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Are you a CPS provider?
The company involved must offer a core platform service (“CPS”) listed here below:
|Online intermediation services||Online search engines||Online social networking services|
|Video-sharing platform services||Number-independent interpersonal communications services||Operating systems|
|Web browsers||Virtual assistants||Cloud computing services|
|Online advertising services advertising exchanges and any other advertising intermediation services, provided by a company that provides any of the core platform services listed in points 1 to 9|
Do you meet the quantitative thresholds?
The Commission may designate a company and its core platform services where they meet the following ‘qualitative’ criteria:
The DMA also sets out quantitative thresholds for each of the three qualitative criteria, listed in the table below. Fulfilment of the qualitative criteria is presumed when a company providing a CPS meets all of the quantitative thresholds. Where these criteria are met, the company qualifies, in principle, as a gatekeeper under the DMA.
|Qualitative criteria - Article 3(1)||Quantitative criteria - Article 3(2)|
|Significant impact on the internal market||(a) The company has at least €7.5 billion of annual turnover in the last three financial years; OR an average market capitalisation (or equivalent fair market) of at least €75 billion in the past financial year; AND provides the same core platform service in at least three member states.|
|Provides a core platform service which is an important gateway for business users to reach end users||(b) The company has at least 45 million monthly active end users established or located in the European Union, in the last financial year; AND at least 10,000 yearly active business users established in the Union.|
|Enjoys an entrenched and durable position, in its operations, or it is foreseeable that it will enjoy such a position in the near future||(c) The thresholds of the previous point (b) are met in each of the last three financial years.|
Can you rebut the presumption of your gatekeeper status?
A potential gatekeeper satisfying the quantitative criteria can rebut the presumption if it presents sufficiently substantiated arguments to demonstrate that, despite meeting all the thresholds above, it should not be designated as a gatekeeper due to exceptional circumstances.
If the Commission considers that the potential gatekeeper’s arguments do not manifestly call into question the presumptions, it may reject the rebuttal. If such arguments do manifestly call into question the presumptions, the Commission has 5 months to conduct a market investigation to assess whether it should designate the potential gatekeeper and the relevant core platform services.
Market investigation: designation where quantitative thresholds are not met
If a company does not meet the quantitative thresholds, the Commission is empowered to assess and designate a gatekeeper in light of the qualitative criteria alone, i.e. whether the company has a significant impact on the internal market, acts as an important gateway for business users towards end users and benefits from an entrenched and durable position in its operations (or it is foreseeable that it will do so in the near future).
To inform its assessment, the Commission may initiate a market investigation and consider the specific circumstances of the company in question. Within 6 months after opening its investigation, the Commission should communicate its preliminary decision as to whether the company should be designated as a gatekeeper with reference to the relevant CPS being provided. The Commission should then aim to conclude its market investigation and set out its final decision on the potential designation within 12 months after initiating the investigation.
The EU’s Digital Markets Act creates multiple digital rights (and obligations). Who is or will be affected by this next frontier of digital platform regulation in Europe? You will find all you need to know on our one-stop-shop dedicated to the DMA.
The DMA sets out a host of obligations for designated gatekeepers. These can be categorised according to the aims of the DMA, including to ensure fair conditions of use; to prevent self-preferencing / leveraging; and to protect digital rights and improve access to data, among others.
As with the EU’s competition rules, the DMA provides for private enforcement as well as public enforcement by the Commission. The Commission ensures that gatekeepers comply with their obligations under the DMA.
As with the EU’s competition rules, the DMA provides for private enforcement as well as public enforcement by the Commission. Third parties can pursue designated gatekeepers for failure to comply with the DMA’s rules and seek damages for such infringements.