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Document 02022R1925-20221012
Regulation (EU) 2022/1925 of the European Parliament and of the Council of 14 September 2022 on contestable and fair markets in the digital sector and amending Directives (EU) 2019/1937 and (EU) 2020/1828 (Digital Markets Act) (Text with EEA relevance)
Consolidated text: Regulation (EU) 2022/1925 of the European Parliament and of the Council of 14 September 2022 on contestable and fair markets in the digital sector and amending Directives (EU) 2019/1937 and (EU) 2020/1828 (Digital Markets Act) (Text with EEA relevance)
Regulation (EU) 2022/1925 of the European Parliament and of the Council of 14 September 2022 on contestable and fair markets in the digital sector and amending Directives (EU) 2019/1937 and (EU) 2020/1828 (Digital Markets Act) (Text with EEA relevance)
02022R1925 — EN — 12.10.2022 — 000.002
This text is meant purely as a documentation tool and has no legal effect. The Union's institutions do not assume any liability for its contents. The authentic versions of the relevant acts, including their preambles, are those published in the Official Journal of the European Union and available in EUR-Lex. Those official texts are directly accessible through the links embedded in this document
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REGULATION (EU) 2022/1925 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 14 September 2022 on contestable and fair markets in the digital sector and amending Directives (EU) 2019/1937 and (EU) 2020/1828 (Digital Markets Act) (OJ L 265 12.10.2022, p. 1) |
Corrected by:
REGULATION (EU) 2022/1925 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
of 14 September 2022
on contestable and fair markets in the digital sector and amending Directives (EU) 2019/1937 and (EU) 2020/1828 (Digital Markets Act)
(Text with EEA relevance)
CHAPTER I
SUBJECT MATTER, SCOPE AND DEFINITIONS
Article 1
Subject matter and scope
This Regulation shall not apply to markets related to:
electronic communications networks as defined in Article 2, point (1), of Directive (EU) 2018/1972;
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.
This Regulation is without prejudice to the application of Articles 101 and 102 TFEU. It is also without prejudice to the application of:
national competition rules prohibiting anti-competitive agreements, decisions by associations of undertakings, concerted practices and abuses of dominant positions;
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
Council Regulation (EC) No 139/2004 ( 1 ) and national rules concerning merger control.
Article 2
Definitions
For the purposes of this Regulation, the following definitions apply:
‘gatekeeper’ means an undertaking providing core platform services, designated pursuant to Article 3;
‘core platform service’ means any of the following:
online intermediation services;
online search engines;
online social networking services;
video-sharing platform services;
number-independent interpersonal communications services;
operating systems;
web browsers;
virtual assistants;
cloud computing services;
online advertising services, including any advertising networks, advertising exchanges and any other advertising intermediation services, provided by an undertaking that provides any of the core platform services listed in points (a) to (i);
‘information society service’ means any service as defined in Article 1(1), point (b), of Directive (EU) 2015/1535;
‘digital sector’ means the sector of products and services provided by means of, or through, information society services;
‘online intermediation services’ means online intermediation services as defined in Article 2, point (2), of Regulation (EU) 2019/1150;
‘online search engine’ means an online search engine as defined in Article 2, point (5), of Regulation (EU) 2019/1150;
‘online social networking service’ means a platform that enables end users to connect and communicate with each other, share content and discover other users and content across multiple devices and, in particular, via chats, posts, videos and recommendations;
‘video-sharing platform service’ means a video-sharing platform service as defined in Article 1(1), point (aa), of Directive 2010/13/EU;
‘number-independent interpersonal communications service’ means a number-independent interpersonal communications service as defined in Article 2, point (7), of Directive (EU) 2018/1972;
‘operating system’ means a system software that controls the basic functions of the hardware or software and enables software applications to run on it;
‘web browser’ means a software application that enables end users to access and interact with web content hosted on servers that are connected to networks such as the Internet, including standalone web browsers as well as web browsers integrated or embedded in software or similar;
‘virtual assistant’ means a software that can process demands, tasks or questions, including those based on audio, visual, written input, gestures or motions, and that, based on those demands, tasks or questions, provides access to other services or controls connected physical devices;
‘cloud computing service’ means a cloud computing service as defined in Article 4, point (19), of Directive (EU) 2016/1148 of the European Parliament and of the Council ( 2 );
‘software application stores’ means a type of online intermediation services, which is focused on software applications as the intermediated product or service;
‘software application’ means any digital product or service that runs on an operating system;
‘payment service’ means a payment service as defined in Article 4, point (3) of Directive (EU) 2015/2366;
‘technical service supporting payment service’ means a service within the meaning of Article 3, point (j), of Directive (EU) 2015/2366;
‘payment system for in-app purchases’ means a software application, service or user interface which facilitates purchases of digital content or digital services within a software application, including content, subscriptions, features or functionality, and the payments for such purchases;
‘identification service’ means a type of service provided together with or in support of core platform services that enables any type of verification of the identity of end users or business users, regardless of the technology used;
‘end user’ means any natural or legal person using core platform services other than as a business user;
‘business user’ means any natural or legal person acting in a commercial or professional capacity using core platform services for the purpose of or in the course of providing goods or services to end users;
‘ranking’ means the relative prominence given to goods or services offered through online intermediation services, online social networking services, video-sharing platform services or virtual assistants, or the relevance given to search results by online search engines, as presented, organised or communicated by the undertakings providing online intermediation services, online social networking services, video-sharing platform services, virtual assistants or online search engines, irrespective of the technological means used for such presentation, organisation or communication and irrespective of whether only one result is presented or communicated;
‘search results’ means any information in any format, including textual, graphic, vocal or other outputs, returned in response to, and related to, a search query, irrespective of whether the information returned is a paid or an unpaid result, a direct answer or any product, service or information offered in connection with the organic results, or displayed along with or partly or entirely embedded in them;
‘data’ means any digital representation of acts, facts or information and any compilation of such acts, facts or information, including in the form of sound, visual or audiovisual recording;
‘personal data’ means personal data as defined in Article 4, point (1), of Regulation (EU) 2016/679;
‘non-personal data’ means data other than personal data;
‘undertaking’ means an entity engaged in an economic activity, regardless of its legal status and the way in which it is financed, including all linked enterprises or connected undertakings that form a group through the direct or indirect control of an enterprise or undertaking by another;
‘control’ means the possibility of exercising decisive influence on an undertaking, within the meaning of Article 3(2) of Regulation (EC) No 139/2004;
‘interoperability’ means the ability to exchange information and mutually use the information which has been exchanged through interfaces or other solutions, so that all elements of hardware or software work with other hardware and software and with users in all the ways in which they are intended to function;
‘turnover’ means the amount derived by an undertaking within the meaning of Article 5(1) of Regulation (EC) No 139/2004;
‘profiling’ means profiling as defined in Article 4, point (4), of Regulation (EU) 2016/679;
‘consent’ means consent as defined in Article 4, point (11), of Regulation (EU) 2016/679;
‘national court’ means a court or tribunal of a Member State within the meaning of Article 267 TFEU.
CHAPTER II
GATEKEEPERS
Article 3
Designation of gatekeepers
An undertaking shall be designated as a gatekeeper if:
it has a significant impact on the internal market;
it provides a core platform service which is an important gateway for business users to reach end users; and
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.
An undertaking shall be presumed to satisfy the respective requirements in paragraph 1:
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;
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;
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.
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.
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).
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:
the size, including turnover and market capitalisation, operations and position of that undertaking;
the number of business users using the core platform service to reach end users and the number of end users;
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;
any scale and scope effects from which the undertaking benefits, including with regard to data, and, where relevant, to its activities outside the Union;
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;
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
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.
Article 4
Review of the status of gatekeeper
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:
there has been a substantial change in any of the facts on which the designation decision was based;
the designation decision was based on incomplete, incorrect or misleading information.
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.
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.
CHAPTER III
PRACTICES OF GATEKEEPERS THAT LIMIT CONTESTABILITY OR ARE UNFAIR
Article 5
Obligations for gatekeepers
The gatekeeper shall not do any of the following:
process, for the purpose of providing online advertising services, personal data of end users using services of third parties that make use of core platform services of the gatekeeper;
combine personal data from the relevant core platform service with personal data from any further core platform services or from any other services provided by the gatekeeper or with personal data from third-party services;
cross-use personal data from the relevant core platform service in other services provided separately by the gatekeeper, including other core platform services, and vice versa; and
sign in end users to other services of the gatekeeper in order to combine personal data,
unless the end user has been presented with the specific choice and has given consent within the meaning of Article 4, point (11), and Article 7 of Regulation (EU) 2016/679.
Where the consent given for the purposes of the first subparagraph has been refused or withdrawn by the end user, the gatekeeper shall not repeat its request for consent for the same purpose more than once within a period of one year.
This paragraph is without prejudice to the possibility for the gatekeeper to rely on Article 6(1), points (c), (d) and (e) of Regulation (EU) 2016/679, where applicable.
The gatekeeper shall provide each advertiser to which it supplies online advertising services, or third parties authorised by advertisers, upon the advertiser’s request, with information on a daily basis free of charge, concerning each advertisement placed by the advertiser, regarding:
the price and fees paid by that advertiser, including any deductions and surcharges, for each of the relevant online advertising services provided by the gatekeeper,
the remuneration received by the publisher, including any deductions and surcharges, subject to the publisher’s consent; and
the metrics on which each of the prices, fees and remunerations are calculated.
In the event that a publisher does not consent to the sharing of information regarding the remuneration received, as referred to in point (b) of the first subparagraph, the gatekeeper shall provide each advertiser free of charge with information concerning the daily average remuneration received by that publisher, including any deductions and surcharges, for the relevant advertisements.
The gatekeeper shall provide each publisher to which it supplies online advertising services, or third parties authorised by publishers, upon the publisher’s request, with free of charge information on a daily basis, concerning each advertisement displayed on the publisher’s inventory, regarding:
the remuneration received and the fees paid by that publisher, including any deductions and surcharges, for each of the relevant online advertising services provided by the gatekeeper;
the price paid by the advertiser, including any deductions and surcharges, subject to the advertiser’s consent; and
the metrics on which each of the prices and remunerations are calculated.
In the event an advertiser does not consent to the sharing of information, the gatekeeper shall provide each publisher free of charge with information concerning the daily average price paid by that advertiser, including any deductions and surcharges, for the relevant advertisements.
Article 6
Obligations for gatekeepers susceptible of being further specified under Article 8
For the purposes of the first subparagraph, the data that is not publicly available shall include any aggregated and non-aggregated data generated by business users that can be inferred from, or collected through, the commercial activities of business users or their customers, including click, search, view and voice data, on the relevant core platform services or on services provided together with, or in support of, the relevant core platform services of the gatekeeper.
The gatekeeper shall allow and technically enable end users to easily change default settings on the operating system, virtual assistant and web browser of the gatekeeper that direct or steer end users to products or services provided by the gatekeeper. That includes prompting end users, at the moment of the end users’ first use of an online search engine, virtual assistant or web browser of the gatekeeper listed in the designation decision pursuant to Article 3(9), to choose, from a list of the main available service providers, the online search engine, virtual assistant or web browser to which the operating system of the gatekeeper directs or steers users by default, and the online search engine to which the virtual assistant and the web browser of the gatekeeper directs or steers users by default.
The gatekeeper shall not be prevented from taking, to the extent that they are strictly necessary and proportionate, measures to ensure that third-party software applications or software application stores do not endanger the integrity of the hardware or operating system provided by the gatekeeper, provided that such measures are duly justified by the gatekeeper.
Furthermore, the gatekeeper shall not be prevented from applying, to the extent that they are strictly necessary and proportionate, measures and settings other than default settings, enabling end users to effectively protect security in relation to third-party software applications or software application stores, provided that such measures and settings other than default settings are duly justified by the gatekeeper.
The gatekeeper shall not be prevented from taking strictly necessary and proportionate measures to ensure that interoperability does not compromise the integrity of the operating system, virtual assistant, hardware or software features provided by the gatekeeper, provided that such measures are duly justified by the gatekeeper.
For that purpose, the gatekeeper shall publish general conditions of access, including an alternative dispute settlement mechanism.
The Commission shall assess whether the published general conditions of access comply with this paragraph.
Article 7
Obligation for gatekeepers on interoperability of number-independent interpersonal communications services
The gatekeeper shall make at least the following basic functionalities referred to in paragraph 1 interoperable where the gatekeeper itself provides those functionalities to its own end users:
following the listing in the designation decision pursuant to Article 3(9):
end-to-end text messaging between two individual end users;
sharing of images, voice messages, videos and other attached files in end to end communication between two individual end users;
within 2 years from the designation:
end-to-end text messaging within groups of individual end users;
sharing of images, voice messages, videos and other attached files in end-to-end communication between a group chat and an individual end user;
within 4 years from the designation:
end-to-end voice calls between two individual end users;
end-to-end video calls between two individual end users;
end-to-end voice calls between a group chat and an individual end user;
end-to-end video calls between a group chat and an individual end user.
Article 8
Compliance with obligations for gatekeepers
The Commission may adopt an implementing act, specifying the measures that the gatekeeper concerned is to implement in order to effectively comply with the obligations laid down in Articles 6 and 7. That implementing act shall be adopted within 6 months from the opening of proceedings pursuant to Article 20 in accordance with the advisory procedure referred to in Article 50(2).
When opening proceedings on its own initiative for circumvention pursuant to Article 13, such measures may concern the obligations laid down in Articles 5, 6 and 7.
In its request, the gatekeeper shall provide a reasoned submission to explain the measures that it intends to implement or has implemented. The gatekeeper shall furthermore provide a non-confidential version of its reasoned submission that may be shared with third parties pursuant to paragraph 6.
In respect of proceedings pursuant to paragraph 2, the Commission may, upon request or on its own initiative, decide to reopen them where:
there has been a material change in any of the facts on which the decision was based; or
the decision was based on incomplete, incorrect or misleading information; or
the measures as specified in the decision are not effective.
Article 9
Suspension
Article 10
Exemption for grounds of public health and public security
Article 11
Reporting
The gatekeeper shall update that report and that non-confidential summary at least annually.
The Commission shall make a link to that non-confidential summary available on its website.
Article 12
Updating obligations for gatekeepers
The scope of a delegated act adopted in accordance with paragraph 1 shall be limited to:
extending an obligation that applies only in relation to certain core platform services, to other core platform services listed in Article 2, point (2);
extending an obligation that benefits certain business users or end users so that it benefits other business users or end users;
specifying the manner in which the obligations laid down in Articles 5 and 6 are to be performed by gatekeepers in order to ensure effective compliance with those obligations;
extending an obligation that applies only in relation to certain services provided together with, or in support of, core platform services to other services provided together with, or in support of, core platform services;
extending an obligation that applies only in relation to certain types of data to apply in relation to other types of data;
adding further conditions where an obligation imposes certain conditions on the behaviour of a gatekeeper; or
applying an obligation that governs the relationship between several core platform services of the gatekeeper to the relationship between a core platform service and other services of the gatekeeper.
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.
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:
that practice is engaged in by gatekeepers and is capable of impeding innovation and limiting choice for business users and end users because it:
affects or risks affecting the contestability of a core platform service or other services in the digital sector on a lasting basis due to the creation or strengthening of barriers to entry for other undertakings or to expand as providers of a core platform service or other services in the digital sector; or
prevents other operators from having the same access to a key input as the gatekeeper; or
there is an imbalance between the rights and obligations of business users and the gatekeeper obtains an advantage from business users that is disproportionate to the service provided by that gatekeeper to those business users.
Article 13
Anti-circumvention
Article 14
Obligation to inform about concentrations
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.
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.
The Commission shall take account of the legitimate interest of undertakings in the protection of their business secrets.
Article 15
Obligation of an audit
The gatekeeper shall make publicly available an overview of the audited description referred to in paragraph 1. In doing so, the gatekeeper shall be entitled to take account of the need to respect its business secrets. The gatekeeper shall update that description and that overview at least annually.
CHAPTER IV
MARKET INVESTIGATION
Article 16
Opening of a market investigation
The decision referred to in paragraph 1 shall specify:
the date of opening of the market investigation;
the description of the issue to which the market investigation relates to;
the purpose of the market investigation.
The Commission may reopen a market investigation that it has closed where:
there has been a material change in any of the facts on which a decision adopted pursuant to Article 17, 18 or 19 was based; or
the decision adopted pursuant to Article 17, 18 or 19 was based on incomplete, incorrect or misleading information.
Article 17
Market investigation for designating gatekeepers
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).
Article 18
Market investigation into systematic non-compliance
Article 19
Market investigation into new services and new practices
That report shall be submitted to the European Parliament and to the Council and, where appropriate, shall be accompanied by:
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
a draft delegated act supplementing this Regulation with regard to the obligations laid down in Articles 5 and 6, or a draft delegated act amending or supplementing this Regulation with regard to the obligations laid down in Article 7, as provided for in Article 12.
Where appropriate, the legislative proposal to amend this Regulation under point (a) of the second subparagraph may also propose to remove existing services from the list of core platform services laid down in Article 2, point (2), or to remove existing obligations from Article 5, 6 or 7.
CHAPTER V
INVESTIGATIVE, ENFORCEMENT AND MONITORING POWERS
Article 20
Opening of proceedings
Article 21
Requests for information
Article 22
Power to carry out interviews and take statements
Article 23
Powers to conduct inspections
The officials and other accompanying persons authorised by the Commission to conduct an inspection are empowered to:
enter any premises, land and means of transport of undertakings and associations of undertakings;
examine the books and other records related to the business, irrespective of the medium on which they are stored;
take or obtain in any form copies of or extracts from such books or records;
require the undertaking or association of undertakings to provide access to and explanations on its organisation, functioning, IT system, algorithms, data-handling and business practices and to record or document the explanations given by any technical means;
seal any business premises and books or records for the duration of, and to the extent necessary for, the inspection;
ask any representative or member of staff of the undertaking or association of undertakings for explanations of facts or documents relating to the subject-matter and purpose of the inspection, and to record the answers by any technical means.
Article 24
Interim measures
In case of urgency due to the risk of serious and irreparable damage for business users or end users of gatekeepers, the Commission may adopt an implementing act ordering interim measures against a gatekeeper on the basis of a prima facie finding of an infringement of Article 5, 6 or 7. That implementing act shall be adopted only in the context of proceedings opened with a view to the possible adoption of a non-compliance decision pursuant to Article 29(1). It shall apply only for a specified period of time and may be renewed in so far this is necessary and appropriate. That implementing act shall be adopted in accordance with the advisory procedure referred to in Article 50(2).
Article 25
Commitments
The Commission may, upon request or on its own initiative, reopen by decision the relevant proceedings, where:
there has been a material change in any of the facts on which the decision was based;
the gatekeeper concerned acts contrary to its commitments;
the decision was based on incomplete, incorrect or misleading information provided by the parties;
the commitments are not effective.
Article 26
Monitoring of obligations and measures
Article 27
Information by third parties
Article 28
Compliance function
The management body of the gatekeeper shall also ensure that such head of the compliance function is an independent senior manager with distinct responsibility for the compliance function.
The head of the compliance function shall not be removed without prior approval of the management body of the gatekeeper.
Compliance officers appointed by the gatekeeper pursuant to paragraph 1 shall have the following tasks:
organising, monitoring and supervising the measures and activities of the gatekeepers that aim to ensure compliance with this Regulation;
informing and advising the management and employees of the gatekeeper on compliance with this Regulation;
where applicable, monitoring compliance with commitments made binding pursuant to Article 25, without prejudice to the Commission being able to appoint independent external experts pursuant to Article 26(2);
cooperating with the Commission for the purpose of this Regulation.
Article 29
Non-compliance
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:
any of the obligations laid down in Article 5, 6 or 7;
measures specified by the Commission in a decision adopted pursuant to Article 8(2);
remedies imposed pursuant to Article 18(1);
interim measures ordered pursuant to Article 24; or
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).
Article 30
Fines
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:
any of the obligations laid down in Articles 5, 6 and 7;
measures specified by the Commission in a decision adopted pursuant to Article 8(2);
remedies imposed pursuant to Article 18(1);
interim measures ordered pursuant to Article 24; or
commitments made legally binding pursuant to Article 25.
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:
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;
fail to comply with the obligation to notify the Commission according to Article 3(3);
fail to notify information or supply incorrect, incomplete or misleading information that is required pursuant to Article 14;
fail to submit the description or supply incorrect, incomplete or misleading information that is required pursuant to Article 15;
fail to provide access to data, algorithms or information about testing in response to a request made pursuant to Article 21(3);
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;
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;
refuse to submit to an inspection pursuant to Article 23;
fail to comply with the obligations imposed by the Commission pursuant to Article 26;
fail to introduce a compliance function in accordance with Article 28; or
fail to comply with the conditions for access to the Commission’s file pursuant to Article 34(4).
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 31
Periodic penalty payments
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:
to comply with the measures specified by the Commission in a decision adopted pursuant to Article 8(2);
to comply with the decision pursuant to Article 18(1);
to supply correct and complete information within the time limit required by a request for information made by decision pursuant to Article 21;
to ensure access to data, algorithms and information about testing in response to a request made pursuant to Article 21(3) and to supply explanations on those as required by a decision pursuant to Article 21;
to submit to an inspection which was ordered by a decision taken pursuant to Article 23;
to comply with a decision ordering interim measures taken pursuant to Article 24;
to comply with commitments made legally binding by a decision pursuant to Article 25(1);
to comply with a decision pursuant to Article 29(1).
Article 32
Limitation periods for the imposition of penalties
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:
requests for information by the Commission;
written authorisations to conduct inspections issued to its officials by the Commission;
the opening of a proceeding by the Commission pursuant to Article 20.
Article 33
Limitation periods for the enforcement of penalties
The limitation period for the enforcement of penalties shall be interrupted:
by notification of a decision varying the original amount of the fine or periodic penalty payment or refusing an application for variation; or
by any action of the Commission or of a Member State, acting at the request of the Commission, designed to enforce payment of the fine or periodic penalty payment.
The limitation period for the enforcement of penalties shall be suspended for so long as:
time to pay is allowed; or
enforcement of payment is suspended pursuant to a decision of the Court of Justice or to a decision by a national court.
Article 34
Right to be heard and access to the file
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:
preliminary findings of the Commission, including any matter to which the Commission has taken objection; and
measures that the Commission may intend to take in view of the preliminary findings pursuant to point (a) of this paragraph.
Article 35
Annual reporting
The report referred to in paragraph 1 shall include:
a summary of the Commission’s activities including any adopted measures or decisions and ongoing market investigations in connection with this Regulation;
the findings resulting from the monitoring of the implementation by the gatekeepers of the obligations under this Regulation;
an assessment of the audited description referred to in Article 15;
an overview of the cooperation between the Commission and national authorities in connection with this Regulation;
an overview of the activities and tasks performed by the High Level Group of Digital Regulators, including how its recommendations as regards the enforcement of this Regulation are to be implemented.
Article 36
Professional secrecy
Article 37
Cooperation with national authorities
Article 38
Cooperation and coordination with national competent authorities enforcing competition rules
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.
Article 39
Cooperation with national courts
Article 40
The high-level group
The high-level group shall be composed of the following European bodies and networks:
Body of the European Regulators for Electronic Communications;
European Data Protection Supervisor and European Data Protection Board;
European Competition Network;
Consumer Protection Cooperation Network; and
European Regulatory Group of Audiovisual Media Regulators.
The high-level group may provide the Commission with advice and expertise in the areas falling within the competences of its members, including:
advice and recommendations within their expertise relevant for any general matter of implementation or enforcement of this Regulation; or
advice and expertise promoting a consistent regulatory approach across different regulatory instruments.
Article 41
Request for a market investigation
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:
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
one or more practices are not effectively addressed by this Regulation and might limit the contestability of core platform services or be unfair.
Article 42
Representative actions
Directive (EU) 2020/1828 shall apply to the representative actions brought against infringements by gatekeepers of provisions of this Regulation that harm or may harm the collective interests of consumers.
Article 43
Reporting of breaches and protection of reporting persons
Directive (EU) 2019/1937 shall apply to the reporting of all breaches of this Regulation and the protection of persons reporting such breaches.
CHAPTER VI
FINAL PROVISIONS
Article 44
Publication of decisions
Article 45
Review by the Court of Justice
In accordance with Article 261 TFEU, the Court of Justice has unlimited jurisdiction to review decisions by which the Commission has imposed fines or periodic penalty payments. It may cancel, reduce or increase the fine or periodic penalty payment imposed.
Article 46
Implementing provisions
The Commission may adopt implementing acts laying down detailed arrangements for the application of the following:
the form, content and other details of notifications and submissions pursuant to Article 3;
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;
operational and technical arrangements in view of implementing interoperability of number-independent interpersonal communications services pursuant to Article 7;
the form, content and other details of the reasoned request pursuant to Article 8(3);
the form, content and other details of the reasoned requests pursuant to Articles 9 and 10;
the form, content and other details of the regulatory reports delivered pursuant to Article 11;
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;
the form, content and other details of notifications and submissions made pursuant to Articles 14 and 15;
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;
the practical arrangements for exercising rights to be heard provided for in Article 34;
the practical arrangements for the terms of disclosure provided for in Article 34;
the practical arrangements for the cooperation and coordination between the Commission and national authorities provided for in Articles 37 and 38; and
the practical arrangements for the calculation and extension of deadlines.
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).
Article 47
Guidelines
The Commission may adopt guidelines on any of the aspects of this Regulation in order to facilitate its effective implementation and enforcement.
Article 48
Standardisation
Where appropriate and necessary, the Commission may mandate European standardisation bodies to facilitate the implementation of the obligations set out in this Regulation by developing appropriate standards.
Article 49
Exercise of the delegation
Article 50
Committee procedure
Where the opinion of the committee is to be obtained by written procedure, that procedure shall be terminated without result when, within the time limit for delivery of the opinion, the chair of the committee so decides or a simple majority of committee members so request.
Article 51
Amendment to Directive (EU) 2019/1937
In Point J of Part I of the Annex to Directive (EU) 2019/1937, the following point is added:
Regulation (EU) 2022/1925 of the European Parliament and of the Council of 14 September 2022 on contestable and fair markets in the digital sector and amending Directives (EU) 2019/1937 and (EU) 2020/1828 (Digital Markets Act) (OJ L 265, 21.9.2022, p. 1).’
Article 52
Amendment to Directive (EU) 2020/1828
In Annex I to Directive (EU) 2020/1828, the following point is added:
Regulation (EU) 2022/1925 of the European Parliament and of the Council of 14 September 2022 on contestable and fair markets in the digital sector and amending Directives (EU) 2019/1937 and (EU) 2020/1828 (Digital Markets Act) (OJ L 265, 21.9.2022, p. 1).’
Article 53
Review
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.
ANNEX
A. ‘General’
1. 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.
2. Article 2, points (20) and (21) set out the definitions of ‘end user’ and ‘business user’, which are common to all core platform services.
3. 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’
1. 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.
2. 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’
1. 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:
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.
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.
2. 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:
do not belong to the same category of core platform services pursuant to Article 2, point (2); or
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. |
( 1 ) 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).
( 2 ) 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).