DMA – Digital Markets Act

The "Digital Markets Act (DMA)" is part of the so-called "Digital Services Package" which also includes the "Digital Services Act (DSA)". These legislative initiatives are part of a European regulatory program, which is expected to have a huge impact on digital sector, called "A Europe fit for the Digital Age" which, in addition to these, will include other diplomas, such as the "Artificial Intelligence Act", "Data Governance Act" and "Digital Operational Resilience Act".

The "DMA" was approved by the European Parliament and the Council, respectively on 5 and 18 July 2022, and is now awaiting publication in the official journal of the Union, entering into force twenty days after it, followed by a transition period of six months, before it becomes applicable, thus the first designation of a "Gatekeeper" is expected during the first half of 2023.

Despite the expected impact of the "DMA", it will only apply to a small number of entities, the so-called "Gatekeepers", that is, online platforms that establish the connection between consumers and companies, and which have become practically essential for internet users, such as search engines, marketplaces or social networks, provided they have, in the European Union, an annual turnover of more than 7.5 billion euros, a market capitalization of more than 75 billion euros, 45 million monthly active end users and 10,000 business users.

If it meets these criteria, the entity must inform the European Commission, which will qualify the entity as a "Gatekeeper", and it will be subject to compliance with various requirements and obligations arising from the "DMA", being this status reassessed every 3 years.

Among the obligations from the "DMA", to which the "Gatekeepers" are subject, stands out the obligation to allow devices that use their operating system to uninstall pre-installed programs and allow the installation of other equivalents of third parties, on the other hand, when displaying goods and services to consumers must apply transparent, fair and non-discriminatory rating conditions, not being allowed to treat their goods and services more favorably than those of third parties who are using the platform.

Concerning advertising, the "Gatekeepers" are obliged to comply with transparency criteria regarding prices, fees, and performance of the advertisements paid by the user. Regarding another very sensitive issue, data, the "Gatekeepers", in addition to being required to facilitate the portability processes, are prohibited from combining personal data of users obtained through the main platform with data acquired from other services provided by the same entity or by third parties, unless the user has given express and specific consent.

It is expected that, with the application of the "DMA", there will be some significant changes, namely, for companies that operate on "Gatekeeper" platforms, there will be a decrease in the enormous asymmetries that currently exist, benefiting from a higher level of security. equality and transparency, as far as users are concerned, it is expected that there will be some impact, namely about the security and use of their personal data and the freedom to choose digital services.

Finally, it should be noted that the application of the "DMA" is the responsibility of the European Commission, which may impose fines on "Gatekeepers" who do not comply with the requirements of the law, fines that can amount to up to 10% of the entity's turnover, which can reach 20 % in case of recidivism, in addition to other ancillary measures that may include a ban on the acquisition of other companies in the digital sector or even the forced sale of business areas of the "Gatekeeper".