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Clifford Chance

Clifford Chance

Antitrust/FDI Insights

The Digital Markets Act has been published in the Official Journal

The Digital Markets Act (DMA), the novel regulatory regime for large digital companies - the so-called gatekeepers - has been published in the Official Journal (OJ) of the European Union today.

As a result, as provided in the DMA, it will enter into force 20 days after the publication in the OJ, i.e., on 1 November 2022. A limited number of provisions will start applying on this date. In particular, the European Commission (EC) will be able to adopt implementing acts specifying certain key practical aspects, such as further details about gatekeepers' notifications, submissions and requests, as well as the procedural aspects of the DMA's implementation including in relation to the co-operation between the EC and national authorities. The EC could also provide clarifications on technical aspects of the measures that the future gatekeepers, once designated, should put in place to ensure compliance with DMA obligations. Work on some of these acts is ongoing, with the EC planning to adopt an implementing act in relation to certain practical arrangements in the first quarter of 2023. Potential gatekeepers and third parties are already in discussions with the EC about the potential content of this implementing act.

It will take a while longer for gatekeepers actually to be subjected to any of the substantive obligations in the DMA in Articles 5, 6 and 7 (for example, the ban on self-preferencing or the obligation to allow the sideloading of apps on gatekeepers' operating system): the EC must first designate them as gatekeepers. The provisions on gatekeeper designation, as well as the vast majority of all other provisions in the DMA, will kick in six months following the DMA's entry into force, on 2 May 2023.

From this date, companies who meet the quantitative thresholds to be presumed a gatekeeper have up to two months to submit a notification to the EC providing the relevant data (and, as the case may be, any arguments as to why the company is not a gatekeeper despite meeting the presumption). The EC will then have 45 working days from receiving a complete notification to decide whether to designate a company as a gatekeeper. We can therefore expect the first gatekeeper designation decisions in September 2023.

As of then, designated gatekeepers must take measures to start complying with the obligations of the DMA, but they will have six months to ensure compliance. This means that they effectively need to be able to demonstrate compliance with the substantive DMA provisions at the earliest by March 2024, a year and a half from now. At that time, the gatekeepers will need to submit a compliance report, describing the measures they have implemented.

For more information on the new regulatory regime for digital gatekeepers, please see our dedicated client briefing "The Digital Markets Act: A New Era for the Digital Sector in the EU".

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