Cullen International's latest 'Flash' report compares the most recent proposals for new ex ante regulatory regimes for big tech firms in the EU and the UK, namely the Digital Markets Act (DMA) and the advice to the government by the UK Competition and Markets Authority (CMA), respectively.

Key differences include the following:

• Whereas the European Commission opted for a list of 18 obligations and prohibitions that would apply to providers of so-called core platform services by designated as gatekeepers, the CMA proposed that firms with strategic market status (SMS) are subject to bespoke codes of conduct.
• Contrary to the proposed DMA, the CMA’s approach would allow firms with SMS to justify their practices by countervailing benefits.

The UK proposal was elaborated by a Digital Markets Taskforce led by the CMA, and also involving the UK communications regulator (Ofcom) and the Information Commissioner’s Office (ICO). 

Both proposals were published in December 2020. Whereas in the EU the Commission’s proposal is already being discussed under the ordinary legislative procedure, in the UK the government committed to consult on its proposals in early 2021, before submitting draft legislation to Parliament, “when parliamentary time allows”. 

The UK government already announced in November 2020 its plan to establish a “Digital Markets Unit” housed in the CMA from April 2021. 

The new UK regime for big tech firms would be part of a wider framework for digital markets, which would also include new rules e.g. for harmful online content. In the EU, this is addressed through the Digital Services Act.

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