6 An undertaking can be designated as a gatekeeper if it has a significant impact on the internal market. This criterion is presumed to be satisfied where the undertaking achieves an annual Union turnover equal to or above EUR 7,5 billion in each of the last three financial years, or where its average market capitalisation or its equivalent fair market value amounted to at least EUR 75 billion in the last financial year (both financial thresholds are higher than in the Commission’s initial proposal), and it provides the same core platform service in at least three Member States. The second criterion is that a gatekeeper provides a core platform service which is an important gateway for business users to reach end users. The core platform services list includes online intermediation services, online search engines, online social networking services, video-sharing platform services, number-independent interpersonal communication services, operating systems, cloud computing services, advertising services provided by a provider of any of the services listed before. The core platform service is considered an important gateway if it had at least 45 million monthly active end users established or located in the Union in the last financial year and at least 10 000 yearly active business users. If the conditions relating to the numbers of active users are met in each of the last three financial years, the platform is presumed to satisfy also the third 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 30 See Hučková and Semanová, 2022, pp. 517-518. 31 Bertuzzi, 2021.
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