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
- 3 Article 3 Designation of gatekeepers
- 2 Article 30 Fines
- 1 Article 49 Exercise of the delegation
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 40
- article 35
- undertaking 29
- shall 28
- paragraph 25
- pursuant 25
- information 18
- gatekeeper 14
- within 14
- core_platform_services 13
- providing 13
- article 11
- fail 11
- decision 11
- thresholds 11
- core_platform_service 10
- laid 10
- down 10
- the 10
- each 9
- financial 9
- paragraph 9
- subparagraph 8
- undertakings 8
- european 8
- delegated 8
- and 8
- time 8
- accordance 8
- relevant 8
- data 7
- turnover 7
- limit 7
- referred 7
- after 7
- comply 7
- council 7
- parliament 7
- designate 6
- fine 6
- from 6
- year 6
- association 6
- payment 6
- notify 6
- meets 6
- end_users 6
- power 6
- into 6
- period 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 30
Fines
1. In the non-compliance decision, the Commission may impose on a gatekeeper fines not exceeding 10 % of its total worldwide turnover in the preceding financial year where it finds that the gatekeeper, intentionally or negligently, fails to comply with:
| (a) | any of the obligations laid down in Articles 5, 6 and 7; |
| (b) | measures specified by the Commission in a decision adopted pursuant to Article 8(2); |
| (c) | remedies imposed pursuant to Article 18(1); |
| (d) | interim measures ordered pursuant to Article 24; or |
| (e) | commitments made legally binding pursuant to Article 25. |
2. Notwithstanding paragraph 1 of this Article, in the non-compliance decision the Commission may impose on a gatekeeper fines up to 20 % of its total worldwide turnover in the preceding financial year where it finds that a gatekeeper has committed the same or a similar infringement of an obligation laid down in Article 5, 6 or 7 in relation to the same core_platform_service as it was found to have committed in a non-compliance decision adopted in the 8 preceding years.
3. The Commission may adopt a decision, imposing on undertakings, including gatekeepers where applicable, and associations of undertakings, fines not exceeding 1 % of their total worldwide turnover in the preceding financial year where they intentionally or negligently:
| (a) | fail to provide within the time limit information that is required for assessing their designation as gatekeepers pursuant to Article 3 or supply incorrect, incomplete or misleading information; |
| (b) | fail to comply with the obligation to notify the Commission according to Article 3(3); |
| (c) | fail to notify information or supply incorrect, incomplete or misleading information that is required pursuant to Article 14; |
| (d) | fail to submit the description or supply incorrect, incomplete or misleading information that is required pursuant to Article 15; |
| (e) | fail to provide access to data, algorithms or information about testing in response to a request made pursuant to Article 21(3); |
| (f) | fail to supply the information requested within the time limit fixed pursuant to Article 21(3) or supply incorrect, incomplete or misleading information or explanations that are requested pursuant to Article 21 or given in an interview pursuant to Article 22; |
| (g) | fail to rectify within a time limit set by the Commission, incorrect, incomplete or misleading information given by a representative or a member of staff, or fail or refuse to provide complete information on facts relating to the subject-matter and purpose of an inspection, pursuant to Article 23; |
| (h) | refuse to submit to an inspection pursuant to Article 23; |
| (i) | fail to comply with the obligations imposed by the Commission pursuant to Article 26; |
| (j) | fail to introduce a compliance function in accordance with Article 28; or |
| (k) | fail to comply with the conditions for access to the Commission’s file pursuant to Article 34(4). |
4. In fixing the amount of a fine, the Commission shall take into account the gravity, duration, recurrence, and, for fines imposed pursuant to paragraph 3, delay caused to the proceedings.
5. When a fine is imposed on an association of undertakings taking account of the worldwide turnover of its members and that association is not solvent, it shall be obliged to call for contributions from its members to cover the amount of the fine.
Where such contributions have not been made to the association of undertakings within a time limit set by the Commission, the Commission may require payment of the fine directly by any of the undertakings whose representatives were members of the decision-making bodies concerned of that association.
After having required payment in accordance with the second subparagraph, the Commission may require payment of the balance by any of the members of the association of undertakings, where necessary to ensure full payment of the fine.
However, the Commission shall not require payment pursuant to the second or the third subparagraph from undertakings which show that they have not implemented the decision of the association of undertakings that infringed this Regulation, and either were not aware of its existence, or have actively distanced themselves from it before the Commission opened proceedings under Article 20.
The financial liability of each undertaking in respect of the payment of the fine shall not exceed 20 % of its total worldwide turnover in the preceding financial year.
Article 49
Exercise of the delegation
1. The power to adopt delegated acts is conferred on the Commission subject to the conditions laid down in this Article.
2. The power to adopt delegated acts referred to in Article 3(6) and (7) and Article 12(1), (3) and (4) shall be conferred on the Commission for a period of 5 years from 1 November 2022. The Commission shall draw up a report in respect of the delegation of power not later than 9 months before the end of the five-year period. The delegation of power shall be tacitly extended for periods of an identical duration, unless the European Parliament or the Council opposes such extension not later than 3 months before the end of each period.
3. The delegation of power referred to in Article 3(6) and (7), and Article 12(1), (3) and (4) may be revoked at any time by the European Parliament or by the Council. A decision to revoke shall put an end to the delegation of the power specified in that decision. It shall take effect the day following the publication of the decision in the Official Journal of the European Union or at a later date specified therein. It shall not affect the validity of any delegated acts already in force.
4. Before adopting a delegated act, the Commission shall consult experts designated by each Member State in accordance with the principles laid down in the Interinstitutional Agreement of 13 April 2016 on Better Law-Making.
5. As soon as it adopts a delegated act, the Commission shall notify it simultaneously to the European Parliament and to the Council.
6. A delegated act adopted pursuant to Article 3(6) and (7), and Article 12(1), (3) and (4) shall enter into force only if no objection has been expressed either by the European Parliament or by the Council within a period of 2 months of notification of that act to the European Parliament and to the Council or if, before the expiry of that period, the European Parliament and the Council have both informed the Commission that they will not object. That period shall be extended by 2 months at the initiative of the European Parliament or of the Council.
whereas