Chapter V - Investigative, enforcement and monitoring powers (Art. 20-43)

Art. 20 DMA - Opening of proceedings arrow_right_alt

Art. 21 DMA - Requests for information arrow_right_alt

In order to carry out its duties under this Regulation, the Commission may, by simple request or by decision, require from undertakings and associations of undertakings to provide all necessary information. The Commission may also, by simple request or by decision, require access to any data and algorithms of undertakings and information about testing, as well as requesting explanations of them.
When sending a simple request for information to an undertaking or association of undertakings, the Commission shall state the legal basis and purpose of the request, specify what information is required and fix the time limit within which the information is to be provided, as well as the fines provided for in Article 30 applicable for supplying incomplete, incorrect or misleading information or explanations.
Where the Commission requires undertakings and associations of undertakings to supply information by decision, it shall state the legal basis and purpose of the request, specify what information is required and fix the time limit within which the information is to be provided. Where the Commission requires undertakings to provide access to any data, algorithms and information about testing, it shall state the purpose of the request and fix the time -limit within which it is to be provided. It shall also indicate the fines provided for in Article 30 and indicate or impose the periodic penalty payments provided for in Article 31. It shall further indicate the right to have the decision reviewed by the Court of Justice.
The undertakings or associations of undertakings or their representatives shall supply the information requested on behalf of the undertaking or the association of undertakings concerned. Lawyers duly authorised to act may supply the information on behalf of their clients. The latter shall remain fully responsible if the information supplied is incomplete, incorrect or misleading.
At the request of the Commission, the competent authorities of the Member States shall provide the Commission with all necessary information in their possession to carry out the duties assigned to it by this Regulation.

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Recital 81

The Commission should be empowered to request information necessary for the purpose of this Regulation. In particular, the Commission should have access to any relevant documents, data, database, algorithm and information necessary to open and conduct investigations and to monitor the compliance with the obligations laid down in this Regulation, irrespective of who possesses such information, and regardless of their form or format, their storage medium, or the place where they are stored.

Recital 82

The Commission should be able to directly request that undertakings or associations of undertakings provide any relevant evidence, data and information. In addition, the Commission should be able to request any relevant information from competent authorities within the Member State, or from any natural person or legal person for the purpose of this Regulation. When complying with a decision of the Commission, undertakings are obliged to answer factual questions and to provide documents.

Art. 22 DMA - Power to carry out interviews and take statements arrow_right_alt

In order to carry out its duties under this Regulation, the Commission may interview any natural or legal person which consents to being interviewed, for the purpose of collecting information, relating to the subject-matter of an investigation. The Commission shall be entitled to record such interviews by any technical means.
Where an interview pursuant to paragraph 1 of this Article is conducted on the premises of an undertaking, the Commission shall inform the national competent authority of the Member State that is enforcing the rules referred to in Article 1(6) and in whose territory the interview takes place thereof. If that authority so requests, its officials may assist the officials and other accompanying persons authorised by the Commission to conduct the interview.

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Recital 82

The Commission should be able to directly request that undertakings or associations of undertakings provide any relevant evidence, data and information. In addition, the Commission should be able to request any relevant information from competent authorities within the Member State, or from any natural person or legal person for the purpose of this Regulation. When complying with a decision of the Commission, undertakings are obliged to answer factual questions and to provide documents.

Recital 83

The Commission should also be empowered to conduct inspections of any undertaking or association of undertakings and to interview any persons who could be in possession of useful information and to record the statements made.

Art. 23 DMA - Powers to conduct inspections arrow_right_alt

In order to carry out its duties under this Regulation, the Commission may conduct all necessary inspections of an undertaking or association of undertakings.
The officials and other accompanying persons authorised by the Commission to conduct an inspection are empowered to:
1. enter any premises, land and means of transport of undertakings and associations of undertakings;
2. examine the books and other records related to the business, irrespective of the medium on which they are stored;
3. take or obtain in any form copies of or extracts from such books or records;
4. require the undertaking or association of undertakings to provide access to and explanations on its organisation, functioning, IT system, algorithms, data-handling and business practices and to record or document the explanations given by any technical means;
5. seal any business premises and books or records for the duration of, and to the extent necessary for, the inspection;
6. ask any representative or member of staff of the undertaking or association of undertakings for explanations of facts or documents relating to the subject-matter and purpose of the inspection, and to record the answers by any technical means.
To carry out inspections, the Commission may request the assistance of auditors or experts appointed by the Commission pursuant to Article 26(2), as well as the assistance of the national competent authority of the Member State, enforcing the rules referred to in Article 1(6) in whose territory the inspection is to be conducted.
During inspections the Commission, auditors or experts appointed by it and the national competent authority of the Member State, enforcing the rules referred to in Article 1(6) in whose territory the inspection is to be conducted may require the undertaking or association of undertakings to provide access to and explanations on its organisation, functioning, IT system, algorithms, data-handling and business conducts. The Commission and auditors or experts appointed by it and the national competent authority of the Member State, enforcing the rules referred to in Article 1(6) in whose territory the inspection is to be conducted may address questions to any representative or member of staff.
The officials and other accompanying persons authorised by the Commission to conduct an inspection shall exercise their powers upon production of a written authorisation specifying the subject matter and purpose of the inspection and the fines provided for in Article 30 applicable in the event that the production of the required books or other records related to the business is incomplete or where the answers to questions asked under paragraphs 2 and 4 of this Article are incorrect or misleading. In good time before the inspection, the Commission shall give notice of the inspection to the national competent authority of the Member State enforcing the rules referred to in Article 1(6) in whose territory it is to be conducted.
Undertakings or associations of undertakings are required to submit to an inspection ordered by a Commission decision. That decision shall specify the subject matter and purpose of the inspection, set the date on which it is to begin and indicate the fines and periodic penalty payments provided for in Articles 30 and 31 respectively, and the right to have that decision reviewed by the Court of Justice.
Officials of, and the persons authorised or appointed by, the national competent authority of the Member State enforcing the rules referred to in Article 1(6) in whose territory the inspection is to be conducted shall, at the request of that authority or of the Commission, actively assist the officials and other accompanying persons authorised by the Commission. To this end, they shall enjoy the powers set out in paragraphs 2 and 4 of this Article.
Where the officials and other accompanying persons authorised by the Commission find that an undertaking or association of undertakings opposes an inspection ordered pursuant to this Article, the Member State concerned shall afford them the necessary assistance, requesting, where appropriate, the assistance of the police or of an equivalent enforcement authority, so as to enable them to conduct their inspection.
If, according to national rules, the assistance provided for in paragraph 8 of this Article requires authorisation from a judicial authority, the Commission or the national competent authority of the Member State enforcing the rules referred to in Article 1(6) or officials authorised by those authorities shall apply for it. Such authorisation may also be applied for as a precautionary measure.
Where authorisation referred to in paragraph 9 of this Article is applied for, the national judicial authority shall verify that the Commission decision is authentic and that the coercive measures envisaged are neither arbitrary nor excessive having regard to the subject matter of the inspection. In its control of the proportionality of the coercive measures, the national judicial authority may ask the Commission, directly or through the national competent authority of the Member State, enforcing the rules referred to in Article 1(6), for detailed explanations in particular on the grounds the Commission has for suspecting infringement of this Regulation, as well as on the seriousness of the suspected infringement and on the nature of the involvement of the undertaking concerned. However, the national judicial authority may not call into question the necessity of the inspection nor demand that it be provided with the information in the file of the Commission. The lawfulness of the Commission decision shall be subject to review only by the Court of Justice.

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Recital 83

The Commission should also be empowered to conduct inspections of any undertaking or association of undertakings and to interview any persons who could be in possession of useful information and to record the statements made.

Art. 24 DMA - Interim measures arrow_right_alt

In case of urgency due to the risk of serious and irreparable damage for business users or end users of gatekeepers, the Commission may adopt an implementing act ordering interim measures against a gatekeeper on the basis of a prima facie finding of an infringement of Article 5, 6 or 7. That implementing act shall be adopted only in the context of proceedings opened with a view to the possible adoption of a non-compliance decision pursuant to Article 29(1). It shall apply only for a specified period of time and may be renewed in so far this is necessary and appropriate. That implementing act shall be adopted in accordance with the advisory procedure referred to in Article 50(2).

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Recital 84

Interim measures can be an important tool to ensure that, while an investigation is ongoing, the infringement being investigated does not lead to serious and irreparable damage for business users or end users of gatekeepers. This tool is important to avoid developments that could be very difficult to reverse by a decision taken by the Commission at the end of the proceedings. The Commission should therefore have the power to order interim measures in the context of proceedings opened in view of the possible adoption of a non-compliance decision. This power should apply in cases where the Commission has made a prima facie finding of infringement of obligations by gatekeepers and where there is a risk of serious and irreparable damage for business users or end users of gatekeepers. Interim measures should only apply for a specified period, either one ending with the conclusion of the proceedings by the Commission, or for a fixed period which can be renewed insofar as it is necessary and appropriate.

Art. 25 DMA - Commitments arrow_right_alt

If, during proceedings under Article 18, the gatekeeper concerned offers commitments for the relevant core platform services to ensure compliance with the obligations laid down in Articles 5, 6 and 7 the Commission may adopt an implementing act making those commitments binding on that gatekeeper and declare that there are no further grounds for action. That implementing act shall be adopted in accordance with the advisory procedure referred to in Article 50(2).
The Commission may, upon request or on its own initiative, reopen by decision the relevant proceedings, where:
1. there has been a material change in any of the facts on which the decision was based;
2. the gatekeeper concerned acts contrary to its commitments;
3. the decision was based on incomplete, incorrect or misleading information provided by the parties;
4. the commitments are not effective.
If the Commission considers that the commitments submitted by the gatekeeper concerned cannot ensure effective compliance with the obligations laid down in Articles 5, 6 and 7, it shall explain the reasons for not making those commitments binding in the decision concluding the relevant proceedings.

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Recital 76

Where, in the course of an investigation into systematic non-compliance, a gatekeeper offers commitments to the Commission, the latter should be able to adopt a decision making these commitments binding on the gatekeeper concerned, where it finds that the commitments ensure effective compliance with the obligations set out in this Regulation. That decision should also find that there are no longer grounds for action by the Commission as regards the systematic non-compliance under investigation. In assessing whether the commitments offered by the gatekeeper are sufficient to ensure effective compliance with the obligations under this Regulation, the Commission should be allowed to take into account tests undertaken by the gatekeeper to demonstrate the effectiveness of the offered commitments in practice. The Commission should verify that the commitments decision is fully respected and reaches its objectives, and should be entitled to reopen the decision if it finds that the commitments are not effective.

Art. 26 DMA - Monitoring of obligations and measures arrow_right_alt

The Commission shall take the necessary actions to monitor the effective implementation and compliance with the obligations laid down in Articles 5, 6 and 7 and the decisions taken pursuant to Articles 8, 18, 24, 25 and 29. Those actions may include, in particular, the imposition of an obligation on the gatekeeper to retain all documents deemed to be relevant to assess the implementation of, and compliance with, those obligations and decisions.
The actions pursuant to paragraph 1 may include the appointment of independent external experts and auditors, as well as the appointment of officials from national competent authorities of the Member States, to assist the Commission to monitor the obligations and measures and to provide specific expertise or knowledge to the Commission.

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Recital 85

The Commission should be able to take the necessary actions to monitor the effective implementation of and compliance with the obligations laid down in this Regulation. Such actions should include the ability of the Commission to appoint independent external experts and auditors to assist the Commission in this process, including, where applicable, from competent authorities of the Member States, such as data or consumer protection authorities. When appointing auditors, the Commission should ensure sufficient rotation.

Art. 27 DMA - Information by third parties arrow_right_alt

1. Any third party, including business users, competitors or end-users of the core platform services listed in the designation decision pursuant to Article 3(9), as well as their representatives, may inform the national competent authority of the Member State, enforcing the rules referred to in Article 1(6), or the Commission directly, about any practice or behaviour by gatekeepers that falls within the scope of this Regulation.

2. The national competent authority of the Member State, enforcing the rules referred to in Article 1(6), and the Commission shall have full discretion as regards the appropriate measures and are under no obligation to follow-up on the information received.

3. Where the national competent authority of the Member State, enforcing the rules referred to in Article 1(6), determines, based on the information received pursuant to paragraph 1 of this Article, that there may be an issue of non-compliance with this Regulation, it shall transfer that information to the Commission.

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Recital 42

To safeguard a fair commercial environment and protect the contestability of the digital sector it is important to safeguard the right of business users and end users, including whistleblowers, to raise concerns about unfair practices by gatekeepers raising any issue of non-compliance with the relevant Union or national law with any relevant administrative or other public authorities, including national courts. For example, it is possible that business users or end users will want to complain about different types of unfair practices, such as discriminatory access conditions, unjustified closing of business user accounts or unclear grounds for product de-listings. Any practice that would in any way inhibit or hinder those users in raising their concerns or in seeking available redress, for instance by means of confidentiality clauses in agreements or other written terms, should therefore be prohibited. This prohibition should be without prejudice to the right of business users and gatekeepers to lay down in their agreements the terms of use including the use of lawful complaints-handling mechanisms, including any use of alternative dispute resolution mechanisms or of the jurisdiction of specific courts in compliance with respective Union and national law. This should also be without prejudice to the role gatekeepers play in the fight against illegal content online.

Art. 28 DMA - Compliance function arrow_right_alt

Gatekeepers shall introduce a compliance function, which is independent from the operational functions of the gatekeeper and composed of one or more compliance officers, including the head of the compliance function.
The gatekeeper shall ensure that the compliance function referred to in paragraph 1 has sufficient authority, stature and resources, as well as access to the management body of the gatekeeper to monitor the compliance of the gatekeeper with this Regulation.
The management body of the gatekeeper shall ensure that compliance officers appointed pursuant to paragraph 1 have the professional qualifications, knowledge, experience and ability necessary to fulfil the tasks referred to in paragraph 5.

The management body of the gatekeeper shall also ensure that such head of the compliance function is an independent senior manager with distinct responsibility for the compliance function.

The head of the compliance function shall report directly to the management body of the gatekeeper and may raise concerns and warn that body where risks of non-compliance with this Regulation arise, without prejudice to the responsibilities of the management body in its supervisory and managerial functions.

The head of the compliance function shall not be removed without prior approval of the management body of the gatekeeper.

Compliance officers appointed by the gatekeeper pursuant to paragraph 1 shall have the following tasks:
1. organising, monitoring and supervising the measures and activities of the gatekeepers that aim to ensure compliance with this Regulation;
2. informing and advising the management and employees of the gatekeeper on compliance with this Regulation;
3. where applicable, monitoring compliance with commitments made binding pursuant to Article 25, without prejudice to the Commission being able to appoint independent external experts pursuant to Article 26(2);
4. cooperating with the Commission for the purpose of this Regulation.
Gatekeepers shall communicate the name and contact details of the head of the compliance function to the Commission.
The management body of the gatekeeper shall define, oversee and be accountable for the implementation of the governance arrangements of the gatekeeper that ensure the independence of the compliance function, including the division of responsibilities in the organisation of the gatekeeper and the prevention of conflicts of interest.
The management body shall approve and review periodically, at least once a year, the strategies and policies for taking up, managing and monitoring the compliance with this Regulation.
The management body shall devote sufficient time to the management and monitoring of compliance with this Regulation. It shall actively participate in decisions relating to the management and enforcement of this Regulation and ensure that adequate resources are allocated to it.

Art. 29 DMA - Non-compliance arrow_right_alt

The Commission shall adopt an implementing act setting out its finding of non-compliance (‘the non-compliance decision’) where it finds that a gatekeeper does not comply with one or more of the following:
1. any of the obligations laid down in Article 5, 6 or 7;
2. measures specified by the Commission in a decision adopted pursuant to Article 8(2);
3. remedies imposed pursuant to Article 18(1);
4. interim measures ordered pursuant to Article 24; or
5. commitments made legally binding pursuant to Article 25.

That implementing act shall be adopted in accordance with the advisory procedure referred to in Article 50(2).

The Commission shall endeavour to adopt its non-compliance decision within 12 months from the opening of proceedings pursuant to Article 20.
Before adopting the non-compliance decision, the Commission shall communicate its preliminary findings to the gatekeeper concerned. In those preliminary findings, the Commission shall explain the measures it is considering taking or that it considers that the gatekeeper should take in order to effectively address the preliminary findings.
Where it intends to adopt a non-compliance decision, the Commission may consult third parties.
In the non-compliance decision, the Commission shall order the gatekeeper to cease and desist with the non-compliance within an appropriate deadline and to provide explanations on how it plans to comply with that decision.
The gatekeeper shall provide the Commission with the description of the measures that it has taken to ensure compliance with the non-compliance decision.
Where the Commission decides not to adopt a non-compliance decision, it shall close the proceedings by a decision.

Art. 30 DMA - Fines arrow_right_alt

In the non-compliance decision, the Commission may impose on a gatekeeper fines not exceeding 10 % of its total worldwide turnover in the preceding financial year where it finds that the gatekeeper, intentionally or negligently, fails to comply with:
1. any of the obligations laid down in Articles 5, 6 and 7;
2. measures specified by the Commission in a decision adopted pursuant to Article 8(2);
3. remedies imposed pursuant to Article 18(1);
4. interim measures ordered pursuant to Article 24; or
5. commitments made legally binding pursuant to Article 25.
Notwithstanding paragraph 1 of this Article, in the non-compliance decision the Commission may impose on a gatekeeper fines up to 20 % of its total worldwide turnover in the preceding financial year where it finds that a gatekeeper has committed the same or a similar infringement of an obligation laid down in Article 5, 6 or 7 in relation to the same core platform service as it was found to have committed in a non-compliance decision adopted in the 8 preceding years.
The Commission may adopt a decision, imposing on undertakings, including gatekeepers where applicable, and associations of undertakings, fines not exceeding 1 % of their total worldwide turnover in the preceding financial year where they intentionally or negligently:
1. fail to provide within the time limit information that is required for assessing their designation as gatekeepers pursuant to Article 3 or supply incorrect, incomplete or misleading information;
2. fail to comply with the obligation to notify the Commission according to Article 3(3);
3. fail to notify information or supply incorrect, incomplete or misleading information that is required pursuant to Article 14;
4. fail to submit the description or supply incorrect, incomplete or misleading information that is required pursuant to Article 15;
5. fail to provide access to data, algorithms or information about testing in response to a request made pursuant to Article 21(3);
6. fail to supply the information requested within the time limit fixed pursuant to Article 21(3) or supply incorrect, incomplete or misleading information or explanations that are requested pursuant to Article 21 or given in an interview pursuant to Article 22;
7. fail to rectify within a time limit set by the Commission, incorrect, incomplete or misleading information given by a representative or a member of staff, or fail or refuse to provide complete information on facts relating to the subject-matter and purpose of an inspection, pursuant to Article 23;
8. refuse to submit to an inspection pursuant to Article 23;
9. fail to comply with the obligations imposed by the Commission pursuant to Article 26;
10. fail to introduce a compliance function in accordance with Article 28; or
11. fail to comply with the conditions for access to the Commission’s file pursuant to Article 34(4).
In fixing the amount of a fine, the Commission shall take into account the gravity, duration, recurrence, and, for fines imposed pursuant to paragraph 3, delay caused to the proceedings.
When a fine is imposed on an association of undertakings taking account of the worldwide turnover of its members and that association is not solvent, it shall be obliged to call for contributions from its members to cover the amount of the fine.

Where such contributions have not been made to the association of undertakings within a time limit set by the Commission, the Commission may require payment of the fine directly by any of the undertakings whose representatives were members of the decision-making bodies concerned of that association.

After having required payment in accordance with the second subparagraph, the Commission may require payment of the balance by any of the members of the association of undertakings, where necessary to ensure full payment of the fine.

However, the Commission shall not require payment pursuant to the second or the third subparagraph from undertakings which show that they have not implemented the decision of the association of undertakings that infringed this Regulation, and either were not aware of its existence, or have actively distanced themselves from it before the Commission opened proceedings under Article 20.

The financial liability of each undertaking in respect of the payment of the fine shall not exceed 20 % of its total worldwide turnover in the preceding financial year.

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Recital 86

Compliance with the obligations imposed by this Regulation should be enforceable by means of fines and periodic penalty payments. To that end, appropriate levels of fines and periodic penalty payments should also be laid down for non-compliance with the obligations and breach of the procedural rules subject to appropriate limitation periods, in accordance with the principles of proportionality and ne bis in idem. The Commission and the relevant national authorities should coordinate their enforcement efforts in order to ensure that those principles are respected. In particular, the Commission should take into account any fines and penalties imposed on the same legal person for the same facts through a final decision in proceedings relating to an infringement of other Union or national rules, so as to ensure that the overall fines and penalties imposed correspond to the seriousness of the infringements committed.

Recital 87

In order to ensure effective recovery of fines imposed on associations of undertakings for infringements that they have committed, it is necessary to lay down the conditions on which it should be possible for the Commission to require payment of the fine from the members of that association of undertakings where it is not solvent.

Art. 31 DMA - Periodic penalty payments arrow_right_alt

The Commission may adopt a decision imposing on undertakings, including gatekeepers where applicable, and associations of undertakings periodic penalty payments not exceeding 5 % of the average daily worldwide turnover in the preceding financial year per day, calculated from the date set by that decision, in order to compel them:
1. to comply with the measures specified by the Commission in a decision adopted pursuant to Article 8(2);
2. to comply with the decision pursuant to Article 18(1);
3. to supply correct and complete information within the time limit required by a request for information made by decision pursuant to Article 21;
4. to ensure access to data, algorithms and information about testing in response to a request made pursuant to Article 21(3) and to supply explanations on those as required by a decision pursuant to Article 21;
5. to submit to an inspection which was ordered by a decision taken pursuant to Article 23;
6. to comply with a decision ordering interim measures taken pursuant to Article 24;
7. to comply with commitments made legally binding by a decision pursuant to Article 25(1);
8. to comply with a decision pursuant to Article 29(1).
Where the undertakings, or associations of undertakings, have satisfied the obligation which the periodic penalty payment was intended to enforce, the Commission may adopt an implementing act, setting the definitive amount of the periodic penalty payment at a figure lower than that which would arise under the original decision. That implementing act shall be adopted in accordance with the advisory procedure referred to in Article 50(2).

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Recital 86

Compliance with the obligations imposed by this Regulation should be enforceable by means of fines and periodic penalty payments. To that end, appropriate levels of fines and periodic penalty payments should also be laid down for non-compliance with the obligations and breach of the procedural rules subject to appropriate limitation periods, in accordance with the principles of proportionality and ne bis in idem. The Commission and the relevant national authorities should coordinate their enforcement efforts in order to ensure that those principles are respected. In particular, the Commission should take into account any fines and penalties imposed on the same legal person for the same facts through a final decision in proceedings relating to an infringement of other Union or national rules, so as to ensure that the overall fines and penalties imposed correspond to the seriousness of the infringements committed.

Recital 87

In order to ensure effective recovery of fines imposed on associations of undertakings for infringements that they have committed, it is necessary to lay down the conditions on which it should be possible for the Commission to require payment of the fine from the members of that association of undertakings where it is not solvent.

Art. 32 DMA - Limitation periods for the imposition of penalties arrow_right_alt

Art. 33 DMA - Limitation periods for the enforcement of penalties arrow_right_alt

Art. 34 DMA - Right to be heard and access to the file arrow_right_alt

Before adopting a decision pursuant to Article 8, Article 9(1), Article 10(1), Articles 17, 18, 24, 25, 29 and 30 and Article 31(2), the Commission shall give the gatekeeper or undertaking or association of undertakings concerned the opportunity of being heard on:
1. preliminary findings of the Commission, including any matter to which the Commission has taken objection; and
2. measures that the Commission may intend to take in view of the preliminary findings pursuant to point (a) of this paragraph.
Gatekeepers, undertakings and associations of undertakings concerned may submit their observations to the Commission concerning the Commission’s preliminary findings within a time limit set by the Commission in its preliminary findings which may not be less than 14 days.
The Commission shall base its decisions only on preliminary findings, including any matter to which the Commission has taken objection, on which gatekeepers, undertakings and associations of undertakings concerned have been able to comment.
The rights of defence of the gatekeeper, undertaking or association of undertakings concerned shall be fully respected in any proceedings. The gatekeeper, undertaking or association of undertakings concerned shall be entitled to have access to the Commission’s file under terms of disclosure, subject to the legitimate interest of undertakings in the protection of their business secrets. In the case of disagreement between the parties, the Commission may adopt decisions setting out those terms of disclosure. The right of access to the file of the Commission shall not extend to confidential information and internal documents of the Commission or the competent authorities of the Member States. In particular, the right of access shall not extend to correspondence between the Commission and the competent authorities of the Member States. Nothing in this paragraph shall prevent the Commission from disclosing and using information necessary to prove an infringement.

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Recital 88

In the context of proceedings carried out under this Regulation, the undertaking concerned should be accorded the right to be heard by the Commission and the decisions taken should be widely publicised. While ensuring the rights to good administration, the right of access to the file and the right to be heard, it is essential to protect confidential information. Furthermore, while respecting the confidentiality of the information, the Commission should ensure that any information on which the decision is based is disclosed to an extent that allows the addressee of the decision to understand the facts and considerations that led to the decision. It is also necessary to ensure that the Commission only uses information collected pursuant to this Regulation for the purposes of this Regulation, except where specifically envisaged otherwise. Finally, it should be possible, under certain conditions, for certain business records, such as communication between lawyers and their clients, to be considered confidential if the relevant conditions are met.

Art. 35 DMA - Annual reporting arrow_right_alt

Art. 36 DMA - Professional secrecy arrow_right_alt

Art. 37 DMA - Cooperation with national authorities arrow_right_alt

The Commission and Member States shall work in close cooperation and coordinate their enforcement actions to ensure coherent, effective and complementary enforcement of available legal instruments applied to gatekeepers within the meaning of this Regulation.
The Commission may consult national authorities where appropriate, on any matter relating to the application of this Regulation.

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Recital 90

The coherent, effective and complementary enforcement of available legal instruments applied to gatekeepers requires cooperation and coordination between the Commission and national authorities within the remit of their competences. The Commission and national authorities should cooperate and coordinate their actions necessary for the enforcement of the available legal instruments applied to gatekeepers within the meaning of this Regulation and respect the principle of sincere cooperation laid down in Article 4 of the Treaty on European Union (TEU). It should be possible for the support from national authorities to the Commission to include providing the Commission with all necessary information in their possession or assisting the Commission, at its request, with the exercise of its powers so that the Commission is better able to carry out its duties under this Regulation.

Art. 38 DMA - Cooperation and coordination with national competent authorities enforcing competition rules arrow_right_alt

The Commission and the national competent authorities of the Member States enforcing the rules referred to in Article 1(6) shall cooperate with each other and inform each other about their respective enforcement actions through the European Competition Network (ECN). They shall have the power to provide one another with any information regarding a matter of fact or of law, including confidential information. Where the competent authority is not a member of the ECN, the Commission shall make the necessary arrangements for cooperation and exchange of information on cases concerning the enforcement of this Regulation and the enforcement of cases referred to in Article 1(6) of such authorities. The Commission may lay down such arrangements in an implementing act as referred to in Article 46(1), point (l).
Where a national competent authority of the Member States enforcing the rules referred to in Article 1(6) intends to launch an investigation on gatekeepers based on national laws referred to in Article 1(6), it shall inform the Commission in writing of the first formal investigative measure, before or immediately after the start of such measure. This information may also be made available to the national competent authorities enforcing the rules referred to in Article 1(6) of the other Member States.
Where a national competent authority of the Member States enforcing the rules referred to in Article 1(6) intends to impose obligations on gatekeepers based on national laws referred to in Article 1(6), it shall, no later than 30 days before its adoption, communicate the draft measure to the Commission stating the reasons for the measure. In the case of interim measures, the national competent authority of the Member States enforcing the rules referred to in Article 1(6) shall communicate to the Commission the draft measures envisaged as soon as possible, and at the latest immediately after the adoption of such measures. This information may also be made available to the national competent authorities enforcing the rules referred to in Article 1(6) of the other Member States.
The information mechanisms provided for in paragraphs 2 and 3 shall not apply to decisions envisaged pursuant to national merger rules.
Information exchanged pursuant to paragraphs 1 to 3 of this Article shall only be exchanged and used for the purpose of coordination of the enforcement of this Regulation and the rules referred to in Article 1(6).
The Commission may ask national competent authorities of the Member States enforcing the rules referred to in Article 1(6) to support any of its market investigations pursuant to this Regulation.
Where it has the competence and investigative powers to do so under national law, a national competent authority of the Member States enforcing the rules referred to in Article 1(6) may, on its own initiative, conduct an investigation into a case of possible non-compliance with Articles 5, 6 and 7 of this Regulation on its territory. Before taking a first formal investigative measure, that authority shall inform the Commission in writing.

The opening of proceedings by the Commission pursuant to Article 20 shall relieve the national competent authorities of the Member States enforcing the rules referred to in Article 1(6) of the possibility to conduct such an investigation or end it where it is already ongoing. Those authorities shall report to the Commission on the findings of such investigation in order to support the Commission in its role as sole enforcer of this Regulation.

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Recital 91

The Commission is the sole authority empowered to enforce this Regulation. In order to support the Commission, it should be possible for Member States to empower their national competent authorities enforcing competition rules to conduct investigations into possible non-compliance by gatekeepers with certain obligations under this Regulation. This could in particular be relevant for cases where it cannot be determined from the outset whether a gatekeeper’s behaviour is capable of infringing this Regulation, the competition rules which the national competent authority is empowered to enforce, or both. The national competent authority enforcing competition rules should report on its findings on possible non-compliance by gatekeepers with certain obligations under this Regulation to the Commission in view of the Commission opening proceedings to investigate any non-compliance as the sole enforcer of the provisions laid down by this Regulation.

The Commission should have full discretion to decide whether to open such proceedings. In order to avoid overlapping investigations under this Regulation, the national competent authority concerned should inform the Commission before taking its first investigative measure into a possible non-compliance by gatekeepers with certain obligations under this Regulation. The national competent authorities should also closely cooperate and coordinate with the Commission when enforcing national competition rules against gatekeepers, including with regard to the setting of fines. To that end, they should inform the Commission when initiating proceedings based on national competition rules against gatekeepers, as well as prior to imposing obligations on gatekeepers in such proceedings. In order to avoid duplication, it should be possible for information of the draft decision pursuant to Article 11 of Regulation (EC) No 1/2003, where applicable, to serve as notification under this Regulation.

Art. 39 DMA - Cooperation with national courts arrow_right_alt

1. In proceedings for the application of this Regulation, national courts may ask the Commission to transmit to them information in its possession or its opinion on questions concerning the application of this Regulation.

2. Member States shall forward to the Commission a copy of any written judgment of national courts deciding on the application of this Regulation. Such copy shall be forwarded without delay after the full written judgment is notified to the parties.

3. Where the coherent application of this Regulation so requires, the Commission, acting on its own initiative, may submit written observations to national courts. With the permission of the court in question, it may also make oral observations.

4. For the purpose of the preparation of their observations only, the Commission may request the relevant national court to transmit or ensure the transmission to the Commission of any documents necessary for the assessment of the case.

5. National courts shall not give a decision which runs counter to a decision adopted by the Commission under this Regulation. They shall also avoid giving decisions which would conflict with a decision contemplated by the Commission in proceedings it has initiated under this Regulation. To that effect, the national court may assess whether it is necessary to stay its proceedings. This is without prejudice to the possibility for national courts to request a preliminary ruling under Article 267 TFEU.

92

Recital 92

In order to safeguard the harmonised application and enforcement of this Regulation, it is important to ensure that national authorities, including national courts, have all necessary information to ensure that their decisions do not run counter to a decision adopted by the Commission under this Regulation. National courts should be allowed to ask the Commission to send them information or opinions on questions concerning the application of this Regulation. At the same time, the Commission should be able to submit oral or written observations to national courts. This is without prejudice to the ability of national courts to request a preliminary ruling under Article 267 TFEU.

Art. 40 DMA - The high-level group arrow_right_alt

The Commission shall establish a high-level group for the Digital Markets Act (‘the high-level group’).
The high-level group shall be composed of the following European bodies and networks:
1. Body of the European Regulators for Electronic Communications;
2. European Data Protection Supervisor and European Data Protection Board;
3. European Competition Network;
4. Consumer Protection Cooperation Network; and
5. European Regulatory Group of Audiovisual Media Regulators.
The European bodies and networks referred to in paragraph 2 shall each have an equal number of representatives in the high-level group. The maximum number of members of the high-level group shall not exceed 30.
The Commission shall provide secretariat services to the high-level group in order to facilitate its work. The high-level group shall be chaired by the Commission, which shall participate in its meetings. The high-level group shall meet upon request of the Commission at least once per calendar year. The Commission shall also convene a meeting of the group when so requested by the majority of the members composing the group in order to address a specific issue.
The high-level group may provide the Commission with advice and expertise in the areas falling within the competences of its members, including:
1. advice and recommendations within their expertise relevant for any general matter of implementation or enforcement of this Regulation; or
2. advice and expertise promoting a consistent regulatory approach across different regulatory instruments.
The high-level group may, in particular, identify and assess the current and potential interactions between this Regulation and the sector-specific rules applied by the national authorities composing the European bodies and networks referred to in paragraph 2 and submit an annual report to the Commission presenting such assessment and identifying potential trans-regulatory issues. Such report may be accompanied by recommendations aiming at converging towards consistent transdisciplinary approaches and synergies between the implementation of this Regulation and other sectoral regulations. The report shall be communicated to the European Parliament and to the Council.
In the context of market investigations into new services and new practices, the high-level group may provide expertise to the Commission on the need to amend, add or remove rules in this Regulation, to ensure that digital markets across the Union are contestable and fair.

93

Recital 93

In order to ensure coherence and effective complementarity in the implementation of this Regulation and of other sectoral regulations applicable to gatekeepers, the Commission should benefit from the expertise of a dedicated high-level group. It should be possible for that high-level group to also assist the Commission by means of advice, expertise and recommendations, when relevant, in general matters relating to the implementation or enforcement of this Regulation. The high-level group should be composed of the relevant European bodies and networks, and its composition should ensure a high level of expertise and a geographical balance. The members of the high-level group should regularly report to the bodies and networks they represent regarding the tasks performed in the context of the group, and consult them in that regard.

Art. 41 DMA - Request for a market investigation arrow_right_alt

Three or more Member States may request the Commission to open a market investigation pursuant to Article 17 because they consider that there are reasonable grounds to suspect that an undertaking should be designated as a gatekeeper.
One or more Member States may request the Commission to open a market investigation pursuant to Article 18 because they consider that there are reasonable grounds to suspect that a gatekeeper has systematically infringed one or more of the obligations laid down in Articles 5, 6 and 7 and has maintained, strengthened or extended its gatekeeper position in relation to the requirements under Article 3(1).
Three or more Member States may request the Commission to conduct a market investigation pursuant to Article 19 because they consider that there are reasonable grounds to suspect that:
1. one or more services within the digital sector should be added to the list of core platform services laid down in Article 2, point (2), or
2. one or more practices are not effectively addressed by this Regulation and might limit the contestability of core platform services or be unfair.
Member States shall submit evidence in support of their requests pursuant to paragraphs 1, 2 and 3. For requests pursuant to paragraph 3, such evidence may include information on newly introduced offers of products, services, software or features which raise concerns of contestability or fairness, whether implemented in the context of existing core platform services or otherwise.
Within 4 months of receiving a request pursuant to this Article, the Commission shall examine whether there are reasonable grounds to open a market investigation pursuant to paragraph 1, 2 or 3. The Commission shall publish the results of its assessment.

Art. 42 DMA - Representative actions arrow_right_alt

Directive (EU) 2020/1828 shall apply to the representative actions brought against infringements by gatekeepers of provisions of this Regulation that harm or may harm the collective interests of consumers.

104

Recital 104

Consumers should be entitled to enforce their rights in relation to the obligations imposed on gatekeepers under this Regulation through representative actions in accordance with Directive (EU) 2020/1828 of the European Parliament and of the Council ⁽¹⁾. For that purpose, this Regulation should provide that Directive (EU) 2020/1828 is applicable to the representative actions brought against infringements by gatekeepers of provisions of this Regulation that harm or can harm the collective interests of consumers. The Annex to that Directive should therefore be amended accordingly. It is for the Member States to ensure that that amendment is reflected in their transposition measures adopted in accordance with Directive (EU) 2020/1828, although the adoption of national transposition measures in this regard is not a condition for the applicability of that Directive to those representative actions. The applicability of Directive (EU) 2020/1828 to the representative actions brought against infringements by gatekeepers of provisions of this Regulation that harm or can harm the collective interests of consumers should start from the date of application of Member States’ laws, regulations and administrative provisions necessary to transpose that Directive, or from the date of application of this Regulation, whichever is the later.

^{(1) Directive (EU) 2020/1828 of the European Parliament and of the Council of 25 November 2020 on representative actions for the protection of the collective interests of consumers and repealing Directive 2009/22/EC (OJ L 409, 4.12.2020, p. 1).}

Art. 43 DMA - Reporting of breaches and protection of reporting persons arrow_right_alt

Directive (EU) 2019/1937 shall apply to the reporting of all breaches of this Regulation and the protection of persons reporting such breaches.

102

Recital 102

Whistleblowers can bring new information to the attention of competent authorities which can help the competent authorities detect infringements of this Regulation and enable them to impose penalties. It should be ensured that adequate arrangements are in place to enable whistleblowers to alert the competent authorities to actual or potential infringements of this Regulation and to protect the whistleblowers from retaliation. For that purpose, it should be provided in this Regulation that Directive (EU) 2019/1937 of the European Parliament and of the Council ⁽¹⁾ is applicable to the reporting of breaches of this Regulation and to the protection of persons reporting such breaches.

^{(1) Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019 on the protection of persons who report breaches of Union law (OJ L 305, 26.11.2019, p. 17).}

Digital Markets Act (DMA)