Digital Market Act 2022/1925 EN

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Article 1

Subject matter and scope

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 2

Definitions

For the purposes of this Regulation, the following definitions apply:

(1)	‘ gatekeeper’ means an undertaking providing core_platform_services, designated pursuant to Article 3;

(2)

‘ core_platform_service’ means any of the following:

(a)	online_intermediation_services;

(b)	online_search_engines;

(c)	online_social_networking_services;

(d)	video-sharing_platform_services;

(e)	number-independent_interpersonal_communications_services;

(f)	operating_systems;

(g)	web_browsers;

(h)	virtual_assistants;

(i)	cloud_computing_services;

(j)	online advertising services, including any advertising networks, advertising exchanges and any other advertising intermediation services, provided by an undertaking that provides any of the core_platform_services listed in points (a) to (i);

(3)	‘ information_society_service’ means any service as defined in Article 1(1), point (b), of directive (EU) 2015/1535;

(4)	‘ digital_sector’ means the sector of products and services provided by means of, or through, information_society_services;

(5)	‘ online_intermediation_services’ means online_intermediation_services as defined in Article 2, point (2), of Regulation (EU) 2019/1150;

(6)	‘ online_search_engine’ means an online_search_engine as defined in Article 2, point (5), of Regulation (EU) 2019/1150;

(7)	‘ online_social_networking_service’ means a platform that enables 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)	‘ video-sharing_platform_service’ means a video-sharing_platform_service as defined in Article 1(1), point (aa), of directive 2010/13/EU;

(9)	‘ number-independent_interpersonal_communications_service’ means a number-independent_interpersonal_communications_service as defined in Article 2, point (7), of directive (EU) 2018/1972;

(10)	‘ operating_system’ means a system software that controls the basic functions of the hardware or software and enables software_applications to run on it;

(11)	‘ web_browser’ means a software_application that enables end_users to access and interact with web content hosted on servers that are connected to networks such as the Internet, including standalone web_browsers as well as web_browsers integrated or embedded in software or similar;

(12)	‘ 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 controls connected physical devices;

(13)	‘ cloud_computing_service’ means a 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)	‘ software_application_stores’ means a type of online_intermediation_services, which is focused on software_applications as the intermediated product or service;

(15)	‘ software_application’ means any digital product or service that runs on an operating_system;

(16)	‘ payment_service’ means a payment_service as defined in Article 4, point (3) of directive (EU) 2015/2366;

(17)	‘technical service supporting payment_service’ means a service within the meaning of Article 3, point (j), of directive (EU) 2015/2366;

(18)	‘ payment_system_for_in-app_purchases’ means a software_application, service or user interface which facilitates purchases of digital content or digital services within a software_application, including content, subscriptions, features or functionality, and the payments for such purchases;

(19)	‘ identification_service’ means a type of service provided together with or in support of core_platform_services that enables any type of verification of the identity of end_users or business_users, regardless of the technology used;

(20)	‘ end_user’ means any natural or legal person using core_platform_services other than as a business_user;

(21)	‘ business_user’ means any natural or legal person acting in a commercial or professional capacity using core_platform_services for the purpose of or in the course of providing goods or services to end_users;

(22)

‘ ranking’ means the relative prominence given to goods or services offered through online_intermediation_services, online_social_networking_services, video-sharing_platform_services or virtual_assistants, or the relevance given to search_results by online_search_engines, as presented, organised or communicated by the undertakings providing online_intermediation_services, online_social_networking_services, video-sharing_platform_services, virtual_assistants or 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)

‘ 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)	‘ 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 data’ means personal data as defined in Article 4, point (1), of Regulation (EU) 2016/679;

(26)	‘non-personal data’ means data other than personal data;

(27)	‘ 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 undertakings that form a group through the direct or indirect control of an enterprise or undertaking by another;

(28)	‘ control’ means the possibility of exercising decisive influence on an undertaking, within the meaning of Article 3(2) of Regulation (EC) No 139/2004;

(29)

‘ 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)	‘ turnover’ means the amount derived by an undertaking within the meaning of Article 5(1) of Regulation (EC) No 139/2004;

(31)	‘ profiling’ means profiling as defined in Article 4, point (4), of Regulation (EU) 2016/679;

(32)	‘ consent’ means consent as defined in Article 4, point (11), of Regulation (EU) 2016/679;

(33)	‘ national_court’ means a court or tribunal of a Member State within the meaning of Article 267 TFEU.

CHAPTER II

GATEKEEPERS

Article 7

Obligation for gatekeepers on interoperability of number-independent_interpersonal_communications_services

1. Where a gatekeeper provides number-independent_interpersonal_communications_services that are listed in the designation decision pursuant to Article 3(9), it shall make the basic functionalities of its number-independent_interpersonal_communications_services interoperable with the number-independent_interpersonal_communications_services of another provider offering or intending to offer such services in the Union, by providing the necessary technical interfaces or similar solutions that facilitate interoperability, upon request, and free of charge.

2. The gatekeeper shall make at least the following basic functionalities referred to in paragraph 1 interoperable where the gatekeeper itself provides those functionalities to its own end_users:

(a)

following the listing in the designation decision pursuant to Article 3(9):

(i)	end-to-end text messaging between two individual end_users;

(ii)	sharing of images, voice messages, videos and other attached files in end to end communication between two individual end_users;

(b)

within 2 years from the designation:

(i)	end-to-end text messaging within groups of individual end_users;

(ii)	sharing of images, voice messages, videos and other attached files in end-to-end communication between a group chat and an individual end_user;

(c)

within 4 years from the designation:

(i)	end-to-end voice calls between two individual end_users;

(ii)	end-to-end video calls between two individual end_users;

(iii)

end-to-end voice calls between a group chat and an individual end_user;

(iv)	end-to-end video calls between a group chat and an individual end_user.

3. The level of security, including the end-to-end encryption, where applicable, that the gatekeeper provides to its own end_users shall be preserved across the interoperable services.

4. The gatekeeper shall publish a reference offer laying down the technical details and general terms and conditions of interoperability with its number-independent_interpersonal_communications_services, including the necessary details on the level of security and end-to-end encryption. The gatekeeper shall publish that reference offer within the period laid down in Article 3(10) and update it where necessary.

5. Following the publication of the reference offer pursuant to paragraph 4, any provider of number-independent_interpersonal_communications_services offering or intending to offer such services in the Union may request interoperability with the number-independent_interpersonal_communications_services provided by the gatekeeper. Such a request may cover some or all of the basic functionalities listed in paragraph 2. The gatekeeper shall comply with any reasonable request for interoperability within 3 months after receiving that request by rendering the requested basic functionalities operational.

6. The Commission may, exceptionally, upon a reasoned request by the gatekeeper, extend the time limits for compliance under paragraph 2 or 5 where the gatekeeper demonstrates that this is necessary to ensure effective interoperability and to maintain the necessary level of security, including end-to-end encryption, where applicable.

7. The end_users of the number-independent_interpersonal_communications_services of the gatekeeper and of the requesting provider of number-independent_interpersonal_communications_services shall remain free to decide whether to make use of the interoperable basic functionalities that may be provided by the gatekeeper pursuant to paragraph 1.

8. The gatekeeper shall collect and exchange with the provider of number-independent_interpersonal_communications_services that makes a request for interoperability only the personal data of end_users that is strictly necessary to provide effective interoperability. Any such collection and exchange of the personal data of end_users shall fully comply with Regulation (EU) 2016/679 and directive 2002/58/EC.

9. The gatekeeper shall not be prevented from taking measures to ensure that third-party providers of number-independent_interpersonal_communications_services requesting interoperability do not endanger the integrity, security and privacy of its services, provided that such measures are strictly necessary and proportionate and are duly justified by the gatekeeper.

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 13

Anti-circumvention

1. An undertaking providing core_platform_services shall not segment, divide, subdivide, fragment or split those services through contractual, commercial, technical or any other means in order to circumvent the quantitative thresholds laid down in Article 3(2). No such practice of an undertaking shall prevent the Commission from designating it as a gatekeeper pursuant to Article 3(4).

2. The Commission may, when it suspects that an undertaking providing core_platform_services is engaged in a practice laid down in paragraph 1, require from that undertaking any information that it deems necessary to determine whether that undertaking has engaged in such a practice.

3. The gatekeeper shall ensure that the obligations of Articles 5, 6 and 7 are fully and effectively complied with.

4. The gatekeeper shall not engage in any behaviour that undermines effective compliance with the obligations of Articles 5, 6 and 7 regardless of whether that behaviour is of a contractual, commercial or technical nature, or of any other nature, or consists in the use of behavioural techniques or interface design.

5. Where consent for collecting, processing, cross-using and sharing of personal data is required to ensure compliance with this Regulation, a gatekeeper shall take the necessary steps either to enable business_users to directly obtain the required consent to their processing, where that consent is required under Regulation (EU) 2016/679 or directive 2002/58/EC, or to comply with Union data protection and privacy rules and principles in other ways, including by providing business_users with duly anonymised data where appropriate. The gatekeeper shall not make the obtaining of that consent by the business_user more burdensome than for its own services.

6. The gatekeeper shall not degrade the conditions or quality of any of the core_platform_services provided to business_users or end_users who avail themselves of the rights or choices laid down in Articles 5, 6 and 7, or make the exercise of those rights or choices unduly difficult, including by offering choices to the end-user in a non-neutral manner, or by subverting end_users’ or business_users' autonomy, decision-making, or free choice via the structure, design, function or manner of operation of a user interface or a part thereof.

7. Where the gatekeeper circumvents or attempts to circumvent any of the obligations in Article 5, 6, or 7 in a manner described in paragraphs 4, 5 and 6 of this Article, the Commission may open proceedings pursuant to Article 20 and adopt an implementing act referred to in Article 8(2) in order to specify the measures that the gatekeeper is to implement.

8. Paragraph 6 of this Article is without prejudice to the powers of the Commission under Articles 29, 30 and 31.

Article 42

Representative actions

directive (EU) 2020/1828 shall apply to the representative actions brought against infringements by gatekeepers of provisions of this Regulation that harm or may harm the collective interests of consumers.

Article 43

Reporting of breaches and protection of reporting persons

directive (EU) 2019/1937 shall apply to the reporting of all breaches of this Regulation and the protection of persons reporting such breaches.

CHAPTER VI

FINAL PROVISIONS

Article 51

Amendment to directive (EU) 2019/1937

In Point J of Part I of the Annex to directive (EU) 2019/1937, the following point is added:

‘(iv)

Regulation (EU) 2022/1925 of the European Parliament and of the Council of 14 September 2022 on contestable and fair markets in the digital_sector and amending directives (EU) 2019/1937 and (EU) 2020/1828 (Digital Markets Act) (OJ L 265, 21.9.2022, p. 1).’

Article 52

Amendment to directive (EU) 2020/1828

In Annex I to directive (EU) 2020/1828, the following point is added:

‘(67)

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’

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.

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

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’

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:

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.

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.

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’

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).

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.

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

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.

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).

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_tab Digital Market Act 2022/1925 EN

Digital Market Act 2022/1925 EN