Digital Market Act 2022/1925 EN

1. The purpose of this Regulation is to contribute to the proper functioning of the internal market by laying down harmonised rules ensuring for all businesses, contestable and fair markets in the digital_sector across the Union where gatekeepers are present, to the benefit of business_users and end_users.

2. This Regulation shall apply to core_platform_services provided or offered by gatekeepers to business_users established in the Union or end_users established or located in the Union, irrespective of the place of establishment or residence of the gatekeepers and irrespective of the law otherwise applicable to the provision of service.

3. This Regulation shall not apply to markets related to:

(a)	electronic communications networks as defined in Article 2, point (1), of Directive (EU) 2018/1972;

(b)	electronic communications services as defined in Article 2, point (4), of Directive (EU) 2018/1972, other than those related to number-independent_interpersonal_communications_services.

4. With regard to interpersonal communications services as defined in Article 2, point (5) of Directive (EU) 2018/1972, this Regulation is without prejudice to the powers and responsibilities granted to the national regulatory and other competent authorities by virtue of Article 61 of that Directive.

5. In order to avoid the fragmentation of the internal market, Member States shall not impose further obligations on gatekeepers by way of laws, regulations or administrative measures for the purpose of ensuring contestable and fair markets. Nothing in this Regulation precludes Member States from imposing obligations on undertakings, including undertakings providing core_platform_services, for matters falling outside the scope of this Regulation, provided that those obligations are compatible with Union law and do not result from the fact that the relevant undertakings have the status of a gatekeeper within the meaning of this Regulation.

6. This Regulation is without prejudice to the application of Articles 101 and 102 TFEU. It is also without prejudice to the application of:

(a)	national competition rules prohibiting anti-competitive agreements, decisions by associations of undertakings, concerted practices and abuses of dominant positions;

(b)	national competition rules prohibiting other forms of unilateral conduct insofar as they are applied to undertakings other than gatekeepers or amount to the imposition of further obligations on gatekeepers; and

(c)	Council Regulation (EC) No 139/2004 (23) and national rules concerning merger control.

7. National authorities shall not take decisions which run counter to a decision adopted by the Commission under this Regulation. The Commission and Member States shall work in close cooperation and coordinate their enforcement actions on the basis of the principles established in Articles 37 and 38.

Article 16

Opening of a market investigation

1. When the Commission intends to carry out a market investigation with a view to the possible adoption of decisions pursuant to Articles 17, 18 and 19 it shall adopt a decision opening a market investigation.

2. Notwithstanding paragraph 1, the Commission may exercise its investigative powers under this Regulation before opening a market investigation pursuant to that paragraph.

3. The decision referred to in paragraph 1 shall specify:

(a)	the date of opening of the market investigation;

(b)	the description of the issue to which the market investigation relates to;

(c)	the purpose of the market investigation.

4. The Commission may reopen a market investigation that it has closed where:

(a)	there has been a material change in any of the facts on which a decision adopted pursuant to Article 17, 18 or 19 was based; or

(b)	the decision adopted pursuant to Article 17, 18 or 19 was based on incomplete, incorrect or misleading information.

5. The Commission may ask one or more national competent authorities to assist it in its market investigation.

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 20

Opening of proceedings

1. Where the Commission intends to open proceedings with a view to the possible adoption of decisions pursuant to Articles 8, 29 and 30, it shall adopt a decision opening a proceeding.

2. Notwithstanding paragraph 1, the Commission may exercise its investigative powers under this Regulation before opening proceedings pursuant to that paragraph.

Article 26

Monitoring of obligations and measures

1. The Commission shall take the necessary actions to monitor the effective implementation and compliance with the obligations laid down in Articles 5, 6 and 7 and the decisions taken pursuant to Articles 8, 18, 24, 25 and 29. Those actions may include, in particular, the imposition of an obligation on the gatekeeper to retain all documents deemed to be relevant to assess the implementation of, and compliance with, those obligations and decisions.

2. The actions pursuant to paragraph 1 may include the appointment of independent external experts and auditors, as well as the appointment of officials from national competent authorities of the Member States, to assist the Commission to monitor the obligations and measures and to provide specific expertise or knowledge to the Commission.

Article 28

Compliance function

1. Gatekeepers shall introduce a compliance function, which is independent from the operational functions of the gatekeeper and composed of one or more compliance officers, including the head of the compliance function.

2. The gatekeeper shall ensure that the compliance function referred to in paragraph 1 has sufficient authority, stature and resources, as well as access to the management body of the gatekeeper to monitor the compliance of the gatekeeper with this Regulation.

3. The management body of the gatekeeper shall ensure that compliance officers appointed pursuant to paragraph 1 have the professional qualifications, knowledge, experience and ability necessary to fulfil the tasks referred to in paragraph 5.

The management body of the gatekeeper shall also ensure that such head of the compliance function is an independent senior manager with distinct responsibility for the compliance function.

4. The head of the compliance function shall report directly to the management body of the gatekeeper and may raise concerns and warn that body where risks of non-compliance with this Regulation arise, without prejudice to the responsibilities of the management body in its supervisory and managerial functions.

The head of the compliance function shall not be removed without prior approval of the management body of the gatekeeper.

5. Compliance officers appointed by the gatekeeper pursuant to paragraph 1 shall have the following tasks:

(a)	organising, monitoring and supervising the measures and activities of the gatekeepers that aim to ensure compliance with this Regulation;

(b)	informing and advising the management and employees of the gatekeeper on compliance with this Regulation;

(c)	where applicable, monitoring compliance with commitments made binding pursuant to Article 25, without prejudice to the Commission being able to appoint independent external experts pursuant to Article 26(2);

(d)	cooperating with the Commission for the purpose of this Regulation.

6. Gatekeepers shall communicate the name and contact details of the head of the compliance function to the Commission.

7. The management body of the gatekeeper shall define, oversee and be accountable for the implementation of the governance arrangements of the gatekeeper that ensure the independence of the compliance function, including the division of responsibilities in the organisation of the gatekeeper and the prevention of conflicts of interest.

8. The management body shall approve and review periodically, at least once a year, the strategies and policies for taking up, managing and monitoring the compliance with this Regulation.

9. The management body shall devote sufficient time to the management and monitoring of compliance with this Regulation. It shall actively participate in decisions relating to the management and enforcement of this Regulation and ensure that adequate resources are allocated to it.

Article 33

Limitation periods for the enforcement of penalties

1. The power of the Commission to enforce decisions taken pursuant to Articles 30 and 31 shall be subject to a limitation period of 5 years.

2. Time shall begin to run from the day on which the decision becomes final.

3. The limitation period for the enforcement of penalties shall be interrupted:

(a)	by notification of a decision varying the original amount of the fine or periodic penalty payment or refusing an application for variation; or

(b)	by any action of the Commission or of a Member State, acting at the request of the Commission, designed to enforce payment of the fine or periodic penalty payment.

4. Each interruption shall start time running afresh.

5. The limitation period for the enforcement of penalties shall be suspended for so long as:

(a)	time to pay is allowed; or

(b)	enforcement of payment is suspended pursuant to a decision of the Court of Justice or to a decision by a national_court.

Article 34

Right to be heard and access to the file

1. Before adopting a decision pursuant to Article 8, Article 9(1), Article 10(1), Articles 17, 18, 24, 25, 29 and 30 and Article 31(2), the Commission shall give the gatekeeper or undertaking or association of undertakings concerned the opportunity of being heard on:

(a)	preliminary findings of the Commission, including any matter to which the Commission has taken objection; and

(b)	measures that the Commission may intend to take in view of the preliminary findings pursuant to point (a) of this paragraph.

2. Gatekeepers, undertakings and associations of undertakings concerned may submit their observations to the Commission concerning the Commission’s preliminary findings within a time limit set by the Commission in its preliminary findings which may not be less than 14 days.

3. The Commission shall base its decisions only on preliminary findings, including any matter to which the Commission has taken objection, on which gatekeepers, undertakings and associations of undertakings concerned have been able to comment.

4. The rights of defence of the gatekeeper, undertaking or association of undertakings concerned shall be fully respected in any proceedings. The gatekeeper, undertaking or association of undertakings concerned shall be entitled to have access to the Commission's file under terms of disclosure, subject to the legitimate interest of undertakings in the protection of their business secrets. In the case of disagreement between the parties, the Commission may adopt decisions setting out those terms of disclosure. The right of access to the file of the Commission shall not extend to confidential information and internal documents of the Commission or the competent authorities of the Member States. In particular, the right of access shall not extend to correspondence between the Commission and the competent authorities of the Member States. Nothing in this paragraph shall prevent the Commission from disclosing and using information necessary to prove an infringement.

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 38

Cooperation and coordination with national competent authorities enforcing competition rules

1. The Commission and the national competent authorities of the Member States enforcing the rules referred to in Article 1(6) shall cooperate with each other and inform each other about their respective enforcement actions through the European Competition Network (ECN). They shall have the power to provide one another with any information regarding a matter of fact or of law, including confidential information. Where the competent authority is not a member of the ECN, the Commission shall make the necessary arrangements for cooperation and exchange of information on cases concerning the enforcement of this Regulation and the enforcement of cases referred to in Article 1(6) of such authorities. The Commission may lay down such arrangements in an implementing act as referred to in Article 46(1), point (l).

2. Where a national competent authority of the Member States enforcing the rules referred to in Article 1(6) intends to launch an investigation on gatekeepers based on national laws referred to in Article 1(6), it shall inform the Commission in writing of the first formal investigative measure, before or immediately after the start of such measure. This information may also be made available to the national competent authorities enforcing the rules referred to in Article 1(6) of the other Member States.

3. Where a national competent authority of the Member States enforcing the rules referred to in Article 1(6) intends to impose obligations on gatekeepers based on national laws referred to in Article 1(6), it shall, no later than 30 days before its adoption, communicate the draft measure to the Commission stating the reasons for the measure. In the case of interim measures, the national competent authority of the Member States enforcing the rules referred to in Article 1(6) shall communicate to the Commission the draft measures envisaged as soon as possible, and at the latest immediately after the adoption of such measures. This information may also be made available to the national competent authorities enforcing the rules referred to in Article 1(6) of the other Member States.

4. The information mechanisms provided for in paragraphs 2 and 3 shall not apply to decisions envisaged pursuant to national merger rules.

5. Information exchanged pursuant to paragraphs 1 to 3 of this Article shall only be exchanged and used for the purpose of coordination of the enforcement of this Regulation and the rules referred to in Article 1(6).

6. The Commission may ask national competent authorities of the Member States enforcing the rules referred to in Article 1(6) to support any of its market investigations pursuant to this Regulation.

7. Where it has the competence and investigative powers to do so under national law, a national competent authority of the Member States enforcing the rules referred to in Article 1(6) may, on its own initiative, conduct an investigation into a case of possible non-compliance with Articles 5, 6 and 7 of this Regulation on its territory. Before taking a first formal investigative measure, that authority shall inform the Commission in writing.

The opening of proceedings by the Commission pursuant to Article 20 shall relieve the national competent authorities of the Member States enforcing the rules referred to in Article 1(6) of the possibility to conduct such an investigation or end it where it is already ongoing. Those authorities shall report to the Commission on the findings of such investigation in order to support the Commission in its role as sole enforcer of this Regulation.

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 44

Publication of decisions

1. The Commission shall publish the decisions which it takes pursuant to Articles 3 and 4, Article 8(2), Articles 9, 10, 16 to 20 and 24, Article 25(1), Articles 29, 30 and 31. Such publication shall state the names of the parties and the main content of the decision, including any penalties imposed.

2. The publication shall have regard to the legitimate interest of gatekeepers or third parties in the protection of their confidential information.

Article 45

Review by the Court of Justice

In accordance with Article 261 TFEU, the Court of Justice has unlimited jurisdiction to review decisions by which the Commission has imposed fines or periodic penalty payments. It may cancel, reduce or increase the fine or periodic penalty payment imposed.

whereas

keyboard_tab Digital Market Act 2022/1925 EN

Digital Market Act 2022/1925 EN