| NOTAS: | Issue paper
"The DMA includes quantitative and qualitative criteria to guide designation. The designation is, however, not automatic, and the text leaves room for different interpretations on whether the undertaking meets the initial thresholds or not. Thus, the designation process is likely to be a contested one. The author of the paper focuses on the three main questions around the designation process, namely:
• One gatekeeper designation or multiple designations? It is not clear whether gatekeepers will be designated in relation to a particular CPS, and thus could receive multiple designations if they are the providers of more than one CPS, or if the designation as a gatekeeper is a one-off event irrespective of how many CPS the undertaking provides. This has implications for the application of other provisions, like the obligations related to ‘emerging gatekeepers’, for instance. As such, the author recommends that the designation of gatekeepers is done in relation to each CPS.
• Same or different standards to rebut the presumption based on quantitative thresholds? The DMA states that exemptions of undertakings that meet the criteria will be ‘exceptional’ and requires companies to submit ‘sufficiently substantiated’ arguments before considering moving to a market investigation. However, it does not specify whether the market investigation in this case will follow the same evidential standards as for cases where the Commission is assessing the possible designation of gatekeepers that do not meet the quantitative thresholds. As the paper concludes, once both market investigation are launched, it would be appropriate that the evidential standards applied in both cases be the same, subject to the practical constraints arising from the different timescales given for the two types of investigations in the Act.
• The application of anti-circumvention rules: The DMA includes anti-circumvention provisions intended to prevent the ‘slicing and dicing’ of services and strategic behaviour of companies to escape designation. However, Annex A seems to at least accept, if not encourage, this ‘slicing and dicing’ of the different commercial services within a CPS if these are used for ‘different purposes’, which would allow the services to be reported, assessed, and designated separately. Therefore, the provisions in Annex A will need to be clarified through specific cases to ensure firms do not abuse the provision to evade legislation, something which might be difficult to prove for the European Commission." |
