Europaudvalget 2019-20
EUU Alm.del Bilag 804
Offentligt
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29. June 2020
Inception Impact Assessment for Digital Services Act package:
Ex ante
regulatory instrument for large online platforms with significant net-
work effects acting as gate-keepers
The Danish Government appreciates the opportunity to comment on the
Commission’s Inception Impact Assessment on an Ex ante regulatory in-
strument for large online platforms with significant network effects acting
as gatekeepers.
The Danish Government welcomes
the Commission’s decision to launch
an impact assessment and a thorough public hearing. Since these are com-
plicated topics, it is important to understand, in as much detail as possible,
the problems that the proposed instruments aim to address.
In general,
the Danish Government supports the Commission’s focus on
avoiding regulatory fragmentation and agree that there is a need for action
to safeguard an effectively functioning digital single market where compa-
nies can compete and flourish. It is important to avoid a situation with mul-
tiple national initiatives aiming to address the powers of the same large
platforms. The Danish Government believes that a European approach will
be the most efficient way to ensure legal certainty and predictability for
companies across Europe and will create the greatest benefits for European
companies and consumers.
Overall, the Danish Government supports the consideration of
both
a re-
vised horizontal framework
and
the consideration of addressing the spe-
cific issues related to the extremely large digital platforms. It is important
to ensure that the large number of smaller platforms are not regulated (ex-
cessively) since this may hinder their ability to compete.
However, the Danish Government highlights the need to prevent overlaps
between traditional competition enforcement, any ex ante regulatory
framework and the New Competition Tool. This seems especially im-
portant if the ex ante regulatory framework is set to include a possibility to
adopt tailor-made remedies on a case-by-case basis (option 3b). If not, there
is a risk that some companies will face multiple regulatory regimes that has
the same aim of securing a well-functioning internal market. This may limit
the incentives to invest and innovate.
Therefore, the Commission should make it clear in the impact assessment
if
there are overlaps and
where
these overlaps exist. The Commission
should also put forward suggestions on how to solve those overlaps and be
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willing to abandon one or more of the initiatives. In this regard, the Danish
Government highlights the need for careful coordination between the im-
pact assessments led by DG GROW, DG CNECT and DG COMP.
Policy option 1 and 2
When considering to revise the horizontal framework set in the Platform-
to-Business Regulation (policy option 1), the Danish Government encour-
ages the Commission to include all the experience and knowledge gener-
ated in the member states from the enforcement of the rules that enter into
force in July. Some of the issues relating to e.g. the imbalances in the bar-
gaining power between large online platforms on the one hand and their
users on the other may be addressed by the Platform-to-Business Regula-
tion.
At the same time, the Danish Government welcomes a continued focus on
the trading practices by digital platforms and urges the Commission to con-
sider e.g. the need to grant companies the rights to data generated by their
activities on digital platforms. While digital platforms open up many new
markets and opportunities for European companies, the trading practices of
platforms or the inability to get access to data can
hinder the companies’
ability to grow.
In terms of adopting a horizontal framework empowering regulators to col-
lect information from large online platforms (policy option 2), the Danish
Government encourages the Commission to make it clear how these pow-
ers differ from what some national competition authorities have available
when enforcing the Platform-to-Business regulation.
Policy option 3
The Danish Government supports the need for addressing the powers of
large digital platforms acting as gatekeepers, since these platforms play a
major role in determining the functionality of the Single Market and the
success of European companies.
Establishing a European ex ante regulatory framework has the benefit of an
immediate effect, since the framework would replace some of the long and
resource-heavy competition cases. It would also allow for regulation of
platforms that may not be considered dominant under competition law. At
the same time, it allows for a targeted intervention against the biggest plat-
forms that consumers and companies rely on - without imposing burden-
some obligations on smaller platforms thus making it harder for them to
compete.
However, the Danish Government wishes to highlight that such ex ante
framework may not be as flexible as the competition law making it difficult
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to reflect new developments. Furthermore, an ex ante regulatory frame-
work will probably have to be drafted in quite some detail in order to ad-
dress the specific problems identified, especially if a blacklist is created.
This may be difficult to achieve when the framework targets different kinds
of platforms and needs to be able to stay relevant over time.
The creation of a black list may create legal certainty and make the enforce-
ment more efficient. However, the introduction of a list of prohibited prac-
tices would also represent a substantial shift in the current competition law
framework, which characterized by the lack of any “per se” rule.
Even in
case of practices perceived as anti-competitive, undertakings have always
had the possibility to rebut the presumption of illegality. The Danish Gov-
ernment thus encourages the Commission to consider whether the same
possibility will be accorded also in the case of the proposed ex ante regu-
lation. We further wish to underline that such new legislative intervention
may lead to a situation where the framework is not future-proof and may
create an incentive for circumvention.
The Danish Government encourages the Commission to consider these ar-
guments carefully and look forward to additional information from the
Commission.
In addition, the Danish Government encourages the Commission to ensure
that it is as easy as possible for companies to assess whether they will be
subject to the new regulatory framework. This means that it must be easy
for companies to determine whether they can be labeled as gatekeepers.
One important step in this regard is to ensure that the gatekeeper platforms
are identified based on a set of clear criteria.
At the same time, the Danish Government encourages the Commission to
ensure that companies can foresee which type of regulatory requirements
they will be subject to
now and in the future. If not, there is a risk of
damaging the incentives to invest and innovate.
We hope these comments will be useful for your further work. The Danish
Ministry of Industry, Business and Financial Affairs would be at your dis-
posal to further elaboration or any follow-up questions you may have.