as well as their ability to act independently
from competitors, business users and consumer indicates that in the long term business
users and consumers will not be harmed. This is especially the case since gatekeepers in
particular will continue to depend on a large user base and since they will be subject to
higher contestability and competition, their incentive to innovate and offer low prices
will rather increase and not reduce due to the intervention.
It should be stressed that the foressen interventions will neither ban specific monetisation
models (such as ad-based models) nor prevent the uptake of new services by gatekeepers
- they prevent them from acting unfairly in their operations and reduce competition in the
markets where they are present. Even in those cases where, due to the multi-sidedness of
the market, there is a cross-subsidisation between the different sides and consumers
already benefit from zero prices, more contestability and competition would not change
the business model. On the contrary, more contestability and competition would increase
the diversity of offers available to consumers and would reduce the prices to advertisers
which would then indirectly reflect in lower prices charged by those advertisers when
selling their products and services to consumers.84,85 In addition, for many digital markets
when consumers are offered ‘free of charge’ services, in practice they are receiving the
service in exchange for their attention and their data, which can then be monetised
through digital advertising. In a more contestable and competitive market, it would be
clear to consumers what data is collected about them and how it is used and, crucially,
the consumer would have more control of the data.86
Section 6 further assesses the impacts on consumers; the table of impacts per practice in
this annex specifies expected impacts associated with each of the measures foreseen.
1.3. REGULATORY AUTHORITIES
This initiative will allow the Commission to tackle gatekeepers’ unfair practices and
existing and emerging market failures in digital markets. The burden that would ensue
from giving the Commission this ability is low (mainly redeployment of existing job
positions) compared to the benefits for the economy. Section 7 of the Impact Assessment
and the sections below qualify and quantify these costs. National authorities would have
to bear some administrative costs specified below.
84
In fact, higher advertising prices represent increased costs to the companies producing goods and
services which are purchased by consumers. These costs are expected to be passed through to
consumers in terms of higher prices for goods and services, even if the downstream market is highly
competitive.
85
See Section 6 of CMA report on Online platforms and digital advertising.
86
See Section 6 of CMA report on Online platforms and digital advertising.
48
2. HOW WOULD THE EX ANTE RULES FORESEEN AFFECT STAKEHOLDERS?
The table below contains an assessment of impacts for individual practices that could be addressed by the various obligations included in the options
considered in the Impact Assessment. It is important to note that the three options considered foresee a combination of obligations, which should resort
an overall positive impact as set out in Sections 6, 7 and 8 of the Impact Assessment. Some of these individual practices would also act in concert,
mutually reinforcing one another in the most proportionate way.
Table of impacts per considered obligation
Unfair practice Impacts on gatekeepers Impact on competitors and new entrants Impact on business users Impact on consumers
Gatekeepers shall not be Gatekeepers would be constrained in Removal of barriers to entry and ability to Consumers could possibly benefit from lower prices
combining personal data combining data collected from all their enter/expand. and/or higher quality/price ratio for online services
originating from different core core platform services which would offered on other platforms.
platform services with personal Ability to compete on merits and higher
reduce their data advantage, thereby
data from their other services incentives to innovate.
or data from third party reducing barriers to entry.
services or automatically Gatekeepers would be required to
signing in end users to other compete on merits or face a risk of
services of the gatekeeper in
losing revenue.
order to combine data without
providing an effective In view of increased choice, downward
possibility to opt-out pressure on prices and therefore
Example: provider of online revenue.
social network site collecting data
from its users obtained through
several different services.
Gatekeepers shall not prevent Gatekeepers would be limited in Smaller and start-up platforms would have Business users would have Consumers’ choice would
business users from offering the disincetivising its business users from the possibility to offer better conditions to the ability and incentive to not be limited to offers
same products or services to switching or multi-homing. business users and thereby incentivise choose among different provided through/on the
customers through third party
them to switch or multi-home. platforms where to offer gatekeeper platform.
online intermediation services Gatekeepers would be required to
49
Table of impacts per considered obligation
Unfair practice Impacts on gatekeepers Impact on competitors and new entrants Impact on business users Impact on consumers
at prices or conditions that are compete on merits or face a risk of Increased choice likely to increase their service/product. Consumers could
different from those offered losing revenue. innovation incentive for all market players. possibly benefit from
through the online Lower prices for
lower prices and/or
intermediation services of the In view of increased choice, downward intermediation services
higher quality/price ratio
gatekeeper. pressure on prices and therefore would lead to passing of the
for online services
Example: a provider of online revenue. cost savings to consumers.
offered on other
intermediation services does not platforms.
allow hotels/e-books publishers to
offer better prices on different Opportunity costs of
online travel agents/e-books comparing different
platforms options may increase.
Gatekeepers shall not prohibit Gatekeepers facing increased choice Increased incentive to develop an Ability to reach customers Increased choice for
their business users from from alternative sources. Such alternative distribution channel. directly and offer them consumers.
promoting and subsequently increased choice would put pressure on targeted and tailored offers.
concluding contracts with their Lower prices and higher
the level of prices and conditions of the
customers acquired on Ability to reduce costs of quality.
gatekeeper’s platform outside a service offered.
distribution, which could be
gatekeeper’s platform. Incentive to innovate in order to passed through to consumers
Example: a publisher cannot prevent outside-gatekeeper in form of lower prices and
inform a new user through its platform/service offers. investments in more
newspaper app that the innovative products/services.
subscription is cheaper if Gatekeeper would likely face lower
concluded via the publisher´s revenue in view of lower number of
website. transactions.
Gatekeepers shall not prohibit
consumers from accessing and
consuming, on the gatekeeper’s
platform or services, services
which have been acquired
outside of the gatekeeper’s
platform or services.
50
Table of impacts per considered obligation
Unfair practice Impacts on gatekeepers Impact on competitors and new entrants Impact on business users Impact on consumers
Example: a music streaming
subscription is concluded through
a website, but cannot be
subsequently used via the app.
Gatekeepers shall not prevent Gatekeepers would not be able to Business users competing with the Business users – especially Consumers would
or restrict business users from exercise their imbalanced power gatekeeper would be able to obtain redress smaller ones - would have a ultimately benefit from
raising issues with any relevant preventing business users from and thus compete with the gatekeeper on chance to find solution to the an increased number of
public authority relating to any
complaining. an equal footing. issue they face with the business users on the
behaviour of gatekeepers
platform. gatekeeper platform,
Example: business users would since even smaller
like to complain about unfair businesses would dare
practice by gatekeeper, but is
using the gatekeeper
effectively prevented doing so due
to contractual constraints. platform’s services.
Gatekeepers shall not impose Gatekeepers required to compete on Enabling market entry by competitors Business users benefiting Increased choice for
their own user ID services on merits. offering alternative user ID services. from more choice. consumers.
business users when the latter
offer service using the core Incentive to innovate in order to Ensuring a level playing in the online Possible cost savings in use Benefiting from higher
platform service of the compete. platform economy. of alternative user ID quality services.
gatekeeper. services.
Gatekeeper would likely face lower Incentives to innovate and compete.
Example: an app store operator revenue in view of lover use of their
unilaterally requires all app use ID services.
developers to integrate the app
store´s own user ID functionality
in their apps and to show this ID
functionality to the customers of
their apps.
Gatekeepers shall not require Gatekeepers would be limited in Removal of barriers to entry and ability to Facing increased choice, Consumers facing more
business users or customers of combining different services together. enter/expand. which in turn could lead to choice from different
these business users to lower prices and higher business users.
subscribe to or register with any Gatekeepers would have to compete on Ability to compete on merits and higher
51
Table of impacts per considered obligation
Unfair practice Impacts on gatekeepers Impact on competitors and new entrants Impact on business users Impact on consumers
core platform service other than the merits of quality and characteristics incentives to innovate. quality of service. More choice enables also
the core platform service of each individual service. better choice to the actual
provided by the gatekeeper, as a Ability to combine services
needs of consumers (e.g.
condition to access, sign up or Gatekeepers would be faced with lower according to the actual needs
one service; combinations
register to any of their core demand for one or more of its services. and interests.
platform services of services).
Gatekeeper would face potential loss of Ability to multi-home and
Example: consumer would like to revenue. switch increased.
subscribe to social networking
service by a gatekeeper, but is Incentive to compete on merits and
effectively prevented from doing innovate.
so without subscribing to other
services of that gatekeeper.
Gatekeepers shall provide Gatekeepers would provide for Increased transparency may facilitate entry This would lead to improved Increased choice and
advertisers and publishers with increased transparency of its or expansion of competing service transparency of the competition likely to lead
information concerning the advertising system. providers. advertising value chain. to lower prices paid for
price paid for the impression of advertising, which should
a given ad, including for each of Increased transparency is likely to put Success of competitors largely dependent Some demand may switch to subsequently be passed
the relevant advertising services downward pressure on pricing, which on the actual switch in demand from alternative operators, but on in final prices for
provided by the gatekeeper is considered opaque. business users, with at least part of their that will largely also depend consumers.
demand (reach of gatekeeper platform still on their reach to consumers.
Example: advertisers and This may lead to some lost advertising being an important barrier to entry).
publishers would like to obtain revenue.
information about all the
intermediation fees charged by
the adtech services provider, but
they are refused so.
Gatekeepers should not use Gatekeepers would be constrained in Increased level playing field. Business users would have Consumers would
data provided by or generated expanding their power to neighbouring more confidence in selling continue benefitting from
through activities of business Ability to compete on merits.
markets through unfair practices since online, as they would be products/services
users of its core platform Ability to bring innovative solutions to the
they would not be able to gain unfair protected from practices that provided through
services in competition with
commercial advantage. market. exploit their data for the multiple channels (e.g.
those business users
benefits of the platforms retailers) thus benefitting
52
Table of impacts per considered obligation
Unfair practice Impacts on gatekeepers Impact on competitors and new entrants Impact on business users Impact on consumers
Example: an e-commerce Gatekeepers would need to establish alone. from more choice, lower
marketplace using commercially market trends as any other market prices and innovative
sensitive data collected from operator when determining supply and products.
individual sellers to compete with
demand patterns.
these sellers on its own online
marketplace Gatekeepers would be further
incentivised to innovate and compete
on merits.
Gatekeepers might grow at a lower
pace as when engaging in unfair
practices. If they can preserve their
‘first mover advantage’ in terms of
number of business users and data
accumulation but would need to
compete on the basis of fair data- use
practices.
Gatekeepers shall not prevent Gatekeepers would be limited in Ensuring a level playing field in the online In case of pre-installation Increased consumer
customers from un-installing practices preventing switching or platform economy. arrangements with freedom of choice with a
any pre-installed software multi-homing. gatekeeper, increased positive impact on prices
applications on its core Ability to bring innovative products and
incentive to compete to and quality of service.
platform services. Gatekeepers may be facing more services on the market in view of more
remain relevant and
Example: app stores/operating competition concerning specific open switching or multi-homing
competitive.
systems preventing users from un- proprietary software applications and possibilities of consumers.
installing some of the pre- therefore limited growth.
installed apps, in particular
where these are not essential for Gatekeepers may be losing some Increased competition
running the hardware. revenue in case of exclusivity between different developers
arrangements with business users. of software applications.
Gatekeeper shall allow the Gatekeepers would be effectively Increased ability to switch shall serve as Incentive to switch would Increased choice for
installation and effective use of prevented from restricting switching or incentive to target consumers with high lead to a more volatile
53
Table of impacts per considered obligation
Unfair practice Impacts on gatekeepers Impact on competitors and new entrants Impact on business users Impact on consumers
third party software multi-homing. quality products or services. markets due to competitive consumers.
applications or software choice.
application stores using, or This may lead to decrease in demand in Switching should incentivise increased Lower prices and higher
interoperating with, operating absence of innovative competing innovation in a variety of markets. This would in turn lead to quality of service.
systems of that gatekeeper products in comparison to competitors. more innovation, lower
Increased overall competition and prices and higher quality
Example: consumer is prevented Increased switching and/or contestability of the markets. products and services.
from installing an app store of the multihoming likely to lead to some loss
mobile game provider and the in revenues.
relevant applications directly
from its app store.
Gatekeepers shall not treat Gatekeepers’ power stemming from Competitors would have the ability to Business users offering high Better informed and more
more favourably in ranking ability and incentive to engage in self- compete on equal footing and merits. quality and/or competitive impartial choice for
their own services and products preferencing due to the vertical product/services would consumers.
compared to similar services or Increased incentive to innovate and invest
integration will be limited. benefit from greater
products of third-party business in view of level playing field. Demand driven by the
users and shall apply fair visibility in view of the
Gatekeepers adjacent services growth competitiveness of the
conditions to such ranking increased competitiveness of
may be limited or stalled absent change offer and not by unfair
their service and therefore
Example: a search engine to compete on merits. practices.
relevance in ranking.
preferring its own vertically
integrated services in its search
engine results (e.g. shopping or
travel services are featured on top
of search results); a social
network ranking its own dating
service more prominently in
users´ timelines than those of
third-party dating services.
Gatekeepers shall not Gatekeepers would be effectively Increased ability to switch shall serve as Incentive to switch would Increased choice for
technically restrict the ability of prevented from restricting switching. incentive to target consumers with high lead to a more volatile consumers.
end users to switch between and quality products or services. markets due to competitive
subscribe to different software This may lead to decrease in demand in Lower prices and higher
choice.
applications and services to be absence of innovative competing Switching should incentivise increased
54
Table of impacts per considered obligation
Unfair practice Impacts on gatekeepers Impact on competitors and new entrants Impact on business users Impact on consumers
accessed using the operating products in comparison to competitors. innovation in a variety of markets. This would in turn lead to quality of service.
system of the gatekeeper more innovation, lower
Increased switching likely to lead to Increased overall competition and prices and higher quality
Example: an app store reserving some loss in revenues. contestability of the markets. products and services.
for some providers with whom it
has partnership agreements
certain functionalities, thus
preventing consumer switching to
a different internet access
provider.
Gatekeepers shall not prevent Gatekeepers would not be able to Increased level playing field Business users would benefit Consumers would benefit
business users and providers of discriminate against business users from systems and features from higher quality and
ancillary services access to and ancillary services providers in terms of needed for their activity. more diversified choice.
interoperability with the same
access to their operating system,
operating system, hardware or
software features that are hardware or software features.
available to or used by any
ancillary services provided by
the gatekeeper.
Example: provider of financial
services online would like to
obtain access to certain features
available to the payment services
of the gatekeeper that are needed
to perform certain operations, but
is refused access to such features.
Gatekeepers shall not refuse to Gatekeepers would provide for Increased transparency may facilitate entry This would lead to improved Increased choice and
provide advertisers and increased transparency of its or expansion of competing service transparency of the competition likely to lead
publishers upon their request, advertising system. providers. advertising value chain and to lower prices paid for
with access to the performance
better targeting of the advertising, which should
measuring tools of the Increased transparency is likely to put Success of competitors largely dependent
gatekeeper and the information service needed. subsequently be passed
downward pressure on pricing, which on the actual switch in demand from
necessary for advertisers and on in final prices for
55
Table of impacts per considered obligation
Unfair practice Impacts on gatekeepers Impact on competitors and new entrants Impact on business users Impact on consumers
publishers to carry out their is considered opaque. business users, with at least part of their Some demand may switch to consumers.
own independent verification of demand (reach of gatekeeper platform still alternative operators, but
the ad inventory. This may lead to some lost advertising
being an important barrier to entry). that will largely also depend
revenue.
Example: advertisers would like on their reach to consumers.
to obtain access to performance
measuring tools of gatekeepers to
assess effectiveness of its
advertising campaign, but is
refused access to such tools.
Gatekeepers shall provide Gatekeepers would be required to Competitors would benefit from incentive Increased ability of business Increased choice for
business users with effective provide for effective means of data of business users who would have an users to switch or multi- consumers.
data porting possibilities for portability, practice which does not effective mean for switching or multi- homing.
data generated on core platform Lower prices and higher
seem to function at the moment. homing.
services, subject to GDPR Incentive to switch or multi- quality of service.
consent requirements as Gatekeepers would not benefit from an Incentive and ability to switch would lead home could lead to more
applicable. important barrier to entry and to incentive to enter or expand in the innovative services and
Example: third-party provider of expansion faced by existing market and provide innovative services. choice.
online newspaper may need competitors.
access to data of the potential
user (i.e. subscriber) of its Interoperability measures required
services in real time. would raise compliance costs for
gatekeepers.
Gatekeepers shall not prevent Gatekeepers will not be able to prevent Level playing field among competitors in Business users would be Consumers would benefit
free of charge, unhindered direct contacts between business users the online platform environment. able to better understand from a more direct
access to and use of non- and consumers. behaviour of their contact with the business
aggregated and aggregated data Competitors would benefit from business
customers. that is providing
that is provided for, generated Gatekeepers might lose some users being able to obtain their customer
in the context of, or inferred demanded service.
consumers who may switch to business data and possible use similar services from Would enable better
from, the use of the relevant users or competitors and thereby lose competitors of gatekeepers. targeting of the offers as More targeted supply
core platform services by those some revenue. well as addressing possible could lead to more
business users and the
shortcoming in the service competitive offer in terms
customers acquiring the
56
Table of impacts per considered obligation
Unfair practice Impacts on gatekeepers Impact on competitors and new entrants Impact on business users Impact on consumers
products or services provided (e.g. reasons for termination of lower price and higher
by those business users. of a contract). quality.
Example: online newspaper asks
the provider of online
intermediation service for
contacts of the customer who
subscribed to its service through
software application store of the
gatekeeper, but is refused such
data on privacy grounds, even if
subscriber was never asked for
consent, or lack of it, for such
data sharing.
Gatekeepers shall not prevent Providing access to click-and-query By increasing level playing field the Increased competition likely to lead to increased choice
access, upon request of business data is likely to lead to increased competitors obtain an opportunity to and thereby lower prices and higher quality products and
users and any third party competition in online intermediation differentiate themselves from gatekeepers services.
providers of online search
services and online search engines. and show that quality of their product or
engines, to query, click and
view data in relation to free and service.
Increased competition expected to lead
paid search generated by to incentive to innovate and provide Increased competition overall, likely to
consumers on the online search higher quality product than lead to more innovation and more tailored
engines of the gatekeeper.
competition. products.
Example: provider of competing
online search engine services asks
the gatekeeper to provide access
to its click-and-query data, which
is refused without any
consideration or explanation.
Gatekeepers shall apply fair Gatekeepers would not be able to treat Business users directly competing would Business users could benefit Consumers would benefit
and non-discriminatory general differently third parties on their benefit from better level playing field vis- from better quality of from greater quality
conditions of access for business respective platforms, they would not be à-vis gatekeepers. service, i.e. better access products/services by
users to its software application
57
Table of impacts per considered obligation
Unfair practice Impacts on gatekeepers Impact on competitors and new entrants Impact on business users Impact on consumers
store. allowed to prevent the latter from conditions, which would business users.
Example: provider of an app store benefitting from the same access also allow them to offer
charges different commission conditions. increased quality of services
rates to different business users to consumers.
Gatekeepers would however not be
without clear identification of
reasons for such differentiation. prevented from determining the
substance of the access conditions for
their core platform services – these
would merely be subjected to the
fairness and non-discrimination check.
58
3. SUMMARY OF COSTS AND BENEFITS
The costs and benefits associated to this initiative are specified below, comparing where possible the outcome of different options assessed.
3.1. OVERVIEW OF BENEFITS FOR THE PREFERRED OPTION
I. Overview of Benefits – Preferred Option 2
Description Amount Comments
Internal market EUR 92.8 billion It is expected that here will be a substantial decrease in internal market fragmentation, as EU Member States
fragmentation (see will not need to introduce national legislations. The effect of market contestability on the internal single market
also Annex 5.5 on is proxied by an increase in online cross-border trade and the indirect/spill-over effect in terms of employment,
cost of non-Europe) economic growth, innovation and consumer surplus (see below). If we assume that by preserving the internal
market in the platform space cross-border trade projections by 2025 could be maintained, this would lead to
EUR 92.8 billion.87
Impact on EUR 12 billion - Input-output micro-econometric modelling: Higher investment in R&D in the ICT sector in EU27 leads to
economic growth EUR 23 billion an overall increase in the EU27 income between 0.09% to 0.17% of 2014 EU GDP, this is between EUR 12
billion and EUR 23 billion.
Both impacts on growth and employment (below) are very conservative estimates because they result
exclusively from an increase in R&D investment. However, market contestability and more fair competition
are expected to produce important spillover effects that result in higher innovation, increase in market size,
increase of entrepreneurship within and beyond the platform economy and growth in other traditional sectors.
Online cross-border trade is expected to be highly impacted by this virtuous dynamic. Therefore, this
87
Cross-border e-commerce in Europe was worth EUR 143 billion in 2019, with 59% of this market being generated by online marketplaces. This is projected to increase to
65% in 2025 (Ecommerce News Europe (2020)).
59
I. Overview of Benefits – Preferred Option 2
Description Amount Comments
estimation is not taking into account further rounds of direct and indirect effects with positive loops in the
long-term.
Employment 600 000 jobs The preferred option would either preserve the current level of employment in the sector or lead to its
preserved increase88 thanks to the increase in R&D spending (input-output microeconomic modelling)
(conservative
scenario) – b/n
136,387 and 294,236
jobs created
(optimistic scenario)
Innovation EUR 221 billion and Financial resources that could be invested in R&D are diverted to mergers and acquisitions (M&A), which
EUR 323 billion results in higher market concentration instead of improvements in the quality and quantity of products and
over 10 years services for consumers. This pattern of innovation dedicated to competing 'for the market' has a detrimental
effect on consumer choice and surplus.
In addition, the positive impact on innovation stemming from higher market contestability is not limited only
88
The data used in the input-output modelling come from three sources: (a) The 2014 world input-output table (WIOT) publicly available from the World Input-Output
Database (WIOD, www.wiod.org), (b) Employment (number of persons engaged) and compensation of employees obtained from the Socio-Economic Accounts (SEAs)
of WIOD, and (c) private R&D investments in information and communication (and its subitems represented by NACE Rev.2’s Section J’s divisions and/or groups),
which were downloaded from Eurostat (rd_e_fundgerd).www.wiod.org), (b) Employment (number of persons engaged) and compensation of employees obtained from
the Socio-Economic Accounts (SEAs) of WIOD, and (c) private R&D investments in information and communication (and its subitems represented by NACE Rev.2’s
Section J’s divisions and/or groups), which were downloaded from Eurostat (rd_e_fundgerd).www.wiod.org), (b) Employment (number of persons engaged) and
compensation of employees obtained from the Socio-Economic Accounts (SEAs) of WIOD, and (c) private R&D investments in information and communication (and its
subitems represented by NACE Rev.2’s Section J’s divisions and/or groups), which were downloaded from Eurostat (rd_e_fundgerd).www.wiod.org), (b) Employment
(number of persons engaged) and compensation of employees obtained from the Socio-Economic Accounts (SEAs) of WIOD, and (c) private R&D investments in
information and communication (and its subitems represented by NACE Rev.2’s Section J’s divisions and/or groups), which were downloaded from Eurostat
(rd_e_fundgerd).
60
I. Overview of Benefits – Preferred Option 2
Description Amount Comments
to diversion of money from M&A to R&D. Other expected indirect effects include an increase in
entrepreneurship and creation of new products and solutions meeting consumers' needs rather than focused on
exploiting a gatekeeping position. This may have a multiplicative effect increasing the size of the European
single market, and hence, GDP and online cross-border trade (see other impacts in this table).
Investment in R&D EUR 12 billion– Higher investment in R&D in the ICT sector in EU27 leads to an overall increase in the EU27 income between
EUR 23 billion 0.09% to 0.17% of 2014 EU GDP,89 i.e. between EUR 12 billion and EUR 23 billion (input-output modelling).
Competition Fall in HHI index It is expected that competition will improve substantially due among other to a substantial decrease in barriers
0.25 (user shares) to entry. Conservative estimate is no increase in the HHI Index, while upper bound means a fall in HHI index
and 0.11 (revenue on for the user shares by 0.25 points and 0.11 for the revenue shares.
shares)
Online cross-border EUR 450 billion to Assuming the internal market fragmentation is fully addressed, the online cross-border trade would increase
trade EUR 1.76 trillion between EUR 450 billion to EUR 1.76 trillion after 10 years.
after 10 years Although it is hard to forecast with precision the increase in online cross-border trade, the impacts have been
proxied by similar trends in offline cross-border trade resulting from market integration.
The opportunity costs estimated here are very conservative as the assumed trends were linear and conservative
growth rates. The fast change in the platform economy and interlinks with the rest of the economy suggests
that online cross-border trade could see an important exponential growth if enhanced by market contestability,
fair competition and virtuous patterns of innovation.
Consumer surplus EUR 13 billion The higher level of competition may result in lower prices as companies could decrease spending on
89
The most recent available input-output matrix is for 2014, yet the matrix does not change significantly across time.
61
I. Overview of Benefits – Preferred Option 2
Description Amount Comments
advertising and lower costs; such savings could be passed onto consumers (especially where (price)
competition increases). Consumer surplus of EUR 13 billion is based on the assumption that competitive
asymmetry between gatekeepers and alternative platforms would be addressed (see Annex 4).
3.2. OVERVIEW OF COSTS
The Table below presents a cost comparison between Options 1, 2 and 3 (including underlying assumptions for cost estimates). In relation to the
number of platforms captured by the qualitative criteria, it is very difficult to estimate upfront given that only after a market investigation it
would be possible to determine whether a given provider of core platform services meets the criteria. The calculations are thus provided on the
basis of illustrative numbers.
It is important to note that the costs for the EU Commission in terms of FTEs (full time equivalents) refer mostly to the internal redeployment of
already existing job positions.
Cost comparison
Option 1 Option 2 Option 3
Carrier Cost qualification Cost quantification Cost qualification Cost quantification Cost qualification Cost quantification
European Regulatory costs of Annual costs: between In addition to costs Annual costs: €16.7m. In addition to costs Annual costs: €18.2m
Commission implementation, €6.4m (sub-option 1-A) identified under Option 1, identified under Option 2,
supervision, and €10.5m (sub-option further data requests, This is based on 80 further costs would be This is based on 90
information gathering. 1-B). implementation, FTEs under both sub- incurred in similar tasks FTEs (€11.7m).
assessment and options (€10.3m). in relation to other digital
Associated burden is This is based on 30 enforcement/supervision services, including Additional costs (i.e.
estimated based on FTEs in case of sub- costs are to be foreseen. Additional costs (i.e. implementation, around €6.5m) are
experience from other option 1-A (with a cost around €6.4m) are assessment, necessary in relation to
sectors where regulation of €3.9m) and 50 FTEs Further implementation necessary in relation to enforcement/supervision the support of experts,
62
Cost comparison
Option 1 Option 2 Option 3
Carrier Cost qualification Cost quantification Cost qualification Cost quantification Cost qualification Cost quantification
requires the preparation in case of sub-option 1- costs would stem from the the support of experts, costs, and assessments of provision of training,
of guidelines, B (with a cost of regulator specifying the provision of training, fairness. development of
designation of actors €6.5m). obligations imposed to a development of required required IT systems,
with market power and given gatekeeper. IT systems, expenditure expenditure with
enforcement of Additional costs with missions and missions and
conditions aimed at (between €2.5m and Further assessment costs organisation of organisation of
supporting €4m) are necessary in would stem from the need meetings. meetings.
contestability and relation to the support to conduct market
avoiding foreclosure, of experts, provision of investigations to designate
i.e. telecoms regulation training, development gatekeepers and assess new
and competition law. of required IT systems, practices.
expenditure with
It is assumed that the missions and
Commission would organisation of
engage in preparing and meetings.
processing information
requests as well as the
preparation of
guidelines, designation
of gatekeepers and
enforcement of the
obligations
National Responses to Annual costs: €4.3m In addition to costs under Annual costs: €6m based In addition to Option 2, Annual costs: €6m
authorities consultations held by based on 2.5 FTE for 27 Option 1, Option 2 would on 3.5 FTE for 27 Option 3 would not imply based on 3.5 FTE for
the EU regulator to Member States imply costs for national Member States any additional costs for 27 Member States
integrate national regulators to study national regulators.
expertise before taking Commission’s proposed
a decision (e.g. on draft decisions on further
63
Cost comparison
Option 1 Option 2 Option 3
Carrier Cost qualification Cost quantification Cost qualification Cost quantification Cost qualification Cost quantification
guidelines non- tailoring of obligations.
compliance, fines).
Gatekeepers Compliance costs Annual costs: between Similar compliance costs Annual costs: between Similar compliance costs Annual costs: around
incurred in order €9.87m and €21.15m per platform as per Option €21.15m and €28.2m for per platform as per €35.25m based on 25
to prepare for for a total number of 1. a total number of Option 1. gatekeepers.
compliance with rules, gatekeepers in scope gatekeepers in scope
set compliance officers, between 7 (under sub- On the one hand, the between 15 (under sub- On the one hand, the
and respond to requests option 1-A) and 15 possibility of a dialogue option 2-A) and 20 possibility of a dialogue
for information. (under sub-option 1-B) would reduce the (under sub-option 2-B) would reduce the
compliance costs. On the compliance costs. On the
Number of information other hand, the need to other hand, the need to
requests would depend reply to request for reply to request for
on the complexity of the information in the context information in the context
case. Estimate assumes of market investigations of market investigations
that 20 FTEs are would imply some extra would imply some extra
involved in data costs. costs.
gathering, monitoring
and enforcement
activities per gatekeeper
platform.
This scenario does not
consider possible
synergies with already
existing internal
organisation/service for
complying with other
legislation, e.g. service
64
Cost comparison
Option 1 Option 2 Option 3
Carrier Cost qualification Cost quantification Cost qualification Cost quantification Cost qualification Cost quantification
ensuring COMP law
compliance.
Competitors, Monitoring of unfair Net additional resource Monitoring new forms of Net additional resource Monitoring new digital Net additional
start-ups, conduct as well as new requirements likely to unfair practices would requirements likely to be markets would create resource requirements
business users rules’ implementation be very limited create additional costs for very limited additional costs for market likely to be very
and supervision of market players as players as compared with limited
compliance would compared with Option 1. Option 1. However, in
imply some burden in However, in order to order to ensure
the form of e.g. ensure proportionality proportionality information
responses to information requests would requests would take into
information requests. take into consideration the consideration the size of the
However, in order to size of the enterprise to enterprise to which they are
ensure proportionality which they are sent. sent.
information requests
would take into The resources devoted to The resources devoted to
consideration the size of these requests might be these requests might be
the enterprise to which counteracted by reductions counteracted by reductions
they are sent. in legal resource required in legal resource required to
to address unfair address unfair contractual
The resources devoted contractual conditions, with conditions, with a
to these requests might a substantial portion of the substantial portion of the
be counteracted by burden previously taken by burden previously taken by
reductions in legal small firms in this area now small firms in this area now
resource required to addressed through tailored addressed through tailored
address unfair action at EU level. action at EU level.
contractual conditions,
with a substantial
portion of the burden
65
Cost comparison
Option 1 Option 2 Option 3
Carrier Cost qualification Cost quantification Cost qualification Cost quantification Cost qualification Cost quantification
previously taken by
small firms in this area
now addressed through
tailored action at EU
level.
Consumers Responses to public Additional information Additional information
consultations - gathering from consumers gathering from consumers
questions targeting may be needed to inform may be needed to inform
consumers would be specification/tailoring of about other digital
less complex and remedies. services.
shorter. Possibly higher Higher search costs Higher search costs
search costs
Total costs: EUR 20.57m – 35.95m EUR 43.85m – 50.9m EUR 59.45m
66
Annex 4 – Analytical methods
The teams at DG CNECT, GROW and COMP, as well as the contractor of the study supporting
the Impact Assessment and JRC conducted calculations to estimate the impact of the unfair
practices employed by platform and market failures.
The quantitative assessments relied on estimates available in empirical studies quoted in the
Impact Assessment, correlation analysis was based on data from Statista and an Input-Output
macro-modelling. The assessment was guided by the EU Better Regulation Guidelines.
1. INPUT-OUTPUT MODEL
1.1 Introduction
The input-output (I-O) model is the name given to a modelling approach developed by Professor
Wassily Leontief in the late 1930s90. As its name suggests, the I-O model assumes that there is a
matrix that links transactions or flows recording payments to and from a sector within a year.
Besides, the framework works on double-entry bookkeeping so that total gross output must equal
gross input. 0 below illustrates the model.
The row total represents the total produced (supplied) by a sector while the total column
represents the total used (demanded) by such sector. Hence, any element 𝛼𝑖𝑗 in each cell is what
sector j use from sector i.
Input-output transaction matrix
Source: Miller and Blair (2009)91
90
Leontief, W.W. (1986), Input-Output Economics, Second edition. Oxford: Oxford University Press.
91
Miller, R.E. and Blair, P.D., 2009. Input-output analysis: foundations and extensions. Cambridge
university press. Available at: http://digamo.free.fr/io2009.pdf.
67
The model is built using observed economic data from national account statistics to show the
flows of products going from each industrial sector seen as a producer to sectors seen as
consumers. The grey area in 0 above is the interindustry trade to which must be added the final
demand columns and the value-added rows.
National account data will populate the matrix which will be used to estimate impacts out of
exogenous shocks. For example, each 𝑍𝑖𝑗 in the matrix below (0) will be constructed from
official statistics. Such matrix will be used to find a matrix with the multiplier effects to estimate
how exogenous changes in one specific sector of the economic impacts in the other sectors,
value-added, final demand and lastly in GDP.
Example of a two-sector economy
Source: Miller and Blair (2009)
The next section describes the implementation of the I-O model to this impact assessment.
1.2 Implementation of the I-O model for the impact assessment
In this Implementation of the I-O model for the impact assessment analysis, data was taken from
the sources below:
The 2014 world input-output table (WIOT) publicly available from the World Input-
Output Database (WIOD, www.wiod.org),
Employment (number of persons engaged) and compensation of employees obtained
from the Socio-Economic Accounts (SEAs) of WIOD, and
Private R&D investments in information and communication (and its subitems
represented by NACE Rev.2’s Section J’s divisions and/or groups), obtained from
Eurostat92.
The most recent data were available for 2014 (WIOD Release 2016), which explains the choice
of the year in our impact assessments. The WIOTs and SEAs cover 43 countries and the rest of
the world region, each detailed by 56 industries according to the International Standard Industrial
92
Business expenditure on R&D (BERD) by NACE Rev. 2 activity and source of funds
[rd_e_berdfundr2], metadata accessible at:
https://ec.europa.eu/eurostat/cache/metadata/en/rd_esms.html.
68
Classification Rev. 4. All tables adhere to the latest version (2008) of the System of National
Accounts.
The incorporate the impact of market contestability and fairer competition in GDP and
employment into the I-O model, we needed to assume that such market dynamic would result in
higher investment in R&D in the platform economy, impacting in GDP and job creation.
However, as the platform economy is still relatively new to the national account system there is
not an exact code for such sector and we had to take some sub-sectors from the ICT sector as a
proxy93.
The results suggest that private investments in ICT sectors account only for roughly 0.10% of the
EU GDP. The I-O modelling exercises show that these investments imply:
An overall EU income increase from 0.09% to 0.17% (of 2014 EU GDP) and EU
employment increase from 0.07% to 0.15% (of 2014 EU employment);
At the EU level, most of the impacts are driven by one ICT subsector, consisting of
Computer programming, consultancy and related activities and Data processing, hosting
and related activities, web portal;
The impacts are, however, heterogenous across the individual EU countries.
1.3 Limitations
One of the main limitations is the lack of exact code to identify the platform economy which may
be underestimating the actual size of the sector and hence the contribution and links to the overall
economy.
A second limitation is that it only incorporates the increase of R&D but there might be other
exogenous shocks resulting from market contestability and fairer competition, including higher
market size and higher online-cross-border trade. As it is difficult to know a priori the increase in
market size and across which sector, incorporating this into the model proves challenging.
Other direct and indirect effects such as entrepreneurship, quantitative and qualitative changes in
the patterns of innovation as well as lower prices to consumers resulting from market
contestability are not included in the model for the same reasons as failing to incorporate change
in market size. Therefore, the estimations must be taken as conservative and lower bound.
2. METHODOLOGY USED FOR CALCULATING CONSUMER BENEFITS STEMMING FROM A
MORE COMPETITIVE PLATFORM ECONOMY IN THE EU
2.1 Presentation
This note summarises the method used to assess the economic impact of the DMA in the EU and
the (preliminary) results obtained.
93
The R&D expenditure data cover part of ICT services (but not ICT manufacturing), along with other
subitems of Information and communication sector. These ICT services include Software publishing
(NACE Group 58.2), Telecommunications (NACE Division 61), Computer programming, consultancy
and related activities (NACE Division 62), and Data processing, hosting and related activities; web
portals (NACE Group 63.1).
69
The quantitative methodology adopted can be conceptualised as a partial-equilibrium structural
approach. The econometric model is grounded in a partial-equilibrium framework since it uses
very detailed data to identify with high precision consumers' substitution patterns for a large set
of digital services providers in 19 EU Member States and the UK. It is structural in the sense that
economic theory is used to develop statements about how a set of observable endogenous
variables are related to another set of observable explanatory variables, and sometimes also to a
set of unobservable variables. However, economic theory alone cannot provide enough
information for the estimation of the model. For this reason, there is a need to add statistical
assumptions about its observed and unobserved variables. A key reason to use economic theory,
beyond the specification of the relationship between the variables, is to clarify how institutional
and economic conditions affect these relationships. This specificity is essential to make causal
statements about the estimated relationships, or use them to perform counterfactuals, i.e.,
scenarios that have not been implemented but that can represent the likely outcomes of policy
interventions.
The methodological approach is framed in the tradition of structural estimation in empirical
industrial organisation in the economics profession. This approach uses discrete choice models
for the estimation of demand and adds a simulated supply side to compute the industry
equilibrium given by the observed data. Adding a simulated supply side to account for firms'
strategic behaviour, the observed market equilibrium can be found. Moreover, by changing
supply or demand conditions, the framework allows for the design of counterfactuals that
simulate policy changes.
The model used here is a modified version of Duch-Brown et al. (2015), and was developed by
researchers from the JRC. The model is a partial equilibrium approach using detailed data for
usage of a large set of digital services, allowing estimating with a high level of accuracy demand
substitutability and market equilibrium.
From a market analysis perspective, there are three potential competitive constraints: demand
substitution, supply substitutability, and potential competition. Demand substitution constitutes
the most immediate and effective disciplinary force on suppliers, and in particular to their
strategic decisions. Supply substitutability and potential competition are relevant in the medium
to long terms, since they imply the need of adjustments through tangible or intangible assets,
additional investments or strategic decisions, all of which would imply significant changes in the
markets under consideration94. Hence, a precise estimation of demand substitutability is essential
to the analysis of the effects of changes in the institutional setting of a given sector, and this is the
basis for the approach taken here.
We consider the demand for several categories of digital services. Consumers can choose among
a large variety of websites that are differentiated in quality. Furthermore, consumers can also
decide not to visit a website at all, in which case they can spend their time on other (offline)
services goods. To model the substitution patterns, a two-level nested logit model is used which
allows for market segmentation according to two discrete dimensions: i) category; and ii) sub-
category. This model is useful since the nesting parameters enable one to assess to which extent
consumers view the options in the same distribution channel and/or quality category as closer
substitutes.
94
Alternatively, one can see this as the difference between (comparative) static and dynamic approaches.
70
Assuming that consumers choose the product with the highest utility, one can obtain the choice
probabilities for every product in every country, including the probability of selecting the outside
good (McFadden, 1978). At the aggregate level, these choice probabilities can be equated to the
market shares, relative to a hypothesised potential market, defined here as representing twice as
much as the observed website visits.95 The demand model can be used to compute consumer
surplus (McFadden, 1978 or Anderson et al. 1992. If the model conforms to the basic principles
of consumer theory, the model translates preference correlations into aggregate substitution
patterns. Products in the same subgroup will have higher substitutability than products in a
different subgroup.
An oligopolistic supply side is added to the model to infer marginal costs and current economic
profits; as well as to define the observed market equilibrium. The model assumes that firms
maximize profits, and that they compete in a differentiated products setting (Bertrand
competition). As shown by Berry (1994) and Berry, Levinsohn and Pakes (1995), the profit
maximising conditions can be used to compute the current marginal costs. Furthermore, this
system can be used to perform policy counterfactuals, and in particular the effects of introducing
more competition in this particular setting. The model also calculates consumer welfare
(consumer surplus) changes, by computing the welfare measures in the different counterfactuals
and in the observed market equilibrium.
The results with respect to the estimated consumer surplus are:
Country Original Counterfactual Difference
AT 3.47 3.78 0.31
BE 4.77 5.54 0.77
BG 1.93 1.86 -0.06
CZ 6.00 5.93 -0.07
DE 34.11 37.17 3.06
ES 20.27 20.72 0.45
FI 3.43 3.86 0.43
FR 29.41 31.88 2.47
GB 36.85 40.08 3.23
GR 3.83 3.91 0.09
HR 1.62 1.61 -0.01
HU 4.01 3.95 -0.06
IE 2.65 2.95 0.30
IT 20.75 21.49 0.74
NL 10.31 11.59 1.28
PL 18.67 18.38 -0.29
PT 3.75 3.81 0.06
RO 3.74 3.63 -0.10
SE 5.15 5.71 0.56
SK 2.00 1.99 -0.01
Total 216.72 229.87 13.15
95
Alternative definitions of the market size give similar results. See Duch-Brown and Martens (2016) for
further details.
71
2.2 Limitations
The methodology suffers several limitations. First, the results come from a simulated
counterfactual scenario, based on a series of assumptions, which may not necessarily be true. For
instance, the assumption that digital service providers compete according to the Bertrand
behaviour is questionable, but practical from an empirical point of view. Second, the data used
covers just one month, and there may be singularities in that particular point in time that are
different from a more wide perspective (ie, several months, or even years). Third, the results are
based on a hypothesised consumer behaviour model, which may not correspond to real choices.
Finally, the results refer to alternative platforms only (not considering business users).
Consequently, the results account for consumer surplus which would stem from increased inter-
platform competition but do not reflect positive effects on intra-platform competition (that can be
legitimately expected as a result from the application of the preferred option).
3. REFERENCES
Berry, S., J. Levinsohn, and A. Pakes (1995). Automobile Prices in Market Equilibrium,
Econometrica, 63, pp.841-890.
Berry, S.T. (1994). Estimating Discrete-Choice Models of Product Differentiation, RAND
Journal of Economics, 25(2), pp.242-262.
Duch-Brown, N. and B. Martens (2016). The economic impact of removing GB restrictions in the
EU Digital Single Market. JRC/IPTS Digital Economy Working Paper 2016-02.
Duch-Brown, N., L. Grzybowski and F. Verboven (2015). The Impact of Online Sales on
Consumers and Firms: Evidence from Household Appliances. JRC/IPTS Digital Economy
Working Paper 2015-15.
McFadden, D. (1978). Modelling the Choice of Residential Location, in Spatial Interaction
Theory and Planning Models. Karlquist, A., L. Lundquist, F. Snickers, and J. Weibull (eds.).
Amsterdam: North Holland.
72
Annex 5.1 – Overview of consultations and expert advice
reports conducted in the context of the New Competition Tool
The following consultations and expert advice reports have been conducted in relation to
the market investigation regime. All of these summaries and reports can also be found on
DG Competition's dedicated website.96
Inception Impact Assessment of the New Competition Tool:
Feedback received: https://ec.europa.eu/info/law/better-regulation/have-your-
say/initiatives/12416-New-competition-tool/feedback?p_id=7937377
Open Public Consultation on the New Competition Tool:
Summary of contributions received in the context of the Open Public
Consultation on the New Competition Tool:
https://ec.europa.eu/competition/consultations/2020_new_comp_tool/summary_st
akeholder_consultation.pdf
Contributions outside EU Survey:
https://ec.europa.eu/competition/consultations/2020_new_comp_tool/contribution
s_outside_eu_survey.zip
Consultation activities in the context of the European Competition Network
(National Competition Authorities of the European Economic Area):
Summary of the contributions of the responses:
https://ec.europa.eu/competition/consultations/2020_new_comp_tool/summary_c
ontributions_NCAs_responses.pdf
Expert advice reports commissioned in the context of the New Competition Tool:
Prof. Massimo Motta and Prof. Dr. Martin Peitz (2020), Intervention triggers and
underlying theories of harm,
https://ec.europa.eu/competition/consultations/2020_new_comp_tool/kd0420575e
nn.pdf
Prof. Pierre Larouche and Prof. Alexandre de Streel (2020), Interplay between the
New Competition Tool and Sector-Specific Regulation in the EU,
https://ec.europa.eu/competition/consultations/2020_new_comp_tool/kd0120577e
nn.pdf
Prof. Dr. Heike Schweitzer (2020), The New Competition Tool: Its institutional
set up and procedural design,
https://ec.europa.eu/competition/consultations/2020_new_comp_tool/kd0420574e
nn.pdf
96
https://ec.europa.eu/competition/consultations/2020_new_comp_tool/index_en.html.
73
Prof. Richard Whish (2020), Legal comparative study of existing competition
tools aimed at addressing structural competition problems, with a particular
focus on the UK’s market investigation tool:
https://ec.europa.eu/competition/consultations/2020_new_comp_tool/kd0420573e
nn.pdf
Report by the Economic Advisory Group on Competition Policy (EAGCP)
(Gregory Crawford, Patrick Rey and Monika Schnitzer) on an economic evaluation
of the NCT:
https://ec.europa.eu/competition/consultations/2020_new_comp_tool/kd0320680e
nn.pdf
74
Annex 5.2: Summary of the EU Observatory work supporting
the initiative
The Observatory for the Online Platform Economy supported by its expert group and the
support study has produced a number of analytical papers and reports that confirm the
international consensus on the need for new rules for digital platforms in order to
complement the competition law enforcement.
1. THE REPORTS BY THE EXPERT GROUP FOR THE OBSERVATORY ON THE ONLINE
PLATFORM ECONOMY
Firstly, the expert group for the Observatory on the Online Platform Economy has
produced 3 preliminary reports published for feedback on 9 July:
Measurement of the Online Platform Economy
Differentiated treatment
Data in the Online Platform Economy
Market Power and Transparency Issues in Open Display Advertising – a case study
(to be published in December)
Market Power (to be published in December)
This feedback will form part of the Final Report to be published by the end of 2020. It
will also include two further reports: on the transparency in the online advertising and
market power.
1.1. REPORT ON MEASUREMENT AND ECONOMIC INDICATORS
The Report on Measurement and Economic Indicators identified the indicators that could
be used to monitor the online platform economy for the purposes of policy making and
further regulation, (e.g. in order to identify platforms in scope of the regulation). The
report breaks down the problem of observation into three broad areas that cut across
policy domains.
The first is economic significance of platforms in the context of the broader economy.
The report identifies three measurement indicators: volume of trade mediated by
platforms; platform size and importance; and data on data. It offers suggestions as
regards new, more conceptual approaches to measuring platform size and ‘data on data’.
The second area of observation is the platforms’ power over their users. The report
identifies three indicators for measurement: business dependence on platforms;
platform’s share of consumer attention; and acquisitions as a competitive strategy.
Regarding acquisitions as a competitive strategy, including so-called ‘killer acquisitions’
designed to pre-empt future competition, the report suggests automated market
75
intelligence data feeds and recommends to consider new obligations on major platforms
to report M&A activities to the European Commission, for ex-post research and
monitoring purposes.
The third area of observation covered in the Measurement report relates to the alleged
effects of platforms’ power: how to measure platform volatility (e.g. continuous
changes in terms and conditions or algorithms); platform transparency; and other
potentially problematic and thus policy-relevant practices. The report stresses that
platform transparency would benefit from further conceptual research to better
understand the trade-offs between a public’s need for transparency of powerful actors vs.
the legitimate private business interests of a platform company.
As for other potentially problematic practices, the report recommends that the data
generated by the internal complaint-handling procedures, as mandated by the P2B
Regulation, should be analysed with a view to identifying and assessing any need for
further public policy intervention.
1.2. REPORT ON DIFFERENTIATED TREATMENT
The Report on differentiated treatment focuses on differentiated treatment as a potential
source of ‘unfairness’ in the relationship between platforms and their business users in
the online platform economy. It distinguishes between practices of self-favouring,
whereby a platform gives preferential treatment to its own vertically integrated activities
over those of rivals, and more general practices of differentiated treatment where one or
more business users are treated more favourably than others.
The report provides guidance on how to assess the impact of differentiated treatment by
online platforms from a technical, economic and legal perspective. It also identifies areas
requiring further scrutiny because of the particularly problematic nature of certain
practices implemented by platforms. Given that instances of differentiated treatment are
not necessarily limited to cases where a platform holds a ‘dominant position’ within the
meaning of EU competition law, the report looks beyond the application and
interpretation of competition law.
The report stresses that for assessing what practices can be considered ‘unfair’, more
transparency and oversight are needed into the practices in which platforms engage. In
this respect, the Platform-to-Business Regulation97 provides a good starting point to
facilitate the more concrete identification of forms of differentiated treatment that can be
considered unfair and might, as such, need to be regulated.
The report concludes that it is desirable to keep monitoring the sector closely and
conduct focused studies to scrutinise the impact of problematic practices.
97
Regulation (EU) 2019/1150 of the European Parliament and of the Council of 20 June 2019 on
promoting fairness and transparency for business users of online intermediation services (‘Platform-to-
Business Regulation’) [2019] OJ L 186/57.
76
1.3. REPORT ON DATA IN THE ONLINE PLATFORM ECOSYSTEM
The Report on Data in the Online platform ecosystem provides a structured overview of
how data is generated, collected and used in the online platform economy. It maps out the
diversity and heterogeneity of data-related practices and expands on what different types
of data require a careful examination in order to better understand their importance for
both the platforms and their users as well as the issues and challenges arising in their
interactions. The report concludes with a range of issues, which deserve, in the view of
the authors, further policy attention and analysis in the light of the limited evidence
available and/or the importance and impact they entail.
2. SUPPORT STUDY FOR THE OBSERVATORY
The consortium supporting the work of the Observatory composed of PPMI (lead), Open
Evidence, IW and Rand Europe98 have produced the following analytical papers (AP):
AP1: Differentiated treatment (IW)
AP2: Platform data access and secondary data sources (PPMI)
AP3: Transparency in the business-to business commercial relations in the online
advertising market (Open Evidence)
AP4: Significant Market Status (RAND)
AP5: Business user and third-party access to digital platform data (PPMI)
AP6: Structure of the online platform economy post COVID-19 outbreak (Open
Evidence)
AP7: The main obstacles and opportunities for multihoming (PPMI)
AP8: Developments concerning B2B platforms and emerging issues (RAND)
1.4. ANALYTICAL PAPER #1: BUSINESS USER ACCESS TO PLATFORM DATA AND
ALTERNATIVE DATA SOURCES
The paper argues that online platforms create value by using data to facilitate interactions
(for example, commercial transactions) between users. This means that data is at the core
of the platforms’ business model and they use it to provide and improve their services.
Data in the possession of platforms allows them to understand the preferences of
customers and their reactions to market signals, including changes in prices and product
characteristics. This puts online platforms in a unique position as they are able to observe
98
Support study to the Observatory for the Online Platform Economy, SMART 2018/0034.
77
the functioning of the market in real time99. Data is thus a key source of market power. In
other words, platforms’ decisions on what data to share, with whom, and under which
conditions have far-reaching consequences to all the participants in the market.
Business users: data needs and access to data
In the paper the contractor identified three general dimensions of data relevant to
platform business users:
the type of data by object (customers, businesses, user behaviour, markets,
transactions, etc.);
whether the data is about an individual business which receives it, or other
businesses on the platform (competition)/ whole marketplace.
by the level of data processing and its value, from raw datasets to insights
guiding business decision-making.
The paper shows that the kinds of data provided or not provided by the platforms
(Amazon, eBay, Google Play and Booking.com) are rather similar. Access to data as well
as advanced analytics are granted to the extent that it could generate more income for the
platform as well as the business users. In such a case the key question is whether the
business users can take full advantage of the data provided to them. Further, a significant
share of businesses signal that they are experiencing data access problems. This was very
visible in interviews where businesses, especially the bigger or stronger ones, felt
strongly about the data access. Their key concern was getting access to data so that they
could use it to innovate and keep up with the competition. A recurring issue was also the
power of the vertically integrated platforms and especially the extent to which such
platforms may use data to develop their own competing products.
The paper explored firstly, the findings concerning taking advantage of the available
data and, secondly, the evidence concerning data that is not shared with the business
users.
The research showed that a significant share of business users express dissatisfaction
with regard to the level of data access provided to them by online platforms. The
business user survey showed that access to data possessed by online platforms is of
concern to around a third of surveyed business users who reported that they cannot
access at least some data that is essential to their business. Generally, although the
platforms collect and analyse loads of data, only a fraction of this is provided to other
players. The platforms do not share the raw big data on day-to-day activities, as well as
detailed data on customers and competitors.
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Crémer, J., de Montjoye, Y.-A., & Schweitzer, H. (2019). Competition policy for the digital era.
European Commission.
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The paper identified three groups of concerns that business users express with regard to
data sharing.
The first is related to lack of access to personal data, such as customers’ e-mail address.
Some business users, especially in the hospitality and e-commerce sectors consider such
data of key importance to them so that they could establish a more direct client
relationship. Other personal data collected by platforms, but usually not provided to
business users include, for example: telephone, address, credit-card data. As confirmed
by our desk research and interviews with the platforms themselves, this data is not
provided for a number of reasons. Firstly, this is not considered compatible with the
platform’s business model as business users may use direct communication to bypass
platforms in the future. Secondly, platforms consider that a consistent client relationship
and data protection is part of the client experience. They are wary that direct access to the
clients by business users may result in a surge of unwanted marketing messages (this
argument was not supported by the interviewed business users). Finally, the personal data
protection regulation (including GDPR) puts obligations on platforms in terms of data
sharing and management, including the obligation of getting explicit consent from
consumers to collect and share their data. According to the business user survey,
legislative or regulatory restrictions is indeed acknowledged as the key reason for not
getting access to data.
Secondly, business users need data that help them to stay competitive, innovate and
develop their products and services. Partly this is related to data on, for example, search
keywords, search volumes, consumer behaviour in reaction to different price signals.
Platforms do share such data to a certain extent (e.g. three most important key words),
however some interviewed business users felt that this does not give them sufficient level
of detail. Partly, this is also related to data about competitors and their products and
services. In this case however, both the interviewed platforms as well as business users
expressed understanding that the level of detail is naturally limited as businesses would
not want their individual business performance information to be made available to
others.
The third concern is that platforms are taking advantage of data to promote their
own products that are very similar to those offered by their business users. This is
primarily pertinent to vertically integrated platforms with significant market
power. So, in the business user survey, 58% of respondents reported that the platform
itself offers the same (or very similar) goods or services to those that their businesses
offer on the platform. Among these respondents, 55% argued that online platforms are
favouring their own goods or services vis-à-vis the same (or very similar) goods or
services offered by their businesses. Unique and comprehensive datasets on all the firms
and their consumers operating in the marketplace can give a huge business advantage to
the platform operators. The key ways of favouring include ranking, placement of
advertisement, pricing and other – all of these are enabled by the data collected by
platforms. Some interviewed business users argued that platforms (specifically –
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Amazon) are using data to monitor which goods have the best margins in the market and
then move into offering such goods themselves.
The paper also analysed the role of data companies. The businesses that need more data
than they can get from platforms pursue two broad strategies: (1) collect and analyse data
themselves, from sources available to them; (2) rely on third party providers (data
brokers). Four-fifths of the business user survey respondents (81%) indicated that they
collect some data themselves; the most prevalent data type is identification details of own
customers (57% of respondents collect this data), followed by business performance data
(55%) and analysis of market trends/ developments (55%). Further, a third of the
surveyed companies (33%) reported that they use third-party sources (data brokers).
Most of the interviewees - especially in the e-commerce sector - reported that they use
the services of third-party data and analytics providers.
Companies specialising in data and insights fill important data gaps, especially with
regard to data on competition and actionable business insights. According to PwC
estimations, data companies earned USD 21 billion in 2018100. Some data brokers
specialise to cover specific sectors, such as applications (App Annie, App figures,
Apptopia, Mobile Action, Sensor Tower), e-commerce (Algopix, Jungle Scout, Sellics,
Teikametrics, Terapeak) or hospitality (AirDNA, Beyond Pricing, Uplisting,
Wheelhouse, Skift). Other data brokers, such as Similar Web and Zirra provide data on
multiple sectors.
Data brokers use highly advanced technical methods to extract data, or they buy data
from online and offline sources. A lot of data is scraped from the platforms. Another key
source is crowdsourcing business user account data. Some third-party data providers ask
online sellers to share their marketplace information, and then link the data of thousands
of users to draw market insights. For example, Jungle Scout collects data from a large
number of sellers (over 225,000) who have opted in to share their sales information101.
When merged with the data gathered by scraping the platform’s front-end (e.g., Best
Seller rank on Amazon), this can yield quite precise estimations and extrapolations.
Similarly, if AirDNA users wish to receive performance analytics, they will be asked to
upload their Airbnb host IDs. After doing this, they can see their performance trends,
comparative and financial analysis on all vacation rental listings.
The key value proposition of the data brokers lies in their ability to bring together a
combination of sources as well as superior technical and analytical capacities, innovative
tools and approaches. Data brokers allow their users to learn about their competitors, get
a detailed market overview, obtain actionable insights. According to the analysis
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Gröne, F., Péladeau, P., & Samad, R. A. (2019). Tomorrow’s data heroes. Strategy+business. Retrieved
from https://www.strategy-business.com/article/Tomorrows-Data-Heroes?gko=5f270.
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Rohler, M. (2019). How are Estimated Sales and Revenue Calculated? What are AccuSales? Jungle
Scout Help Center. Retrieved from https://support.junglescout.com/hc/en-us/articles/360008616814-
How-are-Estimated-Sales-and-Revenue-Calculated-What-are-AccuSales-
#:~:targetText=We%20gather%20it%20from%20a,their%20sales%20info%20with%20us.&targetText
=This%20means%20that%20as%20we,analyze%20and%20test%20it%20daily.
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presented in this paper, this is the kind of information that is most in demand by the
business users and/or platforms do not provide to a sufficient extent. Further, business
users themselves do not need to invest into any analytics or IT, but rather buy products
tailored to their needs.
For instance, as explained by several interviewed Amazon sellers, Jungle Scout and other
providers, such as Helium10, AMZScout and Unicorn Smasher, supply them with
comprehensive market insights and competitor overviews. Obviously, these data brokers
provide estimations based on what data they could gather rather than exact information.
Nevertheless, the estimations are said to be ‘spookily accurate’102. Similarly, data
providers for app developers, such as AppAnnie and SensorTower, offer comprehensive
app market data, including performance of specific apps and markets. Interviewed app
developers mentioned that they use the sources together with the app store data
extensively. In the accommodation/ hospitality sector, companies such as AirDNA
provide insights based on data that the OTAs do not share. For example, in late 2015
Airbnb stopped providing the overall real-time reservation data. AirDNA, in turn, uses an
algorithm based on 16 indicators picked up in historical data to determine the reservation
status for each listing. They argue that their algorithm has an error margin of only 5%.
The data companies’ market is very dynamic and fast-paced. This paper identified a
number of issues, illustrating the key challenges and limitations of data brokers. Firstly,
the data companies remain highly dependent on data sharing policies of platforms. For
example, Amazon until recently provided exact and broad match search volume and
product relevance data via one of its APIs. It was feeding several third-party software
providers such as Viral Launch and Helium10 until late 2018, when the platform
removed these metrics from the API. Another platform, Allegro made significant
investment to develop new data products (Allegro Statistics) that are now provided to its
sellers; this is endangering the business model of third-party analytics providers.
Secondly, the data needs of platform business users are often very specific and concern
platforms that they use. Such data cannot be easily scraped or estimated by the third-
party data providers103. It includes information on real-time of activities on the platform
(e.g. X currently has product Y added to the shopping cart), which would allow to
effectively address the customer; transaction-related data about the customers, sales
activities and listings of specific business user.
Thirdly, the huge amounts of data that data brokers collect, store, possibly re-personalise
and disseminate and are of interest from the regulatory perspective, first and foremost
due to privacy concerns. Most individuals or companies are unaware of what information
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Gerber, S. (2018). Want to sell on Amazon? 15 strategies for success. The Next Web (TNV). Retrieved
from https://thenextweb.com/contributors/2018/01/19/want-sell-amazon-15-strategies-success/.
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Graef, I. (2016). EU Competition Law, Data Protection and Online Platforms: Data as Essential
Facility. Kluwer Law International BV.
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data brokers collect on them or even that they collect information at all104. Due to this
asymmetry, the data broker industry has been often characterised as opaque, non-
transparent, arbitrary, biased, unfair and unaccountable105. Interviewees from the data
brokers argued that they are taking actions to make sure they are compliant with data
protection and privacy laws, such as the GDPR. However, other sources show that such
compliance has not always been properly ensured. For example, a few months after the
GDPR came into force, Privacy International filed a complaint against seven data
brokers: Acxiom, Oracle, Criteo, Quantcast, Tapad, Equifax, and Experian 106. The main
argument was their failure to comply with data protection principles (such as acquiring
consent, providing detailed and transparent information for the data subject access
requests) and exploitation of data in unknown ways.
As a final point, the analysis pointed out that some business users are exploring
innovative approaches that would allow them to joint forces and be less dependent on big
platform companies. One example includes cooperative marketplaces, such as
Fairmondo.de, which belongs to its business users and employees. Through a cooperative
structure, the users can share the platform as a resource for mutual benefit and decide on
the rules for data sharing and access.
1.5. ANALYTICAL PAPER #2: DIFFERENTIATED TREATMENT OF BUSINESS USERS BY
ONLINE PLATFORMS
Differentiated treatment of business users is one way in which online platforms can
distort competition. It refers to the application of dissimilar conditions to (or preferencing
of) similar business users, goods or services. Differentiated treatment can affect
competition in two ways. First, if a platform’s differentiated treatment disadvantages
certain business users, it influences competition between business users. Second,
competition can also be influenced by so-called ‘self-preferencing’ on the part of
vertically integrated platforms. Such businesses not only operate the platform but are also
business users of the platform – for instance, they sell their own products via the
marketplace. Vertical integration is desirable for online platforms because it enables
them to develop new revenue streams and exploit opportunities that arise from analysing
data generated by the platform. The inherent danger of vertical integration lies in the
opportunity it provides the platform to abuse its favourable position. Since the platform
directly controls the ecosystem in which it competes alongside independent business
users, it could employ the rules to its own advantage.
104
Christl, W. (2017). How companies use personal data against people. Working paper by Cracked Labs,
Institute for Critical Digital Culture.
105
Christl, W. (2017). How companies use personal data against people. Working paper by Cracked Labs,
Institute for Critical Digital Culture.
106
Privacy International. (2018). Why we’ve filed complaints against companies that most people have
never heard of – and what needs to happen next. Retrieved from
https://privacyinternational.org/advocacy/2434/why-weve-filed-complaints-against-companies-most-
people-have-never-heard-and-what.
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This analytical paper on differentiated treatment demonstrates that differentiated
treatment by online platforms – defined as applying dissimilar conditions to similar
business users – can occur for different reasons. On the one hand, the technical or
regulatory framework can make such platform behaviour necessary. On the other
hand, online platforms can use differentiated treatment to increase their revenues.
This mainly includes platform behaviour that aims at increasing the benefits for the
consumers, e.g. by offering individualised services or ensuring a high quality of the
facilitated transactions. However, differentiated treatment can also aim at increasing
revenue for the platform without benefits for the consumers. In such cases, differentiated
treatment obstructs competition between the business users of online platforms and – in
case of vertically integrated platforms – between business users and the platform itself.
According to the data collected for this paper, vertically integrated platforms seem to
possess a stronger incentive to apply such behaviour than non-integrated platforms.
However, based on the available evidence, differentiated treatment of business users is
not widespread in the EU.
Reasons for the differentiated treatment of business users by online platform can
generally be grouped in two categories:
Regulatory or technical necessities: the legal framework within which the
platform operates, or the specific technical requirements of different business
users (such as specific hardware or software) may give rise to differentiated
treatment. In such cases, differentiated treatment may not constitute
intentionally discriminatory behaviour on the part of the platform, but may
instead be a response to these specific circumstances.
Increasing revenue: a platform may engage in differentiated treatment in an
attempt to increase its revenue via a rise in market share or sales, or by
expanding into other markets, improving its gatekeeping position, lowering its
own costs, increasing the fees paid by business users, as well as offering
loyalty rewards or ‘mainstreaming’, i.e. adjusting content to match the
preferences of the majority of users. These motivations can explain many types
of differentiating behaviour, including: blocking listings or accounts;
manipulating rankings or prices; restricting access to data or installing
technical barriers to business users; and differentiated terms and conditions or
customer support.
Differentiated treatment of app developers
Applications for mobile devices (‘apps’) are developed for a specific operating system
and must be distributed to the users of mobile devices. The distribution of apps is to a
large extent carried out via ‘app stores’. App stores and operating systems can both be
characterised as digital platforms. Apple produces both the hardware and software for its
devices, and hence has a great influence on the distribution of apps for its devices. In
fact, the Apple App Store is the only (and hence dominant) app store for iOS. Every app
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that a consumer wishes to install must first be certified by Apple. Android, in contrast,
has been developed through the cooperation of large manufacturers of mobile devices,
among others. Accordingly, there exist multiple app stores for Android, e.g. independent
app stores and app stores implemented by device manufacturers. Google Play Store,
however, remains the dominant app store. The development of dominant platforms
within the app store market is due to the reinforcing of positive indirect network effects.
The more consumers use an app store, the more attractive it becomes for developers to
distribute their apps through this store, and vice versa. High market shares, and the fact
that the platforms offer their own apps, can make differentiated treatment a serious
problem for individual app developers, as well as distorting competition and harming
innovation.
Since Apple and Google offer their own apps in their app stores, both platforms are
vertically integrated. Self-preferencing, as well as other forms of differentiated treatment,
are therefore possible.
To gain qualitative insights into differentiated treatment for the analytical paper, 23
interviews were conducted. App developers and publishers accounted for 15 of these
interviews107; their respective associations accounted for six. The remaining two
interviews were conducted with Google and Apple, as the largest providers of app stores.
Small app developers in particular acknowledged the opportunities platforms offered
them to distributing their apps to consumers. However, 16 interviewees mentioned
problems with differentiated treatment by platforms. Among these 16 interviewees, 13
were app store businesses users.108 Furthermore, 12 interviewees claimed the platform
favoured its own products or services. Ten of the interviewees that reported cases of
platform self-preferencing were business users and two represented developer’s
associations.109 Generally, app developers in the interviews feared being blocked by the
platform and, hence, losing customers. They also feared that the platform could enter and
dominate their market. Other forms of differentiated treatment mentioned by
interviewees included impeding business users that offer substitutes to the platform’s
own products or services; denying access to data; or the mandatory use of platform
services. Technical barriers, better customer support for large business users, and terms
and conditions that favour the platform were also reported as issues. The interviewees
generally claimed that larger businesses enjoyed greater opportunities to reach out to the
platform in order to have their problems solved.
107
Five of these 15 business users represented businesses with less than 10 employees. Two interviewees
represented a business with between 10 and 49 employees and three from a business with between 50
and 249 employees. Large businesses with more than 249 employees accounted for five interviews.
108
The two interviewed business users that did not experience differentiated treatment spoke for a
company with less than 10 employees and one with between 50 and 249 employees, respectively.
109
Among the business users that experienced self-preferencing were five businesses with more than 249
employees, two with between 50 and 249 employees, two with between 10 and 49 employees and one
with between 1 and 9 employees.
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Differentiated treatment of e-commerce business users
Generally, two types of business models used by online marketplaces can be
distinguished. Platforms can be either vertically integrated or non-vertically integrated.
The former includes a retail arm in addition to the platform. In contrast, non-vertically
integrated online marketplaces are pure platform businesses. While market shares are
difficult to determine, vertically integrated Amazon is the most important online
marketplace in several European countries, as well as the United States.
In the online survey, nearly two-thirds of e-commerce respondents stated that they were
completely or very dependent on online platforms. However, a clear majority of all
respondents 68% strongly agreed or agreed that the online platform which was most
important for their business treated its business users in a fair and unbiased manner. This
is in line with the results for the entire sample (see above). The statement “My business
can easily access the data collected by the platform that is important for my business”,
which focusses on data access as a specific type of differentiated treatment, yields a
similar result. This result does not point to a widespread occurrence of differentiated
treatment. Furthermore, around two-thirds of respondents strongly agreed or agreed that
many other business users on the platform offered products similar to their own. Hence,
competition among business users appears high.
Of those respondents who indicated that they had experienced differentiated treatment by
a platform, the placement of advertising was the type most frequently cited (specified by
around 62% of this group). The second most common type was the ranking of listings.
The pricing of the platform’s services came in third. The interviews conducted with e-
commerce business users confirmed the relevance of differentiated treatment in the form
of manipulated ranking results, as well as a lack of access to data.
Vertical integration of e-commerce platforms can have an influence on differentiated
treatment. Nearly 53% of e-commerce respondents in our sample whose main platform
offered the same or similar products reported self-preferencing by the platform. While
there are limitations to this result given the survey sample, it provides a strong indication
of it in markets with vertically integrated online marketplaces. The e-commerce business
users interviewed did not provide unified views on differentiated treatment of vertically
integrated platforms, however. While some said they had observed self-preferencing,
others stated that they had not.
According to the survey, conflicts sometimes occur between e-commerce platforms and
their business users: 57% of the surveyed e-commerce business users had experienced a
disagreement with the platform they most frequently used at least once. These conflicts
range from disputes over technical problems or a lack of transparency in the platform’s
data policy, to sudden price changes or discrimination through pricing. Many of the
business users affected, namely 47%, had complained to the online platform in order to
resolve the problem. Overall, the survey showed that 87% respondents had the conflicts,
experienced with e-commerce marketplaces, completely resolved. Challenges mentioned
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by the interviewees regarding the redress process generally centred on the standardised
way in which platforms dealt with complaints or requests. Several interviewees
mentioned that their complaints or requests were answered by automated systems instead
of humans, the replies often not capturing the essence of the complaint or request
completely.
1.6. ANALYTICAL PAPER #3: TRANSPARENCY IN THE BUSINESS-TO BUSINESS
COMMERCIAL RELATIONS IN THE ONLINE ADVERTISING MARKET
The paper focused on the perceived lack of transparency and accountability in business-
to-business (B2B) commercial relations in online advertising. Transparency issues have
been observed especially for ad exchanges and ad placements in programmatic
advertising, as well as concerns about the gatekeeping role of large online platforms
towards business users in the market.
The analytical paper analysed the level and means of transparency in the online
advertising value chain, through collection of evidence and facts about various business
models, advertising practices and stakeholders.
It identified three inter-related challenges affecting business to business (B2B)
commercial relations in online advertising:
Significant imbalances of market power in the ad ecosystem, resulting from
the dominance of a few platforms that occupy strategic positions across the ad
value chain and have the ability to act as gatekeepers with business users.
The transparency issues in B2B relations, some of which are linked to the
market power of platforms while others result from the complexity of
programmatic advertising.
The issues of ad fraud, exacerbated by the ad ecosystem opacity.
The paper argued that the distribution of digital ad revenue shows that the online market
is increasingly dominated by a few large online platforms (Google, Facebook) that
occupy strategic positions across the ad value chain and can take advantage of their
vertical integration.
It further points out that Google, Facebook, and to a lesser extent Amazon benefit from a
vast ad inventory on their own websites and operated services, which they can monetise
to generate most of their ad revenues. They have extensive proprietary user data from
their consumer facing services, which they can use to improve targeting but to which
they restrict access. Platforms such as Google and Facebook can also benefit from
network effects and economies of scale from their vertical integration in the ad supply
chain. As argued by the paper, due to these advantages, platforms have the ability to
engage in potentially anti-competitive practices such as self-preferencing, leveraging
of their market power to other markets, and they can act as gatekeepers with the
ability to charge higher fees and set their own terms for access to businesses.
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Secondly, the contractor analysed the transparency of the online advertising
environment. The paper concluded that this environment is characterised by opacity,
partly linked to the practices of a few platforms, and to the complexity of
programmatic advertising. On the one hand within walled gardens, online platforms
can use their economic power to impose their terms and limit the disclosure of
information on the costs, profits and effectiveness of placement of ads. This
undermines the decision making of advertisers and publishers regarding spending and
their ability to refine targeting. Privacy legislation has been considered as an additional
driver to reduce data disclosure to advertisers and publishers. The authors also argue that
the removal of third-party cookies will also affect advertisers’ ability to do audience
targeting and may incentivise them to shift more to walled gardens where first-party
cookies are still available, further decreasing publishers’ revenues. On the other hand on
the open web, the sharing of information depends on the positions and strategies of
players along the supply chain, which results in fragmented information but also in user
data leakage in RTB.
In addition, there is a lack of transparency over the functioning and matching process
of auctions, due to the use of algorithms and potential influence of vertically integrated
platforms. Stakeholders also reported an opacity on the fees charged across the supply
chain due to the number of intermediaries. The lack of transparency on money flows
leads advertisers and publishers to question the efficiency of the online ad supply chain.
The opacity of the ad tech value chain, including the reliance on algorithms and the vast
array of service firms, also makes open programmatic advertising rife with fraud, at the
expense of advertisers.
Proposed solutions
The contractor also suggests possible solutions to address these different issues at policy,
industry and individual level. Potential regulatory responses to address transparency
issues include focused monitoring and enforcement of existing legislation by specific
regulatory units, international cooperation, the development of codes of conduct with the
main online platforms and regulatory reform based on evidence-based recommendations
from the different inquiries and market studies commissioned by regulatory authorities,
that can include requirements for information disclosure and interoperability and
structural remedies.
In addition, several industry initiatives offer solutions for more trustworthy, transparent
and verifiable ad trading. These include standards and practices for ad quality and
measurement, charters or guides, innovative solutions to increase transparency on fees
and bidding data, and programmes on user privacy and consent. They note though that
effectiveness of self-regulatory initiatives depends on their adoption and implementation
across the industry.
Finally, the paper points to the academic literature that provides a range of methods and
models to help advertisers and publishers mitigate programmatic advertising opacity by
enabling them to take more informed decisions and optimise their strategy and revenue.
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Overall conclusion is that no single regulatory, industry or individual measure in
isolation may sufficiently address the various issues identified but that better
implementation of the existing initiatives and a combination of the proposed measures
could be more effective in tackling these issues.
1.7. ANALYTICAL PAPER #4: ONLINE PLATFORMS WITH SIGNIFICANT/STRATEGIC
MARKET STATUS
This analytical paper examined the evidence in relation to better understanding the
various issues, and strengths and weaknesses of emerging approaches to identify online
platforms with significant/strategic market status.
The potential for these platforms to act as barriers to a competitive market, has resulted
in an increasing need for new policy approaches to assess whether online platforms have
significant or strategic market status. A key part of this discussion has focussed on
whether traditional approaches, based around assessing market shares, are adequate.
Increasingly, it has been thought that current policy approaches should be extended or
adapted to consider the dynamic, varied, and constantly changing nature of the online
platform economy ecosystem.
The findings from the research run by the contractor suggests that emerging approaches
to assessing online platforms with significant/strategic market status could be generally
categorised as follows:
Emerging approaches which draw on the traditional market share-based tests
for application to online platforms; and
Emerging approaches which appear to be devised specifically for online
platforms.
Emerging approaches based on the traditional market share-based tests include:
revenue share; user share; barriers to entry; mark-up index; and network effects.
Emerging approaches devised specifically for online platforms include: gatekeeper
power; leveraging power; information/data exploitation power; prevalence of positive
feedback loops; prevalence of indirect network effects; and the extent to which single-
and multi-homing exists in the market.
The paper argues that the key challenges to the use of emerging approaches based on the
traditional market share-based tests include factors such as: the fact that user share can be
identified in several ways; barriers to entry may be hard to measure; and a zero-price
market poses challenges for assessing market power of online platforms.
Amongst the emerging approaches devised specifically for online platforms, the
contractor examined two approaches in further detail: gatekeeper power and
leveraging power. Available evidence suggests that gatekeeper power - the level of
power a platform can exert on its users through acting as a ‘gatekeeper’ – is a dynamic
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phenomenon. The main challenge with identifying gatekeeper power is likely to be in
effectively establishing where the ‘gates’ are in relation to online platforms.
Additionally, it may not be possible to assess gatekeeper power without considering
it with other emerging approaches. The evidence also highlights leveraging power –
the ability of platforms to establish an advantageous position in a separate or ancillary
market – as potentially important. However, experts suggest that leveraging is a
common business practice and as a result leveraging power may not be a decisive
indicator of market power on its own.
The main strengths of emerging approaches identified in the literature and
suggested by the experts are that they seem to offer a more flexible instrument to
market analysis and provide more dynamic indicators of market power suitable to
the online platform ecosystem. The main challenges related to emerging approaches
include a lack of reliable datasets to use some of the approaches and that due to their
insufficient use in practice, the viability of these approaches is not yet clear. A
comparison of traditional and emerging approaches suggests that traditional approaches
appear to be more reliant on static indicators and stringent market definitions with a
focus on single-sided market transactions. In contrast, emerging approaches may be
more effective at recognising transactions on all sides of the market and thus better
suited to the online platform ecosystem.
At present, the emerging approaches appear to be focussed on economic, regulatory, and
competition aspects of the online platform economy. Experts suggest that the emerging
approaches also need to consider broader social and political impacts of the online
platform ecosystem when identifying whether an online platform has
strategic/significant market status. When the systemic interdependencies within the
online platforms are considered, a single emerging approach is unlikely to be effective in
practice. Using the emerging approaches in conjunction with each other is likely to be
more effective due to the complex, multi-sided interactions of the online platforms.
According to the paper, in order to identify whether an online platform has
significant/strategic market status, policy makers would need to consider how the
emerging approaches can be integrated into existing policy frameworks to adopt an open
and flexible approach.
1.8. ANALYTICAL PAPER #5: BUSINESS USER AND THIRD-PARTY ACCESS TO ONLINE
PLATFORM DATA
This analytical paper investigated the state of the art of data sharing by digital platforms
with third parties. The analysis covered three sectors of the platform economy: e-
commerce, online tourism services and app stores. It was based on a detailed research of
secondary sources, 61 interview and 15 platform-specific case studies that included
Amazon, AliExpress, eBay, Google Play, Apple App Store, Booking.com and others.
Specifically, the paper strived to answer the following questions:
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What data, collected and held by platforms, is important for their business
users and other businesses active in their respective sectors?
The analysis concludes that all data types collected by platforms are or could be
important for business users for re-use. This includes data about transactions concerning
own products and services, own clients/customers, and own business performance. Next,
information concerning the broader market trends is also of key importance. It includes
listings of other businesses, their customers, performance of different businesses in a
specific market. Further, customer characteristics and customer profiles are of interest to
all businesses, for example, behavioural data, such as browsing habits, search terms,
purchasing decisions. The businesses using OTAs and e-commerce platforms underlined
the importance of getting access to customer identification details e.g. for direct
marketing. Finally, many companies, especially the smaller ones, expressed their
preference for data analytics and insights as they do not have sufficient infrastructure and
skills to take advantage of raw data.
Some businesses also use platform data as an input to develop or improve data-based
products or services (upstream process). In particular, the datasets of online platforms are
of interest to two types of companies: app developers and data brokers or
marketplace/app store optimisation companies. All types of data are pertinent to them,
however they have a preference for granular and raw data that could be combined with
other data sources and could be used to train algorithms, develop insights and provide
value to their customers. More specifically, datasets and real-time data feeding into
software and mobile applications can cover various areas and technologies, such as
images for image recognition, audio files for speech recognition, weather or traffic data,
health data, geolocation data and so on.
What kinds of data do platforms provide and what data they refuse to share?
Analysis carried out for this study shows that platforms provide data to their business
users, which is sufficient to process transactions and manage their business. The
businesses receive detailed data about their own listings, prices, sales, transactions and
business performance. Platforms also provide some data about direct customers. Further,
most major platforms share some data about the broader market, including overall market
trends, best-selling products, customer profiles, although the type and granularity of such
information differs from platform to platform. Overall, the major platforms compete for
their business users and thus various metrics and dashboards are part of their value
proposition. These metrics and dashboards are designed to help the business users to
know their customers, monitor their own business performance, and understand the
broader market trends.
However, some data usually is not provided by the platforms, despite demand from their
business users. Firstly, this concerns customer nominal data and contact details
(especially pertinent in e-commerce and for OTAs). Secondly, the granularity of data
concerning the customer profiles is also often considered insufficient by businesses.
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Businesses also demand more data about competing products and businesses on the
platform. They also expressed a need for data about customer behaviour, such as search
keywords, search volumes, buying patterns, responses to pricing signals. The platforms
usually provide such data in a highly aggregated form and draw on it to develop analytics
and insights that are offered or sold to business users. Nevertheless, many business users
argue that such information is not sufficiently granular. Businesses that operate on the
vertically integrated platforms (among online marketplaces, first and foremost, Amazon)
also assume that the platform uses data from its marketplace to gain an unfair advantage
over its own business users.
The analysis also revealed power imbalances among platforms that are reflected in
data sharing arrangements. Google and Facebook have the central position in
online marketing and advertising, to the extent that they are unavoidable trading
partners, including other platforms from the analysed sectors. This puts them in a
position to determine the terms and conditions of data access and data reuse. Whereas
Google and Facebook receive data from platforms concerning their listings, customers
and business users, they do not share detailed data gained through the advertising
activities. Further, some platforms also signalled that data sharing arrangements put them
at risk of being pushed out of the market by Google and Facebook that are developing
their own business verticals in travel and e-commerce.
Finally, data brokers and online optimisation tool providers play an important role in data
markets by offering data which is not accessible directly from the platforms. They
usually pool platform data from multiple sources, including publicly available data,
crowdsourced business user account data, data provided by platforms through APIs and
data scraped from platform websites. The platforms that were analysed in this study
argue that they do not have direct contractual relationship with the data brokers/online
optimisation tool providers and thus are not responsible for quality or accuracy of the
data. Nevertheless, the platforms see value in this market because it is useful for their
business users; however, they may take action if, for example, they see that traffic from
online optimisation tools providers start interfering with platforms’ services. Platform-
specific case studies also revealed several examples when decisions by online platforms
(e.g. changing APIs, development of their own analytical services) undermined the
business model of specific data brokers/ online optimisation tools providers.
Generally, all platforms claim that the only intended recipients for their data for re-use
are their direct business users. Web-scraping is the main way to get access to platform
data for all the other organisations interested in it. This is enabled by the fact that to
generate transactions platforms must make a lot of information available for the
customers on their websites.
What are the incentives and constraints for platforms to share data?
The analysis shows that when taking decisions to share or not to share data, online
platforms must reconcile several competing and potentially conflicting imperatives. On
the one hand, the success of the business users is important because it generates revenues
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for the platform. In this sense, online platforms have a strong incentive to provide access
to data that could help businesses to understand their customers and to improve their
product. On the other hand, online platforms must maintain trust of their clients (business
users and customers of the business users), which means that they should avoid sharing
data that these clients are unwilling to share, for example, personal information, sensitive
business information.
Online platforms have also designed their terms and conditions to comply with the
applicable regulatory frameworks, including P2B regulation, personal data protection,
competition law, regulation forbidding trade in illegal and counterfeit products, and
others. Generally, interviews with platforms revealed that they feel that they operate in an
environment of legal uncertainty, which makes them reluctant to open more data. For
example, they face different data protection regimes globally, as well as diverging
interpretations of GDPR in EU member states. Further, whereas data sharing is usually
considered as a measure to ameliorate power imbalances in the online platform economy,
sharing seller-specific revenue information among sellers can be interpreted as providing
a competitive advice under the national anti-trust law.
Several groups of players operate within the data ecosystem surrounding each online
platform. These include other platforms, large and small businesses, customers of the
business users, data brokers or companies providing online optimisation tools, regulatory
and other public authorities. Sometimes these groups have diverging interests and
competing demands concerning data access. As mentioned earlier, the platforms see
personal data protection as part of their value proposition, however this claim is not
always accepted by some businesses who argue that platforms use data protection as an
excuse for not sharing important data. If platforms decide to open more raw data to
business users, this could benefit large businesses at the expense of the smaller ones,
because the big companies have the necessary infrastructure and know-how to take
advantage of such information.
If a specific dataset is at the core of a platform’s business model, it is unlikely to be
shared. Due to this reason platforms will be reluctant to share datasets that could be used
to undermine their role as leading intermediaries in two-sided markets. Vertically
integrated platforms are not likely to share detailed market-level data, which could help
the emergence of new competitors in their market. Yet these platforms also make internal
decisions on what information from their marketplace/app store can or cannot be shared
with the retail/app development division. Such decisions are of crucial importance to
many businesses that compete with goods and services sold by the platform itself. Next,
when taking decisions on data sharing, platforms consider the global competition. For
example, several platform interviewees pointed out that they detect abusive bots
originating from China, crawling their pages or trying to use their APIs. Platforms see
Chinese marketplaces as serious competitors that are not competing on a level playing
field as they are in the position to disregard many regulations that European companies
must comply with.
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Finally, the lack of technical interoperability between different platforms is also a
constraint impeding data sharing and data portability. Introducing interoperability is
costly, because it requires the development of common standards and revision of back-
end code. From the perspective of platforms, investing into interoperability does not
necessarily provide a clear commercial gain. Interoperability also has its downsides
because it may make the system slower and limit the development of new or innovative
products.
What are the possible solutions to address platform refusals to share data
important to other users?
The paper concludes that there is a clear public interest to encourage more data sharing,
to the extent it could promote competition, offer more choices to businesses and their
customers, foster innovation and help alleviate the market power of big online platforms.
At the same time, the principles of personal data protection, business secrets’ and
intellectual property protection should also be taken into consideration.
Various solutions have been put forward by various stakeholders that could potentially
facilitate data sharing. They include both public-sector led initiatives, as well as market-
based ones, focusing specifically on the incentives and constraints for data sharing
stemming from the analysis. Public sector led solutions include mandated access;
mandated interoperability and data portability; prohibition of certain business
practices (for example, mandatory ‘walls’ prohibiting vertically integrated
platforms from sharing data between their marketplaces and product development /
retail departments); and reversal of the burden of proof (i.e. platforms may be
required to demonstrate that their data practices are beneficial for their users).
Market-based or self-regulatory solutions considered include offering access to data
based on FRAND (Fair, Reasonable, And Non-Discriminatory terms) principles; data
pools or data trusts; as well as company-led incentives for interoperability and data
portability.
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Annex 5.3: International consensus on the need to act
1. SUMMARY
At the international level, a number of countries have already started to discuss how to
best address certain harmful behavior by gatekeepers. The problems they point to and
conclusions they draw are to a big extent similar to the ones that are to be addressed in
this initiative.
In the UK, the Furman Report reflects on the need to regulate platform companies “in
position to exercise market power or a gateway or bottleneck in the digital market, where
they control others’ market access” (defined as companies with ‘strategic market status’).
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It points to persistent dominance of these platforms, exerting significant market power
over their users and not being required to deliver the same level of positive outcomes as
they would if facing normal competitive market conditions. In terms of solutions it
suggests the use of ex-ante tools that should help to prevent negative outcomes before
they occur. They should be based on three key pro-competition functions that can deliver
benefits beyond core competition: (i) binding Digital Platforms Code of Conduct
promoting fair, pro-competitive conduct by platform companies with strategic market
status; (ii) personal data mobility and (iii) data openness. The monitoring and
enforcement of the rules would be assigned to the new regulator - pro-competition digital
markets unit. Its new powers should allow it to impose remedies and to monitor,
investigate and penalise non-compliance. This call is further reinforced in the
Competition and Markets Authority report 111 calling on the UK Government to establish
a new pro-competition regulatory regime with strong and clear ex ante rules for those
firms deemed to have ‘Strategic Market Status’ (SMS), overseen by a Digital Markets
Unit.
In a similar vain, in the US, Stigler Centre Report points to insufficient entry (and
therefore insufficient competition) in digital platforms caused by companies with
‘bottleneck power’ - meaning companies that have incentive and ability to develop and
preserve a single-homing environment. It suggests setting up a new digital regulator -that
the Digital Authority that would have the sole authority to define bottleneck power and
update the definition regularly. The Digital Authority would enforce two sets of rules: (i)
broadly applicable to all platforms, such as data portability, open standards to promote
competition, interoperability and (ii) rules applicable only to companies with
bottleneck power, such as non-discrimination and foreclosure or bundling.
110
Furman report, Unlocking digital competition, Report of the Digital Competition Expert Panel, March
2019.
111
CMA report on Online platforms and digital advertising.
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In Australia, its competition authority (the ACCC) in its Digital Platforms Inquiry
Report112 set out its views on the market power of the two leading digital platforms –
Google and Facebook- considering that both platforms have substantial market power
thanks to their advertising businesses, that are extended well beyond their core owned
and operated platforms. In terms of solutions, the ACCC considers that opening up the
data, or the routes to data, held by the major digital platforms may reduce the barriers to
competition in existing markets and assist competitive innovation in future markets.
Increasing portability of data held by digital platforms may deliver significant benefits to
current and potential future markets, including through innovation and the development
of new service. The ACCC recommends to put in place frameworks that enable adverse
consequences to be addressed and that reduce the likelihood of new issues arising. The
report also proposes the creation of a branch within the ACCC to focus on digital
platforms.
In China, its market regulator, published on November 2020 draft rules aimed at
preventing monopolistic behavior by internet platforms, so as to increase scrutiny on the
country's e-commerce marketplaces and payment services.113 The draft rules would look
to prevent e-commerce practices such as ‘choose one between two’, under which a
marketplace restricts brands from selling on multiple platforms. The draft rules would
also cover differentiate treatment based on big data, payment ability, consumption
preferences, and usage habits.
As demonstrated above, a number of non-EU countries point to the same problems taking
place in the digital markets and come up with similar solutions as the ones advocated by
this initiative. The ex-ante rules targeting platforms with market /bottleneck power and
ensuring fair and contestable digital markets, are perceived as the way to address these
problems. Most of them also envisage setting up a specialised regulator responsible for
monitoring and enforcement of the new rules in the digital markets. However, even if this
initiatives in third countries will be further pursued and will lead to some form of
(national) regulation of gatekeeper platforms in these countries, these regulations will
most likely be tailored to the most salient needs and problems in the respective
jurisdictions passing the regulation, and can therefore not be expected to effectively
address the gatekeeper related problems as they manifest themselves in the EEA.
112
ACCC report, Digital Platforms Inquiry, Final Report, June 2019.
113
http://www.samr.gov.cn/hd/zjdc/202011/t20201109_323234.html.
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2. THE FURMAN REPORT (UK)
The Furman report114 reflects on the need to regulate platform companies with
‘strategic market status’, defined as those “in position to exercise market power or a
gateway or bottleneck in the digital market, where they control others’ market access”.
Problems:
The report points out to the following problems that should be addressed by new ex ante
rules:
- A handful of powerful platform companies dominate a number of digital markets and
this dominance is persistent. The position of the largest firms is getting stronger,
and this strength and their positions are not imminently under threat. This means that
they can exert significant market power over their users and are not required to
deliver the same level of positive outcomes as they would if facing normal
competitive market conditions.
- Lack of contestability: Due to the barriers to entry that exist in established digital
platform markets they cannot generally be considered freely contestable. The
significant amounts of data held by incumbent firms considered the single biggest
barrier to entry in the digital economy.
- Gatekeeper position fostering dependency: The result is that one, or in some cases
two firms in certain digital markets have a high degree of control and influence over
the relationship between buyers and sellers, or over access by advertisers to potential
buyers. As these markets are frequently important routes to market, or gateways for
other firms, such platforms are then able to act as a gatekeeper between
businesses and their prospective customers.
Impact on consumers
According to the report, in terms of impact on consumers, these market dynamics will
lead to business users of platforms accepting worse terms than they would face if
multiple platforms were competing with one another in each market. The consequences
of these terms will ultimately feed through to consumers in the prices they pay, the
quality they receive, and the range of innovative new products and services they are able
to choose from.
Impact on innovation
The Report pointed to the stifling effect of the above practices on invitation. In particular
it noted that to killer acquisitions by big platform companies “at best, absorb innovation
114
Furman report, Unlocking digital competition, Report of the Digital Competition Expert Panel, March
2019.
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to protect themselves from potential competition and, at worst, use acquisitions to kill off
or distort innovation, creating a ‘killzone’ around their positions.”
Who should be in scope
Platform companies with ‘strategic market status’, defined as those in position to
exercise market power or a gateway or bottleneck in the digital market, where they
control others’ market access.
Designation of platform companies with ‘strategic market status
According to the report, it would be up to the regulator (the Digital Markets Unit) to
determine which markets have companies able to hold a strategic market status, where a
high and enduring market share or other factors lead to market power. To do so the
regulator needs to develop a clear test for the characteristics of a company’s market
position above which regulatory powers are appropriate.
Every 3 to 5 years the regulator would conduct a statutory review of both markets
and the companies with strategic market status.
Aspects of market power particularly relevant to platforms and their potential to act as a
bottleneck should also be considered for incorporation: economic dependence, relative
market power and access to markets.
Solutions/Remedies
The report argues that the use of ex-ante monitoring and enforcement of a detailed set of
pro-competition rules should help to prevent negative outcomes before they occur. Pro-
competition policy tools will tackle the factors that lead to winner-takes-most outcomes
and to that position becoming entrenched. Pro-competitive rules and frameworks should
be based on three key pro-competition functions that can deliver benefits beyond core
competition:
1. a binding pro-competitive code of conduct promoting fair, pro-competitive
conduct by platform companies with strategic market status
Digital Platform Code of Conduct should be based around a set of core principles that
would be required for of digital platforms deemed to have strategic market status. For the
business side of platforms with a strategic market status, the principles should ensure that
business users are:
• provided with access to designated platforms on a fair, consistent and transparent basis
• provided with prominence, rankings and reviews on designated platforms on a fair,
consistent, and transparent basis
• not unfairly restricted from, or penalised for, utilising alternative platforms or routes to
market
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2. personal data mobility (giving consumers greater control of their personal
data, e.g. their profile, purchase history or content) and systems with open
standards and
3. data openness
These pro-competition tools will be implemented by a digital markets unit, with
powers to regulate and enforce these functions.
Implementation and Enforcement
The pro-competition digital markets unit is to be responsible for monitoring and
enforcing of the pro-competitive rules and frameworks. Its new powers should allow it to
impose remedies and to monitor, investigate and penalise non-compliance.
To avoid burdens on smaller companies, its enforcement powers should be focused on
companies with ‘strategic market status’.
The unit’s approach should combine participation and consultation (with a wide range of
stakeholders) with the scope for regulatory enforcement, necessary to overcome
incentives against compliance and make its solutions operate effectively and quickly. It
should only intervene where doing so is effective and proportionate to achieve
competitive aims.
The Code should be set up to achieve fast resolutions (in multiples of weeks or months).
This approach would be supported by strong powers to formally request information
from designated platforms within tight deadlines set by law when it suspects a breach of
codes. It would also need power to enforce legally binding decisions and penalties for
contraventions of the code where a participative approach is not effective.
The Digital Markets Unit should also have the powers to implement (ii) personal data
mobility and systems with open standards as well as pursue data openness as a tool to
increase competition.
3. CMA STUDY (UK)
The Competition and Markets Authority (CMA) Report115 on online platforms and digital
advertising focused in particular on whether rival providers of search and social media
services can no longer compete effectively with Google and Facebook because of their
size, and a range of concerns in the digital advertising market, including in particular a
lack of transparency and conflict of interest (self-preferencing).
Problems:
115
CMA report on Online platforms and digital advertising.
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The report pointed to the following problems:
- Conflict of interest
The report points out that the extent of vertical integration by Google and Facebook that
has taken place in the open display market raises numerous concerns as it may give result
in the conflicts of interest and allow companies with market power at one stage of the
value chain to use it to undermine competition at other stages. There are concerns
whether Google can use its market power in inventory and data to advantage its DSP
services and use its market power as an ad server to favour its SSP.
The extensive amount of data available to Google and Facebook provide these platforms
with a competitive advantage and assist with entry into related markets. After entering
the market, the role of Google or Facebook as a host or gateway then enables these
platforms to advantage their own related businesses. Google and Facebook have the
ability and incentive to favour a business with which they have an existing relationship
(and through which additional revenue may be generated), such as websites that are
members of their display or audience network or use their ad tech services. For example,
when operating on behalf of the publisher, Google may have an incentive to favour bids
coming through its own advertiser-side intermediaries, rather than those that are best for
the publisher. When operating on the buy-side, it might have an incentive to channel
advertiser’s spend to its publisher clients, rather than to the publishers that are best for
the advertiser. Given the substantial market power of each of Google and Facebook, their
presence in a significant number of related markets and the opacity of their key
algorithms, there is significant potential for self-preferencing by Google and Facebook to
substantially lessen competition.
- Lack of transparency and asymmetric information
The findings of the report identify a series of issues relating to lack of transparency
and the data advantages of the large platforms which could limit competition in digital
advertising:
the large platforms’ processes for auctioning inventory are not transparent and
there is limited ability to independently verify the effectiveness of advertising
because of lack of access to data; and
the data advantages of the large platforms in targeting advertising mean they can
monetise their content much more effectively than other platforms/publishers,
increasing their market power.
The lack of transparency exists mainly in the open display market where publishers and
advertisers rely on intermediaries to manage the process of real-time bidding and ad
serving. The CMA report points out that they cannot observe the actions of the
intermediaries directly and do not see how the fees are charged along the supply chain.
Hence, it undermines their ability to make optimal choices concerning buying and selling
their inventory.
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CMA believes that extensive data that is collected in the sector could address some of
these concerns, but this data is held by a few parties, which leads to concerns on the
asymmetric information. The report recalls the views of advertisers and publishers that
Google and Facebook enjoy significant competitive advantages in both measuring
effectiveness and targeting because of their extensive access to user data. Google offers
in-depth targeting options, driven by its unique and vast sources of data while Facebook
has the advantage of providing the ability to target specific audiences based on
demographic characteristics, interests and location. However, the two platforms do not
allow independent verification of their inventory.
Given the lack of transparency over fees and bids through the intermediation chain, there
might be a legitimate concerns about any operator having positions on both the buy and
sell side of the market, whether or not that operator is in fact acting in its clients’ best
interests.
Solutions:
In terms of potential interventions it supports ex- ante regulatory regime to regulate the
activities of online platforms funded by digital advertising and recommends a number of
solutions. It also reflects on the need to launch market investigation on the open display
advertising market, with focus on the conflict of interest Google faces at several parts of
its vertically integrated chain of intermediaries.
The final report recommends that the UK Government establishes a new pro-competition
regulatory regime with strong and clear ex ante rules for those firms deemed to have
‘Strategic Market Status’ (SMS), overseen by a Digital Markets Unit. CMA is now
leading a Digital Markets Taskforce to consider the design and implementation of the
procompetitive framework for digital markets.
The CMA’s Digital Markets Taskforce is currently considering the test which might be
used to identify which firms may have SMS and therefore would be subject to
additional rules. A variety of factors could indicate that a firm has a strategic position
including:
- evidence of the ability of the firm to leverage one market position into a variety of other
markets
- the firm’s size and scale; or
- its position as an access point to customers for businesses across a diverse range of
markets.
It is when a firm has obtained such a position that the effects of its market power are
likely to be particularly significant and existing tools are unlikely to be adequate in
addressing this market power.
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The new regime proposed in the market study would be comprised of two sets of
tools:
The first, an enforceable code of conduct to mitigate the effects of the market
power of SMS firms by governing their behaviour.
The second, a range of ‘pro-competitive interventions’ to tackle the sources of
market power and promote competition.
The types of remedies that the market study outlines include data-related remedies,
consumer choice and default remedies, and separation remedies.
4. THE STIGLER CENTER REPORT (US)
I. Problem definition
According to the report the general harm identified is insufficient entry (and therefore
insufficient competition) in digital platforms.
Increased concentration levels, market power, network effects, and control over data and
analytics have in many digital markets tipped the market in favour of the incumbents.
Many digital markets feature large barriers to entry. Once the incumbent is established,
entry into digital platform businesses is very difficult. The winner often has a large cost
advantage from its scale of operations and a large benefit advantage from the scale of its
data.
The role of data in digital sectors is particularly critical. The new entrant starved of data
relative to a tech giant, is at a significant competitive disadvantage.
Problems arising in the digital markets:
Harms to investment and innovation
By excluding competitors, dominant firms do not need to innovate as hard as they
otherwise would be required to keep their customers. Likewise, when platforms do not
face competition, they will be able to reduce quality, for example, by decreasing privacy
protections, without losing customers or revenue.
Harms to entry, including disintermediation
There is growing evidence that conglomerate digital platforms are in an advantaged
position to stop or block entry by more focused rivals when compared to traditional
businesses. A platform that has total control of demand can steer customers to content
and complements it owns rather than to those provided by independent firms that might
challenge its market power.
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Platforms have bluntly moved to prevent disintermediation and have engaged in
foreclosure to block potential rivals. For example, Facebook acted to suppress the growth
video-capture-and-sharing app Vine when Vine attempted to link its users to their
Facebook friends.
II. Who should be in scope
Companies with ‘bottleneck power’ - meaning companies that have incentive and
ability to develop and preserve a single-homing environment.
The Digital Authority should have the sole authority to define bottleneck power and
should update the definition regularly or on an ‘as needed’ basis.
Stigler report refers here to Furman report to explain the meaning of bottleneck power:
[O]ne, or in some cases two firms in certain digital markets have a high degree of control
and influence over the relationship between buyers and sellers, or over access by
advertisers to potential buyers. As these markets are frequently important routes to
market, or gateways for other firms, such bottlenecks are then able to act as a gatekeeper
between businesses and their prospective customers.
The finding of bottleneck power will employ consideration of the forces that tend to
impede entry and lead to foreclosure. The Furman Report similarly explains that this
single-homing foreclosure tends to happen when users experience high switching costs,
such as loss of valued personal data or reputational indicators at the point of switching;
contract terms that deter switching; technical barriers to switching, such as complex
switching processes or a lack of interoperability between the old service and the new or
second service; tying services, which can be by contract or technical; and the inertia of
defaults.
III. Solutions/remedies
The reports proposes the following solutions:
Improved antitrust enforcement:
1) Reform of antitrust law to adequately deliver competition to consumers
2) The establishment of a specialist competition court to hear all private and
public antitrust cases
Regulatory measures:
3) A specialist regulator – the Digital Authority and
4) new broadly applicable rules such as:
a. data portability
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b. open standards to promote competition (in particular in micro-
payments and digital identities)
c. interoperability
5) new rules applicable to companies with bottleneck power:
a. mergers - DA could be given merger review authority over all
transactions involving companies with bottleneck power
b. non-discrimination and foreclosure
as discrimination is an important tool in a foreclosure strategy by a digital bottleneck
market power
Platform strategies to prevent multi-homing are an important category for DA to include
in its analysis of foreclosure. The DA could promulgate regulations prohibiting the
foreclosure of a competing content provider on a platform that is vertically
integrated.
c. bundling
A digital platform with bottleneck power may have a contract with complementors (e.g.,
retailers on an ecommerce platform) that bundles together access to their transaction data
along with logistics services. This could have harmful anticompetitive effects. The
business may also compete against those sellers on its e-commerce site, using the
retailer’s data to learn about which products are selling well and expropriate the ideas
and strategies of the seller.
The DA could establish regulations that prohibit anticompetitive bundling by firms
with bottleneck power. Such a firm would be required to demonstrate that its bundle
was on balance procompetitive if foreclosure was alleged. The DA could require
unbundling and an offer to business customers of a choice of contracts in the case of
anticompetitive bundling. The DA would need to enforce such contracts.
DA- Enforced Remedies for Antitrust violations:
When a company has been found liable for violating the antitrust laws, the regulator, in
conjunction with the antitrust authority, could apply the following remedies in order to
restore competition:
- data sharing,
- full protocol interoperability,
- non-discrimination requirements, and
- the unbundling of content from a platform.
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5. THE AUSTRALIAN COMPETITION AND CONSUMER COMMISSION (ACCC):
DIGITAL PLATFORMS INQUIRY
The ACCC’s Inquiry focussed on the three categories of digital platforms: online search
engines, social media platforms and other digital content aggregation platforms. A large
part of the Report focuses on Google and Facebook, reflecting their influence, size and
significance as well as the fact that Google and Facebook are the two largest digital
platforms in Australia. The Report focuses on the impact of the digital platforms on
competition in the advertising and media markets and on advertisers, media content
creators and consumers.
Chapter 2 of the Report sets out the ACCC’s views on the market power of the two
leading digital platforms, Google and Facebook, with a focus on the markets most
relevant to the Inquiry.
Problem:
The report considers that both Google and Facebook have substantial market power
thanks to their advertising businesses, that are extended well beyond their core owned
and operated platforms.
Google116 has substantial market power in the supply of general search services in
Australia (95% of market) and in performing search advertising revenues in Australia
(96%). It enjoys advantages of scope in accumulating data from consumers using its wide
range of services (Google Search, Google Maps, YouTube, Gmail) and the Android OS,
so it is able to track consumers on the more than two million websites that use Google
advertising services. According to the report, Google also benefits from its position as
the default search engine on both the Chrome browser (owned by Google), and the
Safari browser (owned by Apple), which together account for more than 80 per cent of
the Australian market for browsers. The substantial amount paid by Google to Apple
for default status on Safari (estimated at approximately US$12 billion in 2019)
reflects the value of this default status. Google Chrome is pre-installed on nearly all
Android devices.
Due to the market dynamic – strategic acquisitions – Google has obtained further
advantages of scope and reduced potential competition and his position on Australian
market is very unlikely to change in the middle time. Report also recognises Google’s
importance to news media businesses, which is an unavoidable trading partner, and
presumes significant loss of revenue if Google users could no longer click on links to
116
The ACCC has not undertaken a detail assessment of non-dominant markets where Google offers
services (markets for advertising technology services or programmatic display ads, but it recognises
that EC has found Google to be dominant in both mobile operating system and app store markets.
104
their website in search result. The ACCC therefore considers that Google has also
significant bargaining power in its dealings with these media businesses.
The report also concludes that Facebook has substantial market power in the supply of
social media services and display advertising services. This is caused by a fact that
Facebook has three time larger audience that Snapchat has (the closest competitor to
Facebook) and similarly as in Google case creates a significant barrier to entry and
expansion of its (possible) competitors. It benefits from the fact that its consumers are
using another platforms owned by Facebook, mostly Instagram, Messenger and
WhatsApp; other numerous strategic acquisitions are likely to even increase Facebook’s
advantage of scope and market power. Regarding display advertising market,
Facebook and Instagram’s combined share of the market is estimated to be 51%
while the other suppliers don’t hold more than 5%. Also similarly to Google, ACCC
considers Facebook to has substantial bargaining power over news media
businesses; Facebook’s strength is in being a vital distribution channel for a number of
media businesses targeting particular demographic groups.
Implications of substantial market power:
The Report concludes that a firm with substantial market power could damage the
competitive process by preventing or deterring rivals, including potential rivals, from
competing on their merits. That is, a firm with substantial market power could maintain
or advance its position by restricting or undermining its rivals’ ability to compete, rather
than by offering a more attractive product.
ACCC also recognises that there is a lack of transparency in the online advertising
markets. In particular, it is unclear how Google and Facebook rank and display
advertisements and the extent to which each platform self preferences their own
platforms or businesses in which they have interests.
Who should be in scope of the rules:
online platform with substantial market power in the [observed] market;
market dynamic lowered by acquisitions of potential competitors due to which
potential of new entry in the market is low.
Rules/procedures to be applied:
ACCC recommends the merger framework in Australia to be updated to make it
clearer so that acquisition of potential competitors and economies of scope
created via control of data sets are taken into consideration in assessing whether
an acquisition has the effect or likely the effect of substantially lessening
competition.
105
Currently the notification of M&A to the ACCC is voluntary in Australia, but
ACCC considers it appropriate that the large digital companies would each
agree to a protocol to notify the ACCC of proposed acquisitions that may
impact competition in Australia.
As regards addressing default bias, ACCC considers that offering Australian
consumers the choice that Google is forced to implement in Europe after the EC
decision117 would have the effect of improving competition in the search
services market and recommends that Google also implement these changes also
in Australia.
As regards the role of data in market power, the ACCC considers that opening
up the data, or the routes to data, held by the major digital platforms may reduce
the barriers to competition in existing markets and assist competitive innovation
in future markets. This could be achieved by requiring leading digital platforms to
share the data with potential rivals.
One potential mechanism is the application of the Consumer Data Right, another
is to require the platforms to provide interoperability with other services.
Incentives for portability, privacy concerns and identification of the extent of data
to be shared have to carefully considered.
Particularly increasing portability of data held by digital platforms may deliver
significant benefits to current and potential future markets, including through
innovation and the development of new service. If data portability or
interoperability would be identified to be beneficial in addressing the issues of
market power and competitive entry or switching, the ACCC could recommend
this to the Government.
The creation of a branch within the ACCC to focus on digital platforms
Proactive investigation, monitoring and enforcement of issues in markets in
which digital platforms operate
Inquiry into the supply of ad tech services and advertising agencies
6. CHINESE DRAFT COMPETITION RULES FOR ONLINE PLATFORMS
China's market regulator on published on 10 November 20220 draft rules aimed at
preventing monopolistic behavior by internet platforms, so as to increase scrutiny on the
117
European Commission, Google Android decision, 18 July 2018; European Commission, Antitrust:
Commission fines Google €4.34 billion for illegal practices regarding Android mobile devices to
strengthen dominance of Google’s search engine, 18 July 2018, accessed 4 June 2019.
106
country's e-commerce marketplaces and payment services. The draft rules would look to
prevent e-commerce practices such as ‘choose one between two’, under which a
marketplace restricts brands from selling on multiple platforms. The draft rules would
also consider whether a transaction treats different customers in different ways based on
big data, payment ability, consumption preferences, and usage habits.
China's State Administration for Market Regulation (SAMR), which issued the draft,
said118 it wanted to prevent platforms from dominating the market or from adopting
methods aimed at blocking fair competition. The definitions it provided for internet
platforms mean the new rules could apply to e-commerce sites, such as Alibaba Group's
Taobao and Tmall marketplaces or JD.com, as well as payment services like Ant Group's
Alipay or Tencent Holding's WeChat Pay.
The draft comes after China's Financial Stability and Development Committee, a cabinet-
level body headed by Vice Premier Liu He, flagged in October 2020 the need to improve
mechanisms to ensure fair competition and called for the strengthening of anti-monopoly
law enforcement.
118
Reuters, 10 November 2020.
107
Annex 5.4: Overview of laws and proposed legislation in
Member States related to the initiative
This annex summarises existing and forthcoming regulation by the Member States
addressing economic power of digital platforms. It then compares those frameworks with
the aim to evidence the already existing and the forthcoming fragmentation as specified
under Article 114 TFEU.
1. NOTION OF FRAGMENTATION
Article 114 (1) TFEU forms the basis to act at EU level where the approximation of
provisions in Member States have as their object the establishment and the functioning of
the internal market. The internal market objective is met where the EU act aims at
abolishing obstacles to the freedoms of the treaty and/or to remedy the disadvantages
resulting from disparities and different conditions of competition.119 This also covers the
prevention of expected obstacles/prevent distortions to competition that may arise from
expected action at MS level. Where reliance on Article 114 (1) TFEU is based on
preventing forthcoming fragmentation it must be demonstrated that it is likely that the
measures proposed at the level of MS will materialise.120 The threshold for fragmentation
to be relevant under Article 114 (2) TFEU regarding the first alternative under Article
114 (1) - i.e., on obstacles to freedoms of the treaty - is met by the sole fact that there are
diverging rues in place or likely to be put in place. There is no minimum quantitative
level to be demonstrated as to the importance of those differences. This is because the
differences in law are indicative for demonstrating obstacles to the freedoms.121
Regarding the second alternative under Article 114 (1) TFEU - i.e. on distortion of
competition - the threshold to be met in order to justify intervention is that the distortion
must be appreciable. The distortion is appreciable where the different national rules lead
to different production costs or, where they affect the freedom of the treaties or systemic
competition.122 Where the conditions of Art. 114 are fulfilled and where other provision
of the TFEU could also possibly cover the objectives of harmonisation, there is no need
to take those other legal basis into consideration.123
119
ECJ, Judgment of the Court of 13 May 1997, C-233/94, para 19; ECJ, Judgment of the Court of 5
October 2000, C-376/98, Federal Republic of Germany v European Parliament and Council of the
European Union, paras 95, 96.
120
ECJ, Judgment of the Court (Grand Chamber) of 10 February 2009, C301/06, Ireland v European
Parliament and Council of the European Union, paras 62-72.
121
ECJ, Judgment of 13 July 1995, C-350/92, paras 33-40.
122
ECJ, Judgment of 5 October 2000, C-376/98, para 106-109;
123
ECJ, Judgment of the Court of 9 October 2001, C-377/98, Kingdom of the Netherlands v European
Parliament and Council of the European Union, para 28; ECJ, Judgment of the Court of 5 October
2000, C-376/98, Federal Republic of Germany v European Parliament and Council of the European
108
2. EXISTING FRAGMENTATION RESULTING FROM DIVERGENCES IN THE LAWS OF
MEMBER STATES ADDRESSING ECONOMIC POWER OF DIGITAL PLATFORMS
Currently, MS already apply divergent frameworks to address the problems arising from
the dependency of businesses on enterprises with relative market power and the resulting
cases of unfairness. Those rules in most Member Stated of a horizontal nature, i.e.,
applicable also outside of digital platforms. For instance, in Belgium, the prohibition of
abuse in dependency relationships was introduced by law of 4 April 2019 defining
dependency by reference to absence of alternatives for the business and the possibility to
impose conditions which could not be obtained under market conditions.124 Bulgaria
introduced regulation against abuse of economic dependence providing that undertakings
with ‘superior bargaining position’ (‘SBP’), are prohibited to act in a way which
contradicts good faith business practices and harms or threatens the legitimate interests of
the weaker contractual party and the consumers.125 In Cyprus, the Competition Act
addresses relationships of economic dependency by qualifying the imposition of unfair
trading conditions, the application of discretionary treatment, or of sudden and
inexcusable interruption of long-term trade relationships as unfair.126 In France,
currently the Commercial Code addresses unfairness in imbalanced B2B relationships.127
In Germany, currently the Competition Act rules out certain abuses of relative market
power to impede smaller competitors in an unfair manner.128 For instance, for enterprises
with superior bargaining power in relation to an SME is prohibited to price below costs
and placed under an internal non-discrimination obligation, i.e., it cannot offer services to
Union, para 88; ECJ, Judgment of the Court of 10 December 2002, C-491/01, British American
Tobacco, paras 62, 75.
124
La loi du 4 avril 2019 modifiant le Code de droit économique en ce qui concerne les abus de
dépendance économique, les clauses abusives et les pratiques du marché déloyales entre entreprise.
Article I.6.4 Code de Droit Economique (CDE, Code of Economic Law) defines dependency ; Article
IV.2/1 CDE describes the types of prohibited abuses. Following Royal Decree amending the Code of
Economic Law regard g abuses of economic dependence published on 12 August 2020, this prohibition
on abuse of economic dependence has entered into force on 22 August 2020.
125
Article 37A Competition Act introduced by the amendment to the Protection of Competition Act of 9
July 2015.
126
Competition Act 2008 and 2014 Part 2, Chapter 6, para 2: Competition Act II 6 (2).
127
The key provision to regulate significant imbalance was introduced in 2008. It provides in Article 442-6
-2 Code de Commerce, that any producer, trader, manufacturer or person recorded in the trade
register who commits the following offences shall be held liable and obliged to make good the damage
caused … 2° Subjecting or seeking to subject a trading partner to obligations that create a significant
imbalance in the rights and obligations of the parties; see also the description of the ‘petit droit de la
concurrence’ on dealing with unfainess in dependency relationships and the cases dealt with by the
DGCRF under Article 442-1 and Article 442-6 -2 Code de Commerce, in Rapport d’information par la
Commission des Affaires Economiques sur les platformes numériques, présenté par MME Valeria
Fauré-Muntian and M. Daniel Fasquelle, a l‘Assembléé Nationale, 24 June 2020, Rapport No 3127, p.
42-44.
128
Article 20 Competition Act.
109
itself at better conditions than to the SMEs, for example delivery.129 Furthermore, Section
58a of the German Payment Services Supervisory Act130 (introduces a right for payment
service providers and e-money issuers to directly access technical infrastructure
providing payment services, such as the near-field communication (NFC) interfaces. This
provision has been described in doctrine as the ‘Lex Apple Pay’ and aims at regulating a
gatekeeper position in the field of payment services.131 In Hungary the Competition Act
prohibits abuse of superior bargaining position, the abuse consisting in fixing purchase or
sales prices unfairly in business relations, including where general contract terms and
conditions are applied; stipulating unjustified advantages by any other means; or forcing
the acceptance of detrimental terms and conditions on the other party. In addition, the
rules prevent undertaking with superior bargaining position from influencing the other
party's business decisions for the purpose of gaining unjustified advantages; creating a
market environment that is unreasonably disadvantageous for the competitors; or
influencing their business decisions for the purpose of gaining unjustified benefits. 132 In
Italy, an asymmetric B2B law results from the extension of the protection under the
unfair commercial practices law to cover also the protection of micro enterprises.133
Those dependency and relative market power rules are divergent as to the threshold for
intervention. For instance, the superior market power is often defined by reference to
superior bargaining power, but not in all cases. Furthermore, the dependency rules also
diverge as to the protected enterprises; those are not in all cases SMEs but also in some
cases microenterprises (Italy). Finally, those rules also differ as to the specific prohibited
abuses.
As has already been set out in the Impact Assessment to the proposal for the P2B
Regulation,134 EU Competition law grants to a certain degree a basis for overcoming
fragmentation, at least regarding the so called wide MFN clauses – i.e., the prohibition to
129
Article 20 (3) of the Competition Act provides that “Undertakings with superior market power in
relation to small and medium-sized competitors may not abuse their market position to impede such
competitors directly or indirectly in an unfair manner. An unfair impediment within the meaning of
sentence 1 exists in particular if an undertaking 1 offers goods or commercial services not just
occasionally below cost price, or 2. demands from small or medium-sized undertakings with which it
competes on the downstream market in the distribution of goods or commercial services a price for the
delivery of such goods and services which is higher than the price it itself offers on such market, unless
there is, in each case, an objective justification."
130
PSSA Gesetz über die Beaufsichtigung von Zahlungsdiensten – ZAG, https://www.gesetze-im-
internet.de/zag_2018/__58a.html.
131
Franck/Linartardos, EPOS collaborative Research Center, discussion paper no 173,
https://www.crctr224.de/en/research-output/discussion-papers/archive/2020/germanys-lex-apple-pay-
payment-service-regulation-overtakes-competition-enforcement-jens-uwe-franck-dimitrios-linardatos.
132
Hungarian Competition Acm Section 21 paragraphs b), c) and i).
133
Decree Law no. 214 /2011 (‘Salva Italia’ Decree) of 22 December 2011 and Decree law no. 1/2012
(‘Cresci Italia’ Decree) 24 January 2012.
134
Impact assessment - Proposal for a Regulation on promoting fairness and transparency for business
users of online intermediation services, COM(2018) 238 final –Part I/2, Chapter 1/2 2.1.1.6 Most-
favoured nation (MFN) clauses.
110
sell at lower prices on other distribution channels. Those wide parity clauses were
removed in a large part of Member States. However, the usage of so called narrow MFN
clauses - i.e. the offering of better conditions via the sales channel of the hotel if
compared to the conditions it offers on the platform - is still common and currently
subject to monitoring by the competition authorities. However, in certain Member States
also narrow MFN clauses were banned via legislative action. This is the case in
135 136 137
France , Austria , Italy and Belgium138. The laws of those MS prohibit all most
favoured nation (MFN) clauses thereby allowing hotels to grant any discount or pricing
advantages to their customers via other sales channels and via their own channel. In
addition, France also prescribes that the room prices shall be specified in a ‘mandate
contract’. The national legislations in place bans narrow parity clauses beyond the level
of harmonisation achieved under competition law. Consequently, costs of providing the
service differ among Member States, either on the side of the platform or the side of the
hotels.
In conclusion, the current rules in place already create a certain degree of distortion of
competition between Member States insofar as the rules on tackling unfairness in
dependency relationships diverge as to the preconditions to intervene and as to the depth
of intervention. Regarding MFNs a dual type of fragmentation exists: on the one hand an
obvious ‘first level fragmentation’ results from the fact that some MS have legislative
bans in place and some MS do not. On the other hand there is also fragmentation
observable due to differences in the MFN-legislations in place.
3. FORTHCOMING FRAGMENTATION LIKELY TO EMERGE DUE TO INITIATIVES AT
MS’S LEVEL AIMING AT REDRESSING UNBALANCED SITUATIONS OF BUSINESSES IN
RELATION TO DIGITAL GATEKEEPER
The divergences in regulation of economic power are likely to deepen due to the current
initiatives at MS level to address specifically imbalanced relationships between digital
135
Article L311-5-1 of the Tourisme Law (Code du Tourisme) as modified by the Law Macron provides
that an hotel operator maintains his freedom to agree with the client any rebate of tariff advantage of
any kind while any clause stipulating otherwise must be considered as unwritten and is void. The « LOI
n° 2015-990 du 6 août 2015 pour la croissance, l'activité et l'égalité des chances économiques » (so
called ‘Loi Macron’)
136
The ban of narrow MFN clauses was introduced by a modification to the Unfair Commercial Practices
Law by adding those clauses to the blacklisted practes-Z32, modification to the UWG, östBGBl I
2016/99, for a complete picture of situation in Austria on MFN see Chapter 5.1 of the publication on
MFN’s in in Österreichische Zeitschrift für Kartellrecht 13, 127–140)
137
In Italy, all parity clauses are banned by the Competition Act,, Legge annuale per il mercato e la
concorrenza, adopted on 2 August 2017 prohibit any MFN clauses in agreements between OTAs and
hotel operators (i.e. wide and narrow MFN clauses, and regardless of the size of the OTA).
138
In Belgium, since August 2018 wide and narrow MFN clauses are banned by the law on freedom of
hotels to set prices in their relationship with reservation platforms- Loi du 30 Juillet 2018 relative à la
liberté tarifaire des exploitant d’hebergements touristiques dans les contrats conclus avec les operateurs
des platformes de reservation en ligne, Moniteur Belge (M.B.) 10 Aout 2018.
111
platform and their business users. In a series of Member States legislative projects are
under discussion and/or have been proposed within the legislative process.
In Germany, new rules, are likely to be imposed on undertakings with paramount
significance for competition across markets. The proposed rules cover
prohibitions/obligations in relation to discrimination, leverage, usage of data, portability,
interoperability and information on quality and performance. The governmental draft bill
for the 10th amendment to the Competition Act (GWB-Digitalisierungsgesetz) of 9
September 2020139 contains profound changes to the Competition Act and introduce a set
of rules specifically applicable to undertakings active to a significant extent on multi-
sided markets or with networks. In order to extend the existing notion of abuse and to
partly prevent competition problems on digital markets the ministerial draft bill contains
two proposals: Firstly the proposed § 19a GWB introduces new forms of abuses for
undertakings with paramount significance; and secondly the proposed § 20(3a) GWB
makes it abusive for a company with superior market power to prevent the creation of
network effects to the benefits of competitor.
Pursuant to §19a of the draft bill, the Competition Authority (Bundeskartellamt, BKartA,
herein after: “NCA”) would acquire the powers to issue a decision stating such status of a
company. The criteria for paramount significance across markets are dominance in one or
several markets, financial strength and access to other resources, vertical integration and
activities in related markets, access to data relevant for competition, its importance for
other companies in order to access sales and supply markets and its impact on their
business activity. In the explanatory part to the governmental bill it is indicated “that the
determination of a paramount significance for competition across markets can only be
made for a few companies and the rule will therefore have a narrowly limited circle of
addressees.”140
As to the imposition of obligations, the draft bill §19a (2) GWB provides that the NCA
can impose specific prohibitions on digital platforms found to have paramount
significance unless the behaviour is shown to be objectively justified, while the burden of
proof relies with the platform. The NCA may, for instance, impose (1) a non-
discrimination obligation, (2) a prohibition of exclusionary conduct in adjacent
competitive markets, (3) a prohibition to use data collected in the dominated or other
markets for the purpose of creation of market entry barriers or other exclusionary conduct
and the imposition of conditions allowing for such a use, (4) a prohibition to impede
interoperability of portability, (5) a prohibition to insufficiently inform users about
quality and success of their services or obstruct their the possibilities of assessment of
139
Gesetzesentwurf der Bundesregierung, Entwurf eines Gesetzes zur Änderung des Gesetzes gegen
Wettbewerbsbeschränkungen für ein fokussiertes, proaktives und digitales Wettbewerbsrecht 4.0 und
anderer wettbewerbsrechtlicher Bestimmungen (GWB-Digitalisierungsgesetz).
140
Governmental draft bill for the 10th amendment to the Competition Act of 9 September 2020
Explanatory part, p. 84.
112
their performance by other means. Generally speaking, the new § 19a aims at preventing
digital platforms to use their market position and the economic power in certain markets
strategically to restrict competition in other markets. This is intended to address problems
that may arise when certain companies establish anti-competitive structures, for example
in new markets, without these companies necessarily being already dominant in all these
markets.141
The second set of key provisions, § 20 (1) (2) (3a) GWB, are part of the framework
abuses of relative market power to impede smaller competitors in an unfair manner under
§ 20 GWB. While currently only small and medium sized companies may benefit from
the prohibitions in § 20, the draft proposes to remove the SME-condition, thereby
extending the protection to all companies independent of their size. This is based on the
findings that also large companies may now encounter situations of imbalanced
bargaining power vis-à-vis gatekeeper platforms.142 A further novelty would be that the
source of superior relative market power could also result from intermediation power.
Finally, where competitors of companies with relative or superior market power are
prevented by the gatekeeper from achieving economies of scale themselves, these
practices are to be pursued as unfair impediments. This new prohibition under § 20 (3a)
aims to prevent tipping.143
In Germany, those proposed amendments of the Competition Act are likely to be
adopted. It is currently discussed in Parliament and the Federal Council (Bundesrat).144.
In France, a report has been submitted to the Parliament proposing to set the criteria to
define platforms with structuring power (‘platformes structurantes’), with a view of the
establishment of a list covering those platforms and imposing on those platforms ex ante
rules on transparency on algorithm for the purpose of audit, interoperability and
portability, access to data with an essential facility feature, device neutrality for access to
apps and a prohibition of self-preferencing.13
Although in France, a legislative proposal has not yet been tabled it seems likely that
this will be the case in the near future. The political will to proceed in this direction is
evidenced by the facts that
141
Governmental draft bill for the 10th amendment to the Competition Act of 9 September 2020
Explanatory part, p. 83.
142
Governmental draft bill for the 10th amendment to the Competition Act of 9 September 2020,
Explanatory part, p. 89
143
Governmental draft bill for the 10th amendment to the Competition Act of 9 September 2020
Explanatory part, p. 94.
144
The governmental draft of 9 September 2020 is currently discussed in the German Parliament
(Deutscher Bundestag Drucksache 19/23492 19. Wahlperiode 19.10.2020,
https://dip21.bundestag.de/dip21/btd/19/234/1923492.pdf) and in the German Council of the regions
Bundesrat, Drucksache 568/20 of 6 November 2020,
https://www.bundesrat.de/SharedDocs/TO/995/erl/32.pdf?__blob=publicationFile&v=1).
113
- the French Ministry for the Economy and Finance has been calling 145 for
asymmetric regulation at EU level allowing for targeted and proportionate
rules and obligations to complement competition law.
o According to the Ministry asymmetric regulation of structuring platforms
should be enforced on a case-by-case basis, when competitive problems
related to a platform appear to be structural and lasting, therefore
requiring continuous intervention. Possible remedies could include
obligations on data mobility and data portability to help reducing
switching costs from one platform to another. The ultimate goal should be
access to data potentially constituting barriers to entry (example:
obligation to develop technical standards that facilitate interoperability of
services and migration options for users).
o Designation of the most structuring platforms, to whom the new
regulatory framework should apply, should be based on a set of economic
characteristics and conditions that justify regulation. Mechanism to
identify companies and define obligations need to be sufficiently agile to
react to the rapid development of tech companies and their practices.
o As regards oversight and enforcement, a dedicated entity at the European
level, to be coordinated with the Commission’s existing series, could be
created to implement this regulatory framework and establish supervision
of structuring platforms.
- The French competition authority146 argues there is a need for a solution to
address the behaviour of structuring platform in markets where they are not
dominant. They call for a new legal regime for ‘quasi-dominant’ operators to
impose on them enforceable obligations in terms of interoperability, non-
discrimination and access to data. Relevant competition authority could thus, on a
case-by-case basis, either accept commitments and make them mandatory, or
order the company to modify its behaviour in response to the identified
competition concern.
- As regards ‘killer acquisitions’, the competition authority report proposes the
introduction of mandatory information requirements for every merger carried out
by a structuring platform. The Autorité further proposes to assess whether
substantive merger control rules should be adapted to digital challenges,
especially in terms of potential competition, conglomerate effects, the relevant
146
Autorité de la concurrence: Contribution of the Autorité de la concurrence to the debate on competition
policy and digital challenges (2020).
114
time scale of the analysis, and the impact of data and the creation of large user
communities.
In Italy, the Competition Authority (AGCM), the Data Protection Authority (DPA) and
the National Regulatory Authority AGCOM have issued a report on policy
recommendations147:
- the data-driven approach in the analysis of the platform economy, and the
analysis of data gathering, management and profiling from a multi-purpose angle
encompassing consumer protection, privacy and competition objectives.
- IT authorities stresses the risk of competitive barriers in existing and adjacent but
also possibly completely new markets due to network effects and economies of
scale/scope in data gathering, as well as in particular zero-pricing policies.
- They also stress the importance, but also limits of privacy rules to achieve an
optimal competitive amount of data protection granted by platforms (due to high
information asymmetries between consumers/individuals and platforms, costs in
switching and porting).
- They indicate privacy and consumer protection breaches, including in particular
lack of transparency on purpose of data gathering, as well as conglomerate effects
due to extent of data sources and analysis particularly relevant also for the
analysis of antitrust breaches.
In the Netherlands, the Dutch government148 is calling for ex ante intervention in
addition to competition enforcement in order to prevent anti-competitive behaviour by
dominant companies acting as gatekeeper to the relevant online ecosystem (to prevent
that ex post enforcement comes too late to keep markets competitive and contestable). By
adding an extra tool to Regulation 1/2003, both at EU and national levels respectively,
the new instrument will preserve the single market and national enforcement (to reflect
heterogeneity of platforms/markets). Platforms in scope are platforms with gatekeeper
role/bottleneck power, not necessarily dominant under competition rules but
presenting risk of permanent dominance in the future due to ecosystem control
(identifying factors: network effects, data collection, scale and scope effects, platform-of-
platforms/ecosystems). As regards remedies, they propose SMP-type remedies to keep
them targeted, such as platform access, data portability/sharing, non-discriminatory
ranking; by adding an extra tool to Regulation 1/2003; both at EU and national levels to
respectively preserve the single market and national enforcement (to reflect heterogeneity
of platforms/markets). They call for the notification thresholds to be amended to take
account of the deal value.
147
https://www.agcm.it/dotcmsdoc/allegati-news/Big_Data_Lineeguida_Raccomandazioni_di_policy.pdf.
148
Dutch position on modernising competition policy in relation to digital platforms.
115
Regarding studies carried out in the Netherlands supportive for action to be taken the
following should are to be mentioned:
- The Dutch competition authority market study on app stores149 points in
particular to bottleneck power over app providers and unilateral conduct of
Google and Apple that can be used to expand their platform-ecosystems. As
specific problems, they point to differentiated treatment, self-preferencing and
lack of transparency.
- The report commissioned by the Dutch Ministry of Economic Affairs and
Climate Policy on digital gatekeepers of October 2019.150
The Belgian, Dutch and Luxembourg competition authorities issued a position paper
on the challenges faced by competition authorities in the digital world. Besides proposals
to modernise the EU Merger Control Regulation and to (re-) introduce case-by-case
guidance letters upon request, the three NCAs advocate for the introduction of an ex-ante
instrument similar to the Dutch government proposal.
- As regards addressees, they argue that the concept and interpretation of
‘dominance’ under Art. 102 TFEU should be closely followed for reasons of legal
certainty and predictability.
- COM Guidelines should be updated, clarifying e.g. the role of data, consumer
behaviour and network effects.
- As regards the nature of remedies, the new tool could be modelled along (1) UK
CMA power to impose remedies following market studies and/or (2) MS’
telecom authorities to impose remedies on companies with significant market
power.
- Only behavioural remedies should be used, e.g. platform access, data portability,
data-sharing and on-discriminatory ranking.
- As regards procedural aspects, they argue for ‘voluntary’ commitments similar to
Art. 9 of Regulation 1/2003, but without intention by the Commission to adopt a
decision and no accusation of any wrongdoing. Rebuttable presumption that
remedies are proportionate.
- With respect to competent authorities, Commission is best-placed to impose
remedies on EU-wide dominant companies. MS should enforce at national level
in cases where company is dominant only in one MS.
149
https://www.acm.nl/sites/default/files/documents/market-study-into-mobile-app-stores.pdf.
150
https://www.government.nl/documents/reports/2019/10/07/digital-gatekeepers.
116
In Romania on 20 June 2020 a draft law on relative bargaining power has been
published for public consultation. The dependency criteria are defined by reference to the
existence of an imbalance of power due to elements such as the considerably larger
dimension or market position, the importance of the commercial relationship for the
dependent enterprise and the difficulty.151
To summarise, the current legislative projects differ as to the threshold for intervention
and as to the concept of scoping the services to be covered. While some project stay
within the competition logic of market power within relevant markets and adjacent
markets, some other proposals go for a larger intervention logic (Germany, France,
relying on cross-market significance). More importantly, the proposed set of obligations
differ with respect to the proposed prohibitions and obligations. For instance, regarding
the proposed ex ante regulation on data, the French proposal is to provide access to data
while the German proposal is only to prohibit cross platform usage. Another example for
likely forthcoming discrepancies of obligations is illustrated by the fact that the French
proposal contains further reaching obligations regarding device neutrality, while the
German proposal does not contain such an obligation.
Against those divergences in the legislative projects it is foreseeable that the existing
divergences between MS described above are most likely to deepen even if not all
proposed concepts are going to be maintained within the legislative processes. First of all
it is very likely that the national rules will be scoped differently as to the types of power
of digital platforms captured and that therefore the list of platforms covered will
divergent. Finally, the legislative projects under way in MS will most likely result in the
imposition of diverging ex ante obligations.
Finally it should be born in mind that although in some Member States (BE, NL, LUX)
there is the political will and the supporting studies to address the issues covered by the
present initiative those Member States prefer to support harmonisation at EU level rather
than to proceed at national level. However, absent Community action Member States are
likely to start a legislative process with the resulting likelihood of further fragmentation.
Different national legislation within the EU may lead to increased fragmentation and
compliance costs for large market players and the business users that rely on them. At the
same time, start-ups and smaller businesses are also negatively impacted by this
situation, as it impedes them from scaling-up and from cross-border expansion, in order
to grow into challengers of established players in the digital sector.
Therefore, action at Community level is covered by Article 114 (1) TFEU also with the
aim to prevent future fragmentation.
151
See description of the public consultation: Romania: Draft law sanctioning the abuse of superior
bargaining position published for public consultation at
https://www.lexology.com/library/detail.aspx?g=5be9d7e5-8e41-4d38-b36c-17f7370e245f.
117
Annex 5.5: Cost of No-Europe
Gatekeepers may be legally established in one Member State and provide their services
to almost the entire EU population. Given the intrinsic cross-border nature of platforms,
measures at national level cannot be effective in addressing issues in the digital space. On
the contrary, the proliferation of national laws would result in a range of different rules,
which puts at risk the scale-up and competition capacity of smaller and start-up online
platforms, thus further cementing gatekeepers’ entrenched position. Lacking any EU-
wide regulation, national solutions are likely to lead to conflicting outcomes where they
are implemented by platforms operating at a pan-European scale. A multiplication of
national rules and a lack of coordination only benefits the largest companies that are able
to deal with 27 different legal systems. At the same time, larger platforms would also be
negatively impacted by a fragmented legal landscape since it undermines legal certainty
and regulatory predictability. For businesses using online platforms it would be even
harder to apply different set of rules within the EU so fragmentation would discourage
them to trade across the EU.
Not addressing issues raised by gatekeepers would thus lead to stronger legal
fragmentation undermining the potential of the Digital Single Market. As further
explained under Section 6 on impacts, the online platform economy contributes heavily
to EU cross-border trade and the EU economy as a whole. The top 50 online platforms
represent 60% of the traffic share152 in Europe reaching revenues for about EUR 276
billion in 2018 and employing almost 600 000 people. In addition, the platform economy
is expected to grow153 and represents an opportunity for EU platforms and businesses
using their services. It is therefore necessary to address obstacles to a properly
functioning online platform economy in order to ensure its positive contribution to the
Digital Single Market. This is well illustrated by the following figures: cross-border e-
commerce in Europe was worth EUR 143 billion in 2019. 59% of this market, i.e. EUR
84 billion, is generated by online marketplaces. Consequently, in an extreme scenario,
where barriers between Member States are established that inhibit all cross-border sales
by marketplaces, 59% of total turnover in 2019 would have been lost. Given that this
figure is projected to increase to 65% in 2025, the lost cross-border sales would increase
over time. Marketplaces with European capital represent 11% of the market.
The size of online cross-border trade in Europe reached EUR 108.75 billion of turnover
in 2019, representing 14.4% annual growth compared to 2018. However, if there is no
EU intervention there is a risk of fragmentation in the Digital Single Market, which
might reverse the positive trends in cross-border online trade.
152
Traffic share is one of the most important proxies of the sector.
153
ICF support study for the IA shows that the size of EU28 online cross-border trade in Europe for 2019
represents a 14.4% increase in comparison to 2018. Also, according to Cross-Border Commerce Europe
2019 study online marketplaces will represent 65% of cross-border online sales in Europe by 2025.
118
Assuming a 10% decrease per year in online cross-border trade, the opportunity cost of
the digital market fragmentation would be EUR 1.76 trillion after 10 years.
119
Annex 5.6: List of antitrust decisions and investigations in core platforms services
1. OVERVIEW
This annex highlights examples of conduct by some of the largest platforms in the core platform services that are being, or have been, investigated in
recent years. These conducts range from anti-competitive use of third party data, through to practices which limit the ability of application and service
providers to advertise or offer subscriptions outside a given platform for a lower price (anti-steering and most favoured nation clauses), through to
practices which artificially raise the profile of the platforms’ own services and applications at the expensive of competitors.
1.1. MISUSE OF THIRD PARTY DATA FOR COMPETITIVE GAIN
Procedure, authority, date Case reference Description
Amazon
European Commission AT.40462 Amazon The Commission has informed Amazon of its preliminary view that very large quantities
Marketplace of non-public seller data are available to employees of Amazon's retail business and flow
Abuse of dominance or directly into the automated systems of that business, which aggregate these data and use
restrictive agreement them to calibrate Amazon's retail offers and strategic business decisions to the detriment
of the other marketplace sellers.
Statement of objections on
10 November 2020 The Commission opened a second antitrust investigation into Amazon's business practices
that might artificially favour its own retail offers and offers of marketplace sellers that use
Amazon's logistics and delivery services (the so-called “fulfilment by Amazon or FBA
sellers”).
120
1.2. OTHER DATA PRACTICES
Procedure, authority, date Case reference Description
Facebook
German NCA Case B6-22/16 The German NCA found that Facebook abused its dominance by applying terms and
conditions, which made the use of its social network conditional upon Facebook’s
Abuse of dominance possibility to collect and combine user data from multiple sources, including sources
beyond the Facebook platform itself. In its decision, the competition authority prohibited
Decision of 6 February 2019 Facebook and its other group companies from using those terms and conditions and from
processing data accordingly insofar as private users in Germany are affected.
The Bundeskartellamt’s decision was suspended upon appeal by the Duesseldorf Regional
Court but on appeal, the German Federal Supreme Court supported the
Bundeskartellamt’s case and found that each increase in the quantity and quality of the
data and data analysis provided by Facebook, which is already very large in terms of the
number of users, also reduces the chances of both actual and potential competitors to
compete with this offer, with the risk that (potential) competitors will lose the competition
for advertising contracts necessary to run the network.154
Italian NCA CV154 The Italian NCA found that WhatsApp de facto forced the users of its service to accept in
154
Decision by the Bundesgerichtshof of 23 June 2020, KVR 69/19, available at http://juris.bundesgerichtshof.de/cgi-
bin/rechtsprechung/document.py?Gericht=bgh&Art=en&nr=109506.
121
Procedure, authority, date Case reference Description
full the new Terms of Use, and specifically the provision to share their personal data with
Abuse of dominance
Facebook, by inducing them to believe that without granting such consent they would not
have been able to use the service anymore.
11 May 2017
1.3. PREFERENTIAL DISPLAY, RESTRICTIONS IN INTEROPERABILITY
Authority, procedure, date Case reference Description
Amazon
German and Austrian NCAs Case B2-88/18 Amazon The German and Austrian competition authorities closed their investigations into several
of Amazon’s terms and conditions for third-party sellers – ranging from liability rules to
Abuse of dominance – settled (Germany)
the duration of the notice period for the termination of a seller – following Amazon’s
17 July 2019 (closed subject Case Amazon (Austria) decision to amend them worldwide.
to commitments)
In Germany, Amazon’s behaviour could have qualified as one of the following abusive
conduct under the GWB: (i) An exploitative abuse of dominance in the form of abnormal
business terms and discrimination, (ii) An abuse in the form of unjustified advantages,
because there seemed to be no objective justification to the advantages required by
Amazon, and (iii) An exclusionary abuse in the form of unfair business terms that favour
its own downstream business, Amazon Retail, to the detriment of third-party sellers.
Italian NCA A528 Possible abuso di The NCA investigates whether Amazon abuses its dominance by discriminating on its e-
posizione dominante in commerce platform in favour of third-party merchants that use Amazon’s logistics
122
Authority, procedure, date Case reference Description
Abuse of dominance marketplace e-commerce e services.
10 April 2019 (opening of servizi di logistica The NCA’s theory of harm is that this practice may create barriers to expansion or entry
investigation) for Amazon’s competitors: (i) in the e-commerce logistics market (leveraging), and (ii)
possibly in the e-commerce platform market as well.
Luxembourg NCA Case 2017-C-02 Amazon Amazon allegedly used its dominant position in the upstream market for platform
services to foreclose the unnamed complainant from the downstream online retail
Abuse of dominance
market, where it competed with Amazon.
21 June 2017 (non-
The NCA concluded that Amazon’s platform service is not an essential facility for the
infringement)
complainant’s business and that Amazon does not have the incentive to pursue the
alleged foreclosure strategy.
Apple
European Commission AT.40452 Apple - Mobile The Commission is investigating the possible impact of the following on competition in
mobile payments solutions: (i) Apple’s terms, conditions and other measures related to
Restrictive agreement and/or payments
the integration of Apple Pay for mobile purchases (iPhones and iPads) on merchant apps
abuse of dominance
and websites; (ii) Apple Pay is the only mobile payment solution that can access the
16 June 2020 (opening of NFC ‘tap and go’ technology that is embedded in iPhones for payments in stores; and
investigation) (iii) Apple allegedly restricts access to Apple Pay for specific products of rivals on
iPhones and iPads.
Dutch NCA Apple alleged app store abuse The NCA opened an investigation into whether Apple abused its dominance in the
123
Authority, procedure, date Case reference Description
Abuse of dominance mobile app store market, “for example, by giving preferential treatment to its own
apps”.
11 April 2019 (opening of
investigation) The NCA opened the investigation after a market study into mobile app stores of Apple
and Google, which identified self-favouring as one of the conduct that might warrant
further investigation.
Google
European Commission Case AT.39.740 Google Google's appeal is pending before the EU General Court against the Commission’s 2017
Search (Shopping) decision fining the company EUR 2.42bn.
Abuse of dominance
According to the Commission, Google leveraged its dominance in general internet
Decision of 27 June 2017
Pending General Court search services to the separate comparison shopping service (CSS) market by favouring
judgment in Case T-612/17 Google Shopping on its general web search results page. The Commission concluded
that this had the potential to foreclose competing CSSs, which could lead to: (i) higher
Google and Alphabet
fees for merchants, (ii) higher prices and search costs for consumers, (iii) less
innovation.
To support this finding, the Commission among other things relied on statistics showing
that: (i) Google Shopping significantly increased its traffic (45-fold in the UK, 35-fold in
Germany, 29-fold in the Netherlands, 19-fold in France, 17-fold in Spain and 14-fold in
Italy) and (ii) traffic to rival CSSs dropped significantly (by 92% for a rival in Germany
and by 85% for a rival in the UK) without an alternative explanation than Google’s
behaviour.
124
Authority, procedure, date Case reference Description
Italian NCA A529 Google/ The NCA investigates whether Google abuses its dominance in the market for licensable
Abuse of dominance compatibilità app Enel X Italia smart mobile operating systems by refusing to integrate energy company Enel’s X
Charge app in its Android Auto app.
con sistema Android Auto
8 May 2019 (opening of
According to the NCA, this conduct may hinder competition on the merits and limit
investigation)
consumer choice by: (i) excluding Enel’s smartphone app for users of electric vehicles
(EVs) which provides a location service that competes with Google Maps; and
consequently, and (ii) “considerably compromising” several parameters of competition,
including innovation, quality and diversity of services and diversity of business models.
Italian NCA A542 Google online display The NCA is investigating an alleged exclusionary abuse of dominance by Google in the
advertising form of “internal-external discrimination”, which consists in: (i) its display advertising
Abuse of dominance
intermediation services relying on user data that Google collects from other, unrelated
20 October 2020 (opening of services or applications in which it is dominant; and (ii) not making this data available
investigation) for competing providers of display ad intermediation services.
1.4. ANTI-STEERING AND MFN CLAUSES
Authority, procedure, date Case reference Description
Apple
European Commission AT. 40437 Apple – App Store As Apple charges third-party app developers a 30% commission on all subscription fees
through its mandatory in-app purchase (IAP) system, “Apple's competitors have either
Restrictive agreement and/or practices (music streaming)
125
Authority, procedure, date Case reference Description
abuse of dominance AT.40652 Apple – App Store decided” to disable the in-app subscription possibility or pass this fee on to consumers.
16 June 2020 (opening of practices (e- The IAP obligation also appears to give Apple full control over the relationship with the
books/audiobooks)
investigations) subscribers of its competitors. Therefore, it is “dis-intermediating its competitors from
AT.40716 Apple – App Store important customer data while Apple may obtain valuable data about the activities and
practices (all other apps that offers of its competitors”. In addition, Apple’s rules prevent third-party app developers
compete with Apple) from informing users of alternative options to purchase paid content.
European Commission AT.40153 E-book MFNs and Commission decision that renders legally binding the commitments offered by Amazon.
Restrictive agreement and/or related matters (Amazon) The Commisison had concerns about clauses included in Amazon's e-books distribution
agreements that required publishers to offer Amazon similar (or better) terms and
abuse of dominance
conditions as those offered to its competitors and/or to inform Amazon about more
4 May 2017 (closed subject favourable or alternative terms given to Amazon's competitors. The clauses covered not
to commitments) only price but many aspects that a competitor can use to differentiate itself from
Amazon, such as an alternative business (distribution) model, an innovative e-book or a
promotion.
The Commission considered that such clauses could make it more difficult for other e-
book platforms to compete with Amazon by reducing publishers' and competitors' ability
and incentives to develop new and innovative e-books and alternative distribution
services.
126
1.5. TYING
Authority, procedure, date Case reference Description
Apple
European Commission AT.40099 Google Android Google's appeal is pending before the EU General Court against the Commission’s 2017
decision fining the company EUR 4.34bn.
Restrictive agreement and/or
abuse of dominance According to the Commission, Google has ensured that its Google Search app is pre-
installed on practically all Android devices sold in the EEA by tying it pre-installation
Decision of 18 July 2018
with the pre-installation of the Google Play Store. The Commission found that pre-
installation can create a status quo bias. Users who find search and browser apps pre-
installed on their devices are likely to stick to these apps.
Google's practice has reduced the incentives of manufacturers to pre-install competing
search apps, as well as the incentives of users to download such apps. This reduced the
ability of rivals to compete effectively with Google.
127
Teie 27.01.2021
Konkurentsiamet
Meie 27.01.2021 nr 7-1/531
[email protected]
Tatari 39
10134, Tallinn
Üleskutse arvamuse avaldamiseks DMA eelnõu osas
Pöördume teie poole üleskutsega avaldada arvamust Euroopa Komisjoni 15. detsembril 2020 esitatud
digiturgude akti (Digital Markets Act, DMA) eelnõu kohta. DMA eelnõu näol on tegu 3. juunil 2020
algatatud ja läbi viidud avaliku konsultatsiooni tulemiga. Toona paluti liikmesriikide ja huvirühmade
arvamust kahe erineva planeeritava meetme osas: digiplatvormide tegevuse ex ante meede1 ja uus
konkurentsiõiguse meede2. DMA eelnõu on nende kahe meetme kokkuliitmise tulemusel sündinud EL
otsekohalduva määruse eelnõu. Ühtlasi on DMA üks kahest hiljutisest suureelnõust, millega Euroopa
Komisjon püüab kaasajastada tehnoloogiasektorile suunatud regulatsiooni.
DMA eelnõuga kavandab Euroopa Komisjon täiendavaid kohustusi platvormiteenuse pakkujatele, kes
tegutsevad digiturgudel n-ö oluliste väravahoidjatena (gatekeepers). Algatuse keskne eesmärk on
kehtestada reeglid, mis tagaks, et turud, kuhu juurdepääsu kontrollivad märkimisväärse mõjuga
platvormid, oleksid õiglased ja konkurentsile avatud.
Palume teil seisukohtade kujundamisel silmas pidada, et Euroopa Komisjoni esitatud eelnõu võib
institutsioonide vaheliste läbirääkimiste tulemusel muutuda ning Eestil, nagu ka teistel liikmesriikidel,
on võimalus eelnõu sisu läbirääkimiste käigus mõjutada. Seega palume teil võimalusel arvamuse
avaldamisel peegeldada nii seda, mis on eelnõus asjakohane ja peaks säilima, kui ka seda, mida
tuleks kõneluste käigus adresseerida. Näiteks võib läbirääkimiste tulemusel eelnõu kohaldamisala
laieneda seeläbi, et suurendatakse väravahoidja definitsiooni alla kuuluvate platvormide ringi, millega
ühes võidakse anda järelevalvepädevus lisaks Euroopa Komisjonile ka liikmesriikide pädevatele
järelevalveasutustele; või laiendatakse/kitsendatakse väravahoidjatele kavandatud kohustusi. Eelnõu
hindamisel soovitame arvesse võtta eelnõuga kavandatud meetmete keskset eesmärki, kuivõrd kõik
seadusandja võetud meetmed peavad olema eesmärgipärased ja proportsionaalsed. Nii digiturgude
üle- kui ka alareguleerimisega võib kaasneda tahtmatu konkurentsimoonutus või innovatsiooni
pärssimine.
Teie arvamusi ja ettepanekuid Eesti seisukohtade kujundamiseks ja eelnõu läbirääkimistel
esindamiseks ootame hiljemalt 12. veebruariks. Palume need saata aadressile
[email protected].
Küsimuste korral kirjutage palun aadressil
[email protected].
Lisad:
1. DMA eelnõu (ingliskeelne)
2. DMA eelnõu juurde kuuluv mõjuhinnang (ingliskeelne, koosneb kahest dokumendist)
3. Selgitav kokkuvõte DMA eelnõuga kavandatust (eestikeelne)
1
Digital Services Act package – ex ante regulatory instrument of very large online platforms acting as
gatekeepers, kättesaadav: https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/12418-
Digital-Services-Act-package-ex-ante-regulatory-instrument-of-very-large-online-platforms-acting-as-
gatekeepers.
2 New complementary tool to strengthen competition enforcement, kättesaadav:
https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/12416-New-competition-tool.
Suur-Ameerika 1 / 10122 Tallinn / +372 620 8100 /
[email protected] / www.just.ee
Registrikood 70000898
Lugupidamisega
(allkirjastatud digitaalselt)
Heddi Lutterus
Asekantsler
Lisaadressaadid:
Riigikohus
Eesti E-kaubanduse Liit
Eesti Infotehnoloogia ja Telekommunikatsiooni Liit
Eesti Kaubandus-Tööstuskoda
Eesti Väike- ja Keskmiste Ettevõtjate Assotsiatsioon
Ettevõtluse Arendamise Sihtasutus
Eesti Tööandjate Keskliit
Open Knowledge Estonia
Startup Estonia
Teenusmajanduse Koda
Turundajate Liit
Eesti Meediaagentuuride Liit
Tarbijakaitse ja Tehnilise Järelevalve Amet
Riigi Infosüsteemi Amet
Eesti Advokatuur
Tartu Ülikooli õigusteaduskond
Tallinna Ülikooli Ühiskonnateaduste Instituut
Tallinna Tehnikaülikooli sotsiaalteaduskond
Registrite ja Infosüsteemide Keskus
Henrik Trasberg
[email protected]
Lühiülevaade DMA eelnõuga kavandatust
Milline võib olla DMA mõju?
Digiturgude aktiga (DMA) plaanitakse kehtestada täiendavad kohustused suurtele platvormiteenuse
pakkujatele, kes tegutsevad digiturgudel n-ö väravahoidjatena (gatekeepers). Algatuse keskne
eesmärk on kehtestada reeglid, mis tagaks, et turud, kuhu juurdepääsu kontrollivad märkimisväärse
mõjuga platvormid, oleksid õiglased ja konkurentsile avatud. Eelkirjeldatud eesmärk saavutatakse läbi
selle, et piiratakse teatud väravahoidjate äripraktikaid, mis annavad neile ebaõiglase konkurentsieelise
toodete ja teenuste pakkumisel või mis muul moel kahjustavad konkurentsi EL turul.
DMA ei mõjuta üksnes väravahoidjaks kvalifitseeruvaid platvormiteenuse pakkujaid, vaid läbi selliste
platvormide reguleerimise, mis kontrollivad tavakasutajate ligipääsu suurel hulgal ärikasutajate
toodetele ja teenustele, kujundaks see EL digiturge laiemalt, omades seeläbi olulist mõju ka Eesti
ettevõtjatele ja tarbijatele. Positiivse mõjuna võimaldab DMA mh väravahoidjate teenuseid
kasutavatel ettevõtjatel saada oma äritegevuse arendamiseks olulist teavet (näiteks väravahoidjate
kaudu läbiviidava müügi- ning reklaamitegevuse kohta), vähendab ettevõtjate jaoks turule sisenemise
barjääre (näiteks ei tohi väravahoidja takistada kolmandatel isikutel pakkumast alternatiivseid
äpipoode, veebibrausereid jm rakendusi) ning piirab väravahoidjate võimalust turgu oma huvides
mõjutada (näiteks ei tohi väravahoidjad keelata oma ärikasutajatel pakkumast toodet või teenust
teistel platvormidel soodsama hinna või teistsuguste tingimustega). Samal ajal mõjutab DMA aga suure
tõenäosusega ettenägematul määral väravahoidjate äri- ja monetiseerimismudeleid (näiteks piirates
eri teenuste raames kogutud andmete kombineerimist), millel võib olla mh negatiivne tagajärg
väravahoidjate teenuste kättesaadavusele, kvaliteedile või hinnale.
Kes on värvahoidja?
Väravahoidjaks kvalifitseeruvad ettevõtjad, kes pakuvad platvormimajanduse tuumikteenuseid (nt
veebivahendusteenuseid, otsingumootori teenuseid või sotsiaalmeediateenuseid, vt täpsemalt DMA
art 2(2)) ja vastavad järgmistele DMA art-s 3(1) sätestatud tingimustele:
a) Ettevõte omab olulist mõju EL digitaalsetel turgudel.
DMA art 3(2)(a) kohaselt eeldatakse, et ettevõte omab sellist mõju, kui viimase kolme aasta vältel on
tema aastakäive Euroopa majanduspiirkonnas olnud vähemalt 6,5 miljardit eurot või
turukapitalisatsioon (või ettevõtte turuväärtus) vähemalt 65 miljardit eurot ja ta pakub teenust
vähemalt kolmes EL liikmesriigis.
b) Ettevõte kujutab endast olulist nn ligipääsuvõimaldajat (gateway) digiturul selleks, et ärikasutajad
saaksid oma teenused ning tooted viia lõppkasutajateni.
DMA art 3(2)(b) kohaselt eeldatakse, et antud tingimus on täidetud, kui ettevõtte pakutaval
platvormiteenusel on EL-s vähemalt 45 miljonit aktiivset lõppkasutajat kuus ning 10 000 aktiivset
ärikasutajat aastas.
c) Ettevõte omab stabiilset ja kestvat turupositsiooni (või eelduslikult omandab sellise positsiooni
lähitulevikus).
DMA art 3(2)(c) kohaselt eeldatakse, et antud tingimus on täidetud, kui punktis b nimetatud künnis on
täidetud eelneva kolme aasta vältel.
Isegi kui ettevõte ei vasta ülalmärgitud kvantitatiivsetele kriteeriumitele, võidakse ta väravahoidjaks
määrata kvalitatiivse analüüsi tulemusel. Sellise analüüsi raames võetakse kogumis arvesse asjaolusid
nagu ettevõtte käive, turuväärtus, positsioon turul, teenuse kasutajate hulk, turu sisenemisbarjäärid,
ettevõtte andmetöötluseelised, kasutajate lock-in jm. Vastavat analüüsi teostab Euroopa Komisjon (vt
DMA art 3(6) ning art 15).
Juhul, kui eeltoodud kriteeriume eelnõu läbirääkimiste käigus ei muudeta, võib Euroopa Komisjoni
esialgse hinnangu kohaselt väravahoidjaid kokku olla vahemikus 10-15.
Millised kohustused on väravahoidjatele kavandatud?
Väravahoidjate kohustused on kavandatud DMA art-tes 5 ja 6. Erinevalt art-st 5 kuulub art-s 6
sätestatud kohustuste sisu ja ulatus edasisele täpsustamisele Euroopa Komisjoni poolt. Allpool on
esitatud lühiülevaade DMA-ga väravahoidjatele kehtestatavate kohustuste sisust koos näidetega
ebaõiglasest turupraktikast, mida tahetakse vastava kohustusega piirata. Palume arvestada, et mitmed
kohustused sisaldavaid täpsustavaid või piiravaid tingimusi, mistõttu nende sisust tervikliku ülevaate
saamiseks tuleks vaadata DMA artikleid 5 ja 6, samuti neid selgitavaid põhjenduspunkte DMA
preambulis.
Artikkel 5
Väravahoidja kohustus Näide turupraktikast, mida tahetakse vastava
nõudega piirata1
(a) Väravahoidja ei tohi kasutaja nõusolekuta Facebookiga liitumise tingimuseks on olnud
kombineerida platvormiteenuse kaudu kasutaja isikuandmete kogumine ja
kogutavaid isikuandmeid oma teiste teenuste kombineerimine teiste teenuste kaudu (nt
või kolmandalt osapoolelt saadavate WhatsAppist ja Instagramist) saadud
isikuandmetega. Samuti ei tohi väravahoidja andmetega.
registreerida kasutajaid nende nõusolekuta oma
teiste platvormiteenuste kasutajaks, eesmärgiga
kasutajalt kogutavaid isikuandmeid
kombineerida.
(b) Väravahoidja ei tohi piirata oma ärikasutajat Booking.com on seadnud majutajatele
pakkumast toodet või teenust muudel tingimuseks, et tarbija peab kõige soodsama
platvormidel teistsuguse hinnaga või teistel hinna saama alati nende kaudu.
tingimustel.
(c) Väravahoidja peab lubama ärikasutajal Apple on teinud Apple'i seadmetele rakendusi
reklaamida oma pakkumisi väravahoidja loovatele arendajatele kohustuslikuks kasutada
platvormiteenuse kaudu saadud kasutajatele Apple’i enda rakendusesisest ostusüsteemi ning
ning sõlmida nendega tehinguid ka väljaspool piiranud nende vabadust teavitada kasutajaid
väravahoidja platvormi. Väravahoidja ei tohi alternatiivsetest ostuvõimalustest väljaspool
piirata lõppkasutaja õigust platvormiteenuse rakendust.
kaudu pääseda ligi ärikasutaja rakenduses
pakutud sisule, tellimustele vms, mis on
eelnimetatud teel soetatud.
(d) Väravahoidja ei tohi keelata ärikasutajal Väravahoidja ei tohi lepingutingimustega piirata
väravahoidja praktikaid puudutavate ärikasutaja õigust minna väravahoidja vastu
kaebustega pöörduda õiguskaitseorganite vm kohtusse.
ametiasutuse poole.
(e) Väravahoidja ei tohi kohustada ärikasutajat Äpipoe operaatorid on kohustanud arendajaid
kasutama väravahoidja isikutuvastusteenust kasutama äpipoe isikutuvastusteenust selle
kaudu pakutavate rakenduste kasutajate
1
Näited pärinevad DMA algatuse mõjuhinnangust.
ärikasutaja poolt lõppkasutajale osutatava tuvastamisel. Selline praktika võimaldab
teenuse raames. väravahoidjal koguda kasutajate andmeid ja
sellega veelgi kinnistada oma positsiooni
andmepõhistel turgudel, nt reklaamiturul.
(f) Väravahoidja ei tohi nõuda ühele Enamik Android seadmeid nõuavad Google’i
platvormiteenusele ligipääsu tingimusena teise konto olemasolu; Oculuse kasutamise
platvormiteenuse kasutamist (või sellise eeltingimuseks on Facebook’i konto olemasolu.
teenuse kasutamist, millel on vähemalt 45 mln
lõppkasutajat kuus ja 10 tuhat ärikasutajat
aastas).
(g) Väravahoidja peab reklaami tellijale ja Euroopa Komisjon viitab oma mõjuhinnangus UK
reklaami avaldajale andma teavet nende poolt konkurentsiameti raportile, mille kohaselt
tellitud või avaldatud reklaami avaldamisega reklaami tellijad ja avaldajad ei pea
seotud tasude kohta. reklaamivahenduse turul hindade kujunemist
läbipaistvaks, sh ei ole ilmne, millised on
reklaamiteenuse pakkujate vahendustasud.
Artikkel 6
Väravahoidja kohustus Näide turupraktikast, mida tahetakse vastava
nõudega piirata2
(a) Väravahoidjad ei tohi oma ärikasutajatelt Amazon üheaegselt nii pakub müüjatele
saadud või nende tegevuse käigus tekkinud platvormi veebimüügiks kui ka tegutseb ise
mitteavalikku teavet kasutada ärikasutajate müüjana, seeläbi oma ärikasutajatega samal
vastu konkureerimisel. platvormil konkureerides. Seejuures omab
Amazon ligipääsu konkureerivate müüjate
äriteabele, mida nad platvormi kaudu
genereerivad, mis annab Amazonile
konkurensieelise.
(b) Väravahoidja ei tohi takistada seadmetesse Nt Safari brauser on eelinstalleeritud Apple
eelinstalleeritud rakenduste mahalaadimist. seadmetesse ning seda ei saa seadmest lõplikult
eemaldada.
(c) Väravahoidja pakutav operatsioonisüsteem Apple'i iOS ei võimalda kolmandate isikute
peab võimaldama kolmandate isikute pakutavaid äpipoode installeerida ning
rakenduste ja äpipoodide installeerimist ning kasutada.
kasutamist, võimaldades neile ligipääsu ka viisil,
mis ei nõua väravahoidja platvormi kasutamist.
(d) Väravahoidja ei tohi platvormiteenuse 2017. a-l tuvastas Euroopa Komisjon, et Google
raames toodete või teenuste järjestamisel on pannud toime turgu valitseva seisundi
eelisjärjekorras kuvada enda tooteid või kuritarvitamise, sest Google'i otsingumootor oli
teenuseid ning peab tagama, et eelistanud netikaupluste vasteid kuvades Google
järjestamissüsteem oleks aus ja Shopping teenust.
mittediskrimineeriv.
(e) Väravahoidja ei tohi seada tehnilisi tõkkeid, Võimalik näide on alternatiivsetele
mis piiraksid kasutajate õigust pääseda ligi ja veebibrauseritele ligipääsu piiramine.
kasutada erinavaid rakendusi ja teenuseid
väravahoidja operatsioonisüsteemi kaudu.
2
Näited pärinevad DMA algatuse mõjuhinnangust.
(f) Väravahoidja peab tagama, et tema Apple ei võimalda kolmandast isikust
ärikasutajatel ja kõrvalteenuste pakkujatel oleks makseteenuste pakkujatel oma NFC lahendust
väravahoidjaga võrdväärne võimalus pääseda Apple telefonides mugavalt kasutada.
ligi ja ühilduda väravahoidja
operatsioonisüsteemi ning riist- ja
tarkvaralahendustega.
(g) Väravahoidjad peavad reklaami tellijatele ja Ärikasutajatel on huvi saada ligipääs teabele, et
avaldajatele tagama tasuta ligipääsu hinnata korraldatud reklaamkampaania
tööriistadele ja teabele, mis on vajalikud selleks, tõhusust, mida väravahoidjad ei jaga.
et hinnata ja kontrollida reklaamide
tulemuslikkust.
(h) ja (i) Väravahoidjad peavad kasutajatele Näiteks meediaväljaandel, mis kasutab lugejani
tagama nende poolt väravahoidja platvormil jõudmiseks väravahoidja platvormi, võib olla
genereeritud andmete portabiilsuse ja nendele põhjendatud huvi ja õiguslik alus saada
andmetele pideva ning reaalajas ligipääsu. väravahoidja kaudu reaalajas teavet oma
lugejate kohta.
(j) Väravahoidja, kes pakub otsingumootori Konkureerivatel otsingumootori teenustel on
teenust, peab teistele otsingumootori teenuse keeruline või võimatu täna turule siseneda, kuna
osutajatele pakkuma õiglastel, mõistlikel ja neil puudub ligipääs asjakohastele andmetele.
mittediskrimineerivatel ehk nn FRAND
tingimustel ligipääsu otsingutulemuste
järjestamise, kasutajate tehtud päringute ja
klikkide andmetele.
(k) Väravahoidja äpipoe ligipääsutingimused Google Play ning AppStore’i komisjonitasude
peavad ärikasutajate suhtes olema õiglased ja määrad on eri rakenduste puhul põhjendamatult
mittediskrimineerivad. erinevad, mis võib anda teatud
teenusepakkujatele ebaõiglase konkurentsi-
eelise.
Kuidas tagatakse kohutuste täitmine?
DMA eelnõuga on väravahoidjate kvalifitseerijaks ja nende järelevalvajaks kavandatud Euroopa
Komisjon. DMA artiklite 5 ja 6 tõhusaks kohaldamiseks võimaldab eelnõu Euroopa Komisjonile oma
järelevalvepädevuse teostamiseks laiaulatuslikud uurimisvolitused (eelnõusse on kopeeritud mõneti
muudetud/täiendatud kujul nõukogu määrusega nr 1/2003 kehtestatud konkurentsiõiguse
rakendamise menetlusreeglid). Samuti võib Euroopa Komisjon teha kohustusi rikkuvatele
väravahoidjatele rahalisi trahve (kuni 10% ülemaailmsest käibest, DMA art 26) või rakendada
väravahoidja suhtes käitumuslikke (nt kohustus mingi tegu teha või selle tegemine lõpetada) ja
strukturaalseid meetmeid (nt kohustus teatud osas oma teenustest võõrandada) DMA-ga vastavuse
tagamiseks (DMA art 16). Euroopa Komisjonile antakse ka pädevus kehtestada uusi kohustusi, mis
kohalduvad väravahoidjatele juhul, kui selline vajadus ilmneb turuanalüüsi tulemusel (vt DMA art 10).
Eesti võimalus eelnimetatud menetluses osaleda on läbi digituru nõuandekomitee, millega Euroopa
Komisjon peab enne otsuste tegemist konsulteerima ning milles osaleb igast EL liikmesriigist üks pädev
rakendusasutus (Eesti puhul eelduslikult Konkurentsiamet, vt ka DMA art 32).