keyboard_tab Digital Market Act 2022/1925 EN

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

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

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

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

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

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

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

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

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.

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.

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.

1.   The Commission shall adopt an implementing act setting out its finding of non-compliance (‘the non-compliance decision’) where it finds that a gatekeeper does not comply with one or more of the following:

(a)	any of the obligations laid down in Article 5, 6 or 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.

That implementing act shall be adopted in accordance with the advisory procedure referred to in Article 50(2).

2.   The Commission shall endeavour to adopt its non-compliance decision within 12 months from the opening of proceedings pursuant to Article 20.

3.   Before adopting the non-compliance decision, the Commission shall communicate its preliminary findings to the gatekeeper concerned. In those preliminary findings, the Commission shall explain the measures it is considering taking or that it considers that the gatekeeper should take in order to effectively address the preliminary findings.

4.   Where it intends to adopt a non-compliance decision, the Commission may consult third parties.

5.   In the non-compliance decision, the Commission shall order the gatekeeper to cease and desist with the non-compliance within an appropriate deadline and to provide explanations on how it plans to comply with that decision.

6.   The gatekeeper shall provide the Commission with the description of the measures that it has taken to ensure compliance with the non-compliance decision.

7.   Where the Commission decides not to adopt a non-compliance decision, it shall close the proceedings by a decision.

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.

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.

1.   Before adopting a decision pursuant to Article 8, Article 9(1), Article 10(1), Articles 17, 18, 24, 25, 29 and 30 and Article 31(2), the Commission shall give the gatekeeper or undertaking or association of undertakings concerned the opportunity of being heard on:

(a)	preliminary findings of the Commission, including any matter to which the Commission has taken objection; and

(b)	measures that the Commission may intend to take in view of the preliminary findings pursuant to point (a) of this paragraph.

2.   Gatekeepers, undertakings and associations of undertakings concerned may submit their observations to the Commission concerning the Commission’s preliminary findings within a time limit set by the Commission in its preliminary findings which may not be less than 14 days.

3.   The Commission shall base its decisions only on preliminary findings, including any matter to which the Commission has taken objection, on which gatekeepers, undertakings and associations of undertakings concerned have been able to comment.

4.   The rights of defence of the gatekeeper, undertaking or association of undertakings concerned shall be fully respected in any proceedings. The gatekeeper, undertaking or association of undertakings concerned shall be entitled to have access to the Commission's file under terms of disclosure, subject to the legitimate interest of undertakings in the protection of their business secrets. In the case of disagreement between the parties, the Commission may adopt decisions setting out those terms of disclosure. The right of access to the file of the Commission shall not extend to confidential information and internal documents of the Commission or the competent authorities of the Member States. In particular, the right of access shall not extend to correspondence between the Commission and the competent authorities of the Member States. Nothing in this paragraph shall prevent the Commission from disclosing and using information necessary to prove an infringement.

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.

1.   In proceedings for the application of this Regulation, national_courts may ask the Commission to transmit to them information in its possession or its opinion on questions concerning the application of this Regulation.

2.   Member States shall forward to the Commission a copy of any written judgment of national_courts deciding on the application of this Regulation. Such copy shall be forwarded without delay after the full written judgment is notified to the parties.

3.   Where the coherent application of this Regulation so requires, the Commission, acting on its own initiative, may submit written observations to national_courts. With the permission of the court in question, it may also make oral observations.

4.   For the purpose of the preparation of their observations only, the Commission may request the relevant national_court to transmit or ensure the transmission to the Commission of any documents necessary for the assessment of the case.

5.   National courts shall not give a decision which runs counter to a decision adopted by the Commission under this Regulation. They shall also avoid giving decisions which would conflict with a decision contemplated by the Commission in proceedings it has initiated under this Regulation. To that effect, the national_court may assess whether it is necessary to stay its proceedings. This is without prejudice to the possibility for national_courts to request a preliminary ruling under Article 267 TFEU.

1.   The Commission may adopt implementing acts laying down detailed arrangements for the application of the following:

(a)	the form, content and other details of notifications and submissions pursuant to Article 3;

(b)	the form, content and other details of the technical measures that gatekeepers shall implement in order to ensure compliance with Article 5, 6 or 7;

(c)	operational and technical arrangements in view of implementing interoperability of number-independent_interpersonal_communications_services pursuant to Article 7;

(d)	the form, content and other details of the reasoned request pursuant to Article 8(3);

(e)	the form, content and other details of the reasoned requests pursuant to Articles 9 and 10;

(f)	the form, content and other details of the regulatory reports delivered pursuant to Article 11;

(g)

the methodology and procedure for the audited description of techniques used for profiling of consumers provided for in Article 15(1); when developing a draft implementing act for this purpose, the Commission shall consult the European Data Protection Supervisor and may consult the European Data Protection Board, civil society and other relevant experts;

(h)	the form, content and other details of notifications and submissions made pursuant to Articles 14 and 15;

(i)	the practical arrangements of the proceedings concerning the market investigations pursuant to Articles 17, 18 and 19, and proceedings pursuant to Articles 24, 25 and 29;

(j)	the practical arrangements for exercising rights to be heard provided for in Article 34;

(k)	the practical arrangements for the terms of disclosure provided for in Article 34;

(l)	the practical arrangements for the cooperation and coordination between the Commission and national authorities provided for in Articles 37 and 38; and

(m)	the practical arrangements for the calculation and extension of deadlines.

2.   The implementing acts referred to in paragraph 1, points (a) to (k), and point (m) of this Article shall be adopted in accordance with the advisory procedure referred to in Article 50(2).

The implementing act referred to in paragraph 1, point (l), of this Article shall be adopted in accordance with the examination procedure referred to in Article 50(3).

3.   Before the adoption of any implementing act pursuant to paragraph 1, the Commission shall publish a draft thereof and invite all interested parties to submit their comments within a time limit, which may not be less than one month.