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[To Eurosmart members only]
MEPs adopt the Digital Markets Act: a step forward for the eIDAS Wallet
On 24 November, MEPs from the Committee for Internal Market and Consumer Protection (IMCO) voted in favour of its position on the Digital Markets Act (DMA). The DMA sets rules on what gatekeepers are allowed to do and not to do. Overall, gatekeepers must refrain from imposing unfair conditions on businesses and consumers.
The DMA applies to “core platform services”, including online intermediation services, social networks, search engines, operating systems, online advertising services, cloud computing and video sharing services. MEPs chose to add web browsers, virtual assistants and connected TVs. All these services must meet certain criteria to be considered “gatekeepers” and hence enter the scope of the DMA.
The DMA goes hand in hand with the Digital Services Act (DSA). The DSA targets illegal content and algorithms on big platforms. The DSA will be voted on at a later stage by the IMCO Committee.
Relevance for eIDAS
The DMA is highly relevant in the context of the eIDAS Regulation. It is even mentioned in the proposal for a revision of eIDAS. The DMA will give access to the secure elements of smartphones, as well as other elements needed for the Wallet.
The DMA covers operating systems, defined as “a system software which controls the basic functions of the hardware or software and enables software applications to run on it”. The DMA also covers software application stores, as a sub-type of online intermediation services.
In-app payment systems and identification services are also in the scope. They are considered ancillary services, i.e. services provided in the context of or together with core platform services.
MEPs added an interesting definition of “interoperability”: “the ability to exchange information and mutually use information which has been exchanged so that all elements of hardware or software relevant for a given service and used by its provider effectively work with hardware or software relevant for a given services provided by third party providers different from the elements through which the information concerned is originally provided. This shall include the ability to access such information without having to use an application software or other technologies for conversion”.
Interoperability is part of the obligations of the gatekeepers. Gatekeepers shall “allow and technically enable the installation and effective use of third-party software applications or software application stores using, or interoperating with, operating systems of that gatekeeper and allow these software application or stores to be accessed by means other than the relevant core platform services.”
In addition, providers of ancillary services (e.g. identification, payment) shall be allowed access to and interoperability with the same operating system, hardware or software features that are available to ancillary services provided by a gatekeeper.
However, the gatekeeper can still take measure to ensure that third party software applications or stores do not endanger the integrity of the hardware or operating system or undermine cybersecurity. These measures must be proportionate and justified.
Making fair use of data
End-users
Gatekeepers shall refrain from combining and cross-using personal data sourced from their core platform services with data from other services they offer or with personal data from third-party services. This includes combining data for the purpose of micro-targeted advertising. Such a combination can only be done if the end user has been presented with the specific choice in an explicit and clear manner. The DMA also reinforces the end users’ rights to data access and data portability.
Business users
Gatekeepers shall refrain from using, in competition with business users, any data which is generated through the use of their services by these very same business users or their customers. In short, they shall not use these data to undermine business competitors. The DMA lays down further obligations to ensure that business users do not suffer from unfair practices (e.g. abusive contracts). Business users are also entitled to request, free of charge, access and use of aggregated and non-aggregated data relating to their use of the platform services.
Possibility to ban acquisitions
The DMA gives the possibility to the Commission to restrict gatekeepers from making acquisitions in areas relevant to the DMA to prevent further damage to competition. This is particularly the case if gatekeepers have a behaviour of systematic non-compliance.
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