Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on contestable and fair markets in the digital sector (Digital Markets Act)
Date: 2020-12-15
Institutions: Directorate-General for Communications Networks, Content and Technology, European Commission
Subjects: Internet, competition law, consumer protection, digital economy, digital single market, electronic commerce, goods and services, provision of services, unfair terms of contract

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   EUROPEAN COMMISSION  Brussels, 15.12.2020  COM(2020) 842 final 2020/0374 (COD)  Proposal for a  REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on contestable and fair markets in the digital sector (Digital Markets Act) (Text with EEA relevance) {SEC(2020) 437 final} - {SWD(2020) 363 final} - {SWD(2020) 364 final}  
 
EXPLANATORY MEMORANDUM 

1. 

• 

CONTEXT OF THE PROPOSAL 

Reasons for and objectives of the proposal 

Digital  services  have  brought  important  innovative  benefits  for  users  and  contributed  to  the 
internal  market  by  opening  new  business  opportunities  and  facilitating  cross-border  trading. 
Today,  these  digital  services  cover  a  wide  range  of  daily  activities  including  online 
intermediation  services,  such  as  online  marketplaces,  online  social  networking  services, 
online  search  engines,  operating  systems  or  software  application  stores.  They  increase 
consumer choice, improve efficiency and  competitiveness  of industry and can enhance  civil 
participation in society. However, whereas over 10 000 online platforms operate in Europe’s 
digital economy, most of which are SMEs, a small number of large online platforms capture 
the biggest share of the overall value generated.  

Large  platforms  have  emerged  benefitting  from  characteristics  of  the  sector  such  as  strong 
network  effects,  often  embedded  in  their  own  platform  ecosystems,  and  these  platforms 
represent key structuring elements of today’s digital economy, intermediating the majority of 
transactions  between  end  users  and  business  users.  Many  of  these  undertakings  are  also 
comprehensively tracking and profiling end users.1 A few large platforms increasingly act as 
gateways or gatekeepers between business users and end users and enjoy an entrenched and 
durable  position,  often  as  a  result  of  the  creation  of  conglomerate  ecosystems  around  their 
core platform services, which reinforces existing entry barriers.  

As such, these gatekeepers have a major impact on, have substantial control over the access 
to,  and  are  entrenched  in  digital  markets,  leading  to  significant  dependencies  of  many 
business users on these gatekeepers, which leads, in certain cases, to unfair behaviour vis-à-
vis  these  business  users.  It  also  leads  to  negative  effects  on  the  contestability  of  the  core 
platform  services  concerned.  Regulatory  initiatives  by  Member  States  cannot  fully  address 
these  effects;  without  action  at  EU  level,  they  could  lead  to  a  fragmentation  of  the  Internal 
Market. 

Unfair practices and lack of contestability lead to inefficient outcomes in the digital sector in 
terms of higher prices, lower quality, as well as less choice and innovation to the detriment of 
European consumers. Addressing these problems is of utmost importance in view of the size 
of the digital  economy (estimated at  between 4.5% to  15.5% of global GDP in  2019 with  a 
growing trend) and the important role of online platforms in digital markets with its societal 
and economic implications.2 

Although some of these phenomena specific to the digital sector and to core platform services 
are  also  observed  to  some  extent  in  other  sectors  and  markets,  the  scope  of  the  proposal  is 
limited  to  the  digital  sector  as  there  the  problems  are  the  most  pressing  from  an  internal 
market perspective.  

1  Such  tracking  and  profiling  of  end  users  online  is  as  such  not  necessarily  an  issues,  but  it  is  important  to 
ensure  that  this  is  done  in  a  controlled  and  transparent  manner,  in  respect  of  privacy,  data  protection  and 
consumer protection. 

2  For example, the importance of ensuring a level playing field that supports essential values such as cultural 
diversity and media pluralism was for instance stressed by the Council in its conclusions on the strengthening 
of European content in the digital economy   and on safeguarding a free and pluralistic media system. 

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Weak  contestability  and  unfair  practices  in  the  digital  sector  are  more  frequent  and 
pronounced in certain digital services than others. This is the case in particular for widespread 
and  commonly  used  digital  services  and  infrastructures  that  mostly  directly  intermediate 
between  business  users  and  end  users.  The  enforcement  experience  under  EU  competition 
rules, numerous  expert reports and studies and the results of the  OPC show that there  are a 
number of digital services that have the following features: (i) highly concentrated multi-sided 
platform services, where usually one or very few large digital  platforms set  the commercial 
conditions with considerable autonomy; (ii) a few large digital platforms act as gateways for 
business  users  to  reach  their  customers  and  vice-versa;  and  (iii)  gatekeeper  power  of  these 
large digital platforms is often misused by means of unfair behaviour vis-à-vis economically 
dependent  business  users  and  customers.3  The  proposal  is  therefore  further  limited  to  a 
number  of  ‘core  platform  services’  where  the  identified  problems  are  most  evident  and 
prominent and where the presence of a limited number of large online platforms that serve as 
gateways for business users and end users has led or is likely to lead to weak contestability of 
these  services  and  of  the  markets  in  which  these  intervene.  These  core  platform  services 
include:  (i)  online  intermediation  services  (incl.  for  example  marketplaces,  app  stores  and 
online intermediation  services in  other sectors like mobility, transport or  energy) (ii)  online 
search engines, (iii) social networking (iv) video sharing platform services, (v) number-
independent  interpersonal  electronic  communication  services,  (vi)  operating  systems, 
(vii)  cloud  services  and  (viii)  advertising  services,  including  advertising  networks, 
advertising  exchanges  and  any  other  advertising  intermediation  services,  where  these 
advertising  services  are  being  related  to  one  or  more  of  the  other  core  platform  services 
mentioned above. 

The fact that a digital service qualifies as a core platform service does not mean that issues of 
contestability  and  unfair  practices  arise  in  relation  to  every  provider  of  these  core  platform 
services.  Rather,  these  concerns  appear  to  be  particularly  strong  when  the  core  platform 
service is operated by a gatekeeper. Providers of core platform providers can be deemed to 
be gatekeepers if they: (i) have a significant impact on the internal market, (ii) operate 
one or more important gateways to customers and (iii) enjoy or are expected to enjoy an 
entrenched and durable position in their operations. 

Such gatekeeper status can be determined either with reference to clearly circumscribed and 
appropriate quantitative metrics, which can serve as rebuttable presumptions to determine the 
status of specific providers as a gatekeeper, or based on a case-by-case qualitative assessment 
by means of a market investigation.  

The identified gatekeeper-related problems are currently not (or not effectively) addressed by 
existing  EU  legislation  or  national  laws  of  Member  States.  Although  legislative  initiatives 
have  been  taken  or  are  under  consideration  in  several  Member  States,  these  will  not  be 
sufficient to address the problems. Whilst such initiatives are limited to the national territory, 
gatekeepers typically operate cross-border, often at a global scale and also often deploy their 
business  models  globally.  Without  action  at  EU  level,  existing  and  pending  national 
legislation  has  the  potential  to  lead  to  increased  regulatory  fragmentation  of  the  platform 
space. 

The objective of the proposal is therefore to allow platforms to unlock their full potential by 
addressing at EU level the most salient incidences of unfair practices and weak contestability 

3  See also Section 5.2.1 of the Impact Assessment for further details. 

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so as to  allow end users and business  users alike to  reap the full benefits  of the platform 
economy and the the digital economy at large, in a contestable and fair environment.  

The  need  to  address  these  concerns  in  the  digital  economy  was  stressed  in  the  Commission 
Communication  ‘Shaping  Europe’s  digital  future’4  which  considered  that,  ‘based  on  the 
single  market  logic,  additional  rules  may  be  needed  to  ensure  contestability,  fairness  and 
innovation  and  the  possibility  of  market  entry,  as  well  as  public  interests  that  go  beyond 
competition or economic considerations’. It also announced that the Commission ‘will further 
explore,(…),  ex  ante  rules  to  ensure  that  markets  characterised  by  large  platforms  with 
significant network effects acting as gatekeepers, remain fair and contestable for innovators, 
businesses, and new market entrants’.  

Consistency with existing policy provisions in the policy area 

• 
This  proposal  builds  on  the  existing  P2B  Regulation5,  without  conflicting  with  it.  The 
definitions  used  in  the  present  proposal  are  coherent  with  that  Regulation,  in  particular  the 
definitions of ‘online intermediation services’ and ‘online search engines’. In addition to the 
baseline  of  transparency  and  fairness  rules  applicable  to  all  online  platforms  regardless  of 
their  size  or  position  introduced  in  the  P2B  Regulation,  the  present  proposal  establishes 
clearly defined obligations vis-a-vis a very limited number of cross-border providers of core 
platform  services  that  serve  as  important  gateways  for  business  users  to  reach  end  users. 
Finally,  the  Commission  can  benefit  in  its  enforcement  of  those  obligations  from  the 
transparency  that  online  intermediation  services  and  online  search  engines  have  to  provide 
under  the  P2B  Regulation  on  practices  that  could  be  illegal  under  the  list  of  obligations  if 
engaged in by gatekeepers. 

The proposal is also fully coherent with the proposal for a Digital Services Act (‘DSA’). The 
DSA is a horizontal initiative focusing on issues such as liability of online intermediaries for 
third  party  content,  safety  of  users  online  or  asymmetric  due  diligence  obligations  for 
different  providers  of  information  society  services  depending  on  the  nature  of  the  societal 
risks  such  services  represent.  In  contrast,  the  DMA  proposal  is  concerned  with  economic 
imbalances, unfair business practices by gatekeepers and their negative consequences, such as 
weakened contestability of platform markets. 

• 

Consistency with other Union policies 

The proposal is coherent with the Commission’s digital strategy in its contribution to ensuring 
a fair and competitive digital economy, one of the three main pillars of the policy orientation 
and  objectives  announced  in  the  Communication  ‘Shaping  Europe's  digital  future’.  It  will 
constitute a coherent, effective and proportionate framework to address problems in the digital 
economy that currently cannot be tackled or cannot be tackled effectively. 

The proposal  complements  existing EU (and national)  competition  rules.  It  addresses unfair 
practices  by  gatekeepers  that  either  fall  outside  the  existing  EU  competition  rules,  or  that 
cannot  be  as  effectively  addressed  by  these  rules,  considering  that  antitrust  enforcement 
concerns the situation of specific markets, inevitably intervenes after the restrictive or abusive 
conduct has occurred and involves investigative procedures to establish the infringement that 

4  Regulation (EU) 2019/1150 of  the European Parliament and of the  Council of 20 June  2019 on promoting 
fairness and transparency for business users of online intermediation services (Text with EEA relevance), OJ 
L 186, 11.7.2019, p. 57. 

5  Regulation (EU) 2019/1150 of the European Parliament and of the Council of 20 June  2019 on promoting 
fairness and transparency for business users of online intermediation services (Text with EEA relevance), OJ 
L 186, 11.7.2019, p. 57. 

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take time. The current proposal minimises the detrimental structural effects of unfair practices 
ex ante, without limiting the ability to intervene ex post under EU and national competition 
rules.  

The  proposal  is  aligned  with  other  EU  instruments,  including  with  the  EU  Charter  of 
Fundamental Rights  and the European Convention of Human Rights (‘ECHR’), the General 
Data Protection Regulation6, and the EU’s consumer law acquis.  

The  proposal  complements  the  data  protection  laws.  Transparency  obligations  on  deep 
consumer  profiling  will  help  inform  General  Data  Protection  Regulation  (‘GDPR’) 
enforcement, whereas mandatory opt-out for data combination across core platform services 
supplements the existing level of protection under the GDPR. The proposal clarifies that it is 
for the gatekeepers to ensure that compliance with the obligations laid down in the Regulation 
should be done in full compliance with other EU law, such as protection of personal data and 
privacy or consumer protection.  

The proposal is also coherent with the targeted and tailor-made ex ante regulation of specific 
sectors, including the rules applicable to electronic communication services or short-selling as 
well as with existing initiatives targeting harmful trading practices in the offline world.7  

2. 

• 

LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY 

Legal basis 

Member  States  apply  or  are  considering  to  apply  divergent  national  rules  to  address  the 
problems arising from the significant degree of dependency of business users on core platform 
services  provided  by  gatekeepers  and  the  consequent  problems  arising  from  their  unfair 
conduct vis-à-vis their business users. That situation creates regulatory fragmentation insofar 
as the rules on addressing unfairness in dependency relationships with such gatekeepers and 
contestability  regarding  those  services  diverge  in  particular  as  to  the  preconditions  to 
intervene and as to the depth of the intervention, and increase compliance costs for companies 
operating in  the internal market.  Without  action  at  EU level,  this will be further  aggravated 
with  the  adoption  of  new  initiatives  pending  in  several  Member  States,  whereas  in  other 
Member  States  the  unfairness  and  reduced  contestability  of  core  platform  services  provided 
by  gatekeepers  remain  unaddressed.  Given  the  intrinsic  cross-border  nature  of  the  core 
platform services provided by gatekeepers, regulatory fragmentation will seriously undermine 
the functioning of the Single Market for digital services as well as the functioning of digital 
markets  at  large.  Therefore,  harmonisation  at  EU  level  is  necessary  and  Article  114  of  the 
Treaty on the Functioning of the European Union (‘TFEU’) is the relevant legal basis for this 
initiative. 

6  Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection 
of natural persons with regard to the processing of personal data and on the free movement of such data, and 
repealing  Directive  95/46/EC  (General  Data  Protection  Regulation)  (Text  with  EEA  relevance),  OJ  L  119, 
4.5.2016, p. 1. 

7  See for example Directive (EU) 2019/633 of the European Parliament and of the Council of 17 April 2019 on 
unfair  trading  practices  in  business-to-business  relationships  in  the  agricultural  and  food  supply  chain.  To 
improve  farmers’  and  small  and  medium  sized  businesses’  position  in  the  agri-food  supply  chain,  the  EU 
adopted this legislation prohibiting certain unfair trading practices between weaker supplier towards stronger 
buyers. These include (but are not limited to): late payments for perishable food products, last minute order 
cancellations,  unilateral  changes  to  contracts,  refusal  to  enter  into  a  written  contract,  returning  unsold  or 
wasted products or payment for buyer’s marketing. 

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• 

Subsidiarity  

The  objectives  of  the  proposal  cannot  be  achieved  by  Member  States  acting  alone,  as  the 
problems are of a cross-border nature, and not limited to single Member States or to a subset 
of  Member  States.  The  digital  sector  as  such  and  in  particular  the  core  platform  services 
provided or offered by gatekeepers are of a cross-border nature, as is evidenced by the volume 
of cross-border trade, and the still untapped potential for future growth, as illustrated by the 
pattern and volume of cross-border trade intermediated by digital platforms. Almost 24% of 
total online trade in Europe is cross-border.  

Digital  players  typically  operate  across  several  Member  States,  if  not  on  an  EU-wide  basis, 
which,  today,  is  particularly  the  case  for  services  such  as  online  advertising,  online  social 
networking  services,  online  marketplaces,  cloud  computing  services,  online  search  services, 
video-sharing  platform  services,  number-independent  interpersonal  communication  services 
or  operating  systems.  Accordingly,  the  problems  identified  have  Union  relevance,  as  they 
arise across borders and affect several Member States, thus not being limited to the territory 
of  a  Member  State.8  That  is  in  particular  the  case  for  core  platform  services  provided  or 
offered by gatekeepers. 

Even  those  Member  States  who  have  not  yet  adopted  legislation  to  address  unfairness  and 
reduced  contestability  of  core  platform  services  provided  or  offered  by  gatekeepers  are 
increasingly considering national measures to that effect. Different national legislation within 
the  EU,  besides  being  insufficiently  effective,  may  lead  to  increased  fragmentation  and 
compliance  costs  for  large  market  players  and  the  business  users  that  rely  on  them.  At  the 
same time, start-ups and smaller businesses are also negatively impacted by this situation, as 
it  impedes  them  from  scaling-up  and  from  cross-border  expansion,  thereby  reaching  new 
markets, offering better and diversified products at more competitive prices and, as the case 
may  be,  growing  into  challengers  of  established  players  in  the  digital  sector.  Therefore,  by 
addressing  unfair  practices  in  respect  of  core  platform  services  operated  by  gatekeepers  at 
Union-level,  the  functioning  of  the  internal  market  will  be  improved  through  clear 
behavioural rules that give all stakeholders legal clarity and through an EU-wide intervention 
framework allowing to address effectively harmful practices in a timely and effective manner. 
One of the conditions for the designation as gatekeeper is that the provider of core platform 
services has a significant impact on the internal market.  

• 

Proportionality 

The  proposal  aims  to  contribute  to  the  proper  functioning  of  the  Single  Market  for  digital 
services  by  ensuring  that  markets  across  the  Union  where  gatekeepers  are  present  are 
contestable  and  fair.  This  should  promote  innovation,  high  quality  of  digital  products  and 
services, fair and competitive prices, and free choice for users in the digital sector. 

In this context, the proposal focuses only on those digital services that are most widely used 
by  business  users  and  end  users  (“core  platform  services”)  and  where,  based  on  current 
conditions, concerns about weak contestability and unfair practices by gatekeepers are more 
apparent  and  pressing  from  an  internal  market  perspective.  The  core  platform  services  in 

8  The  replies  of  citizens  and  stakeholders  to  the  Commission’s  Open  Public  Consultation  (‘OPC’)  and  the 
feedback  of  the  National  Competition  Authorities  (‘NCAs’)  replying  to  the  Commission’s  questionnaire 
indicate  that  market  failures  appear  to  be  widespread  across  the  Union,  in  particular  in  digital  markets  of 
cross-border  nature.  See  Summary  of  the  Stakeholder  Consultation  on  the  New  Competition  Tool  and 
Summary  of  the  contributions  of  the  NCAs  to  the  impact  assessment  of  the  new  competition  tool.  While 
respondents indicated that market failures may occur in all industry sectors, several respondents emphasised 
that they are particularly prominent in the digital sphere. See also Annex 5.4 of the Impact Assessment. 

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scope are only those where there is strong evidence of (i) high concentration, where usually 
one  or  very  few  large  online  platforms  set  the  commercial  conditions  with  considerable 
autonomy  from  their  (potential)  challengers,  customers  or  consumers;  (ii)  dependence  on  a 
few  large  online  platforms  acting  as  gateways  for  business  users  to  reach  and  have 
interactions with their customers; and (iii) the power by core platform service providers often 
being misused by means of unfair behavior vis-à-vis economically dependent business users 
and customers.  

The  proposal  therefore  applies  only  to  those  providers  that  meet  clearly  defined  criteria  for 
being considered a gatekeeper, which are set out above. The use of quantitative thresholds, as 
the  basis  of  a  rebuttable  presumption,  is  complemented  by  the  use  of  qualitative  criteria 
specified  in  the  proposal.  That  allows  the  Commission  to  designate  as  gatekeepers  the 
providers  of  core  platform  services  that  exhibit  the  same  or  similar  risks  for  fairness  and 
contestability of the market and at the same time guarantees that the obligations apply to the 
relevant providers of core platform services only. 

The list of obligations foreseen by the proposal has been limited to those practices (i) that are 
particularly unfair or harmful, (ii) which can be identified in a clear and unambiguous manner 
to provide the necessary legal certainty for gatekeepers and other interested parties, and (iii) 
for which there is sufficient experience. The proposal provides for the possibility of a tailored 
application  of  some  of  the  obligations  through  a  dialogue  between  the  Commission  and  the 
gatekeepers  concerned.  In  addition,  it  allows  to  cover  in  a  flexible  way  additional  practices 
that are similarly unfair  or that equally put fairness or contestability at risk after a thorough 
market investigation on the impact of those practices. This mechanism ensures that there is no 
over-regulation  while  at  the  same  time  avoiding  a  lack  of  intervention  in  relation  to  similar 
practices by the same gatekeepers, where practices may evolve over time. 

The proposed measures are proportionate since they achieve their objective by only imposing 
a burden on undertakings in the digital sector in a targeted manner. The proposal requires the 
cooperation  of  those  companies  that  are  subject  to  an  investigation,  but  the  administrative 
costs  would  be  proportional  and  would  be  unlikely  to  require  significant  additional  costs  in 
view of the already existing regulatory structures due to the application of other pieces of EU 
legislation  (e.g.  EU  Merger  Regulation;  Consumer  Protection  Cooperation  (‘CPC’) 
Regulation). As regards the compliance costs for gatekeepers, they would be reasonable, since 
they would largely substitute for the high costs that large providers of core platform services 
incur  for  complying  with  divergent  regulatory  measures  gradually  put  or  likely  to  be  put  in 
place in different Member States. Such costs would imply some additional legal compliance 
officers  to  check  company  policies  against  the  new  rules  and  some  employees  to  interface 
with the Commission and respond to requests for information.9  

• 

Choice of the instrument 

Only a legislative instrument can effectively address the problems identified. A Regulation is 
in addition necessary, as it is directly applicable in Member States, establishes the same level 
of rights and obligations for private parties, and enables the coherent and effective application 
of  rules  in  the  inherently  cross-border  online  intermediated  trade  generated  in  the  online 
platform economy. This is most suited to address the problems of fairness and contestability 
identified and prevent fragmentation of the Single Market for core platform services provided 
or offered by a gatekeeper. 

9  See Section 6.6.1. of the Impact Assessment for further analysis. 

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3. 

• 

RESULTS  OF  STAKEHOLDER  CONSULTATIONS  AND 
ASSESSMENTS 

IMPACT 

Stakeholder consultations 

The  Commission  has  consulted  widely  on  a  broad  range  of  online  platform-related  issues, 
including the economic power of very large online platforms with a gatekeeping role.  

First, between 2 June and 8 September 2020, the Commission ran two separate open public 
consultations which were referring to two separate Inception Impact Assessments for (i) the 
Digital  Services Act  package:  Ex ante regulatory instrument  for large online platforms with 
significant network effects acting as gate-keepers in the European Union’s internal market;10 
and the other one for (ii) the New Competition Tool.11  

Second,  the  Commission  ran  a  stakeholder  consultation  on  the  interim  reports  by  the 
Observatory for the Online Platform Economy12, supporting the current initiative.13 
Thirdly,  workshops,14  conferences15  as well as research conducted by the JRC informed the 
problem  definition  and  helped  identify  preliminary  policy  options.  In  addition  to  the 
consultation  tools  used,  the  Commission's  services  also  met  bilaterally  with  stakeholders  in 
the  context  of  the  public  consultations  and  the  feedback  period  for  the  inception  impact 
assessments.  

Finally,  a  structured  dialogue  with  Member  States,  notably  through  the  e-Commerce  expert 
group  and  bilateral  and  multilateral  exchanges  and  conferences  contributed  to  the  design  of 
policy options.  

In general, the public consultations offered strong support for an intervention tackling unfair 
practices  engaged  in  by  gatekeepers.  In  fact,  the  large  majority  of  the  respondents  to  the 
public  consultations  and  to  a  separate  questionnaire  addressed  to  national  competition 
authorities  agreed  that  there  are  structural  problems  that  cannot  be  addressed  under  the 
existing competition rules; the same majority believed that the Commission should be able to 
intervene  in  markets  where  gatekeepers  are  present.  This  view  was  expressed  by  a  large 
majority  of  businesses  and  business  associations,  all  civil  society  organisations  (including 
Non-Governmental  Organisations  (‘NGOs’)  and  trade  unions)  and  all  public  authorities.16 
Consumer  organisations  like  BEUC  have  also  prominently  flagged  the  particular  concerns 

10  https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/12418-Digital-Services-Act-package-
and 

ex-ante-regulatory-instrument-of-very-large-online-platforms-acting-as-gatekeepers 
https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/12416-New-competition-tool.  

11  The detailed overview of the results of these consultations is presented in Annex 2 to the Impact Assessment. 
12  https://platformobservatory.eu/.  
13  https://ec.europa.eu/digital-single-market/en/news/commission-expert-group-publishes-progress-reports-

online-platform-economy.  

14  Observatory  for  the  Online  Platform  Economy  Workshop  on  Market  power  and  Online  Advertising,  29 
January 2020; on 28 July 2020 and 10 September 2020 ICF, WIK-Consult GmbH, Cullen International, and 
CEPS  organised  high-level  academic  expert  panels  to  support  the  Commission  in  the  preparation  of  the 
Impact Assessment of platforms with significant network effects acting as gatekeeper.  

15  Such as the conference “Shaping competition policy in the era of digitisation”: 

https://ec.europa.eu/competition/scp19/.  

16  Summary of the Open Public Consultation Ex Ante Rules, Summary of the Stakeholder Consultation on the 
New Competition Tool and Summary of the contributions of the NCAs to the impact assessment of the new 
competition tool please see Annex 2 to the Impact Assessment.  

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surrounding  online  platforms  and  digital  markets.17  Those  respondents  considered  that  an 
intervention  tackling  these  concerns  would  both  create  the  right  innovation  incentives,  and 
contribute to increased consumer choice paving the way for new platforms and innovative and 
privacy-friendly services.  

Online platforms were split on the issue, with the majority of large online platforms and their 
representative  associations  questioning  the  need  for  a  new  gatekeeper  instrument.  On  the 
other side, many small and medium sized platforms, in particular those that are business users 
of large online platforms, expressed their support for a new gatekeeper instrument.  

Those disagreeing referred to the fact that the concept of a gatekeeper is too broad and should 
instead be assessed on a case-by-case basis and that the Commission can already intervene in 
the  case  of  the  conduct  of  a  gatekeeper  contravening  Article  102  TFEU.  However,  the 
Commission considered that Article 102 TFEU is not sufficient to deal with all the problems 
associated  with  gatekeepers,  given  that  a  gatekeeper  may  not  necessarily  be  a  dominant 
player, and its practices may not be captured by Article 102 TFEU if there is no demonstrable 
effect  on competition within clearly defined relevant  markets.  Moreover, Article 102 TFEU 
does not always allow intervening with the speed that is necessary to address these pressing 
practices in the most timely and thus most effective manner. 

The  vast  majority  of  respondents  also  considered  that  dedicated  rules  on  platforms  should 
include  prohibitions  and  obligations  for  gatekeeper  platforms.  They  also  suggested  that 
remedies  could  be  more  procedural  in  nature  rather  than  prescribing  a  given  course  of 
conduct.  The  large  majority  of  stakeholders  believed  that  the  proposed  list  of  problematic 
practices,  or  “blacklist”,  should  be  targeted  to  clearly  unfair  and  harmful  practices  of 
gatekeeper platforms. 

As  regards  the  definition  of  a  gatekeeping  position,  the  stakeholder  views  were  split.  Some 
platforms  argued  that  incorporating  different  services  into  the  offering  of  a  single  platform 
company says little about the strength of a platform, as would also be the case for the ability 
to  leverage  assets  from  one  area  to  another.  It  was  suggested  that  gatekeeper  designations 
should be business model agnostic, gatekeeper assessments should be reviewed periodically, 
gatekeeper designations should apply to identified activities, and some rules should apply on a 
sector-wide basis. 

In  general,  stakeholders  of  all  categories  pointed  out  the  need  to  ensure  a  high  level  of 
coherence and legal certainty, the need to ensure that the criteria used to identify gatekeepers 
should  be  transparent,  objective  and  easily  measurable.  Users  mostly  referred  to  a 
combination of both quantitative and qualitative criteria. 

National Authorities expressed their support for a new gatekeeper instrument and the need for 
an EU-level approach to avoid regulatory fragmentation, whilst emphasizing the importance 
of involving the responsible national government representatives in the legislative project in 
advance.  

Civil society and media publishers also strongly supported a new gatekeeper instrument. Both 
called  for  an  adequate  degree  of  transparency  in  the  market  as  well  as  the  guarantee  of  a 
certain degree of media diversity and the respect of consumers' autonomy and choice.  

 • 

Collection and use of expertise 

17  For example, BEUC’s reply to the  OPC states that the  “challenges posed in particular by  large  players in 
digital markets require new instruments in addition to traditional competition law enforcement in order to 
protect consumers’ interests in an effective and timely manner.”  

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The present initiative is supported by an impact assessment study and several external support 
studies.18  In  addition,  several  public  consultations  and  multiple  studies  and  reports  were 
carried  out  by  the  Commission  or  external  contractors  between  2018  and  2020.  The 
Observatory for the Online Platform Economy supported by its expert group of 15 academic 
experts as well as by a large support study, provided a number of reports and analytical papers 
feeding into the work on the definition of problems.  In-house economic research as well  as 
policy  design  support  by  the  Joint  Research  Centre  (‘JRC’)  further  informed  the  Impact 
Assessment  underlying this  initiative. Member States were in  addition  consulted through an 
online  consultation,  which  fed  into  a  meeting  of  the  e-commerce  expert  group  dedicated  to 
this  initiative.  Finally,  the  Commission  organised  a  number  of  conferences,  workshops  and 
meetings  with  academic  experts, whose views have contributed to  the problem framing and 
evidence  collection  strategy.  A  number  of  Member  States’  position  papers  on  gatekeeper 
platforms,  as  well  as  numerous  reports  and  studies  from  countries  outside  the  EU,  all 
contributed to the shaping of the instrument.19  

• 

Impact assessment 

The  Impact  Assessment  underpinning  the  proposal  was  considered  by  the  Commission's 
Regulatory  Scrutiny  Board,  which  issued  a  positive  opinion  on  10  December  2020.  The 
opinion of the Board, the recommendations and an explanation of how they have been taken 
into  account  are  included  in  Annex  1  of  the  Staff  Working  Document  accompanying  this 
proposal. Annex 3 provides an overview of who would be affected by this proposal and how. 

The  Commission  examined  different  policy  options  to  achieve  the  general  objective  of  the 
present  initiative,  which  is  to  ensure  the  proper  functioning  of  the  internal  market  by 
promoting  effective  competition  in  digital  markets  and  in  particular  a  contestable  and  fair 
online platform environment. 

In order to address the problems stemming from problematic gatekeeper conduct, three main 
policy  options  were  compared:  Option  1  -  Pre-defined  list  of  gatekeepers  and  self-
executing  obligations;  Option  2  -  Partially  flexible  framework  of  designation  and 
updating of obligations,  including regulatory dialogue for the implementation of some; 
and Option 3 - Flexible option based exclusively on qualitative scoping thresholds. Each 
of  these  options  left  more  detailed  design  choices  open  for  political  consideration,  for 
example around the precise combination and level of the quantitative scoping thresholds to be 
used or the exact scope of the remedies available in case of a systematic non-compliance with 
the obligations by the designated gatekeeper. 

All  options  envisaged  implementation,  supervision  and  enforcement  at  the  EU  level  by  the 
Commission as the competent regulatory body. Given the pan-European reach of the targeted 
companies, a decentralised enforcement model does not seem to be a conceivable alternative, 
including in light of the risk of regulatory fragmentation that the initiative is meant to address, 
nor would it be proportionate given the limited number of gatekeepers that would be in scope 
of  the  proposed  framework.  However,  to  integrate  the  national  expertise  in  the  platform 
economy,  the  initiative  envisages  that  the  Commission  consults  before  taking  certain 
decisions  (e.g.  on  non-compliance;  fines)  a  committee  composed  of  representatives  of 
Member States – the Digital Markets Advisory Committee.  

18  Impact Assessment Support Study (ICF);  M. Motta & M. Peitz (2020), Intervention trigger and underlying 
theories of harm - Expert advice for the Impact Assessment of a New Competition Tool; G. S. Crawford, P. 
Rey, & M. Schnitzer (2020), An Economic Evaluation of the EC’s Proposed “New Competition Tool”.  

19  See also Section 5 of Annex 1 of the Impact Assessment on the various sources of evidence used. 

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The preferred option (Option 2) is constituted by (a) a closed list of core platform services; 
(b)  a  combination  of  quantitative  and  qualitative  criteria  to  designate  providers  of  core 
platform  services  as  gatekeepers;  (c)  directly  applicable  obligations,  including  certain 
obligations where a regulatory dialogue may facilitate their effective implementation; and (d) 
a possibility for the Commission to update the instrument, following a market investigation, 
as regards the obligations for gatekeepers, by way of delegated acts insofar as new practices 
are identified that are equally unfair and likely to impair contestability and through amending 
proposals  in  the  other  cases.  Market  investigations  may  also  point  to  the  need  for  an 
amendment of the list of core platform services. 

This option was considered to be able to address in the most effective way the objectives of 
this initiative. It  provides  for timely intervention for all the identified problematic practices, 
while  allowing  for  some  of  these  a  regulatory  dialogue  for  implementing  measures  by  the 
designated gatekeeper. It further allows tackling new unfair practices, thus enabling to address 
market failures in the dynamically changing digital environment. At the same time, for those 
gatekeepers that are foreseen to have an entrenched and durable position in their operations in 
the  near  future,  but  who  do  not  yet  enjoy  such  a  position,  the  proposal  identifies  a 
proportionate  sub-set  of  obligations  that  are  particularly  relevant  to  safeguard  and  enhance 
contestability. 

The preferred option will increase the contestability of core platform services and the broader 
digital  sector,  and  it  will  help  businesses  overcome  the  barriers  stemming  from  market 
failures or from gatekeepers’ unfair business practices. This will help to foster the emergence 
of alternative platforms, which could deliver high-quality, innovative products and services at 
affordable  prices.  Fairer  and  more  equitable  conditions  for  all  players  in  the  digital  sector 
would allow them to take greater advantage of the growth potential of the platform economy.  

The  benefits  can  be  expected  to  lead  to  a  greater  innovation  potential  amongst  smaller 
businesses as well as an improved quality of service, with  associated increases in  consumer 
welfare. The improved contestability of core platform services under the preferred option has 
the  potential  to  yield  a  consumer  surplus  estimated  at  EUR  13  billion,  i.e.  an  increase  of 
around 6% as compared to the baseline scenario.20  

The  main  cost  relates  to  compliance  costs  for  gatekeepers  as  a  result  of  the  new  rules. 
Businesses  other  than  gatekeeper  platforms  may  incur  certain  administrative  costs  when 
complying with information requests. These latter costs are, however, unlikely to represent a 
substantial  increase  from  compliance  costs  businesses  would  otherwise  incur  due  to 
information requests in EU competition law cases or under different specific national rules. 

The  impacts  of  the  policy  options  on  different  categories  of  stakeholders  (gatekeepers, 
competitors,  business  users,  consumers,  regulatory  authorities)  are  explained  in  detail  in 
Annex  3  of  the  Impact  Assessment  supporting  this  initiative.  The  annex  also  assesses  the 
impact  of  each  obligation  per  stakeholder  category  impacted.  The  assessment  is  both 
quantitative and qualitative to the extent possible.  

Concerning  the  impact  of  the  initiative  on  SMEs,  since  they  are  very  unlikely  to  qualify  as 
gatekeepers  and  would  not  be  targeted  by  the  list  of  obligations,  this  initiative  would  not 
impose  an  additional  burden  on  them.  The  new  rules,  by  levelling  the  playing  field  would 
instead allow SMEs (including business users and other providers of core platforms services) 
to grow throughout the internal market as a result of the removal of important barriers to entry 
and  expansion.  It  could  be  expected  that  the  measures  envisaged  would  also  result  in  more 

20  See Annex 3 to the Impact Assessment.  

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competition  among  platforms  for  business  users.  This  is  expected  to  lead  to  higher  quality 
services at more competitive prices, coupled with a higher productivity. Business users would 
also have more confidence in selling online, as they would be protected from unfair practices. 

A  more  comprehensive  enforcement  toolkit  will  allow  businesses  to  thrive  on  the  merits  of 
their  abilities.  This  will  result  in  economic  growth,  which  in  turn  translates  into  higher  tax 
revenues for national administrations. The burden on the Commission for implementing this 
initiative is low (mainly redeployment of existing job positions) compared to the benefits for 
the economy. National authorities would have to bear some minor administrative costs. 

Fairness and enhanced contestability in the digital sector would result in higher productivity, 
which would translate into higher economic growth. The promotion of greater contestability 
of  core  platform  services  and  digital  markets  is  also  of  particular  importance  in  increasing 
trade and investment flows. 

• 

Regulatory fitness and simplification 

This proposal lays down measures that will apply to large providers of core platform services 
that  meet  the  conditions  to  be  designated  as  gatekeepers.  Other  providers  of  core  platform 
services and of ancillary services, business users and end users will benefit from the clearly 
defined  and  circumscribed  obligations  that  are  laid  down  therein.  The  proposal  also 
specifically  aims  at  facilitating  the  sustainable  growth  of  core  platform  services  and  the 
platform economy more broadly and is designed to be fully technologically-neutral.  

• 

Fundamental rights 

The  proposal  is  aligned  with  the  EU  Charter  of  Fundamental  Rights,  the  European 
Convention on Human Rights (‘ECHR’) as well as the GDPR.  

The introduction of the dynamic updating of unfair practices would be  subject to ensuring a 
full  respect  for  the  fundamental  rights  to  fair  proceedings  and  good  administration  as 
enshrined in the ECHR, which are binding on the EU institutions.  

When  acting  under  the  new  framework  the  Commission’s  investigation  powers  would  be 
subject  to  the  full  scope  of  fair  process  rights  such  as  the  right  to  be  heard,  the  right  to  a 
reasoned  decision  and  access  to  judicial  review,  including  the  possibility  to  challenge 
enforcement  and  sanctioning  measures.  These  rights  apply  in  case  of  administrative 
proceedings.21  

Moreover,  the  fair  and  trusted  legal  environment  that  this  proposal  aims  to  create  shall 
contribute to safeguarding an appropriate balance between the respective freedoms to conduct 
a business  of providers  of core platform services and their business  users (Article 16 of the 
Charter of Fundamental Rights of the European Union).  

4. 

BUDGETARY IMPLICATIONS 

In  order  to  optimally  achieve  the  objectives  of  this  initiative,  it  is  necessary  to  finance  a 
number  of  actions  both  at  the  Commission  level,  where  the  redeployment  of  80  FTEs  is 
envisaged, and at Member State level through their active participation in the Digital Markets 
Advisory Committee, composed of the representatives of Member States. The total financial 
resources  necessary  for  the  implementation  of  the  proposal  in  the  2021-2027  period  will 
amount  to  EUR  81,090  million,  including  EUR  50,640  million  of  administrative  costs  and 

21 Ibid, at Chapter V and Chapter X.  

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EUR 30,450 million entirely covered by the allocations foreseen in the MFF 2021-27 under 
the financial envelopes of the Single Market Programme and the Digital Europe Programme. 
The  financing  will  support  inter  alia  activities  such  as  carrying  out  the  designation  of 
providers  of  core  platform  services,  carrying  out  market  investigations  and  performing  any 
other investigative actions, enforcement actions and monitoring activities. The financing will 
also  support  carrying  out  a  regular  review  of  specific  elements  of  the  Regulation  and  an 
evaluation  of  the  Regulation,  a  continuous  evaluation  of  the  effectiveness  and  efficiency  of 
the  measures  implemented,  as  well  as  costs  linked  to  maintaining,  developing,  hosting, 
operating  and  supporting  a  central  information  system.  A  detailed  overview  of  the  costs 
involved is provided in the “’financial statement” linked to this initiative.  

5. 

• 

OTHER ELEMENTS 

Implementation plans and monitoring, evaluation and reporting arrangements 

Given  the  dynamic  nature  of  the  platform  economy,  the  monitoring  and  evaluation  of  the 
initiative constitutes an important part of the proposal. It also responds to explicit demands by 
stakeholders, including Member States, for a dedicated monitoring function, and reflects the 
importance  given  to  a  self-standing  monitoring  policy  option  considered  in  the  Inception 
Impact  Assessment.  The  monitoring  therefore  will  be  divided  into  two  parts:  (i)  continuous 
monitoring,  which  will  report  on  the  latest  developments  in  the  market  every  second  year, 
potentially  involving  the  EU  Observatory  of  the  Online  Platform  Economy,  and  (ii) 
operational objectives and specific indicators to measure them.  

Regular and continuous monitoring will cover the following main aspects:  (i) monitoring on 
scope-related  issues  (e.g.  criteria  for  the  designation  of  gatekeepers,  evolution  of  the 
designation of gatekeepers, use of the qualitative assessment in the designation process); (ii) 
monitoring  of  unfair  practices  (compliance,  enforcement  patterns,  evolution);  and  (iii) 
monitoring as a trigger for the launch of a market investigation with the purpose of examining 
new core platform services and practices in the digital sector. 

The monitoring will also take due account of the conceptual work of the Expert Group of the 
Online Platform Economy under its work stream on Measurement and Economic Indicators.22 

The  effectiveness  and  efficiency  of  the  proposal  will  in  addition  be  monitored  using  pre-
defined indicators to establish whether additional rules, including regarding enforcement, may 
be  required  to  ensure  that  digital  markets  across  the  EU  are  contestable  and  fair. 
Consequently, the impact of the intervention will be assessed in the context of an evaluation 
exercise and activate, if so required, a review clause, which will allow the Commission to take 
appropriate measures, including legislative proposals. 

Member States will also provide any relevant information they have that the Commission may 
require for the evaluation purposes.  

• 

Detailed explanation of the specific provisions of the proposal 

Chapter I sets out the general provisions, including the subject matter, aim and scope of the 
Regulation,  including  its  harmonising  effect  in  relation  to  certain  national  laws  (Article  1), 
and the definitions of the terms used in, as well as the objectives of the proposal (Article 2). 

22  https://platformobservatory.eu/app/uploads/2020/07/ProgressReport_Workstream_on_Measurement_and_ 

Economic_Indicators_2020.pdf. 

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Chapter  II  contains  the  provisions  concerning  the  designation  of  gatekeepers.  More 
specifically,  it  establishes  the  conditions  under  which  providers  of  core  platform  services 
should  be  designated  as  gatekeepers  either  based  on  the  quantitative  criteria  (through  a 
presumption subject to counter-demonstration) or following a case-by-case assessment during 
a market  investigation (Article 3). Furthermore,  it also  establishes conditions  under which a 
designation of a gatekeeper may be reconsidered and an obligation to regularly review such a 
designation (Article 4). 

Chapter III sets out the practices of gatekeepers that limit contestability and that are unfair. In 
particular,  it  lays  down  self-executing  obligations  (Article  5)  and  obligations  that  are 
susceptible to specification (Article 6) that the designated gatekeepers should comply with in 
respect  of each of their core platform services listed in  the relevant  designation decision.  In 
addition, it establishes a framework for a possible dialogue between the designated gatekeeper 
and  the  Commission  in  relation  to  measures  that  the  gatekeeper  implements  or  intends  to 
implement in order to comply with the obligations set out in Article 6 (Article 7). It also lays 
down conditions under which the obligations for an individual core platform service may be 
suspended  in  exceptional  circumstances  (Article  8)  or  an  exemption  can  be  granted  on 
grounds  of  public  interest  (Article  9).  Additional  provisions  in  this  Chapter  establish  a 
mechanism for updating the list of obligations (Article 10); a clarification that the obligations 
laid  down  in  the  Regulation  apply  regardless  of  whether  the  relevant  practice  of  the 
designated gatekeeper is of a contractual, commercial, technical or any other nature (Article 
11); an obligation to notify any intended concentration within the meaning of the EU Merger 
Regulation  (Article  12);  and  an  obligation  on  the  designated  gatekeeper  to  submit  any 
techniques for profiling of consumers that the gatekeeper applies to or across its core platform 
services to an independent audit (Article 13). 

Chapter  IV  provides  rules  for  carrying  out  market  investigations,  notably  procedural 
requirements for the opening of a market investigation (Article 14) and rules for carrying out 
different  types  of  market  investigations:  (i)  designation  of  a  gatekeeper  (Article  15),  (ii) 
investigation  of  systematic  non-compliance  (Article  16)  and  (iii)  investigation  of  new  core 
platform services and new practices (Article 17). 

Chapter  V  contains  the  provisions  concerning  the  implementation  and  enforcement  of  this 
Regulation.  It  provides  for  procedural  requirements  for  the  opening  of  proceedings  (Article 
18). It then establishes rules in relation to different tools that can be used in the context of the 
market  investigations  or  procedures  under  the  Regulation.  These  include  the  ability  of  the 
Commission  to  request  information  (Article  19),  conduct  interviews  and  take  statements 
(Article  20)  and  on-site  inspections  (Article  21),  adopt  interim  measures  (Article  22)  and 
make  voluntary  measures  binding  on  the  gatekeepers  (Article  23),  as  well  as  monitor  their 
compliance with the Regulation (Article 24).  

In case of non-compliance, the Commission can issue non-compliance decisions (Article 25), 
as well as impose fines (Article 26) and periodic penalty payments (Article 27) for breaches 
of  the  Regulation  by  gatekeepers,  as  well  as  for  the  supply  of  incorrect,  incomplete  or 
misleading  information  in  the  context  of  the  investigation.  The  Regulation  sets  also  a 
limitation  period  for  the  imposition  of  penalties  and  for  their  enforcement  (Articles  28  and 
29).  

Several  provisions  in  this  Chapter  set  the  procedural  guarantees  before  the  Commission,  in 
particular  the  right  to  be  heard  and  of  access  to  the  file  (Article  30)  and  the  protection  of 
professional secrecy (Article 31). It also provides for the consultation of the Digital Markets 

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Advisory Committee set up by this Regulation before adopting identified individual decisions 
addressed  to  gatekeepers  (Article  32).  Finally,  the  Regulation  provides  for  a  possibility  for 
three  or  more  Member  States  to  request  the  Commission  to  open  a  market  investigation 
pursuant to Article 15 (Article 33). 

Chapter VI contains further general provisions, such as an obligation to publish an identified 
set of individual decisions adopted under the Regulation (Article 34), a clarification that the 
Court  of  Justice  of  the  European  Union  shall  have  unlimited  jurisdiction  in  respect  of  fines 
and penalty payments (Article 35), and the possibility to adopt implementing (Article 36) and 
delegated (Article 37) acts.  

Finally,  the  remaining  provisions  in  this  Chapter  are  the  review  clause  (Article  38)  and  the 
specification of the entry into force and dates of application of the Regulation (Article 39). 

2020/0374 (COD) 

Proposal for a  

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

on contestable and fair markets in the digital sector (Digital Markets Act) 

(Text with EEA relevance) 

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Article 114 thereof, 

Having regard to the proposal from the European Commission, 

After transmission of the draft legislative act to the national parliaments, 
Having regard to the opinion of the European Economic and Social Committee23,  
Having regard to the opinion of the Committee of the Regions24,  
Having regard to the opinion of the European Data Protection Supervisor25, 

Acting in accordance with the ordinary legislative procedure, 

Whereas: 

(1) 

(2) 

Digital  services  in  general  and  online  platforms  in  particular  play  an  increasingly 
important role in the economy, in particular in the internal market, by providing new 
business opportunities in the Union and facilitating cross-border trading.  

Core platform services, at the same time, feature a number of characteristics that can 
be exploited by their providers. These characteristics of core platform services include 
among others extreme scale economies, which often result from nearly zero marginal 
costs to add business users or end users. Other characteristics of core platform services 

23 
24 
25 

OJ C , , p. . 
OJ C , , p. . 
OJ C , , p. . 

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are very strong network effects, an ability to connect many business users with many 
end  users  through  the  multi-sidedness  of  these  services,  a  significant  degree  of 
dependence  of  both  business  users  and  end  users,  lock-in  effects,  a  lack  of  multi-
homing  for  the  same  purpose  by  end  users,  vertical  integration,  and  data  driven-
advantages.  All  these  characteristics  combined  with  unfair  conduct  by  providers  of 
these services can have the effect of substantially undermining the contestability of the 
core platform services, as well as impacting the fairness of the commercial relationship 
between providers of such services and their business users and end users, leading to 
rapid and potentially far-reaching decreases in business users’ and end users’ choice in 
practice, and therefore can confer to the provider of those services the position of a so-
called gatekeeper. 

A  small  number  of  large  providers  of  core  platform  services  have  emerged  with 
considerable  economic  power.  Typically,  they  feature  an  ability  to  connect  many 
business users with many end users through their services which, in turn, allows them 
to leverage their advantages, such as their access to large amounts of  data, from one 
area of their activity to new ones. Some of these providers exercise control over whole 
platform ecosystems in the digital economy and are structurally extremely difficult to 
challenge  or  contest  by  existing  or  new  market  operators,  irrespective  of  how 
innovative and efficient these may be. Contestability is particularly reduced due to the 
existence of very high barriers to entry or exit, including high investment costs, which 
cannot, or not easily, be recuperated in case of exit, and absence of (or reduced access 
to)  some  key  inputs  in  the  digital  economy,  such  as  data.  As  a  result,  the  likelihood 
increases  that  the  underlying  markets  do  not  function  well  –  or  will  soon  fail  to 
function well.  

The  combination  of  those  features  of  gatekeepers  is  likely  to  lead  in  many  cases  to 
serious  imbalances  in  bargaining  power  and,  consequently,  to  unfair  practices  and 
conditions for business users as well as end users of core platform services provided 
by gatekeepers, to the detriment of prices, quality, choice and innovation therein.  

It  follows  that  the  market  processes  are  often  incapable  of  ensuring  fair  economic 
outcomes with regard to core platform services. Whereas Articles 101 and 102 TFEU 
remain  applicable  to  the  conduct  of  gatekeepers,  their  scope  is  limited  to  certain 
instances  of  market  power  (e.g.  dominance  on  specific  markets)  and  of  anti-
competitive  behaviour,  while  enforcement  occurs  ex  post  and  requires  an  extensive 
investigation of often very complex facts on a case by case basis. Moreover, existing 
Union law does not address, or does not address effectively, the identified challenges 
to  the  well-functioning  of  the  internal  market  posed  by  the  conduct  of  gatekeepers, 
which are not necessarily dominant in competition-law terms.  

Gatekeepers have a significant impact on the internal market, providing gateways for a 
large  number  of  business  users,  to  reach  end  users,  everywhere  in  the  Union  and  on 
different  markets.  The  adverse  impact  of  unfair  practices  on  the  internal  market  and 
particularly  weak  contestability  of  core  platform  services,  including  their  negative 
societal  and  economic  implications,  have  led  national  legislators  and  sectoral 
regulators to act. A number of national regulatory solutions have already been adopted 
or proposed to address unfair practices and the contestability of digital services or at 
least  with  regard  to  some  of  them.  This  has  created  a  risk  of  divergent  regulatory 
solutions  and  thereby  fragmentation  of  the  internal  market,  thus  raising  the  risk  of 
increased compliance costs due to different sets of national regulatory requirements.    

(3) 

(4) 

(5) 

(6) 

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(7) 

(8) 

(9) 

Therefore,  business  users  and  end-users  of  core  platform  services  provided  by 
gatekeepers  should  be  afforded  appropriate  regulatory  safeguards  throughout  the 
Union  against  the  unfair  behaviour  of  gatekeepers  in  order  to  facilitate  cross-border 
business within the Union and thereby improve the proper functioning of the internal 
market and to address existing or likely emerging  fragmentation in the specific areas 
covered  by  this  Regulation.  Moreover,  while  gatekeepers  tend  to  adopt  global  or  at 
least pan-European business models and algorithmic structures, they can adopt, and in 
some  cases  have  adopted,  different  business  conditions  and  practices  in  different 
Member States, which is liable to create disparities between the competitive conditions 
for  the  users  of  core  platform  services  provided  by  gatekeepers,  to  the  detriment  of 
integration within the internal market.  

By  approximating  diverging  national  laws,  obstacles  to  the  freedom  to  provide  and 
receive  services,  including  retail  services,  within  the  internal  market  should  be 
eliminated.  A  targeted  set  of  harmonised  mandatory  rules  should  therefore  be 
established at Union level to ensure contestable and fair digital markets featuring the 
presence of gatekeepers within the internal market. 

A  fragmentation  of  the  internal  market  can  only  be  effectively  averted  if  Member 
States  are  prevented  from  applying  national  rules  which  are  specific  to  the  types  of 
undertakings  and  services  covered  by  this  Regulation.  At  the  same  time,  since  this 
Regulation  aims  at  complementing  the  enforcement  of  competition  law,  it  should  be 
specified that this Regulation  is  without prejudice to  Articles 101 and 102 TFEU, to 
the  corresponding  national  competition  rules  and  to  other  national  competition  rules 
regarding  unilateral  behaviour  that  are  based  on  an  individualised  assessment  of 
market positions and behaviour, including its likely effects and the precise scope of the 
prohibited  behaviour,  and  which  provide  for  the  possibility  of  undertakings  to  make 
efficiency  and  objective  justification  arguments  for  the  behaviour  in  question. 
However, the application of the latter rules should not affect the obligations imposed 
on gatekeepers under this Regulation and their uniform and effective application in the 
internal market. 

(10)  Articles  101  and  102  TFEU  and  the  corresponding  national  competition  rules 
concerning  anticompetitive  multilateral  and  unilateral  conduct  as  well  as  merger 
control have as their objective the protection of undistorted competition on the market. 
This Regulation pursues an objective that is complementary to, but different from that 
of protecting undistorted competition on any given market, as defined in competition-
law  terms,  which  is  to  ensure  that  markets  where  gatekeepers  are  present  are  and 
remain contestable and fair, independently from the actual, likely or presumed effects 
of the conduct of a given gatekeeper covered by this Regulation on competition on a 
given  market.  This  Regulation  therefore  aims  at  protecting  a  different  legal  interest 
from those rules and should be without prejudice to their application. 

(11)  This  Regulation  should  also  complement,  without  prejudice  to  their  application,  the 
rules resulting from other acts of Union law regulating certain aspects of the provision 
of services covered by this Regulation, in particular Regulation (EU) 2019/1150 of the 
European  Parliament  and  of  the  Council26,  Regulation  (EU)  xx/xx/EU  [DSA]  of  the 

26 

Regulation  (EU)  2019/1150  of  the  European  Parliament  and  of  the  Council  of  20  June  2019  on 
promoting  fairness  and  transparency  for  business  users  of  online  intermediation  services  (OJ  L  186, 
11.7.2019, p. 57). 

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European Parliament and of the Council27, Regulation (EU) 2016/679 of the European 
Parliament and of the Council28, Directive (EU) 2019/790 of the European Parliament 
and of the Council29, Directive (EU) 2015/2366 of the European Parliament and of the 
Council30,  and  Directive  (EU)  2010/13  of  the  European  Parliament  and  of  the 
Council31,  as  well  as  national  rules  aimed  at  enforcing  or,  as  the  case  may  be, 
implementing that Union legislation.  

(12)  Weak  contestability  and  unfair  practices  in  the  digital  sector  are  more  frequent  and 
pronounced for certain digital services than for others. This is the case in particular for 
widespread  and  commonly  used  digital  services  that  mostly  directly  intermediate 
between  business  users  and  end  users  and  where  features  such  as  extreme  scale 
economies, very strong network effects, an ability to connect many business users with 
many end users through the multi-sidedness of these services, lock-in effects, a lack of 
multi-homing or vertical integration are the most prevalent. Often, there is only one or 
very  few  large  providers  of  those  digital  services.  These  providers  of  core  platform 
services have emerged most frequently as gatekeepers for business users and end users 
with far-reaching impacts, gaining the ability to easily set commercial conditions and 
terms  in  a  unilateral  and  detrimental  manner  for  their  business  users  and  end  users. 
Accordingly,  it  is  necessary  to  focus  only  on  those  digital  services  that  are  most 
broadly  used  by  business  users  and  end  users  and  where,  based  on  current  market 
conditions, concerns about weak contestability and unfair practices by gatekeepers are 
more apparent and pressing from an internal market perspective.  

(13) 

In particular, online intermediation services, online search engines, operating systems, 
online  social  networking,  video  sharing  platform  services,  number-independent 
interpersonal  communication  services,  cloud  computing  services  and  online 
advertising  services  all  have  the  capacity  to  affect  a  large  number  of  end  users  and 
businesses  alike,  which  entails  a  risk  of  unfair  business  practices.  They  therefore 
should be included in the definition of core platform services and fall into the scope of 
this  Regulation.  Online  intermediation  services  may  also  be  active  in  the  field  of 
financial  services,  and  they  may  intermediate  or  be  used  to  provide  such  services  as 
listed  non-exhaustively  in  Annex  II  to  Directive  (EU)  2015/1535  of  the  European 
Parliament  and  of  the  Council32.  In  certain  circumstances,  the  notion  of  end  users 

27 

28 

29 

30 

31 

32 

Regulation (EU) …/.. of the  European Parliament and of the Council   – proposal on a Single Market 
For Digital Services (Digital Services Act) and amending Directive 2000/31/EC. 
Regulation  (EU)  2016/679  of  the  European  Parliament  and  of  the  Council  of  27  April  2016  on  the 
protection of natural persons with regard to the processing of personal data and on the free movement of 
such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (OJ L 119, 4.5.2016, 
p. 1). 
Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright 
and related rights in the  Digital Single Market and amending  Directives 96/9/EC and 2001/29/ (OJ L 
130, 17.5.2019, p. 92.). 
Directive  (EU)  2015/2366  of  the  European  Parliament  and  of  the  Council  of  25  November  2015  on 
payment  services  in  the  internal  market,  amending  Directives  2002/65/EC,  2009/110/EC  and 
2013/36/EU  and  Regulation  (EU)  No  1093/2010,  and  repealing  Directive  2007/64/EC  (  OJ  L  337, 
23.12.2015, p. 35). 
Directive  2010/13/EU  of  the  European  Parliament  and  of  the  Council  of  10  March  2010  on  the 
coordination  of  certain  provisions  laid  down  by  law,  regulation  or  administrative  action  in  Member 
States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) 
(OJ L 95, 15.4.2010, p. 1). 
Directive (EU) 2015/1535 of the European Parliament and of the Council of 9 September 2015 laying 
down a procedure for the provision of information in the field of technical regulations and of rules on 
Information Society services, OJ L 241, 17.9.2015, p. 1. 

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should encompass users that are traditionally considered business users, but in a given 
situation  do  not  use  the  core  platform  services  to  provide  goods  or  services  to  other 
end  users,  such  as  for  example  businesses  relying  on  cloud  computing  services  for 
their own purposes. 

(14)  A  number  of  other  ancillary  services,  such  as  identification  or  payment  services  and 
technical services which support the provision of payment services, may be provided 
by  gatekeepers  together  with  their  core  platform  services.  As  gatekeepers  frequently 
provide  the  portfolio  of  their  services  as  part  of  an  integrated  ecosystem  to  which 
third-party providers of such ancillary services do not have access, at least not subject 
to equal conditions, and can link the access to the core platform service to take-up of 
one or more ancillary services, the gatekeepers are likely to have an increased ability 
and incentive to leverage their gatekeeper power from their core platform services to 
these ancillary services, to the detriment of choice and contestability of these services.  

(15)  The  fact  that  a  digital  service  qualifies  as  a  core  platform  service  in  light  of  its 
widespread and common use and its importance for connecting business users and end 
users does not as such give rise to sufficiently serious concerns of contestability and 
unfair  practices.  It  is  only  when  a  core  platform  service  constitutes  an  important 
gateway and is operated by a provider with a significant impact in the internal market 
and  an  entrenched  and  durable  position,  or  by  a  provider  that  will  foreseeably  have 
such a position in the near future, that such concerns arise. Accordingly, the targeted 
set of harmonised rules laid down in this Regulation should apply only to undertakings 
designated on the basis of these three objective criteria, and they should only apply to 
those of their core platform services that individually constitute an important gateway 
for business users to reach end users. 

(16) 

In  order  to  ensure  the  effective  application  of  this  Regulation  to  providers  of  core 
platform  services  which  are  most  likely  to  satisfy  these  objective  requirements,  and 
where  unfair  conduct  weakening  contestability  is  most  prevalent  and  impactful,  the 
Commission  should  be  able  to  directly  designate  as  gatekeepers  those  providers  of 
core platform services  which meet  certain  quantitative thresholds.  Such undertakings 
should in  any  event  be subject  to  a fast  designation process  which should start  upon 
the entry into force of this Regulation.  

(17)  A very significant turnover in the Union and the provision of a core platform service 
in at least three Member States constitute compelling indications that the provider of a 
core platform service has a significant impact on the internal market. This is equally 
true where a provider of a core platform service in at least three Member States has a 
very  significant  market  capitalisation  or  equivalent  fair  market  value.  Therefore,  a 
provider of a core platform service should be presumed to have a significant impact on 
the internal market where it provides a core platform service in at least three Member 
States and where either its group turnover realised in the EEA is equal to or exceeds a 
specific, high threshold or the market capitalisation of the group is equal to or exceeds 
a  certain  high  absolute  value.  For  providers  of  core  platform  services  that  belong  to 
undertakings  that  are  not  publicly  listed,  the  equivalent  fair  market  value  above  a 
certain  high  absolute  value  should  be  referred  to.  The  Commission  should  use  its 
power  to  adopt  delegated  acts  to  develop  an  objective  methodology  to  calculate  that 
value.  A  high  EEA  group  turnover  in  conjunction  with  the  threshold  of  users  in  the 
Union  of  core  platform  services  reflects  a  relatively  strong  ability  to  monetise  these 
users. A high market capitalisation relative to the same threshold number of users in 
the Union reflects a relatively significant potential to monetise these users in the near 
future. This monetisation potential in turn reflects in principle the gateway position of 

EN 

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the undertakings concerned. Both indicators are in addition reflective of their financial 
capacity,  including  their  ability  to  leverage  their  access  to  financial  markets  to 
reinforce  their  position.  This  may  for  example  happen  where  this  superior  access  is 
used  to  acquire  other  undertakings,  which  ability  has  in  turn  been  shown  to  have 
potential negative effects on innovation. Market capitalisation can also be reflective of 
the  expected  future  position  and  effect  on  the  internal  market  of  the  providers 
concerned,  notwithstanding  a  potentially  relatively  low  current  turnover.  The  market 
capitalisation  value  can  be  based  on  a  level  that  reflects  the  average  market 
capitalisation  of  the  largest  publicly  listed  undertakings  in  the  Union  over  an 
appropriate period. 

(18)  A sustained market capitalisation of the provider of core platform services at or above 
the threshold level over three or more years should be considered as strengthening the 
presumption that the provider of core platform services has a significant impact on the 
internal market.  

(19)  There may be a number of factors concerning market capitalisation that would require 
an  in-depth  assessment  in  determining  whether  a  provider  of  core  platform  services 
should be deemed to have a significant impact on the internal market. This may be the 
case  where  the  market  capitalisation  of  the  provider  of  core  platform  services  in 
preceding  financial  years  was  significantly  lower  than  the  average  of  the  equity 
market,  the  volatility  of  its  market  capitalisation  over  the  observed  period  was 
disproportionate  to  overall  equity  market  volatility  or  its  market  capitalisation 
trajectory  relative  to  market  trends  was  inconsistent  with  a  rapid  and  unidirectional 
growth. 

(20)  A very high number of business users that depend on a core platform service to reach a 
very  high  number  of  monthly  active  end  users  allow  the  provider  of  that  service  to 
influence  the  operations  of  a  substantial  part  of  business  users  to  its  advantage  and 
indicate in principle that the provider serves as an important  gateway. The respective 
relevant levels for those numbers should be set representing a substantive percentage 
of  the  entire  population  of  the  Union  when  it  comes  to  end  users  and  of  the  entire 
population of businesses using platforms to determine the threshold for business users. 

(21)  An entrenched and durable position in its operations or the foreseeability of achieving 
such  a  position  future  occurs  notably  where  the  contestability  of  the  position  of  the 
provider of the core platform service is limited. This is likely to be the case where that 
provider has provided a core platform service in at least three Member States to a very 
high number of business users and end users during at least three years. 

(22)  Such  thresholds  can  be  impacted  by  market  and  technical  developments.  The 
Commission  should  therefore  be  empowered  to  adopt  delegated  acts  to  specify  the 
methodology  for  determining  whether  the  quantitative  thresholds  are  met,  and  to 
regularly adjust it to market and technological developments where necessary. This is 
particularly  relevant  in  relation  to  the  threshold  referring  to  market  capitalisation, 
which should be indexed in appropriate intervals. 

(23)  Providers of core platform services which meet the quantitative thresholds but are able 
the 
to  present  sufficiently  substantiated  arguments 
circumstances in which the relevant core platform service operates, they do not fulfil 
the objective requirements for a gatekeeper, should not be designated directly, but only 
subject  to  a  further  investigation.  The  burden  of  adducing  evidence  that  the 
presumption deriving from  the fulfilment of quantitative thresholds should not  apply 
to  a  specific  provider  should  be  borne  by  that  provider  In  its  assessment,  the 

to  demonstrate 

that, 

in 

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Commission  should  take  into  account  only  the  elements  which  directly  relate  to  the 
requirements for constituting a gatekeeper, namely whether it is an important gateway 
which is operated by a provider with a significant impact in the internal market with 
an entrenched and durable position, either actual or foreseeable. Any justification on 
economic grounds seeking to demonstrate efficiencies deriving from a specific type of 
behaviour  by  the  provider  of  core  platform  services  should  be  discarded,  as  it  is  not 
relevant to the designation as a gatekeeper. The Commission should be able to take a 
decision  by  relying  on  the  quantitative  thresholds  where  the  provider  significantly 
obstructs the investigation by failing to comply with the investigative measures taken 
by the Commission. 

(24)  Provision should also be made for the assessment of the gatekeeper role of providers 
of core platform services which do not satisfy all of the quantitative thresholds, in light 
of the overall objective requirements that they have a significant impact on the internal 
market, act as an important gateway for business users to reach end users and benefit 
from  a  durable  and  entrenched  position  in  their operations  or  it  is  foreseeable  that  it 
will do so in the near future.  

(25)  Such an assessment can only be done in light of a market investigation, while taking 
into  account  the  quantitative  thresholds.  In  its  assessment  the  Commission  should 
pursue the objectives of preserving and fostering the level of innovation, the quality of 
digital products and services, the degree to which prices are fair and competitive, and 
the degree to which quality or choice for business users and for end users is or remains 
high. Elements that are specific to the providers of core platform services concerned, 
such  as  extreme  scale  economies,  very  strong  network  effects,  an  ability  to  connect 
many  business  users  with  many  end  users  through  the  multi-sidedness  of  these 
services,  lock-in  effects,  a  lack  of  multi-homing  or  vertical  integration,  can  be  taken 
into account. In addition, a very high market capitalisation, a very high ratio of equity 
value  over  profit  or  a  very  high  turnover  derived  from  end  users  of  a  single  core 
platform service can point to the tipping of the market or leveraging potential of such 
providers.  Together  with  market  capitalisation,  high  growth  rates,  or  decelerating 
growth  rates  read  together  with  profitability  growth,  are  examples  of  dynamic 
parameters that are particularly relevant to identifying such providers of core platform 
services  that  are  foreseen  to  become  entrenched.  The  Commission  should  be  able  to 
take a decision by drawing adverse inferences from facts available where the provider 
significantly  obstructs  the  investigation  by  failing  to  comply  with  the  investigative 
measures taken by the Commission. 

(26)  A particular subset of rules should apply to those providers of core platform services 
that are foreseen to  enjoy  an entrenched and durable position in the near future. The 
same  specific  features  of  core  platform  services  make  them  prone  to  tipping:  once  a 
service provider has obtained a certain  advantage over rivals or potential challengers 
in  terms  of  scale  or  intermediation  power,  its  position  may  become  unassailable  and 
the situation may evolve to the point that it is likely to become durable and entrenched 
in  the  near  future.  Undertakings  can  try  to  induce  this  tipping  and  emerge  as 
gatekeeper  by  using  some  of  the  unfair  conditions  and  practices  regulated  in  this 
Regulation.  In such  a situation, it appears appropriate to  intervene before  the market 
tips irreversibly.  

(27)  However,  such  an  early  intervention  should  be  limited  to  imposing  only  those 
obligations  that  are  necessary  and  appropriate  to  ensure  that  the  services  in  question 
remain  contestable  and  allow  to  avoid  the  qualified  risk  of  unfair  conditions  and 
practices.  Obligations  that  prevent  the  provider  of  core  platform  services  concerned 

EN 

20 

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from  achieving  an  entrenched  and  durable  position  in  its  operations,  such  as  those 
preventing unfair leveraging, and those that facilitate switching and multi-homing are 
more directly geared towards this purpose. To ensure proportionality, the Commission 
should  moreover  apply  from  that  subset  of  obligations  only  those  that  are  necessary 
and  proportionate  to  achieve  the  objectives  of  this  Regulation  and  should  regularly 
review whether such obligations should be maintained, suppressed or adapted. 

(28)  This  should  allow  the  Commission  to  intervene  in  time  and  effectively,  while  fully 
respecting  the  proportionality  of  the  considered  measures.  It  should  also  reassure 
actual  or  potential  market  participants  about  the  fairness  and  contestability  of  the 
services concerned.  

(29)  Designated  gatekeepers  should  comply  with  the  obligations  laid  down  in  this 
Regulation  in  respect  of  each  of  the  core  platform  services  listed  in  the  relevant 
designation  decision.  The  mandatory  rules  should  apply  taking  into  account  the 
conglomerate  position  of  gatekeepers,  where  applicable.  Furthermore,  implementing 
measures that the Commission may by decision impose on the gatekeeper following a 
regulatory  dialogue  should  be  designed  in  an  effective  manner,  having  regard  to  the 
features  of  core  platform  services  as  well  as  possible  circumvention  risks  and  in 
compliance  with  the  principle  of  proportionality  and  the  fundamental  rights  of  the 
undertakings concerned as well as those of third parties. 

(30)  The very rapidly changing and complex technological nature of core platform services 
requires a regular review of the status of gatekeepers, including those that are foreseen 
to  enjoy  a  durable  and  entrenched  position  in  their  operations  in  the  near  future.  To 
provide  all  of  the  market  participants,  including  the  gatekeepers,  with  the  required 
certainty as to the applicable legal obligations, a time limit for such regular reviews is 
necessary. It is also important to conduct such reviews on a regular basis and at least 
every two years. 

(31)  To ensure the effectiveness of the review of gatekeeper status as well as the possibility 
to  adjust the list of core platform services provided by a  gatekeeper, the gatekeepers 
should inform the Commission of all of their intended and concluded acquisitions of 
other  providers  of  core  platform  services  or  any  other  services  provided  within  the 
digital  sector.  Such  information  should  not  only  serve  the  review  process  mentioned 
above, regarding the status of individual gatekeepers, but will also provide information 
that is crucial to monitoring broader contestability trends in the digital sector and can 
therefore  be  a  useful  factor  for  consideration  in  the  context  of  the  market 
investigations foreseen by this Regulation.  

(32)  To  safeguard  the  fairness  and  contestability  of  core  platform  services  provided  by 
gatekeepers, it is necessary to provide in a clear and unambiguous manner for a set of 
harmonised obligations with regard to those services. Such rules are needed to address 
the risk of harmful effects of unfair practices imposed by gatekeepers, to the benefit of 
the  business  environment  in  the  services  concerned,  to  the  benefit  of  users  and 
ultimately  to  the  benefit  of  society  as  a  whole.  Given  the  fast-moving  and  dynamic 
nature  of  digital  markets,  and  the  substantial  economic  power  of  gatekeepers,  it  is 
important  that  these  obligations  are  effectively  applied  without  being  circumvented. 
To that end, the obligations in question should apply to any practices by a gatekeeper, 
irrespective of its form and irrespective of whether it is of a contractual,  commercial, 
technical or any other nature, insofar as a practice corresponds to the type of practice 
that is the subject of one of the obligations of this Regulation.  

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(33)  The  obligations  laid  down  in  this  Regulation  are  limited  to  what  is  necessary  and 
justified  to  address  the  unfairness  of  the  identified  practices  by  gatekeepers  and  to 
ensure  contestability  in  relation  to  core  platform  services  provided  by  gatekeepers. 
Therefore,  the  obligations  should  correspond  to  those  practices  that  are  considered 
unfair  by  taking  into  account  the  features  of  the  digital  sector  and  where  experience 
gained, for example in the enforcement of the EU competition rules, shows that they 
have  a  particularly  negative  direct  impact  on  the  business  users  and  end  users.  In 
addition,  it  is  necessary  to  provide  for  the  possibility  of  a  regulatory  dialogue  with 
gatekeepers to tailor those obligations that are likely to require specific implementing 
measures  in  order  to  ensure  their  effectiveness  and  proportionality.  The  obligations 
should  only  be  updated  after  a  thorough  investigation  on  the  nature  and  impact  of 
specific practices that may be newly identified, following an in-depth investigation, as 
unfair or limiting contestability in the same manner as the unfair practices laid down in 
this Regulation while potentially escaping the scope of the current set of obligations.   

(34)  The combination of these different mechanisms for imposing and adapting obligations 
should  ensure  that  the  obligations  do  not  extend  beyond  observed  unfair  practices, 
while at the same time ensuring that new or evolving practices can be the subject of 
intervention where necessary and justified. 

(35)  The obligations laid down in this Regulation are necessary to address identified public 
policy  concerns,  there  being  no  alternative  and  less  restrictive  measures  that  would 
effectively  achieve  the  same  result,  having  regard  to  need  to  safeguard  public  order, 
protect privacy and fight fraudulent and deceptive commercial practices. 

(36)  The conduct of combining end user data from different sources or signing in users to 
different  services  of  gatekeepers  gives  them  potential  advantages  in  terms  of 
accumulation of data, thereby raising barriers to entry. To ensure that gatekeepers do 
not unfairly undermine the contestability of core platform services, they should enable 
their end users to freely choose to opt-in to such business practices by offering a less 
personalised alternative. The possibility should cover all possible sources of personal 
data,  including  own  services  of  the  gatekeeper  as  well  as  third  party  websites,  and 
should be proactively presented to the end user in an explicit, clear and straightforward 
manner. 

(37)  Because  of  their  position,  gatekeepers  might  in  certain  cases  restrict  the  ability  of 
business users of their online intermediation services to offer their goods or services to 
end  users  under  more  favourable  conditions,  including  price,  through  other  online 
intermediation  services.  Such  restrictions  have  a  significant  deterrent  effect  on  the 
business users of gatekeepers in terms of their use of alternative online intermediation 
services,  limiting  inter-platform  contestability,  which  in  turn  limits  choice  of 
alternative online intermediation channels for end users. To ensure that business users 
of  online  intermediation  services  of  gatekeepers  can  freely  choose  alternative  online 
intermediation  services  and  differentiate  the  conditions  under  which  they  offer  their 
products or services to their end users, it should not be accepted that gatekeepers limit 
business users from choosing to differentiate commercial conditions, including price. 
Such  a  restriction  should  apply  to  any  measure  with  equivalent  effect,  such  as  for 
example increased commission rates or de-listing of the offers of business users. 

(38)  To  prevent  further  reinforcing  their  dependence  on  the  core  platform  services  of 
gatekeepers, the business users of these gatekeepers should be free in promoting and 
choosing the distribution channel they consider most appropriate to interact with any 
end  users  that  these  business  users  have  already  acquired  through  core  platform 

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services  provided  by  the  gatekeeper.  Conversely,  end  users  should  also  be  free  to 
choose  offers  of  such  business  users  and  to  enter  into  contracts  with  them  either 
through  core  platform  services  of  the  gatekeeper,  if  applicable,  or  from  a  direct 
distribution channel of the business user or another indirect distribution channel such 
business user may use. This should apply to the promotion of offers and conclusion of 
contracts between business users and end users. Moreover, the ability of end users to 
freely acquire content, subscriptions, features or other items outside the core platform 
services  of  the  gatekeeper  should  not  be  undermined  or  restricted.  In  particular,  it 
should be avoided that gatekeepers restrict  end users  from  access  to  and use of such 
services  via  a  software  application  running  on  their  core  platform  service.  For 
example,  subscribers  to  online  content  purchased  outside  a  software  application 
download or purchased from a software application store should not be prevented from 
accessing  such  online  content  on  a  software  application  on  the  gatekeeper’s  core 
platform service simply because it was purchased outside such software application or 
software application store.   

(39)  To  safeguard  a  fair  commercial  environment  and  protect  the  contestability  of  the 
digital sector it is important to safeguard the right of business users to raise concerns 
about unfair behaviour by gatekeepers with any relevant administrative or other public 
authorities. For example, business users may want to complain about different types of 
unfair  practices,  such  as  discriminatory  access  conditions,  unjustified  closing  of 
business  user  accounts  or  unclear  grounds  for  product  de-listings.  Any  practice  that 
would  in  any  way  inhibit  such  a  possibility  of  raising  concerns  or  seeking  available 
redress, for instance by means of confidentiality clauses in agreements or other written 
terms, should therefore be prohibited. This should be without prejudice to the right of 
business  users  and  gatekeepers  to  lay  down  in  their  agreements  the  terms  of  use 
including  the  use  of  lawful  complaints-handling  mechanisms,  including  any  use  of 
alternative  dispute  resolution  mechanisms  or  of  the  jurisdiction  of  specific  courts  in 
compliance  with  respective  Union  and  national  law  This  should  therefore  also  be 
without  prejudice  to  the  role  gatekeepers  play  in  the  fight  against  illegal  content 
online.  

(40) 

Identification services are crucial for business users to conduct their business, as these 
can allow them not only to optimise services, to the extent allowed under Regulation 
(EU)  2016/679  and  Directive  2002/58/EC  of  the  European  Parliament  and  of  the 
Council33, but also to inject trust in online transactions, in compliance with Union or 
national  law.  Gatekeepers  should  therefore  not  use  their  position  as  provider  of  core 
platform  services  to  require  their  dependent  business  users  to  include  any 
identification  services  provided  by  the  gatekeeper  itself  as  part  of  the  provision  of 
services  or  products  by  these  business  users  to  their  end  users,  where  other 
identification services are available to such business users.  

(41)  Gatekeepers should not restrict the free choice of end users by technically preventing 
switching  between  or  subscription  to  different  software  applications  and  services. 
Gatekeepers should therefore ensure a free choice irrespective of whether they are the 
manufacturer  of  any  hardware  by  means  of  which  such  software  applications  or 
services  are  accessed  and  should  not  raise  artificial  technical  barriers  so  as  to  make 
switching impossible or ineffective. The mere offering of a given product or service to 

33 

Directive 2002/58/EC of the  European Parliament and of the Council of 12 July 2002 concerning the 
processing  of  personal  data  and  the  protection  of  privacy  in  the  electronic  communications  sector 
(Directive on privacy and electronic communications) (OJ L 201, 31.7.2002, p. 37). 

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end users, including by means of pre-installation, as well the improvement of end user 
offering,  such  as  better  prices  or  increased  quality,  would  not  in  itself  constitute  a 
barrier to switching.  

(42)  The  conditions  under  which  gatekeepers  provide  online  advertising  services  to 
business users including both advertisers and publishers are often non-transparent and 
opaque. This opacity is partly linked to the practices of a few platforms, but is also due 
to  the  sheer  complexity  of  modern  day  programmatic  advertising.  The  sector  is 
considered to have become more non-transparent after the introduction of new privacy 
legislation, and is expected to become even more opaque with the announced removal 
of  third-party  cookies.  This  often  leads  to  a  lack  of  information  and  knowledge  for 
advertisers  and  publishers  about  the  conditions  of  the  advertising  services  they 
purchased  and  undermines  their  ability  to  switch  to  alternative  providers  of  online 
advertising  services.  Furthermore,  the  costs  of  online  advertising  are  likely  to  be 
higher  than  they  would  be  in  a  fairer,  more  transparent  and  contestable  platform 
environment. These higher costs are likely to be reflected in the prices that end users 
pay  for  many  daily  products  and  services  relying  on  the  use  of  online  advertising. 
Transparency  obligations  should  therefore  require  gatekeepers  to  provide  advertisers 
and publishers to whom they supply online advertising services, when requested and 
to the extent possible, with information that allows both sides to understand the price 
paid  for  each  of  the  different  advertising  services  provided  as  part  of  the  relevant 
advertising value chain.  

(43)  A  gatekeeper  may  in  certain  circumstances  have  a  dual  role  as  a  provider  of  core 
platform  services  whereby  it  provides  a  core  platform  service  to  its  business  users, 
while also competing with those same business users in the provision of the same or 
similar  services  or  products  to  the  same  end  users.  In  these  circumstances,  a 
gatekeeper may take advantage of its dual role to use data, generated from transactions 
by its business users on the core platform, for the purpose of its own services that offer 
similar services to that of its business users. This may be the case, for instance, where 
a gatekeeper provides an online marketplace or app store to business users, and at the 
same  time  offer  services  as  an  online  retailer  or  provider  of  application  software 
against  those  business  users.  To  prevent  gatekeepers  from  unfairly  benefitting  from 
their  dual  role,  it  should  be  ensured  that  they  refrain  from  using  any  aggregated  or 
non-aggregated  data,  which  may  include  anonymised  and  personal  data  that  is  not 
publicly  available  to  offer  similar  services  to  those  of  their  business  users.  This 
obligation should apply to the gatekeeper as a whole, including but not limited to its 
business unit that competes with the business users of a core platform service. 

(44)  Business  users  may  also  purchase  advertising  services  from  a  provider  of  core 
platform services for the purpose of providing goods and services to end users. In this 
case, it may occur that the data are not generated on the core platform service, but are 
provided to the core platform service by the business user or are generated based on its 
operations through the core platform service concerned. In certain instances, that core 
platform  service  providing  advertising  may  have  a  dual  role,  as  intermediary  and  as 
provider  of  advertising  services.  Accordingly,  the  obligation  prohibiting  a  dual  role 
gatekeeper from using data of business users should apply also with respect to the data 
that a core platform service has received from businesses for the purpose of providing 
advertising services related to that core platform service.  

(45) 

In relation to cloud computing services, this obligation should extend to data provided 
or generated by business users of the gatekeeper in the context of their use of the cloud 
computing  service  of  the  gatekeeper,  or  through  its  software  application  store  that 

EN 

24 

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allows  end  users  of  cloud  computing  services  access  to  software  applications.  This 
obligation  should  not  affect  the  right  of  gatekeepers  to  use  aggregated  data  for 
providing  ancillary  data  analytics  services,  subject  to  compliance  with    Regulation 
2016/679  and    Directive  2002/58/EC  as  well  as  with  the  relevant  obligations  in  this 
Regulation concerning ancillary services. 

(46)  A  gatekeeper  may  use  different  means  to  favour  its  own  services  or  products  on  its 
core platform service, to  the detriment of the same or similar services  that  end users 
could  obtain  through  third  parties.  This  may  for  instance  be  the  case  where  certain 
software applications or services are pre-installed by a gatekeeper. To enable end user 
choice, gatekeepers should not prevent end users from un-installing any pre-installed 
software  applications  on  its  core  platform  service  and  thereby  favour  their  own 
software applications. 

(47)  The rules that the gatekeepers set for the distribution of software applications may in 
certain circumstances restrict the ability of end users to install and effectively use third 
party  software  applications  or  software  application  stores  on  operating  systems  or 
hardware of the relevant gatekeeper and restrict the ability of end users to access these 
software applications or software application stores outside the core platform services 
of  that  gatekeeper.  Such  restrictions  may  limit  the  ability  of  developers  of  software 
applications  to  use  alternative  distribution  channels  and  the  ability  of  end  users  to 
choose  between  different  software  applications  from  different  distribution  channels 
and  should  be  prohibited  as  unfair  and  liable  to  weaken  the  contestability  of  core 
platform services. In order 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  the  gatekeeper  concerned  may  implement  proportionate 
technical or contractual measures to  achieve that goal if the gatekeeper demonstrates 
that  such  measures  are  necessary  and  justified  and  that  there  are  no  less  restrictive 
means to safeguard the integrity of the hardware or operating system.  

(48)  Gatekeepers are often vertically integrated and offer certain products or services to end 
users through their own core platform services, or through a business user over which 
they exercise control which frequently leads to conflicts of interest. This can include 
the  situation  whereby  a  gatekeeper  offers  its  own  online  intermediation  services 
through an online search engine. When offering those products or services on the core 
platform  service,  gatekeepers  can  reserve  a  better  position  to  their  own  offering,  in 
terms of ranking, as opposed to the products of third parties also operating on that core 
platform service. This can occur for instance with products or services, including other 
core platform services, which are ranked in the results communicated by online search 
engines,  or  which  are  partly  or  entirely  embedded  in  online  search  engines  results, 
groups of results specialised in a certain topic, displayed along with the results of an 
online search  engine, which are  considered or used by  certain  end users as a service 
distinct or additional to the online search engine. Other instances are those of software 
applications which are distributed through software application stores, or products or 
services that are given prominence and display in the newsfeed of a social network, or 
products or services ranked in search results or displayed on an online marketplace. In 
those circumstances, the gatekeeper is in a dual-role position as intermediary for third 
party  providers  and  as  direct  provider  of  products  or  services  of  the  gatekeeper. 
Consequently, 
the 
contestability  for  those  products  or  services  on  these  core  platform  services,  to  the 
detriment of business users which are not controlled by the gatekeeper. 

these  gatekeepers  have 

to  undermine  directly 

the  ability 

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25 

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(49) 

In such situations,  the gatekeeper should not  engage in  any form of differentiated or 
preferential treatment in ranking on the core platform service, whether through legal, 
commercial  or  technical  means,  in  favour  of  products  or  services  it  offers  itself  or 
through a business user which it controls. To ensure that this obligation is effective, it 
should also be ensured that the conditions that apply to such ranking are also generally 
fair. Ranking should in this context cover all forms of relative prominence, including 
display, rating, linking or voice results. To ensure that this obligation is effective and 
cannot  be  circumvented  it  should  also  apply  to  any  measure  that  may  have  an 
equivalent  effect  to  the  differentiated  or  preferential  treatment  in  ranking.  The 
guidelines  adopted  pursuant  to  Article  5  of  Regulation  (EU)  2019/1150  should  also 
facilitate the implementation and enforcement of this obligation.34 

(50)  Gatekeepers should not restrict or prevent the free choice of end users by technically 
preventing  switching  between  or  subscription  to  different  software  applications  and 
services.  This  would  allow  more  providers  to  offer  their  services,  thereby  ultimately 
providing  greater  choice  to  the  end  user.  Gatekeepers  should  ensure  a  free  choice 
irrespective of whether they are the manufacturer of any hardware by means of which 
such  software  applications  or  services  are  accessed  and  shall  not  raise  artificial 
technical barriers so as to make switching impossible or ineffective. The mere offering 
of a given product or service to consumers, including by means of pre-installation, as 
well  as  the  improvement  of  the  offering  to  end  users,  such  as  price  reductions  or 
increased  quality,  should  not  be  construed  as  constituting  a  prohibited  barrier  to 
switching.  

(51)  Gatekeepers can hamper the ability of end users to access online content and services 
including software applications. Therefore, rules should be established to ensure that 
the rights of end users to access an open internet are not compromised by the conduct 
of  gatekeepers.  Gatekeepers  can  also  technically  limit  the  ability  of  end  users  to 
effectively  switch  between  different  Internet  access  service  providers,  in  particular 
through  their  control  over  operating  systems  or  hardware.  This  distorts  the  level 
playing  field  for  Internet  access  services  and  ultimately  harms  end  users.  It  should 
therefore be ensured that gatekeepers do not unduly restrict end users in choosing their 
Internet access service provider. 

(52)  Gatekeepers may also have a dual role as developers of operating systems and device 
manufacturers, including any technical functionality that such a device may have. For 
example, a gatekeeper that is a manufacturer of a device may restrict access to some of 
the functionalities in this device, such as near-field-communication technology and the 
software  used  to  operate  that  technology,  which  may  be  required  for  the  effective 
provision  of  an  ancillary  service  by  the  gatekeeper  as  well  as  by  any  potential  third 
party  provider  of  such  an  ancillary  service.  Such  access  may  equally  be  required  by 
software  applications  related  to  the  relevant  ancillary  services  in  order  to  effectively 
provide similar  functionalities as those offered by  gatekeepers.  If such a  dual  role is 
used in a manner that prevents alternative providers of ancillary services or of software 
applications  to  have  access  under  equal  conditions  to  the  same  operating  system, 
hardware  or  software  features  that  are  available  or  used  in  the  provision  by  the 
gatekeeper of any ancillary services, this could significantly undermine innovation by 
providers of such ancillary services as  well as  choice for end users  of such ancillary 
services.  The  gatekeepers  should  therefore  be  obliged  to  ensure  access  under  equal 

34 

Commission Notice: Guidelines on ranking transparency pursuant to Regulation (EU) 2019/1150 of the 
European Parliament and of the Council (OJ C 424, 8.12.2020, p. 1).  

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26 

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conditions  to,  and  interoperability  with,  the  same  operating  system,  hardware  or 
software features that are available or used in the provision of any ancillary services 
by the gatekeeper. 

(53)  The  conditions  under  which  gatekeepers  provide  online  advertising  services  to 
business users including both advertisers and publishers are often non-transparent and 
opaque. This often leads to a lack of information for advertisers and publishers about 
the effect of a given ad. To further enhance fairness, transparency and contestability of 
online advertising services designated under this Regulation as well as those that are 
fully integrated with other core platform services of the same provider, the designated 
gatekeepers should therefore provide advertisers and publishers, when requested, with 
free  of  charge  access  to  the  performance  measuring  tools  of  the  gatekeeper  and  the 
information  necessary  for  advertisers,  advertising  agencies  acting  on  behalf  of  a 
company  placing  advertising,  as  well  as  for  publishers  to  carry  out  their  own 
independent verification of the provision of the relevant online advertising services.  

(54)  Gatekeepers  benefit  from  access  to  vast  amounts  of  data  that  they  collect  while 
providing  the  core  platform  services  as  well  as  other  digital  services.  To  ensure  that 
gatekeepers  do  not  undermine  the  contestability  of  core  platform  services  as  well  as 
the  innovation  potential  of  the  dynamic  digital  sector  by  restricting  the  ability  of 
business  users  to  effectively  port  their  data,  business  users  and  end  users  should  be 
granted effective and immediate access to the data they provided or generated in the 
context  of  their  use  of  the  relevant  core  platform  services  of  the  gatekeeper,  in  a 
structured,  commonly  used  and  machine-readable  format.  This  should  apply  also  to 
any other data at  different  levels  of aggregation  that may be necessary to  effectively 
enable such portability. It should also be ensured that business users and end users can 
port  that  data  in  real  time  effectively,  such  as  for  example  through  high  quality 
application  programming  interfaces.  Facilitating  switching  or  multi-homing  should 
lead, in turn, to an increased choice for business users and end users and an incentive 
for gatekeepers and business users to innovate.  

(55)  Business users that use large core platform services provided by gatekeepers and end 
users of such business users provide and generate a vast amount of data, including data 
inferred  from  such  use.  In  order  to  ensure  that  business  users  have  access  to  the 
relevant  data  thus  generated,  the  gatekeeper  should,  upon  their  request,  allow 
unhindered  access,  free  of charge, to such data.  Such access  should also be  given to 
third parties contracted by the business user, who are acting as processors of this data 
for the business user. Data provided or generated by the same business users and the 
same end users of these business users in the context of other services provided by the 
same  gatekeeper  may  be  concerned  where  this  is  inextricably  linked  to  the  relevant 
request. To this end, a gatekeeper should not use any contractual or other restrictions 
to  prevent  business  users  from  accessing  relevant  data  and  should  enable  business 
users to obtain consent of their end users for such data access and retrieval, where such 
consent  is  required  under  Regulation  (EU)  2016/679  and  Directive  2002/58/EC. 
Gatekeepers  should  also  facilitate  access  to  these  data  in  real  time  by  means  of 
appropriate  technical  measures,  such  as  for  example  putting  in  place  high  quality 
application programming interfaces. 

(56)  The  value  of  online  search  engines  to  their  respective  business  users  and  end  users 
increases  as  the  total  number  of  such  users  increases.  Providers  of  online  search 
engines collect and store aggregated datasets containing information about what users 
searched for, and how they interacted with, the results that they were served. Providers 
of online search engine services collect these data from searches undertaken on their 

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(57) 

own  online  search  engine  service  and,  where  applicable,  searches  undertaken  on  the 
platforms  of  their  downstream  commercial  partners.  Access  by  gatekeepers  to  such 
ranking,  query,  click  and  view  data  constitutes  an  important  barrier  to  entry  and 
expansion,  which  undermines  the  contestability  of  online  search  engine  services. 
Gatekeepers  should  therefore  be  obliged  to  provide  access,  on  fair,  reasonable  and 
non-discriminatory  terms,  to  these  ranking,  query,  click  and  view  data  in  relation  to 
free and paid search generated by consumers on online search engine services to other 
providers  of  such  services,  so  that  these  third-party  providers  can  optimise  their 
services  and  contest  the  relevant  core  platform  services.  Such  access  should  also  be 
given  to  third  parties  contracted  by  a  search  engine  provider,  who  are  acting  as 
processors of this data for that search engine. When providing access to its search data, 
a  gatekeeper  should  ensure  the  protection  of  the  personal  data  of  end  users  by 
appropriate  means,  without  substantially  degrading  the  quality  or  usefulness  of  the 
data.  

In particular gatekeepers which provide access to software application stores serve as 
an important  gateway for business users that  seek to  reach end users.  In  view of the 
imbalance in bargaining power between those gatekeepers and business users of their 
software application stores, those gatekeepers should not be allowed to impose general 
conditions,  including  pricing  conditions,  that  would  be  unfair  or  lead  to  unjustified 
differentiation. Pricing or other general access conditions should be considered unfair 
if  they  lead  to  an  imbalance  of  rights  and  obligations  imposed  on  business  users  or 
confer  an  advantage  on  the  gatekeeper  which  is  disproportionate  to  the  service 
provided  by  the  gatekeeper  to  business  users  or  lead  to  a  disadvantage  for  business 
users  in  providing  the  same  or  similar  services  as  the  gatekeeper.  The  following 
benchmarks  can  serve  as  a  yardstick  to  determine  the  fairness  of  general  access 
conditions: prices  charged or conditions  imposed for the same or similar  services by 
other  providers  of  software  application  stores;  prices  charged  or  conditions  imposed 
by  the  provider  of  the  software  application  store  for  different  related  or  similar 
services or to different types of end users; prices charged or conditions imposed by the 
provider of the software application store for the same service in different geographic 
regions;  prices  charged  or  conditions  imposed  by  the  provider  of  the  software 
application  store  for  the  same  service  the  gatekeeper  offers  to  itself.  This  obligation 
should not establish an access right and it should be without prejudice to the ability of 
providers of software application stores to take the required responsibility in the fight 
against illegal and unwanted content as set out in Regulation [Digital Services Act]. 

(58)  To ensure the effectiveness of the obligations laid down by this Regulation, while also 
making  certain  that  these  obligations  are  limited  to  what  is  necessary  to  ensure 
contestability and tackling the harmful effects of the unfair behaviour by gatekeepers, 
it is important to clearly define and circumscribe them so as to allow the gatekeeper to 
immediately  comply  with  them,  in  full  respect  of  Regulation  (EU)  2016/679  and 
Directive  2002/58/EC,  consumer  protection,  cyber  security  and  product  safety.  The 
gatekeepers  should  ensure  the  compliance  with  this  Regulation  by  design.  The 
necessary  measures  should  therefore  be  as  much  as  possible  and  where  relevant 
integrated into the technological design used by the gatekeepers. However, it may in 
certain  cases  be  appropriate  for  the  Commission,  following  a  dialogue  with  the 
gatekeeper  concerned,  to  further  specify  some  of  the  measures  that  the  gatekeeper 
concerned should adopt in order to effectively comply with those obligations that are 
susceptible of being further specified. This possibility of a regulatory dialogue should 
facilitate  compliance  by  gatekeepers  and  expedite  the  correct  implementation  of  the 
Regulation.  

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28 

  EN 

(59)  As  an  additional  element  to  ensure  proportionality,  gatekeepers  should  be  given  an 
opportunity to request the suspension, to the extent necessary, of a specific obligation 
in exceptional circumstances that lie beyond the control of the gatekeeper, such as for 
example  an  unforeseen  external  shock  that  has  temporarily  eliminated  a  significant 
part of end user demand for the relevant core platform service, where compliance with 
a specific obligation is shown by the gatekeeper to endanger the economic viability of 
the Union operations of the gatekeeper concerned.  

(60) 

In  exceptional  circumstances  justified  on  the  limited  grounds  of  public  morality, 
public  health  or  public  security,  the  Commission  should  be  able  to  decide  that  the 
obligation  concerned  does  not  apply  to  a  specific  core  platform  service.  Affecting 
these  public  interests  can  indicate  that  the  cost  to  society  as  a  whole  of  enforcing  a 
certain  obligation  would  in  a  certain  exceptional  case  be  too  high  and  thus 
disproportionate.  The  regulatory  dialogue  to  facilitate  compliance  with  limited 
suspension  and  exemption  possibilities  should  ensure  the  proportionality  of  the 
obligations  in  this  Regulation  without  undermining  the  intended  ex  ante  effects  on 
fairness and contestability.  

(61)  The data protection and privacy interests of end users are relevant to any assessment of 
potential  negative  effects  of  the  observed  practice  of  gatekeepers  to  collect  and 
accumulate  large  amounts  of  data  from  end  users.  Ensuring  an  adequate  level  of 
transparency  of  profiling  practices  employed  by  gatekeepers  facilitates  contestability 
of  core  platform  services,  by  putting  external  pressure  on  gatekeepers  to  prevent 
making deep consumer profiling the industry standard, given that potential entrants or 
start-up  providers  cannot  access  data  to  the  same  extent  and  depth,  and  at  a  similar 
scale. Enhanced transparency should allow other providers of core platform services to 
differentiate  themselves  better  through  the  use  of  superior  privacy  guaranteeing 
facilities. To ensure a minimum level of effectiveness of this transparency obligation, 
gatekeepers should at least provide a description of the basis upon which profiling is 
performed,  including  whether  personal  data  and  data  derived  from  user  activity  is 
relied  on,  the  processing  applied,  the  purpose  for  which  the  profile  is  prepared  and 
eventually  used,  the  impact  of  such  profiling  on  the  gatekeeper’s  services,  and  the 
steps  taken  to  enable  end  users  to  be  aware  of  the  relevant  use  of  such  profiling,  as 
well as to seek their consent. 

(62) 

In order to ensure the full and lasting achievement of the objectives of this Regulation, 
the Commission should be able to assess whether a provider of core platform services 
should be designated as a gatekeeper without meeting the quantitative thresholds laid 
down in this Regulation; whether systematic non-compliance by a gatekeeper warrants 
imposing  additional  remedies;  and  whether  the  list  of  obligations  addressing  unfair 
practices by gatekeepers should be reviewed and additional practices that are similarly 
unfair  and  limiting  the  contestability  of  digital  markets  should  be  identified.  Such 
assessment  should  be  based  on  market  investigations  to  be  run  in  an  appropriate 
timeframe,  by  using  clear  procedures  and  deadlines,  in  order  to  support  the  ex  ante 
effect  of  this  Regulation  on  contestability  and  fairness  in  the  digital  sector,  and  to 
provide the requisite degree of legal certainty.  

(63)  Following  a  market  investigation,  an  undertaking  providing  a  core  platform  service 
could be found to fulfil all of the overarching qualitative criteria for being identified as 
a gatekeeper.  It  should then, in  principle, comply  with  all of the relevant  obligations 
laid down by this Regulation. However, for gatekeepers that have been designated by 
the  Commission  as  likely  to  enjoy  an  entrenched  and  durable  position  in  the  near 
future,  the  Commission  should  only  impose  those  obligations  that  are  necessary  and 

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  EN 

appropriate  to  prevent  that  the  gatekeeper  concerned  achieves  an  entrenched  and 
durable  position  in  its  operations.  With  respect  to  such  emerging  gatekeepers,  the 
Commission  should  take  into  account  that  this  status  is  in  principle  of  a  temporary 
nature, and it should therefore be decided at a given moment whether such a provider 
of core platform services should be subjected to the full set of gatekeeper obligations 
because  it  has  acquired  an  entrenched  and  durable  position,  or  conditions  for 
designation  are  ultimately  not  met  and  therefore  all  previously  imposed  obligations 
should be waived. 

(64)  The  Commission  should  investigate  and  assess  whether  additional  behavioural,  or, 
where  appropriate,  structural  remedies  are  justified,  in  order  to  ensure  that  the 
gatekeeper  cannot  frustrate  the  objectives  of  this  Regulation  by  systematic  non-
compliance with one or several of the obligations laid down in this Regulation, which 
has  further  strengthened  its  gatekeeper  position.  This  would  be  the  case  if  the 
gatekeeper’s size in the internal market has further increased, economic dependency of 
business  users  and  end  users  on  the  gatekeeper’s  core  platform  services  has  further 
strengthened  as  their  number  has  further  increased  and  the  gatekeeper  benefits  from 
increased entrenchment of its position. The Commission should therefore in such cases 
have the power to impose any remedy, whether behavioural or structural, having due 
regard to the principle of proportionality. Structural remedies, such as legal, functional 
or  structural  separation,  including  the  divestiture  of  a  business,  or  parts  of  it,  should 
only  be  imposed  either  where  there  is  no  equally  effective  behavioural  remedy  or 
where  any  equally  effective  behavioural  remedy  would  be  more  burdensome  for  the 
undertaking  concerned  than  the  structural  remedy.  Changes  to  the  structure  of  an 
undertaking as it existed before the systematic non-compliance was established would 
only  be  proportionate  where  there  is  a  substantial  risk  that  this  systematic  non-
compliance results from the very structure of the undertaking concerned. 

(65)  The  services  and  practices  in  core  platform  services  and  markets  in  which  these 
intervene can change quickly and to a significant extent. To ensure that this Regulation 
remains up to date and constitutes an effective and holistic regulatory response to the 
problems posed by gatekeepers, it is important to provide for a regular review of the 
lists  of  core  platform  services  as  well  as  of  the  obligations  provided  for  in  this 
Regulation. This is particularly important to ensure that behaviour that may limit the 
contestability of core platform services or is unfair is identified. While it is important 
to conduct a review on a regular basis, given the dynamically changing nature of the 
digital  sector,  in  order  to  ensure  legal  certainty  as  to  the  regulatory  conditions,  any 
reviews should be conducted within a reasonable and appropriate time-frame. Market 
investigations should also ensure that the Commission has a solid evidentiary basis on 
which  it  can  assess  whether  it  should  propose  to  amend  this  Regulation  in  order  to 
expand,  or  further  detail,  the  lists  of  core  platform  services.  They  should  equally 
ensure  that  the  Commission  has  a  solid  evidentiary  basis  on  which  it  can  assess 
whether  it  should  propose  to  amend  the  obligations  laid  down  in  this  Regulation  or 
whether it should adopt a delegated act updating such obligations.  

(66) 

In  the  event  that  gatekeepers  engage  in  behaviour  that  is  unfair  or  that  limits  the 
contestability  of  the  core  platform  services  that  are  already  designated  under  this 
Regulation  but  without  these  behaviours  being  explicitly  covered  by  the  obligations, 
the Commission should be able to update this Regulation through delegated acts. Such 
updates by way of delegated act should be subject to the same investigatory standard 
and therefore following a market investigation. The Commission should also apply a 
predefined standard in identifying such behaviours. This legal standard should ensure 

EN 

30 

  EN 

that  the  type  of  obligations  that  gatekeepers  may  at  any  time  face  under  this 
Regulation are sufficiently predictable. 

(67)  Where,  in  the  course  of  a  proceeding  into  non-compliance  or  an  investigation  into 
systemic  non-compliance,  a  gatekeeper  offers  commitments  to  the  Commission,  the 
latter  should  be  able  to  adopt  a  decision  making  these  commitments  binding  on  the 
gatekeeper  concerned,  where  it  finds  that  the  commitments  ensure  effective 
compliance with the obligations of this Regulation. This decision should also find that 
there are no longer grounds for action by the Commission. 

(68) 

In order to ensure effective implementation and compliance with this Regulation, the 
Commission should have strong investigative and enforcement powers, to allow it to 
investigate,  enforce  and  monitor  the  rules  laid  down  in  this  Regulation,  while  at  the 
same  time  ensuring  the  respect  for  the  fundamental  right  to  be  heard  and  to  have 
access  to  the  file  in  the  context  of  the  enforcement  proceedings.  The  Commission 
should  dispose  of  these  investigative  powers  also  for  the  purpose  of  carrying  out 
market investigations for the purpose of updating and reviewing this Regulation. 

(69)  The  Commission  should  be  empowered  to  request  information  necessary  for  the 
purpose  of  this  Regulation,  throughout  the  Union.  In  particular,  the  Commission 
should  have  access  to  any  relevant  documents,  data,  database,  algorithm  and 
information  necessary  to  open  and  conduct  investigations  and  to  monitor  the 
compliance  with  the  obligations  laid  down  in  this  Regulation,  irrespective  of  who 
possesses the documents, data or information in question, and regardless of their form 
or format, their storage medium, or the place where they are stored.  

(70)  The Commission should be able to directly request that undertakings or association of 
undertakings  provide  any  relevant  evidence,  data  and  information.  In  addition,  the 
Commission  should  be  able  to  request  any  relevant  information  from  any  public 
authority,  body  or  agency  within  the  Member  State,  or  from  any  natural  person  or 
legal  person  for  the  purpose  of  this  Regulation.  When  complying  with  a  decision  of 
the Commission, undertakings are obliged to answer factual questions and to provide 
documents. 

(71)  The  Commission  should  also  be  empowered  to  undertake  onsite  inspections  and  to 
interview any persons who may be in possession of useful information and to record 
the statements made. 

(72)  The Commission should be able to take the necessary actions to monitor the effective 
implementation  and  compliance  with  the  obligations  laid  down  in  this  Regulation. 
Such  actions  should  include  the  ability  of  the  Commission  to  appoint  independent 
external  experts,  such  as  and  auditors  to  assist  the  Commission  in  this  process, 
including  where  applicable  from  competent  independent  authorities,  such  as  data  or 
consumer protection authorities.  

(73)  Compliance with the obligations imposed under this Regulation should be enforceable 
by  means  of  fines  and  periodic  penalty  payments.  To  that  end,  appropriate  levels  of 
fines and periodic penalty payments should also be laid down for non-compliance with 
the  obligations  and  breach  of  the  procedural  rules  subject  to  appropriate  limitation 
periods. The Court of Justice should have unlimited jurisdiction in respect of fines and 
penalty payments. 

(74) 

In order to ensure effective recovery of fines imposed on associations of undertakings 
for infringements that they have committed, it is necessary to lay down the conditions 

EN 

31 

  EN 

(75) 

on which the Commission may require payment of the fine from the members of the 
association where the association is not solvent.  

In  the  context  of  proceedings  carried  out  under  this  Regulation,  the  undertakings 
concerned  should  be  accorded  the  right  to  be  heard  by  the  Commission  and  the 
decisions  taken  should  be  widely  publicised.  While  ensuring  the  rights  to  good 
administration and the rights of defence of the undertakings concerned, in particular, 
the right of access to the file and the right to be heard, it is essential that confidential 
information  be  protected.  Furthermore,  while  respecting  the  confidentiality  of  the 
information,  the  Commission  should  ensure  that  any  information  relied  on  for  the 
purpose  of  the  decision  is  disclosed  to  an  extent  that  allows  the  addressee  of  the 
decision to understand the facts and considerations that led up to the decision. Finally, 
under  certain  conditions  certain  business  records,  such  as  communication  between 
lawyers and their clients, may be considered confidential if the relevant conditions are 
met.   

(76) 

In order to ensure uniform conditions for the implementation of Articles 3, 6, 12, 13, 
15,  16,  17,  20,  22,  23,  25  and  30,  implementing  powers  should  be  conferred  on  the 
Commission. Those powers should be exercised in accordance with Regulation (EU) 
No 182//2011 of the European Parliament and of the Council35. 

(77)  The  advisory  committee  established  in  accordance  with  Regulation  (EU)  No 
182//2011  should  also  deliver  opinions  on  certain  individual  decisions  of  the 
Commission  issued  under  this  Regulation.  In  order  to  ensure  contestable  and  fair 
markets in the digital sector across the Union where gatekeepers are present, the power 
to adopt acts in accordance with Article 290 of the Treaty should be delegated to the 
Commission  to  supplement  this  Regulation.  In  particular,  delegated  acts  should  be 
adopted in respect of the methodology for determining the quantitative thresholds for 
designation  of  gatekeepers  under  this  Regulation  and  in  respect  of  the  update  of  the 
obligations  laid  down  in  this  Regulation  where,  based  on  a  market  investigation  the 
Commission has identified the need for updating the obligations addressing practices 
that  limit  the  contestability  of  core  platform  services  or  are  unfair.  It  is  of  particular 
importance  that  the  Commission  carries  out  appropriate  consultations  and  that  those 
consultations  be  conducted  in  accordance  with  the  principles  laid  down  in  the 
Interinstitutional Agreement on Better Law-Making of 13 April 201636. In particular, 
to  ensure  equal  participation  in  the  preparation  of  delegated  acts,  the  European 
Parliament and the Council receive all documents at the same time as Member States' 
experts,  and  their  experts  systematically  have  access  to  meetings  of  Commission 
expert groups dealing with the preparation of delegated acts. 

(78)  The Commission should periodically evaluate this Regulation and closely monitor its 
effects  on  the  contestability  and  fairness  of  commercial  relationships  in  the  online 
platform economy, in particular with a view to determining the need for amendments 
in light of relevant technological or commercial developments. This evaluation should 
include  the  regular  review  of  the  list  of  core  platform  services  and  the  obligations 
addressed  to  gatekeepers  as  well  as  enforcement  of  these,  in  view  of  ensuring  that 
digital  markets  across  the  Union  are  contestable  and  fair.  In  order  to  obtain  a  broad 

35 

36 

Regulation  (EU)  No  182/2011  of  the  European  Parliament  and  of  the  Council  of  16  February  2011 
laying down the rules and general principles concerning mechanisms for control by Member States of 
the Commission’s exercise of implementing powers, (OJ L 55, 28.2.2011, p. 13). 
Interinstitutional Agreement between the European Parliament, the Council of the European Union and 
the European Commission on Better Law-Making (OJ L 123, 12.5.2016, p.1). 

EN 

32 

  EN 

                                                 
view  of  developments  in  the  sector,  the  evaluation  should  take  into  account  the 
experiences of Member States and relevant stakeholders. The Commission may in this 
regard also consider the opinions and reports presented to it by the Observatory on the 
Online  Platform  Economy  that  was  first  established  by  Commission  Decision 
C(2018)2393 of 26 April 2018. Following the evaluation, the Commission should take 
appropriate measures. The Commission should to maintain a high level  of protection 
and  respect  for  the  common  EU  rights  and  values,  particularly  equality  and  non-
discrimination,  as  an  objective  when  conducting  the  assessments  and  reviews  of  the 
practices and obligations provided in this Regulation. 

(79)  The  objective  of  this  Regulation  is  to  ensure  a  contestable  and  fair  digital  sector  in 
general and core platform services in particular, with a view to promoting innovation, 
high quality of digital products and services, fair and competitive prices, as well as a 
high quality and choice for end users in the digital sector. This cannot be sufficiently 
achieved  by  the  Member  States,  but  can  only,  by  reason  of  the  business  model  and 
operations  of  the  gatekeepers  and  the  scale  and  effects  of  their  operations,  be  fully 
achieved  at  Union  level.  The  Union  may  adopt  measures,  in  accordance  with  the 
principle  of  subsidiarity  as  set  out  in  Article  5  of  the  Treaty  on  European  Union.  In 
accordance  with  the  principle  of  proportionality,  as  set  out  in  that  Article,  this 
Regulation does not go beyond what is necessary in order to achieve that objective. 

This  Regulation  respects  the  fundamental  rights  and  observes  the  principles  recognised  in 
particular by the Charter of Fundamental Rights of the European Union, in particular Articles 
16,  47  and  50  thereof.  Accordingly,  this  Regulation  should  be  interpreted  and  applied  with 
respect to those rights and principlesHAVE ADOPTED THIS REGULATION: 

Chapter I  

Subject matter, scope and definitions 

Article 1 
Subject-matter and scope 

1. 

2. 

This Regulation lays down harmonised rules ensuring contestable and fair markets in 
the digital sector across the Union where gatekeepers are present. 

This  Regulation  shall  apply  to  core  platform  services  provided  or  offered  by 
gatekeepers  to  business  users  established  in  the  Union  or  end  users  established  or 
located  in  the  Union,  irrespective  of  the  place  of  establishment  or  residence  of  the 
gatekeepers  and  irrespective  of  the  law  otherwise  applicable  to  the  provision  of 
service.  

3. 

This Regulation shall not apply to markets:  

(a) 

related  to  electronic  communications  networks  as  defined  in  point  (1)  of 
Article 2 of Directive (EU) 2018/1972 of the European Parliament and of the 
Council37; 

37 

Directive  (EU)  2018/1972  of  the  European  Parliament  and  of  the  Council  of  11  December  2018 
establishing the European Electronic Communications Code (Recast) (OJ L 321, 17.12.2018, p. 36). 

EN 

33 

  EN 

                                                 
(b) 

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

With  regard  to  interpersonal  communication  services  this  Regulation  is  without 
prejudice  to  the  powers  and  tasks  granted  to  the  national  regulatory  and  other 
competent authorities by virtue of Article 61 of Directive (EU) 2018/1972. 

Member States shall not impose on gatekeepers further obligations by way of laws, 
regulations or administrative action for the purpose of  ensuring contestable and fair 
markets. This is without prejudice to rules pursuing other legitimate public interests, 
in  compliance  with  Union  law.  In  particular,  nothing  in  this  Regulation  precludes 
Member States from imposing obligations, which are compatible with Union law, on 
undertakings,  including  providers of core platform  services where these  obligations 
are  unrelated  to  the  relevant  undertakings  having  a  status  of  gatekeeper  within  the 
meaning of this Regulation in order to protect consumers or to fight against acts of 
unfair competition. 

This  Regulation  is  without  prejudice  to  the  application  of  Articles  101  and  102 
TFEU.  It  is  also  without  prejudice  to  the  application  of:  national  rules  prohibiting 
anticompetitive  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  imposing  additional  obligations  on  gatekeepers; 
Council  Regulation  (EC)  No  139/200438  and  national  rules  concerning  merger 
control;  Regulation  (EU)  2019/1150  and  Regulation  (EU)  …./..  of  the  European 
Parliament and of the Council39. 

National  authorities shall  not  take decisions which would run counter to a decision 
adopted  by  the  Commission  under  this  Regulation.  The  Commission  and  Member 
States shall work in close cooperation and coordination in their enforcement actions. 

4. 

5. 

6. 

7. 

Article 2 
Definitions 

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

(1) 

‘Gatekeeper’  means  a  provider  of  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 communication services; 

38 

39 

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). 
Regulation (EU) …/.. of the  European Parliament and of the Council   – proposal on a Single Market 
For Digital Services (Digital Services Act) and amending Directive 2000/31/EC. 

EN 

34 

  EN 

                                                 
(f) 

(g) 

(h) 

operating systems; 

cloud computing services; 

advertising services, including any advertising networks, advertising exchanges 
and  any  other  advertising  intermediation  services,  provided  by  a  provider  of 
any of the core platform services listed in points (a) to (g); 

(3) 

(4) 

(5) 

(6) 

(7) 

(8) 

(9) 

(10) 

(11) 

(12) 

(13) 

(14) 

‘Information  society service’ means any service within the meaning of  point (b) of 
Article 1(1) 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 services as defined in point 2 of Article 2 of 
Regulation (EU) 2019/1150; 

‘Online search engine’ means a digital service as defined in point 5 of Article 2 of 
Regulation (EU) 2019/1150; 

‘Online  social  networking  service’  means  a  platform  that  enables  end  users  to 
connect,  share,  discover  and  communicate  with  each  other  across  multiple  devices 
and, in particular, via chats, posts, videos and recommendations; 

‘Video-sharing platform service’ means a service as defined in point (aa) of Article 
1(1) of Directive (EU) 2010/1340; 

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

‘Operating  system’  means  a  system  software  which  controls  the  basic  functions  of 
the hardware or software and enables software applications to run on it; 

‘Cloud computing services’ means a digital service as defined in point 19 of Article 
4 of Directive (EU) 2016/1148 of the European Parliament and of the Council41; 

‘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; 

‘Ancillary  service’  means  services  provided  in  the  context  of  or  together  with  core 
platform services, including payment services as defined in point 3 of Article 4 and 
technical  services  which  support  the  provision  of  payment  services  as  defined  in 
Article  3(j)  of  Directive  (EU)  2015/2366,  fulfilment,  identification  or  advertising 
services; 

(15) 

‘Identification  service’  means  a  type  of  ancillary  services  that  enables  any  type  of 
verification  of  the  identity  of  end  users  or  business  users,  regardless  of  the 
technology used; 

40 

41 

Directive  2010/13/EU  of  the  European  Parliament  and  of  the  Council  of  10  March  2010  on  the 
coordination  of  certain  provisions  laid  down  by  law,  regulation  or  administrative  action  in  Member 
States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) 
(OJ L 95, 15.4.2010, p. 1). 
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). 

EN 

35 

  EN 

                                                 
(16) 

(17) 

(18) 

(19) 

(20) 

(21) 

(22) 

‘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 or online social networking services, or the relevance 
given  to  search  results  by  online  search  engines,  as  presented,  organised  or 
communicated by the providers of online intermediation services or of online social 
networking services or by providers of online search engines, respectively, whatever 
the technological means used for such presentation, organisation or communication;  

‘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  any  information  as  defined  in  point  1  of  Article  4  of 
Regulation (EU) 2016/679; 

‘Non-personal  data’  means  data  other  than  personal  data  as  defined  in  point  1  of 
Article 4 of Regulation (EU) 2016/679; 

‘Undertaking’  means  all  linked  enterprises  or  connected  undertakings  that  form  a 
group through the direct or indirect control of an enterprise or undertaking by another 
and that are engaged in an economic activity, regardless of their legal status and the 
way in which they are financed; 

(23) 

‘Control’ means the possibility of exercising decisive influence on an undertaking, as 
understood in Regulation (EU) No 139/2004. 

Chapter II  

Gatekeepers 

Article 3 
Designation of gatekeepers 

1. 

A provider of core platform services shall be designated as gatekeeper if: 

(a) 

(b) 

(c) 

it has a significant impact on the internal market; 

it  operates  a  core  platform  service  which  serves  as  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. 

2. 

A provider of core platform services shall be presumed to satisfy: 

(a) 

the  requirement  in  paragraph  1  point  (a)  where  the  undertaking  to  which  it 
belongs achieves an annual EEA turnover equal to or above EUR 6.5 billion in 
the last three financial years, or where the average market capitalisation or the 
equivalent fair market value of the undertaking to which it belongs amounted 
to  at  least  EUR  65  billion  in  the  last  financial  year,  and  it  provides  a  core 
platform service in at least three Member States; 

EN 

36 

  EN 

3. 

4. 

5. 

6. 

(b) 

the  requirement  in  paragraph  1  point  (b)  where  it  provides  a  core  platform 
service that has more than 45 million monthly active end users established or 
located  in  the  Union  and  more  than  10  000  yearly  active  business  users 
established in the Union in the last financial year; 

for the purpose of the first subparagraph, monthly active end users shall refer to 
the average number of monthly active end users throughout the largest part of 
the last financial year; 

(c) 

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

Where a provider of core platform services meets all the thresholds in paragraph 2, it 
shall  notify  the  Commission  thereof  within  three  months  after  those  thresholds  are 
satisfied and provide it with the relevant information identified in paragraph 2.. That 
notification shall include the relevant information identified in paragraph 2 for each 
of the core platform services of the provider that meets the thresholds in paragraph 2 
point  (b).  The  notification  shall  be  updated  whenever  other  core  platform  services 
individually meet the thresholds in paragraph 2 point (b).  

A  failure  by  a  relevant  provider  of  core  platform  services  to  notify  the  required 
information  pursuant  to  this  paragraph  shall  not  prevent  the  Commission  from 
designating these providers as gatekeepers pursuant to paragraph 4 at any time. 

The Commission shall, without undue delay and at the latest 60 days after receiving 
the complete information referred to  in paragraph 3, designate the provider of core 
platform services that meets all the thresholds of paragraph 2 as a gatekeeper, unless 
that  provider,  with  its  notification,  presents  sufficiently  substantiated  arguments  to 
demonstrate  that,  in  the  circumstances  in  which  the  relevant  core  platform  service 
operates,  and  taking  into  account  the  elements  listed  in  paragraph  6,  the  provider 
does not satisfy the requirements of paragraph 1. 

Where  the  gatekeeper  presents  such  sufficiently  substantiated  arguments  to 
demonstrate that it does not satisfy the requirements of paragraph 1, the Commission 
shall apply paragraph 6 to assess whether the criteria in paragraph 1 are met. 

The Commission is empowered to adopt delegated acts in accordance with Article 37 
to specify the methodology for determining whether the quantitative thresholds laid 
down in paragraph 2 are met, and to regularly adjust it to market and technological 
developments where necessary, in particular as regards the threshold in paragraph 2, 
point (a). 

The Commission may identify as a gatekeeper, in accordance with the procedure laid 
down  in  Article  15,  any  provider  of  core  platform  services  that  meets  each  of  the 
requirements of paragraph 1, but does not satisfy each of the thresholds of paragraph 
2, or has presented sufficiently substantiated arguments in accordance with paragraph 
4. 

For that purpose, the Commission shall take into account the following elements: 

(a) 

(b) 

the size, including turnover and market  capitalisation, operations and position 
of the provider of core platform services; 

the number of business users depending on the core platform service to reach 
end users and the number of end users; 

EN 

37 

  EN 

(c) 

(d) 

(e) 

(f) 

entry  barriers  derived  from  network  effects  and  data  driven  advantages,  in 
particular in relation to the provider’s access to and collection of personal and 
non-personal data or analytics capabilities; 

scale  and  scope  effects  the  provider  benefits  from,  including  with  regard  to 
data;  

business user or end user lock-in; 

other structural market characteristics.  

In  conducting  its  assessment,  the  Commission  shall  take  into  account  foreseeable 
developments of these elements. 

Where  the  provider  of  a  core  platform  service  that  satisfies  the  quantitative 
thresholds of paragraph 2 fails to comply with the investigative measures ordered by 
the Commission in a significant manner and the failure persists after the provider has 
been invited to comply within a reasonable time-limit and to submit observations, the 
Commission shall be entitled to designate that provider as a gatekeeper. 

Where the provider of 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 the failure persists after the provider has 
been invited to comply within a reasonable time-limit and to submit observations, the 
Commission  shall  be  entitled  to  designate  that  provider  as  a  gatekeeper  based  on 
facts available. 

For  each  gatekeeper  identified  pursuant  to  paragraph  4  or  paragraph  6,  the 
Commission  shall  identify the relevant  undertaking to  which it belongs  and list  the 
relevant  core  platform  services  that  are  provided  within  that  same  undertaking  and 
which  individually  serve  as  an  important  gateway  for  business  users  to  reach  end 
users as referred to in paragraph 1(b).  

The  gatekeeper  shall  comply  with  the  obligations  laid  down  in  Articles  5  and  6 
within six months after a core platform service has been included in the list pursuant 
to paragraph 7 of this Article. 

Article 4 
Review of the status of gatekeepers 

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

(a) 

(b) 

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

the  decision  was  based  on  incomplete,  incorrect  or  misleading  information 
provided by the undertakings. 

The  Commission  shall  regularly,  and  at  least  every  2  years,  review  whether  the 
designated gatekeepers continue to satisfy the requirements laid down in Article 3(1), 
or whether new providers  of core platform services  satisfy those requirements.  The 
regular review shall also examine whether the list of affected core platform services 
of the gatekeeper needs to be adjusted. 

Where  the  Commission,  on  the  basis  of  that  review  pursuant  to  the  first 
subparagraph, finds that the facts on which the designation of the providers of core 

7. 

8. 

1. 

2. 

EN 

38 

  EN 

platform  services  as  gatekeepers  was  based,  have  changed,  it  shall  adopt  a 
corresponding decision.   

3. 

The Commission shall publish and update the list of gatekeepers and the list of the 
core platform services for which they need to comply with the obligations laid down 
in Articles 5 and 6 on an on-going basis. 

Chapter III  

Practices of gatekeepers that limit contestability or are unfair 

Article 5 
Obligations for gatekeepers 

In respect of each of its core platform services identified pursuant to Article 3(7), a gatekeeper 
shall: 

(a) 

(b) 

(c) 

(d) 

(e) 

(f) 

(g) 

refrain from combining personal data sourced from these core platform services with 
personal data from any other services offered by the gatekeeper or with personal data 
from  third-party  services,  and  from  signing  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  provided  consent  in  the  sense  of  Regulation  (EU) 
2016/679. ; 

allow business users to offer the same products or services to end users through third 
party  online  intermediation  services  at  prices  or  conditions  that  are  different  from 
those offered through the online intermediation services of the gatekeeper; 

allow  business  users  to  promote  offers  to  end  users  acquired  via  the  core  platform 
service, and to conclude contracts with these end users regardless of whether for that 
purpose they use the core platform services of the gatekeeper or not, and allow end 
users to access and use, through the core platform services of the gatekeeper, content, 
subscriptions, features or other items by using the software application of a business 
user,  where  these  items  have  been  acquired  by  the  end  users  from  the  relevant 
business user without using the core platform services of the gatekeeper;  

refrain  from  preventing  or  restricting  business  users  from  raising  issues  with  any 
relevant public authority relating to any practice of gatekeepers; 

refrain  from  requiring  business  users  to  use,  offer  or  interoperate  with  an 
identification  service  of  the  gatekeeper  in  the  context  of  services  offered  by  the 
business users using the core platform services of that gatekeeper; 

refrain from requiring business users or end users to subscribe to or register with any 
other  core  platform  services  identified  pursuant  to  Article  3  or  which  meets  the 
thresholds  in  Article  3(2)(b)  as  a  condition  to  access,  sign  up  or  register  to  any  of 
their core platform services identified pursuant to that Article; 

provide  advertisers  and  publishers  to  which  it  supplies  advertising  services,  upon 
their  request,  with  information  concerning  the  price  paid  by  the  advertiser  and 
publisher,  as  well  as  the  amount  or  remuneration  paid  to  the  publisher,  for  the 
publishing of a given ad and for each of the relevant advertising services provided by 
the gatekeeper. 

EN 

39 

  EN 

 
Article 6 
Obligations for gatekeepers susceptible of being further specified  

1. 

In respect of each of its core platform services identified pursuant to Article 3(7), a 
gatekeeper shall: 

(a) 

(b) 

(c) 

(d) 

(e) 

(f) 

refrain  from  using,  in  competition  with  business  users,  any  data  not  publicly 
available,  which  is  generated  through  activities  by  those  business  users, 
including by the end users of these business users, of its core platform services 
or provided by those business users of its core platform services or by the end 
users of these business users; 

allow end users to un-install any pre-installed software applications on its core 
platform service without prejudice to the possibility for a gatekeeper to restrict 
such un-installation in relation to software applications that are essential for the 
functioning  of  the  operating  system  or  of  the  device  and  which  cannot 
technically be offered on a standalone basis by third-parties;  

allow the installation and effective use of third party software applications or 
software application stores using, or interoperating with, operating systems of 
that  gatekeeper  and  allow  these  software  applications  or  software  application 
stores  to  be  accessed  by  means  other  than  the  core  platform  services  of  that 
gatekeeper.  The  gatekeeper  shall  not  be  prevented  from  taking  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; 

refrain from treating more favourably in ranking services and products offered 
by the gatekeeper itself or by any third party belonging to the same undertaking 
compared to similar services or products of third party and apply fair and non-
discriminatory conditions to such ranking;  

refrain  from  technically  restricting  the  ability  of  end  users  to  switch  between 
and  subscribe  to  different  software  applications  and  services  to  be  accessed 
using the operating system of the gatekeeper, including as regards the choice of 
Internet access provider for end users; 

allow  business  users  and  providers  of  ancillary  services  access  to  and 
interoperability with the same operating system, hardware or software features 
that  are  available  or  used  in  the  provision  by  the  gatekeeper  of  any  ancillary 
services; 

(g)  provide advertisers and publishers, upon their request and free of charge, with 
access  to  the  performance  measuring  tools  of  the  gatekeeper  and  the 
information  necessary  for  advertisers  and  publishers  to  carry  out  their  own 
independent verification of the ad inventory; 

(h)  provide effective portability of data generated through the activity of a business 
user or end user and shall, in particular, provide tools for end users to facilitate 
the exercise of data portability, in line with Regulation EU 2016/679, including 
by the provision of continuous and real-time access ;  

(i) 

provide  business  users,  or  third  parties  authorised  by  a  business  user,  free  of 
charge, with effective, high-quality, continuous and real-time access and use of 
aggregated  or  non-aggregated  data,  that  is  provided  for  or  generated  in  the 
context of the use of the relevant core platform services by those business users 

EN 

40 

  EN 

and  the  end  users  engaging  with  the  products  or  services  provided  by  those 
business users; for  personal data, provide access and use only where directly 
connected with the use effectuated by the end user in respect of the products or 
services  offered  by  the  relevant  business  user  through  the  relevant  core 
platform service, and when the end user opts in to such sharing with a consent 
in the sense of the Regulation (EU) 2016/679; ; 

(j) 

provide  to  any  third  party  providers  of  online  search  engines,  upon  their 
request,  with  access  on  fair,  reasonable  and  non-discriminatory  terms  to 
ranking, query, click and view data in relation to free and paid search generated 
by  end  users  on  online  search  engines  of  the  gatekeeper,  subject  to 
anonymisation for the query, click and view data that constitutes personal data; 

(k) 

apply  fair  and  non-discriminatory  general  conditions  of  access  for  business 
users  to  its  software  application store designated pursuant  to  Article 3 of this 
Regulation. 

For the purposes of point (a) of paragraph 1 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 on the core platform service of the gatekeeper. 

Article 7 
Compliance with obligations for gatekeepers  

The  measures  implemented  by  the  gatekeeper  to  ensure  compliance  with  the 
obligations laid down in Articles 5 and 6 shall be effective in achieving the objective 
of  the  relevant  obligation.  The  gatekeeper  shall  ensure  that  these  measures  are 
implemented  in  compliance  with  Regulation  (EU)  2016/679  and    Directive 
2002/58/EC, and with legislation on cyber security, consumer protection and product 
safety. 

Where  the  Commission  finds  that  the  measures  that  the  gatekeeper  intends  to 
implement  pursuant  to  paragraph  1,  or  has  implemented,  do  not  ensure  effective 
compliance with the relevant obligations laid down in Article 6, it may by decision 
specify 
implement.  The 
Commission  shall  adopt  such  a  decision  within  six  months  from  the  opening  of 
proceedings pursuant to Article 18.  

the  gatekeeper  concerned  shall 

the  measures 

that 

Paragraph  2  of  this  Article  is  without  prejudice  to  the  powers  of  the  Commission 
under Articles 25, 26 and 27. 

In  view  of  adopting  the  decision  under  paragraph  2,  the  Commission  shall 
communicate  its  preliminary  findings  within  three  months  from  the  opening  of  the 
proceedings. In the preliminary findings, the Commission shall explain the measures 
it  considers  to  take  or  it  considers  that  the  provider  of  core  platform  services 
concerned should take in order to effectively address the preliminary findings. 

In specifying the measures under paragraph 2, the Commission shall ensure that the 
measures  are  effective  in  achieving  the  objectives  of  the  relevant  obligation  and 
proportionate in the specific circumstances of the gatekeeper and the relevant service.  

For the purposes of specifying the obligations under Article 6(1) points (j) and (k), 
the  Commission  shall  also  assess  whether  the  intended  or  implemented  measures 
ensure  that  there  is  no  remaining  imbalance  of  rights  and  obligations  on  business 

2. 

1. 

2. 

3. 

4. 

5. 

6. 

EN 

41 

  EN 

7. 

1. 

2. 

3. 

1. 

users and that the measures do not themselves confer an advantage on the gatekeeper 
which is disproportionate to the service provided by the gatekeeper to business users. 

A gatekeeper may request the opening of proceedings pursuant to Article 18 for the 
Commission  to  determine  whether  the  measures  that  the  gatekeeper  intends  to 
implement  or  has  implemented  under  Article  6  are  effective  in  achieving  the 
objective of the relevant obligation in the specific circumstances. A gatekeeper may, 
with  its  request,  provide  a  reasoned  submission  to  explain  in  particular  why  the 
measures that it intends to implement or has implemented are effective in achieving 
the objective of the relevant obligation in the specific circumstances. 

Article 8 
Suspension  

The  Commission  may,  on  a  reasoned  request  by  the  gatekeeper,  exceptionally 
suspend, in whole or in part, a specific obligation laid down in Articles 5 and 6 for a 
core platform service by decision adopted in accordance with the advisory procedure 
referred to in Article 32(4), where the gatekeeper demonstrates that compliance with 
that specific obligation would endanger, due to exceptional circumstances beyond the 
control of the gatekeeper, the economic viability of the operation of the gatekeeper in 
the Union, and only to the extent necessary to address such threat to its viability. The 
Commission  shall  aim  to  adopt  the  suspension  decision  without  delay  and  at  the 
latest 3 months following receipt of a complete reasoned request.   

Where  the  suspension  is  granted  pursuant  to  paragraph  1,  the  Commission  shall 
review its suspension decision every year. Following such a review the Commission 
shall either lift the suspension or decide that the conditions of paragraph 1 continue 
to be met. 

The  Commission  may,  acting  on  a  reasoned  request  by  a  gatekeeper,  provisionally 
suspend  the  application  of  the  relevant  obligation  to  one  or  more  individual  core 
platform services already prior to the decision pursuant to paragraph 1.  

In  assessing  the  request,  the  Commission  shall  take  into  account,  in  particular,  the 
impact  of  the  compliance  with  the  specific  obligation  on  the  economic  viability  of 
the  operation  of  the  gatekeeper  in  the  Union  as  well  as  on  third  parties.  The 
suspension may be made subject to conditions and obligations to be defined by the 
Commission  in  order  to  ensure  a  fair  balance  between  these  interests  and  the 
objectives of this Regulation. Such a request may be made and granted at any time 
pending the assessment of the Commission pursuant to paragraph 1. 

Article 9 
Exemption for overriding reasons of public interest 

The  Commission  may,  acting  on  a  reasoned  request  by  a  gatekeeper  or  on  its  own 
initiative, by decision adopted in accordance with the advisory procedure referred to 
in Article 32(4), exempt it, in whole or in part, from a specific obligation laid down 
in  Articles  5  and  6  in  relation  to  an  individual  core  platform  service  identified 
pursuant to Article 3(7), where such exemption is justified on the grounds set out in 
paragraph 2  of this  Article. The Commission  shall adopt  the  exemption  decision at 
the latest 3 months after receiving a complete reasoned request. 

2. 

An exemption pursuant to paragraph 1 may  only be granted on grounds of: 

EN 

42 

  EN 

(a) 

public morality; 

(b)  public health; 

(c) 

public security. 

3. 

The  Commission  may,  acting  on  a  reasoned  request  by  a  gatekeeper  or  on  its  own 
initiative,  provisionally  suspend  the  application  of  the  relevant  obligation  to  one  or 
more  individual  core  platform  services  already  prior  to  the  decision  pursuant  to 
paragraph 1.  

In  assessing  the  request,  the  Commission  shall  take  into  account,  in  particular,  the 
impact of the compliance with the specific obligation on the grounds in paragraph 2 
as  well  as  the  effects  on  the  gatekeeper  concerned  and  on  third  parties.  The 
suspension may be made subject to conditions and obligations to be defined by the 
Commission  in  order  to  ensure  a  fair  balance  between  the  goals  pursued  by  the 
grounds in paragraph 2 and the objectives of this Regulation. Such a request may be 
made and granted at any time pending the assessment of the Commission pursuant to 
paragraph 1.  

1. 

1. 

1. 

2. 

Article 10 
Updating obligations for gatekeepers 

The Commission is empowered to adopt delegated acts in accordance with Article 34 
to  update  the  obligations  laid  down  in  Articles  5  and  6  where,  based  on  a  market 
investigation  pursuant  to  Article  17,  it  has  identified  the  need  for  new  obligations 
addressing  practices  that  limit  the  contestability  of  core  platform  services  or  are 
unfair  in  the  same  way  as  the  practices  addressed  by  the  obligations  laid  down  in 
Articles 5 and 6. 

A practice within the meaning of paragraph 1 shall be considered to be unfair or limit 
the contestability of core platform services where: 

(a) 

there  is  an  imbalance  of  rights  and  obligations  on  business  users  and  the 
is 
gatekeeper 
disproportionate to the service provided by the gatekeeper to business users; or  

is  obtaining  an  advantage 

from  business  users 

that 

(b) 

the contestability of markets is weakened as a consequence of such a practice 
engaged in by gatekeepers. 

Article 11 
Anti-circumvention 

A  gatekeeper  shall  ensure  that  the  obligations  of  Articles  5  and  6  are  fully  and 
effectively complied with. While the obligations of Articles 5 and 6 apply in respect 
of core platform services designated pursuant to Article 3, their implementation shall 
not  be  undermined  by  any  behaviour  of  the  undertaking  to  which  the  gatekeeper 
belongs,  regardless  of  whether  this  behaviour  is  of  a  contractual,  commercial, 
technical or any other nature.  

Where  consent  for  collecting  and  processing  of  personal  data  is  required  to  ensure 
compliance with this Regulation, a gatekeeper shall take the necessary steps to either 
enable  business  users  to  directly  obtain  the  required  consent  to  their  processing, 
where  required  under  Regulation  (EU)  2016/679  and  Directive  2002/58/EC,  or  to 
comply  with  Union  data  protection  and  privacy  rules  and  principles  in  other  ways 
including by providing business users with duly anonymised data where appropriate. 

EN 

43 

  EN 

3. 

1. 

2. 

3. 

The  gatekeeper  shall  not  make  the  obtaining  of  this  consent  by  the  business  user 
more burdensome than for its own services. 

A gatekeeper shall not degrade the conditions or quality of any of the core platform 
services provided to business users or end users who avail themselves of the rights or 
choices laid down in Articles 5 and 6, or make the exercise of those rights or choices 
unduly difficult.   

Article 12 
Obligation to inform about concentrations 

A gatekeeper shall inform the Commission of any intended concentration within the 
meaning of Article 3 of Regulation (EC) No 139/2004 involving another provider of 
core  platform  services  or  of  any  other  services  provided  in  the  digital  sector 
irrespective  of  whether  it  is  notifiable  to  a  Union  competition  authority  under 
Regulation (EC) No 139/2004 or to a competent national competition authority under 
national merger rules. 

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

The  notification  pursuant  to  paragraph  1  shall  at  least  describe  for  the  acquisition 
targets  their  EEA  and  worldwide  annual  turnover,  for  any  relevant  core  platform 
services their respective EEA annual turnover, their number of yearly active business 
users  and  the  number  of  monthly  active  end  users,  as  well  as  the  rationale  of  the 
intended concentration. 

If, following any concentration as provided in paragraph 1, additional core platform 
services individually satisfy the thresholds in point (b) of Article 3(2), the gatekeeper 
concerned  shall  inform  the  Commission  thereof  within  three  months  from  the 
implementation  of  the  concentration  and  provide  the  Commission  with  the 
information referred to in Article 3(2). 

Article 13 
Obligation of an audit 

Within six months after its designation pursuant to Article 3, a  gatekeeper shall submit  to the 
Commission  an  independently  audited  description  of  any  techniques  for  profiling  of 
consumers  that  the  gatekeeper  applies  to  or  across  its  core  platform  services  identified 
pursuant to Article 3. This description shall be updated at least annually. 

Chapter IV  

Market investigation 

Article 14 
Opening of a market investigation 

1. 

When  the  Commission  intends  to  carry  out  a  market  investigation  in  view  of  the 
possible  adoption  of  decisions  pursuant  to  Articles  15,  16  and  17,  it  shall  adopt  a 
decision opening a market investigation. 

2. 

The opening decision shall specify:  

EN 

44 

  EN 

(a) 

the date of opening of the investigation; 

(b) 

the description of the issue to which the investigation relates to;  

(c) 

the purpose of the investigation. 

3. 

The Commission may reopen a market investigation that it has closed where: 

(a) 

(b) 

there has been a material change in any of the facts on which the decision was 
based;  

the  decision  was  based  on  incomplete,  incorrect  or  misleading  information 
provided by the undertakings concerned. 

1. 

2. 

3. 

4. 

Article 15 
Market investigation for designating gatekeepers 

The Commission may conduct  a market investigation for the purpose of examining 
whether  a  provider  of  core  platform  services  should  be  designated  as  a  gatekeeper 
pursuant  to  Article  3(6),  or  in  order  to  identify  core  platform  services  for  a 
gatekeeper pursuant  to  Article 3(7).  It shall endeavour to  conclude its investigation 
by  adopting  a  decision  in  accordance  with  the  advisory  procedure  referred  to  in 
Article 32(4) within twelve months from the opening of the market investigation. 

In  the  course  of  a  market  investigation  pursuant  to  paragraph  1,  the  Commission 
shall  endeavour  to  communicate  its  preliminary  findings  to  the  provider  of  core 
platform services concerned within six months from the opening of the investigation. 
In the preliminary findings, the Commission shall explain whether it considers, on a 
provisional basis, that the provider of core platform services should be designated as 
a gatekeeper pursuant to Article 3(6).  

Where the provider of core platform services satisfies the thresholds set out in Article 
3(2),  but  has  presented  significantly  substantiated  arguments  in  accordance  with 
Article  3(4),  the  Commission  shall  endeavour  to  conclude  the  market  investigation 
within  five  months  from  the  opening  of  the  market  investigation  by  a  decision 
pursuant  to  paragraph  1.  In  that  case  the  Commission  shall  endeavour  to 
communicate its preliminary findings pursuant to paragraph 2 to the provider of core 
platform services within three months from the opening of the investigation. 

When the Commission pursuant to Article 3(6) designates as a gatekeeper a provider 
of core platform services that does not yet enjoy an entrenched and durable position 
in  its  operations,  but  it  is  foreseeable  that  it  will  enjoy  such  a  position  in  the  near 
future,  it  shall  declare  applicable  to  that  gatekeeper  only  obligations  laid  down  in 
Article 5(b) and Article 6(1) points (e), (f), (h) and (i) as specified in the designation 
decision.  The  Commission  shall  only  declare  applicable  those  obligations  that  are 
appropriate  and  necessary  to  prevent  that  the  gatekeeper  concerned  achieves  by 
unfair means an entrenched and durable position in its operations. The Commission 
shall  review  such  a  designation  in  accordance  with  the  procedure  laid  down  in 
Article 4.  

Article 16 
Market investigation into systematic non-compliance  

1. 

Where the market investigation shows that a gatekeeper has systematically infringed 
the  obligations  laid  down  in  Articles  5  and  6  and  has  further  strengthened  or 
extended its gatekeeper position in relation to the characteristics under Article 3(1), 

EN 

45 

  EN 

2. 

3. 

4. 

5. 

6. 

the Commission may by decision adopted in accordance with the advisory procedure 
referred to in Article 32(4) impose on such gatekeeper any behavioural or structural 
remedies  which  are  proportionate  to  the  infringement  committed  and  necessary  to 
ensure  compliance  with  this  Regulation.  The  Commission  shall  conclude  its 
investigation by adopting  a decision within twelve months from  the opening of the 
market investigation. 

The Commission may only impose structural remedies pursuant to paragraph 1 either 
where  there  is  no  equally  effective  behavioural  remedy  or  where  any  equally 
effective  behavioural  remedy  would  be  more  burdensome  for  the  gatekeeper 
concerned than the structural remedy. 

A gatekeeper shall be deemed to have engaged in a systematic non-compliance with 
the obligations laid down in  Articles 5  and 6,  where the Commission  has issued at 
least  three  non-compliance  or  fining  decisions  pursuant  to  Articles  25  and  26 
respectively  against  a  gatekeeper  in  relation  to  any  of  its  core  platform  services 
within a period of five years prior to the adoption of the decision opening a market 
investigation in view of the possible adoption of a decision pursuant to this Article. 

A gatekeeper shall be deemed to have further strengthened or extended its gatekeeper 
position in relation to the characteristics under Article 3(1), where its impact on the 
internal market has further increased, its importance as a gateway for business users 
to reach end users has further increased or the gatekeeper enjoys a further entrenched 
and durable position in its operations.  

The  Commission  shall  communicate  its  objections  to  the  gatekeeper  concerned 
within  six  months  from  the  opening  of  the  investigation.  In  its  objections,  the 
Commission  shall  explain  whether  it  preliminarily  considers  that  the  conditions  of 
paragraph  1  are  met  and  which  remedy  or  remedies  it  preliminarily  considers 
necessary and proportionate.   

The Commission may at any time during the market investigation extend its duration 
where  the  extension  is  justified  on  objective  grounds  and  proportionate.  The 
extension  may  apply  to  the  deadline  by  which  the  Commission  has  to  issue  its 
objections, or to the deadline for adoption of the final decision. The total duration of 
any  extension  or  extensions  pursuant  to  this  paragraph  shall  not  exceed  six 
months.The  Commission  may  consider  commitments  pursuant  to  Article  23  and 
make them binding in its decision. 

Article 17 
Market investigation into new services and new practices 

The Commission may conduct a market investigation with the purpose of examining whether 
one  or  more  services  within  the  digital  sector  should  be  added  to  the  list  of  core  platform 
services  or  to  detect  types  of  practices  that  may  limit  the  contestability  of  core  platform 
services or may be unfair and which are not effectively addressed by this Regulation. It shall 
issue  a  public  report  at  the  latest  within  24  months  from  the  opening  of  the  market 
investigation.  

Where appropriate, that report shall: 

(a) 

be accompanied by a 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 
point 2 of Article 2;  

EN 

46 

  EN 

(b) 

be  accompanied  by  a  delegated  act  amending  Articles  5  or  6  as  provided  for  in 
Article 10.  

Chapter V  

Investigative, enforcement and monitoring powers 

Article 18 
Opening of proceedings 

Where the Commission intends to carry out proceedings in view of the possible adoption of 
decisions pursuant to Article 7, 25 and 26, it shall adopt a decision opening a proceeding. 

1. 

2. 

3. 

4. 

5. 

6. 

Article 19 
Requests for information 

The  Commission  may  by  simple  request  or  by  decision  require  information  from 
undertakings  and associations of undertakings to  provide all necessary information, 
including  for  the  purpose  of  monitoring,  implementing  and  enforcing  the  rules  laid 
down in this Regulation. The Commission may also request access to data bases and 
algorithms of undertakings and request explanations on those by a simple request or 
by a decision.  

The  Commission  may  request  information  from  undertakings  and  associations  of 
undertakings  pursuant  to  paragraph  1  also  prior  to  opening  a  market  investigation 
pursuant to Article 14 or proceedings pursuant to Article 18. 

When  sending  a  simple request  for  information  to  an  undertaking  or  association  of 
undertakings,  the  Commission  shall  state  the  purpose  of  the  request,  specify  what 
information is required and fix the time-limit within which the information is to be 
provided,  and  the  penalties  provided  for  in  Article  26  for  supplying  incomplete, 
incorrect or misleading information or explanations. 

Where  the  Commission  requires  undertakings  and  associations  of  undertakings  to 
supply information by decision, it shall state the purpose of the request, specify what 
information  is  required  and  fix  the  time-limit  within  which  it  is  to  be  provided. 
Where the Commission requires undertakings to provide access to its data-bases and 
algorithms,  it  shall  state  the  legal  basis  and  the  purpose  of  the  request,  and  fix  the 
time-limit  within  which  it  is  to  be  provided.  It  shall  also  indicate  the  penalties 
provided  for  in  Article  26  and  indicate  or  impose  the  periodic  penalty  payments 
provided  for  in  Article  27.  It  shall  further  indicate  the  right  to  have  the  decision 
reviewed by the Court of Justice. 

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

At  the  request  of  the  Commission,  the  governments  and  authorities  of  the  Member 
States shall provide the Commission with all necessary information to carry out the 
duties assigned to it by this Regulation. 

EN 

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Article 20 
Power to carry out interviews and take statements 

The  Commission  may  interview  any  natural  or  legal  person  which  consents  to  being 
interviewed  for  the  purpose  of  collecting  information,  relating  to  the  subject-matter  of  an 
investigation, including in relation to the monitoring, implementing and enforcing of the rules 
laid down in this Regulation. 

Article 21 
Powers to conduct on-site inspections 

The Commission may conduct on-site inspections at the premises of an undertaking 
or association of undertakings. 

On-site inspections may also be carried out with the assistance of auditors or experts 
appointed by the Commission pursuant to Article 24(2).  

During  on-site  inspections  the  Commission  and  auditors  or  experts  appointed  by  it 
may require the undertaking or association of undertakings to provide access to and 
explanations  on  its  organisation,  functioning,  IT  system,  algorithms,  data-handling 
and business conducts. The Commission and auditors or experts appointed by it may 
address questions to key personnel.  

Undertakings  or  associations  of  undertakings  are  required  to  submit  to  an  on-site 
inspection  ordered  by  decision  of  the  Commission.  The  decision  shall  specify  the 
subject  matter  and  purpose  of  the  visit,  set  the  date  on  which  it  is  to  begin  and 
indicate  the  penalties  provided  for  in  Articles  26  and  27  and  the  right  to  have  the 
decision reviewed by the Court of Justice. 

Article 22 
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,  by  decision  adopt  in 
accordance  with  the  advisory  procedure  referred  to  in  Article  32(4),  order  interim 
measures  against  a  gatekeeper  on  the  basis  of  a  prima  facie  finding  of  an 
infringement of Articles 5 or 6. 

A  decision  pursuant  to  paragraph  1  may  only  be  adopted  in  the  context  of 
proceedings opened in view of the possible adoption of a decision of non-compliance 
pursuant to Article 25(1). This decision shall apply for a specified period of time and 
may be renewed in so far this is necessary and appropriate. 

Article 23 
Commitments 

If  during  proceedings  under  Articles  16  or  25  the  gatekeeper  concerned  offers 
commitments  for the relevant  core platform  services to  ensure compliance with  the 
obligations laid down in Articles 5 and 6, the Commission may by decision adopted 
in  accordance  with  the  advisory  procedure  referred  to  in  Article  32(4)  make  those 
commitments  binding  on  that  gatekeeper  and  declare  that  there  are  no  further 
grounds for action. 

The Commission may, upon request or on its own initiative, reopen by decision the 
relevant proceedings, where: 

1. 

2. 

3. 

4. 

1. 

2. 

1. 

2. 

EN 

48 

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(a) 

there has been a material change in any of the facts on which the decision was 
based; 

(b) 

the gatekeeper concerned acts contrary to its commitments;  

(c) 

the  decision  was  based  on  incomplete,  incorrect  or  misleading  information 
provided by the parties.  

Should the Commission consider that the commitments submitted by the gatekeeper 
concerned  cannot  ensure  effective  compliance  with  the  obligations  laid  down  in 
Articles  5  and  6,  it  shall  explain  the  reasons  for  not  making  those  commitments 
binding in the decision concluding the relevant proceedings. 

Article 24 
Monitoring of obligations and measures 

The  Commission  may  take  the  necessary  actions  to  monitor  the  effective 
implementation  and  compliance  with  the  obligations  laid  down  in  Articles  5  and  6 
and the decisions taken pursuant to Articles 7, 16, 22 and 23.  

The  actions  pursuant  to  paragraph  1  may  include  the  appointment  of  independent 
external experts and auditors to assist the Commission to monitor the obligations and 
measures and to provide specific expertise or knowledge to the Commission. 

Article 25 
Non-compliance  

The  Commission  shall  adopt  a  non-compliance  decision  in  accordance  with  the 
advisory procedure referred to in Article 32(4) where it finds that a gatekeeper does 
not comply with one or more of the following: 

(a) 

any of the obligations laid down in Articles 5 or 6;  

(b)  measures specified in a decision adopted pursuant to Article 7(2);  

(c)  measures ordered pursuant to Article 16(1); 

(d) 

interim measures ordered pursuant to Article 22; or  

(e) 

commitments made legally binding pursuant to Article 23. 

Before  adopting  the  decision  pursuant  to  paragraph  1,  the  Commission  shall 
communicate its preliminary findings to the gatekeeper concerned. In the preliminary 
findings,  the  Commission  shall  explain  the  measures  it  considers  to  take  or  it 
considers  that  the  gatekeeper  should  take  in  order  to  effectively  address  the 
preliminary findings. 

In  the  non-compliance  decision  adopted  pursuant  to  paragraph  1,  the  Commission 
shall  order  the  gatekeeper  to  cease  and  desist  with  the  non-compliance  within  an 
appropriate deadline and to provide explanations on how it plans to comply with the 
decision. 

The gatekeeper shall provide the Commission with the description of the measures it 
took to ensure compliance with the decision adopted pursuant to paragraph 1. 

Where the Commission finds that the conditions of paragraph 1 are not met, it shall 
close the investigation by a decision. 

3. 

1. 

2. 

1. 

2. 

3. 

4. 

5. 

EN 

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Article 26 
Fines 

1. 

In the decision pursuant to Article 25, the Commission may impose on a gatekeeper 
fines not exceeding 10% of its total turnover in the preceding financial year where it 
finds that the gatekeeper, intentionally or negligently, fails to comply with: 

(a) 

(b) 

any of the obligations pursuant to Articles 5 and 6;  

the measures specified by the Commission pursuant to a decision under Article 
7(2); 

(c)  measures ordered pursuant to Article 16(1); 

(d) 

a decision ordering interim measures pursuant to Article 22;  

(e) 

a commitment made binding by a decision pursuant to Article 23. 

2. 

The  Commission  may  by  decision  impose  on  undertakings  and  associations  of 
undertakings fines not exceeding 1% of the total turnover in the preceding financial 
year where they intentionally or negligently: 

(a) 

(b) 

(c) 

(d) 

(e) 

(f) 

fail to  provide within the time-limit  information  that is  required for  assessing 
their  designation  as  gatekeepers  pursuant  to  Article  3(2)  or  supply  incorrect, 
incomplete or misleading information; 

fail  to  notify  information  that  is  required  pursuant  to  Article  12  or  supply 
incorrect, incomplete or misleading information; 

fail to submit the description that is required pursuant to Article 13; 

supply incorrect, incomplete or misleading information or explanations that are 
requested pursuant to Articles 19 or Article 20; 

fail to provide access to data-bases and algorithms pursuant to Article 19; 

fail to rectify within a time-limit set by the Commission, incorrect, incomplete 
or  misleading  information  given  by  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 21; 

(g) 

refuse to submit to an on-site inspection pursuant to Article 21. 

In  fixing  the  amount  of  the  fine,  regard  shall  be  had  to  the  gravity,  duration, 
recurrence,  and,  for  fines  imposed  pursuant  to  paragraph  2,  delay  caused  to  the 
proceedings. 

When  a  fine  is  imposed  on  an  association  of  undertakings  taking  account  of  the 
turnover  of  its  members  and  the  association  is  not  solvent,  the  association  shall  be 
obliged to call for contributions from its members to cover the amount of the fine. 

Where such contributions have not been made to the association 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 the 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  which  were  active  on  the  market  on  which  the  infringement  occurred, 
where necessary to ensure full payment of the fine. 

3. 

4. 

EN 

50 

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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 infringing decision of the association and either were not aware of its existence or 
have  actively  distanced  themselves  from  it  before  the  Commission  started 
investigating the case. 

The financial liability of each undertaking in respect of the payment of the fine shall 
not exceed 10 % of its total turnover in the preceding financial year. 

Article 27 
Periodic penalty payments 

1. 

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

(a) 

(b) 

(c) 

(d) 

(e) 

(f) 

to comply with the decision pursuant to Article 16(1); 

to supply correct and complete information within the time limit required by a 
request for information made by decision pursuant to Article 19; 

to  ensure  access  to  data-bases  and  algorithms  of  undertakings  and  to  supply 
explanations on those as required by a decision pursuant to Article 19;  

to  submit  to  an  on-site  inspection  which  was  ordered  by  a  decision  taken 
pursuant to Article 21; 

to comply with a decision ordering interim measures taken pursuant to Article 
22(1); 

to  comply  with  commitments  made  legally  binding  by  a  decision  pursuant  to 
Article 23(1); 

(g) 

to comply with a decision pursuant to Article 25(1). 

Where  the  undertakings  have  satisfied  the  obligation  which  the  periodic  penalty 
payment  was  intended  to  enforce,  the  Commission  may  by  decision  adopted  in 
accordance with the advisory procedure referred to in Article 32(4) set the definitive 
amount of the periodic penalty payment at a figure lower than that which would arise 
under the original decision.  

Article 28 
Limitation periods for the imposition of penalties 

The powers conferred on the Commission by Articles 26 and 27 shall be subject to a 
three year limitation period. 

Time  shall  begin  to  run  on  the  day  on  which  the  infringement  is  committed. 
However, in the case of continuing or repeated infringements, time shall begin to run 
on the day on which the infringement ceases. 

Any  action  taken  by  the  Commission  for  the  purpose  of  an  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 
the 
undertaking  or  association  of  undertakings  which  has  participated 

in 

2. 

1. 

2. 

3. 

EN 

51 

  EN 

4. 

5. 

1. 

2. 

3. 

4. 

5. 

1. 

infringement.  Actions  which  interrupt  the  running  of  the  period  shall  include  in 
particular the following: 

(a) 

requests for information by the Commission; 

(b)  on-site inspection; 

(c) 

the opening of a proceeding by the Commission pursuant to Article 18. 

Each interruption shall start time running afresh. However, the limitation period shall 
expire at the latest on the day on which a period equal to twice the limitation period 
has  elapsed  without  the  Commission  having  imposed  a  fine  or  a  periodic  penalty 
payment.  That  period  shall  be  extended  by  the  time  during  which  limitation  is 
suspended pursuant to paragraph 5. 

The limitation period for the imposition of fines or periodic penalty payments shall 
be  suspended  for  as  long  as  the  decision  of  the  Commission  is  the  subject  of 
proceedings pending before the Court of Justice of the European Union. 

Article 29 
Limitation periods for the enforcement of penalties 

The power of the Commission to enforce decisions taken pursuant to Articles 26 and 
27 shall be subject to a limitation period of five years. 

Time shall begin to run on the day on which the decision becomes final. 

The limitation period for the enforcement of penalties shall be interrupted: 

(a) 

by notification of a decision varying the original amount of the fine or periodic 
penalty payment or refusing an application for variation; 

(b)  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. 

Each interruption shall start time running afresh. 

The limitation period for the enforcement of penalties shall be suspended for so long 
as: 

(a) 

(b) 

time to pay is allowed; 

enforcement  of  payment  is  suspended  pursuant  to  a  decision  of  the  Court  of 
Justice. 

Article 30 
Right to be heard and access to the file 

Before adopting a decision pursuant to Article 7, Article 8(1), Article 9(1), Articles 
15,  16,  22,  23,  25  and  26  and  Article  27(2),  the  Commission  shall  give  the 
gatekeeper or undertaking or association of undertakings concerned the opportunity 
of being heard on:  

(a) 

preliminary  findings  of  the  Commission,  including  any  matter  to  which  the 
Commission has taken objections;  

(b)  measures  that  the  Commission  may  intend  to  take  in  view  of  the  preliminary 

findings pursuant to point (a) of this paragraph.  

EN 

52 

  EN 

2. 

3. 

4. 

1. 

2. 

1. 

2. 

3. 

4. 

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

The  Commission  shall  base  its  decisions  only  on  objections  on  which  gatekeepers, 
undertakings and associations of undertakings concerned have been able to comment.  

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

Article 31 
Professional secrecy 

The information collected pursuant to Articles 3, 12, 13, 19, 20 and 21 shall be used 
only for the purposes of this Regulation. 

Without  prejudice  to  the  exchange  and  to  the  use  of  information  provided  for  the 
purpose of use pursuant to Articles 32 and 33, the Commission, the authorities of the 
Member  States,  their  officials,  servants  and  other  persons  working  under  the 
supervision  of  these  authorities  and  any  natural  or  legal  person,  including  auditors 
and  experts  appointed  pursuant  to  Article  24(2),  shall  not  disclose  information 
acquired or exchanged by them pursuant to this Regulation and of the kind covered 
by  the  obligation  of  professional  secrecy.  This  obligation  shall  also  apply  to  all 
representatives and experts of Member States participating in any of the activities of 
the Digital Markets Advisory Committee pursuant to Article 32. 

Article 32 
Digital Markets Advisory Committee 

The Commission shall be assisted by the Digital Markets Advisory Committee. That 
Committee  shall  be  a  Committee  within  the  meaning  of  Regulation  (EU)  No 
182/2011. 

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. 

The  Commission  shall  communicate  the  opinion  of  the  Digital  Markets  Advisory 
Committee to the addressee of an individual decision, together with that decision. It 
shall make the opinion public together with the individual decision, having regard to 
the legitimate interest in the protection of professional secrecy. 

Where  reference  is  made  to  this  paragraph,  Article  4  of  Regulation  (EU)  No 
182/2011 shall apply.  

EN 

53 

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Article 33 
Request for a market investigation 

1. 

When three or more Member States request the Commission to open an investigation 
pursuant  to  Article  15  because  they  consider  that  there  are  reasonable  grounds  to 
suspect  that  a  provider  of  core  platform  services  should  be  designated  as  a 
gatekeeper,  the  Commission  shall  within  four  months  examine  whether  there  are 
reasonable grounds to open such an investigation. 

2. 

Member States shall submit evidence in support of their request. 

Chapter VI  

General provisions 

Article 34 
Publication of decisions 

1. 

2. 

The Commission shall publish the decisions which it takes pursuant to Articles 3, 7, 
8, 9, 15, 16, 17, 22, 23(1), 25, 26 and 27. Such publication shall state the names of 
the parties and the main content of the decision, including any penalties imposed. 

The  publication  shall  have  regard  to  the  legitimate  interest  of  gatekeepers  or  third 
parties in the protection of their confidential information. 

Article 35 
Review by the Court of Justice of the European Union 

In accordance with Article 261 of the Treaty on the Functioning of the European Union, the 
Court  of  Justice  of  the  European  Union  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 36 
Implementing provisions 

1. 

The Commission may adopt implementing acts concerning: 3, 6, 12, 13, 15, 16, 17, 
20, 22, 23, 25 and 30 

(a) 

(b) 

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  points  (h),  (i)  and  (j)  of 
Article 6(1). 

(c) 

the  form,  content  and  other  details  of  notifications  and  submissions  made 
pursuant to Articles 12 and 13; 

(d) 

the practical arrangements of extension of deadlines as provided in Article 16; 

(e) 

the  practical  arrangements  of  the  proceedings  concerning  investigations 
pursuant to Articles 15, 16, 17, and proceedings pursuant to Articles 22, 23 and 
25; 

EN 

54 

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2. 

1. 

2. 

3. 

4. 

5. 

6. 

(f) 

(g) 

the  practical  arrangements  for  exercising  rights  to  be  heard  provided  for  in 
Article 30; 

the  practical  arrangements  for  the  negotiated  disclosure  of  information 
provided for in Article 30; 

the  practical  arrangements  for  the  cooperation  and  coordination  between  the 
Commission  and  Member  States  provided  for  in  Article  1(7).Those  implementing 
acts shall be adopted in accordance with the advisory procedure referred to in Article 
32(4). Before the adoption of any measures pursuant to paragraph 1, the Commission 
shall publish a draft thereof and invite all interested parties to submit their comments 
within the time limit it lays down, which may not be less than one month.  

Article 37 
Exercise of the delegation 

The  power  to  adopt  delegated  acts  is  conferred  on  the  Commission  subject  to  the 
conditions laid down in this Article. 

The  power  to  adopt  delegated  acts  referred  to  in  Articles  3(6)  and  9(1)  shall  be 
conferred on the Commission for a period of five years from DD/MM/YYYY. The 
Commission  shall  draw  up  a  report  in  respect  of  the  delegation  of  power  not  later 
than  nine  months  before  the  end  of  the  five-year  period.  The  delegation  of  power 
shall  be  tacitly  extended  for  periods  of  an  identical  duration,  unless  the  European 
Parliament or the Council opposes such extension not later than three months before 
the end of each period. 

The delegation of power referred to in Articles 3(6) and 9(1) may be revoked at any 
time by the European Parliament or by the Council. A decision to revoke shall put an 
end to the delegation of the power specified in that decision. It shall take effect the 
day  following  the  publication  of  the  decision  in  the  Official  Journal  of  the 
European Union or at a later date specified therein. It shall not affect the validity of 
any delegated acts already in force. 

Before adopting a delegated act, the Commission shall consult experts designated by 
each  Member  State  in  accordance  with  the  principles  laid  down  in  the  Inter-
institutional Agreement of 13 April 2016 on Better Law-Making. 

As soon as it adopts a delegated act, the Commission shall notify it simultaneously to 
the European Parliament and to the Council. 

A delegated act adopted pursuant to Articles 3(6) and 9(1) shall enter into force only 
if  no  objection  has  been  expressed  either  by  the  European Parliament  or  by  the 
Council  within  a  period  of  two  months  of  notification  of  that  act  to  the  European 
Parliament  and  to  the  Council  or  if,  before  the  expiry  of  that  period,  the  European 
Parliament  and  the  Council  have  both  informed  the  Commission  that  they  will  not 
object. That period shall be extended by two months at the initiative of the European 
Parliament or of the Council. 

Article 38 
Review 

1. 

By  DD/MM/YYYY,  and  subsequently  every  three  years,  the  Commission  shall 
evaluate this Regulation and report to the European Parliament, the Council and the 
European Economic and Social Committee. 

EN 

55 

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2. 

3. 

1. 

2. 

3. 

The evaluations shall establish whether additional rules, including regarding the list 
of core platform services laid down in point 2 of Article 2, the obligations laid down 
in  Articles  5  and  6  and  their  enforcement,  may  be  required  to  ensure  that  digital 
markets  across  the  Union  are  contestable  and  fair.  Following  the  evaluations,  the 
Commission  shall  take  appropriate  measures,  which  may  include  legislative 
proposals. 

Member States shall provide any relevant information they have that the Commission 
may require for the purposes of drawing up the report referred to in paragraph 1. 

Article 39 
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.  

This Regulation shall apply from six months after its entry into force. 

However Articles 3, 15, 18, 19, 20, 21, 26, 27, 30, 31 and 34 shall apply from [date 
of entry into force of this Regulation]. 

This Regulation shall be binding in its entirety and directly applicable in all Member 
States. 

Done at Brussels, 

For the European Parliament 
The President 

For the Council 
The President 

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LEGISLATIVE FINANCIAL STATEMENT 

1. 

FRAMEWORK OF THE PROPOSAL/INITIATIVE  

1.1.  Title of the proposal/initiative  

1.2.  Policy area(s) concerned in the ABM/ABB structure 

1.3.  Nature of the proposal/initiative  

1.4.  Objective(s)  

1.5.  Grounds for the proposal/initiative  

1.6.  Duration and financial impact  

1.7.  Management mode(s) planned  

2. 

MANAGEMENT MEASURES  

2.1.  Monitoring and reporting rules  

2.2.  Management and control system  

2.3.  Measures to prevent fraud and irregularities  

3. 

ESTIMATED FINANCIAL IMPACT OF THE PROPOSAL/INITIATIVE  

3.1.  Heading(s)  of  the  multiannual  financial  framework  and  expenditure  budget 
line(s) affected  

3.2.  Estimated impact on expenditure  

3.2.1. Summary of estimated impact on expenditure  

3.2.2. Estimated impact on operational appropriations  

3.2.3. Estimated impact on appropriations of an administrative nature 

3.2.4. Compatibility with the current multiannual financial framework 

3.2.5. Third-party contributions  

3.3.  Estimated impact on revenue

EN 

57 

  EN 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
LEGISLATIVE FINANCIAL STATEMENT 

1. 

FRAMEWORK OF THE PROPOSAL/INITIATIVE  

1.1. 

Title of the proposal/initiative  

Regulation of the European Parliament and of the Council on Digital Markets Act  
Policy area(s) concerned in the ABM/ABB structure1  

1.2. 

Policy area:  Single Market 

Digital Europe 

The  budgetary  impact  concerns  the  new  tasks  entrusted  with  the  Commission, 
including the direct supervisory tasks.  

1.3. 

Nature of the proposal/initiative  

 The proposal/initiative relates to a new action  

  The  proposal/initiative 
project/preparatory action2  

relates 

to  a  new  action 

following  a  pilot 

 The proposal/initiative relates to the extension of an existing action  

 The proposal/initiative relates to an action redirected towards a new action  

1.4. 

Objective(s) 

1.4.1.  The  Commission's  multiannual 

strategic  objective(s) 

targeted  by 

the 

proposal/initiative  

The  general  objective  of  this  initiative  is  to  ensure  the  proper  functioning  of  the 
internal market by promoting effective competition in digital markets, in particular a 
contestable  and  fair  online  platform  environment.  This  objective  feeds  into  the 
strategic course set out in the Communication ‘Shaping Europe’s digital future’. 

1.4.2. 

Specific objective(s) and ABM/ABB activity(ies) concerned  

To address market failures to ensure contestable and competitive digital markets for 
increased innovation and consumer choice. 

To address gatekeepers’ unfair conduct.  

To enhance coherence and legal certainty to preserve the internal market. 

1 
2 

ABM: activity-based management; ABB: activity-based budgeting. 
As referred to in Article 54(2)(a) or (b) of the Financial Regulation. 

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1.4.3.  Expected result(s) and impact 

Specify the effects which the proposal/initiative should have on the beneficiaries/groups targeted. 

Interventions aiming at increasing the contestability of the digital sector would have 
a significant positive and growing contribution to achieve all of the potential benefits 
of  a  Digital  Single  Market,  also  resulting  in  lower  prices  and  greater  consumer 
choice, productivity gains and innovation. 

Efficiency gains from the Digital Single Market, would contribute to a 1.5% increase 
in GDP per year until 2030 and create between 1 and 1.4 million jobs.3  In particular, 
the  impact  of  a  more  efficient  Digital  Single  Market  ranges  from  0.44  to  0.82% 
changes in GDP and between 307 and 561 thousand additional FTEs. 

Addressing  gatekeepers’  unfair  business  practices  would  have  a  positive  impact  on 
the  online  platform  economy  in  general.  The  envisaged  measures  would  limit  the 
chilling  effects  unfair  conduct  has  on  sales.  Businesses,  especially  smaller  ones, 
would  be  more  confident  in  engaging  with  gatekeepers  if  the  latter  are  obliged  to 
comply with clear fairness rules.  

A  regulatory  action  is  expected  to  result  not  only  in  more  sales  through  smaller 
platform but also to have a positive impact on market growth. It would reinforce trust 
in  the  platform  business  environment  since  they  foresee  an  adaptable  framework, 
based both on a clear set of obligations and a flexible list of obligations subject to an 
assessment of the applicability of the conducts to the specific case. 

The benefits can be expected to lead to greater innovation potential amongst smaller 
businesses  as  well  as  improved  quality  of  service,  with  associated  increases  in 
consumer  welfare.  Assuming  that  interventions  foreseen  would  reduce  competitive 
asymmetries between gatekeepers and other platforms, a consumer surplus could be 
estimated at 13 billion euros, i.e. around 6% increase as compared to the baseline. 

1.4.4. 

Indicators of results and impact  

Specify the indicators for monitoring implementation of the proposal/initiative. 

Specific objective 

Operational objectives 

Potential Measuring indicators 

Enhance coherence and legal 
certainty in the online platform 
environment in the internal 
market 

Limit the diverging national 
regulatory interventions 

Number of regulatory interventions 
at the national level 

Ensure coherent interpretation of 
obligations  

Number of clarification requests per 
year 

Address gatekeeper platforms' 
unfair conduct 

Preventing identified unfair self-
preferencing practices 

Number of compliance interventions 
by the Commission per gatekeeper 
platform/per year 

Number of sanction decisions per 
gatekeeper platform/per year 

3 

M. Christensen, A. Conte, F. Di Pietro, P. Lecca, G. Mandras, & S. Salotti (2018), The third pillar of 
the  Investment  Plan  for  Europe:  An  impact  assessment  using  the  RHOMOLO  model  (No.  02/2018). 
JRC Working Papers on Territorial Modelling and Analysis. 

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Address market failures to ensure 
contestable and competitive 
digital markets for increased 
innovation and consumer choice 

Preventing 
practices 
unfair 
concerning  access  to  gatekeeper 
platforms’ services and platforms  

Preventing  unfair  data 
practices 
ensuring 
and 
compliance with obligations 

related 
the 

Share of users multi-homing with 
different platforms or services 

Share of users switching between 
different platforms and services 

1.5. 

Grounds for the proposal/initiative  

1.5.1.  Requirement(s) to be met in the short or long term  

The Regulation should be directly  applicable  after 6 months from  its adoption, and 
by that time the EU governance should allow that effective procedures are in place 
for  the  designation  of  the  core  platform  services  and  enforcement  of  the  rules.  By 
that  moment,  therefore,  the  Commission  will  be  empowered  to  adopt  decisisions 
concerning  the  designation  of  the  gatekeepers,  specifying  the  measures  that  the 
gatekeeper  concerned  should  implement,  carry  out  market  investigations  and  be 
ready to perform any other investigative, enforcement and monitoring powers.  

At the same time, Member States shall have appointed representatives to the Digital 
Markets Advisory Committee.  

1.5.2.  Added value of EU involvement 

For  the  purposes  of  this  point  'added  value  of  Union  involvement'  is  the  value 
resulting  from  Union  intervention  which  is  additional  to  the  value  that  would  have 
been otherwise created by Member States alone. 

Reasons for action at European level (ex-ante): 

In  order  to  ensure  the  proper  functioning  of  the  single  market,  the  intervention 
provides,  inter  alia,  for  the  appropriate  regulatory  framework  for  core  platform 
services acting as gatekeepers. By promoting effective competition in digital markets 
and in particular a contestable and fair online platform environment, it supports trust, 
innovation and growth in the single market.  

There is an emerging fragmentation of the regulatory landscape and oversight in the 
Union, as Member States address platform related problems at national level. This is 
suboptimal  in  light  of  the  cross  border  nature  of  the  platform  economy  and  the 
systemic  importance  of  gatekeeper  platforms  for  the  internal  market.  Divergent 
fragmentation  could  create  legal  uncertainty  and  higher  regulatory  burdens  for 
participants in the platform economy. Such fragmentation puts at risk the scaling-up 
of start-ups and smaller businesses and their ability to thrive in digital markets. 

This  initiative  therefore  aims  at  improving  coherent  and  effective  oversight  and 
enforcement of measures against core platform services. 

Expected generated Union added value (ex-post):  

This  initiative  is  expected  to  lead  to  greater  innovation  potential  amongst  smaller 
businesses as well as improved quality of service. By preserving the internal market 
in  the  platform  space  cross-border  trade,  this  would  lead  to  a  gain  of  EUR  92.8 
billion by 2025.4  

4 

Cross-border e-commerce in Europe was worth EUR 143 billion in 2019, with 59% of this market being 
generated by online marketplaces. This is projected to increase to 65% in 2025 (CNECT/GROW study). 

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With  regard  to  added  value  in  the  enforcement  of  measures,  the  initiative  creates 
important  efficiency  gains.  Assuming  that  interventions  foreseen  would  reduce 
competitive  asymmetries  between  gatekeepers  and  other  platforms,  a  consumer 
surplus could be estimated at EUR 13 billion.  

1.5.3.  Lessons learned from similar experiences in the past 

The  E-commerce  Directive  2000/31/EC  provides  the  core  framework  for  the 
functionning  of  the  single  market  and  the  supervision  of  digital  services  and  sets  a 
basic structure for a general cooperation mechanism among Member States, covering 
in  principle  all  requirements  applicable  to  digital  services.  The  evaluation  of  the 
Directive pointed to shortcomings in several aspects of this cooperation mechanism,5  
including  important  procedural  aspects  such  as  the  lack  of  clear  timeframes  for 
response  from  Member  States  coupled  with  a  general  lack  of  responsiveness  to 
requests from their counterparts.  

At  national  level,  some  Member  States  already  started  to  adopt  national  rules  in 
response  to  the  problems  associated  to  the  conduct  of  gatekeepers  in  the  digital 
sector.  Fragmentation  already  exists  with  regard  to  platform-specific  regulation,  as 
for  example  in  the  cases  of  transparency  obligations  and  MFN  clauses.  Divergent 
fragmentation gives rise to legal uncertainty and higher regulatory burdens for those 
players. Therefore, action at the EU level is deemed necessary. 

1.5.4.  Compatibility and possible synergy with other appropriate instruments 

This  initiative  leverages  existing  platform  regulation,  without  conflicting  with  it, 
while  providing  for  an  effective  and  proportionate  enforcement  mechanism  that 
matches  the  need  to  strictly  enforce  the  targeted  obligations  vis-a-vis  a  limited 
number  of  cross-border  platform  providers  that  serve  as  important  gateways  for 
business users to reach consumers.  

Different from the P2B Regulation, it foresees EU-level enforcement of a narrow set 
of  very  precise  unfair  practices  engaged  in  by  a  restricted  group  of  large,  cross-
border  gatekeepers.  This  EU-level  enforcement  mechanism  is  consistent  with  the 
enforcement of the P2B Regulation. Gatekeepers integrate several cross-border core 
platform services, and a central EU-level regulator with strong investigatory powers 
is required both to prevent fragmented outcomes as well as to prevent circumvention 
of  the  new  rules.  To  this  end,  the  new  EU-level  regulator  can  leverage  the 
transparency  that  each  of  the  online  intermediation  services  and  online  search 
engines have to provide under the P2B Regulation on practices that could precisely 
be illegal under the list of obligations – if engaged in by gatekeepers. 

The Digital Services Act (‘DSA’) is complementary to the proposal for the update of 
the e-Commerce Directive (‘ECD’) under the DSA. While the DSA is  a horizontal 
initiative focusing on issues such as liability of online intermediaries for third party 
content, safety of users online or asymmetric due diligence obligations for different 
providers  of  information  society  services  depending  on  the  nature  of  the  societal 
risks  such  services  represent,  the  present  initiative  is  concerned  with  economic 
their  negative 
imbalances,  unfair  business  practices  by  gatekeepers  and 

5 

Member States have repeatedly raised these issues in the consultation conducted in 2019, the targeted 
consultation  of  2020  as  well  as  in  the  open  public  consultation  and  discussion  in  the  e-Commerce 
Expert Group in October 2019. 

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consequences,  such  as  weakened  contestability  of  platform  markets.  To  the  extent 
that the DSA contemplates an asymmetric approach which may impose stronger due 
diligence obligations on very large platforms, consistency will be ensured in defining 
the  relevant  criteria,  while  taking  into  account  the  different  objectives  of  the 
initiatives.  

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1.6. 

Duration and financial impact  

 Proposal/initiative of limited duration  

–    Proposal/initiative in effect from [DD/MM]YYYY to [DD/MM]YYYY  

–    Financial impact from YYYY to YYYY  

 Proposal/initiative of unlimited duration 

–  Implementation with a start-up period from 2022 to 2025, 

–  followed by full-scale operation. 

1.7.  Management mode(s) planned6  

 Direct management by the Commission 

–   by its departments, including by its staff in the Union delegations;  

–    by the executive agencies  

 Shared management with the Member States  

 Indirect management by entrusting budget implementation tasks to: 

–   third countries or the bodies they have designated; 

–   international organisations and their agencies (to be specified); 

–  the EIB and the European Investment Fund; 

–   bodies referred to in Articles 208 and 209 of the Financial Regulation; 

–   public law bodies; 

–   bodies governed by private law with a public service mission to the extent that 

they provide adequate financial guarantees; 

–   bodies governed by the private law of a Member State that are entrusted with 
the  implementation  of  a  public-private  partnership  and  that  provide  adequate 
financial guarantees; 

–    persons  entrusted  with  the  implementation  of  specific  actions  in  the  CFSP 

pursuant to Title V of the TEU, and identified in the relevant basic act. 

– 

If more than one management mode is indicated, please provide details in the ‘Comments’ section. 

Comments  

6 

Details  of  management  modes  and  references  to  the  Financial  Regulation  may  be  found  on  the 
BudgWeb site: http://www.cc.cec/budg/man/budgmanag/budgmanag_en.html 

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63 

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2. 

MANAGEMENT MEASURES  

2.1.  Monitoring and reporting rules  

Specify frequency and conditions. 

The  Regulation  will  be  reviewed  and  evaluated  every  third  year.  Moreover,  in  the 
context  of  the  application  of  the  measures,  the  Commission  in  its  continuous 
evaluation of the effectiveness and efficiency of the measures, including supervision 
and  analysis  of  emerging  issues,  will  carry  out  several  monitoring  actions.  In 
particular,  a  review  may  be  required  when  additional  rules,  including  regarding 
enforcement, are determined necessary to ensure that digital markets across the EU 
are contestable and fair. 

The Commission must report on the findings to the European Parliament, the Council 
and the European Economic and Social Committee. 

2.2.  Management and control system  

2.2.1.  Risk(s) identified  

With regard to the implementation of the Regulation, the following main risks can be 
identified: 

Risks for the effectiveness of the the Regulation, due to legal uncertainties relating to 
certain key aspects of the obligations; and 

Risks  for  the  effectiveness  of  the  the  Regulation,  possibility  of  due  to  material 
changes in facts. 

With regards to expenditures the following main risks can be identified: 

Risk of poor quality of selected sectoral experts and poor technical implementation, 
reducing the impact of the monitoirng due to inadequate selection procedures, lack of 
expertise or insufficient monitoring; and 

Risk of inefficient and ineffective use of funds awarded for procurement (sometimes 
limited number of economic providers making it difficult to compare prices). 

Risk as regards management of IT-projects in particular in terms of delays, of cost- 
risk overruns and overall governance. 

2.2.2. 

Information concerning the internal control system set up 

With regard to the implementation of the Regulation, the following internal control 
system is foreseen: 

A dialogue between the Commission and the gatekeeper concerned may be required 
to ensure that measures considered or implemented by the gatekeepers better achieve 
its  goals.  By  introducing  the  possibility  for  such  a  dialogue,  the  initiaitve  can  be 
expected  to  be  more  effective  in  addressing  unfair  practices  hampering  market 
contestability  and  competition.  It  will,  at  the  same  time,  be  proportionate  for  the 
gatekeepers  concerned,  since  they  would  have  certain  margin  of  appreciation  in 
implementing  measures  that  effectively  ensure  compliance  with  the  identified 
obligations. 

The  designation  of  the  gatekeeper  is  also  subject  to  regular  reviewed  where  there 
would be a material change in any of the facts on which the designation decision was 

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64 

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based,  and  where  the  decision  was  based  on  incomplete,  incorrect  or  misleading 
information provided by the undertakings.  

Finally, this initiative comprises a dynamic mechanism allowing to update the list of 
obligations in case new practices are deemed unfair after a market investigation. 

With regards to expenditures, the following internal control system is foreseen: 

These risks related to expenditures can be mitigated by better targeted proposals and 
tender  documents  and  the  use  of  simplified  procedures  as  introduced  in  the  latest 
financial  regulation.  The  activities  as  regards  financial  resources,  will  be 
implemented  mainly  through  public  procurement  under  direct  management  mode. 
Therefore the associated legality and regularity risks are considered to be (very) low.  

Many  of  these  risks  are  linked  to  the  inherent  nature  of  these  projects  and  will  be 
mitigated  by  means  of  appropriate  project  management  system  and  project 
management  reporting,  including  risk  reports  that  will  be  submitted  to  senior 
management as required. 

The internal control framework is built on the implementation of the Commission's 
Internal Control Principles. In line with the requirement of the Financial Regulation, 
an important objective of the Commission's "budget focused on results strategy" is to 
ensure cost-effectiveness when designing and implementing management and control 
systems which prevent or identify and correct errors. The control strategy therefore 
considers a higher level of scrutiny and frequency in riskier areas and ensures cost-
effectiveness. 

There  will  be  a  constant  link  with  policy  work,  which  will  ensure  the  necessary 
flexibility  for  adapting  the  resources  to  actual  policy  needs  in  an  area  subject  to 
frequent changes. 

2.2.3.  Estimate of the costs and benefits of the controls and assessment of the expected level 

of risk of error  

The  costs  of  controls  are  estimated  to  be  less  than  3%  of  total  expenditure.  The 
benefits of controls in non-financial terms cover: better value for money, deterrence, 
efficiency gains, system improvements and compliance with regulatory provisions. 

The risks are effectively mitigated by means of controls put in place, and the level of 
risk of error is estimated to less than 2%. 

2.3.  Measures to prevent fraud and irregularities  

Specify existing or envisaged prevention and protection measures. 

The  prevention  and  protection  measures  focus  on  increasing  transparency  in 
management  meetings  and  contacts  with  stakeholders,  following  the  best  public 
procurement practices, including usage of e-procurement and e-submission tool. The 
actions also will prevent and detect possible conflict of interests. 

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3. 

3.1. 

ESTIMATED FINANCIAL IMPACT OF THE PROPOSAL/INITIATIVE  

Heading(s)  of  the  multiannual  financial  framework  and  expenditure  budget 
line(s) affected  

  Existing budget lines  

In order of multiannual financial framework headings and budget lines. 

Budget line 

Type of  
expenditure 

Contribution  

Diff./Non-
diff.1 

from 
EFTA 
countries2 

from 
candidate 
countries3 

from third 
countries 

within the 
meaning of 
Article 21(2)(b) of 
the Financial 
Regulation  

03  02  Single  Market  Programme  (incl 
SMEs) 

Diff. 

YES 

NO 

02 04 05 01 Digital Europe Programme 

Diff. 

YES 

NO 

NO 

NO 

20.0206 Other management 

expenditure 

Non-diff. 

NO 

NO 

NO 

NO 

NO 

NO 

Heading of 
multiannual 
financial 
framework 

1 

1 

7 

1 
2 
3 

Diff. = Differentiated appropriations / Non-diff. = Non-differentiated appropriations. 
EFTA: European Free Trade Association.  
Candidate countries and, where applicable, potential candidate countries from the Western Balkans. 

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3.2. 

Estimated impact on expenditure  

3.2.1. 

Summary of estimated impact on expenditure  

Heading of multiannual financial  
framework  

1 

Single Market Innovation and Digital1 

EUR million (to three decimal places) 

Operational  appropriations  –  03  02  
Single Market Programme 

Operational appropriations - 02 04 05 
01 Digital Europe Programme 

Commitments 

Payments 

Commitments 

Payments 

Appropriations of an administrative 
nature financed from the envelope of 
the programme  

Commitments = 
Payments 

(1) 

(2) 

(1) 

(2) 

(3) 

TOTAL appropriations  
under HEADING 1 
of the multiannual financial 
framework 

2021 

2022 

2023 

2024 

2025 

2026 

2027 

Post 
2027 

TOTAL 

N/A 

0,667 

3,667 

4,633 

4,133 

3,667 

3,533 

20,300 

N/A 

0,333 

2,167 

4,150 

4,383 

3,900 

3,600 

1,767 

20,300 

N/A 

0,333 

1,833 

2,317 

2,067 

1,833 

1,767 

10,150 

N/A 

0,167 

1,083 

2,075 

2,192 

1,950 

1,800 

0,883 

10,150 

N/A 

N/A 

N/A 

N/A 

N/A 

N/A 

N/A 

N/A 

30,450 

Commitments 

=1+3 

N/A 

1,000 

5,500 

6,950 

6,200 

5,500 

5,300 

Payments 

=2+3 

N/A 

0,500 

3,250 

6,225 

6,575 

5,850 

5,400 

2,650 

30,450 

Heading of multiannual financial  

7 

‘Administrative expenditure’ 

1 

The breakdown of the budget between programmes is indicative. 

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framework  

Human resources  

N/A 

3,000 

5,320 

7,845 

10,300 

10,300 

10,300 

Other administrative expenditure 

N/A 

0,050 

0,675 

1,125 

0,625 

0,575 

0,525 

2021 

2022 

2023 

2024 

2025 

2026 

2027 

Post 
2027 

TOTAL 

47,065 

3,575 

EUR million (to three decimal places) 

TOTAL appropriations 
under HEADING 7 
of the multiannual financial 
framework  

(Total  commitments  = 
Total payments) 

N/A 

3,050 

5,995 

8,970 

10,925 

10,875 

10,825 

50,640 

2021 

2022 

2023 

2024 

2025 

2026 

2027 

TOTAL appropriations  
under HEADINGS 1 to 7 
of the multiannual financial 
framework  

Commitments 

N/A 

4,050 

11,495 

15,920 

17,125 

16,375 

16,125 

Payments 

N/A 

3,550 

9,245 

15,195 

17,500 

16,725 

16,225 

Post 
2027 

TOTAL 

2,650 

81,090 

81,090 

EUR million (to three decimal places) 

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3.2.2.  Estimated impact on operational appropriations  

It is not possible to provide an exhaustive list of outputs to be delivered by means of financial interventions, average cost and numbers 
as requested by this section as this is a new initiative and there is no previous statistical data to draw from. 

The Regulation aims at (i) addressing market failures to ensure contestable and competitive digital markets for increased innovation and 
consumer  choice, (ii)  addressing  gatekeepers’ unfair  conduct  and (iii)  enhancing coherence and legal  certainty in the online  platform 
environment for a preserved internal market. All  these objectives contribute to achieving the general objective of ensuring the proper 
functioning of the internal market (through effective competition in digital markets and through a contestable and fair online platform 
environment).  

In order to optimally achieve these objectives, it is foreseen inter alia to finance the following actions:   

(1) carry out designation of providers of core platform services subject to the Regulation through a declaratory process; 

(2) carry out market investigations, perform any other investigative actions, enforcement actions and monitoring activities; 

(3) regularly carry out review of specific elements of the Regulation and evaluation of the Regulation;  

(4) continuous evaluation of the effectiveness and efficiency of the measures implemented; 

(5) maintain, develop, host, operate and support a central information system in compliance with the relevant confidentiality and data 
security standards; 

(6) follow-up experts evaluations, where these appointed; and 

(7) other administrative costs incurred in connection with the implementation of the various actions, such as: 

(7.i) costs related to missions for staff, including in case of on-site inspections ; 

(7.ii) costs related to the organisation of meetings, namely Advisory Committees; 

(7.iii) costs relating to training for staff; and 

(7.iv) costs relating to expert advice. 

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3.2.3.  Estimated impact on appropriations of an administrative nature 

3.2.3.1.  Summary  

–    The  proposal/initiative  does  not  require  the  use  of  appropriations  of  an 

administrative nature  

–    The proposal/initiative requires the use of appropriations of an administrative 

nature, as explained below: 

EUR million (to three decimal places) 

Years 

2021 

20221

2023 

2024 

2025 

2026 

2027 

TOTAL 

HEADING 7 
of the multiannual 
financial framework 

Human resources  

Other administrative 
expenditure  

Subtotal HEADING 7 
of the multiannual 
financial framework  

Outside HEADING 72 
of the multiannual 
financial framework  

N/A 

N/A 

3,000 

5,320 

7,845 

10,300 

10,300 

10,300 

47,065 

0,050 

0,675 

1,125 

0,625 

0,575 

0,525 

3,575 

N/A 

3,050 

5,995 

8,970 

10,925 

10,875 

10,825 

50,640 

Human resources  

N/A 

N/A 

N/A 

N/A 

N/A 

N/A 

N/A 

N/A 

Other expenditure  
of an administrative 
nature 

Subtotal  
outside HEADING 7 
of the multiannual 
financial framework  

N/A 

N/A 

N/A 

N/A 

N/A 

N/A 

N/A 

N/A 

N/A 

N/A 

N/A 

N/A 

N/A 

N/A 

N/A 

N/A 

TOTAL 

N/A 

3,050 

5,995 

8,970 

10,925 

10,875 

10,825 

50,640 

The  appropriations  required  for  human  resources  and  other  expenditure  of  an  administrative  nature  will  be  met  by 
appropriations from the DG that are already assigned to management of the action and/or have been redeployed within the 
DG,  together  if  necessary  with  any  additional  allocation  which  may  be  granted  to  the  managing  DG  under  the  annual 
allocation procedure and in the light of budgetary constraints. 

1 
2 

Year N is the year in which implementation of the proposal/initiative starts. 
Technical  and/or  administrative  assistance  and  expenditure  in  support  of  the  implementation  of 
EU programmes and/or actions (former ‘BA’ lines), indirect research, direct research. 

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3.2.3.2.  Estimated requirements of human resources 

–    The proposal/initiative does not require the use of human resources.  

–    The  proposal/initiative  requires  the  use  of  human  resources,  as  explained 

below: 

The  Digital  Markets  Act  is  a  new  regulatory  initiative  that  feeds  into  the  strategic 
course  set  out  in  the  Communication  ‘Shaping  Europe’s  digital  future’.  This  has  a 
horizontal  nature  and  cross-cuts  various  competence  domains  of  the  Commission, 
such  as  those  related  to  internal  market,  digital  services  and  protection  of 
competition.  

To ensure that the regulation is implemented by the companies, ex-ante controls and 
monitoring,  such  as  designate  gatekeepers,  monitor  compliance  by  gatekeepers, 
adopt  non-compliance  decisions,  assess  exemption  requests,  conduct  market 
investigations and enforce the resulting decisions and implement acts, will have to be 
put in place at the level of EU. When estimating the budget and the number of staff 
required for the initiative, efforts to create synergies and build on existing framework 
have  been  made  in  order  to  avoid  the  need  to  build  from  scratch,  which  would 
require even more staff than the current calculation. 

Although  synergies  in  terms  of  staff,  knowledge  and  infrastructure  can  be  found 
within  the  three  leading  DGs  and  the  Commission  services,  the  importance  and 
extent  of  the  initiative  goes  beyond  the  current  framework.  The  Commission  will 
have  to  increase  its  presence  in  the  Digital  Markets,  moreover,  as  the  regulation 
foresees  legal  deadlines  also  means  that  resources  must  be  allocated  to  these  tasks 
without delays. To reallocate the required human resources within the three leading 
DGs is currently not possible without jeopardising all other areas of enforcement.  It 
is therefore important to also re-deploy staff from sources outside the three leading 
DGs if we are to meet the objective of the initiative as well as the objectives of the 
three leading DGs. 

Years 

2021 

2022 

2023 

2024 

2025 

2026 

2027 

Post 
2027 

Estimate to be expressed in full time equivalent units 

 Establishment plan posts (officials and temporary staff) 

Headquarters and 
Commission’s Representation 
Offices 

Delegations 

Research 

20 

30 

43 

55 

55 

55 

55 

 External staff (in Full Time Equivalent unit: FTE) - AC, AL, END, INT and JED 3 
Heading 7 

Financed 
from 
HEADING 7 
of the 
multiannual 
financial 

- at 
Headquarters 

- in 
Delegations  

10 

17 

25 

25 

25 

25 

3 

AC=  Contract  Staff;  AL  =  Local  Staff;  END  =  Seconded  National  Expert;  INT  =  agency  staff; 
JPD= Junior Professionals in Delegations.  

EN 

71 

  EN 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
- at 
Headquarters 

- in 
Delegations  

framework  

Financed 
from the 
envelope of 
the 
programme 4 

Research 

Other (specify) 

TOTAL 

20 

40 

60 

80 

80 

80 

80 

The human resources required will be met by staff from the DG who are already assigned to management of the 
action  and/or  have  been  redeployed  within  the  DG,  together  if  necessary  with  any  additional  allocation  which 
may  be  granted  to  the  managing  DG  under  the  annual  allocation  procedure  and  in  the  light  of  budgetary 
constraints. 

Description of tasks to be carried out: 

Officials and temporary staff 

Adopt  designation  decisions  and  conduct  market  investigations  aimed  at  designating 
gatekeepers. 

External staff 

Monitor compliance with the list of obligations and, if relevant, adopt non-compliance 
decisions 

Conduct market investigations in relation to new services and new practices 

Preparation and drafting of implementing and delegated acts, in compliance with this 
Regulation 

Adopt  designation  decisions  and  conduct  market  investigations  aimed  at  designating 
gatekeepers. 

Monitor compliance with the list of obligations and, if relevant, adopt non-compliance 
decisions 

Conduct market investigations in relation to new services and new practices 

Preparation and drafting of implementing and delegated acts, in compliance with this 
Regulation 

4 

Sub-ceiling for external staff covered by operational appropriations (former ‘BA’ lines). 

EN 

72 

  EN 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
3.2.4.  Compatibility with the current multiannual financial framework  

–    The proposal/initiative is compatible the current multiannual financial framework. 

The initiative can be fully financed through redeployment within the relevant heading of the Multiannual Financial 
Framework (MFF). The  financial  impact on operational appropriations  will be entirely covered by the allocations 
foreseen in the MFF 2021-27 under the financial envelopes of the Single Market Programme and the Digital Europe 
Programme. 

–    The  proposal/initiative  will  entail  reprogramming  of  the  relevant  heading  in  the 

multiannual financial framework. 

–    The proposal/initiative requires application of the flexibility instrument or revision of the 

multiannual financial framework. 

3.2.5.  Third-party contributions  

–  The proposal/initiative does not provide for co-financing by third parties.  

EN 

1 

  EN 

 
 
 
3.3. 

Estimated impact on revenue  

The initiative has the following financial impact on other revenue. 

The amount of the revenue cannot be estimated in advance as it concerns fines on undertaking for not complying 
with obligations laid down in the Regulation. 

EUR million (to three decimal places) 

Appropriations 
available for 
the current 
financial year 

Budget revenue 
line: 
Chapter 42 – 
fines and 
penalties 

Article 
…………. 

Impact of the proposal/initiative 

Year 
N 

Year 
N+1 

Year 
N+2 

Year 
N+3 

Enter as many years as 
necessary to show the duration 
of the impact (see point 1.6) 

p.m 

p.m. 

p.m. 

p.m. 

p.m. 

p.m. 

ANNEX 
to the LEGISLATIVE FINANCIAL STATEMENT 

Regulation of the European Parliament and of the Council on Digital Markets Act 

Name of the proposal/initiative: 

NUMBER and COST of HUMAN RESOURCES CONSIDERED 
NECESSARY 

COST of OTHER ADMINISTRATIVE EXPENDITURE 

METHODS of CALCULATION USED for ESTIMATING COSTS 
Human resources 
Other administrative expenditure 

ADDITIONAL REMARKS to the LEGISLATIVE FINANCIAL 
STATEMENT and its ANNEX 

EN 

2 

  EN 

 
 
 
 
 
 
 
 
 
 
 
 
 
This annex must accompany the legislative financial statement when the inter-services consultation is launched. 

The data tables are used as a source for the tables contained in the legislative financial statement. They are strictly 
for internal use within the Commission. 

EN 

3 

  EN 

 
 
 
 
Cost of human resources considered necessary 
The proposal/initiative requires the use of human resources, as explained below: 

2021 

2022 

2023 

2024 

2025 

2026 

2027 

TOTAL 

EUR million (to three decimal places) 

HEADING 7 
of the multiannual 
financial framework 

FTE  Appropriations 

FTE  Appropriations 

FTE  Appropriations 

FTE  Appropriations 

FTE  Appropriations 

FTE  Appropriations 

FTE  Appropriations 

FTE  Appropriations 

 Establishment plan posts (officials and temporary staff) 

Headquarters  and 
Commission’s 
Representation 
Offices 

 External staff 

AD 

AST 

1

AC 

Global envelope 

END 

INT 

Subtotal – 
HEADING 7 
of the 
multiannual 
financial 
framework 

17 

 3 

2,550 

0,450 

25 

5 

 6 

 4 

3,750 

0,750 

 0,480 

 0,340 

37 

6 

10 

7 

5,550 

0,900 

0,800 

0,595 

47 

8 

 15 

10 

7,050 

1,200 

1,2 

0,850 

47 

8 

 15 

10 

7,050 

1,200 

1,200 

0,850 

47 

8 

 15 

10 

7,050 

1,200 

1,200 

0,850 

33,000 

 5,700 

 4,880 

3,485  

20 

3,000 

40 

5,320 

60 

7,845 

80 

10,300 

80 

10,300 

80 

10,300 

 47,065 

The  administrative  appropriations  required  will  be  met  by  the  appropriations  which  are  already  assigned  to  management  of  the  action  and/or  which  have  been  redeployed,  together  if 
necessary with any additional allocation which may be granted to the managing DG under the annual allocation procedure and in the light of existing budgetary constraints. 

1 

AC = Contract Staff; AL = Local Staff; END = Seconded National Expert; INT= agency staff; JPD= Junior Professionals in Delegations. 

EN 

4 

EN 

 
 
 
 
  
  
  
  
  
  
 
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
 
 
 
 
  
  
  
  
  
  
 
 
                                                 
Cost of other administrative expenditure 

The proposal/initiative requires the use of administrative appropriations, as explained below: 

HEADING 7 
of the multiannual financial 
framework 

At headquarters: 

Mission and representation expenses 

Advisory committees 

Studies and consultations 

Training of staff 

Information and management systems 
ICT equipment and services1 

Subtotal HEADING 7 
of the multiannual financial 
framework 

2021 

2022 

2023 

2024 

2025 

2026 

2027 

Total 

EUR million (to three decimal places) 

-- 

-- 
-- 

-- 

-- 

-- 

-- 

-- 

0,050 
-- 

-- 

-- 

-- 

0,050 

0,100 

0,500 

0,025 

-- 

-- 

0,050 

0,150 

0,900 

0,025 

-- 

-- 

0,050 

0,150 

0,400 

0,025 

-- 

-- 

0,050 

0,150 

0,350 

0,025 

-- 

-- 

0,050 

0,150 

0,300 

0,025 

-- 

-- 

0,250 

0,750 

2,450 

0,125 

-- 

-- 

 0,050 

0,675 

1,125 

0,625 

0,575 

0,525 

3,575 

1 

ICT: Information and Communication Technologies: DIGIT must be consulted. 

EN 

5 

EN 

 
 
 
  
  
  
  
  
  
  
  
 
 
                                                 
Outside HEADING 7 
of the multiannual financial framework 

Expenditure on technical and administrative 
assistance (not including external staff) from 
operational appropriations (former 'BA' lines) 

- at Headquarters 

- in Union delegations 

Other management expenditure for research 

Other budget lines (specify where necessary) 
ICT equipment and services2 

Sub-total – Outside HEADING 7 
of the multiannual financial framework 

2021 

2022 

2023 

2024 

2025 

2026 

2027 

Total 

EUR million (to three decimal places) 

-- 

-- 

-- 

-- 

-- 

-- 

-- 

-- 

-- 

-- 

-- 

-- 

-- 

-- 

-- 

-- 

-- 

-- 

-- 

-- 

-- 

-- 

-- 

-- 

-- 

-- 

-- 

-- 

-- 

-- 

-- 

-- 

-- 

-- 

-- 

-- 

-- 

-- 

-- 

-- 

-- 

-- 

-- 

-- 

-- 

-- 

-- 

-- 

1. 

TOTAL 
HEADING 7 and Outside HEADING 7 

2. 

of the multiannual financial framework 

 -- 

 0,050 

0,675 

1,125 

0,625 

0,575 

0,525 

3,575 

The administrative appropriations required will be met by the appropriations which are already assigned to management of the  action and/or which have been redeployed, together if 
necessary with any additional allocation which may be granted to the managing DG under the annual allocation procedure and in the light of existing budgetary constraints. 

2 

ICT: Information and Communication Technologies: DIGIT must be consulted. 

EN 

6 

EN 

 
 
 
  
  
  
  
  
  
  
  
 
 
 
 
                                                 
Methods of calculation used to estimate costs 

Human resources 

The Digital Markets Act is a new regulatory initiative that feeds into the strategic course set 
out in the Communication ‘Shaping Europe’s digital future’. This has a horizontal nature and 
cross-cuts various competence domains of the Commission, such as those related to internal 
market, digital services and protection of competition.  

To  ensure  that  the  regulation  is  implemented  by  the  companies,  ex-ante  controls  and 
monitoring,  such  as  designate  gatekeepers,  monitor  compliance  by  gatekeepers,  adopt  non-
compliance decisions, assess exemption requests, conduct market investigations and enforce 
the resulting decisions and implement acts, will have to be put in place at the level of EU.  

When  estimating  the  budget  and  the  number  of  staff  required  for  the  initiative,  efforts  to 
create synergies and build on existing framework have been made in order to avoid the need 
to build from scratch, which would require even more staff than the current calculation. 

Although  synergies  in  terms  of  staff,  knowledge  and  infrastructure  can  be  found  within  the 
three leading DGs and the Commission  services, the importance  and  extent  of the initiative 
goes beyond the current framework. The Commission will have to increase its presence in the 
Digital  Markets,  moreover,  as  the  regulation  foresees  legal  deadlines  also  means  that 
resources must be allocated to  these tasks without  delays. To reallocate  the required human 
resources within the three leading DGs is currently not possible without jeopardising all other 
areas of enforcement. It is therefore important to also re-deploy staff from sources outside the 
three leading DGs if we are to meet the objective of the initiative as well as the objectives of 
the three leading DGs. 

1.  HEADING 7 of the multiannual financial framework 

 Officials and temporary staff 
Assuming adoption by 2022, the Commission will have to set-up the resources needed to ensure the fulfilment of 
its new tasks, including the adoption of the implementing and delegated acts mandated by the Regulation. 
As from the date of application of the obligations (2022), it is estimated that new tasks related to the DMA 
(designate gatekeepers, monitor compliance by gatekeepers, adopt non-compliance decisions, assess exemption 
requests, conduct market investigations and enforce the resulting decisions, implement acts) initially require 
additional 20 FTE (17 AD + 3 AST), increasing up to 55 FTE (47 AD + 8 AST) by 2025. 

 External staff 
As from the second year of application of the obligations (2023), it is estimated that new tasks related to the 
DMA (designate gatekeepers, monitor compliance by gatekeepers, adopt non-compliance decisions, assess 
exemption requests, conduct market investigations and enforce the resulting decisions, implement acts) initially 
require additional 10 FTE (6 AC + 4 END), increasing up to 25 FTE (15 AC + 10 END) by 2025. 

2.  Outside HEADING 7 of the multiannual financial framework 

 Only posts financed from the research budget - N/A 
 External staff – N/A 

Other administrative expenditure 

EN 

7 

  EN 

 
 
 
 
 
 
 
3.  HEADING 7 of the multiannual financial framework 

Missions and representation expenses 

 

It is estimated that 10 on-site investigations of gatekeepers is needed per year as of 2023. Average cost 
per investigation is estimated to 5.000 EUR per mission, assuming 2 FTEs on site with a duration of 
5 days 

Advisory Committes 

 

5 advisory committee meetings are estimated to take place in 2022, 10 in 2023, 15 per annum in 2024-
2027. The costs per meeting are estimated to 10.000 EUR.  

Training 

  Training budget for staff is an important component in assuring the quality and specific competence in 

this field. It is estimated that the costs will be 25.000 EUR per year.  

Studies and consultations 

  Expenditure for highly specialised sectoral experts will be necessary to provide technical support in the 

designation of gatekeepers and to monitor compliance with the measures established under this 
Regulation. It is estimated to perform up to 6-7 monitoring studies between 2023-2027 with a 
complexity ranging from low to very complex, corresponding contracts value between 50.000-
1.000.000 EUR. It is expected that the needs for these expert will be higher in the beginning of the 
period. 

4.  Outside HEADING 7 of the multiannual financial framework 

N/A 

Additional remarks to the Legislative Financial statement and its annex 

The operational expenditure will be divided between DG COMP and DG GROW for the Single 
Market Programme and DG CNECT for the Digital Europe Programme.  

The administrative expenditure will be divided between DG COMP, DG GROW and DG CNECT. 

EN 

8 

  EN