The Commission is currently consulting on a range of proposals for legislation in the digital sector.  The proposed measures consist of a Digital Services Act package (dealing with issues such as online safety, freedom of expression, fairness and a level-playing field in the digital economy) and a new ex ante competition tool to give it the necessary powers to deal with structural competition problems across markets that cannot be adequately addressed under the existing competition rules (see here for our earlier blog post on the new tool).

Feedback on the inception impact assessment (IIA) and roadmap describing the key issues the legislation aims to address and the different options to achieve this, is open until 30 June 2020 and feedback on the public consultations is open until 8 September 2020.  The Commission intends to have the proposed legislation in place by the end of this year.

Digital Services Act

The Digital Services Act package was announced earlier this year in the Commission’s Communication on Shaping Europe’s Digital Future and is aimed at modernising the current legal framework for digital services.

The Digital Services Act package consists of two pillars:

  • New and revised rules for the Digital Services Single Market, increasing and harmonising the responsibilities and obligations of online platforms and information service providers, in order to keep users safe online and protect their fundamental rights. The current rules are set out in the e-Commerce Directive of 2000 , which deals with the freedom to provide digital services across the EU single market in accordance with the rules of the place of establishment, and a broad limitation of liability for content created by users. The rules require updating and expanding as they no longer cover all issues relating to the role and responsibility of online platforms. The Commission is also looking to adopt an EU-wide system of regulatory oversight, enforcement and cooperation.

The IIA and consultation are available here.

  • Ex ante regulatory rules for very large platforms with significant network effects who act as gatekeepers, in order to ensure that markets remain fair and contestable for innovators, businesses and new entrants.

The IIA and the consultation are available here.

New Competition Tool

The Commission has also published an inception impact assessment and a public consultation on its proposed new ex ante competition tool, to give it new powers to deal with structural competition problems across markets which cannot be tackled or addressed in the most effective manner on the basis of the current competition rules.

The aim of the new tool is to address gaps in the existing enforcement rules identified by the Commission’s experience of competition in digital and other markets. It is inspired by the UK’s market investigation regime which, unlike the Commission’s sector inquiry tool, empowers the CMA to impose behavioural as well as structural remedies in order to address any adverse effect on competition identified as a result of a detailed market investigation.

Although the tool is framed in the context of the Commission’s digital markets strategy (and is also referred to as the “tipping tool”), once in force it will apply to all industries, not just the digital sector.

The initial impact assessment and public consultation are available here.

Contacts

Kyriakos Fountoukakos
Kyriakos Fountoukakos
Managing Partner, Brussels
+32 2 518 1840
Peter Rowland
Peter Rowland
Of Counsel, Brussels
+32 2 518 1847
Kristien Geeurickx
Kristien Geeurickx
Professional Support Lawyer, London
+44 20 7466 2544