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
- 1 Article 3 Designation of gatekeepers
- 1 Article 6 Obligations for gatekeepers susceptible of being further specified under Article 8
- 1 Article 14 Obligation to inform about concentrations
- 1 Article 28 Compliance function
- 2 Article 35 Annual reporting
CHAPTER I
SUBJECT MATTER, SCOPE AND DEFINITIONS
CHAPTER II
GATEKEEPERS
CHAPTER III
PRACTICES OF GATEKEEPERS THAT LIMIT CONTESTABILITY OR ARE UNFAIR
CHAPTER IV
MARKET INVESTIGATION
CHAPTER V
INVESTIGATIVE, ENFORCEMENT AND MONITORING POWERS
CHAPTER VI
FINAL PROVISIONS
- gatekeeper
- core platform service
- information society service
- digital sector
- online intermediation services
- online search engine
- online social networking service
- video-sharing platform service
- number-independent interpersonal communications service
- operating system
- web browser
- virtual assistant
- cloud computing service
- software application stores
- software application
- payment service
- technical service supporting payment service
- payment system for in-app purchases
- identification service
- end user
- business user
- ranking
- search results
- data
- personal data
- non-personal data
- undertaking
- control
- interoperability
- turnover
- profiling
- consent
- national court
- General
- Active end users
- Active business users
- Submission of information
- Specific definitions
- gatekeeper 71
- shall 64
- commission 36
- the 31
- undertaking 29
- paragraph 29
- core_platform_services 27
- data 26
- article 24
- provided 23
- end_users 21
- pursuant 19
- relevant 19
- compliance 18
- regulation 18
- including 18
- such 17
- services 16
- providing 16
- business_users 16
- paragraph 14
- information 13
- access 13
- management 12
- article 12
- thresholds 12
- core_platform_service 12
- referred 11
- within 11
- from 11
- body 10
- concentration 10
- operating_system 10
- function 10
- measures 9
- which 9
- provide 9
- ensure 9
- software_applications 8
- without 8
- under 7
- free 7
- subparagraph 7
- each 7
- available 7
- request 7
- listed 7
- default 7
- designation 7
- generated 6
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 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 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 28
Compliance function
1. Gatekeepers shall introduce a compliance function, which is independent from the operational functions of the gatekeeper and composed of one or more compliance officers, including the head of the compliance function.
2. The gatekeeper shall ensure that the compliance function referred to in paragraph 1 has sufficient authority, stature and resources, as well as access to the management body of the gatekeeper to monitor the compliance of the gatekeeper with this Regulation.
3. The management body of the gatekeeper shall ensure that compliance officers appointed pursuant to paragraph 1 have the professional qualifications, knowledge, experience and ability necessary to fulfil the tasks referred to in paragraph 5.
The management body of the gatekeeper shall also ensure that such head of the compliance function is an independent senior manager with distinct responsibility for the compliance function.
4. The head of the compliance function shall report directly to the management body of the gatekeeper and may raise concerns and warn that body where risks of non-compliance with this Regulation arise, without prejudice to the responsibilities of the management body in its supervisory and managerial functions.
The head of the compliance function shall not be removed without prior approval of the management body of the gatekeeper.
5. Compliance officers appointed by the gatekeeper pursuant to paragraph 1 shall have the following tasks:
| (a) | organising, monitoring and supervising the measures and activities of the gatekeepers that aim to ensure compliance with this Regulation; |
| (b) | informing and advising the management and employees of the gatekeeper on compliance with this Regulation; |
| (c) | where applicable, monitoring compliance with commitments made binding pursuant to Article 25, without prejudice to the Commission being able to appoint independent external experts pursuant to Article 26(2); |
| (d) | cooperating with the Commission for the purpose of this Regulation. |
6. Gatekeepers shall communicate the name and contact details of the head of the compliance function to the Commission.
7. The management body of the gatekeeper shall define, oversee and be accountable for the implementation of the governance arrangements of the gatekeeper that ensure the independence of the compliance function, including the division of responsibilities in the organisation of the gatekeeper and the prevention of conflicts of interest.
8. The management body shall approve and review periodically, at least once a year, the strategies and policies for taking up, managing and monitoring the compliance with this Regulation.
9. The management body shall devote sufficient time to the management and monitoring of compliance with this Regulation. It shall actively participate in decisions relating to the management and enforcement of this Regulation and ensure that adequate resources are allocated to it.
Article 35
Annual reporting
1. The Commission shall submit to the European Parliament and to the Council an annual report on the implementation of this Regulation and the progress made towards achieving its objectives.
2. The report referred to in paragraph 1 shall include:
| (a) | a summary of the Commission’s activities including any adopted measures or decisions and ongoing market investigations in connection with this Regulation; |
| (b) | the findings resulting from the monitoring of the implementation by the gatekeepers of the obligations under this Regulation; |
| (c) | an assessment of the audited description referred to in Article 15; |
| (d) | an overview of the cooperation between the Commission and national authorities in connection with this Regulation; |
| (e) | an overview of the activities and tasks performed by the High Level Group of Digital Regulators, including how its recommendations as regards the enforcement of this Regulation are to be implemented. |
3. The Commission shall publish the report on its website.
whereas