search

keyboard_tab Digital Market Act 2022/1925 EN

 BG CS DA DE EL EN ES ET FI FR GA HR HU IT LV LT MT NL PL PT RO SK SL SV print pdf

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




whereas digital sector:


definitions:


cloud tag: and the number of total unique words without stopwords is: 797

 

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)

‘ 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 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 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 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 18

Market investigation into systematic non-compliance

1.   The Commission may conduct a market investigation for the purpose of examining whether a gatekeeper has engaged in systematic non-compliance. The Commission shall conclude that market investigation within 12 months from the date referred to in Article 16(3), point (a). Where the market investigation shows that a gatekeeper has systematically infringed one or more of the obligations laid down in Article 5, 6 or 7 and has maintained, strengthened or extended its gatekeeper position in relation to the requirements set out in Article 3(1), the Commission may adopt an implementing act imposing on such gatekeeper any behavioural or structural remedies which are proportionate and necessary to ensure effective compliance with this Regulation. That implementing act shall be adopted in accordance with the advisory procedure referred to in Article 50(2).

2.   The remedy imposed in accordance with paragraph 1 of this Article may include, to the extent that such remedy is proportionate and necessary in order to maintain or restore fairness and contestability as affected by the systematic non-compliance, the prohibition, during a limited period, for the gatekeeper to enter into a concentration within the meaning of Article 3 of Regulation (EC) No 139/2004 regarding the core_platform_services or the other services provided in the digital sector or enabling the collection of data that are affected by the systematic non-compliance.

3.   A gatekeeper shall be deemed to have engaged in systematic non-compliance with the obligations laid down in Articles 5, 6 and 7, where the Commission has issued at least three non-compliance decisions pursuant to Article 29 against a gatekeeper in relation to any of its core_platform_services within a period of 8 years prior to the adoption of the decision opening a market investigation in view of the possible adoption of a decision pursuant to this Article.

4.   The Commission shall communicate its preliminary findings to the gatekeeper concerned within 6 months from the date referred to in Article 16(3), point (a). In its preliminary findings, the Commission shall explain whether it preliminarily considers that the conditions of paragraph 1 of this Article are met and which remedy or remedies it preliminarily considers necessary and proportionate.

5.   In order to enable interested third parties to effectively provide comments, the Commission shall, at the same time as communicating its preliminary findings to the gatekeeper pursuant to paragraph 4 or as soon as possible thereafter, publish a non-confidential summary of the case and the remedies that it is considering imposing. The Commission shall specify a reasonable timeframe within which such comments are to be provided.

6.   Where the Commission intends to adopt a decision pursuant to paragraph 1 of this Article by making commitments offered by the gatekeeper pursuant to Article 25 binding, it shall publish a non-confidential summary of the case and the main content of the commitments. Interested third parties may submit their comments within a reasonable timeframe which shall be set by the Commission.

7.   In the course of the market investigation, the Commission may extend its duration where such extension is justified on objective grounds and proportionate. The extension may apply to the deadline by which the Commission has to issue its preliminary findings, or to the deadline for adoption of the final decision. The total duration of any extension or extensions pursuant to this paragraph shall not exceed 6 months.

8.   In order to ensure effective compliance by the gatekeeper with its obligations laid down in Articles 5, 6 and 7, the Commission shall regularly review the remedies that it imposes in accordance with paragraphs 1 and 2 of this Article. The Commission shall be entitled to modify those remedies if, following a new market investigation, it finds that they are not effective.

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 41

Request for a market investigation

1.   Three or more Member States may request the Commission to open a market investigation pursuant to Article 17 because they consider that there are reasonable grounds to suspect that an undertaking should be designated as a gatekeeper.

2.   One or more Member States may request the Commission to open a market investigation pursuant to Article 18 because they consider that there are reasonable grounds to suspect that a gatekeeper has systematically infringed one or more of the obligations laid down in Articles 5, 6 and 7 and has maintained, strengthened or extended its gatekeeper position in relation to the requirements under Article 3(1).

3.   Three or more Member States may request the Commission to conduct a market investigation pursuant to Article 19 because they consider that there are reasonable grounds to suspect that:

(a)

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

(b)

one or more practices are not effectively addressed by this Regulation and might limit the contestability of core_platform_services or be unfair.

4.   Member States shall submit evidence in support of their requests pursuant to paragraphs 1, 2 and 3. For requests pursuant to paragraph 3, such evidence may include information on newly introduced offers of products, services, software or features which raise concerns of contestability or fairness, whether implemented in the context of existing core_platform_services or otherwise.

5.   Within 4 months of receiving a request pursuant to this Article, the Commission shall examine whether there are reasonable grounds to open a market investigation pursuant to paragraph 1, 2 or 3. The Commission shall publish the results of its assessment.

Article 51

Amendment to Directive (EU) 2019/1937

In Point J of Part I of the Annex to Directive (EU) 2019/1937, the following point is added:

‘(iv)

Regulation (EU) 2022/1925 of the European Parliament and of the Council of 14 September 2022 on contestable and fair markets in the digital sector and amending Directives (EU) 2019/1937 and (EU) 2020/1828 (Digital Markets Act) (OJ L 265, 21.9.2022, p. 1).’

Article 52

Amendment to Directive (EU) 2020/1828

In Annex I to Directive (EU) 2020/1828, the following point is added:

‘(67)

Regulation (EU) 2022/1925 of the European Parliament and of the Council of 14 September 2022 on contestable and fair markets in the digital sector and amending Directives (EU) 2019/1937 and (EU) 2020/1828 (Digital Markets Act) (OJ L 265, 21.9.2022, p. 1).’

whereas
keyboard_arrow_down