Activities of Josianne CUTAJAR related to 2020/0374(COD)
Plenary speeches (1)
Digital Markets Act (debate)
Shadow opinions (1)
OPINION on the proposal for a regulation of the European Parliament and of the Council on contestable and fair markets in the digital sector (Digital Markets Act)
Amendments (75)
Amendment 65 #
Proposal for a regulation
Recital 37
Recital 37
(37) Because of their position, gatekeepers might in certain cases restrict the ability of business users of their online intermediation services to offer their goods or services to end users under more favourable conditions, including price, through other online intermediation services or alternative distribution channels. Such restrictions have a significant deterrent effect on the business users of gatekeepers in terms of their use of alternative online intermediation services or alternative distribution channels, limiting inter-platform contestability, which in turn limits choice of alternative online intermediation or distribution channels for end users. To ensure that business users of online intermediation services of gatekeepers can freely choose among alternative online intermediation services and channels, and differentiate the conditions under which they offer their products or services to their end users, it should not be accepted that gatekeepers limit business users from choosing to differentiate commercial conditions, including price. Such a restriction should apply to any measure with equivalent effect, such as for example increased commission rates or de- listing of the offers of business users.
Amendment 72 #
Proposal for a regulation
Recital 62
Recital 62
(62) In order to ensure the full and lasting achievement of the objectives of this Regulation, the Commission should be able to assess whether a provider of core platform services should be designated as a gatekeeper without meeting the quantitative thresholds laid down in this Regulation; whether systematic non- compliance by a gatekeeper warrants imposing additional remedies; and whether the list of obligations addressing unfair practices by gatekeepers should be reviewed and additional practices that are similarly unfair and limiting the contestability of digital markets should be identified. Such assessment should be based on market investigations to be run in an appropriate timeframe, by using clear procedures and legally binding deadlines, in order to support the ex ante effect of this Regulation on contestability and fairness in the digital sector, and to provide the requisite degree of legal certainty.
Amendment 94 #
Proposal for a regulation
Article 3 – paragraph 3 – introductory part
Article 3 – paragraph 3 – introductory part
3. Where a provider of core platform services meets all the thresholds in paragraph 2, it shall notify the Commission thereof within three months after those thresholds are satisfied and provide it with the relevant information identified in paragraph 2.. That notification shall include the relevant information identified in paragraph 2 for each of the core platform services of the provider that meets the thresholds in paragraph 2 point (b). The notification shall be updated whenever other core platform services individually meet the thresholds in paragraph 2 point (b). Following notification by a provider of core platform services, the Commission shall take the decision to conduct a market investigation under Article 15 within 60 days.
Amendment 95 #
Proposal for a regulation
Article 3 – paragraph 3 – subparagraph 1
Article 3 – paragraph 3 – subparagraph 1
A failure by a relevant provider of core platform services to notify the required information pursuant to this paragraph shall not prevent the Commission from designating these providers as gatekeepers pursuant to paragraph 4 at any time. The possibility for the Commission to conduct a market investigation in the event of a failed notification by a provider of a core platform service shall not be subject to time limitation.
Amendment 97 #
Proposal for a regulation
Article 3 – paragraph 6 – introductory part
Article 3 – paragraph 6 – introductory part
6. The Commission mayshall identify as a gatekeeper, in accordance with the procedure laid down in Article 15, any provider of core platform services that meets each of the requirements of paragraph 1, but does not satisfy each of the thresholds of paragraph 2, or has not presented sufficiently substantiated arguments in accordance with paragraph 4.
Amendment 98 #
Proposal for a regulation
Article 3 – paragraph 6 – subparagraph 1 – point f
Article 3 – paragraph 6 – subparagraph 1 – point f
(f) other structural market characteristics, such as the consistent growth of the platform’s core service market share in a given digital sector leading to a dominant market position over a three year timeframe.
Amendment 101 #
Proposal for a regulation
Article 3 – paragraph 7
Article 3 – paragraph 7
7. For each gatekeeper identified pursuant to paragraph 4 or paragraph 6, the Commission shall, within 60 days, identify the relevant undertaking to which it belongs and list the relevant core platform services that are provided within that same undertaking and which individually serve as an important gateway for business users to reach end users as referred to in paragraph 1(b).
Amendment 102 #
Proposal for a regulation
Article 3 – paragraph 8
Article 3 – paragraph 8
8. The gatekeeper shall comply with the obligations laid down in Articles 5 and 6 within sixthree months after a core platform service has been included in the list pursuant to paragraph 7 of this Article.
Amendment 104 #
Proposal for a regulation
Article 3 – paragraph 8 a (new)
Article 3 – paragraph 8 a (new)
8 a. The Commission shall, without undue delay and at the latest within six months, open proceedings pursuant to Article 18 where a gatekeeper does not comply with the obligation set in paragraph 8.
Amendment 109 #
Proposal for a regulation
Article 5 – paragraph 1 – point b
Article 5 – paragraph 1 – point b
(b) allow business users to offer the same products or services to end users through third party online intermediation services or through their own direct sales channels at prices or conditions that are different from those offered through the online intermediation services of the gatekeeper;
Amendment 110 #
Proposal for a regulation
Article 5 – paragraph 1 – point c a (new)
Article 5 – paragraph 1 – point c a (new)
Amendment 128 #
Proposal for a regulation
Article 6 – paragraph 1 – point d
Article 6 – paragraph 1 – point d
Amendment 134 #
Proposal for a regulation
Article 6 – paragraph 1 – point i
Article 6 – paragraph 1 – point i
(i) provide business users, or third parties authorised by a business user, free of charge, with effective, high-quality, continuous and real-time access and use of aggregated orand non-aggregated data, that is provided for or generated in the context of the use of the relevant core platform services by those business users and the end users engaging with the products or services provided by those business users; for personal data, provide access and use only where directly connected with the use effectuated by the end user in respect of the products or services offered by the relevant business user through the relevant core platform service, and when the end user opts in to such sharing with a consent in the sense of the Regulation (EU) 2016/679; ;
Amendment 139 #
Proposal for a regulation
Article 7 – paragraph 3
Article 7 – paragraph 3
3. Paragraph 2 of this Article is without prejudice to the powers of the Commission under Articles 25, 26 and 27. Following a decision under paragraph 2 of this Article, if the Commission finds the gatekeeper in non-compliance under Article 25 and a decision under article 26 is taken, the non-compliance period is considered to have commenced from the implementation deadline in Article 3(8).
Amendment 140 #
Proposal for a regulation
Article 7 – paragraph 7
Article 7 – paragraph 7
7. A gatekeeper may, within the deadline set in Article 3(8), request the opening of proceedings pursuant to Article 18 for the Commission to determine whether the measures that the gatekeeper intends to implement or has implemented under Article 6 are effective in achieving the objective of the relevant obligation in the specific circumstances. A gatekeeper may, with its request, provide a reasoned submission to explain in particular why the measures that it intends to implement or has implemented are effective in achieving the objective of the relevant obligation in the specific circumstances. The Commission shall adopt its decision within six months from the opening of proceedings pursuant to Article 18. If in its decision the Commission finds the gatekeeper is non-compliant under Article 25 and a decision under Article 26 is taken, the non-compliance period is considered to have commenced from the implementation deadline in Article 3(8).
Amendment 149 #
Proposal for a regulation
Article 10 – paragraph 1
Article 10 – paragraph 1
1. The Commission is empowered to adopt delegated acts in accordance with Article 34 to update and strengthen the obligations laid down in Articles 5 and 6 where, based on a market investigation pursuant to Article 17, it has identified the need for new obligations addressing practices that limit the contestability of core platform services or are unfair in the same way as the practices addressed by the obligations laid down in Articles 5 and 6.
Amendment 154 #
Proposal for a regulation
Article 14 – paragraph 2 – point c
Article 14 – paragraph 2 – point c
(c) the purpose of the investigation and the specific aim sought to be achieved.
Amendment 155 #
Proposal for a regulation
Article 15 – paragraph 1
Article 15 – paragraph 1
1. The Commission may conduct a market investigation for the purpose of examining whether a provider of core platform services should be designated as a gatekeeper pursuant to Article 3(6), or in order to identify core platform services for a gatekeeper pursuant to Article 3(7). It shall endeavour to conclude its investigation by adopting a decision in accordance with the advisory procedure referred to in Article 32(4) within twelvesix months from the opening of the market investigation.
Amendment 156 #
Proposal for a regulation
Article 15 – paragraph 2
Article 15 – paragraph 2
2. In the course of a market investigation pursuant to paragraph 1, the Commission shall endeavour to communicate its preliminary findings to the provider of core platform services concerned within sixfour months from the opening of the investigation. In the preliminary findings, the Commission shall explain whether it considers, on a provisional basis, that the provider of core platform services should be designated as a gatekeeper pursuant to Article 3(6).
Amendment 158 #
Proposal for a regulation
Article 16 – paragraph 3
Article 16 – paragraph 3
3. A gatekeeper shall be deemed to have engaged in a systematic non- compliance with the obligations laid down in Articles 5 and 6, where the Commission has issued at least threewo non-compliance or fining decisions pursuant to Articles 25 and 26 respectively against a gatekeeper in relation to any of its core platform services within a period of five years prior to the adoption of the decision opening a market investigation in view of the possible adoption of a decision pursuant to this Article.
Amendment 159 #
Proposal for a regulation
Article 17 – paragraph 1
Article 17 – paragraph 1
The Commission may conduct a market investigation with the purpose of examining whether one or more services within the digital sector should be added to the list of core platform services or to detect types of practices that may limit the contestability of core platform services or may bprima facie unfair and which are not effectively addressed by this Regulation. It shall issue a public report at the latest within 24 months from the opening of the market investigation.
Amendment 166 #
Proposal for a regulation
Article 25 – paragraph 1 – introductory part
Article 25 – paragraph 1 – introductory part
1. The Commission shall adoptendeavour to adopt, within six months from the opening of the proceedings under Article 18, a non- compliance decision in accordance with the advisory procedure referred to in Article 32(4) where it finds that a gatekeeper does not comply with one or more of the following:
Amendment 167 #
Proposal for a regulation
Article 25 – paragraph 3
Article 25 – paragraph 3
3. In the non-compliance decision adopted pursuant to paragraph 1, the Commission shall order the gatekeeper to cease and desist with the non-compliance within an appropriate deadline and to provide explanationsspecify mandatory corrective measures a non- compliant gatekeeper shall implement to comply with the obligations in Articles 5 and 6. The gatekeeper shall also present its own plan on how it planintends to comply with the decision and the corrective measures.
Amendment 171 #
Proposal for a regulation
Article 28 – paragraph 1
Article 28 – paragraph 1
1. The powers conferred on the Commission by Articles 26 and 27 shall be subject to a threfive year limitation period.
Amendment 172 #
Proposal for a regulation
Article 30 – paragraph 1 – introductory part
Article 30 – paragraph 1 – introductory part
1. Before adopting a decision pursuant to Article 7, Article 8(1), Article 9(1), Articles 15, 16, 22, 23, 25 and 26 and Article 27(2), the Commission shall give the gatekeeper or undertaking or association of undertakings, together with other relevant stakeholders, including consumer organisations and business users, concerned the opportunity of being heard on:
Amendment 177 #
Proposal for a regulation
Article 33 – paragraph 1
Article 33 – paragraph 1
1. When three or more Member States request the Commission to open an investigation pursuant to Article 15 because they consider that there are reasonable grounds to suspect that a provider of core platform services should be designated as a gatekeeper, the Commission shall within four months examine whether there are reasonable grounds to open such an investigation. The result of any such investigation shall be made publicly available.
Amendment 177 #
Proposal for a regulation
Recital 17
Recital 17
(17) A very significant turnover in the Union and the provision of a core platform service in at least three Member States constitute compelling indications that the provider of a core platform service has a significant impact on the internal market or a significant sector thereof. This is equally true where a provider of a core platform service in at least three Member States has a very significant market capitalisation or equivalent fair market value. Therefore, a provider of a core platform service should be presudeemed to have a significant impact on the internal market or a significant sector thereof where it provides a core platform service in at least three Member States and where either its group turnover realised in the EEA 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 providers of core platform services that belong to undertakings that are not publicly listed, the equivalent fair market value above a certain high absolute value should be referred to. The Commission should use its power to adopt delegated acts to develop an objective methodology to calculate that value. A high EEA group turnover in conjunction with the threshold of users in the Union of core platform services reflects a relatively strong ability to monetise these users. A high market capitalisation relative to the same threshold number of users in the Union reflects a relatively significant potential to monetise these users in the near future. This monetisation potential in turn reflects in principle the gateway position of the undertakings concerned. Both indicators are in addition reflective of their financial capacity, including their ability to leverage their access to financial markets to reinforce their position. This may for example happen where this superior access is used to acquire other undertakings, which ability has in turn been shown to have potential negative effects on innovation. Market capitalisation can also be reflective of the expected future position and effect on the internal market of the providers concerned, notwithstanding a potentially relatively low current turnover. The market capitalisation value can be based on a level that reflects the average market capitalisation of the largest publicly listed undertakings in the Union over an appropriate period.
Amendment 181 #
Proposal for a regulation
Recital 21
Recital 21
(21) An entrenched and durable position in its operations or the foreseeability of achieving such a position future occurs notably where the contestability of the position of the provider of the core platform service is limited. This is likely to be the case where that provider has provided a core platform service in at least three Member States to a very high number of business users and end users during at least threewo years.
Amendment 187 #
Proposal for a regulation
Recital 24
Recital 24
(24) Provision should also be made for the assessment of the gatekeeper role of providers of core platform services which do not satisfy all of the quantitative thresholds, in light of the overall objective requirements that they have a significant impact on the internal market, act as an important gateway for business users to reach end users and benefit from a durable and entrenched position in their operations or it is foreseeable that it will do so in the near future as well as in light of their market share in the relevant market.
Amendment 201 #
Proposal for a regulation
Recital 32
Recital 32
(32) To safeguard the fairness and contestability of core platform services provided by gatekeepers, it is necessary to provide in a clear and unambiguous manner for a set of harmonised obligations with regard to those services. Such rules are needed to address the risk of harmful effects of unfair practices imposed by gatekeepers, to the benefit of the business environment in the services concerned, to the benefit of users and ultimately to the benefit of society as a whole. Given the fast-moving and dynamic nature of digital markets, and the substantial economic power of gatekeepers, it is important that these obligations are effectively applied without being circumvented. To that end, the obligations in question should apply to any practices by a gatekeeper, irrespective of its form, including through the use of dark patterns or manipulative choice architecture, and irrespective of whether it is of a contractual, commercial, technical or any other nature, insofar as a practice corresponds to the type of practice that is the subject of one of the obligations of this Regulation.
Amendment 205 #
Proposal for a regulation
Recital 33
Recital 33
(33) The obligations laid down in this Regulation are limited to what is necessary and justified to address the unfairness of the identified practices by gatekeepers and to ensure contestability in relation to core platform services provided by gatekeepers. Therefore, the obligations should correspond to those practices that are considered unfair by taking into account the features of the digital sector and where experience gained, for example in the enforcementhey can have a negative direct impact ofn the EU competition rules, shows that they have a particularly negative direct impact on the business users and end userbusiness users and end users. A general fairness clause allows for the necessary flexibility and ensures future-proofness. In addition, it is necessary to provide for the possibility of a regulatory dialogue with gatekeepers to tailor those obligations that are likely to require specific implementing measures in order to ensure their effectiveness and proportionality. The obligations should only be updated after a thorough investigation on the nature and impact of specific practices that may be newly identified, following an in-depth investigation, as unfair or limiting contestability in the same manner as the unfair practices laid down in this Regulation while potentially escaping the scope of the current set of obligations.
Amendment 211 #
Proposal for a regulation
Recital 36
Recital 36
(36) The conduct of combining end user data from different sources or signing in users to different services of gatekeepers gives them potential advantages in terms of accumulation of data, thereby raising barriers to entry. To ensure that gatekeepers do not unfairly undermine the contestability of core platform services, they should enable their end usand in orders to freely choose to opt-in to such business practices by offering a less personalised alternative. The possibility should cover all possible sources of impede business models that are based on the collection of users’personal data, including own services of the gatekeeper as well as third party websites, and should be proactively presented to the end user in an explicit, clear and straightforward manner view of the fact that the design makes it often too hard if not impossible to refuse consent, combining personal data should be prohibited.
Amendment 232 #
Proposal for a regulation
Recital 39
Recital 39
(39) 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 to raise concerns about unfair behaviour by gatekeepers with any relevant administrative or other public authorities. For example, business users or end users may 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 such a possibility of raising concerns or seeking available redress, for instance by means of confidentiality clauses in agreements or other written terms, should therefore be prohibited. This should be without prejudice to the right of business users or end 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 therefore also be without prejudice to the role gatekeepers play in the fight against illegal content online.
Amendment 252 #
Proposal for a regulation
Recital 46
Recital 46
(46) A gatekeeper may use different means to favour its own services or products on its core platform service, to the detriment of the same or similar services that end users could obtain through third parties. This may for instance be the case where certain software applications or services are pre-installed by a gatekeeper. To enable end user choice, gatekeepers should not prevent end users from un- installing any pre-installed-install software applications on its core platform service and thereby favour their own software applications as this inhibits user choice. The only exception shall be pre-installations that are essential for the functioning of the operating system or of the device and which cannot be technically offered on as standalone basis by third-parties.
Amendment 267 #
Proposal for a regulation
Recital 48
Recital 48
(48) Gatekeepers are often vertically integrated and offer certain products or services to end users through their own core platform services, or through a business user over which they exercise controlthat it cooperates with, which frequently leads to conflicts of interest. This can include the situation whereby a gatekeeper offers its own online intermediation services through an online search engine. When offering those products or services on the core platform service, gatekeepers can reserve a better position to their own offering, in terms of ranking, as opposed to the products of third parties also operating onusing that core platform service. This can occur for instance with products or services, including other core platform services, which are ranked in the results communicated by online search engines, or which are partly or entirely embedded in search results of online search engines results, groups of results specialised in a certain topic, displayed along with the results of an online search engine, which armay be considered or used by certain end users as a service distinct or additional to the online search engine. Other instances are those ofSuch preferential or embedded display should constitute an inadmissible preference, irrespective of whether the information or results may also be provided by competing services and are as such ranked in a non-discriminatory way. Inadmissible preferencing can also take place in other instances, such as software applications which are distributed through software application stores, or products or services that are given prominence and display in the newsfeed of a social network, or products or services ranked in search results or displayed on an online marketplace, or products or services users are directed to following a request by an end user to a digital voice assistant. In those circumstances, the gatekeeper is in a dual- role position as intermediary for third party providers and as direct provider of products or services of the gatekeeper. Consequently, these gatekeepers have the ability to undermine directly the contestability for those products or services on these core platform services, to the detriment of business users which are not controlled by the gatekeeper.
Amendment 316 #
Proposal for a regulation
Recital 58
Recital 58
(58) To ensure the effectiveness of the obligations laid down by this Regulation, while also making certain that these obligations are limited to what is necessary to ensure contestability and tackling the harmful effects of the unfair behaviour by gatekeepers, it is important to clearly define and circumscribe them so as to allow the gatekeeper to immediately comply with them, in full respect of Regulation (EU) 2016/679 and Directive 2002/58/EC, consumer protection, cyber security and product safety. The gatekeepers should ensure the compliance with this Regulation by design. The necessary measures should therefore be as much as possible and where relevant integrated into the technological design used by the gatekeepers. However, it may in certain cases be appropriate for the Commission, following a dialogue with the gatekeeper concerned, to furthertechnically specify some of the measures that the gatekeeper concerned should adopt in order to effectively comply with those obligations that are susceptible of being further specifiedtechnically implement those obligations. This possibility of a regulatory dialogue should facilitate compliance by gatekeepers and expedite the correct implementation of the Regulation and should by no means constitute grounds to assume thatthe gatekeeper may invoke an efficiency defence. In order ensure the exante effects on fairness and contestability of markets and for the sake of legal certainty, it is essential that the Commission takes compliance decisions within legally binding deadlines.
Amendment 329 #
Proposal for a regulation
Recital 61
Recital 61
(61) The data protection and privacy interests of end users are relevant to any assessment of potential negative effects of the observed practice of gatekeepers to collect and accumulate large amounts of data from end users. EIn order to ensuringe an adequate level of transparency of profiling practices employed by gatekeepers facilitates contestability of core platform services, by puttingdata and consumer protection, external pressure should be put on gatekeepers to prevent making deep consumer profiling the industry standard, in particular given that potential entrants or start-up providers cannot access data to the same extent and depth, and at a similar scale. Enhanced transparency should allow other providers of core platform services to differentiate themselves better through the use of superior privacy guaranteeing facilities. To ensure a minimum level of effectiveness of this transparency obligation, gProviders of core platform services should commit to superior privacy guaranteeing facilities. Businessmodels that are based on the commercial tracking and profiling of consumers should be proscribed. To that end the mixing of data from different services should be prohibited. Gatekeepers should at least provide a description of the basis upon which profiling is performed, including whether personal data and data derived from user activity is relied on, the processing applied, the purpose for which the profile is prepared and eventually used, the impact of such profiling on the gatekeeper’s services, and the steps taken to enable end users to be aware of the relevant use of such profiling, as well as to seek their consent. Suchinformation should be shared with other relevant enforcement authorities, in particular Data Protection Authorities.
Amendment 332 #
Proposal for a regulation
Recital 62
Recital 62
(62) In order to ensure the full and lasting achievement of the objectives of this Regulation, the Commission should be able to assess whether a provider of core platform services should be designated as a gatekeeper without meeting the quantitative thresholds laid down in this Regulation; whether systematic non- compliance by a gatekeeper warrants imposing additional remedies; and whether the list of obligations addressing unfair practices by gatekeepers should be reviewed and additional practices that are similarly unfair and limiting the contestability of digital markets should be identified. Such assessment should be based on market investigations to be run in an appropriate timeframe, by using clear procedures and legally binding deadlines, in order to support the ex ante effect of this Regulation on contestability and fairness in the digital sector, and to provide the requisite degree of legal certainty.
Amendment 342 #
Proposal for a regulation
Recital 65
Recital 65
(65) The services and practices in core platform services and markets in which these intervene can change quickly and to a significant extent. To ensure that this Regulation remains up to date and constitutes an effective and holistic regulatory response to the problems posed by gatekeepers, it is important to provide for a regular review of the lists of core platform services as well as of the obligations provided for in this Regulation. This is particularly important to ensure that behaviour that may limit the contestability of core platform services or is unfair is identified. While it is important to conduct a review on a regular basis, given the dynamically changing nature of the digital sector, in order to ensure legal certainty as to the regulatory conditions, any reviews should be conducted within a reasonable and appropriate time-frame. Market investigations should also ensure that the Commission has a solid evidentiary basis on which it can assess whether it should propose to amend this Regulation in order to expand, or further detail, the lists of core platform services. They should equally ensure that the Commission has a solid evidentiary basis on which it can assess whether it should propose to amend the obligations laid down in this Reguldopt a delegated act updating such obligations. Such an update should only enable the Commission to add new obligations or whether it should adopt a delegated act updating such obligaprohibitions to this Regulation but not to eliminate current obligations or prohibitions.
Amendment 350 #
Proposal for a regulation
Recital 67
Recital 67
(67) Where, in the course of a proceeding into non-compliance or an investigation into systemic 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 of this Regulation. This decision should also find that there are no longer grounds for action by the Commission. If following an investigation, the commitments prove ineffective, the Commission shall be entitled to propose changes to the commitments to ensure its effectiveness.
Amendment 364 #
Proposal for a regulation
Recital 74 a (new)
Recital 74 a (new)
(74 a) Consumers should be entitled to enforce their rights in relation to the obligations imposed on gatekeepers under this Regulation through collective redress actions in accordance with Directive (EU) 2020/1818.
Amendment 386 #
Proposal for a regulation
Article 1 – paragraph 1
Article 1 – paragraph 1
1. This Regulation lays down harmonised rules ensuring contestable and fair markets for both business users and end users, in the digital sector across the Union where gatekeepers are present.
Amendment 386 #
Proposal for a regulation
Article 3 – paragraph 6 – subparagraph 1 – point f
Article 3 – paragraph 6 – subparagraph 1 – point f
(f) other structural market characteristics, such as the consistent growth of the platform’s core service market share in a given digital sector leading to a dominant market position over a three year timeframe.
Amendment 424 #
Proposal for a regulation
Article 5 – paragraph 1 – point b
Article 5 – paragraph 1 – point b
(b) allow business users to offer the same products or services to end users through third party online intermediation services or through their own direct sales channels at prices or conditions that are different from those offered through the online intermediation services of the gatekeeper;
Amendment 503 #
Proposal for a regulation
Article 3 – paragraph 2 – point a
Article 3 – paragraph 2 – point a
(a) the requirement in paragraph 1 point (a) where the undertaking to which it belongs achieves an annual EEA turnover equal to or above EUR 6.5 billion in the last three financial years, or where the average market capitalisation or the equivalent fair market value of the undertaking to which it belongs amounted to at least EUR 65 billion in the last financial year, and it provides a core platform service in at least three Member States;
Amendment 520 #
Proposal for a regulation
Article 3 – paragraph 2 – point c
Article 3 – paragraph 2 – point c
(c) the requirement in paragraph 1 point (c) where the thresholds in point (b) were met in each of the last threewo financial years.
Amendment 550 #
Proposal for a regulation
Article 3 – paragraph 6 – subparagraph 1 – point a
Article 3 – paragraph 6 – subparagraph 1 – point a
(a) the size, including turnover and market capitalisation, operations and position of the provider of core platform services as well as the market share in the relevant market;
Amendment 591 #
Proposal for a regulation
Article 4 – paragraph 3
Article 4 – paragraph 3
3. The Commission shall publish and update the list of gatekeepers and the list of the core platform services for which they need to comply with the obligations laid down in Articles 5 and 6 on an on-going basis. The Commission shall publish an annual report setting out the findings of its monitoring activities and present it to the European Parliament and the Council of the European Union.
Amendment 617 #
Proposal for a regulation
Article 5 – paragraph 1 – point b
Article 5 – paragraph 1 – point b
(b) allow business users to offer the same products or services to end users through third party online intermediation services or its own online services at prices or conditions that are different from those offered through the online intermediation services of the gatekeeper;
Amendment 651 #
Proposal for a regulation
Article 5 – paragraph 1 – point e
Article 5 – paragraph 1 – point e
(e) refrain fromnot requiringe business users nor end users to use, offer or interoperate with an identificationcillary services of the gatekeeper in the context of services offered by the business users using the core platform services of that gatekeeper;
Amendment 693 #
Proposal for a regulation
Article 5 – paragraph 1 – point g a (new)
Article 5 – paragraph 1 – point g a (new)
(g a) not use, any data that has been generated in the relationship between business users and end users, and that is not also available to the business user itself; this includes not using such data to launch products or services that compete with the products or services offered by their business users;
Amendment 707 #
Proposal for a regulation
Article 6 – title
Article 6 – title
Obligations for gatekeepers susceptible of being further technically specified
Amendment 739 #
Proposal for a regulation
Article 33 – paragraph 1
Article 33 – paragraph 1
1. When three or more Member States request the Commission to open an investigation pursuant to Article 15 because they consider that there are reasonable grounds to suspect that a provider of core platform services should be designated as a gatekeeper, the Commission shall within four months examine whether there are reasonable grounds to open such an investigation. The result of any such investigation shall be made publicly available.
Amendment 752 #
Proposal for a regulation
Article 6 – paragraph 1 – point d
Article 6 – paragraph 1 – point d
(d) refrain fromnot treating more favourably in ranking services and, products and settings offered by the gatekeeper itself or by any third party belonging to the same undertaking compared to similar services or products of third party and apply transparent, fair and non-discriminatory conditions to such rankingthird party services and products;
Amendment 802 #
Proposal for a regulation
Article 6 – paragraph 1 – point i
Article 6 – paragraph 1 – point i
(i) provide business users and end users, or third parties authorised by a business user or end user, free of charge, in a user friendly manner with effective, high-quality, continuous and real-time access and use of aggregated orand non- aggregated data, that is provided for or generated in the context of the use of the relevant core platform services by those business users and the end users engaging with the products or services provided by those business users; for personal data, provide access and use only where directly connected with the use effectuated by the end user in respect of the products or services offered by the relevant business user through the relevant core platform service in line with the principles of purpose limitation and data minimisation, and when the end user opts in to such sharing with a consent in the sense of the Regulation (EU) 2016/679; ;
Amendment 840 #
Proposal for a regulation
Article 7 – paragraph 1
Article 7 – paragraph 1
1. The measures implemented by the gatekeeper to ensure full compliance with the obligations laid down in Articles 5 and 6 shall be effective in achieving the objective of the relevant obligation. The gatekeeper shall be responsible for, and be able to demonstrate full compliance with these obligations (‘accountability’). The burden of proof regarding the efficiency lies on the gatekeeper. The gatekeeper shall demonstrate which measures have been taken to comply with these obligations. The gatekeeper shall ensure that these measures are implemented in compliance with Regulation (EU) 2016/679 and Directive 2002/58/EC, and with legislation on cyber security, consumer protection and product safety.
Amendment 891 #
Proposal for a regulation
Article 8 – paragraph 1
Article 8 – paragraph 1
1. The Commission may, on a reasoned request by the gatekeeper, exceptionally suspend, in whole or in part, a specific obligation laid down in Articles 5 and 6 for a core platform service by decision adopted in accordance with the advisory procedure referred to in Article 32(4), where the gatekeeper demonstrates that compliance with that specific obligation would endanger, due to exceptional circumstances beyond the control of the gatekeeper, the economic viability of the operation of the gatekeeper in the Union, and only to the extent necessary to address such threat to its viability. The Commission shall aim to adopt the suspension decision without delay and at the latest 3 months following receipt of a complete reasoned request and accompany this by a reasoned statement explaining the grounds for the suspension.
Amendment 904 #
Proposal for a regulation
Article 9 – paragraph 1
Article 9 – paragraph 1
1. The Commission may, acting on a reasoned request by a gatekeeper or on its own initiative, by decision adopted in accordance with the advisory procedure referred to in Article 32(4), exempt it, in whole or in part, from a specific obligation laid down in Articles 5 and 6 in relation to an individual core platform service identified pursuant to Article 3(7), where such exemption is justified on the grounds set out in paragraph 2 of this Article. The Commission shall adopt the exemption decision at the latest 3 months after receiving a complete reasoned request and accompany by a reasoned statement explaining the grounds for the suspension.
Amendment 949 #
Proposal for a regulation
Article 11 – paragraph 3
Article 11 – paragraph 3
3. A gatekeeper shall not degrade the conditions or quality of any of the core platform services provided to business users or end users who avail themselves of the rights or choices laid down in Articles 5 and 6, or make the exercise of those rights or choices unduly difficult, including through the use of “dark patterns” or manipulative choice architecturs.
Amendment 975 #
Proposal for a regulation
Article 13 – paragraph 1
Article 13 – paragraph 1
Within six months after its designation pursuant to Article 3, a gatekeeper shall submit to the Commission an d Data Protection Authorities an independently audited description of any techniques for profiling of consumers that the gatekeeper applies to or across its coreany platform services identified pursuant to Article 3 and make them publicly available. This description shall be updated at least annually.
Amendment 982 #
Proposal for a regulation
Article 15 – paragraph 1
Article 15 – paragraph 1
1. The Commission mayshall conduct a market investigation for the purpose of examining whether a provider of core platform services should be designated as a gatekeeper pursuant to Article 3(6), or in order to identify core platform services for a gatekeeper pursuant to Article 3(7). It shall endeavour to conclude its investigation by adopting a decision in accordance with the advisory procedure referred to in Article 32(4) within twelve months from the opening of the market investigation.
Amendment 1008 #
Proposal for a regulation
Article 16 – paragraph 1
Article 16 – paragraph 1
1. Where the market investigation shows that a gatekeeper has systematically infringed the obligations laid down in Articles 5 and 6 and has further strengthened or extended its gatekeeper position in relation to the characteristics under Article 3(1), the Commission mayshall by decision adopted in accordance with the advisory procedure referred to in Article 32(4) impose on such gatekeeper any behavioural or structural remedies which are proportionate to the infringement committed and necessary to ensure full compliance with this Regulation. The Commission shall conclude its investigation by adopting a decision within twelvesix months from the opening of the market investigation.
Amendment 1022 #
Proposal for a regulation
Article 16 – paragraph 3
Article 16 – paragraph 3
3. A gatekeeper shall be deemed to have engaged in a systematic non- compliance with the obligations laid down in Articles 5 and 6, where the Commission has issued at least threetwo non-compliance or fining decisions pursuant to Articles 25 and 26 respectively against a gatekeeper in relation to any of its core platform services within a period of five years prior to the adoption of the decision opening a market investigation in view of the possible adoption of a decision pursuant to this Article.
Amendment 1083 #
Proposal for a regulation
Article 25 – paragraph 1 – introductory part
Article 25 – paragraph 1 – introductory part
1. The Commission shall adopt a non- compliance decision in accordance with the advisory procedure referred to in Article 32(4) within a period of 6 months beginning from the moment of non- compliance where it finds that a gatekeeper does not comply with one or more of the following:
Amendment 1087 #
Proposal for a regulation
Article 25 – paragraph 3
Article 25 – paragraph 3
3. In the non-compliance decision adopted pursuant to paragraph 1, 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 the decision. The Commission may by decision adopted in accordance with the advisory procedure referred to in Article 32(4) impose on such gatekeeper any behavioural remedies which are proportionate to the infringement committed and necessary to ensure compliance with this Regulation.
Amendment 1093 #
Proposal for a regulation
Article 25 – paragraph 4
Article 25 – paragraph 4
4. The gatekeeper shall provide the Commission with the description of the measures it took to ensure compliance with the decision adopted pursuant to paragraph 1. If the Commission, following an investigation, finds that the measures are not effective to ensure compliance by the gatekeeper with its obligations under Articles 5 and 6, the Commission shall be entitled to require changes to these measures.
Amendment 1099 #
Proposal for a regulation
Article 26 – paragraph 1 – introductory part
Article 26 – paragraph 1 – introductory part
1. In the decision pursuant to Article 25, the Commission may impose on a gatekeeper fines not exceeding 130% of its total turnover in the preceding financial year where it finds that the gatekeeper, intentionally or negligently, fails to comply with:
Amendment 1101 #
Proposal for a regulation
Article 26 – paragraph 2 – introductory part
Article 26 – paragraph 2 – introductory part
2. The Commission may by decision impose on undertakings and associations of undertakings fines not exceeding 15% of the total turnover in the preceding financial year where they intentionally or negligently:
Amendment 1105 #
Proposal for a regulation
Article 26 – paragraph 3
Article 26 – paragraph 3
3. In fixing the amount of the fine, regard shall be had to the gravity, duration, recurrence, and, for fines imposed pursuant to paragraph 2, delay caused to the proceedings. To calculate the duration of the infringement, the starting point shall be the moment of the first non- compliance under Article 3 paragraph 8.
Amendment 1107 #
Proposal for a regulation
Article 26 – paragraph 4 – subparagraph 4
Article 26 – paragraph 4 – subparagraph 4
The financial liability of each undertaking in respect of the payment of the fine shall not exceed 130 % of its total turnover in the preceding financial year.
Amendment 1116 #
Proposal for a regulation
Article 28 – paragraph 1
Article 28 – paragraph 1
1. The powers conferred on the Commission by Articles 26 and 27 shall be subject to a threfive year limitation period.
Amendment 1118 #
Proposal for a regulation
Article 29 – paragraph 1
Article 29 – paragraph 1
1. The power of the Commission to enforce decisions taken pursuant to Articles 26 and 27 shall be subject to a limitation period of fiseven years.
Amendment 1121 #
Proposal for a regulation
Article 30 – paragraph 1 – introductory part
Article 30 – paragraph 1 – introductory part
1. Before adopting a decision pursuant to Article 7, Article 8(1), Article 9(1), Articles 15, 16, 22, 23, 25 and 26 and Article 27(2), the Commission shall give the gatekeeper or undertaking or association of undertakings concerned and third parties with a legitimate interest the opportunity of being heard on:
Amendment 1123 #
Proposal for a regulation
Article 30 – paragraph 1 – point b a (new)
Article 30 – paragraph 1 – point b a (new)
(ba) all relevant procedures or decisions that affect consumers such as inter alia market investigations for designating a gatekeeper, compliance with, suspensions of and exemption from obligations, interim measures, fines.
Amendment 1126 #
Proposal for a regulation
Article 30 – paragraph 2
Article 30 – paragraph 2
2. Gatekeepers, undertakings and, associations of undertakings concerned and third parties with a legitimate interest may submit their observations to the Commission’s preliminary findings within a time limit which shall be fixed by the Commission in its preliminary findings and which may not be less than 14 days.