keyboard_tab Digital Market Act 2022/1925 EN

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.

1.   Where the gatekeeper demonstrates in a reasoned request that compliance with a specific obligation laid down in Article 5, 6 or 7 for a core_platform_service listed in the designation decision pursuant to Article 3(9) would endanger, due to exceptional circumstances beyond the gatekeeper’s control, the economic viability of its operation in the Union, the Commission may adopt an implementing act setting out its decision to exceptionally suspend, in whole or in part, the specific obligation referred to in that reasoned request (‘the suspension decision’). In that implementing act, the Commission shall substantiate its suspension decision by identifying the exceptional circumstances justifying the suspension. That implementing act shall be limited to the extent and the duration necessary to address such threat to the gatekeeper’s viability. The Commission shall aim to adopt that implementing act without delay and at the latest 3 months following receipt of a complete reasoned request. That implementing act shall be adopted in accordance with the advisory procedure referred to in Article 50(2).

2.   Where suspension is granted pursuant to paragraph 1, the Commission shall review its suspension decision every year, unless a shorter interval is specified in that decision. Following such a review the Commission shall either wholly or partly lift the suspension, or decide that the conditions in paragraph 1 continue to be met.

3.   In cases of urgency, the Commission may, acting on a reasoned request by a gatekeeper, provisionally suspend the application of a specific obligation referred to in paragraph 1 to one or more individual core_platform_services already prior to the decision pursuant to that paragraph. Such a request may be made and granted at any time pending the assessment of the Commission pursuant to paragraph 1.

4.   In assessing the request referred to in paragraphs 1 and 3, the Commission shall take into account, in particular, the impact of the compliance with the specific obligation on the economic viability of the operation of the gatekeeper in the Union as well as on third parties, in particular SMEs and consumers. The suspension may be made subject to conditions and obligations to be defined by the Commission in order to ensure a fair balance between those interests and the objectives of this Regulation.

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.

1.   In order to carry out its duties under this Regulation, the Commission may conduct all necessary inspections of an undertaking or association of undertakings.

2.   The officials and other accompanying persons authorised by the Commission to conduct an inspection are empowered to:

3.   To carry out inspections, the Commission may request the assistance of auditors or experts appointed by the Commission pursuant to Article 26(2), as well as the assistance of the national competent authority of the Member State, enforcing the rules referred to in Article 1(6) in whose territory the inspection is to be conducted.

4.   During inspections the Commission, auditors or experts appointed by it and the national competent authority of the Member State, enforcing the rules referred to in Article 1(6) in whose territory the inspection is to be conducted may require the undertaking or association of undertakings to provide access to and explanations on its organisation, functioning, IT system, algorithms, data-handling and business conducts. The Commission and auditors or experts appointed by it and the national competent authority of the Member State, enforcing the rules referred to in Article 1(6) in whose territory the inspection is to be conducted may address questions to any representative or member of staff.

5.   The officials and other accompanying persons authorised by the Commission to conduct an inspection shall exercise their powers upon production of a written authorisation specifying the subject matter and purpose of the inspection and the fines provided for in Article 30 applicable in the event that the production of the required books or other records related to the business is incomplete or where the answers to questions asked under paragraphs 2 and 4 of this Article are incorrect or misleading. In good time before the inspection, the Commission shall give notice of the inspection to the national competent authority of the Member State enforcing the rules referred to in Article 1(6) in whose territory it is to be conducted.

6.   Undertakings or associations of undertakings are required to submit to an inspection ordered by a Commission decision. That decision shall specify the subject matter and purpose of the inspection, set the date on which it is to begin and indicate the fines and periodic penalty payments provided for in Articles 30 and 31 respectively, and the right to have that decision reviewed by the Court of Justice.

7.   Officials of, and the persons authorised or appointed by, the national competent authority of the Member State enforcing the rules referred to in Article 1(6) in whose territory the inspection is to be conducted shall, at the request of that authority or of the Commission, actively assist the officials and other accompanying persons authorised by the Commission. To this end, they shall enjoy the powers set out in paragraphs 2 and 4 of this Article.

8.   Where the officials and other accompanying persons authorised by the Commission find that an undertaking or association of undertakings opposes an inspection ordered pursuant to this Article, the Member State concerned shall afford them the necessary assistance, requesting, where appropriate, the assistance of the police or of an equivalent enforcement authority, so as to enable them to conduct their inspection.

9.   If, according to national rules, the assistance provided for in paragraph 8 of this Article requires authorisation from a judicial authority, the Commission or the national competent authority of the Member State enforcing the rules referred to in Article 1(6) or officials authorised by those authorities shall apply for it. Such authorisation may also be applied for as a precautionary measure.

10.   Where authorisation referred to in paragraph 9 of this Article is applied for, the national judicial authority shall verify that the Commission decision is authentic and that the coercive measures envisaged are neither arbitrary nor excessive having regard to the subject matter of the inspection. In its control of the proportionality of the coercive measures, the national judicial authority may ask the Commission, directly or through the national competent authority of the Member State, enforcing the rules referred to in Article 1(6), for detailed explanations in particular on the grounds the Commission has for suspecting infringement of this Regulation, as well as on the seriousness of the suspected infringement and on the nature of the involvement of the undertaking concerned. However, the national judicial authority may not call into question the necessity of the inspection nor demand that it be provided with the information in the file of the Commission. The lawfulness of the Commission decision shall be subject to review only by the Court of Justice.