The Digital Markets Act (Regulation 2022/1925)

The Digital Markets Act (DMA), formally Regulation (EU) 2022/1925, is the European Union’s ex-ante regulatory framework for large online platforms acting as gatekeepers in digital markets. Adopted on 14 September 2022 and applicable from 2 May 2023, the DMA establishes a set of harmonised obligations for gatekeeper platforms to ensure contestable and fair digital markets. The DMA operates alongside the Digital Services Act (Regulation 2022/2065), which addresses intermediary liability and platform obligations, and complements EU competition law under Articles 101–102 TFEU. Unlike competition law, which intervenes ex post after a finding of infringement, the DMA imposes obligations ex ante on designated gatekeepers without requiring proof of anticompetitive conduct in individual cases.

Gatekeeper Designation

A platform qualifies as a gatekeeper under Article 3 of the DMA if it meets three quantitative thresholds. First, it must have a significant impact on the internal market, demonstrated by an annual turnover in the EEA of at least €7.5 billion in each of the last three financial years or an average market capitalisation of at least €75 billion in the last financial year. Second, it must operate a core platform service (CPS) that serves as an important gateway for business users to reach end users, demonstrated by at least 45 million monthly active end users and at least 10,000 yearly active business users in the EU in the last three years. Third, it must enjoy an entrenched and durable position, likely to persist in the near future, demonstrated by meeting the quantitative thresholds in each of the last three financial years.

The Commission may also designate a platform as a gatekeeper through a market investigation (Article 17) where the qualitative criteria are satisfied even if the quantitative thresholds are not met, or where the thresholds are met but the platform demonstrates exceptional circumstances justifying non-designation. The Commission designated six gatekeepers in September 2023 — Alphabet, Amazon, Apple, ByteDance, Meta, and Microsoft — covering 22 core platform services including online intermediation services (app stores, marketplaces), online search engines, social networking services, video-sharing platforms, number-independent interpersonal communication services, operating systems, web browsers, virtual assistants, cloud computing services, and online advertising services. ByteDance successfully challenged its gatekeeper designation for TikTok in the General Court in December 2024 on procedural grounds.

Obligations for Gatekeepers

The DMA imposes two categories of obligations on gatekeepers: obligations that apply automatically (Articles 5 and 6) and obligations that are susceptible to specification (Article 7). Article 5 obligations include: prohibition on processing personal data of end users for advertising purposes without freely given consent; prohibition on using non-public business user data to compete with business users; requirement to allow business users to promote their offerings to end users outside the gatekeeper’s platform; prohibition on requiring business users to use the gatekeeper’s identification, payment, or technical services; requirement to allow end users to uninstall pre-installed software; and requirement to allow end users to switch between different software applications.

Article 6 obligations require gatekeepers to: refrain from self-preferencing of their own products or services in ranking; allow business users to access data generated through their use of the platform; provide advertisers and publishers with performance measurement data; ensure portability of data generated by business and end users; provide end users with real-time data portability tools; allow business users to contract with end users outside the gatekeeper’s platform; and provide third-party interoperability for certain ancillary services.

Article 7 concerns interoperability obligations for number-independent interpersonal communication services: gatekeepers must make basic functionalities interoperable with third-party messaging services on request, enabling end users of different services to exchange text messages, images, voice messages, videos, and files. The interoperability obligation is phased in, with text messaging interoperability required within three months of a request and group messaging interoperability within six months.

Enforcement by the Commission

The European Commission has exclusive enforcement jurisdiction over the DMA. The Commission may conduct market investigations to designate gatekeepers, specify obligations, and investigate systemic non-compliance. It may request information, conduct interviews, carry out inspections, and adopt interim measures in cases of urgency. Enforcement proceeds through a structured dialogue with gatekeepers, who must submit compliance reports describing the measures taken to comply with each obligation.

Fines and Penalties

The DMA provides for substantial penalties to ensure compliance. The Commission may impose fines of up to 10 per cent of annual worldwide turnover for infringement of the DMA’s obligations. For repeated infringement involving the core platform service, the Commission may impose a fine of up to 20 per cent of annual worldwide turnover. Periodic penalty payments of up to 5 per cent of average daily worldwide turnover may be imposed for failure to comply with investigative measures. The Commission may also impose behavioural or structural remedies, including the divestiture of a business or parts of a business, where systematic non-compliance persists.

Relationship with EU Competition Law

The DMA operates without prejudice to the application of Articles 101 and 102 TFEU and national competition law. The Commission may pursue parallel proceedings under both the DMA and competition law, though it must respect the principles of ne bis in idem and proportionality. The DMA does not create private rights of action: business users and end users who suffer harm from non-compliance must rely on national law transposing the Damages Directive or on claims under national competition law.