EU ANTITRUST: HOT TOPICS & NEXT STEPS

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Prague, Czechia

At this stage, and after a huge success in the General court in case Google Shopping , most competition enforcers do not consider the future DMA as part of EU competition law. The DSA was first mentioned by the future Commission President Ursula von der Leyen in her 2019 candidate speech “A Union that strives for more” (European Commission [online] 2019). She announced the early adoption of a “new digital services act”, which will strengthen liability and security rules for digital platforms, services and products and complete the completion of the digital internal market’. This was not so surprising. While the last two decades were characterised by the rapid rise of new technologies and the development of digital services, EU legislation regulating the online environment has barely changed. The latest major piece of legislation in the digital world was Directive 2000/31/EC on electronic commerce, which laid the cornerstone of the digital single market. The directive has not changed much since 2000, although the digital environment has changed radically – for example, of the four most powerful technology GAFA companies today, one did not exist at all 20 years ago and the other three were only at the beginning of their steep growth. The Commission has also never met its ambition to set global regulatory standards (as it succeeded with the GDPR years ago (European Commission, 2016) where the EC harmonised the rules on personal data protection) and it was therefore only logical that it would try to come up with an ambitious reform of the digital environment. The legal basis for both proposals is Article 114 TFEU, which allows for the introduction of measures to ensure the functioning of the internal market. The EC was concerned that if no action was taken at EU level, the situation would be exacerbated by the adoption of new initiatives in individual Member States (which is already happening to a certain extent), while others would remain unaddressed. Due to the inherent cross-border nature of core platform services, regulatory fragmentation could seriously disrupt the functioning of the single market for digital services as well as the functioning of digital markets as a whole. Harmonisation at EU level therefore appeared necessary. As regards the DMA, Article 103 TFEU was also taken into consideration, allowing the scope of application of Articles 101 and 102 TFEU, including sectoral adjustments, to be defined in detail. Finally, this proved problematic because ex ante regulation is not fully compatible with the scope of these “constitutional” competition articles. One of the major goals of the DSA is to reform the responsibility and liability regime of providers for intermediary services. What matters is that the proposed regime aims at full harmonisation. The DSA focuses on creating a safer digital space for digital users and companies, by protecting fundamental rights online. Digital services include a large category of online services, from simple websites

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