2 Defining regulatory principles

2.8 Digital Service Act and Digital Markets Act

As a consequence of the most recent legislative campaign promoted by the European Commission, in relation to the regulation of the digital environment for the creation of a safer digital space, a package of measures has recently been approved for this purpose. These measures include most notably the following:

• Regulation (EU) 2022/2065 of 19 October 2022 on a single market for digital services ("Digital Service Act" or "DSA").

  This Regulation, which was approved on October 4, 2022 and will not come into force until February 17, 2024 (with the exception of certain obligations that apply as from its publication), imposes obligations on digital service providers to prevent unlawful content on the Internet, while seeking to ensure that the rights of their users are safeguarded. Although the DSA partially amends Directive 2000/31/EC, it maintains the exclusion of liability for intermediary service providers, but imposes more obligations on them in terms of transparency, information, design of their services and the implementation of procedures, with the aim of making them more diligent in the removal of the content they host.

  The parties obliged to comply with this regulation include: online intermediation services, data hosting services, online platforms (including social networks and marketplaces) and search engines. In this regard, it should be noted that platforms and search engines with a number of users exceeding 10% of the EU population will be required to comply with additional obligations.

• Regulation (EU) 2022/1925 of 14 September 2022 on contestable and fair markets in the digital sector ("Digital Markets Act" or "DMA").

  This Regulation, applicable as from May 2, 2023, aims to ensure that large digital platforms do not engage in anti-competitive conduct and avoid unfair practices, such as: favoring the services offered by the platforms themselves, preventing professionals using their services from impacting consumers, or preventing the installation of applications from sources other than the service provider itself.

  In order to be considered subject to this rule, a series of conditions must be met. Of these, the following in particular require analysis: the platform's annual turnover in the European Economic Area, whether its services are used for intermediation between a certain volume of end users and professionals, and whether the platform maintains this position over a certain period of time.

  The penalties that the Commission may impose on obligated entities for breaches of the DMA may be up to 10% of a company's worldwide turnover, and up to 20% in the event of repeated breaches.