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outcome of the activity carried out to the Commission.
• Weak consistency of platform markets • Then the Commission, based on the information
• Weak effective competition provided or by launching further investigations,
• Unfair commercial practices that cause damage to users proceeds to the designation of ‘gatekeeper’.
• Within six months from the date of identification
The new regulation makes use of the word ‘gatekeeper’, as gatekeeper, the company is obliged to comply
identifying companies that have control of a certain market and ensure compliance with the prohibitions and
sector. In the digital market, gatekeeper companies are large obligations set out in the DMA.
online platforms that have control for quantitative and
qualitative reasons. The DMA specifies that the European Commission shall, in
any case, have the right to assess on a case-by-case basis the
Quantitative reasons include: achievement of the quantitative requirements, to periodically
adjust the quantitative thresholds indicated on the basis of
• Market share coverage technological and market developments, and to reconsider and
• Number of platform users cyclically review the designation of ‘gatekeeper’.
• Time of use per platform user
• Annual revenues The DMA gives the Commission powers very similar to those
in antitrust matters. Namely, the Commission may conduct
Qualitative reasons include: inspections, send requests for information, interview employees
of the companies concerned, impose interim measures, conduct
• Ability to act as an intermediary between competitors market investigations and, more significantly, impose fines and
and users periodic penalty payments.
• Ability to manage user data for analytical purposes also
to compete in other markets The DMA will enable the Commission to fine up to 10%
of the gatekeeper’s overall turnover, provided that the fine is
The gatekeepers of the digital market are, therefore, the providers proportionate. However, if the gatekeeper commits a second
of basic platform services: social networks, browsers, search offence in less than eight years from the first infringement, fines
engines, messaging services, or social media. of up to 20% of the global turnover may be imposed. If the
‘gatekeeper’ fails to respect the DMA for the third time within
The Digital Markets Act identifies gatekeepers on three the same eight-year period, the Commission may carry out a
measurable and verifiable parameters: market investigation for ‘systemic non-compliance’. A finding
of systematic non-compliance would allow the Commission
1. The size of the company, namely: annual revenues of to impose ‘on that gatekeeper any behavioural or structural
EUR 7.5 billion or more in the last three years or total remedies that are proportionate and necessary to ensure
market share value of at least EUR 7.5 billion in the effective compliance’. These could include a ban on merger and
last year; and provision of platform services to at least acquisition activities and, perhaps, even break-up.
three EU states; and
2. Control of the gateway access to user data, including The DMA also provides for collective actions. Article 42 refers
the ability to block competitors: the registration of at to Directive 2020/1828 on representative actions and provides
least 10,000 active European users during the last year that the Directive ‘shall apply to representative actions brought
and more than 45 million active European end-users against breaches by guardians of the provisions of this regulation
per month is assessed; which affect or are likely to affect the collective interests of
3. A long-lasting and permanent position on the market consumers’.
if the two previous criteria have existed simultaneously
for at least three years since the verification of the According to the Commission and the European Parliament, the
requirements. entry into force of the DMA in 2023 will bring many benefits to
both free competition and users, for instance, by allowing users
The identification of gatekeepers for the Digital Markets Act to uninstall pre-installed software applications from the main
takes place in three steps: platform/manufacturer (currently, it is not possible to uninstall
some apps freely) and the possibility to download and pay for
• The company verifies the existence of the quantitative apps without the intermediation of Google and Apple stores.
requirements and is obliged to communicate the ••

Alan Rhode is a co-founder at Taxmen, the one-stop-shop for legal and tax services to the e-commerce industry.
Enrico Caruso is the Business Development Manager at Taxmen.

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