European Union: Agreement between EU Parliament and Council on interoperability requirement in DMA

In a final trilogue on 25 March 2022, the European Parliament and the European Council agreed on a provisional text for the Digital Markets Act (DMA), which will now have to be approved by the Council and the European Parliament. The text defines as “gatekeepers” the companies providing “a core platform service” (such as browsers, messengers or social media) that operate in three or more member states and have more than 45 million monthly “end users” and 10'000 “business users”. Furthermore, such companies must have an annual turnover of over EUR 7.5 billion or at least EUR 75 billion of market capitalisation. The Trilogue agreed that the gatekeepers will have to make their messaging services interoperable with smaller messaging platforms if such platforms submit a request. In addition, the gatekeepers shall allow other service and hardware providers to freely develop effective interoperability with the hardware and software features specified in the EU Commission "designation decision". Also, the Trilogue forbids gatekeepers self-preferencing practices (ranking their own products or services higher than those of others), the pre-installation of certain software applications when using a gatekeeper's operating system, and the requirement to developers to implement certain services (e.g., payment systems) to be listed on app stores. Gatekeepers shall also provide each advertiser supplied by online advertising services with information on the performance measuring tools used by the gatekeeper and the data necessary to pursue independent verification of such mechanisms. Finally, the agreement establishes that the Commission can impose fines of up to 10% of the gatekeeper's total worldwide turnover in the preceding financial year, and up to 20% in case of repeated infringements.