There was great approval when the European Commission presented new laws to regulate the tech giants Google, Amazon, Facebook, Apple and Microsoft at the end of last year.

Above all, the law for digital markets, mostly abbreviated to DMA, should finally offer the EU an instrument to prevent the anti-competitive behavior of internet companies.

Hendrik Kafsack

Business correspondent in Brussels.

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The lawmakers realized that competition procedures took too long for this. If the decision of the competition watchdog was made, the damage could usually no longer be reversed and the large corporations would have "incorporated" another market. The solution should therefore provide a black list of prohibited behavior that applies to all corporations that control access to one or more Internet platforms such as a "gatekeeper".

In doing so, the European Commission has based itself on the competition cases of recent years. This includes that a smartphone manufacturer and app provider (such as Apple) must not be tied to its app store or the provider of an Internet marketplace (such as Amazon) must not collect customer data from the dealers who work with it and then compete with these dealers may use.

It is important to adopt the new instrument quickly so that no more time is lost trying to contain Google and the other “bouncers”, it has been said for months. The incumbent Slovenian EU Council Presidency therefore wants to reach an agreement among the member states in the coming weeks. The EU Parliament is due to determine its position in December. Then both sides could try to find a common line by spring 2022, without which the DMA cannot come into force.

In fact, however, it will be difficult to keep to the schedule. For as much as all politically involved parties are in fact agreed that the EU needs a new instrument for big tech regulation, so much they argue about the details. It starts with the question of who should fall under the DMA. If it is up to the MEP responsible for the dossier in parliament, the so-called rapporteur Andreas Schwab (CDU), ultimately only the large American Internet companies should fall under it. There are fundamental reasons for this. Schwab argues that only these corporations use their market power to expand into other markets. For other large companies that are only dominant in one market, classic competition law is sufficient. But there are also practical reasons.Experts warn that even more corporations cannot be properly controlled with the planned 80 employees.

The Greens and Social Democrats, on the other hand, want as many Internet companies as possible to fall under the DMA. The EU MEP responsible for the SPD, Evelyne Gebhardt, names music streaming services such as Spotify or Deezer or on-demand services such as Netflix, Hulu and Disney +. “Fight off the beginnings,” she says. "We mustn't wait until a company is as dominant as Google, we have to intervene beforehand," says the member of the Greens, Rasmus Andresen. He therefore proposes increasing the number of staff responsible for the DMA to 300. There is also controversy about how much time the whole process can take to classify companies as “bouncers” and how strong the EU can threaten with the sword of breaking up if a company repeatedly fails to abide by the rules.

In the meantime, the member states are discussing whether the blacklist is actually the right approach to preventing anti-competitive behavior by Internet companies, precisely because it is largely based on the experience of old competition cases. Germany, France and the Netherlands are therefore in favor of adding a further procedure to the black list, as can be seen in a joint working paper dated September 7th, which is available to the FAZ. This would enable the Commission, after examining a market sector in which there are competition problems, to prohibit a “bouncer” from behaviors which it formulates on the basis of a list of more abstractly formulated examples. The legal basis for this is unclear, however.