On 13 May, the European Commission designated, under the Digital Markets Act (DMA), Booking as a gatekeeper in respect of its online intermediation service Booking.com, whilst deciding not to designate X Ads and TikTok Ads as gatekeepers. At the same time, the Commission has opened a market investigation to assess the rebuttal submitted for the online social networking service X.
Today’s decisions follow a review process conducted by the Commission after receiving notifications from the three companies on 1 March 2024 regarding their potential gatekeeper status.
Based on a self-assessment submitted by Booking on 1 March 2024, according to which it meets the relevant thresholds, the Commission found that this core platform service constitutes an important gateway for business users to reach end users.
At the same time, the Commission has opened a market investigation to assess the rebuttal submitted on 1 March 2024 for the social networking service X. According to this, despite meeting the thresholds, X cannot be qualified as an important gateway for business users to reach end users. The investigation should be completed within five months.
Another rebuttal was submitted for the online advertising service X Ads. The Commission concluded that, although X Ads meets the quantitative criteria for designation under the DMA, this core platform service does not qualify as an important gateway. Consequently, the Commission decided not to designate X Ads.
Finally, on 1 March 2024, the Commission received a notification for the online advertising service TikTok Ads from ByteDance, together with a request for rebuttal. The Commission concluded that, although TikTok Ads meets the quantitative criteria for designation under the DMA, this core platform service does not qualify as an important gateway. Consequently, the Commission decided not to designate TikTok Ads either.
Next steps for the ‘gatekeeper’
Following its designation, Booking will now have six months to comply with the obligations under the DMA, offering more choice and freedom to end users and fairer access for business users to the gatekeeper’s services. Booking has six months to submit a detailed compliance report outlining how it complies with each of the DMA obligations. However, some of the DMA obligations have immediate effect, for example the obligation to inform the Commission of any intended concentration in the digital sector.
The Commission will monitor the effective implementation of and compliance with these obligations. If a gatekeeper does not comply with the obligations laid down in the DMA, the Commission can impose fines of up to 10% of the company’s total worldwide turnover, which can increase up to 20% in case of repeated infringements. In case of systematic infringements, the Commission is also empowered to adopt additional remedies such as obliging a gatekeeper to sell a business or parts of it or banning the gatekeeper from acquiring additional services related to the systemic non-compliance.
In the future, additional companies may notify the Commission under the DMA, based on their self-assessment against the relevant thresholds. In this context, the Commission remains in constructive discussions with all relevant companies.
