Ref. Ares(2022)4957614 - 07/07/2022
and fine-tuned by Parliament and Council, already contains clear criteria to
provide a precise legal benchmark to determine what constitutes unfair pricing
and unfair general conditions to access gatekeeper services. The criteria are
based on well-evidenced conduct and are further specified by a broad
jurisprudence on such terms. Thus, such a benchmark will enable every
gatekeeper to self-assess and adjust its conduct accordingly. If the Commission
feels that the legal benchmark in Recital (57) is still not sufficiently precise to
deal with every possible scenario, further clarifications, such as put forward in
the Council’s General Approach, can be added to provide for
“actionability” of
Article 6.1.k. We believe that the criteria listed in Recital (57) of the Council’s
text already constitute a solid basis for interpretation. In practice, every
anticompetitive conduct needs to be assessed on a case-by-case basis. No legal
provision can ever be entirely “self-executing” but requires administrative
supervision.
b)
To demand and enforce fair, reasonable and non-discriminatory access
conditions would not turn the European Commission into a central price
setting authority as: Unfair, unreasonable and discriminatory conditions have
always constituted an abuse of dominance pursuant to Article 102 TFEU – yet
this has not turned the enforcement authorities into price setters.
The ban on
unfair, unreasonable and discriminatory access conditions in lit. k) would
constitute the specific equivalent for core platform services of what is prohibited
under Article 102 TFEU for dominant companies anyway. According to Article
102 s. 2 lit. a) TFEU, an “abuse may, in particular, consist in: (a) directly or
indirectly imposing unfair purchase or selling prices or other unfair trading
conditions”. This is the case, for instance, if the operator of an essential
infrastructure grants access only on unfair, unreasonable or discriminatory
conditions. Hence, the European Commission has always been expected to
assess and determine the fairness and proportionality of access conditions,
without this turning the authority or any national authority enforcing Article 102
TFEU into a price setting body.
c) Furthermore,
it does not appear possible to tame the gatekeeping platforms
without also looking at the fairness and reasonableness of their access
conditions. In any event, it is difficult to see how the DMA is supposed to fulfil its
function
if the enforcement authority is incapable of prohibiting unfair,
unreasonable or discriminatory conditions even to use core platform services
(let alone all ancillary services). Access conditions and prices are central
competitive factors that cannot be left aside. Gatekeepers could effectively
escape nearly every envisaged prohibition in Articles 5 and 6 by conditioning
what is expected from them under such provisions on unfair, unreasonable of
discriminatory conditions to access their core service. For
instance, any allowance to offer products, to communicate with customers, to
use alternative services, to un-install apps or install third-party apps – all could
be linked with an unrelated requirement for end user or business to pay more or
to providing more content, data, IP rights etc. for using the core platform service.
This would render all prohibitions in Article 5 and 6 ineffective; not just 61.k). In
other words, it appears impossible to ignore access conditions – whether with or
without the envisaged adjustment of Article 6.2.k. When it comes to classical,
physical infrastructure, for good reasons the rules on the prices and conditions
for the use of such infrastructure have always formed the central and most
effective elements of the ex-ante regulation.
d) We fear that
restricting Article 6.1.k to cases of “systemic”, “sustained” or
“repeated abuses” would mean that a central provision of the DMA, would no
longer condemn, but – on the contrary – legalise unfair and discriminatory
conditions, if it cannot be proven that they are “systemic”, “sustained” or
“repeated” abuses.
This would lead to a situation whereby unfair,
unreasonable and discriminatory conditions to access core platform services
are legitimatised and lawful as long as they are applied irregularly, erratically,
arbitrarily or at random.
e) It is also unclear how additional criteria are supposed to increase legal certainty
or enhance the self-executing character of the DMA.
In fact, additional criteria
would create an incentive for gatekeepers to design strategies to use
unpredictably unfair, disproportionate and discriminatory access conditions to
escape any obligations under the DMA.
f)
There is no legitimate reason to allow any unfair, unreasonable or
discriminatory conditions to access core platform services. Such practices need
to be prohibited entirely. Fear of a lack of sufficient enforcement capacities may
not justify any leniency but
should call for stronger enforcement powers or
more involvement of national enforcement authorities or external advisory
bodies. An additional threshold of “systemic” or else would undermine the core
effectiveness of the obligation, including by the way towards app stores. Such an
additional requirement would leave it
completely unclear which gatekeeper
conditions must be fair and non-discriminatory and which conditions are
allowed to be discriminatory and unfair.
For the aforementioned reasons, we kindly ask the Commission to consider the
Parliament proposal on Article 6.1.k (hereunder), together with the Council’s proposal
on Recital 57.
Suggested wording: European Parliament’s position
Article 6(1)(k) Apply transparent, fair, reasonable fairand non-discriminatory general conditions of
access and conditions that are not less favourable than the conditions applied to its
own service for business users to its software application store core platform services
designated pursuant to Article 3 of this Regulation. Enclosed you will find the most recent joint position paper from all the media
associations at EU level (press, radio and broadcasting).
2. DSA: content moderation policies and the freedom of the media
a) EPC, together with all the media associations, are not asking for a ‘media
exemption’ from the DSA;
we are asking that the DSA recognises the proper
protections of our fundamental rights, and establishes due process for how
platforms deal with lawful content under the editorial control and legal liability
of the publisher (or broadcaster) under their content moderation policies and
terms and conditions. Putting it another way, unless the DSA is amended,
a
Regulation will enshrine in law for the first-time that decisions about whether
content under the editorial control of a publisher (or broadcaster) can be
judged to be lawful or otherwise by gatekeeping platforms on the basis of their
own, private content moderation policies with no process in place to be
informed of, or to challenge their decisions. This fundamental issue lies at the
very heart of a free press and it is therefore essential that this matter is dealt
with satisfactorily by the co-legislators:
x Let us imagine a world where platforms can censor negative news about
themselves, where they can make arbitrary adjustments to their terms and
conditions to block or remove news stories for their own commercial
purposes, or curtail real debate between citizens online. This is what
happens if platforms will not in future be obliged to respect European
fundamental rights including the freedom of the press when both
drawing
up,
and enforcing their Ts and Cs and content moderation rules under the
DSA;
x The platforms’ algorithms are not remotely capable of making the very
sophisticated judgements which editors make as part of their legal
responsibilities, and which they defend in Court if necessary;
x Furthermore, it is proven all too often that algorithms cannot understand
context; for instance, an algorithm will be unable to understand the
difference between a video of a terrorist incident used by a terrorist website
to promote its aims, and the same piece of content used by a news publisher
to illustrate a legitimate news report.
