EU negotiators prepare to close in on Digital Markets Act

The EU institutions have been working towards an agreement on the gatekeeper obligations, scope and governance ahead of what might be the final high-level meeting next week.

Since the beginning of March, the French presidency of the EU Council has organised a series of internal meetings to get more room for manoeuvre on the most critical parts of the proposal.

The objective is to obtain a revised mandate at a meeting with EU ambassadors (COREPER in EU jargon) on 23 March, the prelude to reaching an agreement on the fourth political ‘trilogue’ between the member states, Parliament and Commission on 24 March.

EURACTIV lays down where things stand at the moment.


The Parliament’s rapporteur, Andreas Schwab, invested much political capital in raising the thresholds. An EU diplomatic source noted that there might be some flexibility, though some member states are still concerned with the geopolitical impact of limiting the scope to American companies.

In terms of the ‘core’ platform services considered to designate a gatekeeper, a definition of web browsers was included in the last four-column document. The Commission published a study raising antitrust concerns on the highly concentrated voice assistance market in January. Connected TVs might be included under the definition of operating systems.

Counting active users has been at the centre of a controversy involving online marketplaces like Booking and e-commerce platforms like Zalando, which considered the definition did not reflect their transaction-based business model.

On Monday (14 March), one more attempt was made with an amendment from the Netherlands and Germany. However, EURACTIV understands that the definition is unlikely to change as the negotiators insist on keeping the definition business model neutral.


Many countries want to ensure a role for their competition authorities and avoid that the Commission can ‘veto’ their national investigations. Based on the last compromise, a national authority could conduct its investigations for infringing the DMA obligations if national law allows it.

The Council accepted the Parliament’s idea to have a European High-Level Group of Digital Regulators, which will operate mainly upon request of the Commission.

On emerging gatekeepers, the Commission proposed ample discretions to apply new obligations, whereas some EU countries have been calling for a more ‘targeted’ approach.

The definition of systematic non-compliance was broadened, reducing from three to two the number of cases and extending the timeframe from five to ten years.

A fine of up to 20% of annual turnover has been included for gatekeepers who violate the same obligations in 10 years. However, many countries considered Parliament’s proposal for a 4% minimum fine too high and a possible compromise might be found at 1%.

The Parliament is also pushing to give the Commission the power to block so-called ‘killer acquisitions’ in case of systematic non-compliance. Many member states have asked for a compromise text to be made more legally sound and proportionate.


The gatekeepers’ list of dos and don’ts has been partially agreed, with two key exceptions: interoperability for social media and messaging services; and fair, reasonable, and non-discriminatory terms, FRAND for short.

FRAND obligations were initially meant to ensure app developers would have a fair chance to offer their services in the app stores. MEPs wanted to extend them to all core platform services. The Presidency mentioned a limited extension to social media and search engines, but there is no compromise text yet.

Making social networks interoperable was dismissed in the Council for the potential implications on content moderation. However, an agreement seems possible for instant messaging.

According to a Commission proposal from Monday, seen by EURACTIV, gatekeepers would have to ensure free of charge interoperability on text messages, images, videos, phone and video calls while also maintaining end-to-end encryption. However, there are still several technical questions pending from the member states.

The French presidency also proposed accepting the Parliament’s position on so-called ‘vertical interoperability’, requiring gatekeepers to make their operating systems free of charge compatible with third parties’ software and hardware, wearables included.

On a critical obligation preventing gatekeepers from combining data from different services, the EU negotiators adopted an amendment from the Irish Council for Civil Liberties to request consent for each processing purpose separately, instead of a single sign-in option.

The provisions on combining data are linked with the proposal to ban advertising on minors, which is likely to move to the DMA’s sister proposal, the Digital Services Act. Still, a second diplomat expressed concerns that there has not been a complete analysis of the two proposals’ potential legal contradictions.

Another concession for the Parliament might require users to decide the default apps when they first buy a device. To avoid imposing very long ‘choice screens’ on consumers, the French presidency proposed limiting this obligation to search engines and web browsers.

What next

Another complication arises from the French law on a “période de réserve électorale“, which forbids government members from travelling in the exercise of their duties.

Although the law does not prohibit travel by ministers as political figures, the French government will be under rigorous instructions not to travel as of 1 April because they have been accused of using the presidency to boost Emmanuel Macron’s re-election chances in the April elections.

As result, the French presidency is under even more pressure to reach an agreement next Thursday. However, it will first need clearance from EU ambassadors next Wednesday on key outstanding issues like thresholds, killer acquisitions, FRAND, and interoperability.

“The French presidency will get an updated mandate in COREPER. The question is if they will get all the flexibility they are asking for. If that is not the case, it will be up to the Parliament to make a move,” a third diplomat said.


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