The Digital Markets Act: European Precautionary Antitrust - KEY TAKEAWAYS

A gatekeeper shall inform the Commission of such a concentration prior to its implementation and following the conclusion of the agreement, the announcement of the public bid, or the acquisition of a controlling interest. [...] 92 However obsolete the notion of “market share” in digital markets may be, the “winner takes most” concern is at odds with the fundamentals of the competitive process.93 It is precisely the prospect of gaining a comparative advantage over rivals that constitutes the engine as well as the result of competition and innovation. [...] it enjoys an entrenched and durable position in its operations or it is foreseeable that it will enjoy such a position in the near future.175 The first element refers to the size of the platform, the second element refers to the unavoidability assumption previously discussed, and the third and final element refers to the unassailability assumption. [...] Indeed, the DMA defines the entrenched and durable position in the following manner: An entrenched and durable position in its operations or the foreseeability of achieving such a position future occurs notably where the contestability of the position of the provider of the core platform service is limited. [...] This is likely to be the case where that provider has provided a core platform service in at least three Member States to a very high number of business users and end users during at least three years.178 Leaving aside the debatable elements of the definition of the entrenched and durable position, the DMA explicitly refers to the time-dimension inherent to the unassailability assumption.