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
- 2 Article 8 Compliance with obligations for gatekeepers
- 1 Article 17 Market investigation for designating gatekeepers
- 2 Article 18 Market investigation into systematic non-compliance
- 1 Article 25 Commitments
- 1 Article 29 Non-compliance
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
- commission 69
- shall 58
- gatekeeper 52
- article 51
- undertaking 34
- pursuant 32
- paragraph 32
- decision 26
- within 24
- core_platform_services 22
- measures 18
- market 18
- article 18
- laid 17
- providing 17
- down 17
- referred 16
- relevant 16
- the 16
- non-compliance 16
- obligations 15
- accordance 14
- preliminary 14
- and 14
- which 14
- findings 14
- investigation 13
- such 13
- paragraph 13
- concerned 12
- from 12
- thresholds 12
- adopt 11
- ensure 11
- months 11
- procedure 11
- implementing 10
- commitments 10
- information 10
- order 10
- proceedings 10
- compliance 9
- core_platform_service 9
- effective 9
- in 8
- considers 8
- provide 8
- articles 8
- provided 8
- whether 8
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 8
Compliance with obligations for gatekeepers
1. The gatekeeper shall ensure and demonstrate compliance with the obligations laid down in Articles 5, 6 and 7 of this Regulation. The measures implemented by the gatekeeper to ensure compliance with those Articles shall be effective in achieving the objectives of this Regulation and of the relevant obligation. The gatekeeper shall ensure that the implementation of those measures complies with applicable law, in particular Regulation (EU) 2016/679, Directive 2002/58/EC, legislation on cyber security, consumer protection, product safety, as well as with the accessibility requirements.
2. The Commission may, on its own initiative or at the request of a gatekeeper pursuant to paragraph 3 of this Article, open proceedings pursuant to Article 20.
The Commission may adopt an implementing act, specifying the measures that the gatekeeper concerned is to implement in order to effectively comply with the obligations laid down in Articles 6 and 7. That implementing act shall be adopted within 6 months from the opening of proceedings pursuant to Article 20 in accordance with the advisory procedure referred to in Article 50(2).
When opening proceedings on its own initiative for circumvention pursuant to Article 13, such measures may concern the obligations laid down in Articles 5, 6 and 7.
3. A gatekeeper may request the Commission to engage in a process to determine whether the measures that that gatekeeper intends to implement or has implemented to ensure compliance with Articles 6 and 7 are effective in achieving the objective of the relevant obligation in the specific circumstances of the gatekeeper. The Commission shall have discretion in deciding whether to engage in such a process, respecting the principles of equal treatment, proportionality and good administration.
In its request, the gatekeeper shall provide a reasoned submission to explain the measures that it intends to implement or has implemented. The gatekeeper shall furthermore provide a non-confidential version of its reasoned submission that may be shared with third parties pursuant to paragraph 6.
4. Paragraphs 2 and 3 of this Article are without prejudice to the powers of the Commission under Articles 29, 30 and 31.
5. With a view of adopting the decision under paragraph 2, the Commission shall communicate its preliminary findings to the gatekeeper within 3 months from the opening of the proceedings under Article 20. In the preliminary findings, the Commission shall explain the measures that it is considering taking or that it considers the gatekeeper concerned should take in order to effectively address the preliminary findings.
6. In order to effectively enable interested third parties to provide comments, the Commission shall, when communicating its preliminary findings to the gatekeeper pursuant to paragraph 5 or as soon as possible thereafter, publish a non-confidential summary of the case and the measures that it is considering taking or that it considers the gatekeeper concerned should take. The Commission shall specify a reasonable timeframe within which such comments are to be provided.
7. In specifying the measures under paragraph 2, the Commission shall ensure that the measures are effective in achieving the objectives of this Regulation and the relevant obligation, and proportionate in the specific circumstances of the gatekeeper and the relevant service.
8. For the purposes of specifying the obligations under Article 6(11) and (12), the Commission shall also assess whether the intended or implemented measures ensure that there is no remaining imbalance of rights and obligations on business_users and that the measures do not themselves confer an advantage on the gatekeeper which is disproportionate to the service provided by the gatekeeper to business_users.
9. In respect of proceedings pursuant to paragraph 2, the Commission may, upon request or on its own initiative, decide to reopen them where:
| (a) | there has been a material change in any of the facts on which the decision was based; or |
| (b) | the decision was based on incomplete, incorrect or misleading information; or |
| (c) | the measures as specified in the decision are not effective. |
Article 17
Market investigation for designating gatekeepers
1. The Commission may conduct a market investigation for the purpose of examining whether an undertaking providing core_platform_services should be designated as a gatekeeper pursuant to Article 3(8), or in order to identify the core_platform_services to be listed in the designation decision pursuant to Article 3(9). The Commission shall endeavour to conclude its market investigation within 12 months from the date referred to in Article 16(3), point (a), In order to conclude its market investigation, the Commission shall adopt an implementing act setting out its decision. That implementing act shall be adopted in accordance with the advisory procedure referred to in Article 50(2).
2. In the course of a market investigation pursuant to paragraph 1 of this Article, the Commission shall endeavour to communicate its preliminary findings to the undertaking providing core_platform_services concerned within 6 months from the date referred to in Article 16(3), point (a). In the preliminary findings, the Commission shall explain whether it considers, on a provisional basis, that it is appropriate for that undertaking to be designated as a gatekeeper pursuant to Article 3(8), and for the relevant core_platform_services to be listed pursuant to Article 3(9).
3. Where the undertaking providing core_platform_services satisfies the thresholds set out in Article 3(2), but has presented sufficiently substantiated arguments in accordance with Article 3(5) that have manifestly called into question the presumption in Article 3(2), the Commission shall endeavour to conclude the market investigation within 5 months from the date referred to in Article 16(3), point (a).
In such a case, the Commission shall endeavour to communicate its preliminary findings pursuant to paragraph 2 of this Article to the undertaking concerned within 3 months from the date referred to in Article 16(3), point (a).
4. When the Commission, pursuant to Article 3(8), designates as a gatekeeper an undertaking providing core_platform_services that does not yet enjoy an entrenched and durable position in its operations, but which will foreseeably enjoy such a position in the near future, it may declare applicable to that gatekeeper only one or more of the obligations laid down in Article 5(3) to (6) and Article 6(4), (7), (9), (10) and (13), as specified in the designation decision. The Commission shall only declare applicable those obligations that are appropriate and necessary to prevent the gatekeeper concerned from achieving, by unfair means, an entrenched and durable position in its operations. The Commission shall review such a designation in accordance with the procedure laid down in Article 4.
Article 18
Market investigation into systematic non-compliance
1. The Commission may conduct a market investigation for the purpose of examining whether a gatekeeper has engaged in systematic non-compliance. The Commission shall conclude that market investigation within 12 months from the date referred to in Article 16(3), point (a). Where the market investigation shows that a gatekeeper has systematically infringed one or more of the obligations laid down in Article 5, 6 or 7 and has maintained, strengthened or extended its gatekeeper position in relation to the requirements set out in Article 3(1), the Commission may adopt an implementing act imposing on such gatekeeper any behavioural or structural remedies which are proportionate and necessary to ensure effective compliance with this Regulation. That implementing act shall be adopted in accordance with the advisory procedure referred to in Article 50(2).
2. The remedy imposed in accordance with paragraph 1 of this Article may include, to the extent that such remedy is proportionate and necessary in order to maintain or restore fairness and contestability as affected by the systematic non-compliance, the prohibition, during a limited period, for the gatekeeper to enter into a concentration within the meaning of Article 3 of Regulation (EC) No 139/2004 regarding the core_platform_services or the other services provided in the digital_sector or enabling the collection of data that are affected by the systematic non-compliance.
3. A gatekeeper shall be deemed to have engaged in systematic non-compliance with the obligations laid down in Articles 5, 6 and 7, where the Commission has issued at least three non-compliance decisions pursuant to Article 29 against a gatekeeper in relation to any of its core_platform_services within a period of 8 years prior to the adoption of the decision opening a market investigation in view of the possible adoption of a decision pursuant to this Article.
4. The Commission shall communicate its preliminary findings to the gatekeeper concerned within 6 months from the date referred to in Article 16(3), point (a). In its preliminary findings, the Commission shall explain whether it preliminarily considers that the conditions of paragraph 1 of this Article are met and which remedy or remedies it preliminarily considers necessary and proportionate.
5. In order to enable interested third parties to effectively provide comments, the Commission shall, at the same time as communicating its preliminary findings to the gatekeeper pursuant to paragraph 4 or as soon as possible thereafter, publish a non-confidential summary of the case and the remedies that it is considering imposing. The Commission shall specify a reasonable timeframe within which such comments are to be provided.
6. Where the Commission intends to adopt a decision pursuant to paragraph 1 of this Article by making commitments offered by the gatekeeper pursuant to Article 25 binding, it shall publish a non-confidential summary of the case and the main content of the commitments. Interested third parties may submit their comments within a reasonable timeframe which shall be set by the Commission.
7. In the course of the market investigation, the Commission may extend its duration where such extension is justified on objective grounds and proportionate. The extension may apply to the deadline by which the Commission has to issue its preliminary findings, or to the deadline for adoption of the final decision. The total duration of any extension or extensions pursuant to this paragraph shall not exceed 6 months.
8. In order to ensure effective compliance by the gatekeeper with its obligations laid down in Articles 5, 6 and 7, the Commission shall regularly review the remedies that it imposes in accordance with paragraphs 1 and 2 of this Article. The Commission shall be entitled to modify those remedies if, following a new market investigation, it finds that they are not effective.
Article 25
Commitments
1. If, during proceedings under Article 18, the gatekeeper concerned offers commitments for the relevant core_platform_services to ensure compliance with the obligations laid down in Articles 5, 6 and 7 the Commission may adopt an implementing act making those commitments binding on that gatekeeper and declare that there are no further grounds for action. That implementing act shall be adopted in accordance with the advisory procedure referred to in Article 50(2).
2. The Commission may, upon request or on its own initiative, reopen by decision the relevant proceedings, where:
| (a) | there has been a material change in any of the facts on which the decision was based; |
| (b) | the gatekeeper concerned acts contrary to its commitments; |
| (c) | the decision was based on incomplete, incorrect or misleading information provided by the parties; |
| (d) | the commitments are not effective. |
3. If the Commission considers that the commitments submitted by the gatekeeper concerned cannot ensure effective compliance with the obligations laid down in Articles 5, 6 and 7, it shall explain the reasons for not making those commitments binding in the decision concluding the relevant proceedings.
Article 29
Non-compliance
1. The Commission shall adopt an implementing act setting out its finding of non-compliance (‘the non-compliance decision’) where it finds that a gatekeeper does not comply with one or more of the following:
| (a) | any of the obligations laid down in Article 5, 6 or 7; |
| (b) | measures specified by the Commission in a decision adopted pursuant to Article 8(2); |
| (c) | remedies imposed pursuant to Article 18(1); |
| (d) | interim measures ordered pursuant to Article 24; or |
| (e) | commitments made legally binding pursuant to Article 25. |
That implementing act shall be adopted in accordance with the advisory procedure referred to in Article 50(2).
2. The Commission shall endeavour to adopt its non-compliance decision within 12 months from the opening of proceedings pursuant to Article 20.
3. Before adopting the non-compliance decision, the Commission shall communicate its preliminary findings to the gatekeeper concerned. In those preliminary findings, the Commission shall explain the measures it is considering taking or that it considers that the gatekeeper should take in order to effectively address the preliminary findings.
4. Where it intends to adopt a non-compliance decision, the Commission may consult third parties.
5. In the non-compliance decision, the Commission shall order the gatekeeper to cease and desist with the non-compliance within an appropriate deadline and to provide explanations on how it plans to comply with that decision.
6. The gatekeeper shall provide the Commission with the description of the measures that it has taken to ensure compliance with the non-compliance decision.
7. Where the Commission decides not to adopt a non-compliance decision, it shall close the proceedings by a decision.
whereas