keyboard_tab Digital Market Act 2022/1925 EN

1.   The Commission may, upon request or on its own initiative, reconsider, amend or repeal at any moment a designation decision adopted pursuant to Article 3 for one of the following reasons:

2.   The Commission shall regularly, and at least every 3 years, review whether the gatekeepers continue to satisfy the requirements laid down in Article 3(1). That review shall also examine whether the list of core_platform_services of the gatekeeper which are individually an important gateway for business_users to reach end_users, as referred to in Article 3(1), point (b), needs to be amended. Those reviews shall have no suspending effect on the gatekeeper’s obligations.

The Commission shall also examine at least every year whether new undertakings providing core_platform_services satisfy those requirements.

Where the Commission, on the basis of the reviews pursuant to the first subparagraph, finds that the facts on which the designation of the undertakings providing core_platform_services as gatekeepers was based, have changed, it shall adopt a decision confirming, amending or repealing the designation decision.

3.   The Commission shall publish and update a list of gatekeepers and the list of the core_platform_services for which they need to comply with the obligations laid down in Chapter III on an on-going basis.

1.   The Commission is empowered to adopt delegated acts in accordance with Article 49 to supplement this Regulation with regard to the obligations laid down in Articles 5 and 6. Those delegated acts shall be based on a market investigation pursuant to Article 19 that has identified the need to keep those obligations up to date in order to address practices that limit the contestability of core_platform_services or that are unfair in the same way as the practices addressed by the obligations laid down in Articles 5 and 6.

2.   The scope of a delegated act adopted in accordance with paragraph 1 shall be limited to:

3.   The Commission is empowered to adopt delegated acts in accordance with Article 49 to amend this Regulation with regard to the list of basic functionalities identified in Article 7(2), by adding or removing functionalities of number-independent_interpersonal_communications_services.

Those delegated acts shall be based on a market investigation pursuant to Article 19 that has identified the need to keep those obligations up to date in order to address practices that limit the contestability of core_platform_services or that are unfair in the same way as the practices addressed by the obligations laid down in Article 7.

4.   The Commission is empowered to adopt delegated acts in accordance with Article 49 to supplement this Regulation in respect of the obligations in Article 7 by specifying the manner in which those obligations are to be performed in order to ensure effective compliance with those obligations. Those delegated acts shall be based on a market investigation pursuant to Article 19, which has identified the need to keep those obligations up to date in order to address practices that limit the contestability of core_platform_services or that are unfair in the same way as the practices addressed by the obligations laid down in Article 7.

5.   A practice as referred to in paragraphs 1, 3 and 4 shall be considered to limit the contestability of core_platform_services or to be unfair where:

1.   A gatekeeper shall inform the Commission of any intended concentration within the meaning of Article 3 of Regulation (EC) No 139/2004, where the merging entities or the target of concentration provide core_platform_services or any other services in the digital_sector or enable the collection of data, irrespective of whether it is notifiable to the Commission under that Regulation or to a competent national competition authority under national merger rules.

A gatekeeper shall inform the Commission of such a concentration prior to its implementation and following the conclusion of the agreement, the announcement of the public bid, or the acquisition of a controlling interest.

2.   The information provided by the gatekeeper pursuant to paragraph 1 shall at least describe the undertakings concerned by the concentration, their Union and worldwide annual turnovers, their fields of activity, including activities directly related to the concentration, and the transaction value of the agreement or an estimation thereof, along with a summary of the concentration, including its nature and rationale and a list of the Member States concerned by the concentration.

The information provided by the gatekeeper shall also describe, for any relevant core_platform_services, their Union annual turnovers, their numbers of yearly active business_users and their numbers of monthly active end_users, respectively.

3.   If, following any concentration referred to in paragraph 1 of this Article, additional core_platform_services individually meet the thresholds in Article 3(2), point (b), the gatekeeper concerned shall inform the Commission thereof within 2 months from the implementation of the concentration and provide the Commission with the information referred to in Article 3(2).

4.   The Commission shall inform the competent authorities of the Member States of any information received pursuant to paragraph 1 and publish annually the list of acquisitions of which it has been informed by gatekeepers pursuant to that paragraph.

The Commission shall take account of the legitimate interest of undertakings in the protection of their business secrets.

5.   The competent authorities of the Member States may use the information received under paragraph 1 of this Article to request the Commission to examine the concentration pursuant to Article 22 of Regulation (EC) No 139/2004.

1.   In order to carry out its duties under this Regulation, the Commission may, by simple request or by decision, require from undertakings and associations of undertakings to provide all necessary information. The Commission may also, by simple request or by decision, require access to any data and algorithms of undertakings and information about testing, as well as requesting explanations of them.

2.   When sending a simple request for information to an undertaking or association of undertakings, the Commission shall state the legal basis and purpose of the request, specify what information is required and fix the time limit within which the information is to be provided, as well as the fines provided for in Article 30 applicable for supplying incomplete, incorrect or misleading information or explanations.

3.   Where the Commission requires undertakings and associations of undertakings to supply information by decision, it shall state the legal basis and purpose of the request, specify what information is required and fix the time limit within which the information is to be provided. Where the Commission requires undertakings to provide access to any data, algorithms and information about testing, it shall state the purpose of the request and fix the time -limit within which it is to be provided. It shall also indicate the fines provided for in Article 30 and indicate or impose the periodic penalty payments provided for in Article 31. It shall further indicate the right to have the decision reviewed by the Court of Justice.

4.   The undertakings or associations of undertakings or their representatives shall supply the information requested on behalf of the undertaking or the association of undertakings concerned. Lawyers duly authorised to act may supply the information on behalf of their clients. The latter shall remain fully responsible if the information supplied is incomplete, incorrect or misleading.

5.   At the request of the Commission, the competent authorities of the Member States shall provide the Commission with all necessary information in their possession to carry out the duties assigned to it by this Regulation.

1.   In order to carry out its duties under this Regulation, the Commission may conduct all necessary inspections of an undertaking or association of undertakings.

2.   The officials and other accompanying persons authorised by the Commission to conduct an inspection are empowered to:

3.   To carry out inspections, the Commission may request the assistance of auditors or experts appointed by the Commission pursuant to Article 26(2), as well as the assistance of the national competent authority of the Member State, enforcing the rules referred to in Article 1(6) in whose territory the inspection is to be conducted.

4.   During inspections the Commission, auditors or experts appointed by it and the national competent authority of the Member State, enforcing the rules referred to in Article 1(6) in whose territory the inspection is to be conducted may require the undertaking or association of undertakings to provide access to and explanations on its organisation, functioning, IT system, algorithms, data-handling and business conducts. The Commission and auditors or experts appointed by it and the national competent authority of the Member State, enforcing the rules referred to in Article 1(6) in whose territory the inspection is to be conducted may address questions to any representative or member of staff.

5.   The officials and other accompanying persons authorised by the Commission to conduct an inspection shall exercise their powers upon production of a written authorisation specifying the subject matter and purpose of the inspection and the fines provided for in Article 30 applicable in the event that the production of the required books or other records related to the business is incomplete or where the answers to questions asked under paragraphs 2 and 4 of this Article are incorrect or misleading. In good time before the inspection, the Commission shall give notice of the inspection to the national competent authority of the Member State enforcing the rules referred to in Article 1(6) in whose territory it is to be conducted.

6.   undertakings or associations of undertakings are required to submit to an inspection ordered by a Commission decision. That decision shall specify the subject matter and purpose of the inspection, set the date on which it is to begin and indicate the fines and periodic penalty payments provided for in Articles 30 and 31 respectively, and the right to have that decision reviewed by the Court of Justice.

7.   Officials of, and the persons authorised or appointed by, the national competent authority of the Member State enforcing the rules referred to in Article 1(6) in whose territory the inspection is to be conducted shall, at the request of that authority or of the Commission, actively assist the officials and other accompanying persons authorised by the Commission. To this end, they shall enjoy the powers set out in paragraphs 2 and 4 of this Article.

8.   Where the officials and other accompanying persons authorised by the Commission find that an undertaking or association of undertakings opposes an inspection ordered pursuant to this Article, the Member State concerned shall afford them the necessary assistance, requesting, where appropriate, the assistance of the police or of an equivalent enforcement authority, so as to enable them to conduct their inspection.

9.   If, according to national rules, the assistance provided for in paragraph 8 of this Article requires authorisation from a judicial authority, the Commission or the national competent authority of the Member State enforcing the rules referred to in Article 1(6) or officials authorised by those authorities shall apply for it. Such authorisation may also be applied for as a precautionary measure.

10.   Where authorisation referred to in paragraph 9 of this Article is applied for, the national judicial authority shall verify that the Commission decision is authentic and that the coercive measures envisaged are neither arbitrary nor excessive having regard to the subject matter of the inspection. In its control of the proportionality of the coercive measures, the national judicial authority may ask the Commission, directly or through the national competent authority of the Member State, enforcing the rules referred to in Article 1(6), for detailed explanations in particular on the grounds the Commission has for suspecting infringement of this Regulation, as well as on the seriousness of the suspected infringement and on the nature of the involvement of the undertaking concerned. However, the national judicial authority may not call into question the necessity of the inspection nor demand that it be provided with the information in the file of the Commission. The lawfulness of the Commission decision shall be subject to review only by the Court of Justice.

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:

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:

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 Commission may adopt a decision imposing on undertakings, including gatekeepers where applicable, and associations of undertakings periodic penalty payments not exceeding 5 % of the average daily worldwide turnover in the preceding financial year per day, calculated from the date set by that decision, in order to compel them:

2.   Where the undertakings, or associations of undertakings, have satisfied the obligation which the periodic penalty payment was intended to enforce, the Commission may adopt an implementing act, setting the definitive amount of the periodic penalty payment at a figure lower than that which would arise under the original decision. That implementing act shall be adopted in accordance with the advisory procedure referred to in Article 50(2).

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:

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:

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.