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 18 Market investigation into systematic non-compliance
- 1 Article 25 Commitments
- 1 Article 32 Limitation periods for the imposition of penalties
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
- shall 51
- commission 46
- article 44
- number 34
- undertaking 27
- core_platform_services 27
- unique 26
- end_users 24
- least 22
- european 22
- which 21
- council 21
- ‘active 20
- parliament 20
- oj l 19
- business_users 18
- year 18
- during 17
- inspection 17
- once 16
- regulation 16
- month 15
- decision 15
- such 15
- gatekeeper 15
- pursuant 15
- services 15
- and 14
- data 14
- referred 14
- advertising 13
- provided 13
- authority 13
- through 13
- period 13
- member 12
- directive 12
- relevant 12
- article 12
- core_platform_service 12
- market 11
- business 11
- down 11
- rules 11
- end_users’ 11
- from 11
- intermediation 11
- national 11
- engaged 11
- service 10
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 23
Powers to conduct inspections
1. In order to carry out its duties under this Regulation, the Commission may conduct all necessary inspections of an undertaking or association of undertakings.
2. The officials and other accompanying persons authorised by the Commission to conduct an inspection are empowered to:
(a) | enter any premises, land and means of transport of undertakings and associations of undertakings; |
(b) | examine the books and other records related to the business, irrespective of the medium on which they are stored; |
(c) | take or obtain in any form copies of or extracts from such books or records; |
(d) | require the undertaking or association of undertakings to provide access to and explanations on its organisation, functioning, IT system, algorithms, data-handling and business practices and to record or document the explanations given by any technical means; |
(e) | seal any business premises and books or records for the duration of, and to the extent necessary for, the inspection; |
(f) | ask any representative or member of staff of the undertaking or association of undertakings for explanations of facts or documents relating to the subject-matter and purpose of the inspection, and to record the answers by any technical means. |
3. To carry out inspections, the Commission may request the assistance of auditors or experts appointed by the Commission pursuant to Article 26(2), as well as the assistance of the national competent authority of the Member State, enforcing the rules referred to in Article 1(6) in whose territory the inspection is to be conducted.
4. during inspections the Commission, auditors or experts appointed by it and the national competent authority of the Member State, enforcing the rules referred to in Article 1(6) in whose territory the inspection is to be conducted may require the undertaking or association of undertakings to provide access to and explanations on its organisation, functioning, IT system, algorithms, data-handling and business conducts. The Commission and auditors or experts appointed by it and the national competent authority of the Member State, enforcing the rules referred to in Article 1(6) in whose territory the inspection is to be conducted may address questions to any representative or member of staff.
5. The officials and other accompanying persons authorised by the Commission to conduct an inspection shall exercise their powers upon production of a written authorisation specifying the subject matter and purpose of the inspection and the fines provided for in Article 30 applicable in the event that the production of the required books or other records related to the business is incomplete or where the answers to questions asked under paragraphs 2 and 4 of this Article are incorrect or misleading. In good time before the inspection, the Commission shall give notice of the inspection to the national competent authority of the Member State enforcing the rules referred to in Article 1(6) in whose territory it is to be conducted.
6. Undertakings or associations of undertakings are required to submit to an inspection ordered by a Commission decision. That decision shall specify the subject matter and purpose of the inspection, set the date on which it is to begin and indicate the fines and periodic penalty payments provided for in Articles 30 and 31 respectively, and the right to have that decision reviewed by the Court of Justice.
7. Officials of, and the persons authorised or appointed by, the national competent authority of the Member State enforcing the rules referred to in Article 1(6) in whose territory the inspection is to be conducted shall, at the request of that authority or of the Commission, actively assist the officials and other accompanying persons authorised by the Commission. To this end, they shall enjoy the powers set out in paragraphs 2 and 4 of this Article.
8. Where the officials and other accompanying persons authorised by the Commission find that an undertaking or association of undertakings opposes an inspection ordered pursuant to this Article, the Member State concerned shall afford them the necessary assistance, requesting, where appropriate, the assistance of the police or of an equivalent enforcement authority, so as to enable them to conduct their inspection.
9. If, according to national rules, the assistance provided for in paragraph 8 of this Article requires authorisation from a judicial authority, the Commission or the national competent authority of the Member State enforcing the rules referred to in Article 1(6) or officials authorised by those authorities shall apply for it. Such authorisation may also be applied for as a precautionary measure.
10. Where authorisation referred to in paragraph 9 of this Article is applied for, the national judicial authority shall verify that the Commission decision is authentic and that the coercive measures envisaged are neither arbitrary nor excessive having regard to the subject matter of the inspection. In its control of the proportionality of the coercive measures, the national judicial authority may ask the Commission, directly or through the national competent authority of the Member State, enforcing the rules referred to in Article 1(6), for detailed explanations in particular on the grounds the Commission has for suspecting infringement of this Regulation, as well as on the seriousness of the suspected infringement and on the nature of the involvement of the undertaking concerned. However, the national judicial authority may not call into question the necessity of the inspection nor demand that it be provided with the information in the file of the Commission. The lawfulness of the Commission decision shall be subject to review only by the Court of Justice.
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 32
Limitation periods for the imposition of penalties
1. The powers conferred on the Commission by Articles 30 and 31 shall be subject to a 5 year limitation period.
2. Time shall begin to run on the day on which the infringement is committed. However, in the case of continuing or repeated infringements, time shall begin to run on the day on which the infringement ceases.
3. Any action taken by the Commission for the purpose of a market investigation or proceedings in respect of an infringement shall interrupt the limitation period for the imposition of fines or periodic penalty payments. The limitation period shall be interrupted with effect from the date on which the action is notified to at least one undertaking or association of undertakings which has participated in the infringement. Actions which interrupt the running of the period shall include in particular the following:
(a) | requests for information by the Commission; |
(b) | written authorisations to conduct inspections issued to its officials by the Commission; |
(c) | the opening of a proceeding by the Commission pursuant to Article 20. |
4. Each interruption shall start time running afresh. However, the limitation period shall expire at the latest on the day on which a period equal to twice the limitation period has elapsed without the Commission having imposed a fine or a periodic penalty payment. That period shall be extended by the time during which limitation is suspended pursuant to paragraph 5.
5. The limitation period for the imposition of fines or periodic penalty payments shall be suspended for as long as the decision of the Commission is the subject of proceedings pending before the Court of Justice.
Article 54
Entry into force and application
This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.
It shall apply from 2 May 2023.
However, Article 3(6) and (7) and Articles 40, 46, 47, 48, 49 and 50 shall apply from 1 November 2022 and Article 42 and Article 43 shall apply from 25 June 2023.
Nevertheless, if the date of 25 June 2023 precedes the date of application referred to in the second paragraph of this Article, the application of Article 42 and Article 43 shall be postponed until the date of application referred to in the second paragraph of this Article.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Strasbourg, 14 September 2022.
For the European Parliament
The President
R. METSOLA
For the Council
The President
M. BEK
(1) OJ C 286, 16.7.2021, p. 64.
(2) OJ C 440, 29.10.2021, p. 67.
(3) Position of the European Parliament of 5 July 2022 (not yet published in the Official Journal) and decision of the Council of 18 July 2022.
(4) Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC ( General Data Protection Regulation) (OJ L 119, 4.5.2016, p. 1).
(5) Regulation (EU) 2019/1150 of the European Parliament and of the Council of 20 June 2019 on promoting fairness and transparency for business_users of online_intermediation_services (OJ L 186, 11.7.2019, p. 57).
(6) Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (OJ L 201, 31.7.2002, p. 37).
(7) Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’) (OJ L 149, 11.6.2005, p. 22).
(8) Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) (OJ L 95, 15.4.2010, p. 1).
(9) Directive (EU) 2015/2366 of the European Parliament and of the Council of 25 November 2015 on payment_services in the internal market, amending Directives 2002/65/EC, 2009/110/EC and 2013/36/EU and Regulation (EU) No 1093/2010, and repealing Directive 2007/64/EC (OJ L 337, 23.12.2015, p. 35).
(10) Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC (OJ L 130, 17.5.2019, p. 92).
(11) Directive (EU) 2019/882 of the European Parliament and of the Council of 17 April 2019 on the accessibility requirements for products and services (OJ L 151, 7.6.2019, p. 70).
(12) Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ L 95, 21.4.1993, p. 29).
(13) Directive (EU) 2015/1535 of the European Parliament and of the Council of 9 September 2015 laying down a procedure for the provision of information in the field of technical regulations and of rules on Information Society services (OJ L 241, 17.9.2015, p. 1).
(14) Directive (EU) 2018/1972 of the European Parliament and of the Council of 11 December 2018 establishing the European Electronic Communications Code (OJ L 321, 17.12.2018, p. 36).
(15) Directive (EU) 2016/2102 of the European Parliament and of the Council of 26 October 2016 on the accessibility of the websites and mobile applications of public sector bodies (OJ L 327, 2.12.2016, p. 1).
(16) Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by the Member States of the Commission's exercise of implementing powers (OJ L 55, 28.2.2011, p. 13).
(17) Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and Decision No 1247/2002/EC (OJ L 295, 21.11.2018, p. 39).
(18) Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ L 1, 4.1.2003, p. 1).
(19) OJ L 123, 12.5.2016, p. 1.
(20) Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019 on the protection of persons who report breaches of Union law (OJ L 305, 26.11.2019, p. 17).
(21) Directive (EU) 2020/1828 of the European Parliament and of the Council of 25 November 2020 on representative actions for the protection of the collective interests of consumers and repealing Directive 2009/22/EC (OJ L 409, 4.12.2020, p. 1).
(22) OJ C 147, 26.4.2021, p. 4.
(23) Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the EC Merger Regulation) (OJ L 24, 29.1.2004, p. 1).
(24) Directive (EU) 2016/1148 of the European Parliament and of the Council of 6 July 2016 concerning measures for a high common level of security of network and information systems across the Union (OJ L 194, 19.7.2016, p. 1).
ANNEX
A. ‘ General’
1. | This Annex aims at specifying the methodology for identifying and calculating the ‘active end_users’ and the ‘active business_users’ for each core_platform_service listed in Article 2, point (2). It provides a reference to enable an undertaking to assess whether its core_platform_services meet the quantitative thresholds set out in Article 3(2), point (b) and would therefore be presumed to meet the requirement in Article 3(1), point (b). Such reference will therefore equally be of relevance to any broader assessment under Article 3(8). It is the responsibility of the undertaking to come to the best approximation possible in line with the common principles and specific methodology set out in this Annex. Nothing in this Annex precludes the Commission, within the time limits laid down in the relevant provisions of this Regulation, from requiring the undertaking providing core_platform_services to provide any information necessary to identify and calculate the ‘active end_users’ and the ‘active business_users’. Nothing in this Annex should constitute a legal basis for tracking users. The methodology contained in this Annex is also without prejudice to any of the obligations laid down in this Regulation, notably in Article 3(3) and (8) and Article 13(3). In particular, the required compliance with Article 13(3) also means identifying and calculating ‘active end_users’ and ‘active business_users’ based either on a precise measurement or on the best approximation available, in line with the actual identification and calculation capacities that the undertaking providing core_platform_services possesses at the relevant point in time. Those measurements or the best approximation available shall be consistent with, and include, those reported under Article 15. |
2. | Article 2, points (20) and (21) set out the definitions of ‘ end_user’ and ‘ business_user’, which are common to all core_platform_services. |
3. | In order to identify and calculate the number of ‘active end_users’ and ‘active business_users’, this Annex refers to the concept of ‘unique users’. The concept of ‘unique users’ encompasses ‘active end_users’ and ‘active business_users’ counted only once, for the relevant core_platform_service, over the course of a specified time period (i.e. month in case of ‘active end_users’ and year in case of ‘active business_users’), no matter how many times they engaged with the relevant core_platform_service over that period. This is without prejudice to the fact that the same natural or legal person can simultaneously constitute an ‘active end_user’ or an ‘active business_user’ for different core_platform_services. |
B. ‘Active end_users’
1. | The number of ‘unique users’ as regards ‘active end_users’ shall be identified according to the most accurate metric reported by the undertaking providing any of the core_platform_services, specifically:
|
2. | The number of ‘monthly active end_users’ is based on the average number of monthly active end_users throughout the largest part of the financial year. The notion ‘the largest part of the financial year’ is intended to allow an undertaking providing core_platform_services to discount outlier figures in a given year. Outlier figures inherently mean figures that fall significantly outside the normal and foreseeable figures. An unforeseen peak or drop in user engagement that occurred during a single month of the financial year is an example of what could constitute such outlier figures. Figures related to annually recurring occurrences, such as annual sales promotions, are not outlier figures. |
C. ‘Active business_users’
The number of ‘unique users’ as regards ‘active business_users’ is to be determined, where applicable, at the account level with each distinct business account associated with the use of a core_platform_service provided by the undertaking constituting one unique business_user of that respective core_platform_service. If the notion of ‘business account’ does not apply to a given core_platform_service, the relevant undertaking providing core_platform_services shall determine the number of unique business_users by referring to the relevant undertaking.
D. ‘ Submission_of_information’
1. | The undertaking submitting to the Commission pursuant to Article 3(3) information concerning the number of active end_users and active business_users per core_platform_service shall be responsible for ensuring the completeness and accuracy of that information. In that regard:
|
2. | For the purpose of calculating the number of ‘active end_users’ and ‘active business_users’:
|
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. |