The Digital Markets Act: how will it work in practice?
On 6 September 2023, the European Commission (“Commission”) designated six companies as “gatekeepers” under the Digital Markets Act (the “DMA”): Alphabet (more widely known as Google), Amazon, Apple, ByteDance, Meta, Microsoft. 22 core platform services have been designated. The six gatekeepers now have six months to ensure that they are compliant with the obligations imposed under the DMA. 
In our increasingly digital world, the influence of tech giants has grown exponentially and has become an integral part of our daily lives. The designation of these tech giants as gatekeepers heralds the beginning of the EU’s fresh approach to enforcement and presents a timely opportunity to look forward to how the new suite of obligations will be enforced from November 2023 onwards.
Recap of the DMA and gatekeepers
The DMA is an act that was brought in to address ex ante practices of gatekeepers, the largest online companies that control core platform services (“CPS”), such as social networks, app stores, digital advertising platforms and search engines . The aim of the DMA is to make the digital markets fairer and more contestable. 
In order to do this, the DMA establishes a set of objective criteria to identify “gatekeepers” and to prevent those “gatekeepers” from imposing unfair conditions on businesses and end users by laying down “harmonised rules”.
An undertaking will be designated as a gatekeeper if it meets certain criteria regarding the role it plays in digital markets, and its scale. The DMA now sets this out in a three-prong qualitative test set out in Article 3(1) or a three-prong quantitative test set in out Article 3(2). If an undertaking meets the quantitative criteria, the undertaking is presumed to have satisfied the qualitative criteria (although this is rebuttable) .
Qualitative criteria (Article 3(1))
- The undertaking has a significant impact on the internal market.
- The undertaking provides a CPS, which is an important gateway for business users to reach end users.
- The undertaking enjoys an entrenched and durable position.
Quantitative criteria (Article 3(2))
- The undertaking achieves an annual Union turnover equal to or above EUR 7.5 billion in each of the last three financial years; or its average market capitalisation or its equivalent fair market value amounts to at least EUR 75 billion in the last financial year and it provides the same core platform service in at least three Member States.
- The undertaking provides a core platform service that in the last financial year has at least 45 million monthly active end users established or located in the Union and at least 10,000 yearly active business users established in the EU.
- The above threshold at (2) has been met in each of the last three financial years.
If the above criteria are met, then a gatekeeper is required to notify the EC within two months of meeting the relevant thresholds. The Commission will then review this and determine whether the undertaking meets the criteria . Once designated, a gatekeeper needs to comply with certain obligations in respect of its CPS. These obligations – a list of dos and don’ts – are set out in Articles 5-7 of the DMA .
Failure to meet these obligations can result in sanctions imposed by the Commission as discussed below.
What next for the designated gatekeepers?
The six gatekeepers mentioned above generally have six months to comply with their obligations . They will be required to submit a detailed compliance report which outlines how they comply with each of the obligations as set out in the DMA.
The DMA also provides that a gatekeeper can ask for an assessment as to the sufficiency of its proposed measures . If a gatekeeper requests this, the Commission will open a proceeding under Article 20 and will have three months to share its preliminary findings and proposed measures with the gatekeeper, as well as inviting third party comments. A final decision will be made within six months. The Commission can then adopt an implementing act, specifying the measures that the particular gatekeeper must adopt in order to comply with the obligations in Articles 6 and 7 . This does not, however, affect the Commission’s powers to find that a gatekeeper has been non-compliant and to impose fines.
What happens when they fail to comply?
If a gatekeeper does not comply with the obligations, the Commission can impose significant fines of up to 10% of their annual worldwide turnover .
Should a gatekeeper repeat that offence(s), with regard to the same CPS and within eight years of the first violation, then the Commission may impose a fine of up to 20% .
Where a gatekeeper systematically fails to comply with the DMA, the Commission may also carry out a market investigation into “systematic non-compliance” – and such a finding can result in the Commission imposing on the gatekeeper any “behavioural or structural remedies which are proportionate and necessary to ensure effective compliance” .
Last, the Commission may also impose a lesser amount fine of 1% in circumstances where the undertaking misses procedural requirements e.g., the failure to comply with notification obligations .
The enforcement of the DMA and the interplay with other laws
The primary responsibility for enforcement of the DMA therefore lies with the Commission, rather than national authorities and courts . However, as a Regulation the provisions of the DMA have direct effect and may be enforced by the courts in Member States. The DMA imposes direct obligations on gatekeepers, and where these have been breached, affected parties can in principle seek orders from national courts, and damages where they have suffered loss.
The DMA includes provisions on the co-operation between national courts and the Commission to ensure the harmonised application of the DMA . National courts can request information and the Commission are able to submit oral or written observations to the national courts (although national courts are unable to give a decision which runs counter to a decision adopted by the Commission under the DMA and may be required to assess whether it must stay proceedings) .
The DMA is a long-awaited step by the EU towards a fairer and more competitive landscape in digital markets, and to regulating the power of digital gatekeepers. Its success will depend on the ability of the legislators and regulators to keep pace with the ever-evolving digital marketplace. Helpfully, the DMA makes provision for public and private enforcement to proceed in parallel, with mechanisms to avoid conflicting approaches, and this structure should promote effective enforcement and give the regime every chance of success.
With special thanks to Jenny Ha for their invaluable assistance in drafting this article.
1 European Commission, https://digital-markets-act.ec.europa.eu/commission-designates-six-gatekeepers-under-digital-markets-act-2023-09-06_en.
2 CPS is defined exhaustively in the DMA. It includes, for example: online intermediation services, online search engines, online social networking services and video-sharing platform services. A full list of CPS is provided at Article 2(2) of the DMA.
3 DMA, Article 1.
4 DMA, Article 1.
5 See Article 3(5) of the DMA.
6 The designation of the six gatekeepers follows a 45-day review process conducted by the Commission following notification from the six gatekeepers of their potential gatekeeper status.
7 For example, Article 6(4) notes that the gatekeeper shall allow and enable users to install and use third-party software applications or software application stores using or interoperating with the OS and allow those software applications to be accessed by means other than the relevant CPS of that gatekeeper.
8 Although note that some obligations start on the day of designation – such as the obligation to inform the Commission of any intended concentration.
9 This may also be done at the Commission’s own initiative.
10 DMA, Article 8.
11 DMA, Article 30(1).
12 DMA, Article 30(2).
13 DMA, Article 18.
14 DMA, Article 30(3) – 1% of the undertaking’s annual worldwide turnover for procedural breaches.
15 Note, under article 27 of the DMA, any third party (including business users), competitors or end users of the CPS are able to inform the national competition authority or the Commission of any practice or behaviour of a gatekeeper that falls within the scope of the DMA – i.e., you do not need to be directly affected. While the authority that is informed is not under an obligation to follow-up or investigate and has full discretion as to the appropriate measures, if the national authority considers that there has been an issue of non-compliance, it must notify the Commission.
16 DMA, Article 39.
17 Recital 92 and Article 39.