On 24 March 2022, representatives of the EU Commission, the EU Parliament and the EU Council of Ministers agreed on the final version of the Digital Markets Act. A resolution on the Digital Markets Act, which is to take place in the EU Parliament in July 2022, is thus considered a mere formality. The regulation is expected to enter into force on 20 October 2022.
The basis of the current draft is the proposal for a Regulation of the European Parliament and of the Council on contestable and fair markets in the digital sector (Digital Markets Act) (hereinafter "Draft-DMA") published by the European Commission on 15 December 2020. The Draft-DMA is intended to limit the market power of large Internet platforms such as Google, Meta, Amazon or Microsoft by introducing an ex ante regulation in the form of a catalog of prohibitions and restrictions on certain types of conduct. This is the first time that special European competition law has been implemented for certain operators of core platform services, the so-called gatekeepers. If a gatekeeper does not comply with the behavioral obligations set out in the Draft-DMA, it could face fines of up to 10% of its total group-wide revenue in the previous fiscal year. In the event of a repeated offence, the fine under the draft version dated 24 March 2022 can even reach 20% of the group-wide revenue. However, public enforcement by fines is only one way of enforcing the obligations regulated in the Draft-DMA. The Draft-DMA also contains considerable potential for private enforcement (especially by competitors).
In the following, an overview is given on the most important features of the Draft-DMA. In addition, the possibilities of privately enforcing the behavioral duties prescribed under the Draft-DMA are outlined.
In order to create competitive and fair markets in the digital sector, the Draft-DMA imposes special behavioral obligations on so-called gatekeepers in Articles 5 and 6 Draft-DMA.
Designation as gatekeeper
Gatekeepers are operators of the core platform services listed exhaustively in Article 2(2) Draft-DMA, provided they have been designated as gatekeepers by the European Commission, Article 2 (1) Draft-DMA. The prerequisite for designation as a gatekeeper is that the operator of core platform services has a significant impact on the internal market (Article 3(1) lit. a Draft-DMA), the core platform service serves commercial users as an important gateway to reach end users (Article 3(1) lit. b Draft-DMA), and the operator has achieved an entrenched and durable market position (Article 3(1) lit. c Draft-DMA).
With regard to the designation procedure, the Draft-DMA provides for relief in the form of presumptions: Article 3(2) Draft-DMA first specifies certain quantitative thresholds, the existence of which is rebuttably presumed to meet the requirements of Article 3(1) Draft-DMA. If an operator of core platform services reaches all thresholds, it is required under Article 3(2) Draft-DMA to notify the Commission accordingly. Subsequently, the Commission shall designate the operator of core platform services as gatekeeper, unless it sufficiently substantiates in its notification that it is not a gatekeeper despite exceeding the thresholds, Article 3(4) Draft-DMA.
In addition, the Commission is free to determine independently in the course of a market investigation (Article 15(1) Draft-DMA) that certain operators of core platform services (despite not meeting the thresholds in Article 3(2) Draft-DMA) meet the qualitative criteria of Article 3(1) Draft-DMA and to designate them as gatekeepers.
Obligations of the gatekeepers
Gatekeepers are subject to far-reaching obligations of conduct, some of which are set out as narrowly defined prohibitions in Article 5 Draft-DMA, and some of which are set out as rules of conduct in Article 6 Draft-DMA, which require further specification.
For example, Article 5 lit. f Draft-DMA stipulates that business customers and end users may not be forced to purchase additional core platform services when requesting a service (so-called prohibition of tying). The widespread practice that a smartphone with a certain operating system automatically has the search engine of the same operating system set as the default application is thus prohibited. As a further duty of conduct, gatekeepers are required, by way of example, to allow their business customers to reach end users on other online sales channels in accordance with Article 5 lit. b Draft-DMA and not to impose any requirements on prices and conditions (no most-favored-nation clause). In addition, it is envisaged that platform services must make their basic functions, such as instant messaging services, interoperable. This would make it possible to send a message from WhatsApp to a recipient who does not use WhatsApp himself but only the standard messaging app on his iPhone or Googlephone.
In contrast to section 19a(2) of the German Act against Restraints of Competition (GWB), the prohibitions of the Draft-DMA do not require activation by the Commission; rather, the gatekeepers are bound by the obligations in Articles 5 and 6 Draft-DMA after expiry of the 6-month period in Article 3(8) Draft-DMA without any further legal act (so-called self-executing norms). In addition, there is a further significant difference to section 19a(2) GWB: While section 19a(2) GWB permits the conduct that is generally prohibited if there is an objective justification, the Draft-DMA does not provide for such a possibility of justification. Only a suspension or exemption from the obligations under Articles 5, 6 Draft-DMA is possible under narrow conditions.
The behavioral obligations are complemented by the prohibition of circumvention contained in Article 11 Draft-DMA and the Commission’s authority, provided for in Article 10 Draft-DMA, to adjust the obligations in Articles 5, 6 Draft-DMA following a market investigation.
The wording of the Draft-DMA does not explicitly provide for private enforcement. Nevertheless, in a Q&A on the Draft-DMA, the European Commission has advocated the possibility of private enforcement, at least in the form of actions for damages. In a recent presentation, the rapporteur of the European Parliament's Committee on Internal Market and Consumer Protection also explicitly emphasized the applicability of the DMA for private enforcement, referring to Art. 1(5) and (6) Draft-DMA (in interaction with Directive 2020/1828 on collective redress). Following on from this, most of the academic writers advocate for the possibility to enforce the obligations set out in Articles 5 and 6 of the Draft-DMA under civil law.
The basis for such private enforcement is primarily the violation of the law in section 3a of the German Unfair Competition Act (UWG). Pursuant to section 3a UWG, a person acts unfairly if he violates a statutory provision which is also intended to regulate market conduct in the interest of market participants and the violation is likely to have a significant adverse effect on the interests of consumers, other market participants or competitors. Since, according to the European Commission, the Draft-DMA is also expressly intended to prevent unfair practices, the obligations set out in Articles 5 and 6 of the Draft-DMA are to be regarded as market conduct rules within the meaning of section 3a UWG which are clearly intended to establish "fairness" in competition. If a violation of a market conduct rule within the meaning of section 3a UWG can be affirmed, this generally leads to a right of removal and, if there is a risk of repetition, to a right to injunctive relief (section 8(1) UWG in conjunction with section 3a, 3 UWG) for the claimants named in section 8(3) UWG. In case of fault, a claim for damages according to section 9 in connection with sections 3a, 3 UWG is conceivable.
In addition, the application of section 823(2) of the German Civil Code (BGB) is discussed. According to the prevailing view in the literature, Articles 5 and 6 Draft-DMA not only contain an institutionally defined protective purpose, but also serve to protect individual property interests and are therefore to be classified as a protective law within the meaning of section 823(2) BGB. If there is a violation of a protective law, this leads to a claim for damages pursuant to section 823(2) BGB, and moreover in connection with section 1004 BGB (analogous) also to a claim for removal and injunctive relief.
Finally, a possible nullity of the legal transaction violating the Draft-DMA according to section 134 BGB must be considered. However, on the basis of section 139 BGB, it is unlikely that the legal transaction will be void in its entirety.
It must also be taken into account that some of the cases covered by the Draft-DMA may as well constitute a violation of German antitrust law, so that in the event of any violations of the Draft-DMA, further bases for claims could also be invoked from German antitrust law. For example, preventing access to data may constitute an abuse of market power in the form of an unreasonable impediment under section 20(1a) sentence 2 GWB.
Access to data and private enforcement are key issues for the future, with many questions still unresolved. Private law enforcement of the behavioral obligations regulated in the DMA has also not been conclusively clarified yet. In particular, because the DMA’s requirements and prohibitions are designed as self-executing standards, it is only a matter of time before the first lawsuits are filed in the civil courts. In the absence of an explicit provision in the DMA, it will then be up to the national courts to make room for private enforcement of the DMA, which will then come into force.
Dr Borbála Dux-Wenzel, LL.M.
+49 221 9937 25100
Dr Sebastian Felix Janka, LL.M. (Stellenbosch)
+49 89 23714 10915
Christian Kuß, LL.M.
+49 221 9937 25686
Dr Linda Frohn
+49 221 9937 24911