Introduction
This essay examines whether the conduct of Your Health Germany GmbH, a subsidiary of the multinational pharmaceutical company Your Health Inc, breaches EU law, specifically under the Digital Markets Act (DMA) 2022. With Your Health Germany controlling 39% of the EU market for antiviral herbal medicines and operating the popular online platform Your Health Online, the analysis focuses on whether the company qualifies as a ‘gatekeeper’ under the DMA and whether its practices, such as data tracking and targeted advertising, contravene EU regulations. This discussion will explore the legal criteria for gatekeeper status, assess the conduct of Your Health Germany in light of DMA provisions, and consider broader implications for compliance with EU competition and digital market laws. The essay aims to provide a clear, logical evaluation of these issues, supported by relevant legal frameworks and authoritative sources.
Legal Framework of the Digital Markets Act 2022
The Digital Markets Act (Regulation (EU) 2022/1925), enacted in 2022, seeks to ensure fair competition and protect consumers in the digital economy by imposing obligations on large online platforms designated as ‘gatekeepers’ (European Commission, 2022). A gatekeeper is defined under Article 3 of the DMA as a provider of core platform services that meets specific quantitative thresholds, such as having an annual turnover of at least €7.5 billion in the EU or a market capitalisation of €75 billion, and operating a platform with over 45 million monthly active end-users and 10,000 yearly active business users in the EU. Additionally, the provider must have an entrenched and durable position in the market (European Commission, 2022). These criteria aim to target platforms with significant control over digital markets, ensuring they do not exploit their dominance to the detriment of competition or consumer choice. Understanding these thresholds is critical to determining whether Your Health Germany falls under the scope of the DMA.
Does Your Health Germany Qualify as a Gatekeeper?
Applying the DMA criteria to Your Health Germany reveals a complex picture. Your Health Online, the company’s platform, serves as an intermediary between consumers, pharmacies, and hospitals, facilitating the purchase of antiviral herbal medicines. Although specific financial data for Your Health Germany is not provided, the parent company, Your Health Inc, controls 70% of the global market in this sector, suggesting significant economic strength. However, it remains unclear whether the EU-specific turnover or market capitalisation thresholds are met by the German subsidiary. Furthermore, while the platform is described as ‘extremely popular’ in Europe and America, there is no precise data on monthly active end-users or business users to confirm if the quantitative thresholds (45 million end-users and 10,000 business users) are satisfied. If these figures are not met, Your Health Germany may not qualify as a gatekeeper under the DMA’s strict criteria. Nevertheless, the company’s 39% EU market share in antiviral herbal medicines indicates a strong position, which could prompt scrutiny under qualitative assessments of market dominance by the European Commission (Whish and Bailey, 2021).
Conduct Under Scrutiny: Data Tracking and Advertising
Even if designated as a gatekeeper, the conduct of Your Health Germany must be assessed for compliance with DMA obligations. The platform’s use of data to track end-users outside its ecosystem and advertise herbal medicines raises concerns under Articles 5 and 6 of the DMA, which prohibit gatekeepers from using personal data for targeted advertising without explicit consent and from combining data across services unless users opt in (European Commission, 2022). Given the sensitive nature of health-related data, such practices may also intersect with the General Data Protection Regulation (GDPR) (Regulation (EU) 2016/679), which mandates strict consent and transparency requirements (Kuner, 2020). If Your Health Germany tracks users without clear consent, it risks breaching both the DMA and GDPR, potentially facing significant fines. Therefore, the company’s data practices arguably warrant closer examination to ensure compliance with EU law.
Conclusion
In conclusion, while Your Health Germany’s status as a gatekeeper under the Digital Markets Act 2022 remains uncertain due to insufficient data on user numbers and financial thresholds, its substantial EU market share and platform popularity suggest it could attract regulatory attention. Moreover, its conduct, particularly concerning data tracking and targeted advertising, may violate DMA and GDPR provisions if user consent is not adequately obtained. For Michael, as a director, ensuring compliance with these regulations is crucial to avoid legal repercussions. This case highlights the broader challenge of balancing innovation in digital health platforms with stringent EU legal standards, underscoring the need for robust data protection measures and transparency in operations.
References
- European Commission. (2022) Regulation (EU) 2022/1925 of the European Parliament and of the Council of 14 September 2022 on contestable and fair markets in the digital sector (Digital Markets Act). EUR-Lex.
- Kuner, C. (2020) European Data Protection Law: Corporate Compliance and Regulation. 2nd ed. Oxford University Press.
- Whish, R. and Bailey, D. (2021) Competition Law. 10th ed. Oxford University Press.
