The consequences of the European Commission’s DMA and DSA proposals

Avance’s Senior Advisor Petri Rouvinen, along with ETLA’s Heli Koski, debates the consequences of the European Commission’s twin proposal – the Digital Markets Act (DMA) and the Digital Services Act (DSA) – in Talouselämä, the leading business periodical in Finland. DMA will fundamentally mold business practices of “gatekeeping” digital platforms in the single market. DSA in turn will have major implications on online content moderation and related rights.

DMA and DSA grow out of the Commission’s frustration in applying traditional competition policy tools in the digital domain. Petri Rouvinen notes that “in essence, every item in the package can be traced back to an antitrust case the Commission has pursued in the 2000s”. He notes that it is probably this starting point that makes the package incoherent; a more “principled” approach, in which the prohibitions and obligations would have been derived from a set of conditions such as preserving the contestability of markets, should perhaps been adopted.

Surprisingly, the package does not really include new competition policy tools, e.g., in merger control. Furthermore, the core of the current ads-based “surveillance economy” remains intact and neither intermediary market power nor competition of ecosystems is addressed directly.

Some controversies are built into the package. As large platforms must become more open, dealing with their intellectual property rights and trade secrets become tricky. A third party’s data access conflicts with GDPR’s privacy guidelines. A good balance between “appropriate content” and “free speech” is difficult to achieve in a heterogenous single market.

Partner Mikko Alkio notes that Avance Attorneys follows closely developments in this domain and stands ready to help its clients in issues related to platform competition, online content, and digital rights.