The Commission’s digital services and markets act proposals: First step towards tougher and more directly enforced EU rules?
Author | Pieter Van Cleynenbreugel |
Published date | 01 October 2021 |
Date | 01 October 2021 |
DOI | http://doi.org/10.1177/1023263X211030434 |
Legal Development
The Commission’s digital
services and markets act
proposals: First step towards
tougher and more directly
enforced EU rules?
Pieter Van Cleynenbreugel*
Abstract
On 15 December 2020, the European Commission presented its long-anticipated Digital
Services and Digital Market Acts proposals. If and when adopted, those proposals would put
in place a more stringent regulatory framework ensuring coordinated oversight over the
online platform services and digital markets. They would also enhance EU coordinated and
direct enforcement in the digital economy, by streamlining the organization and sanctioning
powers of national administrative bodies and granting the European Commission far-reaching
market supervision and enforcement powers. This legal development article analyses both
Acts and calls on the EU legislator to pay sufficient attention to ensuring the feasibility of new
regulatory obligations and to foreseeing better procedural safeguards accompanying Commission
direct enforcement practices.
Keywords
Digital markets, online platforms, European Commission, direct enforcement, right to a fair trial,
Digital Services Act, Digital Markets Act
* Professor of European Union law, Director, Li`
ege Competition and Innovation Institute, University of Li`
ege, Li`
ege,
Belgium
Corresponding author:
Pieter Van Cleynenbreugel, Professor of European Union law, Director, Li`
ege Competition and Innovation Institute,
University of Li`
ege, Li`
ege, 4000, Belgium.
E-mail: pieter.vancleynenbreugel@uliege.be
Maastricht Journal of European and
Comparative Law
ªThe Author(s) 2021
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DOI: 10.1177/1023263X211030434
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MJ
2021, Vol. 28(5) 667–686
1. Introduction
After years of academic and political debates,
1
extensive studies and reports
2
and limited ad hoc
legislation,
3
the European Commission on 15 December 2020 presented its ambitious Digital
Services and Digital Markets Acts.
4
Those Acts, which at this stage are nothing more than
legislative proposals for future EU Regulations, constitute a major step forward in the potential
regulation of online platforms in the European Union. If and when adopted, they would funda-
mentally increase the way in which different kinds of online platforms, search engines, and social
networks are regulated and governed in the European Union. The current proposals above all add
an additional layer of specific regulatory obligations on certain categories of services providers and
require them to take a more proactive risk assessment attitude in terms of content control and
moderation. From an enforcement perspective, both Acts propose important coordinated and new
direct enforcement upgrades in a field where enforcement has so far been left largely to Member
States’ discretion.
It of course remains to be seen whether the proposals will be adopted in their current form.
Given their potential importance in changing both the substantive law norms and enforcement
structures in place, it is nevertheless useful already to highlight the key changes and potential
challenges they might bring. As it would be impossible to analyse all provisions in an in-depth
manner, this article provides an introductory overview of the most salient and controversial sub-
stantive law (section 2) and enforcement (section 3) modifications proposed.
Although the substantive law proposals will undoubtedly give rise to intense lobbying efforts
and face potential downplaying or modifications,
5
this article submits that the proposed coordi-
nated and direct enforcement features should also be touched upon in on-going legislative and
1. See an overview and links on the Commission’s website, https://ec.europa.eu/digital-single-market/en/online-platforms.
For background, see A. Strowel and W. Vergote, ‘Digital Platforms: To Regulate or Not to Regulate?’, in B. Devolder
(ed.), The Platform Economy – Unraveling the Legal Status of Online Intermediaries (Intersentia, 2018), p. 1, V.
Hatzopoulos, ‘The Internal Market and the Online Platform Economy’, in S. Garben and I. Govaere (eds.), The Internal
Market 2.0 (Hart Publishing, 2020), p. 313 and P. Van Cleynenbreugel, Plateformes en ligne et droit de l’Union
europ´
eenne – un cadre juridique aux multiples visages (Bruylant, 2020), p. 37.
2. Partially within theexpert-focused EU Observatory onthe online platform economy, seehttps://platformobservatory.eu/.
3. By way of example, Regulation 2019/1150 of the European Parliament and of the Council of 20 June 2019 on promoting
fairness and transparency for business users of online intermediation services, [2019] OJ L186/57 and Directive 2018/
1808 of the European Parliament and of the Council of 14 November 2018 amending Directive 2010/13/EU on the
coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the
provision of audiovisual media services (Audiovisual Media Services Directive) in view of changing market realities,
[2018] OJ L303/69; in the field of consumer protection rules, new rules that do not only target online platforms as such,
but that seek to facilitate online trading practices and subscription portability have also been adopted. By ways of
example, Regulation 2017/1128 of the European Par liament and of the Council of 14 June 2017 on cross-bor der
portability of online content services in the internal market, [2017] OJ L168/1 and Regulation 2018/302 of the Eur-
opean Parliament and of the Council of 28 February 2018 on addressing unjustified geo-blocking and other forms of
discrimination based on customers’ nationality, place of residence or place of establishment within the internal market
and amending Regulations (EC) No 2006/2004 and (EU) 2017/2394 and Directive 2009/22/EC, [2018] OJ LI60/1.
4. Commission Proposal for a Regulation of the European Parliament and of the Council on a Single Market For Digital
Services (Digital Services Act) and amending Directive 2000/31/EC, COM (2020) 825 final (hereafter ‘DSA proposal’)
and Commission Proposal for a Regulation of the European Parliament and of the Council in contestable and fair
markets in the digital sector (Digital Markets Act), COM (2020) 842 final (hereafter ‘DMA proposal’).
5. As envisaged by the Corporate Europe Observatory organization, see https://corporateeurope.org/en/2020/12/big-tech-
brings-out-big-guns-fight-future-eu-tech-regulation.
668 Maastricht Journal of European and Comparative Law 28(5)
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