The European Commission ("EC") is considering proposing two legislative instruments that would impact competition rules in the EU digital single market. It has launched public consultation procedures on the two initiatives, which we believe would be of interest for your business:

  1. New Competition Tool ("NCT") supporting interventions that should address structural competition problems across markets

Different policy options are considered with the main aim to grant new powers to the EC and national competition authorities ("NCAs") that would allow them to conduct detailed market investigations and to intervene in markets with structural competition problems by imposing behavioural and, where appropriate, structural remedies. Some of the proposed measures could go beyond companies that are already dominant, allowing the Commission to take preventive action when a structural risk for competition or a structural lack of competition exits.

The EC would also recommend legislative action to improve the functioning of the market concerned. Unlike in the case of ordinary investigations, there would be no finding of an infringement, no fines and no damage claims. The NCT essentially expands the powers of the EC and NCA in sector enquiries, arming them with new powers to prevent market foreclosure and exploitative abuse.

More information is available here.

  1. Ex ante regulatory instrument for regulating large online platforms acting as gatekeepers

This initiative aims to resolve concerns with unfair trading practices of large online platforms that are able to control increasingly important platform ecosystems in the digital economy. It sets out options for new regulatory powers of the EC, and possibly national regulators, that should ensure that markets impacted by large online platforms acting as gatekeepers remain fair and competitive.

The main goal of the initiative is to guarantee a wide choice of digital services providers at all times with and market accessibility of new players. Some of the contemplated policy options would establish new obligations and prohibit certain "blacklisted" practices and could impose tailor-made remedies such as non-personal data access obligations, personal data portability requirements or interoperability requirements.

More information is available here.

These two initiatives are part of the Digital Services Act package announced in the "Shaping Europe's digital future" communication and pay special heed to digital markets.

All interested parties, including companies active on digital and digitally-enabled markets such as yours, are invited to provide feedback to the EC on the above initiatives until 8 September 2020, preferably by filling in the respective online questionnaire.

For your convenience, please find printouts of the two questionnaires attached. The online forms are accessible via the following links:

Originally published July 2020.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.