Digital Service Act and Digital Markets Act: the new European rules

by Nicolò Ghibellini

As late as December 2020, the European Commission proposed different measures to update the EU's digital framework, consisting of two proposed regulations, namely the Digital Services Act (DSA) regulation, intended to regulate security, transparency and conditions of access to online services, and the Digital Markets Act (DMA) regulation, inherent to commercial and competition profiles.

Digital Service Act

Special attention should be paid to the DSA as it was recently approved by the European Parliament (July 5, 2022).

This brings to light completed legislation that aims to provide common rules for a safe, transparent and trustworthy online environment for consumers.

The regulation integrates the previous e-commerce directive by introducing some significant new features, such as rules on transparency, disclosure requirements and liability.

These regulations are set in place, confirming some of their key principles, on the pre-existing legislation regulating the activities of professional operators of the information society (Internet Service Providers), while maintaining its fundamental peculiarities, such as the exemption from liability for providers engaged in mere conduit, caching and hosting activities, and above all the principle -repeated several times by EU case law- of the lack of an obligation on the part of the providers themselves to monitor the actions of users.

It is important to remark how the Regulation under review introduces a new national body (Digital Services Coordinator) by giving it the specific task of monitoring the implementation of the DSA itself.

Finally, from the point of view of enforceability, the text of the DSA Regulation, after being approved by the European Parliament, will be adopted by the EU Council, and then enter into force in 2024.

Digital Markets Acts

As previously mentioned, the European Commission's digital strategy will be completed with the adoption of the Digital Markets Act Regulation, which is scheduled for 2023.

The DMA will be a key instrument to ensure respect for competition in a sector-that of the digital market-until now characterized by the strong presence of Big Tech.

To this purpose, the DMA provides prohibitions or restrictions on certain business practices and new obligations for platforms to promote competition.

Lacking the possibility of conducting an exhaustive review here, it is worth drawing attention as of now to the introduction of the subjective qualification of gatekeeper, to which will be attributed those companies that have certain characteristics (of size, management of access platforms, position in the

market) and that, as such, will have to comply with a series of prohibitions and obligations imposed to avoid a series of unfair practices (e.g. prohibitions against discrimination in favor of their own services and obligations to ensure interoperability with their own platform to other competing platforms), all also to offer qualitatively better services to users and consumers.

The importance of the DMA is predictable because of its impact-on the uniform regulation of the digital marketplace once it enters into force and together with the DSA.

For more information, contact Nicolo Ghibellini at e-mail:

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