L 265/18
EN
Official Journal of the European Union
12.10.2022
It may in certain cases be appropriate for the Commission, following a dialogue with the gatekeeper concerned and after enabling third parties to make comments, to further specify some of the measures that the gatekeeper concerned should adopt in order to effectively comply with obligations that are susceptible of being further specified or, in the event of circumvention, with all obligations.
In particular, such further specification should be possible where the implementation of an obligation susceptible to being further specified can be affected by variations of services within a single category of core platform services.
For this purpose, it should be possible for the gatekeeper to request the Commission to engage in a process whereby the Commission can further specify some of the measures that the gatekeeper concerned should adopt in order to effectively comply with those obligations.
The Commission should have discretion as to whether and when such further specification should be provided, while respecting the principles of equal treatment, proportionality, and good administration.
In this respect, the Commission should provide the main reasons underlying its assessment, including any enforcement priorities.
This process should not be used to undermine the effectiveness of this Regulation.
Furthermore, this process is without prejudice to the powers of the Commission to adopt a decision establishing non-compliance with any of the obligations laid down in this Regulation by a gatekeeper, including the possibility to impose fines or periodic penalty payments.
The Commission should be able to reopen proceedings, including where the specified measures turn out not to be effective.
A reopening due to an ineffective specification adopted by decision should enable the Commission to amend the specification prospectively.
The Commission should also be able to set a reasonable time period within which the proceedings can be reopened if the specified measures turn out not to be effective.
(66)
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 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.
The Commission should identify the exceptional circumstances justifying the suspension and review it on a regular basis in order to assess whether the conditions for granting it are still viable.
(67)
In exceptional circumstances, justified on the limited grounds of public health or public security laid down in Union law and interpreted by the Court of Justice, the Commission should be able to decide that a specific obligation does not apply to a specific core platform service.
If harm is caused to such public interests that could indicate that the cost to society as a whole of enforcing a certain obligation is, in a specific exceptional case, too high and thus disproportionate.
Where appropriate, the Commission should be able to facilitate compliance by assessing whether a limited and duly justified suspension or exemption is justified.
This should ensure the proportionality of the obligations in this Regulation without undermining the intended ex ante effects on fairness and contestability.
Where such an exemption is granted, the Commission should review its decision every year.
(68)
Within the timeframe for complying with their obligations under this Regulation, gatekeepers should inform the Commission, through mandatory reporting, about the measures they intend to implement or have implemented in order to ensure effective compliance with those obligations, including those measures concerning compliance with Regulation (EU) 2016/679, to the extent they are relevant for compliance with the obligations provided under this Regulation, which should allow the Commission to fulfil its duties under this Regulation.
In addition, a clear and comprehensible non-confidential summary of such information should be made publicly available while taking into account the legitimate interest of gatekeepers in the protection of their business secrets and other confidential information.
This non-confidential publication should enable third parties to assess whether the gatekeepers comply with the obligations laid down in this Regulation.
Such reporting should be without prejudice to any enforcement action by the Commission at any time following the reporting.
The Commission should publish online a link to the non-confidential summary of the report, as well as all other public information based on information obligations under this Regulation, in order to ensure accessibility of such information in a usable and comprehensive manner, in particular for small and medium enterprises (SMEs).