EU ANTITRUST: HOT TOPICS & NEXT STEPS

Prague, Czechia

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

(ii) online search engines, (iii) social networking, (iv) video sharing platform services, (v) number- independent interpersonal electronic communication services, (vi) operating systems, (vii) cloud services, and (viii) advertising services, including advertising networks, advertising exchanges, and any other advertising intermediation services, where these advertising services are being related to one or more of the other core platform services mentioned above.” Core platform services are those, where the problems are the most noticeable and where a limited number of large platforms act as gatekeepers in between business users and end customers (Ibidem, Recital 17). However, not every provider of the core platform services is considered a gatekeeper and vice versa. The DMA contains both a quantitative and qualitative criteria the undertaking must met to be considered a gatekeeper. The qualitative criteria are: 1) the operation of the undertaking has significant impact over the internal market, 2) it operates a core platform service that is an important gateway to the end customer, 3) the undertaking “enjoys an entrenched and durable position in its operations” (or it is foreseeable to have one in near future) (Ibidem, Article 3(1)). The quantitative criteria consider turnover, monthly active end users, and / or active business users, and finally, if the latter criteria were met in the each of the last three financial years (Ibidem, Article 3, Section 2). If the undertaking meets all the quantitative criteria, it informs the Commission which afterwards designates the undertaking as a gatekeeper (Ibidem, Article 3 §§ 3 and 4). If a company is identified as a gatekeeper it is obliged to follow the rules set further by the DMA, especially in Articles 5 through 13 of the DMA. The question is, though, whether the DMA sets sufficient rules to prevent Google from the conduct described above and therefore could potentially set borderlines that will help Google and other gatekeepers dominating other core services (Geradin [online], 2022) to modify their services to potentially avoid ether a competition investigation or investigation pursuant to the DMA. 4.2 Effect on Google The regulation introduces clear rules that can be effectively pursued and, in case of breach, enforced by the regulatory bodies (Anderson, Marinielo [online], 2021). The most important obligations of the gatekeepers with regard to the functioning of the market are contained in the Articles 5 and 6 of the DMA. With regard to the Google Shopping case, the DMA regulates and prohibits such behavior of the gatekeeper that treats “(…) more favorably in ranking services and products offered by the gatekeeper itself or by any third party belonging to the same undertaking compared to similar services or products of [a] third party and apply fair and non-discriminatory conditions to such ranking” ((European Commission [online], 2020a, Article 6 § 1(d).

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