"Our Take
The Ex Ante Tool and DSA Consultations represent sweeping and ambitious initiatives that are likely to result in some of the most important legislative proposals of the Von der Leyen Commission. Although both consultations invite a wide range of views, and some stakeholders will no doubt feel that no new legislation is required, it seems clear that the EC is likely to propose new legislation following both consultations, even if the scope of such legislation is unclear today.
While it is premature to speculate on the details, the EC seems highly likely to propose new legislation giving it powers to intervene in markets viewed as presenting structural competition concerns without the need to identify a pre-existing infringements of EU rules. The proposed powers will likely include intervening directly with binding measures, whether of a general nature or targeted to individual companies, not merely to making recommendations. It is less clear whether the EC will propose powers to intervene only against dominant companies, as proposed by the Benelux authorities, or more broadly, along the lines of the powers enjoyed by the UK CMA.
It also seems clear that the DSA Consultation will be followed by new proposed legislation in the Digital Services Act package. Some of this legislation may take the form of relatively technical amendments to existing legislation, such as the e-commerce directive and EU social legislation. But the EC is also likely to propose innovative legislation defining large online platforms with a gatekeeper role, imposing special obligations on those platforms and potentially creating a new enforcement mechanism allowing for the imposition of targeted remedies on a case-by-case basis. The relationship between such powers and existing sectoral regulation, as well as a possible new ex ante tool, will raise complex questions.
Both consultations raise a number of issues around access to data and use of algorithms. As such, they are closely related to other major EU initiatives, including the EC’s European data strategy and artificial intelligence initiatives. Both of these initiatives also involved major consultations and will likely lead to legislative proposals, including a major Data Act proposal in 2021. These measures will likely deal with related issues, such as measures to encourage data sharing and interoperability, particularly for public institutions and data and in key economic areas such as energy, healthcare and mobility.
A number of other EC workstreams will also affect the baseline – i.e., enforcement of existing EU competition tools -- for the Ex Ante Tool Consultation and the core questions in the DSA Consultation. Separate from the two consultations, the EC is engaged in a multi-prong EU antitrust reform process that may lead to major changes in areas including the assessment of horizontal and vertical cooperation agreements, market definition, and possibly merger control.
Companies doing business in the EU, not limited to those traditionally considered as “digital” companies, will thus be affected by a variety of interrelated EU antitrust and regulator developments in the coming years. Responding to the Ex Ante and DSA Consultations will be an important next step in influencing the direction of EU regulations and antitrust policy for years to come."
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