European Union: Commission proposes regulatory categorisation of “gatekeeper” in Digital Markets Act

On 15 December 2020, the European Commission submitted the Digital Markets Act (DMA) proposal to the European Parliament and Council of the European Union (EU). The proposal outlines criteria for determining if certain online platforms are “gatekeepers” and lays down specific obligations for entities classified as such. The companies that could fall under the scope of DMA are entities that control at the minimum one “core platform service”, such as operating systems and online intermediation services, including social networking services, search engines and messaging services. In order for a company providing “core platform services” to be the subject of the DMA obligations, three criteria have to be met. Firstly, the company’s annual turnover must be above EUR 6.5 billion in the last 3 years or it must have a market capitalization of a minimum of EUR 65 billion in the last year, furthermore, it must provide a “core platform service” in 3 EU Member States. Secondly, the company has to have more than 45 million users from the EU and at least 10’000 active business users in the last year. The company must meet these two criteria within the last 3 years. Consequently, if a company meets the listed criteria it will have to provide more information regarding its users and market position to the Commission and comply with the DMA obligations. In some instances, even if the criteria are not met, the Commission will have the power to conduct market investigations and based on its qualitative assessment classify a company as a “gatekeeper”.