The European Commission’s (EC) use of document ‘retention orders’ under the EU Digital Markets Act (DMA) could inspire their wider use in antitrust proceedings as the agency mulls reforms to its procedural handbook, said an agency official at an event in Washington on 11 April.

In March, the EC imposed a series of document retention orders on Google, Apple, Microsoft, Amazon and Meta as part of wider efforts to check that the designated ‘gatekeepers’ are in compliance with the DMA.

The text of the DMA allows for the EC to issue such retention orders, which are ‘run of the mill’ in US antitrust enforcement but hitherto have not been used in Europe, said Thomas Kramler, an official at DG Competition, who was speaking on a panel at the American Bar Association’s (ABA) Spring Meeting.

The orders oblige companies to preserve and retain documents for possible future use, and should they prove to be successful, they could be implemented more widely in the EC’s work, said Kramler.

The EC is currently reviewing Regulation 1/2003, the procedural handbook for EU antitrust enforcement.

Should the tests of the tool prove successful, “we might want to also implement that in our antitrust proceedings” said Kramler.

He said there are issues like how to define the scope, how to work with custodians, and the proportionality of the instrument that the EC is currently considering.