Digital Market Act 2022/1925 EN

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2022/1925 EN Art. 2 cercato: 'business user' . Output generated live by software developed by IusOnDemand srl

expand index business user:

2 Article 1 Subject matter and scope

3 Article 2 Definitions

6 Article 3 Designation of gatekeepers

1 Article 4 Review of the status of gatekeeper

9 Article 5 Obligations for gatekeepers

12 Article 6 Obligations for gatekeepers susceptible of being further specified under Article 8

2 Article 8 Compliance with obligations for gatekeepers

6 Article 12 Updating obligations for gatekeepers

5 Article 13 Anti-circumvention

1 Article 14 Obligation to inform about concentrations

2 Article 19 Market investigation into new services and new practices

1 Article 24 Interim measures

1 Article 27 Information by third parties

1 Article 53 Review

Article 54 Entry into force and application

whereas business user:

definitions:

cloud tag:

and the number of total unique words without stopwords is: 1339

Article 2

Definitions

For the purposes of this Regulation, the following definitions apply:

(1)	‘ gatekeeper’ means an undertaking providing core_platform_services, designated pursuant to Article 3;

(2)

‘ core_platform_service’ means any of the following:

(a)	online_intermediation_services;

(b)	online_search_engines;

(c)	online_social_networking_services;

(d)	video-sharing_platform_services;

(e)	number-independent_interpersonal_communications_services;

(f)	operating_systems;

(g)	web_browsers;

(h)	virtual_assistants;

(i)	cloud_computing_services;

(j)	online advertising services, including any advertising networks, advertising exchanges and any other advertising intermediation services, provided by an undertaking that provides any of the core_platform_services listed in points (a) to (i);

(3)	‘ information_society_service’ means any service as defined in Article 1(1), point (b), of Directive (EU) 2015/1535;

(4)	‘ digital_sector’ means the sector of products and services provided by means of, or through, information_society_services;

(5)	‘ online_intermediation_services’ means online_intermediation_services as defined in Article 2, point (2), of Regulation (EU) 2019/1150;

(6)	‘ online_search_engine’ means an online_search_engine as defined in Article 2, point (5), of Regulation (EU) 2019/1150;

(7)	‘ online_social_networking_service’ means a platform that enables end_users to connect and communicate with each other, share content and discover other users and content across multiple devices and, in particular, via chats, posts, videos and recommendations;

(8)	‘ video-sharing_platform_service’ means a video-sharing_platform_service as defined in Article 1(1), point (aa), of Directive 2010/13/EU;

(9)	‘ number-independent_interpersonal_communications_service’ means a number-independent_interpersonal_communications_service as defined in Article 2, point (7), of Directive (EU) 2018/1972;

(10)	‘ operating_system’ means a system software that controls the basic functions of the hardware or software and enables software_applications to run on it;

(11)	‘ web_browser’ means a software_application that enables end_users to access and interact with web content hosted on servers that are connected to networks such as the Internet, including standalone web_browsers as well as web_browsers integrated or embedded in software or similar;

(12)	‘ virtual_assistant’ means a software that can process demands, tasks or questions, including those based on audio, visual, written input, gestures or motions, and that, based on those demands, tasks or questions, provides access to other services or controls connected physical devices;

(13)	‘ cloud_computing_service’ means a cloud_computing_service as defined in Article 4, point (19), of Directive (EU) 2016/1148 of the European Parliament and of the Council (24);

(14)	‘ software_application_stores’ means a type of online_intermediation_services, which is focused on software_applications as the intermediated product or service;

(15)	‘ software_application’ means any digital product or service that runs on an operating_system;

(16)	‘ payment_service’ means a payment_service as defined in Article 4, point (3) of Directive (EU) 2015/2366;

(17)	‘technical service supporting payment_service’ means a service within the meaning of Article 3, point (j), of Directive (EU) 2015/2366;

(18)	‘ payment_system_for_in-app_purchases’ means a software_application, service or user interface which facilitates purchases of digital content or digital services within a software_application, including content, subscriptions, features or functionality, and the payments for such purchases;

(19)	‘ identification_service’ means a type of service provided together with or in support of core_platform_services that enables any type of verification of the identity of end_users or business users, regardless of the technology used;

(20)	‘ end_user’ means any natural or legal person using core_platform_services other than as a business user;

(21)	‘ business user’ means any natural or legal person acting in a commercial or professional capacity using core_platform_services for the purpose of or in the course of providing goods or services to end_users;

(22)

‘ ranking’ means the relative prominence given to goods or services offered through online_intermediation_services, online_social_networking_services, video-sharing_platform_services or virtual_assistants, or the relevance given to search_results by online_search_engines, as presented, organised or communicated by the undertakings providing online_intermediation_services, online_social_networking_services, video-sharing_platform_services, virtual_assistants or online_search_engines, irrespective of the technological means used for such presentation, organisation or communication and irrespective of whether only one result is presented or communicated;

(23)

‘ search_results’ means any information in any format, including textual, graphic, vocal or other outputs, returned in response to, and related to, a search query, irrespective of whether the information returned is a paid or an unpaid result, a direct answer or any product, service or information offered in connection with the organic results, or displayed along with or partly or entirely embedded in them;

(24)	‘ data’ means any digital representation of acts, facts or information and any compilation of such acts, facts or information, including in the form of sound, visual or audiovisual recording;

(25)	‘personal data’ means personal data as defined in Article 4, point (1), of Regulation (EU) 2016/679;

(26)	‘non-personal data’ means data other than personal data;

(27)	‘ undertaking’ means an entity engaged in an economic activity, regardless of its legal status and the way in which it is financed, including all linked enterprises or connected undertakings that form a group through the direct or indirect control of an enterprise or undertaking by another;

(28)	‘ control’ means the possibility of exercising decisive influence on an undertaking, within the meaning of Article 3(2) of Regulation (EC) No 139/2004;

(29)

‘ interoperability’ means the ability to exchange information and mutually use the information which has been exchanged through interfaces or other solutions, so that all elements of hardware or software work with other hardware and software and with users in all the ways in which they are intended to function;

(30)	‘ turnover’ means the amount derived by an undertaking within the meaning of Article 5(1) of Regulation (EC) No 139/2004;

(31)	‘ profiling’ means profiling as defined in Article 4, point (4), of Regulation (EU) 2016/679;

(32)	‘ consent’ means consent as defined in Article 4, point (11), of Regulation (EU) 2016/679;

(33)	‘ national_court’ means a court or tribunal of a Member State within the meaning of Article 267 TFEU.

CHAPTER II

GATEKEEPERS

Article 1

Subject matter and scope

1. The purpose of this Regulation is to contribute to the proper functioning of the internal market by laying down harmonised rules ensuring for all businesses, contestable and fair markets in the digital_sector across the Union where gatekeepers are present, to the benefit of business users and end_users.

2. This Regulation shall apply to core_platform_services provided or offered by gatekeepers to business users established in the Union or end_users established or located in the Union, irrespective of the place of establishment or residence of the gatekeepers and irrespective of the law otherwise applicable to the provision of service.

3. This Regulation shall not apply to markets related to:

(a)	electronic communications networks as defined in Article 2, point (1), of Directive (EU) 2018/1972;

(b)	electronic communications services as defined in Article 2, point (4), of Directive (EU) 2018/1972, other than those related to number-independent_interpersonal_communications_services.

4. With regard to interpersonal communications services as defined in Article 2, point (5) of Directive (EU) 2018/1972, this Regulation is without prejudice to the powers and responsibilities granted to the national regulatory and other competent authorities by virtue of Article 61 of that Directive.

5. In order to avoid the fragmentation of the internal market, Member States shall not impose further obligations on gatekeepers by way of laws, regulations or administrative measures for the purpose of ensuring contestable and fair markets. Nothing in this Regulation precludes Member States from imposing obligations on undertakings, including undertakings providing core_platform_services, for matters falling outside the scope of this Regulation, provided that those obligations are compatible with Union law and do not result from the fact that the relevant undertakings have the status of a gatekeeper within the meaning of this Regulation.

6. This Regulation is without prejudice to the application of Articles 101 and 102 TFEU. It is also without prejudice to the application of:

(a)	national competition rules prohibiting anti-competitive agreements, decisions by associations of undertakings, concerted practices and abuses of dominant positions;

(b)	national competition rules prohibiting other forms of unilateral conduct insofar as they are applied to undertakings other than gatekeepers or amount to the imposition of further obligations on gatekeepers; and

(c)	Council Regulation (EC) No 139/2004 (23) and national rules concerning merger control.

7. National authorities shall not take decisions which run counter to a decision adopted by the Commission under this Regulation. The Commission and Member States shall work in close cooperation and coordinate their enforcement actions on the basis of the principles established in Articles 37 and 38.

Article 2

Definitions

For the purposes of this Regulation, the following definitions apply:

(1)	‘ gatekeeper’ means an undertaking providing core_platform_services, designated pursuant to Article 3;

(2)

‘ core_platform_service’ means any of the following:

(a)	online_intermediation_services;

(b)	online_search_engines;

(c)	online_social_networking_services;

(d)	video-sharing_platform_services;

(e)	number-independent_interpersonal_communications_services;

(f)	operating_systems;

(g)	web_browsers;

(h)	virtual_assistants;

(i)	cloud_computing_services;

(j)	online advertising services, including any advertising networks, advertising exchanges and any other advertising intermediation services, provided by an undertaking that provides any of the core_platform_services listed in points (a) to (i);

(3)	‘ information_society_service’ means any service as defined in Article 1(1), point (b), of Directive (EU) 2015/1535;

(4)	‘ digital_sector’ means the sector of products and services provided by means of, or through, information_society_services;

(5)	‘ online_intermediation_services’ means online_intermediation_services as defined in Article 2, point (2), of Regulation (EU) 2019/1150;

(6)	‘ online_search_engine’ means an online_search_engine as defined in Article 2, point (5), of Regulation (EU) 2019/1150;

(7)	‘ online_social_networking_service’ means a platform that enables end_users to connect and communicate with each other, share content and discover other users and content across multiple devices and, in particular, via chats, posts, videos and recommendations;

(8)	‘ video-sharing_platform_service’ means a video-sharing_platform_service as defined in Article 1(1), point (aa), of Directive 2010/13/EU;

(9)	‘ number-independent_interpersonal_communications_service’ means a number-independent_interpersonal_communications_service as defined in Article 2, point (7), of Directive (EU) 2018/1972;

(10)	‘ operating_system’ means a system software that controls the basic functions of the hardware or software and enables software_applications to run on it;

(11)	‘ web_browser’ means a software_application that enables end_users to access and interact with web content hosted on servers that are connected to networks such as the Internet, including standalone web_browsers as well as web_browsers integrated or embedded in software or similar;

(12)	‘ virtual_assistant’ means a software that can process demands, tasks or questions, including those based on audio, visual, written input, gestures or motions, and that, based on those demands, tasks or questions, provides access to other services or controls connected physical devices;

(13)	‘ cloud_computing_service’ means a cloud_computing_service as defined in Article 4, point (19), of Directive (EU) 2016/1148 of the European Parliament and of the Council (24);

(14)	‘ software_application_stores’ means a type of online_intermediation_services, which is focused on software_applications as the intermediated product or service;

(15)	‘ software_application’ means any digital product or service that runs on an operating_system;

(16)	‘ payment_service’ means a payment_service as defined in Article 4, point (3) of Directive (EU) 2015/2366;

(17)	‘technical service supporting payment_service’ means a service within the meaning of Article 3, point (j), of Directive (EU) 2015/2366;

(18)	‘ payment_system_for_in-app_purchases’ means a software_application, service or user interface which facilitates purchases of digital content or digital services within a software_application, including content, subscriptions, features or functionality, and the payments for such purchases;

(19)	‘ identification_service’ means a type of service provided together with or in support of core_platform_services that enables any type of verification of the identity of end_users or business users, regardless of the technology used;

(20)	‘ end_user’ means any natural or legal person using core_platform_services other than as a business user;

(21)	‘ business user’ means any natural or legal person acting in a commercial or professional capacity using core_platform_services for the purpose of or in the course of providing goods or services to end_users;

(22)

(23)

(24)	‘ data’ means any digital representation of acts, facts or information and any compilation of such acts, facts or information, including in the form of sound, visual or audiovisual recording;

(25)	‘personal data’ means personal data as defined in Article 4, point (1), of Regulation (EU) 2016/679;

(26)	‘non-personal data’ means data other than personal data;

(27)	‘ undertaking’ means an entity engaged in an economic activity, regardless of its legal status and the way in which it is financed, including all linked enterprises or connected undertakings that form a group through the direct or indirect control of an enterprise or undertaking by another;

(28)	‘ control’ means the possibility of exercising decisive influence on an undertaking, within the meaning of Article 3(2) of Regulation (EC) No 139/2004;

(29)

(30)	‘ turnover’ means the amount derived by an undertaking within the meaning of Article 5(1) of Regulation (EC) No 139/2004;

(31)	‘ profiling’ means profiling as defined in Article 4, point (4), of Regulation (EU) 2016/679;

(32)	‘ consent’ means consent as defined in Article 4, point (11), of Regulation (EU) 2016/679;

(33)	‘ national_court’ means a court or tribunal of a Member State within the meaning of Article 267 TFEU.

CHAPTER II

GATEKEEPERS

Article 3

Designation of gatekeepers

1. An undertaking shall be designated as a gatekeeper if:

(a)	it has a significant impact on the internal market;

(b)	it provides a core_platform_service which is an important gateway for business users to reach end_users; and

(c)	it enjoys an entrenched and durable position, in its operations, or it is foreseeable that it will enjoy such a position in the near future.

2. An undertaking shall be presumed to satisfy the respective requirements in paragraph 1:

(a)

as regards paragraph 1, point (a), where it achieves an annual Union turnover equal to or above EUR 7,5 billion in each of the last three financial years, or where its average market capitalisation or its equivalent fair market value amounted to at least EUR 75 billion in the last financial year, and it provides the same core_platform_service in at least three Member States;

(b)

as regards paragraph 1, point (b), where it provides a core_platform_service that in the last financial year has at least 45 million monthly active end_users established or located in the Union and at least 10 000 yearly active business users established in the Union, identified and calculated in accordance with the methodology and indicators set out in the Annex;

(c)	as regards paragraph 1, point (c), where the thresholds in point (b) of this paragraph were met in each of the last three financial years.

3. Where an undertaking providing core_platform_services meets all of the thresholds in paragraph 2, it shall notify the Commission thereof without delay and in any event within 2 months after those thresholds are met and provide it with the relevant information identified in paragraph 2. That notification shall include the relevant information identified in paragraph 2 for each of the core_platform_services of the undertaking that meets the thresholds in paragraph 2, point (b). Whenever a further core_platform_service provided by the undertaking that has previously been designated as a gatekeeper meets the thresholds in paragraph 2, points (b) and (c), such undertaking shall notify the Commission thereof within 2 months after those thresholds are satisfied.

Where the undertaking providing the core_platform_service fails to notify the Commission pursuant to the first subparagraph of this paragraph and fails to provide within the deadline set by the Commission in the request for information pursuant to Article 21 all the relevant information that is required for the Commission to designate the undertaking concerned as gatekeeper pursuant to paragraph 4 of this Article, the Commission shall still be entitled to designate that undertaking as a gatekeeper, based on information available to the Commission.

Where the undertaking providing core_platform_services complies with the request for information pursuant to the second subparagraph of this paragraph or where the information is provided after the expiration of the deadline referred to in that subparagraph, the Commission shall apply the procedure set out in paragraph 4.

4. The Commission shall designate as a gatekeeper, without undue delay and at the latest within 45 working days after receiving the complete information referred to in paragraph 3, an undertaking providing core_platform_services that meets all the thresholds in paragraph 2.

5. The undertaking providing core_platform_services may present, with its notification, sufficiently substantiated arguments to demonstrate that, exceptionally, although it meets all the thresholds in paragraph 2, due to the circumstances in which the relevant core_platform_service operates, it does not satisfy the requirements listed in paragraph 1.

Where the Commission considers that the arguments submitted pursuant to the first subparagraph by the undertaking providing core_platform_services are not sufficiently substantiated because they do not manifestly call into question the presumptions set out in paragraph 2 of this Article, it may reject those arguments within the time limit referred to in paragraph 4, without applying the procedure laid down in Article 17(3).

Where the undertaking providing core_platform_services does present such sufficiently substantiated arguments manifestly calling into question the presumptions in paragraph 2 of this Article, the Commission may, notwithstanding the first subparagraph of this paragraph, within the time limit referred to in paragraph 4 of this Article, open the procedure laid down in Article 17(3).

If the Commission concludes that the undertaking providing core_platform_services was not able to demonstrate that the relevant core_platform_services that it provides do not satisfy the requirements of paragraph 1 of this Article, it shall designate that undertaking as a gatekeeper in accordance with the procedure laid down in Article 17(3).

6. The Commission is empowered to adopt delegated acts in accordance with Article 49 to supplement this Regulation by specifying the methodology for determining whether the quantitative thresholds laid down in paragraph 2 of this Article are met, and to regularly adjust that methodology to market and technological developments, where necessary.

7. The Commission is empowered to adopt delegated acts in accordance with Article 49 to amend this Regulation by updating the methodology and the list of indicators set out in the Annex.

8. The Commission shall designate as a gatekeeper, in accordance with the procedure laid down in Article 17, any undertaking providing core_platform_services that meets each of the requirements of paragraph 1 of this Article, but does not satisfy each of the thresholds in paragraph 2 of this Article.

For that purpose, the Commission shall take into account some or all of the following elements, insofar as they are relevant for the undertaking providing core_platform_services under consideration:

(a)	the size, including turnover and market capitalisation, operations and position of that undertaking;

(b)	the number of business users using the core_platform_service to reach end_users and the number of end_users;

(c)	network effects and data driven advantages, in particular in relation to that undertaking’s access to, and collection of, personal data and non-personal data or analytics capabilities;

(d)	any scale and scope effects from which the undertaking benefits, including with regard to data, and, where relevant, to its activities outside the Union;

(e)	business user or end_user lock-in, including switching costs and behavioural bias reducing the ability of business users and end_users to switch or multi-home;

(f)	a conglomerate corporate structure or vertical integration of that undertaking, for instance enabling that undertaking to cross subsidise, to combine data from different sources or to leverage its position; or

(g)	other structural business or service characteristics.

In carrying out its assessment under this paragraph, the Commission shall take into account foreseeable developments in relation to the elements listed in the second subparagraph, including any planned concentrations involving another undertaking providing core_platform_services or providing any other services in the digital_sector or enabling the collection of data.

Where an undertaking providing a core_platform_service that does not satisfy the quantitative thresholds of paragraph 2 fails to comply with the investigative measures ordered by the Commission in a significant manner, and that failure persists after that undertaking has been invited to comply within a reasonable time limit and to submit observations, the Commission may designate that undertaking as a gatekeeper on the basis of the facts available to the Commission.

9. For each undertaking designated as a gatekeeper pursuant to paragraph 4 or 8, the Commission shall list in the designation decision the relevant core_platform_services that are provided within that undertaking and which individually are an important gateway for business users to reach end_users as referred to in paragraph 1, point (b).

10. The gatekeeper shall comply with the obligations laid down in Articles 5, 6 and 7 within 6 months after a core_platform_service has been listed in the designation decision pursuant to paragraph 9 of this Article.

Article 4

Review of the status of gatekeeper

1. The Commission may, upon request or on its own initiative, reconsider, amend or repeal at any moment a designation decision adopted pursuant to Article 3 for one of the following reasons:

(a)	there has been a substantial change in any of the facts on which the designation decision was based;

(b)	the designation decision was based on incomplete, incorrect or misleading information.

2. The Commission shall regularly, and at least every 3 years, review whether the gatekeepers continue to satisfy the requirements laid down in Article 3(1). That review shall also examine whether the list of core_platform_services of the gatekeeper which are individually an important gateway for business users to reach end_users, as referred to in Article 3(1), point (b), needs to be amended. Those reviews shall have no suspending effect on the gatekeeper’s obligations.

The Commission shall also examine at least every year whether new undertakings providing core_platform_services satisfy those requirements.

Where the Commission, on the basis of the reviews pursuant to the first subparagraph, finds that the facts on which the designation of the undertakings providing core_platform_services as gatekeepers was based, have changed, it shall adopt a decision confirming, amending or repealing the designation decision.

3. The Commission shall publish and update a list of gatekeepers and the list of the core_platform_services for which they need to comply with the obligations laid down in Chapter III on an on-going basis.

CHAPTER III

PRACTICES OF GATEKEEPERS THAT LIMIT CONTESTABILITY OR ARE UNFAIR

Article 5

Obligations for gatekeepers

1. The gatekeeper shall comply with all obligations set out in this Article with respect to each of its core_platform_services listed in the designation decision pursuant to Article 3(9).

2. The gatekeeper shall not do any of the following:

(a)	process, for the purpose of providing online advertising services, personal data of end_users using services of third parties that make use of core_platform_services of the gatekeeper;

(b)	combine personal data from the relevant core_platform_service with personal data from any further core_platform_services or from any other services provided by the gatekeeper or with personal data from third-party services;

(c)	cross-use personal data from the relevant core_platform_service in other services provided separately by the gatekeeper, including other core_platform_services, and vice versa; and

(d)	sign in end_users to other services of the gatekeeper in order to combine personal data,

unless the end_user has been presented with the specific choice and has given consent within the meaning of Article 4, point (11), and Article 7 of Regulation (EU) 2016/679.

Where the consent given for the purposes of the first subparagraph has been refused or withdrawn by the end_user, the gatekeeper shall not repeat its request for consent for the same purpose more than once within a period of one year.

This paragraph is without prejudice to the possibility for the gatekeeper to rely on Article 6(1), points (c), (d) and (e) of Regulation (EU) 2016/679, where applicable.

3. The gatekeeper shall not prevent business users from offering the same products or services to end_users through third-party online_intermediation_services or through their own direct online sales channel at prices or conditions that are different from those offered through the online_intermediation_services of the gatekeeper.

4. The gatekeeper shall allow business users, free of charge, to communicate and promote offers, including under different conditions, to end_users acquired via its core_platform_service or through other channels, and to conclude contracts with those end_users, regardless of whether, for that purpose, they use the core_platform_services of the gatekeeper.

5. The gatekeeper shall allow end_users to access and use, through its core_platform_services, content, subscriptions, features or other items, by using the software_application of a business user, including where those end_users acquired such items from the relevant business user without using the core_platform_services of the gatekeeper.

6. The gatekeeper shall not directly or indirectly prevent or restrict business users or end_users from raising any issue of non-compliance with the relevant Union or national law by the gatekeeper with any relevant public authority, including national_courts, related to any practice of the gatekeeper. This is without prejudice to the right of business users and gatekeepers to lay down in their agreements the terms of use of lawful complaints-handling mechanisms.

7. The gatekeeper shall not require end_users to use, or business users to use, to offer, or to interoperate with, an identification_service, a web_browser engine or a payment_service, or technical services that support the provision of payment_services, such as payment systems for in-app purchases, of that gatekeeper in the context of services provided by the business users using that gatekeeper’s core_platform_services.

8. The gatekeeper shall not require business users or end_users to subscribe to, or register with, any further core_platform_services listed in the designation decision pursuant to Article 3(9) or which meet the thresholds in Article 3(2), point (b), as a condition for being able to use, access, sign up for or registering with any of that gatekeeper’s core_platform_services listed pursuant to that Article.

9. The gatekeeper shall provide each advertiser to which it supplies online advertising services, or third parties authorised by advertisers, upon the advertiser’s request, with information on a daily basis free of charge, concerning each advertisement placed by the advertiser, regarding:

(a)	the price and fees paid by that advertiser, including any deductions and surcharges, for each of the relevant online advertising services provided by the gatekeeper,

(b)	the remuneration received by the publisher, including any deductions and surcharges, subject to the publisher’s consent; and

(c)	the metrics on which each of the prices, fees and remunerations are calculated.

In the event that a publisher does not consent to the sharing of information regarding the remuneration received, as referred to in point (b) of the first subparagraph, the gatekeeper shall provide each advertiser free of charge with information concerning the daily average remuneration received by that publisher, including any deductions and surcharges, for the relevant advertisements.

10. The gatekeeper shall provide each publisher to which it supplies online advertising services, or third parties authorised by publishers, upon the publisher’s request, with free of charge information on a daily basis, concerning each advertisement displayed on the publisher’s inventory, regarding:

(a)	the remuneration received and the fees paid by that publisher, including any deductions and surcharges, for each of the relevant online advertising services provided by the gatekeeper;

(b)	the price paid by the advertiser, including any deductions and surcharges, subject to the advertiser’s consent; and

(c)	the metrics on which each of the prices and remunerations are calculated.

In the event an advertiser does not consent to the sharing of information, the gatekeeper shall provide each publisher free of charge with information concerning the daily average price paid by that advertiser, including any deductions and surcharges, for the relevant advertisements.

Article 6

Obligations for gatekeepers susceptible of being further specified under Article 8

1. The Gatekeeper shall comply with all obligations set out in this Article with respect to each of its core_platform_services listed in the designation decision pursuant to Article 3(9).

2. The gatekeeper shall not use, in competition with business users, any data that is not publicly available that is generated or provided by those business users in the context of their use of the relevant core_platform_services or of the services provided together with, or in support of, the relevant core_platform_services, including data generated or provided by the customers of those business users.

For the purposes of the first subparagraph, the data that is not publicly available shall include any aggregated and non-aggregated data generated by business users that can be inferred from, or collected through, the commercial activities of business users or their customers, including click, search, view and voice data, on the relevant core_platform_services or on services provided together with, or in support of, the relevant core_platform_services of the gatekeeper.

3. The gatekeeper shall allow and technically enable end_users to easily un-install any software_applications on the operating_system of the gatekeeper, without prejudice to the possibility for that gatekeeper to restrict such un-installation in relation to software_applications that are essential for the functioning of the operating_system or of the device and which cannot technically be offered on a standalone basis by third parties.

The gatekeeper shall allow and technically enable end_users to easily change default settings on the operating_system, virtual_assistant and web_browser of the gatekeeper that direct or steer end_users to products or services provided by the gatekeeper. That includes prompting end_users, at the moment of the end_users’ first use of an online_search_engine, virtual_assistant or web_browser of the gatekeeper listed in the designation decision pursuant to Article 3(9), to choose, from a list of the main available service providers, the online_search_engine, virtual_assistant or web_browser to which the operating_system of the gatekeeper directs or steers users by default, and the online_search_engine to which the virtual_assistant and the web_browser of the gatekeeper directs or steers users by default.

4. The gatekeeper shall allow and technically enable the installation and effective use of third-party software_applications or software_application_stores using, or interoperating with, its operating_system and allow those software_applications or software_application_stores to be accessed by means other than the relevant core_platform_services of that gatekeeper. The gatekeeper shall, where applicable, not prevent the downloaded third-party software_applications or software_application_stores from prompting end_users to decide whether they want to set that downloaded software_application or software_application store as their default. The gatekeeper shall technically enable end_users who decide to set that downloaded software_application or software_application store as their default to carry out that change easily.

The gatekeeper shall not be prevented from taking, to the extent that they are strictly necessary and proportionate, measures to ensure that third-party software_applications or software_application_stores do not endanger the integrity of the hardware or operating_system provided by the gatekeeper, provided that such measures are duly justified by the gatekeeper.

Furthermore, the gatekeeper shall not be prevented from applying, to the extent that they are strictly necessary and proportionate, measures and settings other than default settings, enabling end_users to effectively protect security in relation to third-party software_applications or software_application_stores, provided that such measures and settings other than default settings are duly justified by the gatekeeper.

5. The gatekeeper shall not treat more favourably, in ranking and related indexing and crawling, services and products offered by the gatekeeper itself than similar services or products of a third party. The gatekeeper shall apply transparent, fair and non-discriminatory conditions to such ranking.

6. The gatekeeper shall not restrict technically or otherwise the ability of end_users to switch between, and subscribe to, different software_applications and services that are accessed using the core_platform_services of the gatekeeper, including as regards the choice of Internet access services for end_users.

7. The gatekeeper shall allow providers of services and providers of hardware, free of charge, effective interoperability with, and access for the purposes of interoperability to, the same hardware and software features accessed or controlled via the operating_system or virtual_assistant listed in the designation decision pursuant to Article 3(9) as are available to services or hardware provided by the gatekeeper. Furthermore, the gatekeeper shall allow business users and alternative providers of services provided together with, or in support of, core_platform_services, free of charge, effective interoperability with, and access for the purposes of interoperability to, the same operating_system, hardware or software features, regardless of whether those features are part of the operating_system, as are available to, or used by, that gatekeeper when providing such services.

The gatekeeper shall not be prevented from taking strictly necessary and proportionate measures to ensure that interoperability does not compromise the integrity of the operating_system, virtual_assistant, hardware or software features provided by the gatekeeper, provided that such measures are duly justified by the gatekeeper.

8. The gatekeeper shall provide advertisers and publishers, as well as third parties authorised by advertisers and publishers, upon their request and free of charge, with access to the performance measuring tools of the gatekeeper and the data necessary for advertisers and publishers to carry out their own independent verification of the advertisements inventory, including aggregated and non-aggregated data. Such data shall be provided in a manner that enables advertisers and publishers to run their own verification and measurement tools to assess the performance of the core_platform_services provided for by the gatekeepers.

9. The gatekeeper shall provide end_users and third parties authorised by an end_user, at their request and free of charge, with effective portability of data provided by the end_user or generated through the activity of the end_user in the context of the use of the relevant core_platform_service, including by providing, free of charge, tools to facilitate the effective exercise of such data portability, and including by the provision of continuous and real-time access to such data.

10. The gatekeeper shall provide business users and third parties authorised by a business user, at their request, free of charge, with effective, high-quality, continuous and real-time access to, and use of, aggregated and non-aggregated data, including personal data, that is provided for or generated in the context of the use of the relevant core_platform_services or services provided together with, or in support of, the relevant core_platform_services by those business users and the end_users engaging with the products or services provided by those business users. With regard to personal data, the gatekeeper shall provide for such access to, and use of, personal data only where the data are directly connected with the use effectuated by the end_users in respect of the products or services offered by the relevant business user through the relevant core_platform_service, and when the end_users opt in to such sharing by giving their consent.

11. The gatekeeper shall provide to any third-party undertaking providing online_search_engines, at its request, with access on fair, reasonable and non-discriminatory terms to ranking, query, click and view data in relation to free and paid search generated by end_users on its online_search_engines. Any such query, click and view data that constitutes personal data shall be anonymised.

12. The gatekeeper shall apply fair, reasonable, and non-discriminatory general conditions of access for business users to its software_application_stores, online_search_engines and online_social_networking_services listed in the designation decision pursuant to Article 3(9).

For that purpose, the gatekeeper shall publish general conditions of access, including an alternative dispute settlement mechanism.

The Commission shall assess whether the published general conditions of access comply with this paragraph.

13. The gatekeeper shall not have general conditions for terminating the provision of a core_platform_service that are disproportionate. The gatekeeper shall ensure that the conditions of termination can be exercised without undue difficulty.

Article 8

Compliance with obligations for gatekeepers

1. The gatekeeper shall ensure and demonstrate compliance with the obligations laid down in Articles 5, 6 and 7 of this Regulation. The measures implemented by the gatekeeper to ensure compliance with those Articles shall be effective in achieving the objectives of this Regulation and of the relevant obligation. The gatekeeper shall ensure that the implementation of those measures complies with applicable law, in particular Regulation (EU) 2016/679, Directive 2002/58/EC, legislation on cyber security, consumer protection, product safety, as well as with the accessibility requirements.

2. The Commission may, on its own initiative or at the request of a gatekeeper pursuant to paragraph 3 of this Article, open proceedings pursuant to Article 20.

The Commission may adopt an implementing act, specifying the measures that the gatekeeper concerned is to implement in order to effectively comply with the obligations laid down in Articles 6 and 7. That implementing act shall be adopted within 6 months from the opening of proceedings pursuant to Article 20 in accordance with the advisory procedure referred to in Article 50(2).

When opening proceedings on its own initiative for circumvention pursuant to Article 13, such measures may concern the obligations laid down in Articles 5, 6 and 7.

3. A gatekeeper may request the Commission to engage in a process to determine whether the measures that that gatekeeper intends to implement or has implemented to ensure compliance with Articles 6 and 7 are effective in achieving the objective of the relevant obligation in the specific circumstances of the gatekeeper. The Commission shall have discretion in deciding whether to engage in such a process, respecting the principles of equal treatment, proportionality and good administration.

In its request, the gatekeeper shall provide a reasoned submission to explain the measures that it intends to implement or has implemented. The gatekeeper shall furthermore provide a non-confidential version of its reasoned submission that may be shared with third parties pursuant to paragraph 6.

4. Paragraphs 2 and 3 of this Article are without prejudice to the powers of the Commission under Articles 29, 30 and 31.

5. With a view of adopting the decision under paragraph 2, the Commission shall communicate its preliminary findings to the gatekeeper within 3 months from the opening of the proceedings under Article 20. In the preliminary findings, the Commission shall explain the measures that it is considering taking or that it considers the gatekeeper concerned should take in order to effectively address the preliminary findings.

6. In order to effectively enable interested third parties to provide comments, the Commission shall, when communicating its preliminary findings to the gatekeeper pursuant to paragraph 5 or as soon as possible thereafter, publish a non-confidential summary of the case and the measures that it is considering taking or that it considers the gatekeeper concerned should take. The Commission shall specify a reasonable timeframe within which such comments are to be provided.

7. In specifying the measures under paragraph 2, the Commission shall ensure that the measures are effective in achieving the objectives of this Regulation and the relevant obligation, and proportionate in the specific circumstances of the gatekeeper and the relevant service.

8. For the purposes of specifying the obligations under Article 6(11) and (12), the Commission shall also assess whether the intended or implemented measures ensure that there is no remaining imbalance of rights and obligations on business users and that the measures do not themselves confer an advantage on the gatekeeper which is disproportionate to the service provided by the gatekeeper to business users.

9. In respect of proceedings pursuant to paragraph 2, the Commission may, upon request or on its own initiative, decide to reopen them where:

(a)	there has been a material change in any of the facts on which the decision was based; or

(b)	the decision was based on incomplete, incorrect or misleading information; or

(c)	the measures as specified in the decision are not effective.

Article 12

Updating obligations for gatekeepers

1. The Commission is empowered to adopt delegated acts in accordance with Article 49 to supplement this Regulation with regard to the obligations laid down in Articles 5 and 6. Those delegated acts shall be based on a market investigation pursuant to Article 19 that has identified the need to keep those obligations up to date in order to address practices that limit the contestability of core_platform_services or that are unfair in the same way as the practices addressed by the obligations laid down in Articles 5 and 6.

2. The scope of a delegated act adopted in accordance with paragraph 1 shall be limited to:

(a)	extending an obligation that applies only in relation to certain core_platform_services, to other core_platform_services listed in Article 2, point (2);

(b)	extending an obligation that benefits certain business users or end_users so that it benefits other business users or end_users;

(c)	specifying the manner in which the obligations laid down in Articles 5 and 6 are to be performed by gatekeepers in order to ensure effective compliance with those obligations;

(d)	extending an obligation that applies only in relation to certain services provided together with, or in support of, core_platform_services to other services provided together with, or in support of, core_platform_services;

(e)	extending an obligation that applies only in relation to certain types of data to apply in relation to other types of data;

(f)	adding further conditions where an obligation imposes certain conditions on the behaviour of a gatekeeper; or

(g)	applying an obligation that governs the relationship between several core_platform_services of the gatekeeper to the relationship between a core_platform_service and other services of the gatekeeper.

3. The Commission is empowered to adopt delegated acts in accordance with Article 49 to amend this Regulation with regard to the list of basic functionalities identified in Article 7(2), by adding or removing functionalities of number-independent_interpersonal_communications_services.

Those delegated acts shall be based on a market investigation pursuant to Article 19 that has identified the need to keep those obligations up to date in order to address practices that limit the contestability of core_platform_services or that are unfair in the same way as the practices addressed by the obligations laid down in Article 7.

4. The Commission is empowered to adopt delegated acts in accordance with Article 49 to supplement this Regulation in respect of the obligations in Article 7 by specifying the manner in which those obligations are to be performed in order to ensure effective compliance with those obligations. Those delegated acts shall be based on a market investigation pursuant to Article 19, which has identified the need to keep those obligations up to date in order to address practices that limit the contestability of core_platform_services or that are unfair in the same way as the practices addressed by the obligations laid down in Article 7.

5. A practice as referred to in paragraphs 1, 3 and 4 shall be considered to limit the contestability of core_platform_services or to be unfair where:

(a)

that practice is engaged in by gatekeepers and is capable of impeding innovation and limiting choice for business users and end_users because it:

(i)

affects or risks affecting the contestability of a core_platform_service or other services in the digital_sector on a lasting basis due to the creation or strengthening of barriers to entry for other undertakings or to expand as providers of a core_platform_service or other services in the digital_sector; or

(ii)	prevents other operators from having the same access to a key input as the gatekeeper; or

(b)	there is an imbalance between the rights and obligations of business users and the gatekeeper obtains an advantage from business users that is disproportionate to the service provided by that gatekeeper to those business users.

Article 13

Anti-circumvention

1. An undertaking providing core_platform_services shall not segment, divide, subdivide, fragment or split those services through contractual, commercial, technical or any other means in order to circumvent the quantitative thresholds laid down in Article 3(2). No such practice of an undertaking shall prevent the Commission from designating it as a gatekeeper pursuant to Article 3(4).

2. The Commission may, when it suspects that an undertaking providing core_platform_services is engaged in a practice laid down in paragraph 1, require from that undertaking any information that it deems necessary to determine whether that undertaking has engaged in such a practice.

3. The gatekeeper shall ensure that the obligations of Articles 5, 6 and 7 are fully and effectively complied with.

4. The gatekeeper shall not engage in any behaviour that undermines effective compliance with the obligations of Articles 5, 6 and 7 regardless of whether that behaviour is of a contractual, commercial or technical nature, or of any other nature, or consists in the use of behavioural techniques or interface design.

5. Where consent for collecting, processing, cross-using and sharing of personal data is required to ensure compliance with this Regulation, a gatekeeper shall take the necessary steps either to enable business users to directly obtain the required consent to their processing, where that consent is required under Regulation (EU) 2016/679 or Directive 2002/58/EC, or to comply with Union data protection and privacy rules and principles in other ways, including by providing business users with duly anonymised data where appropriate. The gatekeeper shall not make the obtaining of that consent by the business user more burdensome than for its own services.

6. The gatekeeper shall not degrade the conditions or quality of any of the core_platform_services provided to business users or end_users who avail themselves of the rights or choices laid down in Articles 5, 6 and 7, or make the exercise of those rights or choices unduly difficult, including by offering choices to the end-user in a non-neutral manner, or by subverting end_users’ or business users' autonomy, decision-making, or free choice via the structure, design, function or manner of operation of a user interface or a part thereof.

7. Where the gatekeeper circumvents or attempts to circumvent any of the obligations in Article 5, 6, or 7 in a manner described in paragraphs 4, 5 and 6 of this Article, the Commission may open proceedings pursuant to Article 20 and adopt an implementing act referred to in Article 8(2) in order to specify the measures that the gatekeeper is to implement.

8. Paragraph 6 of this Article is without prejudice to the powers of the Commission under Articles 29, 30 and 31.

Article 14

Obligation to inform about concentrations

1. A gatekeeper shall inform the Commission of any intended concentration within the meaning of Article 3 of Regulation (EC) No 139/2004, where the merging entities or the target of concentration provide core_platform_services or any other services in the digital_sector or enable the collection of data, irrespective of whether it is notifiable to the Commission under that Regulation or to a competent national competition authority under national merger rules.

A gatekeeper shall inform the Commission of such a concentration prior to its implementation and following the conclusion of the agreement, the announcement of the public bid, or the acquisition of a controlling interest.

2. The information provided by the gatekeeper pursuant to paragraph 1 shall at least describe the undertakings concerned by the concentration, their Union and worldwide annual turnovers, their fields of activity, including activities directly related to the concentration, and the transaction value of the agreement or an estimation thereof, along with a summary of the concentration, including its nature and rationale and a list of the Member States concerned by the concentration.

The information provided by the gatekeeper shall also describe, for any relevant core_platform_services, their Union annual turnovers, their numbers of yearly active business users and their numbers of monthly active end_users, respectively.

3. If, following any concentration referred to in paragraph 1 of this Article, additional core_platform_services individually meet the thresholds in Article 3(2), point (b), the gatekeeper concerned shall inform the Commission thereof within 2 months from the implementation of the concentration and provide the Commission with the information referred to in Article 3(2).

4. The Commission shall inform the competent authorities of the Member States of any information received pursuant to paragraph 1 and publish annually the list of acquisitions of which it has been informed by gatekeepers pursuant to that paragraph.

The Commission shall take account of the legitimate interest of undertakings in the protection of their business secrets.

5. The competent authorities of the Member States may use the information received under paragraph 1 of this Article to request the Commission to examine the concentration pursuant to Article 22 of Regulation (EC) No 139/2004.

Article 19

Market investigation into new services and new practices

1. The Commission may conduct a market investigation for the purpose of examining whether one or more services within the digital_sector should be added to the list of core_platform_services laid down in Article 2, point (2) or for the purpose of detecting practices that limit the contestability of core_platform_services or that are unfair and which are not effectively addressed by this Regulation. In its assessment, the Commission shall take into account any relevant findings of proceedings under Articles 101 and 102 TFEU concerning digital markets as well as any other relevant developments.

2. The Commission may, when conducting a market investigation pursuant to paragraph 1, consult third parties, including business users and end_users of services within the digital_sector that are being investigated and business users and end_users who are subject to practices under investigation.

3. The Commission shall publish its findings in a report within 18 months from the date referred to in Article 16(3), point (a).

That report shall be submitted to the European Parliament and to the Council and, where appropriate, shall be accompanied by:

(a)	a legislative proposal to amend this Regulation in order to include additional services within the digital_sector in the list of core_platform_services laid down in Article 2, point (2), or to include new obligations in Chapter III; or

(b)	a draft delegated act supplementing this Regulation with regard to the obligations laid down in Articles 5 and 6, or a draft delegated act amending or supplementing this Regulation with regard to the obligations laid down in Article 7, as provided for in Article 12.

Where appropriate, the legislative proposal to amend this Regulation under point (a) of the second subparagraph may also propose to remove existing services from the list of core_platform_services laid down in Article 2, point (2), or to remove existing obligations from Article 5, 6 or 7.

CHAPTER V

INVESTIGATIVE, ENFORCEMENT AND MONITORING POWERS

Article 24

Interim measures

In case of urgency due to the risk of serious and irreparable damage for business users or end_users of gatekeepers, the Commission may adopt an implementing act ordering interim measures against a gatekeeper on the basis of a prima facie finding of an infringement of Article 5, 6 or 7. That implementing act shall be adopted only in the context of proceedings opened with a view to the possible adoption of a non-compliance decision pursuant to Article 29(1). It shall apply only for a specified period of time and may be renewed in so far this is necessary and appropriate. That implementing act shall be adopted in accordance with the advisory procedure referred to in Article 50(2).

Article 27

Information by third parties

1. Any third party, including business users, competitors or end-users of the core_platform_services listed in the designation decision pursuant to Article 3(9), as well as their representatives, may inform the national competent authority of the Member State, enforcing the rules referred to in Article 1(6), or the Commission directly, about any practice or behaviour by gatekeepers that falls within the scope of this Regulation.

2. The national competent authority of the Member State, enforcing the rules referred to in Article 1(6), and the Commission shall have full discretion as regards the appropriate measures and are under no obligation to follow-up on the information received.

3. Where the national competent authority of the Member State, enforcing the rules referred to in Article 1(6), determines, based on the information received pursuant to paragraph 1 of this Article, that there may be an issue of non-compliance with this Regulation, it shall transfer that information to the Commission.

Article 53

Review

1. By 3 May 2026, and subsequently every 3 years, the Commission shall evaluate this Regulation and report to the European Parliament, the Council and the European Economic and Social Committee.

2. The evaluations shall assess whether the aims of this Regulation of ensuring contestable and fair markets have been achieved and assess the impact of this Regulation on business users, especially SMEs, and end_users. Moreover, the Commission shall evaluate if the scope of Article 7 may be extended to online_social_networking_services.

3. The evaluations shall establish whether it is required to modify rules, including regarding the list of core_platform_services laid down in Article 2, point (2), the obligations laid down in Articles 5, 6 and 7 and their enforcement, to ensure that digital markets across the Union are contestable and fair. Following the evaluations, the Commission shall take appropriate measures, which may include legislative proposals.

4. The competent authorities of Member States shall provide any relevant information they have that the Commission may require for the purposes of drawing up the report referred to in paragraph 1.

Article 54

Entry into force and application

This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

It shall apply from 2 May 2023.

However, Article 3(6) and (7) and Articles 40, 46, 47, 48, 49 and 50 shall apply from 1 November 2022 and Article 42 and Article 43 shall apply from 25 June 2023.

Nevertheless, if the date of 25 June 2023 precedes the date of application referred to in the second paragraph of this Article, the application of Article 42 and Article 43 shall be postponed until the date of application referred to in the second paragraph of this Article.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Strasbourg, 14 September 2022.

For the European Parliament

The President

R. METSOLA

For the Council

The President

M. BEK

(1) OJ C 286, 16.7.2021, p. 64.

(2) OJ C 440, 29.10.2021, p. 67.

(3) Position of the European Parliament of 5 July 2022 (not yet published in the Official Journal) and decision of the Council of 18 July 2022.

(4) Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC ( General Data Protection Regulation) (OJ L 119, 4.5.2016, p. 1).

(5) Regulation (EU) 2019/1150 of the European Parliament and of the Council of 20 June 2019 on promoting fairness and transparency for business users of online_intermediation_services (OJ L 186, 11.7.2019, p. 57).

(6) Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (OJ L 201, 31.7.2002, p. 37).

(7) Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’) (OJ L 149, 11.6.2005, p. 22).

(8) Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) (OJ L 95, 15.4.2010, p. 1).

(9) Directive (EU) 2015/2366 of the European Parliament and of the Council of 25 November 2015 on payment_services in the internal market, amending Directives 2002/65/EC, 2009/110/EC and 2013/36/EU and Regulation (EU) No 1093/2010, and repealing Directive 2007/64/EC (OJ L 337, 23.12.2015, p. 35).

(10) Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC (OJ L 130, 17.5.2019, p. 92).

(11) Directive (EU) 2019/882 of the European Parliament and of the Council of 17 April 2019 on the accessibility requirements for products and services (OJ L 151, 7.6.2019, p. 70).

(12) Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ L 95, 21.4.1993, p. 29).

(13) Directive (EU) 2015/1535 of the European Parliament and of the Council of 9 September 2015 laying down a procedure for the provision of information in the field of technical regulations and of rules on Information Society services (OJ L 241, 17.9.2015, p. 1).

(14) Directive (EU) 2018/1972 of the European Parliament and of the Council of 11 December 2018 establishing the European Electronic Communications Code (OJ L 321, 17.12.2018, p. 36).

(15) Directive (EU) 2016/2102 of the European Parliament and of the Council of 26 October 2016 on the accessibility of the websites and mobile applications of public sector bodies (OJ L 327, 2.12.2016, p. 1).

(16) Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by the Member States of the Commission's exercise of implementing powers (OJ L 55, 28.2.2011, p. 13).

(17) Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and Decision No 1247/2002/EC (OJ L 295, 21.11.2018, p. 39).

(18) Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ L 1, 4.1.2003, p. 1).

(19) OJ L 123, 12.5.2016, p. 1.

(20) Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019 on the protection of persons who report breaches of Union law (OJ L 305, 26.11.2019, p. 17).

(21) Directive (EU) 2020/1828 of the European Parliament and of the Council of 25 November 2020 on representative actions for the protection of the collective interests of consumers and repealing Directive 2009/22/EC (OJ L 409, 4.12.2020, p. 1).

(22) OJ C 147, 26.4.2021, p. 4.

(23) Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the EC Merger Regulation) (OJ L 24, 29.1.2004, p. 1).

(24) Directive (EU) 2016/1148 of the European Parliament and of the Council of 6 July 2016 concerning measures for a high common level of security of network and information systems across the Union (OJ L 194, 19.7.2016, p. 1).

ANNEX

A. ‘ General’

This Annex aims at specifying the methodology for identifying and calculating the ‘active end_users’ and the ‘active business users’ for each core_platform_service listed in Article 2, point (2). It provides a reference to enable an undertaking to assess whether its core_platform_services meet the quantitative thresholds set out in Article 3(2), point (b) and would therefore be presumed to meet the requirement in Article 3(1), point (b). Such reference will therefore equally be of relevance to any broader assessment under Article 3(8). It is the responsibility of the undertaking to come to the best approximation possible in line with the common principles and specific methodology set out in this Annex. Nothing in this Annex precludes the Commission, within the time limits laid down in the relevant provisions of this Regulation, from requiring the undertaking providing core_platform_services to provide any information necessary to identify and calculate the ‘active end_users’ and the ‘active business users’. Nothing in this Annex should constitute a legal basis for tracking users. The methodology contained in this Annex is also without prejudice to any of the obligations laid down in this Regulation, notably in Article 3(3) and (8) and Article 13(3). In particular, the required compliance with Article 13(3) also means identifying and calculating ‘active end_users’ and ‘active business users’ based either on a precise measurement or on the best approximation available, in line with the actual identification and calculation capacities that the undertaking providing core_platform_services possesses at the relevant point in time. Those measurements or the best approximation available shall be consistent with, and include, those reported under Article 15.

Article 2, points (20) and (21) set out the definitions of ‘ end_user’ and ‘ business user’, which are common to all core_platform_services.

In order to identify and calculate the number of ‘active end_users’ and ‘active business users’, this Annex refers to the concept of ‘unique users’. The concept of ‘unique users’ encompasses ‘active end_users’ and ‘active business users’ counted only once, for the relevant core_platform_service, over the course of a specified time period (i.e. month in case of ‘active end_users’ and year in case of ‘active business users’), no matter how many times they engaged with the relevant core_platform_service over that period. This is without prejudice to the fact that the same natural or legal person can simultaneously constitute an ‘active end_user’ or an ‘active business user’ for different core_platform_services.

B. ‘Active end_users’

The number of ‘unique users’ as regards ‘active end_users’ shall be identified according to the most accurate metric reported by the undertaking providing any of the core_platform_services, specifically:

It is considered that collecting data about the use of core_platform_services from signed-in or logged-in environments would prima facie present the lowest risk of duplication, for example in relation to user behaviour across devices or platforms. Hence, the undertaking shall submit aggregate anonymized data on the number of unique end_users per respective core_platform_service based on signed-in or logged-in environments, if such data exists.

In the case of core_platform_services which are also accessed by end_users outside signed-in or logged-in environments, the undertaking shall additionally submit aggregate anonymized data on the number of unique end_users of the respective core_platform_service based on an alternate metric capturing also end_users outside signed-in or logged-in environments, such as internet protocol addresses, cookie identifiers or other identifiers such as radio frequency identification tags, provided that those addresses or identifiers are objectively necessary for the provision of the core_platform_services.

The number of ‘monthly active end_users’ is based on the average number of monthly active end_users throughout the largest part of the financial year. The notion ‘the largest part of the financial year’ is intended to allow an undertaking providing core_platform_services to discount outlier figures in a given year. Outlier figures inherently mean figures that fall significantly outside the normal and foreseeable figures. An unforeseen peak or drop in user engagement that occurred during a single month of the financial year is an example of what could constitute such outlier figures. Figures related to annually recurring occurrences, such as annual sales promotions, are not outlier figures.

C. ‘Active business users’

The number of ‘unique users’ as regards ‘active business users’ is to be determined, where applicable, at the account level with each distinct business account associated with the use of a core_platform_service provided by the undertaking constituting one unique business user of that respective core_platform_service. If the notion of ‘business account’ does not apply to a given core_platform_service, the relevant undertaking providing core_platform_services shall determine the number of unique business users by referring to the relevant undertaking.

D. ‘ Submission_of_information’

The undertaking submitting to the Commission pursuant to Article 3(3) information concerning the number of active end_users and active business users per core_platform_service shall be responsible for ensuring the completeness and accuracy of that information. In that regard:

a.	The undertaking shall be responsible for submitting data for a respective core_platform_service that avoids under-counting and over-counting the number of active end_users and active business users (for example, where users access the core_platform_services across different platforms or devices).

The undertaking shall be responsible for providing precise and succinct explanations about the methodology used to arrive at the information and for any risk of under-counting or over-counting of the number of active end_users and active business users for a respective core_platform_service and for the solutions adopted to address that risk.

c.	The undertaking shall provide data that is based on an alternative metric when the Commission has concerns about the accuracy of data provided by the undertaking providing core_platform_services.

For the purpose of calculating the number of ‘active end_users’ and ‘active business users’:

The undertaking providing core_platform_service(s) shall not identify core_platform_services that belong to the same category of core_platform_services pursuant to Article 2, point (2) as distinct mainly on the basis that they are provided using different domain names, whether country code top-level domains (ccTLDs) or generic top-level domains (gTLDs), or any geographic attributes.

The undertaking providing core_platform_service(s) shall consider as distinct core_platform_services those core_platform_services, which are used for different purposes by either their end_users or their business users, or both, even if their end_users or business users may be the same and even if they belong to the same category of core_platform_services pursuant to Article 2, point (2).

The undertaking providing core_platform_service(s) shall consider as distinct core_platform_services those services which the relevant undertaking offers in an integrated way, but which:

(i)	do not belong to the same category of core_platform_services pursuant to Article 2, point (2); or

(ii)	are used for different purposes by either their end_users or their business users, or both, even if their end_users and business users may be the same and even if they belong to the same category of core_platform_services pursuant to Article 2, point (2).

E. ‘ Specific_definitions’

The table below sets out specific definitions of ‘active end_users’ and ‘active business users’ for each core_platform_service.

Core platform services	Active end_users	Active business users
Online intermediation services	Number of unique end_users who engaged with the online intermediation service at least once in the month for example through actively logging-in, making a query, clicking or scrolling or concluded a transaction through the online intermediation service at least once in the month.	Number of unique business users who had at least one item listed in the online intermediation service during the whole year or concluded a transaction enabled by the online intermediation service during the year.
Online search engines	Number of unique end_users who engaged with the online_search_engine at least once in the month, for example through making a query.	Number of unique business users with business websites (i.e. website used in commercial or professional capacity) indexed by or part of the index of the online_search_engine during the year.
Online social networking services	Number of unique end_users who engaged with the online_social_networking_service at least once in the month, for example through actively logging-in, opening a page, scrolling, clicking, liking, making a query, posting or commenting.	Number of unique business users who have a business listing or business account in the online_social_networking_service and have engaged in any way with the service at least once during the year, for example through actively logging-in, opening a page, scrolling, clicking, liking, making a query, posting, commenting or using its tools for businesses.
Video-sharing platform services	Number of unique end_users who engaged with the video-sharing_platform_service at least once in the month, for example through playing a segment of audiovisual content, making a query or uploading a piece of audiovisual content, notably including user-generated videos.	Number of unique business users who provided at least one piece of audiovisual content uploaded or played on the video-sharing_platform_service during the year.
Number-independent interpersonal communication services	Number of unique end_users who initiated or participated in any way in a communication through the number-independent interpersonal communication service at least once in the month.	Number of unique business users who used a business account or otherwise initiated or participated in any way in a communication through the number-independent interpersonal communication service to communicate directly with an end_user at least once during the year.
Operating systems	Number of unique end_users who utilised a device with the operating_system, which has been activated, updated or used at least once in the month.	Number of unique developers who published, updated or offered at least one software_application or software program using the programming language or any software development tools of, or running in any way on, the operating_system during the year.
Virtual assistant	Number of unique end_users who engaged with the virtual_assistant in any way at least once in the month, such as for example through activating it, asking a question, accessing a service through a command or controlling a smart home device.	Number of unique developers who offered at least one virtual_assistant software_application or a functionality to make an existing software_application accessible through the virtual_assistant during the year.
Web browsers	Number of unique end_users who engaged with the web_browser at least once in the month, for example through inserting a query or website address in the URL line of the web_browser.	Number of unique business users whose business websites (i.e. website used in commercial or professional capacity) have been accessed via the web_browser at least once during the year or who offered a plug-in, extension or add-ons used on the web_browser during the year.
Cloud computing services	Number of unique end_users who engaged with any cloud_computing_services from the relevant provider of cloud_computing_services at least once in the month, in return for any type of remuneration, regardless of whether this remuneration occurs in the same month.	Number of unique business users who provided any cloud_computing_services hosted in the cloud infrastructure of the relevant provider of cloud_computing_services during the year.
Online advertising services	For proprietary sales of advertising space: Number of unique end_users who were exposed to an advertisement impression at least once in the month. For advertising intermediation services (including advertising networks, advertising exchanges and any other advertising intermediation services): Number of unique end_users who were exposed to an advertisement impression which triggered the advertising intermediation service at least once in the month.	For proprietary sales of advertising space: Number of unique advertisers who had at least one advertisement impression displayed during the year. For advertising intermediation services (including advertising networks, advertising exchanges and any other advertising intermediation services): Number of unique business users (including advertisers, publishers or other intermediators) who interacted via or were served by the advertising intermediation service during the year.

whereas

keyboard_tab Digital Market Act 2022/1925 EN

Digital Market Act 2022/1925 EN