Newsletter: DMA compliance day puts law to proof

Key diary dates

• Monday 4 March: Packaging and Packaging Waste Regulation trilogue negotiations, European Commission, Parliament and Council expected to agree final text.

• Tuesday 5 March: European Commission to release defence strategy, after promising vaccine-style joint procurement and industry support.

• Thursday 7 March: Digital Markets Act applies, gatekeeper tech companies must comply fully from today.

In spotlight

From Thursday (7 March) the 22 core digital platform services provided by designated gatekeepers Alphabet, Amazon, Apple, ByteDance, Meta and Microsoft must fully comply with a list of do’s and don’ts under the EU Digital Markets Act (DMA), which aims to ensure contestable digital markets by preventing gatekeepers from imposing unfair conditions on businesses and consumers.

Tech giants have already adapted models to conform to the new law, such as Google, which is letting EU users choose which services share their data, while Apple has removed homescreen apps for users in the EU, claiming it wanted to avoid integrating cumbersome architecture to ensure DMA compliance.

The Thursday deadline will not settle tech giants’ behaviour at a fixed moment. The European Commission needs to monitor implementation and compliance with the DMA obligations – it has reportedly already sent requests for information into the market on Apple’s homescreen apps decision – and the EU executive can open market investigations to update the obligations and design remedies to tackle systematic infringements of the rules.

Whether the new toolkit works or not will depend over time on the level and justification of third party complaints under the new regime.

The DMA is designed to allow more efficient enforcement of the tech giants than the unwieldy apparatus of competition rules. Spotify filed a competition complaint with the EU in 2019, claiming that Apple’s App Store rules limited choice and competition because of fees levied on purchases made through the store including music streaming subscriptions.

The commission only today closed its decision in that case, fining the tech giant €1.8bn, showing the timescale involved.

But Spotify seems unimpressed by Apple’s plan to comply with the DMA, describing this in January as “a complete and total farce”, and claiming Apple is trying to force developers not to leave its store.

The jeopardy for big tech remains as significant under the DMA as under competition rules, with the EU executive able to slap fines of up to 10% of a company’s worldwide turnover for non-compliance.

For the new law to prove its worth however, enforcement will need to be swifter than under existing competition rules.

Policy newsmakers

@Campinos                                                                                                                   @Negrão

Patent rulemakers?

New rules on Standard Essential Patents (SEPs), beefing the powers of the European Intellectual Property Office (EUIPO) – whose Executive Director is João Negrão – passed through the European Parliament plenary session last week (28 February). As member states have not yet agreed over the text, a final deal can only come under the mandate of the new European Commission, potentially in the second half of 2024. The President of the European Patent Office António Campinos meanwhile urged lawmakers voting on the deal to ‘press pause’ in an interview with Euronews claiming that the regulation is not yet fit for purpose and the commission has rushed it through too quickly. Euronews has exclusively reported that OLAF is mulling complaints related to EUIPO appointments.

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