The report aims to contribute to an effective implementation by the European Commission of the EU Digital Markets Act, which aims to increase contestability and fairness on the European digital markets, and ultimately augment users’ choice and digital innovation.The report starts by developing five good regulatory principles at the substantive level (effectiveness, proportionality, non-discrimination, legal predictability, and consistency with other EU laws) and four procedural principles: participation, ex ante and ex post evaluation of compliance measures, due process and ex post assessment of the law). Then the report applies those principles to a series of specific DMA obligations: choice architecture, horizontal and vertical interoperability and data related obligations. Finally, the report recommends a series of output indicators to contribute to the compliance assessment as well as the evaluation of the effectiveness of the law.

The goal of the obligations introduced by the Digital Markets Act (DMA) is to influence the conduct of gatekeepers and, by doing so, reach the overarching objectives of contestability and fairness in digital markets. Compliance with these obligations will be monitored with the help of compliance reports that the gatekeepers need to hand in to the enforcer of the regulation, the European Commission.The authors of the latest CERRE Tech, Media, and Telecom draft issue paper, Richard Feasey and Alexandre de Streel, propose that the Commission also require gatekeepers to report against a common set of so-called ‘output indicators’. Output indicators are intended to capture both the extent to which conduct by the gatekeeper has created new opportunities for firms or users and also the extent to which firms or users have engaged with those opportunities with respect to a particular gatekeeper.These indicators would allow for comparison or benchmarking between gatekeepers and, alongside other pieces of evidence, should contribute to the assessment of whether the gatekeeper has complied with the relevant obligations.This draft issue paper is part of a larger CERRE project entitled ‘CERRE Forum on the Digital Markets Act Compliance’. A list of concrete output indicators for DMA obligations under Articles 5, 6, and 7 will be published in September 2023. Afterwards, the project will continue with its second phase, delving deep into certain groups of obligations, and focusing on the technical principles of implementation.

The CERRE Report makes recommendations to make the Digital Markets Act, recently proposed by the European Commission to regulate large digital platforms, more resilent and effective. To do so, the report, recommends (1) more clarity on the objectives of the DMA, specifically the meaning of contestability and fairness: (2) focus scope to minimise the risks of over and under inclusiveness; (3) a better balance between the ‘administrability’ and flexibility of the DMA; (4) more room and mechanisms within the DMA for learning-by-doing in order to optimise regulation of digital markets in the long run and (5) a role for national authorities in supporting the Commission through their knowledge of local conditions, proximity to businesses and expertise in designing remedies.

After the enactment of net neutrality regulation, devices are considered to be the remaining weak link to achieving a ‘neutral’ (non-discriminatory) internet access. We highlight that discriminatory conducts similar to those condemned under the net neutrality regulation can also occur at other layers of the internet access value chain. Specifically, we consider possible ‘neutrality’ violations in the context of mobile devices for general internet access. Unlike net neutrality, where the gatekeeper control is exercised over the physical connection by the broadband provider, the exercise of gatekeeper control can apply at many different access layers in the context of devices. A number of ‘neutrality’ issues may arise at each of the different access layers, but concerns concentrate predominantly at the operating system and application discovery layers, the latter of which is constituted by browsers and app stores. This suggests that net neutrality alone is not sufficient to ensure ‘neutrality’ of internet access and that additional ‘device neutrality’ regulation is needed. We propose that the regulation of the internet access value chain should aim at maintaining alternative routes for content to reach the consumer, and suggest specific regulation at two logical internet access layers that relate to devices: the operating system layer and the app discovery layer, the latter of which is comprised by app stores and browsers. Most of our recommendations are in line with a number of new provisions that were included in the proposed Digital Markets Act (DMA), albeit these were inspired by previous and ongoing competition law cases, rather than by extending the scope of existing ‘neutrality’-regulation. We highlight the relationships between our regulatory framework on ‘device neutrality’ to that proposed as part of the DMA, and how the provisions in the DMA would need to be adapted or specified in the context of devices.

wo decades after the net neutrality debated started, the internet ecosystem has evolved and additional gatekeepers have emerged. In order to access content from content and service providers (CSPs), consumers have to pass through a whole internet access value chain, comprised of broadband providers, device manufactures and online platforms. Today online platforms, such as search engines, online marketplaces and other online intermediation services also play an important role in the consumer’s discovery and choice of CSPs. Likewise, devices (such as smartphones and connected speakers) and the software (such as operating systems and apps) that runs (or does not run) on them can significantly impact the consumer’s access to and choice of online services. In this report, we discuss whether, ‘openness’, ‘non-discrimination’ and ‘transparency’, which are the key pillars of net neutrality regulation, should be regulatory principles that also apply at other layers of the internet access value chain and specifically to certain types of devices. Most of our recommendations are very much in line with a number of new provisions that were included in the proposed DMA, which was published by the European Commission after we had started this study. The relevant provisions are Articles 5b, 5c, 5f, 6b, 6c, 6d, 6e, 6f, 6k and 6h. Generally, we concur with all of these provisions, but make a number of suggestions on how these may be adapted or specified in the context of devices in order to avoid unintended consequences June 2021 | Device neutrality: openness, non-discrimination and transparency 8/65 and in light of our findings in this report. We also show that almost all of these provisions would need to be specified further, including some of the Article 5 provisions, although these are deemed to be self-executing by the Commission.

Across the world, regulators and policy makers are grappling with how to establish a competitive, safe and fair online environment that also safeguards users’ fundamental rights as citizens. Ahead of the European Commission’s Digital Markets Act (DMA), this book “Digital markets and online platforms: new perspectives on regulation and competition law“, presents CERRE’s latest contribution to the debate with concrete policy recommendations. Together, the policy recommendations in this book present a roadmap that should be pursued for EU policy makers to safeguard competition and innovation in digital platform markets. They can be organised into three key areas for action: (i) More effective enforcement, (ii) increased transparency and switching easiness, and (iii) providing access to key innovation capabilities.

There is today growing momentum behind proposals for ‘data sharing’ as a remedy for competition concerns in digital markets, as well as efforts by the European Commission to promote the sharing of data more widely in the European economy. However, there is as yet less focus on the practical challenges that will need to be overcome to implement data sharing arrangements that effectively promote innovation and competition in or preserve the contestability of digital markets. There is also limited experience of regulated data sharing in practice. This report aims to address that gap and offers a series of recommendations on what authorities will need to do if data sharing by digital platforms is to occur at scale in Europe.

This is a collection of recommendations and discussions on the European Commission proposal for a Digital Markets Act. My contribution is on the Institutional Issues.

In this paper, we document how public funds, or State Aid, have been used to support the deployment of broadband infrastructure in Europe since 2003. Our descriptive analysis relies on a unique data set on all the broadband measures notified to the European Commission by Member States between 2003 and 2018. We identify two waves of State Aid for broadband: one for the deployment of basic broadband, and a more recent one for the roll out of next-generation access networks. The use of State Aid is very heterogeneous across Member States, with a few large countries representing the bulk of the cases. The objective of most plans is to expand broadband coverage. The typical project relies mainly on public funds, and involves a direct grant, an open tender, and a contract for 3–5 years. Access obligations are imposed on networks deployed with State Aid, using a benchmarking approach in most cases. Finally, we show that notifications are associated with a relatively high level of broadband coverage in notifying countries, suggesting that public investment is taking over from private investment.

The author discusses the impact of the Internet on the telecommunications industry drawing upon own professional experience of the past 20 years. Applies the Kubler-Ross model of grieving to argue that telecoms operators have moved from denying the disruptive power of the Internet, to anger and then to adaptation of their own business models and acceptance of the Internet. Highlights fundamental differences in approach to competition, interoperability and innovation. Discusses failure of ‘walled gardens’, attempts to block VOIP and proposals for ‘data termination rates’. Argues that telecommunications operators must consider Internet services as complements not substitutes and adapt business models accordingly. Concludes that European telecommunications operators have been slower to understand this than those in the United States.