The Open Internet Project has gathered converging information indicating that the European Commission and the European Council are on the way to rejecting Article 22 of the Digital Market Act as adopted by the European Parliament in December 2021 on precautionary measures.
As the DMA Trialogue draws to a close, the Open Internet Project (OIP) wishes to express its deepest concern with the information we have gathered, all of which indicates that the compromise version of Article 22 of the final text of the DMA would include the original proposal of the European Commission, and would therefore not take into account the text adopted by the European Parliament, aimed at modifying the standard of precautionary measures.
Indeed, Article 22, as proposed by the European Commission, requires that interim measures could only be applicable if the damage to be prevented is “irreparable”. However, with this requirement, the standards for the implementation of the provisional measures prove to be too high, so that this measure – worded identically to Article 8 of Regulation (EC) No 1/2003 – is and will remain inapplicable.
The fact that the provisional measures have only been applied in the digital sector once in 19 years bears witness to this, and the OIP has been working steadily for 4 years to ensure that this drafting evolves!
Faced with the abuse of a dominant position by the Internet giants, from which whole sections of the European digital economy suffer, the problem of urgency in the face of threats of market eviction is essential, and requires the shortening of procedural deadlines. Time is the ally of monopolies and the enemy of European companies which suffer from the abuse of dominant position by the American giants and tomorrow potentially by new global giants which are developing new abusive practices.
In order not to leave European businesses, particularly in the very fast-paced digital world, to suffer from market foreclosure practices, with no other solution than to wait for years for litigation procedures to come to an end, it is imperative to reform article 22 of the DMA regulation by adopting the version of the European Parliament which aims to replace the condition of “irreparable” damage by “immediate”!
This is the meaning of the vote that took place on December 15, 2021 in the European Parliament, and the European digital industry could not understand that this vote would be challenged by the trialogue on this vital issue for its future.
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