Eucrim has been regularly reporting on the EU's new major legislation regulating the digital space, i.e., the Digital Services Act and the Digital Markets Act (→ eucrim 1/2024, 12-13 with further references). The Digital Markets Act (DMA) aims to ensure contestable and fair markets in the digital sector. It regulates gatekeepers, which are large digital platforms that provide an important gateway between business users and consumers, whose position can grant them the power to act as bottlenecks in the digital economy. The following is an overview of the latest developments that follows on from the news on the DMA in →eucrim 2/2024, 95-96.

• 16 October 2024: The European Commission concludes that the online social networking service of X does not qualify as a core platform service under the DMA. Following an in-depth market investigation initiated on 13 May 2024, the Commission reviewed X's rebuttal arguments and stakeholder input. Despite meeting the DMA's quantitative thresholds, X's service is not deemed an important gateway for businesses to reach end users. The Commission, after consulting with the Digital Markets Advisory Committee, determines that X should not be designated as a gatekeeper. It will continue monitoring market developments related to X's service and may revisit the decision if significant changes occur. A non-confidential version of the decision will be available on the Commission's DMA website.
• 1 November 2024: Apple publishes a compliance report outlining the company's measures to align iOS, iPadOS, Safari, and the App Store with EU regulations. Apple emphasises that these platforms are designed as integrated systems to ensure user safety, security, and privacy. However, to comply with the DMA, Apple has implemented changes that introduce new risks, including potential exposure to malware, fraud, and harmful content. To mitigate these risks, Apple has introduced safeguards such as notarisation for iOS and iPadOS apps, authorisation processes for marketplace developers, and disclosures regarding alternative payment methods. Despite these measures, Apple acknowledges that some risks persist and expresses a commitment to developing additional protections over time. The company is also in ongoing discussions with the European Commission to address concerns related to non-compliance investigations concerning iOS, with plans to extend any resulting changes to iPadOS as applicable.
• 4 November 2024: The European Commission investigates whether Apple's iPadOS meets obligations under the DMA. Designated as a gatekeeper in April 2024, Apple must allow users to set default web browsers, support alternative app stores, and enable effective access to iPadOS features for accessory devices like headphones and smart pens.
• 11 November 2024: Bytedance Ltd appeals the General Court’s July 2024 judgment upholding its designation as a gatekeeper under the DMA ( →eucrim 2/2024, 95-96). The appeal alleges legal errors in the Court's interpretation of the DMA and procedural breaches by the European Commission. Bytedance challenges the application of DMA Arts. 3(1) and 3(5), claiming the Court misapplied criteria for market impact, gateway roles, and contestability. It states that the Court failed to holistically assess evidence and improperly dismissed key arguments. The appeal also cites violations of Bytedance’s rights of defence, arguing that procedural errors by the Commission should have led to the annulment of its decision.
• 14 November 2024: Booking Holdings Inc. (BHI), designated as a gatekeeper under the Digital Markets Act (DMA) in May 2024, must now ensure that its platform, Booking.com, complies with all relevant DMA obligations. This brings significant changes for businesses using Booking.com, such as hotels and car rental providers, including the following: freedom to offer different prices and conditions on their own websites or other channels as "parity" clauses are banned; protection from punitive actions like increased commissions or de-listing for offering better deals elsewhere; access to real-time data generated on Booking.com, with the ability to transfer this data to other platforms. Booking must submit compliance reports, including details of its consumer profiling techniques, as required by the DMA. The European Commission will review these measures and gather stakeholder feedback.
• 22 November 2024: The European Commission concludes its antitrust investigation into allegations of Apple's anticompetitive practices related to certain terms imposed on e-book and audiobook app developers using its App Store within the European Economic Area.