Unlock the Power of eSignature Lawfulness for Marketing in the European Union

How to eSign a document: e-signature lawfulness for Marketing in European Union

Alexander distrell thank you very much indeed for your availability to discuss the the latest development with the digital markets act within the digital markets research Hub it's a pleasure to welcome you you are known as uh as a as as one of the most impactful commentators on on the digital markets act over the last two and a half three years and and even before and interestingly uh different parties in these discussions do cite you quite often and and obviously I wanted to use the significant part of this conversation to discuss some technicalities some procedural elements of the dma enforcement but I cannot resist the temptation to ask you the first the first version more normative issue we know that dma means different things to different stakeholders of different commentators different thinkers what does demand mean mean for you what's the mission which the commission had in mind while introducing this ambitious proposal uh thank you very much for you can award Ben and also for your invitation and also for for this initiative this dialogue that you organize uh with several experts I think it's extremely useful and needed to um to improve them and descending and now um the enforcement of the of the dma so my understanding of the dma is that really um the goal of the law is to and therefore the goal of the Commission in enforcing the law would be to open um digital markets in order to increase uh choice and Innovation um in European digital market so at the end of the day you know it's not that far from a kind of odor liberal approach um that has underpinned uh some of the European Anti-Trust in particular at the beginning and also uh some of economic regulation so now how because this is a question which is often raised in debate around the dma you know how in fact five or ten years we will assess the success of the dma and the success of the urban Commission in enforcing the dma and I think that will be whether the digital Market in Europe have been in a way shaken by competition and by new engines so it should not be a kind of market share approach in the sense that if the market chair of Google or meta or Amazon or apple or other gatekeeper has not decreased it's a failure I I don't I don't think that we should have that kind of approach but we should um see a change in the market and changing the product offering the market if on the other hand and there is a risk to that and we can come back later um the dma in a way ossify the market in the sense that the current gatekeeper remained the current gatekeeper and The Innovation only happened on the top of those gatekeeper I'm not sure it will be such a success so of course we need to have this Innovation on the top of the gatekeeper but we also need to have Innovation at the core and I think really that's how you will assess in five to ten years and the success of the dma now of course that's not easy and we know that enforcement will be will be very complex and we will discuss that but that's I think should be the aim of of of the commission opening the market for New Opportunities and and then shaking the market for new innovation and in this disregard obviously the question is given that two kind of fundamental objectives of the dma is contestability and fairness this kind of open-ended concept as we all understand um what would be the relationship between them do they complement each how do they necessarily complement each other maybe they conflict with each other occasionally or partially and if they do conflict what would be the proportions which in your view Merit more protection and enhancement is it more about contestability or fairness or both my impression is that this law is more about contestability than fairness no and two things so first I mean I'm not sure that um the objective are contract Victory I mean we may find some instances where uh some tension May appears um that that may well be the case but I I would tend to think that in general they are complementary the second thing I want to say is that the I think contestability is a little bit easier to define or less controversial I would say than furnace contestability it's about opening Market or if you want reducing entry barriers and I think if you look if you go to the different obligation of the dma there are clear objective of reducing strategic buyer so the barriers which are set up by the firm by in a way accelerating the intervention so it's a kind of the dma is a kind of a speedy antitrust but it's not on only that very often it is equated to accelerating Anti-Trust but it's not only that I think the dma can go further in the sense of um removing or reducing some structural entry barriers that um the antitrust cannot do so for instance you know there is a lot of access obligation to some data or to some part of the platform which can be achieved by the DNA without having to prove a form of essential facility so I think really the dma not only accelerate into us but also go further than it trust in reducing uh structural barrier to entry and not only in reducing strategic barrier to entry so I think in a way the concept of contestability is um relatively clearer than the concept of fairness because we know that everyone in a way at its own conception of furnace we have a form of um anti-verness a sort of Level Playing Field is often mentioned by Executive Vice President and I think this form of this conception of um fairness X anti-verness or Level Playing Field it's very close to the conception of contestability but then there is another conception which is more exposed fairness or distributional furnace and and that's of course it's not the same you know and I I think that the dma is a little bit a bit of both I mean it's X anti-firness clearly because it's about contestability but there are also element of redistribution of the rent um which of the value which is created by the gatekeeper and a redistribution between or among the gatekeeper and the business users so I think there is also an aspect of a strict Xbox furnace for instance in the obligation on friend access to app store or social network the question of course is how we will Define what is a fair access and there you know we don't really have um a lot of roots we have and more and more of the economic theory provide us with some solution but still it's preliminary what we have however is a kind of a framework procedural framework to help the parties to get to a kind of um fairness or front access in this in this case so we have for instance in the Huawei case which has been decided in the context of standard essential patents a kind of framework for good faith negotiation which has been set in place and the question is uh by the court of justice and the question is how far in this framework would also be useful so a kind of procedural framework to get to um exposed fairness or distribution distributional furnace would be useful here I think it will but I mean um the we will see with the implementation how this kind of application are going to but as you started uh you you covered several important issues which I wanted to pick up on but the first one the the the access obligations the nature of success obligation thank you I argued elsewhere I'll mentioned that um they are inherently problematic because we talk about uh you know how should we should shoot The Gatekeepers charge for that for the access what would be the the what and what conditions Etc uh you are among other things specialize in different uh regulatory models so not not I'm not talking necessarily about different jurisdictions and many talking about different different network industrial Industries which have been liberalized in the past so maybe you can somehow Identify some good examples good uh initiatives and success stories which we somehow can take on board in enforcing the dma yes and first I think we should look at success story but also failure to inform the dma I think both are equally useful in a way to inform the dma and enforcement I think there are two industry which interest me particularly one is the Telecom industry and and many people have drawn the parallel between Telecom regulation and and the dma because Telecom regulation is really also what's really in Europe was really about opening Telecom Network to increase competition to increase first service based competition and then infrastructure based competition so I think it's a very useful um it's a very useful Benchmark in a way also because we have seen there how difficult it is to impose um access obligation or for instance number portability which is an easy things to do compared to what needs to be done in the dma so sometimes you know when I see the deadline which are imposed in the dma by the text I think they are a bit over ambitious to say the least when we see the experience and the difficulty of enforcing some access obligation in Telecom no my point is not to say that it's impossible or should not be done not at all I think it should be done and it's possible to do but that takes time because in fact you have to organize a framework for negotiation between um the gatekeeper and the business user and I am not so sure that for those obligations so it's some of them and the access obligation I mean the dma has all the kind of obligation which are probably easier to enforce and therefore could be enforcer and for course in a quicker manner but for those kind of obligation I think what Telecom um tell us is first it is complicated it takes time but it's possible and second that you need to have a good framework for negotiation between um the gatekeeper or the um access giver and the access Seeker the business user in this case so that's one industry which I think is interesting to look at the other one which is interesting at is finance regulation and that is for a different reason not so much because um access obligation have been imposed but because it's a regulation which is um I mean it's a sector which is a very complex and evolving very quickly like um the tech sector like the big Tech and it's a sector where um comply because of this complexity and because of the massive asymmetry of information between the regulated company and the regulator very much of the enforcement is based on compliance and I think one of the key and feature of the GMA is the compliance report and the compliance officer that the gatekeeper will have to um would will have to establish now I mean that's absolutely essential for the success of the dma because because of this asymmetry of information this massive asymmetry of information and so um good and bad lessons that we have that we can see in finance could be useful here so for instance I'm not at all especially it's a financial regulation so I am I am really talking here with a lot of coaches and I guess that in your next dialogue with uh on the dma you may uh some uh sometimes invite a specialist to financial regulation but my impression is that sometimes um the compliance report are a form of ticking the Box exercise so very formalistic but not really looking at the problem as such and I think that is a danger that uh we could have with the dma um we I mean the commission uh and the enforcer has to be pragmatic not too much you know formalistic or procedural no the risk of course to be formalistic or procedural is that it's easier to than to be pragmatic so you know if you are under strong pressure and um to deliver you may have a tendency to do a kind of ticking the Box exercise like we have seen in some of the banking regulation or by some enforcer of the banking regulation I think so that's what we should learn from So You Know uh Telecom I think it's interesting for for Access obligation the finance is interesting for um compliance culture and also Warners to have a kind not to have a ticking the Box culture uh but a really pragmatic culture and I want to pick on the last point you you mentioned Alexandra um namely on this that we are transitioning that there is kind of whatever smart regulation supposedly and we are abundant in the system regulate and forget as you mentioned okay uh elsewhere to the system of kind of more agile regulation where you learn as an enforcer as a regulator you you continuously learn your engaged proactively in constant regulatory dialogue with uh get with Gatekeepers threat parties different stakeholders have different interpretation different readings of what should be enforced and what proportions where the priorities how to to draw priorities Etc so it must be a huge challenge for this kind of middle middle rank enforcers not the top level who are inherently political and get used to different bargaining games but those who are actually trained to be diligent box stickers I I don't want to use it pejoratively it's it's a difficult task so they are somehow regaining new skills do you think this journey will will be a t challenging it will surely be but that's why it's interesting in a way but um so here I want to make um several points so first I mean as you say I mean what we need is a form of agile regulation and regulator and I think here I would Point um uh to an oecd a recent oecd recommendation of 2021 on agile regulation which is really you know a a sort of advice for the regulator of what do you what do you want to do or what do you need to do if you want to be agile and if you want in a way regulating a complex World which is the world today in in tech and and there is another interesting readings which is a report by the world economic Forum on the same issue of agile regulation and there is a lot of parallel in fact between the um oecd recommendation and the report of the world economic Forum but what is interesting in the report of the world economic forum is that you have a lot of examples in many a country and many industries of regulators big and small having done those kind of a job regulation so you know I I take your part about the size but I think it's more an issue about the culture you know and in fact sometimes we see that the smaller Regulators tends to be more agile than the bigger one because they have um they are small and some sometimes they are new and so they are composed of people which are of a kind of a more agile Spirit by the way it's the same thing that you see in company private company you know the smaller startup tends to be more agile and ever ever everything equal than the um the biggest company so you know I think that Regulators uh would need to be agile no what do what does it mean I think there are at least three things that um an agile regulation uh regulator should do the first is to have participatory regulation so participatory regulation means that it's not uh they're just a bilateral relationship between the regulator and the regulated firm and The Regulators know what's good and impose it in a form of command and control approach to the the uh regulator to the regulator company and then as you say um regulate it and forget um and hope for the best but it's more you know a system where you um involve all the stakeholders and The Regulators become a kind of an orchestrator of an ecosystem of compliance and enforcement so you rely on the gatekeeper and and their compliance officer as we were disc as we were discussing before but you rely also on the business user which of course have an interest in having the dma and effective that required that the comply the summary of the compliance report that the gatekeeper will produce the non-confidential summary should be sufficiently meaningful for those business users to play a native role in the enforcement and then you have the Civil Society like you and me or NGO or and so on which are unhappy to help you oh and so I think it will be very important that and the commission rely on those on those external experts no I must say here that the DSA the Digital Services Act is probably a little bit better in that regard because it has a provision which allows the commission or the digital service coordinator to transfer data confidential data from the authority to those vetted researcher we don't have an equivalent provision in the dma and and I think it's a Pity but okay there are probably other way to to work with um with the Civil Society um and and then your third of course big players which can help the Commission in this ecosystem of compliance and enforcement are the National Authority now we know that the National Authority are not uh the ultimate enforcer of the dma and the dma has been centralized to the commission and I think it's a very very good thing but the National Authority may help the Commission in achieving stars in particular for instance by hearing complain of the business user which tends to be local or by participating to the to the investigation so one thing is participation the other thing is experimentation so uh again it's not a regulate and forget but it's regulate and adapt you know learn and adapt so I think it will be very important that there is uh this um openness to to um to adapt and learn from mistake you know of course there is a tension here between experimentation adaptation on the one hand and legal certainty on the others uh it's clear that some of the obligation will require a kind of product redesign which is not easy to do by the gatekeeper and so you cannot change every every three months uh what you require so there is a tension here but I think that what is important in particular at the beginning of the enforcement of the of the dma is that there is a phase of a learning phase where um the commission could adapt if it doesn't work and in fact it is provided to some extent in the dma because the commission may re-specify an obligation if it thinks that the specification was not um did not lead to a a sufficient effective enforcement of the dma and then the last element in the agile regulation so next to participate participatory regulation and experimentation is the use of um AI technique to improve the enforcement you know so we know that um AI technique can be extremely useful for company to improve their operation but they can also be extremely useful for a regulator to improve their task and we see a development of those kind of what they are called sometimes a subtechers supervisory technology and again there I think banking regulator are very um useful because this seems to be among the most advanced regulator in using AI so basically you know and to summarize I think that if you follow those advice of the vcd if you follow those three elements of uh participation experimentation and a use of AI technique the enforcement could be um could be effective and proportionate but there are obviously many questions related to this to this new modality in which is kind of becoming a new objective reality so whether we wanted or not from the left people would we definitely already hear these voices that the more you interact the more gate Keepers and Regulators interact the the higher the risk of regulation of different types of regulatory capture from the right it's on the countries and because it's so interpretive and open to you know to so many different meanings uh you can you will start injecting as an enforcer different social legal economic macroeconomic values into in into this obligations but there is one more more kind of more procedural and it leads me to the kind of to the phenomenon of leniency degrees of popularity of leniency once we start applying more and more proactively private enforcement mechanism don't you think that this fruit of kind of regulatory procedural shortcuts coming from the antitrust past where designed this fruits were designed so low only for single enforcer for the commission precisely to avoid all these kind of 10 years litigation Etc if we open the door we did it partial at least to private enforcement particularly Collective is there a risk that they will start just cherry picking and somehow free riding and and that's discouraging Gatekeepers to engage in the proactive kind of core regulatory model where they shape the the ecosystem as you mentioned or it's just purely hypothetical scenario no no no you are very right I think I think um I think um private enforcement has pros and count obviously as everything in life um the process that it's support in a way the effectiveness of the law uh because you multiply the number of enforcer and we know that um in general um the effectiveness of law is correlated with the number of unfortunate that's a general principle in fact of eulo and this is why if you go back to the first um case of the European court of justice about the direct effect this is what they say you know we need to melt I mean we we can by multiplying the number of enforcer you um increase the effectiveness of you low and this is why um the court of justice opened the enforcement of the European law in general to um to National judges and the dma being a regulation uh has of course direct effect so um that's the positive aspect there is the less positive aspect that you mentioned is that uh this private enforcement May in a way um lead to some difficulty in enforcement in particular for the obligation which are not um easy to enforce I would say that for some obligation and mostly the Article 5 obligation you could say that there are more or less um self-enforcing um some are more some less but so I am less worried about private enforcement regarding Article 5 obligation than the one regarding article six now the thing is this um the dma provide that there is a possibility for the commission to intervene in a in a private enforcement action so there is a whole mechanism of cooperation between the commission and the national Court which is set up in the dma very much inspired by antitrust and I think it's very important that the commission use it and that um for instance if an obligation article sex obligation has not yet been specified I think that the national Court should be extremely cautious before enforcing it there is however as you we all know the possibility for the national judge to um ask a preliminary ruling question to the court of justice I expect a lot of question like for every new European law it will lead to a lot of um clarification by the court of justice now those clarification may come either from contesting a commission decision or from a preliminary ruling of the national judge and the advantage of the preliminary ruling is that it tends to be quicker uh than uh the action for an annulment against a commission decision so um I that's maybe also a kind of other Advantage but so all in all I think that private enforcement if it is well managed um and I mean by that there is a good cooperation between the European commission and the national court and the judges tends to focus on um the easy uh obligation uh I think that can work if on the other hand this cooperation don't work very well and the judge started to the National judge started to interpret article six obligation in some creative way and therefore as you say that will be used by the business user to in a way gets their rent to their advantage but not not necessarily to the advantage of the whole system that would be a problem because we also should um be very much aware that not every business user has the same interest and one is the same thing you know and that's one thing which worries me also because we say um to the gatekeeper you have to find a good solution to comply with the DNA and you have to find it it's your responsibility and show that in the compliance report that's how the law is drafted and and so indeed it is their responsibility but then what do you do if you have several competing business users asking different things you know who you should um comply I mean who you should please in a way and who you should displace and that's not an easy um choice to be made and and and and whether you please one and this please the other whether this is right or this is not right I mean at the end of the day it will be up to the commission and then ultimately the court to decide but so I think that is there you have a tension there which is probably easily solvable when it's the commission which at the end of the day has to assess the compliance then when it is a multiple a multiplicity of national uh judges so in a way that's reinforce the argument that I was saying before that we have to have a strong um and close cooperation between the commission and the national judges in the enforcement of the dma because we know that all the interests of the business users are not aligned and that they can because of this this aligning they can use private enforcement to serve their own interests but not the interest of the of the of the consumer welfare in general and as a follow-on uh of a question Alexander do you think that there's dma case law the emergency case law would be a would be kind of a generous autonomous area with new judgments somehow shaping the future enforcement constraining maybe even the fusion for the future because currently it looks at the the commission has not called launched but very discretionary competences open to interpretation do you think the the the next the first wave of cases will somehow constrain it or maybe expand but that's difficult to tell I mean the best would be probably to invite a judge your next conversation although I'm not sure the judge would be ready to to advance so much at this day so you know it's very much depend what I would say is um several things so first I'm not sure that the anti-choice case law would be so useful here you know many people sit still uh have not get that um the dma is not an antitrust law or not even an Anti-Trust plus look I mean it's economic regulation and it has its own logic you know um so I I wouldn't I wouldn't be too let's say I don't think that by looking at audience trust case you will learn a lot about the dma of course you will learn but you will I mean I don't think that is the ultimate answer about dma but um for the um more generally I think that the case law of the Court will of course in a way set the direction in maybe and and in a way it said the the limits in which the commission should should intervene I tend to think that because it's a regulation the court may be more willing to follow the commission than in antitrust because I mean and here you know you have there are two school of thought some some are saying okay because regulation go further and give more power to the commission the um Court should be stricter than an Anti-Trust in controlling the power of the commission okay that's one school of thought the other one is saying the exact contract say because there is a regulation and there is a new way a legislative mandates um given by the Parliament and the constitute the commission to do something and to shake the market in a way the commission should execute this legislative mandate and the card should not come in the way of the commission to execute that legislative mandate so you know we we will see but my experience from Telecom regulation is that the car tends to be um now of course the situation is a little bit different here because we don't have the commission ask the European regulatory Authority but we have the National Authority but there has been some preliminary ruling questioned by the national judge hearing appeal against National Authority and what the call has been is you know um relatively different to uh the National Authority so I would say that um the court will play a very very important role um in interpreting the law but also in setting the balance between a different objectives you know because we have on the one hand contestability and openness which is the overall objective but then we have other consideration which may sometimes come intention like privacy like security like Integrity or services and the dma recognized that there is a trade-off here but don't decide which which is good I mean I think because it's a case-by-case analysis and so it's up to the commission and then the car to to to to assess that so I think um that would be an important things to to have in mind is that the court will have to arbitrate a number of trade-offs and in particular you know what will what one of the trade-off which interests me a lot is the trade-off between contestability and privacy because we know that the court of justice has taken a very expensive view in um privacy in the interpretation of the gdpr personally too expensive but okay that's the case low uh but so this very extensive interpretation of the gdpr May uh come in the way of an objective of contestability you know because on the one hand you would say you should limit data Mobility personal data Mobility because it may affect privacy and on the other hand you want sometimes to improve personal data Mobility because it may help um opening the market and contestability and so that change um where on the first time of the debate we have a number of caselo coming from the gdpr and the other time of the debate contestability we don't have yet case law in this very context of the dma I think that would be very very interesting to uh to observe the first case based on that on that tension absolutely and you know it could be well it could well be the case that by by being driven by you know very uh you know uh not altruistic but very beneficial objectives we somehow can disarm the the power of of the dma intentionally or not but let me ask you then about another set of principles which we understand the principles uh often conflict with each other uh which are essential for the dma namely Effectiveness and proportionality it's a long discussion we understand that the very logic of the dma implies somehow disproportional enforcement the addresses of the rules discretion of the of the enforcer so it somehow envisages in inherently this some elements of disproportionate enforcement then and obviously we have the principle of Russian principle of proportionality which is the the general EU the Euro principle and also actually article H1 acknowledges somehow diminishes the the omnipotence of the effectiveness principle by referring to other law which has to be which has to be observed somehow making the rules proportional what is your position uh on this kind of inevitable not Clash but somehow discrepancy between Effectiveness and proportionality yeah so um I wouldn't say that necessarily the the dma is disproportionate I mean I think it's a child which has been made by the legislature that we had to um uh regulate the big Tech but I wouldn't I wouldn't say that it's disproportionate per se but as you say I mean there is a two principle which should guide the inter the interpretation and the enforcement of the dma one is Effectiveness and the other one is proportionality now regarding Effectiveness the article 8 that you mentioned is is very clear I mean we have two form of Effectiveness Effectiveness one is with regard to the overall objective of the DNA contestibility and fairness as we discussed and the other one is a kind of a specific Effectiveness that each obligation should be effective in its own way so we have a form of double Effectiveness which should guide the application and the interpretation of the provision and then we have the principle of proportionality which is a general principle of EU law as you recall so of course it will apply to the dma like um every other EU law and uh which is mentioned sometimes specifically in the in the text and I think here also we have two possible application of the principle of proportionality one um would in a way limit what the commission can do to achieve the objective so the commission should not impose or interpret the obligation in a way which go too far and in that sense it's a protection uh for the gatekeeper but also the proportionality principle will be the guiding principle to decide the trade of the many trade-offs that you have in the law between different objective and different rights we mentioned already before and this tension or trade-off between contextability and privacy and I think proportionality will be the instrument to try to accommodate that trade-off and as we discussed before it will be at the end of the day up to the court to decide where to put the balance between different objectives but on the basis of the principle of proportionality a third element that I wanted to say about proportionality is that we don't have an efficiency defense I mean it's very clear uh the the text is absolutely clear on that it's not the antitrust rationale we don't have an efficiency defense to justify a conduct but on the other hand that doesn't mean that we don't have economic analysis all together you know because there is sometimes in some debates and confusion between you know not uh applying the Anti-Trust principle like um the principle of um like the efficiency defense or the market definition and the economic analysis we don't have the integers principle but I think we still have to some extent economic analysis and the economic analysis one way to enter into uh to be apply into the dma enforcement will be through the principle of proportionality because at the end of the day you know what the principle of proportionality is telling you is that you have to do a cosplay and constant benefit analysis of specific interpretation and for that we would need economic analysis so you know I think that the economic analysis is not out of the way uh at all and so that may be a good news for the economies but it's just that it will be used in a different manner than it is in antitrust and through the proportionality principle uh for instance so basically it will not be used to justify as an excuse but to explain the rationale of specific conduct and and also in addition to what you said earlier the different uh stakeholders interpret this The Identical provision in in different fashion depending on the Myriad of circumstances and interests as well and also I noticed that in one of your earlier paper I think it was one of his uh go through this Amelia Fletcher you mentioned that the focus should not be of the enforcers should not be on analyzing and Abstract the core platform Services as such but rather on the business model of specific Gatekeepers so you somehow have to look the center of gravity should be placed on The Gatekeepers more than on on the core platform services can you elaborate on this place what's the reason for this yes so well I mean that that's a subtle anal difficult question because of course dma is not like what the UK has in mind to have a system which is very much tailored and to each business model and that's not the approach which has been taken by the GMA so the GMA is you know independently if you want of your business model you have to have uh to apply a number of obligation now we must say that some obligation are um let's say um core platform service specifics and so will only apply to some form of um services at least others are applicable for all um for all um all services but um what we wanted to say I think in this in this paper is that it's not because you have um not taken the let's say the the UK approach that you should completely ignore business reality and business model you know and so to some extent and again through the principle of proportionality um you will have to um adapt let's say uh the obligation to the nature of what you want to regulate and also what we wanted to say is that at the European commission you will have um people um I guess specialized for each obligation but also and that's a good thing but also it's very important that there is someone also who has an overall um view of the company because you know there is a risk that if you analyze each obligation independently without looking at the overall company which is behind there is a risk that you know you try to evade one part of the regulation by doing something else you know and so this holistic approach is important or the other way around you know maybe one of the problems that you have in the market or the barrier to entry that you have could be solved by one obligation and therefore you need less the other obligation you know so I think that it's very important next to um looking obligation by obligation individually to have a kind of holistic view of those the effect of all those obligations to a specific gatekeeper um again that does not lead us to a kind of UK regime but that um and I would say that the difference between the EU and the UK regime are not as big as sometimes they are they are presented if my I just I wanted to illustrate my understanding of uh of of of this model by using a hypothetical example let's say Bing meets the requirements of core platform services but the more holistic approach would suggest that well we all understand that such as such is somehow dominated by a different gatekeeper so it would be somehow against the rational of competition within within a horizontal uh search engines to somehow to designate being as a gatekeeper but then once we hear the news about open AI cooperation between Microsoft and operate this changes the story again and it somehow triggered me as an enforcers to look at the story again and from through different perspective so I have to be more open to the to the context in this regard and the position of gatekeeper in this in this specific core platform Services is it the way how it should be in a sense or yes but I mean and and that's the tricky the tricky thing you know um to some extent you you cannot ignore the economic reality and the business reality on the other hand the law is sometimes a relatively rigid and the reason is clear is that um the rigidity is linked to the fact that it's probably easier to enforce a law which is rigid so the commission should use as much as possible the flexibility that you have in the law but sometimes and some would say unfortunately some would say fortunately this flexibility is relatively limited so to take your example about designating a Bing or not as a core platform Services as you say I don't know how that I I don't have the number so I I mean I think here it's really hypothetical because I have no um specific view on being because I don't have the numbers but um let's say that if big meets um the quantitative criteria there is a reputable presumption that it should be designated and yes the commission could um rebut that presumption on the basis of qualitative criteria but that's not easy no I would tend to say that it's true that the texts say that's not easy but that's not a reason not to try it and to try to push as much as you can to uh to to to to to have a kind of um um designation which reflect as you are saying uh the business reality uh and so uh I would advise the commission recommend the commission to use as much as possible the flexibility which is within the load to try to uh to be close to the business reality no the thing is that the rigidity of the law may be justified for this first generation of uh GMA we know that the dma will be changed in five two words five to ten years and because that's the case of every European law so it's not because it's a dma but every European node tends to tends to to be amended every five to ten years and that is a big difference with us law which you know once they are adopted they tends to stay because it's the legislative process in the U.S at the federal level at least it's more complicated even more complicated than in than the in the European Union so you know I think in in that kind of dynamic perspective it may have made sense to have a law which is relatively rigid at the beginning because it's easier to enforce and so it leaves the possibility for the enforcers to learn and then once the enforcer in this case the commission has learned and it has become better then you can move to something which is a little bit more flexible and in fact this is exactly what has happened in the Telecom regulation that we were discussing earlier you know the first telecommunication law were extremely rigid you know uh markets were predefined in the directive everyone who has 25 market share of those predefined Market had a lawsuit of obligation so the 97 directive was very rigid and then it's only in 2002 so some year after that the Parliament and the country decide to make a red regime a regulatory regime which is more flexible and closer to economic reality and economic analysis so you know because many people are criticizing the rigidity of the dma and and I understand their criticism but on the other hand if we looked at at from a dynamic perspective in the sense that you start with something which is rigid rigid because it's easier to enforce and then as you learn you evolve to other regime which is more flexible this is not necessarily a bad policy chart in any case the good thing about brexit there are a lot of bad things but the good thing about brexit is that we will have no kind of um real life experimentation because we will have the you with a relatively rigid system and uh the UK with a more flexible system and then we can compare but again I also wanted to say to come back to the to your question that the the differences uh May are probably not as high as they are they pretend to be because even if you know I think you have some um places of flexibility that should be used to be closer uh to be as close as possible to the business reality uh thank you very much Alexander for the for this answer I think we only have time for three or four shorter questions so I wanted to to ask you coming back to this participatory model or regulatory dialogue the the the the Commission in its original proposal has designed the tool of commitment which was kind of transposed from from and to trust uh mechanism of Regulation 2003 and then eventually the LA and the final version of the dma we see that it's only limited to the uh Market investigation in the uh suspecting the instances of systematic non-compliance do you think that the mechanism of commitment would be more effective if it would be used more generously in all cases but I think you know um the the idea of the commitment is that the the solution in a way comes from the uh from the company okay and I think that this is very much the case um here in the dma even if it is not called commitment uh by the fact that it's up to the um gatekeeper to come with a solution in the compliance report and if it doesn't work the commission will say does it it's not good enough so come with something else and so on so I think you know this logic which underpinned the commitment and the choice is there all over so um I think that is I would say um broader than just commitment and I think that's a good thing for the um asymmetry of information that we were discussing before but um as we also pointed before there is of course a risk of capture that those commitment do not go far enough or are not um effective enough to uh solve the problem or to ensure a contestibility In fairness and so therefore in this case it's very important that for every solution which is uh proposed by the gatekeeper and so being a formal commitment or being I would say um in the compliance report and it's very important that the third part I mean the business user um first and and maybe also the Civil Society in the second stage give their View weather indeed it's effective and proportionate you know and it's very important that when deciding whether um those commitments are enough or whether what the gatekeeper proposing their compliance report that's effective enough that the commission listened to those listen to those business user and uh and uh and Civil Society to to learn whether whether that's enough or not but but as we have said one of the difficulty in listening to all those business user in that you will have different devices and the question is what are the voices that we think are reasonable for the overall welfare and what our device which are only about a specific rent seeking exercise and the gatekeeper and then the commission will have to discriminate between those and that will not be uh that will not be easy but the general idea of participation and of the fact that the solution should come from the um from the GateKeeper provide that if they are not allowed to decide uh seems to be a good one this links me perfectly to the question which I wanted to ask you will have a kind of in a polish-centric and pluralistic environment where the boundaries between the kind of Institutions are getting less robust so to say and the role of Civic Society is increasing it has been recently announced that the the think tank which you academically direct sir is introducing a mechanism which uh at least the preliminary title is the form on the dma compliance which essentially it looks to me from the purely Observer perspective would be as one of the places where different voices and interests would be somehow have would have an opportunity to to be tested and presented and discussed in a more open and less binding so to say a fashion can you elaborate a little bit on on this initiative about motivation and expectations from it please you know exactly I think you understand very well what we wanted to do is we wanted to be a forum for a trusted dialogue just an NCR dialogue to help the enforcement now of course we don't want to substitute what the commission is doing so the commission is having its own uh Workshop open Workshop so the idea is not to replicate what the commissioner is doing and of course the idea is not to say what's right and what's wrong I mean that's the role of the commission at the end of the day and we don't want in any way to substitute the work of the commission but we want to as many other um think tank or Civil Society organization help um the Commission in having a kind of proportionate and effective enforcement of the DME so practically in that Forum that we have launched a lot this month um with the the report on the dma that we we presented this this year what we would like to do is three things one um and the first one is to try to find for each of the 22 obligation or prohibition some form of metrics because the fact is that um now a lot of it that's what we show in the report um that we presented in January there are a lot of there are still a lot in particular for article 6 obligation interpretation issue you know and you know in a way that's normal I mean it's a law in a it's a new law and it's a complex environment so it's not saying that doesn't say that the law is bad it's just that it's it's difficult uh because of the environment as you were mentioned and so one thing which can help uh let's say to focus the mind of the gatekeeper the business user and the commission is to have some quantitative Matrix for each obligation to say okay this is in which direction that you we wanted to go okay now of course those quantitative Matrix will not be um you cannot um resume or summarize an obligation with that contradictive metrics but that will help to discuss compliance and effectively so that's one thing the other thing we wanted to do in that forum is to think about in particular for Access obligation what should be the process of dialogue and negotiation between the gatekeeper and their business user um to have an effective and proportionate enforcement and here we wanted to be inspired by what has been done in some other network industry and because sale is active in energies and Telecom and so we have some experiences from those sectors and see how the experiences in in those sector in terms of procedures to negotiate and to discuss could be uh could be useful and then the third thing and last thing that we want to do in that forum is to push a little bit further what we have done last year uh with the report on what other issue to interpret or um the the difficult issue of interpretation and application of the VMA and to try to go one step further and maybe to try to design some technical principle for the interpretation and implementation no we will still remain now the relatively General level because again we don't want to substitute the commission and become an enforcer but we think that there is still a space for the Civil Society to come with a technical principle and in the spirit of self we will and in that Forum we will have some gatekeeper some business user and the Civil Society and some enforcer National and the commission around around the table for what we hope to have a constructive discussion interesting very very promising we obviously as our conversation uh goes to the approaching this and we have the tradition of asking a question uh recommendation for students those who begin this journey in very exciting times so before asking this question I wanted to ask you also a question about a specific obligation which in the course of this of this one plus year of the discussions has transformed or matured into a separate article article 7 obviously it would we can discuss or you can talk about this for for very long time I just wanted to ask what what was so specific about interoperability obligation which not which which impelled the the legit legislators to to change the original proposal to such a significant significant extent can you can you explain your understanding of things yes so first there are two form of interoperability we have the original interpretability which is the interoperability among competitors let's say so for instance among two communication up or among two social network and then you have the vertical interoperability which is an interoperability among complementary services so you know it is when uh for instance a payment services wants to uh wants to be a complement to an App Store so um the vertical interoperability was already in the commission proposal and has been confirmed in article um in several provision of article six so on that I mean of course some refinement have been done during the negotiation but there was not a a big innovation during the negotiation what was the big innovation that you mentioned is article 7 is about horizontal interoperability that at the beginning the commission did not propose uh because I think but of course you have to check it with the commission itself they thought that with multi-oh we have enough um a form of competition Among The Operators and so probably the commission did not see the need of having an inter an horizontal interoperability obligation the legislature and in particular the parliament uh thought that it could be useful to have next to those possibility of multioming to have an original interoperability because it's true that for some Services it's easy to melt your own for instance for communication up and all of us I think have multiple communication up on our smartphone or on our PC but for others uh where you have when you upload a lot of content like for instance on social network it's less easy to mature because you know you are in a way uh you don't want to reload every time you go on another social network all the content that you have allowed on your first social network so maybe for those um uh let's say Services Which multium is less present interoperability uh would be more useful but we know that interoperability is difficult to do and at the end of the day you know this first generation of the low limited horizontal interoperability for communication app and do not foresee at this stage for a social network where maybe it would have been more useful um now the the basic rationale behind horizontal interoperability is that you want to have the best of the Both Worlds uh in the sense that you want to have Network effect and the benefit of network effect and the benefit of competition and biasing interoperability indeed you can have the network effect because all Network are interoperable with each other and the competition because you can be on different network and yet benefit from uh you can be on a small Network and yet benefit from the network effect of a big unit so you know the the basic idea of interoperability is that you want to combine uh inter Network effect and competition it's probably the the most powerful tool which allows this combination but we know from Telecom and from other industry that interoperability it's very difficult to implement it so this is why the provision is also a bit different with different time frame and different form of implementation because of its complexity and I think that also what has Justified a specific and different article in the loop uh we it becomes kind of self-evident for everybody who who is engaged in in the dma and surrounding areas how exciting this field is but obviously we need new blood essentially and it's it looks that it will be a long long-standing uh ambitious project and there will be new generation of current students who live 24 7 with digital disclosure understanding much more intuitively and easier all these emerging Trends Etc and they would be the next generation of doers and players in this game what would be your company do you you you you observe this development for quite a long time is there any kind of emergent uh competence maybe or some skill which which is not very well observed by other academics maybe who teach their students which you would probably channel to to our youngest younger listeners so I think yes first the one advice I would say is that um invest time and research in big Tech regulation or in Tech regulation because this is here to stay I mean until Tech is there and that will remain uh regulation will remain as well so I think it's a good in a way investment to do and it's also a fun investment because the things are changing all the time you have no new policy new important policy problem so I think that um it's really worth to to uh to study and invest in now how um I think one thing which is very important is to have an interdisciplinary approach you know I think that um each field of um its discipline is important but what is really important is to be able to bridge different disciplines you know and I would say that here more than ever what you need is um a legal perspective of course but also you need to understand uh Ai and data and so this combination and that's not that frequent I mean it will probably become more and more but because you know we have a lot of people which are doing economic and low and I think that's very important and interesting but what we really need know is also people understanding um Ai and data science and and I think that an advice that we gave is for everyone which is not specializing that to try to specialize a little bit in that um but really what is important is to have a kind of interdisciplinary approach and also what is important is to um understand the overall direction system because you know sometimes we tend to be focused on a very nitty-gritty interpretation of this specific provision of this specific article which is very important but we should not lose a sight of what are the overall direction that we wanted to achieve here and I think part of the overall direction as we say is to have a more contestability and to some extent to go back to the promises of the internet which was a more decentralized and I think you know if you go back to the first writing of the internet Enthusiast um in um in the 90s they were very enthusiastic because they they thought the internet as an engine for Change and for decentralization I think these enthusiasm has been lost by many people because we have seen a centralization a concentration of power but you see I think technology is not inevitably leading us to that it's how we shape technology and I think the dma participate or may participate to that kind of more general movement towards more decentralization and and promises for a better internet so so really I think that um it is a very interesting field an intellectually but also um important for the for the society Alexandra distrell it was a pleasure to talking and listen and and learning from you thank you very much for your time and availability to share your excellent ideas thank you very much