The law was written to target American companies; just because they didn’t come out and write it into the law doesn’t change the fact. If I write a law that applies to “any electronics company named after a fruit” that law targets Apple. That’s essentially what happened with the DMA. The law was laser targeted to avoid hitting EU companies.
Case in point, Spotify was specifically excluded as a gatekeeper - unless it is amended, the law CANNOT apply to Spotify even if it meets all other criteria.
- Significant impact on internal market: Either €7.5 billion annual EU turnover for 3 years OR €75 billion market cap
- Spotify's current market cap: $130B, last year's: $92B
- Important gateway: 45 million monthly active EU users AND 10,000 yearly active business users
- Spotify has approximately 181-182 million monthly active users in Europe
- There are over 11 million artists and creators (i.e., business users) on the Spotify platform
Since the DMA says the criteria have to be sustained for three years, that means the DMA should apply to Spotify next year, right? I mean, it's a law designed to go after big tech companies and barring a catastrophe, next year will be three years of meeting the criteria. But it won't, because the EU specifically excluded the entire "music streaming service" product category as a Core Platform Service, despite making it apply for services like YouTube. How is Spotify different than YouTube? Artists absolutely depend on Spotify to reach audiences. Spotify has direct artist upload features, and the economic reality is nearly identical to YouTube's creator economy.
The fact of the matter is that European regulators intentionally and surgically designed the DMA's scope just narrowly enough to capture American tech giants while avoiding Europe's few successful global platforms. The exclusion of music streaming, a category where intermediation exists and market power is just as concentrated as the other CPS is the smoking gun here. Why was it excluded? I'm sure it has absolutely nothing to do with the fact that it just so happens to be dominated by a Swedish company that was among the most vocal supporters of the DMA. Couldn't possibly be that.
Of the six initial gatekeepers, five were American, one was Chinese, and zero were European (despite the EU being home to the world's second-largest economy). One of the strongest backers of the law said the EU shouldn't "include a European gatekeeper just to please Joe Biden" and strongly argued (successfully) to increase the revenue limits to ensure EU companies weren't hit. (Yes, I know Booking.com was designated later, though I'd point out that it's fully owned by an American corporation despite having an EU HQ. Even if you count Booking.com as European, one late designation doesn't change the fact the law was targeted at American companies.)
In other words, the Booking.com designation demonstrates the Commission can regulate European companies. But it absolutely doesn't prove the initial framework design was neutral. Which it couldn't do, because it wasn't. The DMA could have been amended to add music streaming as a CPS. The Commission has chosen not to. I wonder why that is?