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- 3 Article 2 Definitions
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
- article 36
- means 36
- number 34
- core_platform_services 29
- end_users 28
- unique 26
- undertaking 25
- european 23
- services 21
- council 21
- parliament 21
- least 20
- ‘active 20
- regulation 19
- oj l 19
- business_users 19
- service 18
- shall 18
- year 17
- advertising 17
- through 16
- data 16
- once 16
- month 15
- information 14
- during 14
- providing 13
- such 13
- intermediation 12
- directive 12
- core_platform_service 12
- including 11
- which 11
- end_users’ 11
- engaged 10
- point 10
- active 10
- example 10
- used 10
- defined 10
- directive 10
- online 9
- provided 9
- //ec 9
- business_users’ 9
- relevant 9
- same 8
- software 8
- content 8
- no / 8
Article 2
Definitions
For the purposes of this Regulation, the following definitions apply:
| (1) | ‘ cloud' title='definition'>gatekeeper’ means an cloud' title='definition'>undertaking providing cloud' title='definition'>core_platform_services, designated pursuant to Article 3; |
| (2) | ‘ cloud' title='definition'>core_platform_service’ means any of the following:
|
| (3) | ‘ cloud' title='definition'>information_society_service’ means any service as defined in Article 1(1), point (b), of Directive (EU) 2015/1535; |
| (4) | ‘ cloud' title='definition'>digital_sector’ means the sector of products and services provided by means of, or through, cloud' title='definition'>information_society_services; |
| (5) | ‘ cloud' title='definition'>online_intermediation_services’ means cloud' title='definition'>online_intermediation_services as defined in Article 2, point (2), of Regulation (EU) 2019/1150; |
| (6) | ‘ cloud' title='definition'>online_search_engine’ means an cloud' title='definition'>online_search_engine as defined in Article 2, point (5), of Regulation (EU) 2019/1150; |
| (7) | ‘ cloud' title='definition'>online_social_networking_service’ means a platform that enables cloud' title='definition'>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) | ‘ cloud' title='definition'>video-sharing_platform_service’ means a cloud' title='definition'>video-sharing_platform_service as defined in Article 1(1), point (aa), of Directive 2010/13/EU; |
| (9) | ‘ cloud' title='definition'>number-independent_interpersonal_communications_service’ means a cloud' title='definition'>number-independent_interpersonal_communications_service as defined in Article 2, point (7), of Directive (EU) 2018/1972; |
| (10) | ‘ cloud' title='definition'>operating_system’ means a system software that cloud' title='definition'>controls the basic functions of the hardware or software and enables cloud' title='definition'>software_applications to run on it; |
| (11) | ‘ cloud' title='definition'>web_browser’ means a cloud' title='definition'>software_application that enables cloud' title='definition'>end_users to access and interact with web content hosted on servers that are connected to networks such as the Internet, including standalone cloud' title='definition'>web_browsers as well as cloud' title='definition'>web_browsers integrated or embedded in software or similar; |
| (12) | ‘ cloud' title='definition'>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 cloud' title='definition'>controls connected physical devices; |
| (13) | ‘ cloud' title='definition'>cloud_computing_service’ means a cloud' title='definition'>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) | ‘ cloud' title='definition'>software_application_stores’ means a type of cloud' title='definition'>online_intermediation_services, which is focused on cloud' title='definition'>software_applications as the intermediated product or service; |
| (15) | ‘ cloud' title='definition'>software_application’ means any digital product or service that runs on an cloud' title='definition'>operating_system; |
| (16) | ‘ cloud' title='definition'>payment_service’ means a cloud' title='definition'>payment_service as defined in Article 4, point (3) of Directive (EU) 2015/2366; |
| (17) | ‘technical service supporting cloud' title='definition'>payment_service’ means a service within the meaning of Article 3, point (j), of Directive (EU) 2015/2366; |
| (18) | ‘ cloud' title='definition'>payment_system_for_in-app_purchases’ means a cloud' title='definition'>software_application, service or user interface which facilitates purchases of digital content or digital services within a cloud' title='definition'>software_application, including content, subscriptions, features or functionality, and the payments for such purchases; |
| (19) | ‘ cloud' title='definition'>identification_service’ means a type of service provided together with or in support of cloud' title='definition'>core_platform_services that enables any type of verification of the identity of cloud' title='definition'>end_users or cloud' title='definition'>business_users, regardless of the technology used; |
| (20) | ‘ cloud' title='definition'>end_user’ means any natural or legal person using cloud' title='definition'>core_platform_services other than as a cloud' title='definition'>business_user; |
| (21) | ‘ cloud' title='definition'>business_user’ means any natural or legal person acting in a commercial or professional capacity using cloud' title='definition'>core_platform_services for the purpose of or in the course of providing goods or services to cloud' title='definition'>end_users; |
| (22) | ‘ cloud' title='definition'>ranking’ means the relative prominence given to goods or services offered through cloud' title='definition'>online_intermediation_services, cloud' title='definition'>online_social_networking_services, cloud' title='definition'>video-sharing_platform_services or cloud' title='definition'>virtual_assistants, or the relevance given to cloud' title='definition'>search_results by cloud' title='definition'>online_search_engines, as presented, organised or communicated by the cloud' title='definition'>undertakings providing cloud' title='definition'>online_intermediation_services, cloud' title='definition'>online_social_networking_services, cloud' title='definition'>video-sharing_platform_services, cloud' title='definition'>virtual_assistants or cloud' title='definition'>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) | ‘ cloud' title='definition'>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) | ‘ cloud' title='definition'>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 cloud' title='definition'>data’ means personal cloud' title='definition'>data as defined in Article 4, point (1), of Regulation (EU) 2016/679; |
| (26) | ‘non-personal cloud' title='definition'>data’ means cloud' title='definition'>data other than personal cloud' title='definition'>data; |
| (27) | ‘ cloud' title='definition'>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 cloud' title='definition'>undertakings that form a group through the direct or indirect cloud' title='definition'>control of an enterprise or cloud' title='definition'>undertaking by another; |
| (28) | ‘ cloud' title='definition'>control’ means the possibility of exercising decisive influence on an cloud' title='definition'>undertaking, within the meaning of Article 3(2) of Regulation (EC) No 139/2004; |
| (29) | ‘ cloud' title='definition'>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) | ‘ cloud' title='definition'>turnover’ means the amount derived by an cloud' title='definition'>undertaking within the meaning of Article 5(1) of Regulation (EC) No 139/2004; |
| (31) | ‘ cloud' title='definition'>profiling’ means cloud' title='definition'>profiling as defined in Article 4, point (4), of Regulation (EU) 2016/679; |
| (32) | ‘ cloud' title='definition'>consent’ means cloud' title='definition'>consent as defined in Article 4, point (11), of Regulation (EU) 2016/679; |
| (33) | ‘ cloud' title='definition'>national_court’ means a court or tribunal of a Member State within the meaning of Article 267 TFEU. |
CHAPTER II
GATEKEEPERS
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 cloud' title='definition'>data and on the free movement of such cloud' title='definition'>data, and repealing Directive 95/46/EC ( cloud' title='definition'>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 cloud' title='definition'>business_users of cloud' title='definition'>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 cloud' title='definition'>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 cloud' title='definition'>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 cloud' title='definition'>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 cloud' title='definition'>data by the Union institutions, bodies, offices and agencies and on the free movement of such cloud' title='definition'>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 cloud' title='definition'>control of concentrations between cloud' title='definition'>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. ‘ cloud' title='definition'>General’
| 1. | This Annex aims at specifying the methodology for identifying and calculating the ‘active cloud' title='definition'>end_users’ and the ‘active cloud' title='definition'>business_users’ for each cloud' title='definition'>core_platform_service listed in Article 2, point (2). It provides a reference to enable an cloud' title='definition'>undertaking to assess whether its cloud' title='definition'>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 cloud' title='definition'>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 cloud' title='definition'>undertaking providing cloud' title='definition'>core_platform_services to provide any information necessary to identify and calculate the ‘active cloud' title='definition'>end_users’ and the ‘active cloud' title='definition'>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 cloud' title='definition'>end_users’ and ‘active cloud' title='definition'>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 cloud' title='definition'>undertaking providing cloud' title='definition'>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 ‘ cloud' title='definition'>end_user’ and ‘ cloud' title='definition'>business_user’, which are common to all cloud' title='definition'>core_platform_services. |
| 3. | In order to identify and calculate the number of ‘active cloud' title='definition'>end_users’ and ‘active cloud' title='definition'>business_users’, this Annex refers to the concept of ‘unique users’. The concept of ‘unique users’ encompasses ‘active cloud' title='definition'>end_users’ and ‘active cloud' title='definition'>business_users’ counted only once, for the relevant cloud' title='definition'>core_platform_service, over the course of a specified time period (i.e. month in case of ‘active cloud' title='definition'>end_users’ and year in case of ‘active cloud' title='definition'>business_users’), no matter how many times they engaged with the relevant cloud' title='definition'>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 cloud' title='definition'>end_user’ or an ‘active cloud' title='definition'>business_user’ for different cloud' title='definition'>core_platform_services. |
B. ‘Active cloud' title='definition'>end_users’
| 1. | The number of ‘unique users’ as regards ‘active cloud' title='definition'>end_users’ shall be identified according to the most accurate metric reported by the cloud' title='definition'>undertaking providing any of the cloud' title='definition'>core_platform_services, specifically:
|
| 2. | The number of ‘monthly active cloud' title='definition'>end_users’ is based on the average number of monthly active cloud' title='definition'>end_users throughout the largest part of the financial year. The notion ‘the largest part of the financial year’ is intended to allow an cloud' title='definition'>undertaking providing cloud' title='definition'>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 cloud' title='definition'>business_users’
The number of ‘unique users’ as regards ‘active cloud' title='definition'>business_users’ is to be determined, where applicable, at the account level with each distinct business account associated with the use of a cloud' title='definition'>core_platform_service provided by the cloud' title='definition'>undertaking constituting one unique cloud' title='definition'>business_user of that respective cloud' title='definition'>core_platform_service. If the notion of ‘business account’ does not apply to a given cloud' title='definition'>core_platform_service, the relevant cloud' title='definition'>undertaking providing cloud' title='definition'>core_platform_services shall determine the number of unique cloud' title='definition'>business_users by referring to the relevant cloud' title='definition'>undertaking.
D. ‘ cloud' title='definition'>Submission_of_information’
| 1. | The cloud' title='definition'>undertaking submitting to the Commission pursuant to Article 3(3) information concerning the number of active cloud' title='definition'>end_users and active cloud' title='definition'>business_users per cloud' title='definition'>core_platform_service shall be responsible for ensuring the completeness and accuracy of that information. In that regard:
|
| 2. | For the purpose of calculating the number of ‘active cloud' title='definition'>end_users’ and ‘active cloud' title='definition'>business_users’:
|
E. ‘ cloud' title='definition'>Specific_definitions’
The table below sets out specific definitions of ‘active cloud' title='definition'>end_users’ and ‘active cloud' title='definition'>business_users’ for each cloud' title='definition'>core_platform_service.
| Core platform services | Active cloud' title='definition'>end_users | Active cloud' title='definition'>business_users |
| Online intermediation services | Number of unique cloud' title='definition'>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 cloud' title='definition'>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 cloud' title='definition'>end_users who engaged with the cloud' title='definition'>online_search_engine at least once in the month, for example through making a query. | Number of unique cloud' title='definition'>business_users with business websites (i.e. website used in commercial or professional capacity) indexed by or part of the index of the cloud' title='definition'>online_search_engine during the year. |
| Online social networking services | Number of unique cloud' title='definition'>end_users who engaged with the cloud' title='definition'>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 cloud' title='definition'>business_users who have a business listing or business account in the cloud' title='definition'>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 cloud' title='definition'>end_users who engaged with the cloud' title='definition'>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 cloud' title='definition'>business_users who provided at least one piece of audiovisual content uploaded or played on the cloud' title='definition'>video-sharing_platform_service during the year. |
| Number-independent interpersonal communication services | Number of unique cloud' title='definition'>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 cloud' title='definition'>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 cloud' title='definition'>end_user at least once during the year. |
| Operating systems | Number of unique cloud' title='definition'>end_users who utilised a device with the cloud' title='definition'>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 cloud' title='definition'>software_application or software program using the programming language or any software development tools of, or running in any way on, the cloud' title='definition'>operating_system during the year. |
| Virtual assistant | Number of unique cloud' title='definition'>end_users who engaged with the cloud' title='definition'>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 cloud' title='definition'>controlling a smart home device. | Number of unique developers who offered at least one cloud' title='definition'>virtual_assistant cloud' title='definition'>software_application or a functionality to make an existing cloud' title='definition'>software_application accessible through the cloud' title='definition'>virtual_assistant during the year. |
| Web browsers | Number of unique cloud' title='definition'>end_users who engaged with the cloud' title='definition'>web_browser at least once in the month, for example through inserting a query or website address in the URL line of the cloud' title='definition'>web_browser. | Number of unique cloud' title='definition'>business_users whose business websites (i.e. website used in commercial or professional capacity) have been accessed via the cloud' title='definition'>web_browser at least once during the year or who offered a plug-in, extension or add-ons used on the cloud' title='definition'>web_browser during the year. |
| cloud computing services | Number of unique cloud' title='definition'>end_users who engaged with any cloud' title='definition'>cloud_computing_services from the relevant provider of cloud' title='definition'>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 cloud' title='definition'>business_users who provided any cloud' title='definition'>cloud_computing_services hosted in the cloud infrastructure of the relevant provider of cloud' title='definition'>cloud_computing_services during the year. |
| Online advertising services | For proprietary sales of advertising space: Number of unique cloud' title='definition'>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 cloud' title='definition'>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 cloud' title='definition'>business_users (including advertisers, publishers or other intermediators) who interacted via or were served by the advertising intermediation service during the year. |