Preamble 11 to 20
(11) Articles 101 and 102 TFEU and the corresponding national competition rules concerning anticompetitive multilateral and unilateral conduct as well as merger control have as their objective the protection of undistorted competition on the market. This Regulation pursues an objective that is complementary to, but different from that of protecting undistorted competition on any given market, as defined in competition-law terms, which is to ensure that markets where gatekeepers are present are and remain contestable and fair, independently from the actual, potential or presumed effects of the conduct of a given gatekeeper covered by this Regulation on competition on a given market. This Regulation therefore aims to protect a different legal interest from that protected by those rules and it should apply without prejudice to their application.
(12) This Regulation should also apply without prejudice to the rules resulting from other acts of Union law regulating certain aspects of the provision of services covered by this Regulation, in particular Regulations (EU) 2016/679 and (EU) 2019/1150 of the European Parliament and of the Council and a Regulation on a single market for digital services, and Directives 2002/58/EC, 2005/29/EC, 2010/13/EU, (EU) 2015/2366, (EU) 2019/790 and (EU) 2019/882 of the European Parliament and of the Council, and Council Directive 93/13/EEC, as well as national rules aimed at enforcing or implementing those Union legal acts.
(13) Weak contestability and unfair practices in the digital sector are more frequent and pronounced for certain digital services than for others. This is the case in particular for widespread and commonly used digital services that mostly directly intermediate between business users and end users and where features such as extreme scale economies, very strong network effects, an ability to connect many business users with many end users through the multisidedness of these services, lock-in effects, a lack of multi-homing or vertical integration are the most prevalent.
Often, there is only one or very few large undertakings providing those digital services. Those undertakings have emerged most frequently as gatekeepers for business users and end users, with far-reaching impacts. In particular, they have gained the ability to easily set commercial conditions and terms in a unilateral and detrimental manner for their business users and end users. Accordingly, it is necessary to focus only on those digital services that are most broadly used by business users and end users and where concerns about weak contestability and unfair practices by gatekeepers are more apparent and pressing from an internal market perspective.
(14) In particular, online intermediation services, online search engines, operating systems, online social networking, video sharing platform services, number-independent interpersonal communication services, cloud computing services, virtual assistants, web browsers and online advertising services, including advertising intermediation services, all have the capacity to affect a large number of end users and businesses, which entails a risk of unfair business practices.
Therefore, they should be included in the definition of core platform services and fall into the scope of this Regulation. Online intermediation services can also be active in the field of financial services, and they can intermediate or be used to provide such services as listed non-exhaustively in Annex II to Directive (EU) 2015/1535 of the European Parliament and of the Council.
For the purposes of this Regulation, the definition of core platform services should be technology neutral and should be understood to encompass those provided on or through various means or devices, such as connected TV or embedded digital services in vehicles. In certain circumstances, the notion of end users should encompass users that are traditionally considered business users, but in a given situation do not use the core platform services to provide goods or services to other end users, such as for example businesses relying on cloud computing services for their own purposes.
(15) The fact that a digital service qualifies as a core platform service does not in itself give rise to sufficiently serious concerns of contestability or unfair practices. It is only when a core platform service constitutes an important gateway and is operated by an undertaking with a significant impact in the internal market and an entrenched and durable position, or by an undertaking that will foreseeably enjoy such a position in the near future, that such concerns arise.
Accordingly, the targeted set of harmonised rules in this Regulation should apply only to undertakings designated on the basis of those three objective criteria, and they should only apply to those of their core platform services that individually constitute an important gateway for business users to reach end users. The fact that it is possible that an undertaking providing core platform services not only intermediates between business users and end users, but also between end users and end users, for example in the case of number-independent interpersonal communications services, should not preclude the conclusion that such an undertaking is or could be an important gateway for business users to reach end users.
(16) In order to ensure the effective application of this Regulation to undertakings providing core platform services which are most likely to satisfy those objective requirements, and where unfair practices weakening contestability are most prevalent and have the most impact, the Commission should be able to directly designate as gatekeepers those undertakings providing core platform services which meet certain quantitative thresholds. Such undertakings should in any event be subject to a fast designation process which should start once this Regulation becomes applicable.
(17) The fact that an undertaking has a very significant turnover in the Union and provides a core platform service in at least three Member States constitutes compelling indication that that undertaking has a significant impact on the internal market. This is equally true where an undertaking providing a core platform service in at least three Member States has a very significant market capitalisation or equivalent fair market value.
Therefore, an undertaking providing a core platform service should be presumed to have a significant impact on the internal market where it provides a core platform service in at least three Member States and where either its group turnover realised in the Union is equal to or exceeds a specific, high threshold, or the market capitalisation of the group is equal to or exceeds a certain high absolute value.
For undertakings providing core platform services that belong to undertakings that are not publicly listed, the equivalent fair market value should be used as the reference. It should be possible for the Commission to use its power to adopt delegated acts to develop an objective methodology to calculate that value.
A high group turnover realised in the Union in conjunction with the threshold number of users in the Union of core platform services reflects a relatively strong ability to monetise those users. A high market capitalisation relative to the same threshold number of users in the Union reflects a relatively significant potential to monetise those users in the near future.
This monetisation potential in turn reflects, in principle, the gateway position of the undertakings concerned. Both indicators, in addition, reflect the financial capacity of the undertakings concerned, including their ability to leverage their access to financial markets to reinforce their position.
This can, for example, happen where this superior access is used to acquire other undertakings, an ability which has in turn been shown to have potential negative effects on innovation. Market capitalisation can also reflect the expected future position and effect on the internal market of the undertakings concerned, despite a potentially relatively low current turnover. The market capitalisation value should be based on a level that reflects the average market capitalisation of the largest publicly listed undertakings in the Union over an appropriate period.
(18) Whereas a market capitalisation at or above the threshold in the last financial year should give rise to a presumption that an undertaking providing core platform services has a significant impact on the internal market, a sustained market capitalisation of the undertaking providing core platform services at or above the threshold over three or more years should be considered as further strengthening that presumption.
(19) By contrast, there could be a number of factors concerning market capitalisation that would require an in-depth assessment in determining whether an undertaking providing core platform services should be deemed to have a significant impact on the internal market. This could be the case where the market capitalisation of the undertaking providing core platform services in preceding financial years was significantly lower than the threshold and the volatility of its market capitalisation over the observed period was disproportionate to overall equity market volatility or its market capitalisation trajectory relative to market trends was inconsistent with a rapid and unidirectional growth.
(20) Having a very high number of business users that depend on a core platform service to reach a very high number of monthly active end users enables the undertaking providing that service to influence the operations of a substantial part of business users to its advantage and indicate, in principle, that that undertaking is an important gateway. The respective relevant levels for those numbers should be set representing a substantive percentage of the entire population of the Union when it comes to end users and of the entire population of businesses using core platform services to determine the threshold for business users.
Active end users and business users should be identified and calculated in such a way as to adequately represent the role and reach of the specific core platform service in question. In order to provide legal certainty for gatekeepers, the elements to determine the number of active end users and business users per core platform service should be set out in an Annex to this Regulation. Such elements can be affected by technological and other developments.
The Commission should therefore be empowered to adopt delegated acts to amend this Regulation by updating the methodology and the list of indicators used to determine the number of active end users and active business users.
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