The DMA’s Cloud-Cuckoo Land
The Digital Markets Act (DMA) was built to police digital gatekeepers. The European Commission now wants to test how far that metaphor can stretch—past app stores, social networks, and marketplaces, and into the server racks.
The Commission has reached the preliminary view that Amazon Web Services (AWS) and Microsoft Azure should be designated as gatekeepers under the DMA. That would mark two firsts. It would be the first time cloud computing falls within the DMA’s reach, and only the second time the Commission uses Article 3(8)—the provision that allows it to designate firms that do not meet the law’s numerical thresholds after conducting a market investigation. While the Commission did invoke Article 3(8) in its iPad OS designation, quantitative thresholds still did most of the work in that case.
AWS and Azure are the two largest cloud providers operating in the European Union. But the DMA’s user-number thresholds were built for consumer-facing platforms, not cloud computing, which is overwhelmingly a business-to-business service. Both providers therefore fall outside those thresholds. To designate them anyway, the Commission must do more than invoke the DMA’s built-in presumptions. It must show, with actual evidence, that AWS and Azure serve as “important gateways” and enjoy “entrenched and durable” market positions.
That makes these designations far more interesting than another lap around the DMA enforcement track. Cloud services do not obviously operate as “gates” in the way two-sided platforms do. They do not sit between business users and end users in the familiar app-store or marketplace sense. One of the DMA’s core rationales—increasing contestability by prying open bottlenecks controlled by gatekeepers—appears, at least at first glance, to be missing.
So the question is not merely whether AWS and Azure are large. Plainly, they are. The question is whether “gatekeeper” remains a meaningful legal category that separates firms with durable bottleneck power from firms that are big in competitive markets. Or is it just Brussels-speak for size, with the statutory criteria serving as the ceremonial chant before the inevitable designation?
Until now, the Commission has relied on the quantitative presumptions in Article 3(2) to designate gatekeepers. The qualitative criteria have never had to carry the load on their own. With AWS and Azure, they finally do.