The European Union has launched new initiatives to adapt the digital and platform economy. We are talking about the Digital Services Act (DSA) and the Digital Market Act (DMA), two projects that arise from the need to consolidate the digital single market and respond to an economic situation that has been particularly aggravated by the pandemic. In July 2020, the Platform-To-Business Regulation came into force and the new regulatory framework is expected to be approved next year. This poses a new challenge for companies, as this new scenario will define the platform market, the conditions of competition, the implications of the set of obligations on the position of users and the possible conflicts that could arise.

This was made clear in the Webinar organised by the National Association of Large Distribution Companies (ANGED) in collaboration with the Consumer Law department of Andersen with the interventions of Marcos Casado, Secretary General of ANGED, Vanesa Fernández, Director at Andersen and head of the Consumer Law department; Teresa Rodríguez de las Heras, Of Counsel of the firm and expert in digital business, and Natalia Álvarez, Of Counsel of the firm and Professor of Civil Law at the University of A Coruña.

During her speech, Teresa Rodríguez de las Heras placed these new proposals for Regulations (DSA and DMA) in the context of a progressive adaptation in the European Union of the regulatory framework of the digital economy, which remains based on Directive 2000/31 on Electronic Commerce, to the dynamic and growing platform economy. Before analysing the main keys of both proposals, he presented the different scenarios and business models in which companies can be placed and how they would be affected, in each case, by the current proposals. In this way, the implications for companies of adopting a platform model as a business model, of using platforms as an intermediary to reach their customers or of creating platforms to organise relationships with suppliers and collaborators were analysed. The business model adopted is key to determining the potential impact of the DSA and DMA proposals on the market configuration and position of each company. Therefore, assessing the various alternatives is fundamental to forward-looking strategic planning.

After these initial reflections, Teresa Rodríguez de las Heras gave an overview of the DMA and the DSA, highlighting that "the main mechanisms of the DMA are based on an ex-ante regulatory strategy aimed at imposing certain obligations on those platforms designated as gatekeepers". "The DSA, which represents the modernisation and updating of the E-Commerce Directive, contains a number of new aspects that require attention and should be incorporated into strategic planning," she said.

In the same vein, Natalia Álvarez analysed articles 3 et seq. of the DSA, which will constitute a new framework for the liability of information service intermediaries and online platforms. Álvarez explained that "it is a continuation of the current Directive 2000/31/EC, as far as the fundamental rules are concerned, but it already incorporates the interpretations that the CJEU has given on the matter". She also stressed that "the proposal includes a specific non-exemption rule for online platforms with regard to liability towards consumers, the scope of application of which may prove to be controversial".

Finally, Vanesa Fernández stressed that "the Consumer Agenda presented on EU consumer policy for the next 5 years focuses, among others, on the digital transformation and the effective respect of consumer rights, and, for its part, the European Commission will have an intense intervention in the platforms and will assist all Member States in the implementation and enforcement of consumer law in the EU market, so businesses are in the spotlight".

In such a situation, it is essential for companies to have prior strategic planning and they have different instruments for the design and implementation of the same, highlighting: (i) reviewing the design of their own platform and all processes and actions of interaction with and of the consumer; (ii) performing consumer due diligence to verify not only compliance with the new obligations of the DMA and DSA but also compliance with Regulation 2019/1150 of 20 June, the P2B regulation, which is already in force and (iii) linked to the compliance system itself, the implementation of a consumer compliance system considering its own risk matrix and the company's own performance, in order to ensure regulatory compliance of all its actions that have to do with consumers and guarantee standards of conduct that ensure that they will not suffer reputational damage.