EU & Antitrust

Together with the proposal for a Digital Services Act (see here), the European Commission has proposed a new regulatory regime applicable to certain platforms that provide digital services (Digital Markets Act, or DMA). The approval of these rules will involve substantial changes in the business models of a number of companies and will have a significant impact on how competition plays out in digital markets.

The European Commission has just published its proposal to regulate digital services in two texts which even it considers ambitious: the Proposal for a Regulation on Digital Markets (analyzed here) and the  Proposal on a Regulation for Digital Services (DSA) which we address below. In forthcoming articles, we will take a close look at the many changes that lie ahead. Today, by way of introduction, we provide a summary of the main obligations (and rights) contained in the Proposal for a Regulation on Digital Services.

In late March and early April, the European Commission ("EC") approved two state aid packages for Portugal, within the framework of Article 107 (3) (b) of the Treaty on the Functioning of the European Union (TFEU), namely decisions SA.56755 and SA.56873, respectively. The EC considers them necessary, appropriate and proportionate measures to remedy a serious disturbance in the economy of this Member State.

The CJEU will have to rule on whether it is EU law or national law that determines which jurisdiction applies domestically to hear damages action. The question is inscribed in the case commonly referred to as the trucks cartel.

In order to prevent the spread of COVID-19, the guidelines for the entire European Union (“EU”) involve social distancing. This measure, while necessary from a public health perspective, is leaving various sectors of the economy, companies and employees on the brink of collapse. The inability to foresee how long these measures will last means that the true economic impact of this virus will only become known sometime in the future. Within this context, various legislative changes have been seen in both Portugal and the rest of the world. Competition Law has already undergone temporary but truly disruptive changes. Some of these are briefly described in this newsletter.

Companies are responsible for reporting concentrations when certain criteria are met relating to the Competition Act. Until the companies obtain a clearance decision from the competent body, these types of operations must be suspended. The implementation of these operations in breach of this obligation is known as gun-jumping and might trigger high fines.

The Competition Authority, similar to other authorities throughout Europe, guaranteed vigilance in detecting potential abuse or practices restricting competition that attempt to exploit the fragile situation arising from the current crisis.

According to the instructions of the Competition Authority, any notifications relating to concentrations must be submitted online. This, incidentally, was already the case with most operations reported by lawyers working in this area.

The economy is slowing down, but not stopping. The Competition Authority encourages all companies to continue with their business, while respecting the rules of competition.