Data & Privacy
- Data Act
- Data Governance Act
- ePrivacy Directive
- GDPR
AI & Trust
- Artificial Intelligence Act
Cybersecurity
- Cybersecurity Act
- DORA
- NIS2
Digital Services & Media
- Digital Markets Act
- Digital Services Act
- European Media Freedom Act
Digital Markets Act
- Recitals
CHAPTER I
SUBJECT MATTER, SCOPE AND DEFINITIONSArticles 1 — 2
CHAPTER II
GATEKEEPERSArticles 3 — 4
CHAPTER III
PRACTICES OF GATEKEEPERS THAT LIMIT CONTESTABILITY OR ARE UNFAIRArticles 5 — 15
CHAPTER IV
MARKET INVESTIGATIONArticles 16 — 19
CHAPTER V
INVESTIGATIVE, ENFORCEMENT AND MONITORING POWERSArticles 20 — 43
CHAPTER VI
FINAL PROVISIONSArticles 44 — 54
ANNEXES
DMA Article 17. Market investigation for designating gatekeepers
- 1.The Commission may conduct a market investigation for the purpose of examining whether an undertaking providing core platform services should be designated as a gatekeeper pursuant to Article 3(8), or in order to identify the core platform services to be listed in the designation decision pursuant to Article 3(9). The Commission shall endeavour to conclude its market investigation within 12 months from the date referred to in Article 16(3), point (a), In order to conclude its market investigation, the Commission shall adopt an implementing act setting out its decision. That implementing act shall be adopted in accordance with the advisory procedure referred to in Article 50(2).
- 2.In the course of a market investigation pursuant to paragraph 1 of this Article, the Commission shall endeavour to communicate its preliminary findings to the undertaking providing core platform services concerned within 6 months from the date referred to in Article 16(3), point (a). In the preliminary findings, the Commission shall explain whether it considers, on a provisional basis, that it is appropriate for that undertaking to be designated as a gatekeeper pursuant to Article 3(8), and for the relevant core platform services to be listed pursuant to Article 3(9).
- 3.Where the undertaking providing core platform services satisfies the thresholds set out in Article 3(2), but has presented sufficiently substantiated arguments in accordance with Article 3(5) that have manifestly called into question the presumption in Article 3(2), the Commission shall endeavour to conclude the market investigation within 5 months from the date referred to in Article 16(3), point (a). In such a case, the Commission shall endeavour to communicate its preliminary findings pursuant to paragraph 2 of this Article to the undertaking concerned within 3 months from the date referred to in Article 16(3), point (a).
- 4.When the Commission, pursuant to Article 3(8), designates as a gatekeeper an undertaking providing core platform services that does not yet enjoy an entrenched and durable position in its operations, but which will foreseeably enjoy such a position in the near future, it may declare applicable to that gatekeeper only one or more of the obligations laid down in Article 5(3) to (6) and Article 6(4), (7), (9), (10) and (13), as specified in the designation decision. The Commission shall only declare applicable those obligations that are appropriate and necessary to prevent the gatekeeper concerned from achieving, 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.
Relevant Recitals for this Article
An undertaking providing core platform services should be able, in exceptional circumstances, to rebut the presumption that the undertaking has a significant impact on the internal market by demonstrating that, although it meets the quantitative thresholds set out in this Regulation, it does not fulfil the requirements for designation as a gatekeeper. The burden of adducing evidence that the presumption deriving from the fulfilment of the quantitative thresholds should not apply should be borne by that undertaking. In its assessment of the evidence and arguments produced, the Commission should take into account only those elements which directly relate to the quantitative criteria, namely the impact of the undertaking providing core platform services on the internal market beyond revenue or market cap, such as its size in absolute terms, and the number of Member States in which it is present; by how much the actual business user and end user numbers exceed the thresholds and the importance of the undertaking’s core platform service considering the overall scale of activities of the respective core platform service; and the number of years for which the thresholds have been met.
Provision should also be made for the assessment of the gatekeeper role of undertakings providing 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 an entrenched and durable position in their operations or it is foreseeable that they will do so in the near future. When the undertaking providing core platform services is a medium-sized, small or micro enterprise, the assessment should carefully take into account whether such an undertaking would be able to substantially undermine the contestability of the core platform services, since this Regulation primarily targets large undertakings with considerable economic power rather than medium-sized, small or micro enterprises.
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 innovation and 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 can be taken into account that are specific to the undertakings providing core platform services concerned, such as extreme scale or scope economies, very strong network effects, data-driven advantages, an ability to connect many business users with many end users through the multisidedness of those services, lock-in effects, lack of multi-homing, conglomerate corporate structure or vertical integration. 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 be used as indicators of the leveraging potential of such undertakings and of the tipping of the market in their favour. Together with market capitalisation, high relative growth rates are examples of dynamic parameters that are particularly relevant to identifying such undertakings providing core platform services for which it is foreseeable that they will become entrenched and durable. The Commission should be able to take a decision by drawing adverse inferences from facts available where the undertaking providing core platform services significantly obstructs the investigation by failing to comply with the investigative measures taken by the Commission.
In order to ensure the full and lasting achievement of the objectives of this Regulation, the Commission should be able to assess whether an undertaking providing 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; whether more services within the digital sector should be added to the list of core platform services; and whether additional practices that are similarly unfair and limiting the contestability of digital markets need to be investigated. Such assessment should be based on market investigations to be carried out in an appropriate timeframe, by using clear procedures and deadlines, in order to support the effect of this Regulation on contestability and fairness in the digital sector, and to provide the requisite degree of legal certainty.
The Commission should be able to find, following a market investigation, that an undertaking providing a core platform service fulfils all of the overarching qualitative criteria for being identified as a gatekeeper. That undertaking 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 because it is foreseeable that they will enjoy an entrenched and durable position in the near future, the Commission should only impose those obligations that are necessary and 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 an undertaking providing core platform services should be subjected to the full set of gatekeeper obligations because it has acquired an entrenched and durable position, or the conditions for designation are ultimately not met and therefore all previously imposed obligations should be waived.