The digital economy is transforming our lives and businesses at lightning speed. Faced with the emergence of major technological players who are structuring access to numerous online services, the European Union has decided to adapt its regulatory framework in order to ensure a level playing field for consumers. fair and open digital markets. The Digital Markets Act (DMA), which comes into force in 2023, represents a major step in this evolution. It adds to the existing tools for dealing with challenges of competition law on the Internet. It aims to ensure that digital markets remain fair and open to competition, by imposing specific obligations on the largest platforms. But what does the DMA actually change? How does it fit in with traditional competition law as we know it? And what is the role of the French Competition Authority in this new landscape? This article takes a closer look at what's at stake in these new regulations.
What is the DMA (Digital Market Regulation)?
The DMA (Regulation (EU) 2022/1925) is a European law that aims to prevent competitive imbalances in digital markets before they have any harmful effects. The central idea is that some very large online platforms act as "gatekeepers" (or gatekeepers between companies and end consumers, and that their position gives them such market power that they risk stifling innovation and competition, in particular by targeting the most vulnerable consumers. risks associated with abuse of a dominant position on the Internet.
- Who are the "access controllers"? The DMA is not aimed at all digital businesses. It specifically targets a small number of very large companies designated by the European Commission. To be designated a "gatekeeper", a company must provide one or more "essential platform services" (such as search engines, social networks, certain messaging services, operating systems, online marketplaces, application shops, etc.) and meet strict quantitative criteria relating to its European turnover, market capitalisation and above all its number of active users (both professional and end users). The Commission has already designated several well-known companies as access controllers for some of their services.
- Ex ante" regulation: anticipation rather than punishment. This is the main difference between the DMA and traditional competition law. Instead of waiting for a practice to produce anti-competitive effects before analysing it and possibly penalising it (the ex post), the DMA directly imposes on the designated access controllers a list of obligations to be respected and prohibitions not to be crossed (approach ex ante). The idea is to act upstream to keep markets open.
- What are the obligations and prohibitions? The DMA contains around twenty specific rules. Without being exhaustive, here are a few concrete examples of what access controllers must or must not do:
- Not to favour their own services in relation to those of third-party companies using their platform (prohibition of self-referencing).
- Enable professional users to access data they generate by using the platform.
- Enable end users to easily uninstall pre-installed applications on an operating system or device.
- Do not prevent companies from offering the same products or services at different prices on other platforms or on their own website (restricted parity clauses).
- Do not use non-public data from user companies to compete with these same companies.
- Enabling interoperability certain basic functionalities of their messaging services with those of smaller competitors (subject to technical conditions).
- Who checks compliance with the DMA? It is mainly the European Commission which is responsible for monitoring application of the DMA and penalising breaches. The fines provided for can be extremely high, up to 10% of the company's total worldwide turnover, and even 20% in the event of a repeat offence.
DMA and Competition Law: Two Complementary Tools
A key question is how this new regulation fits in with the competition rules we have been applying for decades.
The fundamental point is that the DMA does not replace existing competition law. The rules prohibiting cartels (Article 101 TFEU and L. 420-1 of the French Commercial Code) and abuses of dominant positions (Article 102 TFEU and L. 420-2 of the French Commercial Code) continue to apply in full, including to companies designated as access controllers. Similarly, national rules on restrictive practices (such as significant imbalance, L. 442-1 C. com.) or merger control remain in force.
The DMA and competition law are therefore additional :
- Different scope of application : The DMA specifically targets designated access controllers and imposes predefined rules on them because of their status. Competition law potentially applies to any companyThis requires a case-by-case analysis of the effects on the market.
- A different approach: DMA is preventive (ex ante), competition law is mainly repressive (ex post).
- Possible interactions: The same practice by an access controller could potentially breach both an obligation of the DMA and constitute an abuse of a dominant position under competition law. In this case, the European Commission and/or the national competition authorities could choose the most appropriate tool to deal with the problem. For example, even if a practice is covered by the DMA, the French competition authority could decide to intervene on the basis of Article L. 420-2 if this provides a quicker solution or one better suited to the national context. Conversely, the principles underlying the DMA could influence the way in which competition authorities interpret the concept of abuse of a dominant position in the digital sector.
What is the role of the French Competition Authority in this context?
While the European Commission is the orchestra conductor for the application of the DMA, national competition authorities, such as the French competition authority, have a role to play, as specified in particular by the French law aimed at securing and regulating the digital space (known as the SREN law).
- Assistance to the Commission : The Autorité de la concurrence (as well as the services of the Minister/DGCCRF) must assist the Commission when it conducts investigations or inspections in France under the DMA. This may involve facilitating access to premises, helping to gather information or attending hearings.
- National initiative surveys : The Authority may, on its own initiative, open an investigation if it suspects non-compliance with the DMA obligations on French territory. The main purpose of these investigations is to gather information and pass it on to the European Commission, which remains competent to take enforcement action.
- Contact point for information: Companies or other players may report to the French Authority any practices or behaviour of access controllers that they consider to be contrary to the DMA. The Authority is then obliged to forward this information to the Commission if it considers it relevant.
- Continued application of competition law : This is undoubtedly the most important role. The French Authority retains all its competence to apply Articles L. 420-1 and L. 420-2 of the French Commercial Code, as well as Articles 101 and 102 TFEU, to digital players, including access controllers appointed by the Commission. It can therefore continue to penalise cartels or abuses of dominant positions in the digital sector, in parallel with the application of the MAD by the Commission.
In short, while the French Autorité is not the DMA's main watchdog, it acts as an important relay for the Commission in France and retains its essential role in applying the traditional competition rules, which remain more relevant than ever in the digital economy.
What are the practical implications for your company?
The arrival of the DMA has varying consequences depending on your company's position in digital markets.
- For (potential) access controllers : The DMA imposes major compliance obligations and potentially profound changes to their business models. The financial risk of non-compliance is considerable. Constant regulatory and legal monitoring and proactive adaptation are essential.
- For companies using platforms : If you depend on services provided by a gatekeeper (e.g. a marketplace, an app shop, a search engine for your visibility), the DMA may give you new rights. You could have better access to your customer data, more freedom to propose different offers outside the platform, or less fear of being disadvantaged in relation to the platform's own services. It is becoming strategic to be aware of these new rules so that you can enforce them.
- For competitors of access controllers : The DMA explicitly aims to make markets more "contestable", i.e. more open to competition. By limiting certain practices of the dominant players, it could create new opportunities for innovative or smaller companies.
- For all digital companies: The adoption of the DMA, combined with other texts such as the DSA (Digital Services Act) and stricter application of traditional competition law in this sector, signals increased regulatory attention. Companies need to integrate this dimension into their development strategy.
A changing landscape
The DMA is an ambitious and complex regulation, the full effects of which will unfold gradually. Its interaction with existing competition law, the way it is interpreted by the Commission and the European courts, and the way in which businesses adapt to it, will shape the digital competitive landscape of tomorrow. There is no doubt that companies operating in this ecosystem must remain particularly vigilant and well advised to navigate this new regulatory environment.
The legal framework applicable to the digital sector is constantly changing. Understanding the implications of the DMA and its relationship with competition law has become essential for many businesses. Our firm is keeping a close eye on these developments and can help you assess the impact of these new rules on your business and define the best strategy. To benefit from a strategic, personalised legal advicePlease contact us to discuss your specific situation.
Sources
- Regulation (EU) 2022/1925 of the European Parliament and of the Council of 14 September 2022 on fair and contestable contracts in the digital sector (DMA).
- Law no. 2024-449 of 21 May 2024 aimed at securing and regulating the digital space (SREN).
- Commercial Code, in particular articles L. 450-11, L. 450-12, L. 462-9-2, L. 490-9 (as amended or created in connection with the DMA/SREN).
- Treaty on the Functioning of the European Union (TFEU), articles 101 and 102.
- French Commercial Code, articles L. 420-1 and L. 420-2 (French law on anti-competitive practices).
- Communications and decisions of the European Commission relating to DMA.
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