DMA Insight #6: The final Implementing Regulation has been adopted — A refined access to file but few changes overall

After a public consultation run at lightning speed over Christmas, the European Commission adopted the Implementing Regulation for the Digital Market Act on Friday.

The final version includes few significant changes to the draft published in December 2022 with the exception of a major rewrite of gatekeepers’ access to the Commission’s case file.

Seeking to balance the right to be heard and third party’s right to confidentiality, the regulation sets up brand new streamlined access to file and confidentiality procedures. Parties on the receiving end of the EC’s preliminary findings will be granted access to all non-confidential versions of the documents in the Commission’s file. In parallel, the party’s external legal counsel, economists or other “external technical experts” will have access to the complete file including confidential documents subject to possible exceptions at the discretion of the EC. This access will be strictly regulated by the Commission’s terms of disclosure.

In addition, third parties submitting information to the EC will now have to consent to the possibility of all of their information being disclosed under the Commission’s access to file procedures. Should they object, the Commission will be allowed to overrule their confidentiality claims via reasoned decision.

The Commission also made a number of smaller concessions:

• The gatekeeper notification may become effective not only when all the relevant information has been received by the Commission, but also if the Commission considers that some of the requested information is no longer necessary (and subsequently informs the concerned undertaking).
• The EC will be able to request that parties’ submissions in a different format than required be corrected to fit the regulation’s formatting requirements. Such requests will have the effect of stopping the clock on the review process.
• The Commission has also lowered the bar from “objectively impossible “to “exceedingly difficult” in order to grant an extension of the maximum length of written submissions, and clarified that the maximum length does not include annexes.

These do not particularly give gatekeepers additional rights but give the Commission (some) more room for manoeuvre in its administrative processes.

With this text, DMA enforcement should be ready to begin according to the expected timeline (see below). Further insights about the DMA are available in our DMA Hub, your one-stop-shop for all things DMA.