The Dutch Regulator (ACM) is getting ready to increase its scrutiny of the digital economy. New rules and enforcement tools will increase the possibilities of the ACM to fulfil its promise to expand its focus on the digital economy in 2023. The ACM’s latest focus is on the Platform-to-Business Regulation (P2B-Regulation) and the Digital Markets Act (DMA).
P2B-regulation
The first development is the publication by the ACM of the ‘Guidelines for promoting a transparent and fair online platform economy for businesses’. These guidelines are intended for providers of online platforms and providers of online search engines. They reflect the ACM’s interpretation of the P2B-Regulation.
The P2B-Regulation sets rules with the aim of promoting a transparent and fair online platform economy for companies. Its main topic is transparency, especially in relation to 1) general terms and conditions, 2) restriction, suspension and termination of accounts, 3) rankings, 4) unequal treatment, 5) restrictions on terms and 6) complaints. For more information, see our previous blog posts on the P2B-Regulation in general, on online travel platforms and on consumer brands.
Although the P2B-Regulation entered into force in July 2020, public enforcement in the Netherlands is not yet possible since the law designating the ACM as the enforcer of the P2B-Regulation has not yet gone through the full legislative process. However, private enforcement is already possible, and the Guidelines of the ACM can potentially already play a role in such discussions and/or proceedings. It will also help companies regulated by the P2B-Regulation and active in the Dutch market to assess whether their behaviour is in line with the ACM’s reading of the P2B-Regulation ahead of potential public enforcement by the ACM. However, the ACM did include a disclaimer that compliance with the Guidelines is not a guarantee of compliance with the P2B-Regulation.
DMA
The DMA is almost in the same stage as the P2B-Regulation: it has already entered into force as of November 2022. Following an implementation period of six months, the DMA is applicable as of 2 May 2023. However, the DMA does not seem to leave much room for national authorities like the ACM to be given a role in its public enforcement, as the Commission has retained exclusive competence to enforce the DMA.
Where the P2B-Regulation is aiming to regulate all platforms in the digital economy, the DMA is focussing on only a handful of Big Tech companies. The DMA creates a set of rules by which designated so called ‘gatekeepers’ must abide. For more background, please see our previous blogs on the DMA in general, its timeline and the role of national authorities.
Thus, in contrast to the P2B-Regulation, the enforcement role of the ACM and other national supervising authorities is much more limited under the DMA. The ACM can pass-through complaints on violations of the DMA and can perform investigations, but it cannot enforce the DMA by imposing sanctions. In the draft bill for implementing the DMA in the Netherlands, the legislator also sees a role for the ACM as a ‘booster’ of investigations by the Commission, which, incidentally, does not seem to have been directly envisaged by the Commission. It is expected that the ACM will not perform investigations on a standalone basis but jointly with the European Commission. In its press release, the ACM puts the emphasis on its role as a receiver of complaints on potential violations of the DMA.
Conclusion
Although the ACM has a limited role in enforcing the DMA, it seems to be very keen in playing a role by helping the European Commission with complaints and investigations. The enforcement possibilities under the P2B-Regulation will be much broader. This, together with the fact that many more companies will be subject to the P2B-Regulation, will potentially lead to the ACM being much more active in the field of the P2B-Regulation than in the DMA.
Since October 2021 various Dutch regulators (such as the regulators on the financial markets and the data protection authority) have formed a joint platform to coordinate the supervision of the digital market. Via this Digital Regulation Cooperation Platform, the authorities plan to discuss joint topics, such as AI, algorithms and data processing. As explained by Martijn Snoep, the chair of the ACM, this Platform is aimed at ‘cross-regulator cooperation’.
It should not be forgotten that the P2B-Regulation and the DMA are only two out of a whole package of legislation regulating digital markets, such as the Data Act and the Digital Services Act. This legislation will lead to even more tasks for the ACM and the question remains whether this will be compensated by more FTE. “Digital markets’ are considered as a priority by the ACM for the year 2023, but it could potentially be the case that it will have pick and choose which specific topic(s) it would like to address.
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Pauline Kuipers, Partner, Bird & Bird
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