REPORT FROM THE COMMISSION TO THE COUNCIL AND THE EUROPEAN PARLIAMENT Annual report on Regulation (EU) 2022/1925 of the European Parliament and of the Council on contestable and fair markets in the digital sector and amending Directives (EU) 2019/1937 and (EU) 2020/1828 (Digital Markets Act)
Date: 2024-03-06
Institutions: Directorate-General for Communications Networks, Content and Technology, European Commission
Subjects: Internet, activity report, competition law, consumer protection, digital economy, digital single market, electronic commerce, goods and services, provision of services, unfair terms of contract

EN 

  EN 

   EUROPEAN COMMISSION  Brussels, 6.3.2024  COM(2024) 106 final  REPORT FROM THE COMMISSION TO THE COUNCIL AND THE EUROPEAN PARLIAMENT Annual report on Regulation (EU) 2022/1925 of the European Parliament and of the Council on contestable and fair markets in the digital sector and amending Directives (EU) 2019/1937 and (EU) 2020/1828 (Digital Markets Act)  
 
 
I. 

INTRODUCTION 

(1)  This  report is  addressed  to  the European Parliament  and the Council of the European 
Union.  It  sets  out  the  activities  undertaken  by  the  Commission  in  the  context  of 
Regulation (EU) 2022/19251 (the Digital Markets Act, hereinafter “DMA”) in 2023, as 
foreseen in Article 35 DMA.2 

(2)  Article  35  DMA  requires  the  Commission  to  submit  an  annual  report  on  the 
implementation  of  the  DMA  and  the  progress  made  towards  achieving  its  objectives. 
This is the first report of this kind,  covering the first year in which the DMA became 
applicable and was implemented by the Commission. 

(3)  Section II of this report gives an overview of the Commission’s activities in 2023 under 
the  DMA.  Section  III  describes  the  monitoring  activities  carried  out  and  Section  IV 
describes cooperation and coordination with national authorities. Finally, Section V sets 
out the tasks performed by the High-Level Group for the Digital Markets Act. 

II. 

THE COMMISSION’S ACTIVITIES IN 2023 

a.  Procedural decisions and documents  

Implementing Regulation  

(4)  The DMA empowers the Commission to adopt implementing acts laying down detailed 
arrangements on issues identified in Article 46 DMA. A number of these empowerments 
were  bundled  in  a  single  implementing  act,  namely  Commission  Implementing 
Regulation (EU) 2023/814 (‘the Implementing Regulation’).3 

(5)  The Commission published a draft version of the Implementing Regulation for public 
consultation between 9 December 2022 and 9 January 2023. Following the procedural 
rules introduced by the DMA, the Implementing Regulation also draws on procedures 
used in competition law enforcement. It furthermore includes novel elements to ensure a 
leaner and more effective procedure given the dynamic nature of digital markets. This 
notably includes a leaner procedure for access to the Commission’s file, while ensuring 
legal certainty and rights of defence for the companies concerned. 

(6)  The Commission presented the draft Implementing Regulation, including the results of 
its public consultation, to the Digital Markets Advisory Committee (DMAC)4 during its 
inaugural meeting on 13 January 2023. Based on the responses to the public consultation, 
the  Commission  simplified  the  procedure  for  access  to  the  file  laid  down  in  the 
Implementing Regulation.  

1 OJ L 265, 12.10.2022, p. 1–66 
2 The Report covers the calendar year 2023, hence more recent developments such as the closing of market 
investigations launched in 2023 for iMessage, Bing, Edge and Microsoft Advertising are not covered, see 
https://digital-markets-act.ec.europa.eu/commission-closes-market-investigations-microsofts-and-apples-
services-under-digital-markets-act-2024-02-13_en 
3 OJ L 102, 17.4.2023, p. 6–19 
4 The DMAC supports the Commission in the adoption of implementing acts under the DMA. It is classified 
as a committee under Regulation (EU) No 182/2011 and functions in accordance with its Rules of 
Procedure. 

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(7)  On 14 April 2023, the Commission adopted the Implementing Regulation together with 
its two Annexes, which include the form that undertakings who meet the thresholds laid 
down  in  Article  3(2)  DMA  must  use  to  notify  the  Commission  for  the  purposes  of 
designation as gatekeeper (the ‘Form GD’), and specifications on the form and length of 
documents submitted under the DMA. 

(8) 

In addition to the Form GD, the Commission published a number of other templates in 
the context of DMA implementation to ensure legal certainty and a uniform application 
of submissions and requests made to the Commission.5 

b.  Designation decisions 

(9)  Article 3(3) DMA sets out that undertakings providing core platform services that meet 

the thresholds laid down in Article 3(2) DMA shall notify the Commission of having 
reached these thresholds. On 3 July 2023, the Commission received notifications6 from 
Alphabet, Amazon, Apple, ByteDance, Meta, Microsoft and Samsung pursuant to 
Article 3(3), first subparagraph, DMA. On 5 September 2023, the Commission 
designated Alphabet, Amazon, Apple, ByteDance, Meta and Microsoft as gatekeepers 
of altogether 22 Core Platform Services (CPS) as indicated in the table below, and 
adopted a decision not to designate Samsung as a gatekeeper for its web browser.7  

5 https://digital-markets-act.ec.europa.eu/legislation_en#templates 
6 The Commission has been in constructive discussions with undertakings other than those that have notified, 
in view of possible notifications. The DMA is built on a system of self-assessment, where it is for the 
companies concerned to notify their core platforms services if they meet the relevant thresholds. The 
Commission notes that none of these other undertakings which have been in discussion with the Commission 
considered that they would meet the thresholds for notification in 2023. 
7 https://digital-markets-act-cases.ec.europa.eu/search 

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(10)  Companies that exceed the thresholds laid down in Article 3(2) DMA had the opportunity 
to  present  substantiated  arguments  that they should  not  be designated as a gatekeeper 
(“rebuttal”)  under  Article  3(5)  DMA.  Of  the  ten  rebuttals8  the  Commission  received 
together with the first wave of notifications, the Commission accepted three outright,9 
rejected three10 and considered that four rebuttals11 were sufficiently substantiated for the 
Commission  to  open  market  investigations  to  further  assess  the  arguments  provided 
therein.  

(11)  In  parallel,  the  Commission  opened  a  qualitative  market  investigation  to  determine 
whether  Apple’s  operating  system  iPadOS,  despite  not  meeting  the  quantitative 
thresholds, should be listed as an important gateway for business users to reach end users.  

(12)  At  a  meeting  on  10  October  2023  the  Commission  informed  the  DMAC  about  the 
gatekeeper designation decisions and the opened market investigations. On this occasion, 
the Commission outlined the timeline and procedures for both existing and potential new 
designations, along with the sequence of events for market investigations.  

Overview of designations by notifying undertaking  

(13)  Alphabet notified the Commission that it meets the thresholds in relation to the following 
core platform services (“CPSs”): (i) its online intermediation service Google Shopping; 
(ii) its online intermediation service Google Play; (iii) its online intermediation service 
Google Maps; (iv) its online search engine Google Search; (v) its video-sharing platform 
service  YouTube;  (vi)  its  number-independent  interpersonal  communications  service 
(“NIICS”)  Gmail;  (vii)  its  operating  system  Google  Android;  (viii)  its  web  browser 
Google Chrome; and (ix) its online advertising services. With its notification, Alphabet 
presented arguments seeking to demonstrate that although its NIICS Gmail meets all the 
thresholds, it does not satisfy the requirements listed in Article 3(1) DMA in relation to 
that CPS and that CPS should therefore not be listed in its designation decision as an 
important gateway for business users to reach end users.  

(14)  The Commission designated Alphabet as a gatekeeper12 in relation to:  

(i)  Alphabet’s online intermediation services Google Shopping;  
(ii)  Alphabet’s online intermediation services Google Play;  
(iii)  Alphabet’s online intermediation services Google Maps;  
(iv)  Alphabet’s online search engine Google Search;  
(v)  Alphabet’s video-sharing platform service YouTube;  

8 The Commission received rebuttals from Alphabet regarding their number-independent interpersonal 
communications service (NIICS) Gmail, from Apple regarding their NIICS iMessage, from ByteDance 
regarding their online social networking service (notified by ByteDance as a video sharing platform service) 
TikTok, from Meta regarding their NIICS Messenger and their online intermediation service Marketplace, 
from Microsoft regarding their NIICS Outlook, their online advertising service Microsoft Advertising, their 
online search engine Bing, and their web browser Edge, and from Samsung regarding their web Browser 
Samsung Internet Browser (SIB). 
9 The Commission accepted outright the rebuttals submitted by Alphabet regarding Gmail, by Microsoft 
regarding Outlook and by Samsung regarding the web browser SIB.  
10 The Commission rejected outright the rebuttals submitted by ByteDance regarding TikTok, and by Meta 
regarding Messenger and Marketplace. 
11 The Commission opened market investigation for Apple’s iMessage, Microsoft’s Bing, Microsoft 
Advertising and Edge. 
12 https://digital-markets-act.ec.europa.eu/gatekeepers_en#alphabet-inc 

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(vi)  Alphabet’s  operating  system  Google  Android,  including  Alphabet’s  related 
middleware insofar as it controls the basic functions of Google Android tablets and 
smartphones and enables software applications to run on them;  

(vii)  Alphabet’s web browser Google Chrome; and  
(viii) Alphabet’s online advertising services, including Google Analytics and AdSense 
for Search. Further, while Alphabet submitted that the display of an ad is part of 
the end user-facing service where the ad is displayed, the Decision finds the display 
of ads to be part of both Alphabet’s end user-facing services and Alphabet’s online 
advertising CPS.  

(15)  The Commission accepted the rebuttal  arguments raised by Alphabet in relation to its 
NIICS  Gmail,  because  it  is  provided  based  on  open  standards  and  in  a  standardised 
format, allowing Gmail users to exchange messages with users of any email service, and 
because Alphabet currently does not exert any control over the operations of Gmail that 
would allow it to impose any significant degree of dependency between business users 
and end users. On this basis the Commission considered that Gmail is not an important 
gateway for business users to reach end users within the meaning of Article 3(1)(b) DMA 
and therefore did not list that CPS in Alphabet’s designation decision. 

(16)  Amazon notified the Commission that it meets the thresholds in relation to the following 
CPSs:  (i)  its  online  intermediation  services  Amazon  Marketplace;  and  (ii)  its  online 
advertising services Amazon Advertising.  

(17)  The Commission designated Amazon as a gatekeeper in relation to:   

(i)  
(ii)  

Amazon’s online intermediation services Amazon Marketplace;  
Amazon’s online advertising services Amazon Advertising.13  

(18)  Apple notified the Commission that it meets the thresholds in relation to the following 
CPSs: (i) its online intermediation services iOS AppStore; (ii) its operating system iOS; 
(iii)  its  web  browser  Safari  on  iOS;  and  (iv)  its  NIICS  iMessage.  Together  with  its 
notification, Apple submitted a rebuttal request in relation to its NIICS iMessage. 

(19)  The Commission designated Apple as a gatekeeper14 in relation to:  

(i)  Apple’s  online  intermediation  services  AppStore,  irrespective  of  the  device  on 
which it is used because the App Store is used for the same common purpose across 
all devices on which it is available (i.e. iOS, iPadOS, macOS, watchOS and tvOS), 
namely to intermediate the distribution of apps;  

(ii)  Apple’s operating system iOS, where the Decision considers that, while the core 
features and technical characteristics of iOS and iPadOS are similar and result in 
similar environments, Apple has provided sufficient facts and arguments to hold 
that in the end, each of them constitutes a distinct operating system under the DMA, 
with only iOS meeting the quantitative thresholds for designation; and  

13 https://digital-markets-act.ec.europa.eu/gatekeepers_en#amazoncom-inc 
14 https://digital-markets-act.ec.europa.eu/gatekeepers_en#apple-inc 

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(iii)  Apple’s  web  browser  Safari,  irrespective  of  the  device  on  which  it  is  offered 
because Safari serves the common purpose across devices (i.e. iPhone, iPad and 
Mac) of providing users with a tool to offer, access and interact with web content.  

(20)  The Commission concluded that Apple provided sufficiently substantiated arguments to 
manifestly call into question the presumptions laid down in Article 3(2) DMA in relation 
to Apple’s NIICS iMessage and therefore decided to open a market investigation. 

(21)  In relation to Apple’s arguments regarding iOS and iPad OS, the Commission opened a 
market investigation with a view to establishing whether Apple is a gatekeeper also in 
relation to iPadOS, even though it does not meet the quantitative thresholds.15  

(22)  Apple appealed the Commission’s designation decision, as well as the decision to open 
a  market  investigation  in  relation  to  iMessage  (Cases  T-1079/23  &  T-1080/23,  both 
appeals are ongoing).  

(23)  ByteDance  notified the  Commission  that it meets  the thresholds laid down in  Article 
3(2)(a) and Article 3(2)(b) DMA, but not those laid down in Article 3(2)(c) in relation to 
its TikTok service which it considers to constitute as a video-sharing platform service 
CPS  (as  opposed  to  an  online  social  networking  service  CPS).  With  its  notification, 
ByteDance submitted arguments for rebuttal in relation to TikTok. 

(24)  The Commission designated ByteDance as a gatekeeper16 in relation to its online social 
networking service TikTok. While the Decision does not contest that TikTok meets the 
definition of a video-sharing platform service, the Commission  considers that TikTok 
goes beyond video-sharing functionalities and offers all the features and functionalities 
of an online social networking service, and that this qualification best reflects the breadth 
of TikTok’s functionalities under the DMA. The Decision also finds that ByteDance’s 
methodology for counting TikTok’s users is flawed and concludes that ByteDance meets 
all the thresholds laid down in Article 3(2) DMA in relation to TikTok. The Decision 
rejects the rebuttal arguments raised by ByteDance, because those were not sufficiently 
substantiated to manifestly call into question the presumption that it is a gatekeeper with 
respect to the online social networking service TikTok. 

(25)  ByteDance appealed the decision to  reject its rebuttal arguments  and designate it as a 

gatekeeper in relation to TikTok (Case T-1077/23, still ongoing). 

(26)  Meta notified the Commission that it meets the thresholds in relation to the following 
CPSs:  (i)  its  single  online  social  networking  service  supported  by  online  advertising 
comprising, in Meta’s view, Facebook, Instagram, Meta Ads, Messenger, Marketplace, 
Facebook Dating and Facebook Gaming Play; and (ii) its NIICS WhatsApp.  

(27)  The Commission designated Meta as a gatekeeper in relation to  

Meta’s online social networking service Facebook;  
Meta’s online social networking service Instagram;  

(i)  
(ii)  
(iii)   Meta’s online advertising service Meta Ads;  
(iv)   Meta’s NIICS WhatsApp;  

15 By end of 2023, the Commission had no indication that opening of other market investigations for 
qualitative designation was warranted. The Commission’s does a continuous monitoring in this respect. 
16 https://digital-markets-act.ec.europa.eu/gatekeepers_en#bytedance-ltd 

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(v)  
(vi)   Meta’s online intermediation services Marketplace.17 

Meta’s NIICS Messenger and  

(28)  The  Decision  rejected  the  rebuttal  arguments  raised  by  Meta  in  relation  to  its  NIICS 
Messenger and its online intermediation service Marketplace. Contrary to those rebuttal 
arguments, the Commission considers Messenger to be a standalone NIICS CPS which 
cannot be considered to merely be the chat functionality of the online social networking 
CPS  Facebook.  Contrary  to  those  rebuttal  arguments,  the  Commission  considers 
Marketplace  to  have  business  users  and  therefore  to  also  constitute  a  business-to-
consumer online intermediation service. 

(29)  Meta appealed the designation of its NIICS Messenger and of its online intermediation 
services Marketplace as important gateways for business users to reach end users in its 
designation decision (Case T-1078/23). 

(30)  Microsoft  notified  the  Commission  that  it  meets  the  thresholds  in  relation  to  the 
following CPSs: (i) its operating system Windows PC OS; (ii) its online search engine 
Bing,  (iii)  its  web  browser  Edge;  (iv)  its  online  advertising  services  Microsoft 
Advertising;  (v)  its  NIICS  Outlook.com;  and  (vi)  its  online  social  networking  service 
LinkedIn. With its notification, Microsoft presented arguments seeking to demonstrate 
that although its online search engine Bing, its web browser Edge, its online advertising 
services  Microsoft  Advertising,  and  its  NIICS  Outlook.com  meet  the  thresholds  laid 
down in Article 3(2) DMA, these CPSs do not satisfy the requirements listed in Article 
3(1)  DMA  and  that  they  should  therefore  not  be  listed  in  Microsoft’s  designation 
decision.  

(31)  The Commission designated Microsoft as a gatekeeper in relation to  

(i)  
(ii)  

Microsoft’s operating systems for PCs, which includes Windows PC OS; and  
Microsoft’s online social networking service LinkedIn.18  

(32)  In the Decision, the Commission accepted the rebuttal arguments raised by Microsoft in 
relation to its NIICS Outlook.com, since the current configuration of that service, it is 
not an important gateway for business users to reach end users. In a separate Decision, 
the Commission opened market investigations regarding the search engine Bing, the web 
browser Edge; and the online advertising services Microsoft Advertising19, because the 
Commission  considered  the  arguments  presented  by  Microsoft  to  be  sufficiently 
substantiated  to  manifestly  call the presumptions laid down in  Article 3(2) DMA into 
question. 

(33)  Samsung  notified  the  Commission  that  it  meets  the  thresholds  in  relation  to  its  web 
browser  Samsung  Internet  Browser  (“SIB”).  Together  with  its  notification,  Samsung 
presented  a  rebuttal  request  seeking  to  demonstrate  that  although  SIB  meets  all  the 
thresholds in Article 3(2) DMA, it does not satisfy the requirements laid down in Article 
3(1)  DMA  and  that  it  should  therefore  not  be  designated  as  a  gatekeeper.  The 
Commission accepted the rebuttal arguments raised by Samsung in relation to its web 
browser SIB and decided not to designate Samsung as a gatekeeper.20 In particular, the 

17 https://digital-markets-act.ec.europa.eu/gatekeepers_en#meta-platforms-inc 
18 https://digital-markets-act.ec.europa.eu/gatekeepers_en#microsoft-corporation 
19 https://ec.europa.eu/competition/digital_markets_act/cases/202343/DMA_100015_584.pdf 
20 https://ec.europa.eu/competition/digital_markets_act/cases/202346/DMA_100038_100.pdf 

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Commission considered SIB’s low share of webpage views and low scale of usage in the 
Union as an indicator that SIB is not a significant web browser in the Union and thus, it 
is not an important gateway for business users to reach end users. 

III.  MONITORING  

(34)  Gatekeepers need to comply with the obligations  laid down in Articles 5, 6, 7 and 15 
DMA  six  months  after  designation,  implying  that  those  companies  designated  on  5 
September  2023  need  to  comply  by  7 March  2024.  Therefore,  the  monitoring  of 
compliance with those obligations falls outside of the scope of this first annual report.  

(35)  The obligations on gatekeepers to provide information about concentrations pursuant to 
Article 14 DMA and to set up a compliance function pursuant to Article 28 DMA apply 
from the moment of designation and the Commission’s activities related to them in 2023 
are therefore included in this report. The Commission is assessing compliance with these 
obligations and may take action where deemed appropriate. 

a.  Article 14 DMA: Information about concentrations 

(36)  Pursuant to Article 14 DMA, gatekeepers are required to inform the Commission of any 
concentration they intend to undertake, where the merging entities or the target of the 
concentration provide CPSs, other services in the digital sector, or enable the collection 
of data.  

(37)  In  2023,  the  Commission  received  three  submissions  of  intended  concentrations  by 
gatekeepers, in September, October, and December 2023. A non-confidential summary 
of the information submitted by gatekeepers pursuant to Article 14 DMA, together with 
the date of notification and the identity of the undertakings concerned is published on the 
Commission’s website21 on a rolling basis and not earlier than four months after receipt 
of the information.  

b. Article 28 DMA: Compliance function  

(38)  Pursuant to Article 28 DMA, gatekeepers are required to introduce a compliance function 
which must be independent of the gatekeeper’s operational functions and consist of one 
or more compliance officers with sufficient authority, stature, and resources to be able to 
monitor the gatekeeper’s compliance with the DMA and advise them on it.  

(39)  The Commission has been monitoring the establishment of such a compliance function 
by  each  designated  gatekeeper  to  ensure  that  it  meets  the  requirements  laid  down  in 
Article 28 DMA. After discussions with and guidance from the Commission regarding 
these  requirements,  all  designated  gatekeepers  have  appointed  compliance  officers 
following principles laid down in Article 28 DMA and communicated the details to the 
Commission. 

IV.  COOPERATION  BETWEEN  THE  COMMISSION  AND  NATIONAL 

AUTHORITIES  

21 https://digital-markets-act-cases.ec.europa.eu/acquisitions  

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(40)  The DMA lays down the general principles governing the interplay between the DMA 
and  other  relevant  Union  law,  such  as  competition,  data  protection  and  consumer 
protection law. These principles are outlined in Articles 1(5) and 1(6) DMA. 

(41)  In addition, Articles 37 and 38 DMA envisage that the Commission and Member States 
work in close cooperation and coordinate their enforcement actions to ensure coherent, 
effective  and  complementary  enforcement  of  available  legal  instruments  applied  to 
gatekeepers.  

(42)  To date, cooperation between the Commission and national authorities, and in particular 
national competition authorities (NCAs), has taken place mainly through the European 
Competition Network (ECN). This cooperation goes in both directions: the Commission 
provided information and updates to the NCAs about its designation decisions and market 
investigations under the DMA, and NCAs provided information to and exchanged views 
with the Commission, as envisaged by the DMA, on relevant enforcement actions under 
their national competition laws.  

(43)  During  the  reporting  period,  no  NCA  informed  the  Commission  of  first  formal 
investigative  measures  and  their  intention  to  launch  an  investigation  under  national 
competition  law  concerning  a  designated  gatekeeper.  Before  the  end  of  the  reporting 
period,  one  NCA  communicated  to  the  Commission  under  Article  38(3)  DMA  draft 
measures it intends to impose on a designated gatekeeper based on national competition 
law. Since the obligations in Articles 5, 6 and 7 DMA only apply as of 7 March 2024, no 
investigation has been conducted by an NCA as foreseen under Article 38(7) DMA into 
a case of possible non-compliance with these obligations in their territory. 

V. THE HIGH-LEVEL GROUP FOR THE DIGITAL MARKETS ACT  

(44)  The High-Level  Group  for the Digital  Markets  Act  was established by  a Commission 
Decision of 23 March 2023 based on Article 40 DMA.22 The group is composed of the 
European bodies and networks identified in the DMA23 and has been set up as a group of 
experts, in compliance with the Commission Decision24 establishing horizontal rules on 
the  creation  and  operation  of  Commission  expert  groups.  The  High-Level  Group  is 
chaired by the Commission which additionally offers the group secretariat support. The 
group aims to support a coherent and effective implementation of the DMA and other 
sector-specific regulations applicable to gatekeepers.  

(45)  The group is also relevant in the identification and evaluation of any interactions between 
the provisions of the DMA and sector-specific rules. Moreover, the Commission can also 
leverage the expertise and experience of relevant sectoral bodies and networks during 
market investigations into new services and practices.25 

22 European Commission, "Commission Decision of 23.3.2023 on setting up the High-Level Group for the 
Digital Markets Act," Brussels, 23.3.2023, C(2023) 1833 final. More information available at: 
https://competition-policy.ec.europa.eu/system/files/2023-03/High_Level_Group_on_the_DMA_0.pdf. 
23 Body of the European Regulators for Electronic Communications, European Data Protection Supervisor 
and European Data Protection Board, European Competition Network, Consumer Protection Cooperation 
Network, and European Regulatory Group of Audiovisual Media Regulators. 
24 Commission Decision C(2016) 3301 final establishing horizontal rules on the creation and operation of 
Commission expert groups. 
25 Ibid. art. 40(7). 

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(46)  The High-Level Group convened for its inaugural meeting on 12 May 2023, following 
the nomination of six representatives by each of its five members.26 During the inaugural 
meeting, the members presented developments in their areas of expertise relevant for the 
enforcement of the DMA. The Commission presented the state of implementation of the 
DMA, which was followed by an exchange of views.  

(47)  The  High-Level  Group  agreed  on  Rules  of  Procedure  at  its  second  meeting  on 
27 November 2023. The discussion in that meeting focussed on the preparation of the 
establishment of High-Level Group sub-groups. It is expected that two sub-groups will 
be  established  during  2024.  The  High-Level  Group  and  its  sub-groups  shall  not  be 
involved in ongoing Commission proceedings or investigations under the DMA.27 

26 Each body or network can also provide for alternate members.  
27 Which is the sole prerogative of the Commission as enforcer of that Regulation, subject to the Advisory 
Committee procedure as laid down in Article 50(2) DMA. 

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