- Recital 1 – Role of digital services
- Recital 2 – Characteristics of core platform services
- Recital 3 – Characteristics of gatekeepers
- Recital 4 – Market effects of gatekeeper characteristics
- Recital 5 – Limitations of existing competition law
- Recital 6 – Gatekeepers’ impact on the internal market
- Recital 7 – Purpose of the DMA to contribute to the proper functioning of the internal market
- Recital 8 – Harmonisation
- Recital 9 – National rules and public interest
- Recital 10 – Interplay with national competition rules
- Recital 11 – Objective of the DMA (fairness and contestability) and relation to Articles 101 and 102 TFEU
- Recital 12 – Interplay with GDPR, e-Privacy Directive and other EU laws
- Recital 13 – Focus on gatekeepers’ weak contestability and unfair practices
- Recital 14 – Types of core platform services
- Recital 15 – Gateways and core platform services in scope
- Recital 16 – Designation as gatekeepers
- Recital 17 – Assessing significant impact on the internal market
- Recital 18 – Significance of an undertaking’s market capitalisation (1/2)
- Recital 19 – Significance of an undertaking’s market capitalisation (2/2)
- Recital 20 – Calculating active end users and business users
- Recital 21 – Meaning of an entrenched and durable position in the internal market
- Recital 22 – Commission’s power to determine quantitative thresholds
- Recital 23 – Rebutting the presumption of having a significant impact on the internal market
- Recital 24 – Medium-sized, small and micro enterprises
- Recital 25 – Market investigations
- Recital 26 – Intervention to prevent future entrenched and durable market positions (1/2)
- Recital 27 – Intervention to prevent future entrenched and durable market positions (2/2)
- Recital 28 – Proportionality
- Recital 29 – Gatekeepers’ compliance and Commission’s implementing measures
- Recital 30 – Regular review of gatekeeper status
- Recital 31 – Clarity of harmonised rules
- Recital 32 – Meaning of “contestability”
- Recital 33 – Meaning of “fairness”
- Recital 34 – Interplay between “contestability” and “fairness”
- Recital 35 – Relevance of public policy concerns
- Recital 36 – Processing of personal data
- Recital 37 – Provision of a less personalised alternative service and consent
- Recital 38 – Protection of minors
- Recital 39 – Gatekeepers’ imposition of contractual terms and conditions on business users
- Recital 40 – Business users and end users’ freedom to conduct business
- Recital 41 – Restricting end users’ freedom to use alternatives to the core platform service
- Recital 42 – Safeguarding the rights of end users, business users and whistle-blowers
- Recital 43 – Gatekeepers’ imposition of dependencies on business users like payment systems and browsers
- Recital 44 – Subscriptions and registration requirements
- Recital 45 – Online advertising and transparency for business users
- Recital 46 – Dual role of gatekeepers as providers and competitors of business users (1/2)
- Recital 47 – Dual role of gatekeepers as providers and competitors of business users (2/2)
- Recital 48 – Cloud computing services and business users
- Recital 49 – Gatekeepers’ favouring of their own services such as pre-installed applications
- Recital 50 – Restrictions on end users’ ability to install and use third party software
- Recital 51 – Vertical integration of gatekeepers (1/2)
- Recital 52 – Vertical integration of gatekeepers (2/2)
- Recital 53 – Restricting end users free choices
- Recital 54 – Restricting end users access to online content and services
- Recital 55 – Interoperability
- Recital 56 – Gatekeepers’ dual role as developers of operating systems and device manufacturers
- Recital 57 – Gatekeepers’ dual role and interoperability
- Recital 58 – Gatekeepers’ provision of online advertising services
- Recital 59 – End users’ access to data collected by gatekeepers and data portability
- Recital 60 – Business users’ access to data collected by gatekeepers
- Recital 61 – Online search engines
- Recital 62 – Conditions of access for software application stores, online search engines and online social networking services
- Recital 63 – Account closure and unsubscribing
- Recital 64 – Interoperability of number-independent interpersonal communication services
- Recital 65 – Compliance by design
- Recital 66 – Gatekeepers’ opportunity to request suspension of a specific obligation
- Recital 67 – Suspension of specific obligations on public health or public security grounds
- Recital 68 – Compliance reporting to the Commission
- Recital 69 – Investigations to amend the scope of the DMA
- Recital 70 – Anti-circumvention of the DMA’s obligations
- Recital 71 – Notification requirement to the Commission
- Recital 72 – Data protection, profiling and transparency
- Recital 73 – Commission’s additional powers to achieve effective compliance with the DMA
- Recital 74 – Commission’s review of emerging gatekeepers
- Recital 75 – Commission’s power to impose additional behavioural or structural remedies
- Recital 76 – Gatekeepers’ offer of commitments to the Commission
- Recital 77 – Review of lists of core platform services and DMA obligations must be regular and adapt to technological advances
- Recital 78 – Commission’s power to enact delegated acts (1/2)
- Recital 79– Commission’s power to enact delegated acts (2/2)
- Recital 80 – Commission’s investigative and enforcement powers
- Recital 81 – Commission’s power to request information (1/2)
- Recital 82 – Commission’s power to request information (2/2)
- Recital 83 – Commission’s power to conduct inspections and interviews
- Recital 84 – Commission’s power to order interim measures
- Recital 85 – Commission’s power to appoint independent external experts and auditors for compliance monitoring
- Recital 86 – Fines and periodic penalty payments
- Recital 87 – Solvency and payment of fines
- Recital 88 – Right to good administration, right of access to the file, right to be heard and confidentiality
- Recital 89 – Publications and protection of trade secrets
- Recital 90 – Cooperation between the Commission and national authorities
- Recital 91 – National competent competition authorities’ investigations into possible non-compliance by gatekeepers and coordination with the Commission
- Recital 92 – National courts’ ability to request information from the Commission
- Recital 93 – Expertise of a dedicated high-level group
- Recital 94 – Court of Justice’s unlimited jurisdiction in respect of fines and penalty payments
- Recital 95 – Commission’s power to issue guidelines
- Recital 96 – Commission’s power to request standardisation of data access, portability and interoperability
- Recital 97 – Commission’s power to adopt delegated acts (1/2)
- Recital 98 – Commission’s power to adopt delegated acts (2/2)
- Recital 99 – Commission’s implementing powers (1/2)
- Recital 100 – Commission’s implementing powers (2/2)
- Recital 101 – Advisory committee
- Recital 102 – Protection of whistle-blowers
- Recital 103 – Directive on the protection of persons reporting breaches of Union law
- Recital 104 – Representative actions
- Recital 105 – Commission’s periodic evaluation of the DMA and its effects
- Recital 106 – Resources and staffing for Commission’s enforcement
- Recital 107 – Achieving the DMA’s objective at Union-level
- Recital 108 – Consultation with the European Data Protection Supervisor
- Recital 109 – Relation to the Charter of Fundamental Rights
Recital 23
Rebutting the presumption of having a significant impact on the internal market*
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.
Any justification on economic grounds seeking to enter into market definition or to demonstrate efficiencies deriving from a specific type of behaviour by the undertaking providing core platform services should be discarded, as it is not relevant to the designation as a gatekeeper. If the arguments submitted are not sufficiently substantiated because they do not manifestly put into question the presumption, it should be possible for the Commission to reject the arguments within the timeframe of 45 working days provided for the designation. The Commission should be able to take a decision by relying on information available on the quantitative thresholds where the undertaking providing core platform services obstructs the investigation by failing to comply with the investigative measures taken by the Commission.
* This title is an unofficial description.