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:

(a) electronic communications networks as defined in Article 2, point (1), of Directive (EU) 2018/1972;

(b) electronic communications services as defined in Article 2, point (4), of Directive (EU) 2018/1972, other than those related to number-independent interpersonal communications services.

This Regulation is without prejudice to the application of Articles 101 and 102 TFEU. It is also without prejudice to the application of:

(a) national competition rules prohibiting anti-competitive agreements, decisions by associations of undertakings, concerted practices and abuses of dominant positions;

(b) national competition rules prohibiting other forms of unilateral conduct insofar as they are applied to undertakings other than gatekeepers or amount to the imposition of further obligations on gatekeepers; and

(c) Council Regulation (EC) No 139/2004 (¹) and national rules concerning merger control.

Article 2

Definitions

For the purposes of this Regulation, the following definitions apply:

(1) ‘gatekeeper’ means an undertaking providing core platform services, designated pursuant to Article 3;

(2) ‘core platform service’ means any of the following: (a) online intermediation services; (b) online search engines; (c) online social networking services; (d) video-sharing platform services; (e) number-independent interpersonal communications services; (f) operating systems; (g) web browsers; (h) virtual assistants; (i) cloud computing services; (j) 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);

(3) ‘information society service’ means any service as defined in Article 1(1), point (b), of Directive (EU) 2015/1535;

(4) ‘digital sector’ means the sector of products and services provided by means of, or through, information society services;

(5) ‘online intermediation services’ means online intermediation services as defined in Article 2, point (2), of Regulation (EU) 2019/1150;

(6) ‘online search engine’ means an online search engine as defined in Article 2, point (5), of Regulation (EU) 2019/1150;

(7) ‘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;

(8) ‘video-sharing platform service’ means a video-sharing platform service as defined in Article 1(1), point (aa), of Directive 2010/13/EU;

(9) ‘number-independent interpersonal communications service’ means a number-independent interpersonal communications service as defined in Article 2, point (7), of Directive (EU) 2018/1972;

(10) ‘operating system’ means a system software that controls the basic functions of the hardware or software and enables software applications to run on it;

(11) ‘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;

(12) ‘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;

(13) ‘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);

(14) ‘software application stores’ means a type of online intermediation services, which is focused on software applications as the intermediated product or service;

(15) ‘software application’ means any digital product or service that runs on an operating system;

(16) ‘payment service’ means a payment service as defined in Article 4, point (3) of Directive (EU) 2015/2366;

(17) ‘technical service supporting payment service’ means a service within the meaning of Article 3, point (j), of Directive (EU) 2015/2366;

(18) ‘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;

(19) ‘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;

(20) ‘end user’ means any natural or legal person using core platform services other than as a business user;

(21) ‘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;

(22) ‘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;

(23) ‘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;

(24) ‘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;

(25) ‘personal data’ means personal data as defined in Article 4, point (1), of Regulation (EU) 2016/679;

(26) ‘non-personal data’ means data other than personal data;

(27) ‘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;

(28) ‘control’ means the possibility of exercising decisive influence on an undertaking, within the meaning of Article 3(2) of Regulation (EC) No 139/2004;

(29) ‘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;

(30) ‘turnover’ means the amount derived by an undertaking within the meaning of Article 5(1) of Regulation (EC) No 139/2004;

(31) ‘profiling’ means profiling as defined in Article 4, point (4), of Regulation (EU) 2016/679;

(32) ‘consent’ means consent as defined in Article 4, point (11), of Regulation (EU) 2016/679;

(33) ‘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:

(a) it has a significant impact on the internal market;

(b) it provides a core platform service which is an important gateway for business users to reach end users; and

(c) it enjoys an entrenched and durable position, in its operations, or it is foreseeable that it will enjoy such a position in the near future.

An undertaking shall be presumed to satisfy the respective requirements in paragraph 1:

(a) as regards paragraph 1, point (a), where it achieves an annual Union turnover equal to or above EUR 7,5 billion in each of the last three financial years, or where its average market capitalisation or its equivalent fair market value amounted to at least EUR 75 billion in the last financial year, and it provides the same core platform service in at least three Member States;

(b) as regards paragraph 1, point (b), where it provides a core platform service that in the last financial year has at least 45 million monthly active end users established or located in the Union and at least 10 000 yearly active business users established in the Union, identified and calculated in accordance with the methodology and indicators set out in the Annex;

(c) as regards paragraph 1, point (c), where the thresholds in point (b) of this paragraph were met in each of the last three financial years.

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:

(a) the size, including turnover and market capitalisation, operations and position of that undertaking;

(b) the number of business users using the core platform service to reach end users and the number of end users;

(c) network effects and data driven advantages, in particular in relation to that undertaking’s access to, and collection of, personal data and non-personal data or analytics capabilities;

(d) any scale and scope effects from which the undertaking benefits, including with regard to data, and, where relevant, to its activities outside the Union;

(e) business user or end user lock-in, including switching costs and behavioural bias reducing the ability of business users and end users to switch or multi-home;

(f) a conglomerate corporate structure or vertical integration of that undertaking, for instance enabling that undertaking to cross subsidise, to combine data from different sources or to leverage its position; or

(g) other structural business or service characteristics.

In carrying out its assessment under this paragraph, the Commission shall take into account foreseeable developments in relation to the elements listed in the second subparagraph, including any planned concentrations involving another undertaking providing core platform services or providing any other services in the digital sector or enabling the collection of data.

Where an undertaking providing a core platform service that does not satisfy the quantitative thresholds of paragraph 2 fails to comply with the investigative measures ordered by the Commission in a significant manner, and that failure persists after that undertaking has been invited to comply within a reasonable time limit and to submit observations, the Commission may designate that undertaking as a gatekeeper on the basis of the facts available to the Commission.

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:

(a) there has been a substantial change in any of the facts on which the designation decision was based;

(b) 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:

(a) 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;

(b) 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;

(c) 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

(d) 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:

(a) 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,

(b) the remuneration received by the publisher, including any deductions and surcharges, subject to the publisher’s consent; and

(c) 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:

(a) 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;

(b) the price paid by the advertiser, including any deductions and surcharges, subject to the advertiser’s consent; and

(c) 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.