The Slovenian Presidency circulated draft versions of the DMA and DSA, seen by EURACTIV. If the deadline of the Competitiveness Council in November is to be met, these are likely to be very close to the final versions. The key takeaways are the following. In the DMA, what is perhaps more remarkable is what did not change. The bid from France, Germany and the Netherlands to get national competition authorities involved in the enforcement was unsuccessful. “The Commission is the sole authority empowered to enforce this Regulation,” the new draft reads. Provisions on killer acquisitions, strongly demanded by Germany, were also not included. Furthermore, the definitions of core platform services are roughly the same ones EURACTIV reported two weeks ago. Compared to the initial text, there was no movement of provisions under Art. 5, on mandatory obligations for the gatekeeper, and Art. 6, on additional obligations that the Commission might decide to impose. That contrasts with the Parliament’s draft report, which has seen many additional obligations becoming mandatory. Regarding the regulatory dialogue (Art. 7), some member states raised concerns that the gatekeepers should be allowed to ask for clarification. In the new text, the Commission has retained its discretion in deciding whether or not to engage in regulatory dialogue. However, in doing so, the EU executive will have to respect “equal treatment, proportionality and the principle of good administration.” In the second draft, a significant change was the threshold for requesting the European Commission to start a market investigation (Art. 33) on the matter of systematic non-compliance (Art. 16). Only one country will be able to request a probe if it deems a gatekeeper is systematically infringing DMA obligations. Several countries asked to lower the initial threshold of at least three member states, change the gatekeeper designation (Art. 15) and the matter of investigations on new services and practices (Art. 17). In the new text, however, the requests were not addressed. In the DSA, the presidency continued with its approach to publishing chapter by chapter rather than the entire document. The new draft concerns chapters 1 and 2, which only need some minor clarifications according to an EU diplomatic source before they can be considered final. Online search engines have been included alongside ‘caching’ services (Art. 4). A second EU diplomatic source defined the approach as “very perplexing”, noting that the way search engines have been included in the proposal seems to add a fourth category of intermediary services on top of the three introduced in the e-Commerce Directive: caching, hosting and mere conduit. The inclusion of search engines comes upon the initiative of the French, but the second source expressed doubts on the way it was formulated in the compromise text. The change likely to spur more controversy concerns a new recital that would allow national judicial or administrative authorities to restore legal content taken down from an online platform. While recitals do not have the same legal standing as articles, the proposal, which came from Poland and Hungary, raised some eyebrows as it could see content reinstated for political reasons. Under the definitions of online services (Art. 2), online marketplaces have been defined as “online platform which allows consumers to conclude distance contracts with traders.” Therefore, that only covers Business-to-Customer platforms. A third diplomatic source told EURACTIV that some member states want to expand it also to include Customer-to-Customer platforms. Provisions regarding order to act against illegal content (Art. 8) and order to provide information (Art. 9) have also been modified to better keep in consideration the national legislation. Don’t miss: Commission Executive Vice-President Margrethe Vestager called for transatlantic collaboration on addressing the impact of emerging technologies on democratic institutions, saying that the EU and US concerns are the same. A key aim of the recent Trade and Technology Council, Vestager said this week was to “show that democracy can deliver.” While there may be significant areas of convergence between the two sides, sticking points remain. Key among them is the EU’s push for digital regulation, including the DMA, set to impact the largest tech companies, all of which are currently American. Vestager told EURACTIV that the US administration did not raise the point directly in Pittsburgh but also stressed that the concerned companies should directly bring their concern to Brussels to avoid a game of ‘Chinese whispers’. Asked about the Nvidia-Arm case (more on that below), Vestager noted that “we don’t have a say about US legislation. That is mirrored by the US not having a say in European legislation.” Read more. Also this week: Europol nears a stronger mandate for developing data-driven policing tools. The Irish Data Protection Commissioner agreed with Facebook’s legal basis for processing personal data outside of GDPR requirements. European Parliament adopted the extension of the Roaming Regulation with lower wholesale price caps. The head of the French competition authority left the office after she was not reappointed. Before we start: Data protection is at a critical stage in Europe, with decisions of privacy watchdogs picking up the pace and the beginning of judicial review at both the national and the EU level. We have asked European Data Protection Supervisor Wojciech Wiewiorowski about the recent proposal to organise a conference to review the enforcement of GDPR. He also provided his views on the current criticism around GDPR’s one-stop-shop, the Privacy Shield negotiations, the debate around encryption and the e-Privacy negotiations. |