France, Germany and the Netherlands want more flexibility in setting remedies for gatekeepers. Tough negotiations with the EU Parliament could be ahead
Three influential EU countries want to change the initial proposal: The European Commission’s proposal for a Digital Markets Act of December 2020 is now working its way through the European institutions. Earlier this year, France, Germany and the Netherlands had voiced their concerns, preferring a narrower scope (ensuring ecosystems are targeted more clearly) while at the same time wanting more flexibility when it comes to remedies on gatekeepers. Crucially, these three member states called for a stronger role of individual countries in enforcing the DMA and updating it, and for more ambition when it comes to the merger regime for gatekeepers.
Those concerns become amendments: The first proposed amendment adds an extra article to Article 16, that would allow tailor-made remedies to be imposed to preserve market contestability. These fall into four categories – access to platforms, data-related interventions, fair commercial relations, and open choices for end-users and business-users. The second proposal sets up a cooperation mechanism between the EC and national competition authorities. The mechanism would leave the main enforcement powers with the EC, but would also set criteria for cases to be referred to, or requested by, national authorities. The EC would also be able to extend the territorial scope of a decision taken by a national authority.
A difficult negotiation is on the cards: The call for a greater role of national authorities is likely to be successful in the European Council. Not only does it come from three key members of the EU, but also addresses a concern shared by the majority of member states according to the Council’s progress report on the DMA of May 2021. However, this is likely to become a point of contention with the EU Parliament once the stage of trilogue negotiations is reached. In its draft report of June 2021, the Parliament’s Committee on the Internal Market and Consumer Protection foresees a role for national courts in enforcing the DMA, but only proposes a consultative role to competition authorities. The two bodies will have to find a way to square the circle and avoid lengthy negotiations that have many times ground proposals to a halt.
