THE NEW ONLINE PLATFORM RULES qualitative criterion, that is that it enjoys an entrenched and durable position in its operations, or it is foreseeable that it will enjoy such a position in the near future.30 The definition of active end users has been a contentious issue in the legislative procedure. Online travel agents have been alarmed by the proposal to define active end users as visitors for all transaction-based platforms, regardless of their size. They claimed that merely considering the number of website or app visitors would dramatically distort the number of users considered and extend the gatekeeper status to companies that do not have the systemic effect that the regulation is trying to address.31 Under the final version of the Digital Markets Act, the number of active end users will be identified and calculated in accordance with the methodology and indicators set out in the Annex, which provides that only the number of ‘unique users’ should be taken into account. These will be determined based on the number of registered users or, for end users outside signed-in or logged-in environments, on an alternate metric such as internet protocol addresses, cookie identifiers or other identifiers such as radio frequency identification tags. For online intermediation services, the number of unique end users is further defined as end users who engaged with the online intermediation service at least once in the month for example through actively logging-in, making a query, clicking or scrolling or concluded a transaction through the online intermediation service at least once in the month. As for business users, what is relevant is the number of unique business users who had at least one item listed in the online intermediation service during the whole year or concluded a transaction enabled by the online intermediation service during the year. If we apply the above criteria to online booking services, we can conclude that these are certainly a sort of online intermediation service and therefore fall under the core platform services performed by digital gatekeepers. Booking.com and Airbnb are close to meeting the financial thresholds and criterion of the numbers of unique active users under Article 3 of the Digital Markets Act so these two platforms could be considered digital gatekeepers if their business remains successful in the following years. Online travel agents have been generally opposed to being considered digital gatekeepers. They pointed out that they operate in a highly competitive 30 See Hučková and Semanová, 2022, pp. 517-518. 31 Bertuzzi, 2021.
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