The UK Government confirmed its overall approach to the new competition regime for digital markets in the UK. In terms of next steps, we are now awaiting draft legislation, which will be known as the Digital Markets, Competition and Consumer Bill. Separately, the Government has also published wider competition and consumer policy reforms, please see our related updates here and here.
This article briefly summarises the key elements of the UK Digital’s Markets Competition Regime (Digital Markets Regime) and provides a comparative table against the EU’s recently adopted Digital Markets Act.
Background
The Digital Markets Regime will apply to digital companies designated as having ‘strategic market status’ (SMS) and will be enforced by the Digital Markets Unit (DMU), which is already operational within the Competition and Markets Authority (CMA). Although many aspects of the Digital Markets Regime have now been confirmed, certain elements are still to be determined and will either be set out in the draft legislation and/or guidance to be issued by the DMU/CMA.
Digital Markets Unit (DMU)
The DMU, already operational in ‘shadow’ form, will have a core objective to promote competition in digital markets within and outside the UK for the benefit of consumers. It will have the responsibility for designating firms with SMS, in addition to implementing and enforcing the Digital Markets Regime.
Strategic Market Status (SMS)
For a firm to be designated with SMS it will be required to meet: a UK nexus test (which the DMU will establish); minimum revenue threshold (which will be set out in legislation); and must have:
| i. substantial, entrenched market power (non-transitory) | Which means a firm’s market power is expected to persist over time and is unlikely to be competed away in the short or medium term. |
| ii. in at least one digital activity, and | The Government will work to develop a definition of the digital activities in scope which is clear and easy to apply. |
| iii. which provides the firm with a strategic position. | The Government will establish exhaustive criteria to assess whether a firm has a ‘strategic position’, which will be specified in legislation. The DMU will also be required to publish guidance on these concepts including how they will be applied in practice. |
The DMU will be given discretion to decide which designations to take forward first, in line with its statutory objective. SMS designation could be prioritised based on the firm’s revenue, the characteristics of their digital activity, where there are likely to be significant network effects, economies of scale and scope, and/or if there are high fixed costs to entering that digital market. The DMU will however be required to publish guidance on the way it will prioritise its assessments.
There will be a statutory deadline of 9 months to complete a designation assessment, extendable by 3 months in exceptional circumstances.
The three key pillars of the Digital Markets Regime
There are three key pillars of the Digital Markets Regime to which SMS firms will become subject:
a. an enforceable and mandatory Code of Conduct (Code);
b. Pro-competitive Interventions (PCIs) implemented by the DMU; and
c. a new SMS merger regime.
a. Code of Conduct
Core Objectives
Compliance with a tailored Code will be mandatory for SMS firms and is based on three high-level core objectives: (i) fair trading, (ii) open choices and (iii) trust and transparency. The final precise wording of the objectives will be set out in legislation.
Conduct requirements
SMS firms will be subject to tailored conduct requirements in designated activities. Categories of conduct requirements will be set out in legislation, subject to the core objectives. The DMU will develop specific requirements within these categories for each SMS firm and will be able to remove or amend conduct requirements in circumstances which will also be set out in legislation. The DMU will also be required to publish guidance on how each firm’s conduct requirements will operate in practice.
The specific requirements will be binding, and failure to comply with the Code could result in enforcement action. It is expected that the tailored conduct requirements will be developed in parallel to the SMS designation assessment process, although there is no specified deadline.
SMS firms may also be exposed to a cross cutting category of conduct requirements which may be designed to prevent leveraging from other parts of the business to further entrench its power in a designated activity.
Exemption
The Government will introduce an exemption to ensure that conduct which provides net benefits to consumers will not breach conduct requirements. SMS firms will however be required to prove that the conduct is indispensable to achieving the benefits and that the benefits outweigh potential consumer harm.
Code Orders
The DMU will be able to issue both final enforcement orders and interim orders to address breaches of the Code, with a possible statutory deadline of six months for breach investigations. Various safeguards for interim orders will be put in place including clear thresholds in legislation and a requirement that the CMA must have formally opened an investigation, for which there must be reasonable grounds to suspect that conduct requirements are being breached. The scope of interim orders will also be restricted to pausing or reversing behaviour only.
b. Pro-competition Interventions (PCIs)
Where an adverse effect of competition can be demonstrated, the DMU will be able to implement PCIs anywhere within an SMS firm that relates to a competition concern in a designated activity. PCIs will be designed to tackle the root cause of market power and will need to be proportionate, evidence-driven remedies to address the identified adverse effect on competition.
PCI investigations will have a 9-month statutory deadline, with an optional 3-month extension for exceptional circumstances. The DMU will have a broad discretion over which remedies to implement (there will be no constrained list of remedies set out in legislation) and will be granted the same powers as already available to the CMA following a market investigation (via Schedule 8 of the Enterprise Act (including separation remedies)). We can expect a flexible approach to imposing PCIs, such as accepting binding undertakings from firms, along with trialling and iterating new remedies.
The DMU will be required to publish general guidance on the types of PCIs it will consider implementing in different circumstances, how trials will be run and how interventions will be monitored and reviewed. The types of interventions could include data-related interventions, interoperability (such as between platforms) and common standards.
c. SMS merger regime
The Government has decided to scale back the original proposed mandatory reporting and review requirements for mergers by SMS firms – instead the regime will focus on SMS firms reporting their most significant transactions prior to completion. This is likely to be when, subject to legislative drafting:
- the SMS firm acquires over a 15% equity or voting share following the transaction;
- the value of the SMS firm’s holding is over £25m; and
- the transaction meets a UK nexus test.
To complement this, the Government has also published refinements to the merger control regime. There will be a new acquirer threshold to be clearly targeted towards acquisitions by larger businesses (which is not limited to SMS firms). The new threshold will apply where an acquirer has both:
a. an existing share of supply of goods or services of 33% in the UK or a substantial part of the UK (compared to the 25% threshold consulted on); and
b. a UK turnover of £350m (compared to the £100m UK turnover threshold consulted on).
Penalties
Financial penalties will likely follow failures to comply with the Code or PCI orders. The DMU will be empowered to impose fines up to a maximum 10% of a firm’s global turnover for the most serious offences, with further daily penalties of up to 5% of daily worldwide turnover for continued breaches. Fines of 1% of global turnover may be imposed for information offences, supported by further daily penalties of 5% of worldwide turnover for continued non-compliance.
To promote a culture of compliance there will be the option to impose civil penalties on named senior managers who fail to ensure the firm complies with requests for information, and director disqualification for regulatory breaches. Civil and criminal penalties will be available for anyone knowingly or recklessly providing false information to the DMU.
Appealing decisions of the DMU
Decisions of the DMU will be subject to appeal based on judicial review principles, which aligns with the approach taken in respect of decision by other regulators, such as Ofcom.
Comparison to the Digital Markets Act
In parallel to the UK Digital Markets Regime, the European Commission has now adopted the Digital Markets Act (DMA). The DMA introduces an ex-ante regulatory framework that will apply to designated ‘gatekeepers’ who provide core platform services.
We have prepared a high-level comparison below of the two regimes.
| EU – DMA | UK – Digital Markets Regime | |
| Status | Platforms acting as ‘gatekeepers’:have a significant impact on the internal marketserve as an important gateway for business users to reach their customers, andenjoy, or will foreseeably enjoy, an entrenched and durable positionRebuttable presumption of gatekeeper status if three quantitative criteria are met (Article 3(2) of the DMA).(1) The company will have a significant impact on the EU:if the undertaking achieves an annual turnover in the EU of ≥ € 7.5 billion in each of the last three financial years; ORif the undertaking’s average market capitalisation or its equivalent fair market value amounted to ≥ € 75 billion in the last financial year; ANDit provides the same Core Platform Service (CPS) in at least three Member States.(2) The CPS will be an important gateway if it has at least:45 million monthly active end users established or located in the EU; ANDAt least 10.000 yearly active business users established in the EU in the last financial year.(3) It will be entrenched and durable if the requirements in (2) above are met in each of the last 3 years.If all three quantitative criteria are not met, the Commission may designate a company as a gatekeeper based on a qualitative assessment following a market investigation. | Strategic Market Status (SMS):a substantial, entrenched market power (non-transitory)in at least one digital activity, andwhich provides the firm with a strategic position.Assessment and designation undertaken by the DMU. Criteria will be determined by the Government and set out in legislation.A minimum revenue threshold will be introduced to make clear that smaller firms will not be in scope. |
| Scope / Activities | Core platform services include:online intermediation services,online search engines,online social networking,video-sharing platform services,number-independent interpersonal communication services,operating systems,web browsers,virtual assistants,cloud computing services,online advertising services.(Article 2(2) of the DMA). | Range of digital activities to be determined and the Government will develop a definition of the digital activities in scope which is clear and easy to apply. |
| Rules | General list of Dos and Don’ts which “gatekeepers” will need to comply with (not tailored).Must be complied with six months after one or more of the core platform services the Gatekeeper provides have been identified as fulfilling the thresholds of the proposed regulation (Article 3(8) of the DMA). | Categories of conduct requirements will be set out in legislation. The DMU will develop specific requirements for each SMS firm.DMU can issue Code orders and interim Code orders to address breaches.PCI interventions. |
| Merger control | An obligation for designated gatekeepers to inform the Commission of any proposed concentration within the meaning of the EU Merger Regulation (EUMR) involving another core platform service provider or any other service provided in the digital sector, regardless of whether it is notifiable under merger control at the European or national level (Article 12 of the DMA).New guidance regarding Article 22 of the EUMR, allowing the Commission to encourage and accept referrals in cases where the referring Member State does not have initial jurisdiction over the case (but where the criteria of Article 22 are met). | New SMS mandatory notification regime for transactions that meet new thresholds.Further refinements to UK merger control and the introduction of a new “acquirer test” (under separate merger control reforms). |
| Regulator | European Commission but national competition authorities will assist. | DMU, within the CMA, which has been operational since April 2021. |
| Fines | 10% of worldwide turnover (although can be increased to 20% of worldwide turnover for repeated infringement).Additional fines for failing to comply with information requests and other procedural infringements. | 10% of worldwide turnover.Additional fines for failing to comply with information requests and other procedural infringements. |
| Breakup | Yes — remedy of last resort for systemic breaches. | Yes – where appropriate and other remedies are insufficient. |
| Private enforcement | No specific rules on private actions. | No specific rules on private actions, however, states that ‘that once the regime is settled, policies that streamline follow-on cases may complement the effect of public enforcement’. |
For further information, please contact:
Anthony Rosen, Bird & Bird
anthony.rosen@twobirds.com
