GAFA/GAMA is an unofficial term for the world's four largest technology companies. It seems that this acronym has reached its expiration date and we should start using a new one: BAMAMA, an acronym for the first letters of the 6 gatekeepers designated by the European Commission.
Natan Wasniowski, Interdisciplinary Doctoral School of the University of Warsaw
On Wednesday, September 6, pursuant to DSA (Digital Services Act, Digital Markets Act[1]), European Commission she announced the final list of gatekeepers. Gatekeepers are companies that provide basic platform services[2] such as search engines and web browsers, social media and instant messaging, and streaming platforms.
According to the EC communication, access guards should be considered Alphabet (Google), Amazon, Apple, Bytedance (TikTok), Meta (Facebook) and Microsoft. The basis for their designation are a total of 22 basic platform services provided by these 6 entities, i.e. social media (TikTok, Facebook, Instagram, LinkedIn), internet brokerage services (Google Maps, Google Play, Google Shopping, Amazon Marketplace, AppStore, Meta Marketplace), reklamy (Google, Amazon, Meta), Internet access (Chrome, Safari), video streaming (YouTube), internet search engines (Google Search), Operating Systems (Google Android, iOS, Windows PC OS), numberless interpersonal communication services (Whatsapp, Messenger).
In July, the EC announced a list of entities that, under the DMA, self-reported as meeting the conditions for recognition as access gatekeepers. In relation to July list, Samsung Electronics was not included on the final list. This is due to the fact that Samsung Internet, the pre-installed web browser on Samsung phones, was ultimately not recognized by the EC as an essential platform service. Since this service was the only basis for including Samsung in the category of access gatekeepers, Samsung was ultimately not recognized as such. Other services that the Commission did not recognize as essential platform services were Gmail and Outlook.com. At the same time, the EC initiated four market investigations to further assess whether Microsoft's services, i.e. Bing (internet search engine), Edge (web browser) and Microsoft Advertising (advertisements) and Apple i.e. iMessage (number-independent interpersonal communication services) qualify as access points gateways), which is the basis for recognition as basic platform services and therefore the gatekeeper of access.
As reported by the Financial Times[3] ByteDance (TikTok), Apple (in the area of iMessage – interpersonal communication services that do not use numbers) and Microsoft (in the area of Bing – the internet search engine) oppose the designation as access gatekeepers. Apple and Microsoft, in connection with the open market investigation, can still avoid being designated as access gatekeepers for these services. However, ByteDance (TikTok) has only legal recourse left. Will TikTok then join Zalando, which sued the EC in June for designation as a VLOP (Very Large Online Platform) under the Digital Services Regulation?[4] #DSA? We wrote about it in more detail here. Microsoft, according to the Financial Times, has no plans to file a lawsuit.
GAFA/GAMA is an unofficial but widely used term for the four largest digital companies Google, Amason, Facebook/Meta, Apple. Officially, however, we can say that this acronym is out of date. It seems that it is time for a new one. Stijn Huijts, in his post on LinkedIn.com, suggested the acronym BAMAMA for ByteDance, Amason, Meta, Alphabet (Google), MMicrosoft, Apple. However, we will only be able to say with time whether the new acronym will catch on.
Consequences of a company being considered an access gatekeeper
Gatekeepers are the core of the DMA regulation. An gatekeeper is an undertaking that meets three conditions (together), i.e. an undertaking that: a) has a significant impact on the EU internal market (i.e. provides a basic platform service in at least three EU countries and has generated EUR 7,5 billion in turnover in each of the last 3 years or has an average market capitalisation of EUR 75 billion); b) provides a basic platform service that is a significant entry point through which business users reach end users; and c) has a well-established and lasting position in its business activities or can be foreseen to have such a position in the near future. The latter two conditions are deemed to be met if the basic platform service provided has had at least 45 million monthly active users in the EU in the last year and 10 thousand active business users based in the EU.
To put it simply, it can be generally indicated that access gatekeepers – as the name suggests – are considered to be providers of basic digital services who, due to their established (privileged) position resulting from the widespread use of the services they provide, may abuse their special position – in relation to service users and business customers. Therefore, most of the DMA obligations consist of prohibitions on the abuse of this position by access gatekeepers and obligations to level the playing field for competition, open systems and increase their interoperability. For example: an access gatekeeper may not process personal data of users of third-party service providers using basic platform services for advertising purposes, combine personal data between basic platform services, use them between basic platform services or log end users into other services provided by the access gatekeeper in order to combine this data. In addition, the access gatekeeper may not impose the same price or terms of third-party services on its services as on the services of those third parties or in their direct sales, may not oblige the conclusion of a contract using the service provided by the access gatekeeper, may not limit access to content using the business user's application, may not impose the obligation to use certain access gatekeeper services within the services provided by third parties, nor may it require registration or subscription to its other basic platform services. It is also prohibited to prevent or hinder reporting to public authorities regarding the access gatekeeper's failure to comply with the law.
In addition, the access gatekeeper is obliged to provide each advertiser with daily and free information on the reach of their advertising, to inform the EC about concentrations (mergers and acquisitions, which is intended to limit the so-called killing aqcuisitions in digital markets), auditing consumer profiling techniques within the basic platform services and submitting to the EC lists of compliance with the gatekeeper duties. The EC is entitled to update the obligations of access gatekeepers.
Co dalej?
Access gatekeepers now have six months to comply with their obligations and submit a detailed compliance report. It is up to designated companies to ensure and demonstrate effective compliance, and sanctions for violations are severe. Breaches of the DMA rules can result in fines of up to 10% of a company's total worldwide turnover, which can rise to 20% for repeated violations, and in the case of systematic violations, additional remedies such as an obligation to sell the business or part of it or a ban on mergers and acquisitions.
[1] Regulation (EU) 2022/1925 of the European Parliament and of the Council of 14 September 2022 on contestable and fair markets in the digital sector and amending Directives (EU) 2019/1937 and (EU) 2020/1828 (Digital Markets Act) – OJ L 265, 12.10.22, p. 1-66, available at: https://eur-lex.europa.eu/legal-content/PL/TXT/?uri=CELEX:32022R1925
[2] Core Platform Services: Internet intermediation services, Internet search engines, Internet social networking services, Video sharing platform services, Numberless interpersonal communication services, Operating systems, Internet browsers, Virtual assistants, Cloud computing services, Online advertising services.
[3] J. Espinoza, "Apple and Microsoft fight Brussels over 'gatekeeper' label for iMessage and Bing”, Financial Times, dostęp: https://www.ft.com/content/137d655b-c264-460f-bbe8-a269f0a3d8ac
[4] Regulation (EU) 19/2022 of the European Parliament and of the Council of 2000 October 31 on the single market for digital services and amending Directive 277/27.10.2022/EC (Digital Services Act), OJ L 1, 102/32022/2065, pp. XNUMX–XNUMX. available at: https://eur-lex.europa.eu/legal-content/PL/TXT/HTML/?uri=CELEX:XNUMXRXNUMX
