Ensuring DMA compliance: What are the business users’ options?

One of the issues I am often asked about the Digital Markets Act (“DMA”) is how to ensure that it will be properly implemented. While business users of core platform services will often be pleased with the content of the provisions that apply to the relevant gatekeepers, there is a concern that these provisions may not be implemented in a satisfactory manner. While gatekeepers are unlikely to refuse to implement some provisions, they may for instance reduce the effectiveness of some provisions by introducing friction that will discourage business users and/or consumers from taking advantage thereof. Though the anti-circumvention obligation does not leave much room for practices that undermine effective compliance with the DMA, it remains to be seen whether the DMA will be enforced expeditiously. 

My advice to business users is to reach out to the European Commission (the “EC”) to make constructive suggestions as to how the provisions that matter for their business should be implemented. The EC has been generally receptive to such suggestions (and has in fact encouraged business users to share their thoughts) although it has no obligations to take them into account. Now, business users are quite anxious to see how gatekeepers are planning to implement their obligations under the DMA and comment on these compliance plans.

In this respect, one of the shortcomings of the DMA is that does not provide for a structured “market testing” process. Even though the DMA compliance report template establishes the gatekeepers’ obligation to set out how their plans reflect the business users’ feedback on their implementation proposals, it does not establish a concrete process (e.g., when the proposals should be communicated to business users, how the feedback should be provided, how many rounds of consultation should take place). The EC has indicated to certain categories of business users that it would seek to obtain their feedback on gatekeepers’ compliance proposals by the end of the year. Whether this happens is uncertain, but in any event it will not leave much time to business users to share their observations on these plans and for the gatekeepers to go back to the drawing board and share updated plans with these business users.

What will then happen if the compliance programmes that designated gatekeepers need to issue at the beginning of March 2024 are not fully compliant with the relevant obligations? It seems the following options are available to business users:

• They can express their disappointment with the EC, which can then share these concerns with the gatekeepers and seek to obtain a satisfactory resolution. If no resolution can be found, the EC can start proceedings under Article 20. However, since the DMA does not set a concrete deadline, (the EC is only expected to aim for adopting a decision within 12 months from the time it opens the proceedings) these procedures will take a fair amount of time and could lead to appeals by the gatekeeper.
• Alternatively, when the EC plans to adopt a non-compliance decision pursuant to Article 29, when it finds that a gatekeeper has not complied with any of the following: (a) obligations laid down in Article 5, 6 or 7; (b) measures specified by the Commission in a decision adopted pursuant to Article 8(2); (c) remedies imposed pursuant to Article 18(1); (d) interim measures ordered pursuant to Article 24; or (e) commitments made legally binding pursuant to Article 25, the EC may consult third-parties prior to making its decision.
• Business users can also file a complaint, about the gatekeeper’s practices and/or behavior that fall under the Regulation, before national competent authorities under Article 27, in which case the national competent authority of the relevant Member State and the EC have complete discretion to choose the appropriate action to take.
• Finally, since the DMA is a regulation that enjoys direct effect, business users can have their rights under the DMA enforced by a national court. Under Article 39(2), the EC will then likely submit an amicus curiae to ensure coherence in the way the DMA provisions are enforced by national courts across the EU.

Thus, while there is an expectation that the DMA obligations will be implemented by 7 March 2024, it is unlikely that this will be the case as gatekeepers may be tempted to resist full implementation of some of these obligations. If that is not the case, more efforts will be needed from business users to ensure adequate implementation. This will likely be a long and resource-intensive process.