The European Commission invited views on its proposed Digital Services Act in June 2020. Here is the comment submitted by FairSearch:

FairSearch Views on the Proposed Digital Services Act

September 2020

FairSearch is an association of businesses and organizations united by the goal of promoting economic growth, innovation, and choice across the Internet ecosystem by fostering and defending competition in online and mobile search.

FairSearch strongly urges the Commission to rectify any enforcement inefficiencies and to fully utilise its enforcement powers (e.g., interim measures) under the existing competition law regime before implementing a novel ex ante regulatory instrument.

The tools to ensure large digital platforms operate fairly on the market already exist in the form of current EU competition rules.  But the Commission needs to enforce these rules in order for these platforms to take them seriously and adapt their behaviour to them.  Enforcement should not be limited to the adoption of infringement decisions, but should extend to ensuring these decisions are complied with fully and in a manner that restores a level playing field.

The recent Google Search and Android decisions to date represent missed opportunities in this regard.  Although the Commission appropriately found significant infringements of competition law in these decisions, it has yet to enforce Google’s compliance with them in a meaningful and effective manner.  Before adopting new laws that potentially provide new bases for new infringements, the Commission should prioritise using the tools at its disposal to ensure its decisions are not rendered dead letter to these digital platform companies.

The history of the Microsoft case suggests the Commission can forcefully ensure compliance in a manner that brings about meaningful change in the market based on the existing regulatory framework.  In order to ensure compliance with the 2004 Decision, the Commission commenced several infringement decisions against Microsoft, which ultimately brought Microsoft in line and triggered a shift in Microsoft’s approach to interoperability and open source to the benefit of competition on the market (and ultimately, one might argue, Microsoft itself). 

Today’s large digital platforms are even more powerful than Microsoft was at the time of the Decision, and rather than count on the goodwill of these platforms to introduce meaningful remedial measures, the Commission should actively apply every means it has at its disposal today to ensure that such measures are put in place.  This proactive enforcement stance includes the commencement without delay of non-compliance proceedings and the imposition of truly deterrent penalty payments.

Thus, even though FairSearch supports the future adoption of any rules that enable the Commission to ensure fair competition can work to the benefit of consumers, it doubts the immediate need for such new rules given the means available under the existing competition law framework, when enforced to the fullest.  In addition, FairSearch also has concerns about the overall efficiency of this potential set of additional norms.  The implementation of a governance and oversight regime over digital services across the EU requires a significant investment in time and resources before it can digital services across the EU requires a significant investment in time and resources before it can meaningfully impact the digital market, yield fruits, and create a pro-competitive landscape. Effective enforcement of existing competition law rules could achieve results much more quickly and efficiently.

For these reasons, FairSearch strongly urges the Commission to prioritise effective enforcement of existing competition laws before adopting any new regulatory instruments.

Ends