Faced with the profound upheaval in competition dynamics brought about by this digital revolution, the Autorité is ever more vigilant, and is strengthening its means of action. The new European regulatory tools (Digital Markets Act and Digital Services Act) will make it possible to better understand the challenges posed by the major platforms. A leitmotiv for the Autorité: invest in digital knowledge, adapt our approach and tools to act quickly!
A 360° view on the digital giants
The introduction of “upstream” regulation by the European digital reform
While these large companies have made a huge contribution to our societies, they need to be regulated in a way that is commensurate with their economic weight or their structural role for the ecosystems or communities of users over which they have control.
The significant market power acquired by certain actors, based, depending on the case, on their technological expertise, the importance of network effects, the collection of data on a massive scale or the economies of scale from which they benefit, as well as the consequences of the anticompetitive practices sometimes applied, have prompted competition authorities to undertake an in-depth reflection on updating their analysis grid, their methods and the tools at their disposal. The public health crisis has highlighted the structural position that the digital giants have taken in society, with platforms further consolidating these positions during this period.
At the European level, a new regulatory framework for digital companies is being prepared through two draft regulations, the Digital Services Act (which among other things will enhance the responsibility of platforms with regard to illegal content) and the Digital Markets Act. Whereas until now, competition authorities have taken action against anticompetitive practices by platforms downstream (with ex post regulation, i.e. when the practices have been applied) – with an investigation time scale which was not always compatible with the speed of evolution of the markets in question – the new legislation provides for an “upstream” approach (ex ante regulation, which involves the implementation of regulations to prevent practices from occurring in the first place).
The Digital Markets Act provides that the structural actors that have been identified as ‘gatekeepers’, i.e. those that control access to certain markets, will be required to comply with a list of predefined prohibitions and obligations. This will include banning practices such as discrimination in favour of their own services, but also obliging them to ensure interoperability with their own platform, or sharing the data that is provided or generated in the course of interactions between user companies and their customers on the platform in question. Failure to comply with the list of prohibited conduct will result in a fine (up to 10% of their total annual worldwide turnover) and periodic penalty payments. The Digital Markets Act therefore aims to ensure that these platforms behave fairly online, and should facilitate the opening up of markets by allowing the expansion of smaller platforms, SMEs and start-ups.