The Digital Markets Act (“DMA”), which came into force in 2022, prevents certain large online platform service providers from treating their business and end users unfairly. For example, online platform service providers that fall within the scope of the DMA must allow their business users to access the data they generate in their use of the platform, allow their business users to promote their products and conclude contracts with their customers outside the platform, and must not treat services and products offered by the platform service provider itself more favourably in ranking than similar services or products offered by third parties on the platform.

Platform services such as online marketplaces, search engines and social networking services (known as “core platform services”) are subject to these fair treatment obligations if and when the core platform service provider is designated as a “gatekeeper” under the DMA. A core platform service provider will be designated a gatekeeper if it meets certain qualitative criteria, namely, if it has significant impact on the internal market, the core platform service serves as an important gateway for business users to reach end users, and it enjoys an entrenched and durable position in its operations. The DMA sets out certain quantitative criteria that, if met by the core platform service, establish a presumption that the qualitative criteria are met. For example, a core platform service will be presumed to serve as an important gateway if its service has at least 45m monthly active end users in the EU and more than 10,000 yearly active business users in the EU in the last financial year. Online platform services providers in the EU were required to notify the European Commission of their potential gatekeeper status by 3 July 2023 and the Commission had until 6 September to decide whether to make a designation.

On 6 September 2023 the Commission designated, for the first time, six gatekeepers – Alphabet, Amazon, Apple, ByteDance, Meta and Microsoft – in respect of 22 core platform services including TikTok, Facebook, Instagram, LinkedIn, WhatsApp, Google Maps, Google Play, Google Shopping, YouTube, Google Search, Chrome, Google Android and Windows PC OS. The Commission did not designate Gmail, Outlook.com or Samsung Internet Browser. At the time, Microsoft and Apple submitted arguments to rebut the presumption set out in the DMA in respect of certain other core platform services (Microsoft’s Bing, Edge and Microsoft Advertising and Apple’s iMessage). The Commission opened market investigations into whether those other services should come within the designations but concluded, in February 2024, that they should not as they do not qualify as gateways.  There remain outstanding legal challenges from Meta, ByteDance (TikTok) and Apple contesting the inclusion of certain of their services within the scope of the DMA.

As of 7 March 2024, the six companies must now fully comply with all of the DMA obligations in respect of each of their designated services, including providing compliance reports and independently audited descriptions of any techniques used for profiling users, the public versions of which can be viewed on the Commission’s  DMA webpage (as previously reported by Wiggin). The Commission will now review the compliance reports to assess whether measures implemented by the gatekeepers meet the DMA’s requirements. Infringements can attract fines of up to 10% of the company’s worldwide turnover, which can rise to 20% in the case of repeated infringements.

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