Digital Market Act 2022/1925 EN

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expand index position:

2 Article 1 Subject matter and scope

4 Article 3 Designation of gatekeepers

3 Article 17 Market investigation for designating gatekeepers

1 Article 18 Market investigation into systematic non-compliance

1 Article 26 Monitoring of obligations and measures

3 Article 32 Limitation periods for the imposition of penalties

1 Article 41 Request for a market investigation

whereas position:

definitions:

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and the number of total unique words without stopwords is: 971

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 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 17

Market investigation for designating gatekeepers

1. The Commission may conduct a market investigation for the purpose of examining whether an undertaking providing core_platform_services should be designated as a gatekeeper pursuant to Article 3(8), or in order to identify the core_platform_services to be listed in the designation decision pursuant to Article 3(9). The Commission shall endeavour to conclude its market investigation within 12 months from the date referred to in Article 16(3), point (a), In order to conclude its market investigation, the Commission shall adopt an implementing act setting out its decision. That implementing act shall be adopted in accordance with the advisory procedure referred to in Article 50(2).

2. In the course of a market investigation pursuant to paragraph 1 of this Article, the Commission shall endeavour to communicate its preliminary findings to the undertaking providing core_platform_services concerned within 6 months from the date referred to in Article 16(3), point (a). In the preliminary findings, the Commission shall explain whether it considers, on a provisional basis, that it is appropriate for that undertaking to be designated as a gatekeeper pursuant to Article 3(8), and for the relevant core_platform_services to be listed pursuant to Article 3(9).

3. Where the undertaking providing core_platform_services satisfies the thresholds set out in Article 3(2), but has presented sufficiently substantiated arguments in accordance with Article 3(5) that have manifestly called into question the presumption in Article 3(2), the Commission shall endeavour to conclude the market investigation within 5 months from the date referred to in Article 16(3), point (a).

In such a case, the Commission shall endeavour to communicate its preliminary findings pursuant to paragraph 2 of this Article to the undertaking concerned within 3 months from the date referred to in Article 16(3), point (a).

4. When the Commission, pursuant to Article 3(8), designates as a gatekeeper an undertaking providing core_platform_services that does not yet enjoy an entrenched and durable position in its operations, but which will foreseeably enjoy such a position in the near future, it may declare applicable to that gatekeeper only one or more of the obligations laid down in Article 5(3) to (6) and Article 6(4), (7), (9), (10) and (13), as specified in the designation decision. The Commission shall only declare applicable those obligations that are appropriate and necessary to prevent the gatekeeper concerned from achieving, by unfair means, an entrenched and durable position in its operations. The Commission shall review such a designation in accordance with the procedure laid down in Article 4.

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 26

Monitoring of obligations and measures

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

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

Article 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 41

Request for a market investigation

1. Three or more Member States may request the Commission to open a market investigation pursuant to Article 17 because they consider that there are reasonable grounds to suspect that an undertaking should be designated as a gatekeeper.

2. One or more Member States may request the Commission to open a market investigation pursuant to Article 18 because they consider that there are reasonable grounds to suspect that a gatekeeper has systematically infringed one or more of the obligations laid down in Articles 5, 6 and 7 and has maintained, strengthened or extended its gatekeeper position in relation to the requirements under Article 3(1).

3. Three or more Member States may request the Commission to conduct a market investigation pursuant to Article 19 because they consider that there are reasonable grounds to suspect that:

(a)	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

(b)	one or more practices are not effectively addressed by this Regulation and might limit the contestability of core_platform_services or be unfair.

4. Member States shall submit evidence in support of their requests pursuant to paragraphs 1, 2 and 3. For requests pursuant to paragraph 3, such evidence may include information on newly introduced offers of products, services, software or features which raise concerns of contestability or fairness, whether implemented in the context of existing core_platform_services or otherwise.

5. Within 4 months of receiving a request pursuant to this Article, the Commission shall examine whether there are reasonable grounds to open a market investigation pursuant to paragraph 1, 2 or 3. The Commission shall publish the results of its assessment.

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