keyboard_tab Digital Market Act 2022/1925 EN
BG CS DA DE EL EN ES ET FI FR GA HR HU IT LV LT MT NL PL PT RO SK SL SV print pdf
- 1 Article 3 Designation of gatekeepers
- 1 Article 16 Opening of a market investigation
- 1 Article 20 Opening of proceedings
- 3 Article 38 Cooperation and coordination with national competent authorities enforcing competition rules
CHAPTER I
SUBJECT MATTER, SCOPE AND DEFINITIONS
CHAPTER II
GATEKEEPERS
CHAPTER III
PRACTICES OF GATEKEEPERS THAT LIMIT CONTESTABILITY OR ARE UNFAIR
CHAPTER IV
MARKET INVESTIGATION
CHAPTER V
investigative, ENFORCEMENT AND MONITORING POWERS
CHAPTER VI
FINAL PROVISIONS
- gatekeeper
- core platform service
- information society service
- digital sector
- online intermediation services
- online search engine
- online social networking service
- video-sharing platform service
- number-independent interpersonal communications service
- operating system
- web browser
- virtual assistant
- cloud computing service
- software application stores
- software application
- payment service
- technical service supporting payment service
- payment system for in-app purchases
- identification service
- end user
- business user
- ranking
- search results
- data
- personal data
- non-personal data
- undertaking
- control
- interoperability
- turnover
- profiling
- consent
- national court
- General
- Active end users
- Active business users
- Submission of information
- Specific definitions
- commission 42
- article 36
- shall 32
- undertaking 28
- paragraph 25
- referred 21
- pursuant 18
- market 18
- investigation 17
- core_platform_services 17
- information 15
- the 15
- national 15
- regulation 14
- within 13
- providing 13
- paragraph 13
- competent 12
- down 12
- rules 12
- member 11
- laid 11
- thresholds 11
- relevant 10
- gatekeeper 10
- states 10
- enforcing 10
- article 10
- authorities 9
- such 9
- core_platform_service 9
- opening 8
- end_users 8
- after 8
- each 8
- under 8
- and 7
- investigative 7
- which 7
- subparagraph 7
- business_users 7
- into 7
- decision 7
- obligations 6
- data 6
- meets 6
- services 6
- authority 6
- including 6
- designate 6
Article 3
Designation of gatekeepers
1. An undertaking shall be designated as a gatekeeper if:
| (a) | it has a significant impact on the internal market; |
| (b) | it provides a core_platform_service which is an important gateway for business_users to reach end_users; and |
| (c) | it enjoys an entrenched and durable position, in its operations, or it is foreseeable that it will enjoy such a position in the near future. |
2. An undertaking shall be presumed to satisfy the respective requirements in paragraph 1:
| (a) | as regards paragraph 1, point (a), where it achieves an annual Union turnover equal to or above EUR 7,5 billion in each of the last three financial years, or where its average market capitalisation or its equivalent fair market value amounted to at least EUR 75 billion in the last financial year, and it provides the same core_platform_service in at least three Member States; |
| (b) | as regards paragraph 1, point (b), where it provides a core_platform_service that in the last financial year has at least 45 million monthly active end_users established or located in the Union and at least 10 000 yearly active business_users established in the Union, identified and calculated in accordance with the methodology and indicators set out in the Annex; |
| (c) | as regards paragraph 1, point (c), where the thresholds in point (b) of this paragraph were met in each of the last three financial years. |
3. Where an undertaking providing core_platform_services meets all of the thresholds in paragraph 2, it shall notify the Commission thereof without delay and in any event within 2 months after those thresholds are met and provide it with the relevant information identified in paragraph 2. That notification shall include the relevant information identified in paragraph 2 for each of the core_platform_services of the undertaking that meets the thresholds in paragraph 2, point (b). Whenever a further core_platform_service provided by the undertaking that has previously been designated as a gatekeeper meets the thresholds in paragraph 2, points (b) and (c), such undertaking shall notify the Commission thereof within 2 months after those thresholds are satisfied.
Where the undertaking providing the core_platform_service fails to notify the Commission pursuant to the first subparagraph of this paragraph and fails to provide within the deadline set by the Commission in the request for information pursuant to Article 21 all the relevant information that is required for the Commission to designate the undertaking concerned as gatekeeper pursuant to paragraph 4 of this Article, the Commission shall still be entitled to designate that undertaking as a gatekeeper, based on information available to the Commission.
Where the undertaking providing core_platform_services complies with the request for information pursuant to the second subparagraph of this paragraph or where the information is provided after the expiration of the deadline referred to in that subparagraph, the Commission shall apply the procedure set out in paragraph 4.
4. The Commission shall designate as a gatekeeper, without undue delay and at the latest within 45 working days after receiving the complete information referred to in paragraph 3, an undertaking providing core_platform_services that meets all the thresholds in paragraph 2.
5. The undertaking providing core_platform_services may present, with its notification, sufficiently substantiated arguments to demonstrate that, exceptionally, although it meets all the thresholds in paragraph 2, due to the circumstances in which the relevant core_platform_service operates, it does not satisfy the requirements listed in paragraph 1.
Where the Commission considers that the arguments submitted pursuant to the first subparagraph by the undertaking providing core_platform_services are not sufficiently substantiated because they do not manifestly call into question the presumptions set out in paragraph 2 of this Article, it may reject those arguments within the time limit referred to in paragraph 4, without applying the procedure laid down in Article 17(3).
Where the undertaking providing core_platform_services does present such sufficiently substantiated arguments manifestly calling into question the presumptions in paragraph 2 of this Article, the Commission may, notwithstanding the first subparagraph of this paragraph, within the time limit referred to in paragraph 4 of this Article, open the procedure laid down in Article 17(3).
If the Commission concludes that the undertaking providing core_platform_services was not able to demonstrate that the relevant core_platform_services that it provides do not satisfy the requirements of paragraph 1 of this Article, it shall designate that undertaking as a gatekeeper in accordance with the procedure laid down in Article 17(3).
6. The Commission is empowered to adopt delegated acts in accordance with Article 49 to supplement this Regulation by specifying the methodology for determining whether the quantitative thresholds laid down in paragraph 2 of this Article are met, and to regularly adjust that methodology to market and technological developments, where necessary.
7. The Commission is empowered to adopt delegated acts in accordance with Article 49 to amend this Regulation by updating the methodology and the list of indicators set out in the Annex.
8. The Commission shall designate as a gatekeeper, in accordance with the procedure laid down in Article 17, any undertaking providing core_platform_services that meets each of the requirements of paragraph 1 of this Article, but does not satisfy each of the thresholds in paragraph 2 of this Article.
For that purpose, the Commission shall take into account some or all of the following elements, insofar as they are relevant for the undertaking providing core_platform_services under consideration:
| (a) | the size, including turnover and market capitalisation, operations and position of that undertaking; |
| (b) | the number of business_users using the core_platform_service to reach end_users and the number of end_users; |
| (c) | network effects and data driven advantages, in particular in relation to that undertaking’s access to, and collection of, personal data and non-personal data or analytics capabilities; |
| (d) | any scale and scope effects from which the undertaking benefits, including with regard to data, and, where relevant, to its activities outside the Union; |
| (e) | business_user or end_user lock-in, including switching costs and behavioural bias reducing the ability of business_users and end_users to switch or multi-home; |
| (f) | a conglomerate corporate structure or vertical integration of that undertaking, for instance enabling that undertaking to cross subsidise, to combine data from different sources or to leverage its position; or |
| (g) | other structural business or service characteristics. |
In carrying out its assessment under this paragraph, the Commission shall take into account foreseeable developments in relation to the elements listed in the second subparagraph, including any planned concentrations involving another undertaking providing core_platform_services or providing any other services in the digital_sector or enabling the collection of data.
Where an undertaking providing a core_platform_service that does not satisfy the quantitative thresholds of paragraph 2 fails to comply with the investigative measures ordered by the Commission in a significant manner, and that failure persists after that undertaking has been invited to comply within a reasonable time limit and to submit observations, the Commission may designate that undertaking as a gatekeeper on the basis of the facts available to the Commission.
9. For each undertaking designated as a gatekeeper pursuant to paragraph 4 or 8, the Commission shall list in the designation decision the relevant core_platform_services that are provided within that undertaking and which individually are an important gateway for business_users to reach end_users as referred to in paragraph 1, point (b).
10. The gatekeeper shall comply with the obligations laid down in Articles 5, 6 and 7 within 6 months after a core_platform_service has been listed in the designation decision pursuant to paragraph 9 of this Article.
Article 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 19
Market investigation into new services and new practices
1. The Commission may conduct a market investigation for the purpose of examining whether one or more services within the digital_sector should be added to the list of core_platform_services laid down in Article 2, point (2) or for the purpose of detecting practices that limit the contestability of core_platform_services or that are unfair and which are not effectively addressed by this Regulation. In its assessment, the Commission shall take into account any relevant findings of proceedings under Articles 101 and 102 TFEU concerning digital markets as well as any other relevant developments.
2. The Commission may, when conducting a market investigation pursuant to paragraph 1, consult third parties, including business_users and end_users of services within the digital_sector that are being investigated and business_users and end_users who are subject to practices under investigation.
3. The Commission shall publish its findings in a report within 18 months from the date referred to in Article 16(3), point (a).
That report shall be submitted to the European Parliament and to the Council and, where appropriate, shall be accompanied by:
| (a) | a legislative proposal to amend this Regulation in order to include additional services within the digital_sector in the list of core_platform_services laid down in Article 2, point (2), or to include new obligations in Chapter III; or |
| (b) | a draft delegated act supplementing this Regulation with regard to the obligations laid down in Articles 5 and 6, or a draft delegated act amending or supplementing this Regulation with regard to the obligations laid down in Article 7, as provided for in Article 12. |
Where appropriate, the legislative proposal to amend this Regulation under point (a) of the second subparagraph may also propose to remove existing services from the list of core_platform_services laid down in Article 2, point (2), or to remove existing obligations from Article 5, 6 or 7.
CHAPTER V
investigative, ENFORCEMENT AND MONITORING POWERS
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 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.
whereas