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Just days before the EU’s Digital Markets Act (DMA) was set to enter into force, the European Commission hit Apple—one of the six designated “gatekeepers” to which the new law will apply—with a hefty €1.8 billion fine for the kinds of anti-steering provisions that will be banned by the DMA, which enters into force on 6 March. 

The timing of the fine, and its seemingly arbitrary amount, are both curious. Announced as being the result of a four-year investigation, the decision amounts to an exclusionary-abuse turned exploitative-conduct case, and is underpinned by a flimsy theory of harm in a market that has seen exponential growth over the past decade. The fact that the Commission fined Apple for conduct that would be banned per se just two days later raises questions as to why the DMA was necessary and whether the Commission has faith in the new law’s effectiveness.

Read the full piece here.

La implementación de la Ley de Mercados Digitales (LMD) en Europa nos puede dar algunas lecciones regulatorias a los países que, desde este lado del Atlántico, queremos emular al viejo continente (ya hay una iniciativa en Brazil; y la Comunidad Andina y México han indicado su intención de estudiar el tema).

Read the full piece (in Spanish) here.

The European Union’s implementation of the Digital Markets Act (DMA), whose stated goal is to bring more “fairness” and “contestability” to digital markets, could offer some important regulatory lessons to those countries around the world that have been rushing to emulate the Old Continent.

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The European Commission told Amazon in November 2023 of its preliminary view that the company’s proposed acquisition of iRobot restricted competition in the market for robot vacuum cleaners (RVCs) and could hamper rival RVC suppliers’ ability to compete effectively. The deal, the Commission asserted, would give Amazon incentive to foreclose iRobot’s competitors by engaging in several anticompetitive strategies, including delisting rival RVCs from its marketplace, reducing their visibility, limiting access to certain widget or attractive product labels (“Amazon’s Choice,” “Works with Alexa”), and/or raising rivals’ sales and advertising costs. 

Recently, and in anticipation of a negative clearance decision from the Commission, Amazon and iRobot jointly announced they had terminated their acquisition agreement. 

Read the full piece here.

In a little less than a month, the European Union’s Digital Markets Act (DMA) will start to bite, but how will it taste?

By March 7, companies that were designated as “gatekeepers” in September 2023 will be required to meet the obligations of Articles 5, 6, and 7 of the DMA Regulation. With the exception of ByteDance Ltd., the Chinese owners of TikTok, all of the designated companies have, by now, presented compliance proposals. The DMA’s expected beneficiaries (and, arguably, the loudest in favor of its passage) have been disappointed by some of these proposals, and seek more. But should the European Commission grant them what they are asking for?

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The European Union is on the verge of enacting the landmark Artificial Intelligence Act (AI Act), which will—for better or worse—usher in a suite of new obligations, and hidden pitfalls, for individuals and firms trying to navigate the development, distribution, and deployment of software.

Over the coming months, we will be delving into the nuances of the proposed text, aiming to illuminate the potential challenges and interpretive dilemmas that lie ahead. This series will serve as a guide to understanding and preparing for the AI Act’s impact, ensuring that stakeholders are well-informed and equipped to adapt to the regulatory challenges on the horizon.

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As the European Parliament is on the verge of expressing its view on the Commission’s proposal for a regulation on standard essential patents (SEPs), it seems appropriate to draw the attention to potential disruptive effects of this legislative initiative. Although some commentators have portrayed the proposed regulation as a balanced, innocuous and ‘common-sense’ solution, the reality is very different, as the regulation will likely have adverse effects on European innovation, tech sovereignty and the competitiveness of the European Union in the global arena.

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Once again, a major competition agency, the European Commission, appears poised to take an anticompetitive enforcement action—in this case, blocking Amazon’s acquisition of consumer robotic-manufacturer iRobot.

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You may know that the culprit behind cookie consent banners is not the GDPR but the older ePrivacy Directive, specifically its Article 5(3). The EDPB, a representative body of EU national data protection authorities, has just issued new Guidelines on this law. Setting aside that they arguably didn’t have the authority to issue the Guidelines, this new interpretation is very expansive. They would expect consent for e-mail pixel tracking, URL tracking, and IP tracking. In general, in their view, consent would be required for all Internet communication unless very limited exceptions apply (even more restrictive than under the GDPR).

Read the full piece here.