The Digital Markets Act (“DMA”) will apply from 2 May 2023. To facilitate its implementation, the European Commission (“Commission”) aims to publish an accompanying DMA Implementing Regulation (“IR”). In anticipation of this, the Commission has sought feedback via a public consultation on the draft IR between early December and 9 January 2023.
The draft IR addresses a range of procedural aspects concerning the DMA, including gatekeeper designation and core platform service notifications, opening of proceedings, the right to be heard, and access to the file. By contrast, the draft IR is silent on the Commission’s investigative powers during the gatekeeper designation process and the process of further specifying the obligations set out in Article 6 DMA (both of which gatekeepers will undoubtedly be eager to learn more about).
The Commission is aiming to publish the final IR “well before” the DMA starts applying in May 2023, and it will apply from the same date as the DMA. Whilst the draft IR may still be subject to changes before the final version is adopted, it already provides valuable insights into the Commission’s thinking. How stakeholder feedback might affect the position as currently set out in the final IR remains to be seen.
Two themes in the draft IR – each further outlined below – are particularly noteworthy:
- First, it touches upon the potential delineations of core platform service under the DMA, an issue which can have important ramifications for future enforcement: delineating one core platform service from other services in the context of digital ecosystems which are often designed to be seamless could prove rather complex.
- Second, the draft IR displays a certain tension between achieving a “rapid and effective investigatory and enforcement process” (Recital 3 IR) while also ensuring that rights of the defence of the parties to the proceedings are effectively protected. The Commission’s emphasis on speed in DMA enforcement may require some notable departures from the traditional procedural framework for antitrust.
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