ERU, Alm.del - 2019-20 - Bilag 343: EMs notat samt høringssvar vedr. Kommissionens foreløbige konsekvensanalyse af ex ante regulering af store digitale platforme, fra erhvervsministeren

Erhvervsudvalget 2019-20
ERU Alm.del Bilag 343
Offentligt

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

there are overlaps and

where

these overlaps exist. The Commission

should also put forward suggestions on how to solve those overlaps and be

ERU, Alm.del - 2019-20 - Bilag 343: EMs notat samt høringssvar vedr. Kommissionens foreløbige konsekvensanalyse af ex ante regulering af store digitale platforme, fra erhvervsministeren

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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

ERU, Alm.del - 2019-20 - Bilag 343: EMs notat samt høringssvar vedr. Kommissionens foreløbige konsekvensanalyse af ex ante regulering af store digitale platforme, fra erhvervsministeren

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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.