“I would draw your attention to the curious treatment of Article 25 in the recitals.”
“But the recitals say nothing about Article 25.”
“That is the curious treatment.”
(With apologies to Sir Arthur Conan Doyle.)
Remedies for breaches of the DMA
In the European Commission’s draft DMA, Article 25 covers the consequences for a breach of the regulation. If a gatekeeper has been found in breach of its obligations under Articles 5 or 6, this article gives the Commission power to issue a cease and desist order:
the Commission shall order the gatekeeper to cease and desist with the non-compliance within an appropriate deadline and to provide explanations on how it plans to comply with the decision.
Article 26 provides that the Commission can also impose a fine.
Notably, the Commission cannot do anything more: it cannot impose any additional remedy aimed at undoing the effects of the infringement of the DMA unless there is “systematic non-compliance”.
Article 16(3) provides that undertakings will have been deemed to engage in systematic non-compliance:
where the Commission has issued at least three non-compliance or fining decisions pursuant to Articles 25 and 26 respectively against a gatekeeper in relation to any of its core platform services within a period of five years prior to the adoption of the decision opening a market investigation…
The “deeming” of certain conduct as being “systematic non-compliance” seems to leave open at least the possibility of the Commission finding systematic non-compliance in other circumstances as well. The use of the term “systematic” would seem at first sight to make it difficult finding non-compliance on the basis of a single infringement: but perhaps “systematic” should be interpreted in other ways than repeated.
The Oxford English Dictionary definition of the adjective systematic is:
- (Of a text, exposition, activity, etc.) arranged or conducted according to a system, plan, or organized method; (of a person) acting according to a system, regular and methodical, thorough.
- Habitual, deliberate, premeditated; acting or carried out with malicious intent.
Those definitions would seem to support a finding of systematic non-compliance in situations that are not necessarily “repeated”.
What then happens if there is a finding of systematic non-compliance? The Commission has greater powers. In cases of “systematic non-compliance” where the gatekeeper “has further strengthened or extended its gatekeeper position” the Commission can impose a remedy going beyond cease and desist. In those cases, Article 16(1) authorises the Commission – after having conducted a market investigation – to impose behavioural remedies or, if behavioural remedies would be inadequate, structural ones.
Contrast with the competition rules
This multi-step framework under Articles 16 and 25 contrasts with enforcement powers under the competition rules where the Commission has the power to bring an infringement – including a first infringement – “effectively to an end”. This is the relevant part of Article 7 of Regulation 1/2003:
it may impose on them any behavioural or structural remedies which are proportionate to the infringement committed and necessary to bring the infringement effectively to an end. Structural remedies can only be imposed either where there is no equally effective behavioural remedy or where any equally effective behavioural remedy would be more burdensome for the undertaking concerned than the structural remedy.
Recital 12 of Regulation 1 provides some context:
This Regulation should make explicit provision for the Commission’s power to impose any remedy, whether behavioural or structural, which is necessary to bring the infringement effectively to an end, having regard to the principle of proportionality. Structural remedies should only be imposed either where there is no equally effective behavioural remedy or where any equally effective behavioural remedy would be more burdensome for the undertaking concerned than the structural remedy. Changes to the structure of an undertaking as it existed before the infringement was committed would only be proportionate where there is a substantial risk of a lasting or repeated infringement that derives from the very structure of the undertaking.
Now obviously there’s no reason why the DMA should necessarily follow the competition rules. But the very different approach in Regulation 1 and Article 25 DMA seems noteworthy.
Perhaps the thinking is that the obligations in the DMA are already remedies aimed at achieving a more contestable environment. So imposing a further remedy on top of the existing remedy, with the aim of achieving more contestability would be unnecessary or disproportionate. That argument seems weak in that Articles 5 and 6 are, once adopted, legal obligations. And a failure to comply with a legal obligation may have consequences that a simple ending of that failure to comply may not address. For example, if Google fails for three years to comply with Article 6(1)(j) (“provide…access on fair, reasonable and non-discriminatory terms to ranking, query, click and view data in relation to free and paid search…”), then that failure may have had effects on its competitors during that three year period. A requirement simply to cease and desist that breach of its obligations could not – pretty much by definition – effectively remedy those effects. Recognising this potential need for effective remedies only in cases of systematic non-compliance seems odd: effects may be demonstrable after one breach, and not just three.
Looking at the combination of Articles 16 and 25, the draft DMA has the following enforcement path for multiple breaches:
- A first breach: a fine, and a decision saying you should comply with the law;
A second breach (within five years of the first): a fine, and a decision saying you should comply with the law;
A third breach (within five years of the first): a fine, and a decision saying you should comply with the law; and then
After that third breach, the Commission can open a market investigation (Article 16), after which – if it can show that the gatekeeper “has further strengthened or extended its gatekeeper position” – the Commission can might impose a behavioural remedy, or – if there is no equally effective behavioural remedy – a structural remedy.
This raises a couple of questions:
- The limited scope for remedies under Article 25 is striking. What if the gatekeeper has clearly “further strengthened or extended its gatekeeper position” even after just one breach of the DMA? If that requirement fromArticle 16 can already be shown after a single instance of non-compliance – perhaps one that lasted several years – then what is the logically consistent rationale for not providing for more extensive remedies under article 25?
For systematic non-compliance, do the three breaches have to be in respect of the same obligation and / or the same core platform service? Article 16(3) refers to breaches “in relation to any of its core platform services” which suggests each breach could be of any obligation in relation to any service, but it’s not wholly clear. In addition, the gatekeeper position has to be strengthened or extended, which would argue for the breaches all being in relation to the same gatekeeper service.
Assuming we get to the stage of systematic non-compliance, is it possible to prove that a behavioural remedy would not be equally as effective as a structural remedy without having tried the behavioural remedy first?
If the behavioural remedy is tried and fails, then is it possible to impose a structural remedy on the basis of the same three infringements within five years? There are no clear provisions on revisiting remedies that have failed to achieve their objectives (and nor are there under the competition rules).
If the Commission could not revisit a remedy and therefore could not base further action on those three infringements within five years, would (a) a fourth infringement within five years of the second infringement suffice, or would (b) the clock start again at zero, and another three infringements within the following five years be necessary?
The problem with (a) – arguing that the fourth infringement would suffice because infringements two, three and four constitute a set of three infringements within five years – is that there would seem to be potential arguments about double jeopardy / ne bis in idem. Under the competition rules, the Court has ruled in Toshiba that the ne bis in idem principle, “precludes an undertaking being found liable or proceedings being brought against it afresh on the grounds of anti-competitive conduct for which it has been penalised or declared not liable by an earlier decision that can no longer be challenged.” As this is a principle enshrined in the ECHR, it looks relevant to the DMA as well.
Continuing role for the competition rules?
Given that a first (and second) breach of the DMA can only lead to a cease and desist order, a complainant wanting a further remedy – perhaps to undo several years of harm to its business – might prefer to go to a competition authority such as DG COMP, as the competition rules provide greater scope for remedies that put an infringement effectively to an end, and the complainant would not have to wait for the “systematic non-compliance” of the DMA. Not every company regulated by the DMA will be dominant on a properly defined antitrust market, so not every breach of the DMA will automatically be an abuse of dominance. But if a company were dominant, a breach of the DMA that were capable or likely to have anti-competitive effects might well be seen as an abuse.
COMP might not want to deal with such complaints but it might be difficult to say that there is no Community interest in handling the complaint – given the existence of the DMA and the lack of comparable remedies powers upon finding an infringement.
So why the reference to Sherlock Holmes?
Ah yes. Because normally in situations where the reason for an article is perhaps unclear, the recitals to the draft would provide some context or explanation. The limited remedies under Article 25 for a first (or second) breach of the DMA seem curious, particularly when compared to competition enforcement. But turning to the recitals, although there are one or more recitals for every other important provision of the draft, there is no recital that explains Article 25. That seems a curious omission.