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 cercato: 'assessment' . Output generated live by software developed by IusOnDemand srl


expand index assessment:


whereas assessment:


definitions:


cloud tag: and the number of total unique words without stopwords is: 975

 

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 9

Suspension

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.

Article 10

Exemption for grounds of public health and public security

1.   The Commission may, acting on a reasoned request by a gatekeeper or on its own initiative, adopt an implementing act setting out its decision, to exempt that gatekeeper, in whole or in part, from a specific obligation laid down in Article 5, 6 or 7 in relation to a core_platform_service listed in the designation decision pursuant to Article 3(9), where such exemption is justified on the grounds set out in paragraph 3 of this Article (‘the exemption decision’). The Commission shall adopt the exemption decision within 3 months after receiving a complete reasoned request and shall provide a reasoned statement explaining the grounds for the exemption. That implementing act shall be adopted in accordance with the advisory procedure referred to in Article 50(2).

2.   Where an exemption is granted pursuant to paragraph 1, the Commission shall review its exemption decision if the ground for the exemption no longer exists or at least every year. Following such a review, the Commission shall either wholly or partially lift the exemption, or decide that the conditions of paragraph 1 continue to be met.

3.   An exemption pursuant to paragraph 1 may only be granted on grounds of public health or public security.

4.   In cases of urgency, the Commission may, acting on a reasoned request by a gatekeeper or on its own initiative, 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.

5.   In assessing the request referred to in paragraphs 1 and 4, the Commission shall take into account, in particular, the impact of the compliance with the specific obligation on the grounds in paragraph 3, as well as the effects on the gatekeeper concerned and on third parties. The Commission may subject the suspension to conditions and obligations in order to ensure a fair balance between the goals pursued by the grounds in paragraph 3 and the objectives of this Regulation.

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 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.

Article 39

Cooperation with national_courts

1.   In proceedings for the application of this Regulation, national_courts may ask the Commission to transmit to them information in its possession or its opinion on questions concerning the application of this Regulation.

2.   Member States shall forward to the Commission a copy of any written judgment of national_courts deciding on the application of this Regulation. Such copy shall be forwarded without delay after the full written judgment is notified to the parties.

3.   Where the coherent application of this Regulation so requires, the Commission, acting on its own initiative, may submit written observations to national_courts. With the permission of the court in question, it may also make oral observations.

4.   For the purpose of the preparation of their observations only, the Commission may request the relevant national_court to transmit or ensure the transmission to the Commission of any documents necessary for the assessment of the case.

5.   National courts shall not give a decision which runs counter to a decision adopted by the Commission under this Regulation. They shall also avoid giving decisions which would conflict with a decision contemplated by the Commission in proceedings it has initiated under this Regulation. To that effect, the national_court may assess whether it is necessary to stay its proceedings. This is without prejudice to the possibility for national_courts to request a preliminary ruling under Article 267 TFEU.

Article 40

The high-level group

1.   The Commission shall establish a high-level group for the Digital Markets Act (‘the high-level group’).

2.   The high-level group shall be composed of the following European bodies and networks:

(a)

Body of the European Regulators for Electronic Communications;

(b)

European Data Protection Supervisor and European Data Protection Board;

(c)

European Competition Network;

(d)

Consumer Protection Cooperation Network; and

(e)

European Regulatory Group of Audiovisual Media Regulators.

3.   The European bodies and networks referred to in paragraph 2 shall each have an equal number of representatives in the high-level group. The maximum number of members of the high-level group shall not exceed 30.

4.   The Commission shall provide secretariat services to the high-level group in order to facilitate its work. The high-level group shall be chaired by the Commission, which shall participate in its meetings. The high-level group shall meet upon request of the Commission at least once per calendar year. The Commission shall also convene a meeting of the group when so requested by the majority of the members composing the group in order to address a specific issue.

5.   The high-level group may provide the Commission with advice and expertise in the areas falling within the competences of its members, including:

(a)

advice and recommendations within their expertise relevant for any general matter of implementation or enforcement of this Regulation; or

(b)

advice and expertise promoting a consistent regulatory approach across different regulatory instruments.

6.   The high-level group may, in particular, identify and assess the current and potential interactions between this Regulation and the sector-specific rules applied by the national authorities composing the European bodies and networks referred to in paragraph 2 and submit an annual report to the Commission presenting such assessment and identifying potential trans-regulatory issues. Such report may be accompanied by recommendations aiming at converging towards consistent transdisciplinary approaches and synergies between the implementation of this Regulation and other sectoral regulations. The report shall be communicated to the European Parliament and to the Council.

7.   In the context of market investigations into new services and new practices, the high-level group may provide expertise to the Commission on the need to amend, add or remove rules in this Regulation, to ensure that digital markets across the Union are contestable and fair.

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 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

1.

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.

2.

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

3.

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’

1.

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:

a.

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.

b.

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.

2.

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

1.

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).

b.

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.

2.

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

a.

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.

b.

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).

c.

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_arrow_down