LegalizeCommission Implementing Regulation (EU) 2023/814 of 14 April 2023 on detailed arrangements for the conduct of certain proceedings by the Commission pursuant to Regulation (EU) 2022/1925 of the European Parliament and of the Council (Text with EEA relevance)
THE EUROPEAN COMMISSION,
Having regard to the Treaty on the Functioning of the European Union,
Having regard to 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) (1), and in particular Article 46(1) points (a), (d), (e), (f), (h), (i), (j), (k) and (m) thereof,
After inviting all interested parties to submit their comments,
After consulting the Digital Markets Advisory Committee,
Whereas:
(1) Regulation (EU) 2022/1925 empowers the Commission to adopt implementing acts laying down detailed arrangements for the application of certain aspects of said Regulation. In compliance with the principle of good administration and the principle of legal certainty, it is necessary to lay down rules concerning in particular notifications, requests, reports and other submissions of information, including determination of effective dates for notifications and submissions of information, and the opening of proceedings under Regulation (EU) 2022/1925. It is also necessary to lay down rules concerning the exercise of the right to be heard and the right of access to file by the addressees of the Commission’s preliminary findings.
(2) In order to ensure a fair and efficient procedure as well as the effective and full enforcement of Regulation (EU) 2022/1925 and to provide legal certainty for all natural and legal persons concerned, it is important to lay down among others the framework for the provision of documents under Regulation (EU) 2022/1925. In particular, it is necessary to set out rules as regards the format and maximum length of documents, the use of languages and the procedure for the transmission and receipt of documents. Furthermore, it is necessary to set out rules on the information to be included by undertakings providing core platform services in notifications submitted pursuant to Article 3(3), first subparagraph, or submissions of information following a Commission request referred to in Article 3(3), second subparagraph, of Regulation (EU) 2022/1925. In the process of preparing a notification pursuant to Article 3(3) of Regulation (EU) 2022/1925 and Article 2 of this Regulation and within a reasonable timeframe before this notification, an undertaking providing core platform services should be able to engage in pre-notification contacts with the Commission in view of ensuring an effective notification procedure pursuant to Article 3(3) of Regulation (EU) 2022/1925. In carrying out its tasks under Regulation (EU) 2022/1925, the Commission will mainly have to rely on the information provided by the undertakings concerned. Therefore, it is particularly important that the information is correct, complete and not misleading and is provided within the time limits, where applicable.
(3) Regulation (EU) 2022/1925 requires a dedicated procedural framework taking into account the specificities of that Regulation. That framework should aim to set out a rapid and effective investigatory and enforcement process, while ensuring that the right to be heard of the parties to the proceedings is effectively protected. Clear and proportionate rules on the exercise of the right to be heard, including access to the file of the Commission, should thus be laid down. The undertaking or association of undertakings to whom the Commission has notified its preliminary findings should have the right to provide its views in writing within a time-limit that should be set by the Commission with a view to reconciling the efficiency and effectiveness of the procedure on the one hand and the possibility to exercise the right to be heard on the other. The addressee of the preliminary findings should have the right to set out succinctly the relevant facts and provide supporting documents. While the addressee of the preliminary findings should always have the right to obtain from the Commission the non-confidential versions of all documents mentioned in the preliminary findings, it should additionally be provided with access to all documents on the Commission’s file, without any redactions, under terms to be set out in a Commission decision. This access should be limited in certain situations, including when the disclosure of certain documents would harm the party that submitted them or where other interests prevail.
(4) When granting the undertakings or associations of undertakings concerned access to the file, the Commission should ensure the protection of business secrets and other confidential information in a proportionate manner. The Commission should be able to request undertakings or associations of undertakings that submit or have submitted documents, including statements, to identify business secrets or other confidential information. In order to ensure the effectiveness of the assessment of third parties’ comments to publications or consultations pursuant to Article 8(6), Article 18(5)and (6), and Articles 19(2) and 29(4) of Regulation (EU) 2022/1925, such comments should be treated as non-confidential for the purpose of granting access to file and of preparing Commission decisions, while giving third parties the right to request the redaction of the author’s and the sender’s name or other identifying information before the comments are shared with the addressee of the preliminary findings or with any other third party.
(5) The Commission should, before making documents available to the addressee of its preliminary findings, assess whether, with a view to an effective exercise of the right to be heard, the need to disclose is greater than the harm to the third party which might result from disclosure.
(6) In the interest of legal certainty, the time limits under Regulation (EU) 2022/1925 and this Regulation, including the time limits set by the Commission pursuant to those Regulations, should be governed by Council Regulation (EEC, Euratom) No 1182/71 (2). However, specific rules regarding time limits should be laid down to the extent necessary.
HAS ADOPTED THIS REGULATION:
CHAPTER I
SCOPE
Article 1
Subject matter and scope
This Regulation lays down detailed arrangements in relation to:
(1) the form, content and other details of notifications and submissions pursuant to Article 3, of reasoned requests pursuant to Article 8(3), Article 9 and Article 10, of regulatory reports pursuant to Article 11, and of notifications and submissions pursuant to Articles 14 and 15 of Regulation (EU) 2022/1925;
(2) proceedings pursuant to Article 29 of Regulation (EU) 2022/1925;
(3) the exercise of the right to be heard and the terms of disclosure provided for in Article 34 of Regulation (EU) 2022/1925;
(4) time limits.
CHAPTER II
NOTIFICATIONS, REQUESTS AND OTHER SUBMISSIONS
Article 2
Notifications and submissions of information following Commission requests
Notifications pursuant to Article 3(3), first subparagraph, of Regulation (EU) 2022/1925 shall contain all the information, including documents, indicated in the form set out in Annex I to this Regulation.
Submissions of information following a Commission request for information referred to in Article 3(3), second subparagraph, of Regulation (EU) 2022/1925 shall contain all the information, including documents, set out in the Commission’s request. The Commission may specify, in its request for information, which of the sections of the form set out in Annex I to this Regulation shall be completed.
If, in accordance with Article 3(5) of Regulation (EU) 2022/1925, the notifying undertaking wishes to submit, with its notification, sufficiently substantiated arguments to demonstrate that, exceptionally, although it meets all the thresholds in Article 3(2) of that Regulation, due to the circumstances in which the relevant core platform service operates, it does not satisfy the requirements of Article 3(1) of that Regulation, it shall provide such arguments in an annex to its notification. A separate annex shall be submitted for each distinct core platform service for which the notifying undertaking wishes to provide substantiated arguments. The notifying undertaking shall also clearly identify to which of the three cumulative requirements set out in Article 3(1) of Regulation (EU) 2022/1925 its arguments relate and, for each argument, it shall explain why the relevant core platform service exceptionally does not satisfy that requirement despite the fact that it meets the corresponding threshold laid down in Article 3(2) of that Regulation.
The information submitted to the Commission pursuant to paragraphs 1, 2 and 3 shall be correct, complete and not misleading. It shall be presented in a clear, well-structured and intelligible manner.
Where the notifying undertaking requests any piece of information supplied not to be published or otherwise disclosed to other parties, it shall submit that piece of information in a separate document, with each page being clearly marked ‘Business Secrets’, and provide reasons.
Notifications and submissions referred to in paragraphs 1, 2 and 3 shall be drafted in one of the official languages of the Union. The language of the procedure shall be the language of the notification referred to in paragraph 1 or, in the absence thereof, of the submission of information referred to in paragraph 2, unless the Commission and the undertaking concerned agree otherwise. Any annexes attached pursuant to paragraph 1 shall be submitted in their original language and, where their original language is not one of the official languages of the Union, they shall be accompanied by a faithful translation into the language of the procedure.
The notifications and submissions referred to in paragraphs 1, 2 and 3 shall be accompanied by written proof that the persons submitting them are authorised to act on behalf of the undertaking concerned.
The Commission may, upon reasoned request, exempt an undertaking from the obligation to provide specific documents or pieces of information required for the notification referred to in paragraph 1, where the Commission considers that compliance with those obligations is not necessary for its assessment of the notification pursuant to Article 3(4) of Regulation (EU) 2022/1925.
The Commission shall, without undue delay, acknowledge in writing to the undertaking concerned or its representatives receipt of notifications or submissions referred to in paragraphs 1, 2 and 3.
Article 3
Effective date of notifications and submissions of information
Where the information contained in a notification or in a submission of information or of substantiated arguments referred to in Article 2(1), (2) and (3) of this Regulation is incomplete in any material respect, the Commission shall inform the undertaking concerned or its representatives in writing without undue delay. In such a case, the notification or submission shall become effective on the date on which the complete information is received by the Commission or on the date on which the Commission informs the undertaking concerned that, in light of the relevant circumstances, the information requested is no longer necessary.
If a notification, or a submission of information or of substantiated arguments referred to in Article 2(1), (2) and (3) covers two or more core platform services, the Commission may specify that the information contained in the notification or submission is incomplete only in relation to one or more of those core platform services. In such a case, with respect to these core platform services only, the notification or the submission shall become effective on the date on which the complete information is received by the Commission or on the date on which the Commission informs the undertaking concerned that, in light of the relevant circumstances, the information requested is no longer necessary.
While a notification is under review, the notifying undertaking shall communicate the following to the Commission, without undue delay.
(a) any material changes in the facts presented in the notification or submission of information or of substantiated arguments referred to in Article 2(1), (2) or (3) coming to light subsequently to the relevant notification or submission, which the undertaking knows or ought to know;
(b) any new information coming to light subsequent to the notification or submission, which the undertaking knows or ought to know and which would have had to be submitted if known at the time of its notification or submission.
The Commission shall inform the undertaking concerned of the receipt of the communication concerning the material changes or new information pursuant to paragraph 3 in writing and without undue delay. Where such changes or information could have a significant effect on the Commission’s assessment of the notification, of the submission of information or of substantiated arguments referred to in Article 2(1), (2) or (3), the notification or submission shall be deemed to be effective on the date on which the relevant information is received by the Commission. The Commission shall inform the undertaking thereof.
For the purposes of this Article, partly or totally incorrect or misleading information shall be considered to constitute incomplete information.
Article 4
Format and length of documents
Documents submitted to the Commission under Regulation (EU) 2022/1925 shall comply with the format and page limits set out in Annex II to this Regulation.
The Commission may, upon reasoned request, authorise an undertaking or association of undertakings to exceed those page limits where and to the extent that the undertaking or association of undertakings substantiates that it is objectively impossible or exceedingly difficult to deal with particularly complex legal or factual issues within the relevant page limits.
Where a document submitted by an undertaking or an association of undertakings pursuant to this Regulation or to Regulation (EU) 2022/1925 does not comply with paragraphs 1 and 2, the Commission may request the undertaking or association of undertakings to put the document in order.
CHAPTER III
OPENING OF PROCEEDINGS
Article 5
Opening of proceedings
The Commission may decide to open proceedings with a view to adopting a decision pursuant to Article 29 of Regulation (EU) 2022/1925 at any point in time, but no later than the date on which it issues the preliminary findings pursuant to Article 29(3) of that Regulation.
The Commission shall make public the opening of proceedings.
CHAPTER IV
RIGHT TO BE HEARD AND ACCESS TO THE FILE
Article 6
Observations on preliminary findings
The addressee of preliminary findings pursuant to Article 34(1) of Regulation (EU) 2022/1925 may, within the time-limit set by the Commission pursuant to Article 34(2) of that Regulation, succinctly and in accordance with the format and length requirements for documents set out in Annex II to this Regulation, inform the Commission of its views in writing and submit evidence in support thereof. The Commission shall not be obliged to take account of written submissions received after the expiry of that time-limit.
Article 7
Identification and protection of confidential information
Unless otherwise provided for in Regulation (EU) 2022/1925 or Article 8 of this Regulation and without prejudice to paragraph 6 of this Article, information or documents collected or obtained by the Commission shall not be disclosed or made accessible by the Commission in so far as they contain business secrets or other confidential information of any natural or legal person.
When requesting information pursuant to Article 21 of Regulation (EU) 2022/1925 or, carrying out interviews pursuant to Article 22 of Regulation (EU) 2022/1925, the Commission shall inform the relevant natural or legal persons that, by providing information to the Commission, they agree that access to that information may be granted pursuant to Article 8 of this Regulation. In any event, the provisions of Article 8 shall apply to any document spontaneously submitted to the Commission under Regulation (EU) 2022/1925 or this Regulation.
Without prejudice to paragraph 2, the Commission may require natural or legal persons who are the originators of documents in its file to identify the documents, statements or parts thereof which they consider to contain business secrets or other confidential information. The Commission may also set a time-limit for natural or legal persons to identify any part of a Commission decision which in their view contains business secrets or other confidential information.
The Commission may set a time-limit for natural or legal persons to:
(a) substantiate in a specific manner their claims for business secrets and other confidential information for each individual document, statement or part thereof;
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