The second step of DMA implementation: from the designation of gatekeepers to pre-compliance meetings

After six months from its entry into force, the Digital Markets Act [1] (‘DMA’) entered the implementation phase. It should be recalled that the regulation entails a paradigm shift in the governance of market distortions because it codifies market practices that are deemed unlawful regardless of a market investigation. The DMA introduces a set of obligations (a list of “dos” and “don’ts”) for companies holding a gateway position in relation to the offer of a digital service, technically named “gatekeepers”.

The first step towards DMA implementation is the designation of gatekeepers. Art. 3, para. 1, of the DMA defines gatekeepers as the providers of core platform services that cumulatively satisfy the following criteria: a) have a significant impact on the internal market; b) operate a core platform service which serves as an important gateway for business users to reach end users; c) enjoy an entrenched and durable position in their operations or it is foreseeable that they will enjoy such a position in the near future. The second paragraph establishes minimum thresholds over which it is presumed that a provider of core platform services satisfies the qualitative requirements set forth in the previous paragraph.

The gatekeeper has the duty to notify the Commission on meeting the above-mentioned requirements. However, the firm can be excluded from the scope of the DMA if it rebuts the gatekeeper presumption by presenting sufficiently substantiated arguments that, despite meeting the quantitative threshold under paragraph 2, it does not satisfy the qualitative requirements of paragraph 1.

By 3 July 2023, companies had to notify the Commission that they met the thresholds to qualify as gatekeepers. The companies which declared their eligibility for being considered gatekeepers by this deadline were Alphabet, Amazon, Apple, ByteDance, Meta, Microsoft and Samsung [2]. It would be interesting to see whether other big companies operating in digital markets, such as, Just Eat, or Uber will join this list. The Commission can impose a fine not exceeding 1% of the total worldwide turnover in the preceding financial year on those undertakings that fail to notify the Commission on meeting the thresholds to be designated as a gatekeeper. The qualification and delineation of the service can be very problematic when the services are much integrated, such as a search engine offering advertising spaces.

On September 6, the Commission designated six tech companies as gatekeepers – Alphabet, Amazon, Apple, ByteDance, Meta and Microsoft [3]. The Commission found that these undertakings operate as gateways between business and consumers in relation to 22 core platform services (from ByteDance with “just Tiktok” to Google with 8 different sectors). Gatekeepers must comply with the obligations under the new regulation within a maximum of six months, that is, by March 2024.

There are ongoing investigations as to whether Microsoft and Apple, despite meeting the thresholds in relation to certain services (Bing, Edge, and Microsoft Advertising for Microsoft and iMessage for Apple), do not hold the strong market position necessary to be considered as a gatekeeper. The investigations are expected to be concluded within a maximum period of 5 months.

Additionally, the Commission has initiated a separate investigation to delve into the possibility of designating Apple as a gatekeeper in relation to the offer of iPadOS, even though it falls short of meeting the specified criteria. According to the DMA, this investigation should be completed within a maximum of 12 months.

Furthermore, the Commission has reached a decision regarding Gmail,, and Samsung Internet Browser. Although these services meet the DMA’s thresholds for gatekeeper status, Alphabet, Microsoft, and Samsung have presented persuasive arguments indicating that these services should not be categorised as gateways for their respective core platform services on the grounds of the smooth interoperability between competitors.

After having designated the gatekeepers and the services in relation to which there is a gateway position, the Commission started a pre-compliance discussion with gatekeepers to respect the timeline. It is likely that dedicated meetings will be organized to elucidate on the compliance with specific obligations considering than some of them require much discussion than others. For instance, the prohibition to prevent contacts with authorities (Art. 5.6) is far more straightforward and more easily verifiable than the prohibition in self-preferencing in ranking (Art. 6.5).

The first tool to monitor effective compliance with all the obligations under the new regulation is a report that the gatekeeper must provide to the Commission. The report describes in a detailed and transparent manner the implemented measures to fulfill the obligations under the DMA. Nevertheless, the regulation does not contain guidelines about the drafting of a compliance report. The lack of instructions potentially leaves the gatekeepers full discretion in choosing the metrics to measure their level of compliance.

The risk of excessive fragmentation led the Commission to launch a public consultation on the template for reporting under Art. 11 DMA [4]. However, the template faces some criticism on the grounds that it does not differentiate the enforcement strategies based on the distinct types of obligations (positive vs. negative and self-enforcing vs. obligations subject to specification) [5]. Moreover, the proposed model seems to rely on the general clauses of market fairness and contestability without providing precise indicators to measure the compliance with each obligation [6].

In the aftermath of DMA final implementation, the Commission expect to have a more open playground for any business willing to operate in digital markets (especially SMEs which are more likely to be affected by the barriers to entry), ensuring fairness and helping healthy competition and innovation to come to the market. In the following months a smooth collaboration between the Commission and the designated gatekeepers will be crucial to ensure an effective integration of the new rules in the business strategies rather than a mere cosmetic compliance.


[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 (Digital Markets Act), OJ L 265.

[2] European Commission Press Corner, Remarks by Commissioner Breton: Here are the first 7 potential “Gatekeepers” under the EU Digital Markets Act, 4 July 2023, available at the following link:

[3] European Commission Press Corner, Digital Markets Act: Commission designates six gatekeepers, 6 September 2023, available at the following link:

[4] European Commission, DMA: Commission launches a consultation on the template for compliance report, 6 July 2023, available at:

[5] A. Ribera, Martines, The European Commission’s (Draft) Template for DMA Compliance Reports: Sailing Through Rough Seas, Kluwer Competition Blog, 8 June 2023, available at the following link:

[6] Ibidem.


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