DMA: surprise at the six digital giants concerned

After the DSA (Digital Services Act), it’s time for the DMA. The European Commission published, this Wednesday, September 6, the list of services that will be affected by the Digital Markets Act. As a reminder, the DMA introduces new rules for digital giants, acting as “access controllers”.

These “gatekeepers” are platforms that have a significant impact on the European internal market and benefit from “a solid and sustainable position”. The DMA aims to guarantee “fair and open” digital markets so that they do not use their dominant position to act as “bottlenecks” between companies and end users,

Brussels has selected six actors in this first list :

• Alphabet (parent company of Google)
• Amazon
• Apple
• ByteDance
• Meta
• Microsoft

Samsung has not – for the moment – been recognized as an access controller. Facebook Instagram, LinkedIn), instant messaging (WhatsApp, Messenger) or operating systems (Android, iOS, Windows).In all, 22 services are concerned in the fields of social networks (TikTok, Facebook, Instagram, LinkedIn). They are shown in the infographic below.

No Gmail orOutlook.com

Although Gmail, Outlook.com and Samsung Internet Browser reach the thresholds set by the Regulation on digital markets, the Commission considered that Alphabet, Microsoft and Samsung have provided “sufficiently strong arguments” not to consider these services as access points.

Similarly, we will be surprised not to find in the list, Apple’s chat, iMessage and, as far as Microsoft is concerned, its Bing search engine, its Edge browser and its advertising agency Microsoft Advertising. Brussels informs that it has opened market investigations in order to hear the arguments of the two American groups. If these services reach the defined thresholds, they would not, in their eyes, be “access points”.

A fifth investigation has been opened to examine in more detail the case of Apple’s operating system dedicated to its tablets (iPadOS). He should be designated as an access controller, “although he does not reach the thresholds”.

Winning lobbying from Microsoft and Apple

According to the Financial Times, Microsoft and Apple have exerted intense lobbying – it seems to be a winner – to take their iMessage and Bing services off the list. Microsoft believes that its search engine is not as popular as Google’s, with less than 3% market share worldwide, and should therefore not be subject to the same obligations.

For its part, Apple argued that iMessage did not reach the threshold of the number of users required to comply with the DMA. Natively integrated into any iPhone, iPad and Mac, the service would have about a billion users worldwide without Apple keeping detailed statistics, especially in terms of geographical distribution.

The new regulation, which will apply from March 6, 2024, provides for a set of obligations to be respected under penalty of financial penalties that may reach up to 10% of global turnover and 20% in case of repeated violations.

Companies valued at more than 75 billion euros on the stock exchange or with a turnover of 7.5 billion euros in Europe and with at least 45 million active end users and 10,000 user companies in the EU are affected by the DMA.