5 Council of the EU gave final approval to the Digital Markets Act in July 2022 and is expected to approve the Digital Services Act in the autumn of the same year.25 The rules specified in the Digital Services Act primarily concern online intermediaries and platforms that connect consumers to goods, services, or content. The new harmonised obligations for digital services include new procedures for faster removal of illegal content as well as comprehensive protection for users' fundamental rights online, which should contribute towards rebalancing the rights and responsibilities of users, intermediary platforms, and public authorities. The Digital Services Act will also apply to service providers established outside the who offer services within the EU. Failure to comply with the rules could result in fines up to 6% of annual revenue.26 The Digital Markets Act establishes a new category of gatekeeper online platforms. These are large dominant intermediaries that play a systemic role in the internal market by providing certain “core” services and therefore exert significant control in the digital economy. When a gatekeeper engages in unfair business practices, it can prevent or slow down valuable and innovative services of its business users and competitors from reaching the consumer. The new ex ante regulation seeks to prevent these large technology companies from abusing their market power.27 This is particularly important as new platforms have found new ways of tying, bundling and self-preferencing based on the mass customer data they collect in their operation, which poses new challenges for competition law.28 The Digital Markets Act will apply only to major providers of the core platform services which meet the objective legislative criteria to be designated as gatekeepers. It will prohibit a number of practices which are clearly unfair as well as require gatekeepers to proactively put in place certain measures to prevent abuse. The proposal also gives the Commission extensive enforcement tools.29 If a gatekeeper violates the rules laid down in the Digital Markets Act, it risks a fine of up to 10% of its total worldwide turnover. For a repeat offence, a fine of up to 20% of its worldwide turnover may be imposed (Article 30). 4 Online booking services as digital gatekeepers 4.1 The definition of digital gatekeepers One of the key points of contention of the Digital Markets Act was how to define a gatekeeper, which will determine which online platforms are covered by this term and will have to comply with the corresponding obligations. A gatekeeper must be a de-facto digital market bottleneck, which EU businesses and consumers find hard to avoid. Article 3 first defines qualitative and quantitative criteria that a gatekeeper must meet cumulatively. 25 Council of the EU Press release, 18 July 2022, ‘DMA: Council gives final approval to new rules for fair competition online’, available at: https://www.consilium.europa.eu/en/press/press-releases/2022/07/18/dmacouncil-gives-final-approval-to-new-rules-for-fair-competition-online (accessed 7. 10. 2022). 26 Quinn, 2021, p. 3. 27 Ibid., p. 2. 28 Hučková and Semanová, 2022, p. 515. 29 Quinn, 2021, p. 3.
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