The Digital Markets Act (DMA) is a landmark new law being introduced by the European Union. It aims to promote a fair and competitive digital sector in the EU by reining in the market power of large digital companies offering intermediary services. The Digital Markets Act will impose stringent new requirements on how the world's largest digital platforms—referred to in the legislation as "gatekeepers"—can and can't operate in the EU market, as an addition to existing EU competition law.
The introduction of the Digital Markets Act is a significant moment. Its broad scope will impact many facets of the continually evolving digital economy. Amongst its reforms, the law will empower businesses selling through in-scope digital platforms to choose their own payments service provider rather than using the platform's own embedded offering—creating potential new opportunities for those businesses to optimize their payments in a way that suits them.
In this article, we unpack the Digital Markets Act, exploring:
- What is the Digital Markets Act?
- Which companies are within the Digital Markets Act's scope?
- What obligations does the Digital Markets Act introduce?
- Why have European lawmakers introduced the Digital Markets Act?
- How might the Digital Markets Act impact payments?
- When will the Digital Markets Act come into force?
- How can businesses prepare for the Digital Markets Act?
What is the Digital Markets Act?
The Digital Markets Act is a new law that was proposed by the European Commission in 2020 and passed by the European Parliament and the European Council (representing the 27 EU member states) lawmakers in July 2022.
Together with the DMA's companion regulation, The Digital Services Act, European lawmakers want to make Europe "fit for the digital age". The EU's vision is to create a safer digital space in which the fundamental rights of all users of digital services are protected and a level playing field that fosters innovation, growth and competitiveness, both in Europe and globally.
The DMA is an EU Regulation, which means its provisions will have a binding effect across the EU from May 2023; individual member countries won't need to implement the DMA into their national laws.
How might the Digital Markets Act impact payments?
From a payment sector perspective, Article 5 of the DMA, which sets out the obligations for companies designated as gatekeepers, includes a key paragraph that promises to drive the unbundling of payments services from gatekeepers' core platform services, delivering more competition and choice for online businesses in terms of their payments options.
Article 5 (7) states:
"The gatekeeper shall not require end users to use, or business users to use, to offer, or to interoperate with, an identification service, a web browser engine or a payment service, or technical services that support the provision of payment services, such as payment systems for in-app purchases, of that gatekeeper in the context of services provided by the business users using that gatekeeper’s core platform services"
This paves the way for businesses such as app developers to use third-party payment services when trading on a gatekeeper's core platform services rather than the gatekeeper's payment services.
The clause is a game changer for developers creating apps for the Android and Apple ecosystems. Currently, these developers must use Apple and Google's payments and billing services—and pay the associated fees to do so. Recently, this issue made headline news with the high-profile court case between EPIC Games and Apple.
With the ability to choose an alternative payments service, these businesses and developers will also have more control over how they leverage payments within their ecosystem. They can make payment decisions based on customer preference, acceptance rates, costs, settlement times and other metrics, free from the requirements and limitations currently imposed by gatekeepers.
Which companies are within the DMA's scope?
The DMA's rules target the biggest, most dominant and entrenched digital companies offering core platform services in the EU market. They will apply to ten specific core platform services, where these are offered by companies meeting "gatekeeper" criteria.
The ten core platforms that are within the scope of the DMA framework are:
- Online intermediation services (e.g. online marketplaces, app stores)
- Online search engines
- Online social networking services
- Video-sharing platform services
- Messenger services ("Number-independent interpersonal communication services")
- Operating systems
- Web browsers
- Virtual assistants
- Cloud computing services
- Online advertising services
Companies will be designated as gatekeepers if they meet the following criteria:
- They have a significant impact on the internal market, which means (a) either an annual turnover of at least €7.5 billion within the EU in each of the past three financial years or (b) an average market capitalization or its equivalent fair market value of at least €75 billion in the last financial year;
- They provide a core platform service that is an important gateway for business users to reach end users, which means at least 45 million monthly end users in the last three financial years located in the EU and at least 10,000 yearly active business users established in the EU.
Even if a digital company meets the gatekeeper criteria, it won't be subject to DMA rules if the core platform service they provide isn't one of the ten outlined above.
What obligations does the DMA introduce?
The specific aim of the Digital Markets Act is to provide the framework for contestable and fair markets in the digital sector. To this end, it sets out specific obligations—essentially a list of do's and don'ts—that designated gatekeepers must abide by.
Designated gatekeepers must:
- Ensure unsubscribing from core platform services is just as easy as subscribing
- Ensure the basic functionalities of their instant messaging services are interoperable with other messaging apps
- Give business users access to their marketing or advertising performance data on the platform
- Inform the European Commission of their acquisitions and mergers
Designated gatekeepers must not:
- Rank their products or services higher than those of others through self-preferencing
- Pre-install certain apps or software, or make it difficult to uninstall them
- Require the installation of important software like web browsers by default when operating systems are installed
- Prevent developers from using third-party payment platforms for app sales
- Reuse private data collected during a service for the purposes of another service
How can businesses prepare for the Digital Markets Act and its implications for their payment services?
Although March 2024 may seem like a long way off, businesses selling through gatekeepers' platforms should start preparing now. Building a payments strategy is multifaceted, and it will take time to consider all the options and implications. Starting now gives you time to do this properly and gain a competitive edge over those that delay forming their plans.
The first task should be finding a payments partner to guide you to the right opportunities for your business. Ideally, the partner should be able to provide proactive consultancy and a payments platform that can turn ideas into action.
The key is to build a partnership with longevity. The DMA will not be the last piece of regulation affecting payments—far from it—and innovations in technology and data, and, along with evolving consumer behaviors, will create constantly shifting opportunities and challenges.
To really thrive in the digital economy, you should seek a payments partner that can offer you the expertise, scale, resilience and technical prowess to navigate these forces and keep your business at the forefront of progress. Contact us to learn more and see how we're providing businesses with best-in-class payments to thrive in the digital economy.
Why have European lawmakers introduced the Digital Markets Act?
EU lawmakers recognize the huge benefits that digital services have delivered for the people who use them. They also see the huge opportunities these services have created for European businesses by supporting their innovation and helping them to reach new customers through cross-border trade.
However, the market power that some large digital platform providers now wield has become an increasing source of concern—particularly the big proportion of digital transactions between EU consumers and businesses they now account for and how their market strength is entrenched by the ecosystems they've built around their core platforms.
In particular, EU lawmakers argue that the largest of these platforms—those that are widely and commonly used—now effectively control access to the digital markets in which they operate, leaving business users in an economically dependent position and potentially exposed to unfair practices.
Additionally, lawmakers fear that new service providers looking to compete with large established digital companies face insurmountable barriers to entry and growth. This denies businesses alternative channels for digital trade that might otherwise help to reduce the ability of the incumbent platform providers to set commercial conditions.
They also see the importance of addressing these concerns now, given the huge scale of the digital economy, its continuing growth and the increasingly important role online platforms play in digital markets.
What's the penalty for non-compliance with the Digital Markets Act?
Under the DMA's provisions on non-compliance and penalties, the European Commission can impose fines on gatekeepers of up to 10% of annual worldwide turnover in the preceding financial year for first infringements and up to 20% of annual worldwide turnover for repeated infringements. It can also impose periodic penalty payments of up to 5% of the company's total worldwide daily turnover in the preceding financial year. Also, the Commission can impose additional remedies in cases of systemic infringements, such as imposing temporary bans on the business's mergers or imposing divestment requirements.
When does the Digital Markets Act come into force?
The DMA is expected to come into force on 1 November 2022 and will start to apply in six months' time, in May 2023. From this date, prospective gatekeepers will have two months to inform the European Commission that their core platform services meet the gatekeeper criteria.
After receiving these submissions, the Commission will have 45 working days to issue a decision designating the gatekeepers and their core payment services. Finally, after the Commission has made its designation decision, the gatekeeper will have six months to comply with the DMA's obligations.
Therefore our expectation, at present, is that the DMA's rules giving businesses the ability to use third-party payment services when selling through core platform services will come into effect in March 2024.