On 1 November 2022, the Digital Market Act (Regulation (EU) 2022/1925, hereinafter “DMA”) entered into force. The DMA aims to prevent unfair practices by undertakings acting as gatekeepers in the online platform economy. The EU Commission had proposed the DMA in December 2020. It was then adopted by the European Parliament and the Council in March 2022.

The DMA defines when a large online platform qualifies as a “gatekeeper”. These are digital platforms that provide an important gateway between business users and consumers whose position can grant them the power to act as a private rule maker, and thus creating a bottleneck in the digital economy. To address these issues, the DMA will define a series of obligations they will need to respect, including prohibiting gatekeepers from engaging in certain behaviours. Especially, the DMA is designed to prevent a gatekeeper from favouring its own goods or services or preventing commercial users of its services from reaching consumers. The EU Commission argues such behaviour might prevent competition and lead to less innovation, lower quality, and higher prices.

Undertakings operating one or more of the so-called “core platform services” listed in the DMA are considered gatekeepers if they meet the following requirements: i)  a strong economic position with a significant impact on the European internal market and activities in several EU Member States, ii) a strong intermediary position, i.e. the possibility to connect a large user base with a large number of undertakings, and iii) if it has (or will soon have) a consolidated and durable position in the market. An undertaking shall be presumed to be a gatekeeper if it achieves an annual EU turnover of at least EUR 7,5 bio. in each of the last three financial years, or where its average market capitalisation amounts to at least EUR 75 bio. in the last financial year, and if it provides the same core platform service in at least three EU Member States.

This particularly affects online intermediary services such as those for downloading computer or mobile phone programs, online search engines, social networks, certain communication services, video sharing platform services, virtual assistants, web browsers, cloud computing services, operating systems, online marketplaces, and online advertising services. The DMA contains a list of obligations and prohibitions that gatekeepers must comply with in their daily operations.

Even though the DMA has already entered into force, it is not yet applicable. This will only be the case from 2 May 2023, i.e. six months later. From then on, potential gatekeepers will have to notify the EU Commission within two months and no later than 3 July 2023 if their central platform services meet the thresholds set out in the DMA. Once the EU Commission has received the full notification, it will have 45 working days to assess whether the undertaking in question meets the criteria and to designate it as a gatekeeper. The latest date for this would be 6 September 2023. After their designation, gatekeepers have six months to comply with the requirements of the DMA. This deadline expires on 6 March 2024 at the latest. Therefore, even though the DMA already came into force on 1 November 2022, for market participants who are not gatekeepers and consumers, it will not have direct effect until March 2024.