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Breton reveals details of future digital ‘gatekeeper’ definition in EU law

The EU’s Internal Market Commissioner Thierry Breton has disclosed details of the forthcoming criteria for the definition of so-called “gatekeeper platforms” as part of the hotly-anticipated Digital Markets Act set to be proposed by the EU executive in early December

By: EBR - Posted: Thursday, November 26, 2020

"As part of the Commission’s Digital Markets Act, planned for publication on December 9, the executive is set to unveil a list of ex-ante prohibited practices by digital gatekeepers, as well as a market investigation tool that could be used to examine how certain markets are prone to failure."
"As part of the Commission’s Digital Markets Act, planned for publication on December 9, the executive is set to unveil a list of ex-ante prohibited practices by digital gatekeepers, as well as a market investigation tool that could be used to examine how certain markets are prone to failure."

by Samuel Stolton

The EU’s Internal Market Commissioner Thierry Breton has disclosed details of the forthcoming criteria for the definition of so-called “gatekeeper platforms” as part of the hotly-anticipated Digital Markets Act set to be proposed by the EU executive in early December.

Gatekeeper platforms are those that control access to critical online services, such as Apple’s App Store or Google’s Play Store.

However, there has been a heated debate in Brussels over the specifics of the Commission’s forthcoming definition of these platforms, which are set to be regulated as part of the EU’s landmark clampdown on digital giants later this year.

Speaking to reporters on Wednesday (25 November), Breton noted how online platforms would be assessed against criteria including their impact on the EU’s single market, whether such services are “unavoidable” for smaller players in the ecosystem, and whether or not such platforms occupy a dominant position in the market so as to be in a position to “kill off” competition.

“The most important criteria is the platforms’ impact on the single market, that’s a criterion that we regard as very important,” Breton said.

“Another one is whether or not a service is ‘unavoidable.’ In other words, if you are an SME and you want to sell your product and you don’t have any of other choices but to go through a certain platform, then that platform could be considered within the scope of the gatekeeper criteria,” he said.

Should certain platforms be able to wade off smaller competitors with ease, then they would also come under the gatekeepers scope, he explained.

Size doesn’t matter

The EU’s internal market chief hastened to add, however, that the Commission had not sought to target any specific company in its definition of gatekeeper platforms, and that it was not necessarily the ‘size’ of an online platform that was at the forefront of the Commission’s approach.

“We work by objective criteria and we don’t have a ‘list’ of platforms,” he said. “What we try to capture is definitely the behaviour of the platform. Size, per se, is not a problem.”

“But of course, size can amplify the impact of harmful behaviour. So then, all this is taken into consideration in order for us to have the final list of criteria.”

As part of the Commission’s Digital Markets Act, planned for publication on December 9, the executive is set to unveil a list of ex-ante prohibited practices by digital gatekeepers, as well as a market investigation tool that could be used to examine how certain markets are prone to failure.

As part of a recently leaked blacklist, which highlighted a range of practices that could potentially be outlawed by the Commission, so-called “gatekeeper platforms” could be prohibited from using the data they collect online unless they make this data available for use by smaller platforms. This comes in addition to bans on certain “self-preferencing” activities as well as a prohibition for gatekeepers to pre-install exclusively their own applications on hardware systems.

And while it is understood that the prohibited practices have generally been easier to find consensus on within the Commission, what has proved more of a testing challenge has been agreeing on a common definition for gatekeeper platforms.

Speaking at a recent digital policy event, Armin Jungbluth, head of the digital services division in the German Economy Ministry, noted how finding common ground on such a definition could end up being a divisive issue in future negotiations.

Jungbluth said he is regularly contacted by many platform businesses, concerned that their services may come under the scope of the new rules. “The most difficult first step” for the EU executive will be defining what a ‘gatekeeper platform’ actually is, he said.

For Germany, it was important to have a set of “clearly defined quantitative or qualitative criteria” to assess which platforms would come under such a scope, Jungbluth said.

*first published in: www.euractiv.com

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