133 Amendments of Kira Marie PETER-HANSEN related to 2020/0374(COD)
Amendment 112 #
Proposal for a regulation
Recital 1
Recital 1
(1) Digital services in general and online platforms in particular play an increasingly important role in the economy, in particular in the internal market, by providing new business opportunities in the Union and facilitating cross-border trading but also to the benefit of consumers leading to a greater choice in products and services provided.
Amendment 113 #
Proposal for a regulation
Recital 2
Recital 2
(2) Core platform services, at the same time, feature a number of characteristics that can be exploited by their providers. These characteristics of core platform services include among others extreme scale economies, which often result from nearly zero marginal costs to add business users or end users. Other characteristics of core platform services are very strong network effects, an ability to connect many business users with many end users through the multi-sidedness of these services, a significant degree of dependence of both business users and end users, lock-in effects, a lack of multi- homing for the same purpose by end users, vertical integration, and data driven- advantages. All these characteristics combined with unfair conduct by providers of these services can have the effect of substantially undermining the contestability of the core platform services, as well as impacting the fairness of the commercial relationship between providers of such services and their business users and end users, leading to rapid and potentially far-reaching decreases in business users’ and end users’ choice in practice, lowering of consumer protection standards, and therefore can confer to the provider of those services the position of a so-called gatekeeper. End users are similarly affected by unfair practices by gatekeepers and their interests should be taken into account in the obligations to be imposed under this Regulation.
Amendment 129 #
Proposal for a regulation
Recital 10
Recital 10
(10) Articles 101 and 102 TFEU and the corresponding national competition rules concerning anticompetitive multilateral and unilateral conduct as well as merger control have as their objective the protection of undistorted competition on the market. This Regulation pursues an objective that is complementary to, but different from that of protecting undistorted competition on any given market, as defined in competition-law terms, which is to ensure that markets where gatekeepers are present are and remain contestable and fair, independently from the actual, likely or presumed effects of the conduct of a given gatekeeper covered by this Regulation on competition on a given market. This Regulation therefore aims at protecting a different legal interest from those rules and should be without prejudice tocomplement their application.
Amendment 132 #
Proposal for a regulation
Recital 11
Recital 11
(11) This Regulation should also complement, without prejudice to their application, the rules resulting from other acts of Union law regulating certain aspects of the provision of services covered by this Regulation, in particular Regulation (EU) 2019/1150 of the European Parliament and of the Council26 , Regulation (EU) xx/xx/EU [DSA] of the European Parliament and of the Council27 , Regulation (EU) 2016/679 of the European Parliament and of the Council28 and Directive 2002/58/EC28a, Directive (EU) 2019/790 of the European Parliament and of the Council29 , Directive (EU) 2015/2366 of the European Parliament and of the Council30 , and Directive (EU) 2010/13 of the European Parliament and of the Council31 , as well as national rules aimed at enforcing or, as the case may be, implementing that Union legislation. _________________ 26 Regulation (EU) 2019/1150 of the European Parliament and of the Council of 20 June 2019 on promoting fairness and transparency for business users of online intermediation services (OJ L 186, 11.7.2019, p. 57). 27Regulation (EU) …/.. of the European Parliament and of the Council – proposal on a Single Market For Digital Services (Digital Services Act) and amending Directive 2000/31/EC. 28Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (OJ L 119, 4.5.2016, p. 1). 28aDirective 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications). 29 Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/ (OJ L 130, 17.5.2019, p. 92.). 30Directive (EU) 2015/2366 of the European Parliament and of the Council of 25 November 2015 on payment services in the internal market, amending Directives 2002/65/EC, 2009/110/EC and 2013/36/EU and Regulation (EU) No 1093/2010, and repealing Directive 2007/64/EC ( OJ L 337, 23.12.2015, p. 35). 31Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) (OJ L 95, 15.4.2010, p. 1).
Amendment 134 #
Proposal for a regulation
Recital 12
Recital 12
(12) Weak contestability and unfair practices in the digital sector are more frequent and pronounced for certain digital services than for others. This is the case in particular for widespread and commonly used digital services that mostly directly intermediate between business users and end users and where features such as extreme scale economies, very strong network effects, an ability to connect many business users with many end users through the multi-sidedness of these services, lock-in effects, a lack of multi- homing or vertical integration are the most prevalent. Often, there is only one or very few large providers of those digital services. These providers of core platform services have emerged most frequently as gatekeepers for business users and end users with far-reaching impacts, gaining the ability to easily set commercial conditions and terms in a unilateral and detrimental manner for their business users and end users. Accordingly, it is necessary to focus on ally onf those digital services that are most broadly used by business users and end users and where, based on current market conditions, concerns about weak contestability and unfair practices by gatekeepers are more apparent and pressing from an internal market perspective.
Amendment 136 #
Proposal for a regulation
Recital 13
Recital 13
(13) In particular, online intermediation services, online search engines, operating systems, online social networking, video sharing platform services, number- independent interpersonal communication services, cloud computing services and online advertisingincluding business to business clouds, and online advertising services embedded digital services in vehicles, browsers, voice assistant, connected tv and collaborative economy services all have the capacity to affect a large number of end users and businesses alike, which entails a risk of unfair business practices. They therefore should be included in the definition of core platform services and fall into the scope of this Regulation. Online intermediation services may also be active in the field of financial services, and they may intermediate or be used to provide such services as listed non-exhaustively in Annex II to Directive (EU) 2015/1535 of the European Parliament and of the Council32 . In certain circumstances, the notion of end users should encompass users that are traditionally considered business users, but in a given situation do not use the core platform services to provide goods or services to other end users, such as for example businesses relying on cloud computing services for their own purposes. _________________ 32Directive (EU) 2015/1535 of the European Parliament and of the Council of 9 September 2015 laying down a procedure for the provision of information in the field of technical regulations and of rules on Information Society services, OJ L 241, 17.9.2015, p. 1.
Amendment 142 #
Proposal for a regulation
Recital 15
Recital 15
(15) The fact that a digital service qualifies as a core platform service in light of its widespread and common use and its importance for connecting business users and end users does not as such give rise to sufficiently serious concerns of contestability and unfair practices. It is only when a core platform service constitutes an important gateway and is operated by a provider with a significant impact in the internal market and an entrenched and durable position, or by a provider that will foreseeably have such a position in the near future, subject to a market investigation or to an assessment by the Commission based on a notification submitted in line with Article 12, that such concerns arise. Accordingly, the targeted set of harmonised rules laid down in this Regulation should apply only to undertakings designated on the basis of these three objective criteria, and they should only apply to those of their core platform services that individually constitute an important gateway for business users to reach end users.
Amendment 157 #
Proposal for a regulation
Recital 23
Recital 23
(23) Providers of core platform services which meet the quantitative thresholds but are able to present sufficiently substantiated arguments to demonstrate that, in the circumstances in which the relevant core platform service operates, they do not fulfil the objective requirements for a gatekeeper, should not be designated directly, but only subject to a furtherbe subject to an assessment by the Commission whether they qualify or not as a gatekeeper in light of the argument presented. This assessment should be done within specific time-limits and not lead to undue delay inv destignationg the provider of a core platform service as a gatekeeper. The burden of adducing evidence that the presumption deriving from the fulfilment of quantitative thresholds should not apply to a specific provider should be borne by that provider. In its assessment, the Commission should take into account only the elements which directly relate to the requirements for constituting a gatekeeper, namely whether it is an important gateway which is operated by a provider with a significant impact in the internal market with an entrenched and durable position, either actual or foreseeable. Any justification on economic grounds seeking to demonstrate efficiencies deriving from a specific type of behaviour by the provider of core platform services should be discarded, as it is not relevant to the designation as a gatekeeper. The Commission should be able to take a decision by relying on the quantitative thresholds where the provider significantly obstructs the investigation by failing to comply with the investigative measures taken by the Commission.
Amendment 162 #
Proposal for a regulation
Recital 26
Recital 26
(26) A particular subset of rules should apply to those providers of core platform services that are foreseen to enjoy an entrenched and durable position in the near future for instance because the Commission has been notified of an intended concentration in line with Article 12(1) and assessed its impact on the contestability of digital markets. The same specific features of core platform services make them prone to tipping: once a service provider has obtained a certain advantage over rivals or potential challengers in terms of scale or intermediation power, its position may become unassailable and the situation may evolve to the point that it is likely to become durable and entrenched in the near future. Undertakings can try to induce this tipping and emerge as gatekeeper by using some of the unfair conditions and practices regulated in this Regulation. In such a situation, it appears appropriate to intervene before the market tips irreversibly.
Amendment 173 #
Proposal for a regulation
Recital 31
Recital 31
(31) To ensure the effectiveness of the review of gatekeeper status as well as the possibility to adjust the list of core platform services provided by a gatekeeper, the gatekeepers should inform the Commission of all of their intended and concluded acquisitions of other providers of core platform services or any other services provided within the digital sector. Such information should not only serve the review process mentioned above, regarding the status of individual gatekeepers, but will also provide information that is crucial to monitoring broader contestability trends in the digital sector and can therefore be a useful factor including for consideration in the context of the market investigations foreseen by this Regulation, as well as trigger behavioural or structural remedies on gatekeepers to restore contestability and fairness on digital markets.
Amendment 178 #
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 and irrespective of whether it is of a contractual, commercial, technical or any other nature, including through product design, structure, function or manner of operation capable of influencing users' choice or autonomy, or through agreements with third party business partners of the gatekeepers insofar as a practice corresponds to the type of practice that is the subject of one of the obligations of this Regulation.
Amendment 181 #
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 users to freely choose to opt-in to such business practices by offering a less personalised alternative. The possibility should cover all possible sources of 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.
Amendment 187 #
Proposal for a regulation
Recital 36 a (new)
Recital 36 a (new)
(36 a) Article 5(a) of this Regulation should not be understood as suggesting that platforms that are not designated as gatekeepers may freely combine personal data across services without the individual’s consent.
Amendment 188 #
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 through direct business 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 direct business channels, limiting inter- platform contestability, which in turn limits choice of alternative online intermediation channels for end users. To ensure that business users of online intermediation services of gatekeepers can freely choose alternative online intermediation services or other direct distribution 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 or less favourable display of the offers of business users in the ranking.
Amendment 192 #
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 to raise concerns about unfair behaviour by gatekeepers with any relevant administrative or other public authorities. For example, business 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 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 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 196 #
Proposal for a regulation
Recital 41
Recital 41
(41) Gatekeepers should not restrict the free choice of end users by technically preventing switching between or subscription to different software applications and services. Gatekeepers should therefore ensure a free choice irrespective of whether they are the manufacturer of any hardware by means of which such software applications or services are accessed and should not raise artificial technical barriers so as to make switching impossible or ineffective. The mere offering of a given product or service to end users, including by means of pre-installation, as well the improvement of end user offering, such as better prices or increased quality, would not in itself constitute a barrier to switching.
Amendment 202 #
Proposal for a regulation
Recital 42
Recital 42
(42) The conditions under which gatekeepers provide targeted online advertising services based on contextual information to business users including both advertisers and publishers are often non- transparent and opaque. This opacity is partly linked to the practices of a few platforms, but is also due to the sheer complexity of modern day programmatic advertising. The sector is considered to have become more non-transparent after the introduction of new privacy legislation, and is expected to become even more opaque with the announced removal of third-party cookies. This often leads to a lack of information and knowledge for advertisers and publishers about the conditions of the advertising services they purchased and undermines their ability to switch to alternative providers of online advertising services. Furthermore, the costs of online advertising are likely to be higher than they would be in a fairer, more transparent and contestable platform environment. These higher costs are likely to be reflected in the prices that end users pay for many daily products and services relying on the use of online advertising. Transparency obligations should therefore require gatekeepers to provide advertisers and publishers to whom they supply targeted online advertising services based on contextual information, when requested and to the extent possible, with information that allows both sides to understand the price paid for each of the different advertising services provided as part of the relevant advertising value chain.
Amendment 209 #
Proposal for a regulation
Recital 47
Recital 47
(47) The rules that the gatekeepers set for the distribution of software applications may in certain circumstances restrict the ability of end users to install and effectively use third party software applications or software application stores or repositories on operating systems or hardware of the relevant gatekeeper and restrict the ability of end users to access these software applications or software application stores or repositories outside the core platform services of that gatekeeper. Such restrictions may limit the ability of developers of software applications to use alternative distribution channels and the ability of end users to choose between different software applications from different distribution channels and should be prohibited as unfair and liable to weaken the contestability of core platform services. In order to ensure that third party software applications or software application stores do not endanger the integrity of the hardware or operating system provided by the gatekeeper the gatekeeper concerned may implement proportionate technical or contractual measures to achieve that goal if the gatekeeper demonstrates that such measures are necessary and justified and that there are no less restrictive means to safeguard the integrity of the hardware or operating system.
Amendment 213 #
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 control 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 on 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 online search engines results, groups of results specialised in a certain topic, displayed along with the results of an online search engine, which are considered or used by certain end users as a service distinct or additional to the online search engine. Other instances are those of 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 in results provided to a search through virtual assistants. 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 218 #
Proposal for a regulation
Recital 50
Recital 50
(50) Gatekeepers should not restrict or prevent the free choice of end users by technically preventing switching between or subscription to different software applications and services. This would allow more providers to offer their services, thereby ultimately providing greater choice to the end user. Gatekeepers should ensure a free choice irrespective of whether they are the manufacturer of any hardware by means of which such software applications or services are accessed and shall not raise artificial technical barriers so as to make switching impossible or ineffective. The mere offering of a given product or service to consumers, including by means of pre-installation, as well as the improvement of the offering to end users, such as price reductions or increased quality, should not be construed as constituting a prohibited barrier to switching.
Amendment 224 #
Proposal for a regulation
Recital 52
Recital 52
(52) Gatekeepers may also have a dual role as developers of operating systems and device manufacturers, including any technical functionality that such a device may have. For example, a gatekeeper that is a manufacturer of a device may restrict access to some of the functionalities in this device, such as near-field-communication technology and the software used to operate that technology, which may be required for the effective provision of an ancillary service by the gatekeeper as well as by any potential third party provider of such an ancillary service. Such access may equally be required by software applications related to the relevant ancillary services in order to effectively provide similar functionalities as those offered by gatekeepers. If such a dual role is used in a manner that preventsrestrictive measure is used that prevents end users or alternative providers of ancillary services or of any software applications to have access under equal conditions to the same operating system, hardware or software features that are available or used in the provision by the gatekeeper of any ancillary services, this could significantly undermine innovation by providers of such ancillary services as well as choice for end users of such ancillary services. The gatekeepers should therefore be obliged to ensure access under equal conditions to, and interoperability with, the same operating system, hardware or software features that are available or used in the provision of any ancillaryof its services by the gatekeeper.
Amendment 231 #
Proposal for a regulation
Recital 53
Recital 53
(53) The conditions under which gatekeepers provide targeted online advertising services based on contextual information to business users including both advertisers and publishers are often non- transparent and opaque. This often leads to a lack of information for advertisers and publishers about the effect of a given ad. To further enhance fairness, transparency and contestability of online advertising services designated under this Regulation as well as those that are fully integrated with other core platform services of the same provider, the designated gatekeepers should therefore provide advertisers and publishers, when requested, with free of charge access to the performance measuring tools of the gatekeeper for the purpose of targeted digital advertising based on contextual information and the information necessary for advertisers, advertising agencies acting on behalf of a company placing advertising, as well as for publishers to carry out their own independent verification of the provision of the relevant online advertising servicesinventory.
Amendment 233 #
Proposal for a regulation
Recital 54
Recital 54
(54) Gatekeepers benefit from access to vast amounts of data that they collect while providing the core platform services as well as other digital services. To ensure that gatekeepers do not undermine the contestability of core platform services as well as the innovation potential of the dynamic digital sector by restricting the ability of business users to effectively port their data, business users and end users should be granted effective and immediate access to the data they respectively provided or generated in the context of their use of the relevant core platform services of the gatekeeper, in a structured, commonly used and machine-readable format. This should apply also to any other data at different levels of aggregation that may be necessary to effectively enable such portability of end user data. It should also be ensured that business users and end users can port that data in real time effectively, such as for example through high quality application programming interfaces. Facilitating switching or multi- homing should lead, in turn, to an increased choice for business users and end users and an incentive for gatekeepers and business users to innovate.
Amendment 234 #
Proposal for a regulation
Recital 55
Recital 55
(55) Business users that use large core platform services provided by gatekeepers and end users of such business users provide and generate a vast amount of data, including data inferred from such use. In order to ensure that business users have access to the relevant data thus generated, the gatekeeper should, upon their request, allow unhindered access, free of charge, to suchaggregated, non-personal data. Such access should also be given to third parties contracted by the business user, who are acting as processors of this data for the business user. Data provided or generated by the same business users and the same end users of these business users in the context of other services provided by the same gatekeeper may be concerned where this is inextricably linked to the relevant request. To this end, a gatekeeper should not use any contractual or other restrictions to prevent business users from accessing relevant data and should enable business users to obtain consent of their end users for such data access and retrieval, where such consent is required under Regulation (EU) 2016/679 and Directive 2002/58/EC. Gatekeepers should also facilitate access to these data in real time by means of appropriate technical measures, such as for example putting in place high quality application programming interfaces.
Amendment 238 #
Proposal for a regulation
Recital 56
Recital 56
(56) The value of online search engines to their respective business users and end users increases as the total number of such users increases. Providers of online search engines collect and store aggregated datasets containing information about what users searched for, and how they interacted with, the results that they were served. Providers of online search engine services collect these data from searches undertaken on their own online search engine service and, where applicable, searches undertaken on the platforms of their downstream commercial partners. Access by gatekeepers to such ranking, query, click and view data constitutes an important barrier to entry and expansion, which undermines the contestability of online search engine services. Gatekeepers should therefore be obliged to provide access, on fair, reasonable and non-discriminatory terms, to these ranking, query, click and view data in relation to free and paid search generated by consumers on online search engine services to other providers of such services, so that these third-party providers can optimise their services and contest the relevant core platform serviceprovided that the gatekeeper is able to demonstrate that anonymised query, click and view data have been adequately tested against possible re-identification risks. Such access should also be given to third parties contracted by a search engine provider, who are acting as processors of this data for that search engine. When providing access to its search data, a gatekeeper should ensure the protection of the personal data of end users by appropriate means, without substantially degrading the quality or usefulness of the data.
Amendment 240 #
Proposal for a regulation
Recital 57
Recital 57
(57) In particular gatekeepers which provide access to software application stores online search engine and online social networking service serve as an important gateway for business users that seek to reach end users, which can result in an adverse effect on end users' right to receive and impart information and ideas, and ultimately affect media pluralism, diversity of opinion as well as competition. In view of the imbalance in bargaining power between those gatekeepers on the one hand, and business users of their software application stores, especially those that are SMEs on a given sectorial market, such as small press publishers, particularly when accessing online search engine and online social networks, on the other hand, those gatekeepers should not be allowed to impose general conditions, including pricing conditions, data usage conditions or conditions related to the licensing of rights held by the business user that would be unfair or lead to unjustified differentiation. Pricing or other general access conditions should be considered unfair if they lead to an imbalance of rights and obligations imposed on business users or confer an advantage on the gatekeeper which is disproportionate to the service provided by the gatekeeper to business users or lead to a disadvantage for business users in providing the same or similar services as the gatekeeper. The following benchmarks can serve as a yardstick to determine the fairness of general access conditions: prices charged or conditions imposed for the same or similar services by other providers of software application stores; prices charged or conditions imposed by the provider of the software application store for different related or similar services or to different types of end users; prices charged or conditions imposed by the provider of the software application store for the same service in different geographic regions; prices charged or conditions imposed by the provider of the software application store for the same service the gatekeeper offers to itself. This obligation should not establish an access right and it should be without prejudice to the ability of providers of software application stores to take the required responsibility in the fight against illegal and unwanted content as set out in Regulation [Digital Services Act]. Determining the fairness of general access conditions should lead to the opportunity to make the revenue stream of digital content providers, such as press publishers being in a dominant position on their market, more transparent, notably in terms of revenues deriving from advertisement, and in terms of distribution of appropriate shares of revenues to the authors of works incorporated in press publications. This obligation should not establish an access right and it should be without prejudice to the ability of providers of software application stores to take the required responsibility in the fight against illegal and unwanted content as set out in Regulation [Digital Services Act]. It should also be without prejudice to the ability of business that are SMEs on a given sectorial market, such as small press publishers, to offer royalty-free licenses in order to ensure access to their content, visibility on online search engines and online social networking services, and it should be without prejudice to the ability of end-users to perform acts of hyperlinking, according to Article 15(1) of Directive (EU) 2019/790.
Amendment 249 #
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 within legally binding deadlines with the gatekeeper concerned, to further 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 specified. This possibility of a regulatory dialogue should facilitate compliance by gatekeepers and expedite the correct implementation of the Regulation.
Amendment 250 #
Proposal for a regulation
Recital 58 a (new)
Recital 58 a (new)
(58 a) The Commission should also be able to swiftly adopt decisions in case of non-compliance of a gatekeeper with the obligations laid down in this Regulation. In taking such decisions, the Commission should be allowed to specify the measures that would be needed to ensure full compliance with this Regulation and restore the contestability of digital markets when it has been undermined.
Amendment 252 #
Proposal for a regulation
Recital 59
Recital 59
(59) As an additional element to ensure proportionality, gatekeepers should be given an opportunity to request the temporary suspension, to the extent necessary, of a specific obligation in exceptional circumstances that lie beyond the control of the gatekeeper, such as for example an unforeseen external shock that has temporarily eliminated a significant part of end user demand for the relevant core platform service, where compliance with a specific obligation is shown by the gatekeeper to endanger the economic viability of the Union operations of the gatekeeper concerned. The Commission should state in its decision the reasons for granting the suspension and review it on a regular basis to assess if the conditions for granting it are still viable or not.
Amendment 255 #
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. Ensuring an adequate level of transparency of profiling practices employed by gatekeepers facilitates contestability of core platform services, by putting external pressure on gatekeepers to prevent making deep consumer profiling the industry standard, 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, 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. The Commission shall develop, in consultation with the EU Data Protection Supervisor, the European Data Protection Board, civil society and experts, the standards and process of the audit. The audited description, as well as any relevant materials that is collected in the context of supervising the gatekeepers that relate to the processing of personal data, shall be shared by the Commission with any competent supervisory authority represented in the European Data Protection Board, upon its request.
Amendment 263 #
Proposal for a regulation
Recital 64
Recital 64
(64) The Commission should investigate and assess whether additional behavioural, or, where appropriate, structural remedies are justified, in order to ensure that the gatekeeper cannot frustrate the objectives of this Regulation by systematic non- compliance with one or several of the obligations laid down in this Regulation, which has further strengthened its gatekeeper position. This would be the case. In imposing these remedies, the Commission should take into consideration if the gatekeeper’s size in the internal market has further increased, economic dependency of business users and end users on the gatekeeper’s core platform services has further strengthened as their number has further increased and the gatekeeper benefits from increased entrenchment of its position. The Commission should therefore in such cases have the power to impose any remedy, whether behavioural or structural, having due regard to the principle of proportionality. Structural remedies, such as legal, functional or structural separation, including the divestiture of a business, or parts of it, should only be imposed either where there is no equally effective behavioural remedy or where any equally effective behavioural remedy would be more burdensome for the undertaking concerned than the structural remedy. Changes to the structure of an undertaking as it existed before the systematic non- compliance was established would only be proportionate where there is a substantial risk that this systematic non-compliance results from the very structure of the undertaking concerned.
Amendment 269 #
Proposal for a regulation
Recital 68
Recital 68
(68) In order to ensure effective implementation and compliance with this Regulation, the Commission should have strong investigative and enforcement powers, to allow it to investigate, enforce and monitor the rules laid down in this Regulation, while at the same time ensuring the respect for the fundamental right to be heard and to have access to the file in the context of the enforcement proceedings. The Commission should dispose of these investigative powers also for the purpose of carrying out market investigations for the purpose of updating and reviewing this Regulation. National competent authorities should assist the Commission in monitoring and enforcing obligations laid down in this Regulation by providing support and expertise to the Commission or by requesting the Commission to open a market investigation based on evidence collected.
Amendment 271 #
Proposal for a regulation
Recital 68 a (new)
Recital 68 a (new)
(68 a) In order to ensure effective enforcement and compliance with this Regulation, it should be possible for interested third-parties to lodge a complaint when there is sufficient doubt on the non-compliance of a gatekeeper with the obligations laid down in this Regulation. The Commission should decide within an appropriate timeline on further action based on the evidence submitted.
Amendment 277 #
Proposal for a regulation
Recital 72 a (new)
Recital 72 a (new)
(72 a) The Commission should be adequately staffed to ensure the successful implementation and effective enforcement of this Regulation.
Amendment 280 #
Proposal for a regulation
Recital 75
Recital 75
(75) In the context of proceedings carried out under this Regulation, the undertakings concerned should be accorded the right to be heard by the Commission and the decisions taken should be widely publicised. Natural or legal persons demonstrating sufficient interest shall also have the right to be heard. Parties that are directly affected by the obligations under Articles 5 and 6 shall be considered to have sufficient interest but also organisations representing consumers interests where the proceedings concern products or services provided to end users. While ensuring the rights to good administration and the rights of defence of the undertakings concerned, in particular, the right of access to the file and the right to be heard, it is essential that confidential information be protected. Furthermore, while respecting the confidentiality of the information, the Commission should ensure that any information relied on for the purpose of the decision is disclosed to an extent that allows the addressee of the decision to understand the facts and considerations that led up to the decision. Finally, under certain conditions certain business records, such as communication between lawyers and their clients, may be considered confidential if the relevant conditions are met.
Amendment 285 #
Proposal for a regulation
Article 1 – paragraph 1
Article 1 – paragraph 1
1. This Regulation lays down harmonised rules ensuring contestable and fair markets in the digital sector across the Union where gatekeepers are present so as to contribute to the protection of fundamental rights and the integrity of democratic processes, as well as to foster innovation, increase consumer choice and ensure higher consumer protection standards.
Amendment 288 #
Proposal for a regulation
Article 1 – paragraph 2
Article 1 – paragraph 2
2. This Regulation shall apply to core platform services provided or offered by gatekeepers to business users established in the Union or end users established or located in the Union, irrespective of the place of establishment or residence of the gatekeepers and irrespective of the law otherwise applicable to the provision of service. This Regulation respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union, in particular Articles 11, 16, 47 and 50 thereof. Accordingly, this Regulation is interpreted and applied with respect to those rights and principles.
Amendment 299 #
Proposal for a regulation
Article 1 – paragraph 6
Article 1 – paragraph 6
6. This Regulation is without prejudice to the application of Articles 101 and 102 TFEU. It is also without prejudice to the application of: national rules prohibiting anticompetitive agreements, decisions by associations of undertakings, concerted practices and abuses of dominant positions; national competition rules prohibiting other forms of unilateral conduct insofar as they are applied to undertakings other than gatekeepers or amount to imposing additional obligations on gatekeepers; Council Regulation (EC) No 139/200438 and national rules concerning merger control; Regulation (EU) 2019/1150 and Regulation (EU) …./.. of the European Parliament and of the Council39 .; Regulation (EU) 2016/67939a, Directive 2002/58/EC39b, as well as without prejudice to Union law on consumer protection and product safety; _________________ 38Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the EC Merger Regulation) (OJ L 24, 29.1.2004, p. 1). 39 Regulation (EU) …/.. of the European Parliament and of the Council – proposal on a Single Market For Digital Services (Digital Services Act) and amending Directive 2000/31/EC. 39aRegulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (OJ L 119, 4.5.2016, p. 1). 39bDirective 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications).
Amendment 301 #
Proposal for a regulation
Article 2 – paragraph 1 – point 1 a (new)
Article 2 – paragraph 1 – point 1 a (new)
(1 a) "Fair and contestable markets" means that no market participant may use his or her market position to exploit others.In the digital sector, ‘exploitative abuse’ by providers of platform services includes, but may not be limited to: a) excessive fees charged for services offered; b) excessive collection of data which is utilised to the detriment of the end user; c) abuse of network effects;
Amendment 307 #
Proposal for a regulation
Article 2 – paragraph 1 – point 2 – point g
Article 2 – paragraph 1 – point 2 – point g
(g) cloud computing services including business to business cloud;
Amendment 309 #
Proposal for a regulation
Article 2 – paragraph 1 – point 2 – point g a (new)
Article 2 – paragraph 1 – point 2 – point g a (new)
(g a) streaming services;
Amendment 310 #
(g b) embedded digital services in vehicles;
Amendment 311 #
Proposal for a regulation
Article 2 – paragraph 1 – point 2 – point g c (new)
Article 2 – paragraph 1 – point 2 – point g c (new)
(g c) web browsers;
Amendment 312 #
Proposal for a regulation
Article 2 – paragraph 1 – point 2 – point g d (new)
Article 2 – paragraph 1 – point 2 – point g d (new)
(g d) voice assistant;
Amendment 313 #
Proposal for a regulation
Article 2 – paragraph 1 – point 2 – point g e (new)
Article 2 – paragraph 1 – point 2 – point g e (new)
(g e) connected tv;
Amendment 314 #
Proposal for a regulation
Article 2 – paragraph 1 – point 2 – point g f (new)
Article 2 – paragraph 1 – point 2 – point g f (new)
(g f) collaborative economy services;
Amendment 325 #
Proposal for a regulation
Article 2 – paragraph 1 – point 2 a (new)
Article 2 – paragraph 1 – point 2 a (new)
(2 a) Non-commercial, not-for profit, collaborative projects, organised on a voluntary basis should not be considered as core services;
Amendment 334 #
(13 a) "Embedded digital services in vehicles" means software embedded in vehicles including for the purpose of gaining insights into vehicle performance and driver behaviour, or for the purpose of accessing audiovisual media content;
Amendment 335 #
Proposal for a regulation
Article 2 – paragraph 1 – point 13 b (new)
Article 2 – paragraph 1 – point 13 b (new)
(13 b) "Web browser" means a client software programme that enables a user to navigate in the World Wide Web to access and display data or to interact with content hosted on servers that are connected to this network, including standalone web browsers, as well as web browsers integrated or embedded in software;
Amendment 336 #
Proposal for a regulation
Article 2 – paragraph 1 – point 13 c (new)
Article 2 – paragraph 1 – point 13 c (new)
Amendment 337 #
Proposal for a regulation
Article 2 – paragraph 1 – point 13 d (new)
Article 2 – paragraph 1 – point 13 d (new)
(13 d) "Connected tv" means a television set connected to the internet that allows user to perform online activities including music and video streaming, or viewing of pictures;
Amendment 338 #
Proposal for a regulation
Article 2 – paragraph 1 – point 13 e (new)
Article 2 – paragraph 1 – point 13 e (new)
(13 e) "Collaborative economy" refers to business models where activities are facilitated by collaborative platforms that create an open marketplace for the temporary usage of goods or services often provided by private individuals;
Amendment 341 #
Proposal for a regulation
Article 2 – paragraph 1 – point 17 a (new)
Article 2 – paragraph 1 – point 17 a (new)
(17 a) 'Business users of small press publications’ means any natural or legal person acting in a commercial or professional capacity using core platform services for the purpose of or in the course of providing press publications that qualify as micro or small enterprises within the meaning of the Annex to Recommendation 2003/361/EC;
Amendment 353 #
Proposal for a regulation
Article 2 – paragraph 1 – point 23 a (new)
Article 2 – paragraph 1 – point 23 a (new)
(23 a) "Consent" of the data subject means any freely given, specific, informed and unambiguous indication of the data subject's wishes as defined in Article 4(11) of Regulation (EU) 2016/679.
Amendment 356 #
Proposal for a regulation
Article 2 – paragraph 1 – point 23 b (new)
Article 2 – paragraph 1 – point 23 b (new)
(23 b) "Profiling" means any form of automated processing of personal data as defined in Article 4(4) of Regulation (EU) 2016/679.
Amendment 361 #
Proposal for a regulation
Article 3 – paragraph 1 – point b
Article 3 – paragraph 1 – point b
(b) it operates a core platform service which serves as an important gateway for business users or end users to reach other end users; and
Amendment 367 #
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 threewo Member States;
Amendment 369 #
Proposal for a regulation
Article 3 – paragraph 2 – point b – introductory part
Article 3 – paragraph 2 – point b – introductory part
(b) the requirement in paragraph 1 point (b) where it provides a one or more core platform services that hascombine more than 4530 million monthly active end users established or located in the Union andor more than 10 000 yearly active business users established in the Union in the last financial year;
Amendment 379 #
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 threwithout undue delay and no later than one 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).
Amendment 392 #
Proposal for a regulation
Article 3 – paragraph 4 – subparagraph 1
Article 3 – paragraph 4 – subparagraph 1
Where the gatekeeper presents such sufficiently substantiated arguments to demonstrate that it does not satisfy the requirements of paragraph 1, the Commission shall apply paragraph 6 to assess whetssess within the time- limit set in the first subparagraph the arguments provided by a gatekeeper to demonstrate that it does not satisfy the qualitative requirements of paragraph 1. Where the criteria in paragraph 1 are metprovider of a core platform service that satisfies the quantitative thresholds of paragraph 2 fails to comply with the investigative measures ordered by the Commission and the failure persists after the provider has been invited to comply within a reasonable time-limit and to submit observations, the Commission shall be entitled to designate that provider as a gatekeeper.
Amendment 398 #
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, taking into account any intended concentration in line with Article 12(1);
Amendment 409 #
Amendment 415 #
Proposal for a regulation
Article 3 – paragraph 6 – subparagraph 4
Article 3 – paragraph 6 – subparagraph 4
Where the provider of a core platform service that does not satisfy the quantitative thresholds of paragraph 2 fails to comply with the investigative measures ordered by the Commission in a significant manner and the failure persists after the provider has been invited to comply within a reasonable time-limit and to submit observations, the Commission shall be entitled to designate that provider as a gatekeeper based on facts available.
Amendment 417 #
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 identify within the deadline set under paragraph 4 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 and end users to reach end users as referred to in paragraph 1(b).
Amendment 421 #
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 438 #
Proposal for a regulation
Article 5 – paragraph 1 – point a
Article 5 – paragraph 1 – point a
(a) refrain from combining personal data sourced from these core platform services with personal data from any other services offered by the gatekeeper or with personal data from third-party services, and from signing in end users to other services of the gatekeeper in order to combine personal data, unless the end user has been presented with the specific choice and provided consent in the sense of Regulation (EU) 2016/679. ;
Amendment 442 #
Proposal for a regulation
Article 5 – paragraph 1 – point a a (new)
Article 5 – paragraph 1 – point a a (new)
(a a) refrain from delivering and displaying advertising that is targeting or micro-targeting individuals or segments of individuals based on their behaviour, the tracking of their activities or on profiling within the meaning Article 4(4) of Regulation (EU) 2016/679;
Amendment 443 #
Proposal for a regulation
Article 5 – paragraph 1 – point a b (new)
Article 5 – paragraph 1 – point a b (new)
(a b) refrain from combining personal data for advertising purposes or purposes of behaviour prediction;
Amendment 446 #
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 direct business channels at prices or conditions that are different from those offered through the online intermediation services of the gatekeeper;
Amendment 452 #
Proposal for a regulation
Article 5 – paragraph 1 – point d
Article 5 – paragraph 1 – point d
(d) refrain from preventing or restricting business users or end user from raising issues with any relevant public authority or in front of national judiciary authority relating to any practice of gatekeepers;
Amendment 466 #
Proposal for a regulation
Article 5 – paragraph 1 – point f
Article 5 – paragraph 1 – point f
(f) refrain from requiring business users or end users to subscribe to or register with any other core platform services identified pursuant to Article 3 or which meets the thresholds in Article 3(2)(b)or any ancillary service as a condition to access, sign up or register to any of their core platform services identified pursuant to that Article;
Amendment 474 #
(g) provide advertisers and publishers to which it supplies targeted digital advertising services based on contextual information, upon their request, with information concerning the price paid by the advertiser and publisher, as well as the amount or remuneration paid to the publisher, for the publishing of a given ad and for each of the relevant advertising services provided by the gatekeeper.
Amendment 481 #
Proposal for a regulation
Article 5 – paragraph 1 – point g a (new)
Article 5 – paragraph 1 – point g a (new)
(g a) allow end users to un-install any pre-installed software applications on its operating system;
Amendment 485 #
Proposal for a regulation
Article 5 – paragraph 1 – point g b (new)
Article 5 – paragraph 1 – point g b (new)
(g b) allow end users and business users of number independent interpersonal communication services and social network services to access to and interoperate with the gatekeeper's services by providing open standards, open protocols including Application Programming Interface.
Amendment 499 #
Proposal for a regulation
Article 6 – paragraph 1 – point b
Article 6 – paragraph 1 – point b
(b) allow end users to un-install any pre-installed software applications on its core platform service without prejudice to the possibility for a gatekeeper to restrict such un-installation in relation to software applications that are essential for the functioning of the operating system or of the device and which cannot technically be offered on a standalone basis by third-parties;.
Amendment 504 #
Proposal for a regulation
Article 6 – paragraph 1 – point c
Article 6 – paragraph 1 – point c
(c) allow the installation and effective use of third party software applications or software application stores or repositories using, or interoperating with, operating systems of that gatekeeper and allow these software applications or software application stores or repositories to be accessed by means other than the core platform services of that gatekeeper. The gatekeeper shall not be prevented from taking proportionate measures to ensure that third party software applications or software application stores do not endanger the integrity of the hardware or operating system provided by the gatekeeper;
Amendment 524 #
Proposal for a regulation
Article 6 – paragraph 1 – point e
Article 6 – paragraph 1 – point e
(e) refrain from technically restricting the ability of end users to switch between and subscribe to different software applications and services to be accessed using the operating system of the gatekeeper, including as regards the choice of Internet access provider for end users;
Amendment 536 #
Proposal for a regulation
Article 6 – paragraph 1 – point f
Article 6 – paragraph 1 – point f
(f) allow business users end users and providers of ancillary services access free of charge to and interoperability with the same operating system, hardware or software features that are available or used in the provision by the gatekeeper of any ancillary services;
Amendment 542 #
Proposal for a regulation
Article 6 – paragraph 1 – point g
Article 6 – paragraph 1 – point g
(g) provide advertisers and publishers, upon their request and free of charge, with access to the performance measuring tools of the gatekeeper for the purpose of targeted digital advertising based on contextual information and the information necessary for advertisers and publishers to carry out their own independent verification of the ad inventory;
Amendment 553 #
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 or non-aggregated non- personal 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 559 #
Proposal for a regulation
Article 6 – paragraph 1 – point j
Article 6 – paragraph 1 – point j
(j) provide to any third party providers of online search engines, upon their request, with access on fair, reasonable and non-discriminatory terms to ranking, query, click and view data in relation to free and paid search generated by end users on online search engines of the gatekeeper, subject to anonymisation for the query, click and view data that constitutes personal data, provided that the gatekeeper is able to demonstrate that anonymised query, click and view data have been adequately tested against possible re- identification risks;
Amendment 564 #
Proposal for a regulation
Article 6 – paragraph 1 – point k
Article 6 – paragraph 1 – point k
(k) apply transparent, fair and non- discriminatory general conditions of access for business users to its software application store designated pursuant to Article 3 of this Regulation, and for business users which are SMEs on a given sectorial market to its online search engine and online social networking service designated pursuant to Article 3 of this Regulation.
Amendment 570 #
Proposal for a regulation
Article 6 – paragraph 1 – point k a (new)
Article 6 – paragraph 1 – point k a (new)
(k a) ensure that its services, including user interfaces, are accessible to persons with disabilities in accordance with Article 13 of Directive (EU) 2019/882. It shall also ensure that business users which rely on its core platform service to reach consumers for offering services and products in the scope of Directive (EU) 2019/882, comply with the requirements of Directive (EU) 2019/882;
Amendment 576 #
Proposal for a regulation
Article 6 – paragraph 1 – point k b (new)
Article 6 – paragraph 1 – point k b (new)
(k b) refrain from deploying subliminal techniques beyond a person`s consciousness in order to materially distort a person`s behaviour in a manner that can lead that person toward making certain choices by appealing to psychological biases.
Amendment 597 #
Proposal for a regulation
Article 7 – paragraph 2
Article 7 – paragraph 2
2. Where the Commission finds that the measures that the gatekeeper intends to implement pursuant to paragraph 1, or has implemented, do not ensure effective compliance with the relevant obligations laid down in Article 6, it mayshall by decision specify the measures that the gatekeeper concerned shall implement. The Commission shall adopt such a decision within six months from the opening of proceedings pursuant to Article 18. The decision shall be public.
Amendment 603 #
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. In case of a non-compliance decision under Article 25 resulting in fines and penalties under Article 26, the period for non-compliance shall be presumed to start from the deadline set under Article 3(8).
Amendment 605 #
Proposal for a regulation
Article 7 – paragraph 4
Article 7 – paragraph 4
4. In view of adopting the decision under paragraph 2, the Commission shall communicate its preliminary findings to the gatekeeper within three months from the opening of the proceedings. In the preliminary findings, the Commission shall explain the measures it considers to take or it considers that the provider of core platform services concerned should take in order to effectively address the preliminary findings. The Commission may consult interested third parties demonstrating sufficient interest when drafting the preliminary findings. The preliminary findings shall be public.
Amendment 612 #
Proposal for a regulation
Article 7 – paragraph 6 a (new)
Article 7 – paragraph 6 a (new)
6 a. For the purposes of specifying the obligations under Article 6(1) point (f), the Commission shall, in cooperation with the gatekeeper, business users and end user representatives, define the open technologies, open standards and open protocols, including the technical interface (Application Programming Interface), that allows end users of competing software and services and business users to dock on to the gatekeeper's core service and to interoperate with it. Any processing of personal data by the gatekeeper should comply with Regulation (EU) 2016/679, in particular Articles 6(1)(a) and 5(1)(c). Interoperability obligations shall not limit, hinder or delay the ability of intermediaries to address vulnerabilities in order to comply with an obligation under Article 18 of [NIS Directive] or Article 32(1)(c) of Regulation (EU) 2016/679.
Amendment 617 #
Proposal for a regulation
Article 7 – paragraph 7
Article 7 – paragraph 7
7. A gatekeeper may request within the time limits set under Article 3(8) 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.
Amendment 619 #
Proposal for a regulation
Article 7 – paragraph 7 a (new)
Article 7 – paragraph 7 a (new)
7 a. The powers granted to the Commission under this Article are without prejudice to the jurisdiction of national courts to ensure compliance with the obligations laid down in Articles 5 and 6 in legal proceedings between gatekeepers, business and end users, including in collective redress procedures.
Amendment 637 #
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 or adapt 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 641 #
Proposal for a regulation
Article 10 – paragraph 2 – point a
Article 10 – paragraph 2 – point a
(a) there is an imbalance of rights and obligations on business users and end users and the gatekeeper is obtaining an advantage from business users that is disproportionate to the service provided by the gatekeeper toeither on business or end users; or
Amendment 646 #
Proposal for a regulation
Article 11 – paragraph 1
Article 11 – paragraph 1
1. A gatekeeper shall ensure that the obligations of Articles 5 and 6 are fully and effectively complied with. While the obligations of Articles 5 and 6 apply in respect of core platform services designated pursuant to Article 3, their implementation shall not be undermined by any behaviour of the undertaking to which the gatekeeper belongs, regardless of whether this behaviour is of a contractual, commercial, technical or any other nature, including product design, structure, function or manner of operation capable of influencing user choice and autonomy or through agreements with third party business partners of the gatekeepers.
Amendment 648 #
Proposal for a regulation
Article 11 – paragraph 2
Article 11 – paragraph 2
2. Where consent for collecting and processing of personal data is required to ensure compliance with this Regulation, a gatekeeper shall take the necessary steps to either enable business users to directly obtain the required consent to their processing, where required under Regulation (EU) 2016/679 and Directive 2002/58/EC, or to comply with Union data protection and privacy rules and principles in other ways including by providing business users with duly anonymised data where appropriate. The gatekeeper shall not make the obtaining of this consent by the business user more burdensome than for its own services, including through product design, structure, function or manner of operation capable of influencing user choice and autonomy or through agreements with third party business partners of the gatekeepers.
Amendment 660 #
Proposal for a regulation
Article 12 – title
Article 12 – title
12 Obligation to inform aboutPrior notification of concentrations
Amendment 663 #
Proposal for a regulation
Article 12 – paragraph 1 – introductory part
Article 12 – paragraph 1 – introductory part
1. A gatekeeper shall informnotify to the Commission of any intended concentration within the meaning of Article 3 of Regulation (EC) No 139/2004 involving another provider of core platform services or of any other services provided in the digital sector irrespective of whether it is notifiable to a Union competition authority under Regulation (EC) No 139/2004 or to a competent national competition authority under national merger rules.
Amendment 668 #
Proposal for a regulation
Article 12 – paragraph 1 – subparagraph 1
Article 12 – paragraph 1 – subparagraph 1
A gatekeeper shall informnotify to the Commission of such a concentration prior to its implementation and following the conclusion of the agreement, the announcement of the public bid, or the acquisition of a controlling interest.
Amendment 672 #
Proposal for a regulation
Article 12 – paragraph 2
Article 12 – paragraph 2
2. The notification pursuant to paragraph 1 shall at least describe for the acquisition targets their EEA and worldwide annual turnover, for any relevant core platform services their respective EEA annual turnover, their number of yearly active business users and the number of monthly active end users, the categories of personal data they process, as well as the rationale of the intended concentration.
Amendment 673 #
Proposal for a regulation
Article 12 – paragraph 2 a (new)
Article 12 – paragraph 2 a (new)
2 a. The Commission shall assess the impact on any intended concentration on the contestability of markets by taking into account, inter alia, the elements laid down in Article 3(6). If, following this assessment, it is demonstrated that a concentration would weaken the contestability of markets, the Commission shall impose proportionate behavioural or structural remedies to ensure compliance with this Regulation.
Amendment 674 #
Proposal for a regulation
Article 12 – paragraph 3
Article 12 – paragraph 3
3. If, following any concentration as provided in paragraph 1, it is demonstrated that additional core platform services individually satisfy the thresholds in point (b) of Article 3(2), the gatekeeper concerned shall inform the Commission thereof within three months from the implementation of the concentration and provide the Commission with the information referred to in Article 3(2).
Amendment 679 #
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 independently audited description of any techniques for profiling of consumers that the gatekeeper applies to or across its core platform services identified pursuant to Article 3. This description shall be updated at least annually. The Commission shall develop, in consultation with the EU Data Protection Supervisor, the European Data Protection Board, civil society and experts, the standards and process of the audit. The audited description, as well as any relevant material that is collected in the context of supervising the gatekeeper that relate to the processing of personal data, shall be shared by the Commission with any competent supervisory authority represented in the European Data Protection Board, upon its request.
Amendment 687 #
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 689 #
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 sixthree 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 692 #
Proposal for a regulation
Article 15 – paragraph 3
Article 15 – paragraph 3
Amendment 696 #
Proposal for a regulation
Article 15 – paragraph 4
Article 15 – paragraph 4
4. When the Commission pursuant to Article 3(6) designates as a gatekeeper a provider of core platform services that does not yet enjoy an entrenched and durable position in its operations, but it is foreseeable that it will enjoy such a position in the near future based on a notification in line with article 12(1), it shall declare applicable to that gatekeeper only obligations laid down in Article 5(b) and Article 6(1) points (e), (f), (h) and (i) as specified in the designation decision. The Commission shall only declare applicable those obligations that are appropriate and necessary to prevent that the gatekeeper concerned achieves by unfair means an entrenched and durable position in its operations. The Commission shall review such a designation in accordance with the procedure laid down in Article 4.
Amendment 699 #
Proposal for a regulation
Article 16 – title
Article 16 – title
16 Market investigation into systematic non-compliance or concentration that weakens the contestability of markets
Amendment 702 #
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 relatior where the Commission assesses under Article 12 that any intended concentration has an adverse impact on to the characteristics under Article 3(1)ontestability of markets, 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 compliance with this Regulation. The Commission shall conclude its investigation by adopting a decision within twelve months from the opening of the market investigation.
Amendment 706 #
Proposal for a regulation
Article 16 – paragraph 2
Article 16 – paragraph 2
2. The Commission may only impose structural remedies pursuant to paragraph 1 either where there is no equally effective behavioural remedy or where any equally effective behavioural remedy would be more burdensome for the gatekeeper concerned than the structural remedy. Such structural remedies may include: (a) separation of business units; (b) unbundling and horizontal division of services; (c) changes to the gatekeeper’s financing model; (d) disgorging financial benefits to end- users.
Amendment 708 #
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, whereas soon as 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 five10 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 712 #
Proposal for a regulation
Article 16 – paragraph 4
Article 16 – paragraph 4
Amendment 714 #
Proposal for a regulation
Article 16 – paragraph 5
Article 16 – paragraph 5
5. The Commission shall communicate its objections to the gatekeeper concerned within sixthree months from the opening of the investigation. In its objections, the Commission shall explain whether it preliminarily considers that the conditions of paragraph 1 are met and which remedy or remedies it preliminarily considers necessary and proportionate.
Amendment 733 #
Proposal for a regulation
Article 22 – paragraph 1
Article 22 – paragraph 1
1. In case of urgency due to the risk of serious and irreparable damage for business users or end users of gatekeepers imminent threats to the fairness and contestability of markets or the general considerations laid out in Article 1(1), the Commission may, by decision adopt in accordance with the advisory procedure referred to in Article 32(4), order interim measures against a gatekeeper on the basis of a prima facie finding of an infringement of Articles 5 or 6.
Amendment 734 #
Proposal for a regulation
Article 22 – paragraph 2
Article 22 – paragraph 2
2. A decision pursuant to paragraph 1 may only be adopted in the context of proceedings opened in view of the possible adoption of a decision of non-compliance pursuant to Article 25(1). This decision shall apply for a specified period of time and may be renewed in so far this is necessary and appropriate.
Amendment 737 #
Proposal for a regulation
Article 23 – paragraph 2 – point a a (new)
Article 23 – paragraph 2 – point a a (new)
(a a) the measures proposed by the gatekeeper have proven ineffective to ensure compliance with the obligations of Article 5 and 6;
Amendment 740 #
Proposal for a regulation
Article 24 – paragraph 1
Article 24 – paragraph 1
1. The Commission mayshall take the necessary actions to monitor the effective implementation and compliance with the obligations laid down in Articles 5 and 6 and the decisions taken pursuant to Articles 7, 16, 22 and 23.
Amendment 750 #
Proposal for a regulation
Article 25 – paragraph 1 a (new)
Article 25 – paragraph 1 a (new)
1 a. The Commission shall adopt its decision within six months from the opening of a proceeding.
Amendment 752 #
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 eximpose any appropriate remedies to ensure effective complianations on how it plans to comply with the decisce with the obligations laid down under Articles 5 and 6 and to restore constestability and fairness on the markets in line with this Regulation.
Amendment 756 #
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. In case the non-compliance persists following a review of the measures proposed by the gatekeeper, the Commission shall propose amendments to these measures to ensure full compliance with the obligations laid down in Articles 5 and 6.
Amendment 770 #
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 777 #
Proposal for a regulation
Article 30 – paragraph 1 a (new)
Article 30 – paragraph 1 a (new)
1 a. If the Commission considers it necessary, it may also hear other natural or legal persons before taking the decisions as provided for in paragraph 1. Applications to be heard on the part of such persons shall, where they show a sufficient interest, be granted. The national competent authorities designated under Article 32a may also ask the Commission to hear other natural or legal persons with sufficient interest.
Amendment 779 #
Proposal for a regulation
Article 30 – paragraph 2
Article 30 – paragraph 2
Amendment 780 #
Proposal for a regulation
Article 30 – paragraph 3
Article 30 – paragraph 3
3. The Commission shall base its decisions only on objections on which gatekeepers, undertakings and, associations of undertakings and interested third- parties concerned have been able to comment.
Amendment 781 #
Proposal for a regulation
Article 30 a (new)
Article 30 a (new)
Article 30 a Accountability 1. The Commission shall adopt an annual report on the state of the digital economy. This report shall provide an analysis of the market position, influence and business models of the gatekeepers in the common market. The report shall include a summary of its activities, in particular supervisory measures adopted under Chapter II and IV of this Regulation as well as an assessment on whether competition rules, the provisions of this Regulation (and Regulation XX/2021 [DSA]) and current enforcement levels are adequate to address anticompetitive conduct and ensure the contestability and fairness of digital markets. This annual report shall also include a social impact assessment, which assesses new digital products and services and their potential impact on mental health, user behaviour, disinformation, polarisation and democracy. In the fulfilment of this mandate, the Commission should coordinate its supervisory and monitoring efforts with those foreseen under the Digital Services Act, so as to achieve the best possible synergies. 2. The European Parliament through its competent committees may provide an opinion on an annual basis on the report by the Commission. 3. The Commission shall reply in writing to the opinion adopted by the European Parliament and to any question addressed to it by the European Parliament or by the Council within five weeks of its receipt. 4. At the request of the European Parliament, the Commission shall participate in a hearing before the European Parliament. A hearing shall take place at least bi-annually. The respective Commissioner shall make a statement before the European Parliament and answer any questions from its members, whenever so requested. In addition, a continuous, high-level dialogue between the European Parliament and the Commission shall be ensured through exchanges which take place no less than four times a year.
Amendment 787 #
Proposal for a regulation
Article 32 a (new)
Article 32 a (new)
Article 32 a Role of national competent authorities and coordination by the Commission 1. Member State shall designate a competent authority to monitor compliance with obligations laid down in this Regulation and report regularly to the Commission on compliance with this Regulation. 2. National competent authorities shall not take decisions that run counter to a decision adopted by the Commission under this Regulation. 3. National competent authorities may provide, under the coordination of the Commission, support to a market investigation or proceeding pursuant to Article 7(2), 15, 16, 17 , 19, 20 by collecting information and providing expertise or by collecting complaints to be transferred to the Commission. 4. When collecting sufficient evidence for designation of a gatekeeper, non- compliance with the obligations laid down in Articles 5 and 6 or need to add new obligations, national competent authorities shall request the opening of a market investigation in accordance with Article 33.
Amendment 793 #
Proposal for a regulation
Article 33 – paragraph 1
Article 33 – paragraph 1
1. When threone 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 and adopt a decision. In case the Commission decides there is no grounds for opening a market investigation, it shall publish a reasoned opinion.
Amendment 797 #
Proposal for a regulation
Article 33 – paragraph 1 a (new)
Article 33 – paragraph 1 a (new)
1 a. When one or more Member States request the Commission to open an investigation pursuant to Article 16 because they consider that there are reasonable grounds to suspect that a provider of core platform services fails to comply with its obligations under Article 5 and 6, the Commission shall within four months examine whether there are reasonable grounds to open such an investigation and adopt a decision. In case the Commission decides there is no grounds for opening a market investigation, it shall publish a reasoned opinion.
Amendment 798 #
Proposal for a regulation
Article 33 – paragraph 1 b (new)
Article 33 – paragraph 1 b (new)
1 b. When one or more Member States request the Commission to open an investigation pursuant to Article 17 because they consider that there are reasonable grounds to request new services or practices to fall under the scope of this Regulation, the Commission shall within four months examine whether there are reasonable grounds to open such an investigation and adopt a decision. In case the Commission decides there is no grounds for opening a market investigation, it shall publish a reasoned opinion.
Amendment 799 #
Proposal for a regulation
Article 33 – paragraph 2
Article 33 – paragraph 2
2. Member States shall submit evidence in support of their request. Such evidence provided by competent national authorities shall in particular notably include information allowing to determine the fairness of general access conditions to core platform services, including as regards revenue streams deriving from advertisement, and the distribution of appropriate shares of revenues to third party rightholders.
Amendment 801 #
Proposal for a regulation
Article 33 – paragraph 2 a (new)
Article 33 – paragraph 2 a (new)
2 a. Third parties with a legitimate interest in representing business users or end users may provide the Commission with evidence with respect to any of the investigations triggered by paragraphs 1 to 3 of this Article. On that basis, the Commission shall within four months examine whether there are reasonable grounds to open such an investigation pursuant to Articles 15, 16 and 17.
Amendment 802 #
Proposal for a regulation
Article 33 a (new)
Article 33 a (new)
Article 33 a Right to lodge complaints 1. Third parties representing business users or end users shall be entitled to lodge complaints with regard to the non- designation of gatekeepers and non- compliance by gatekeepers with their obligations in accordance with Article 3, 5 and 6 and request the opening of a market investigation. They shall submit evidence in support of their request. 2. The Commission shall examine whether there are reasonable grounds to open such an investigation and inform the interested third parties of its decision within three months.
Amendment 804 #
Proposal for a regulation
Article 33 b (new)
Article 33 b (new)
Article 33 b Amendment to Directive (EU) 2020/1818 1. The following point is added to Annex I of Directive (EU) 2020/1828: ‘(67) Regulation (EU) 20XX/XXXX of the European Parliament and of the Council on contestable and fair markets in the digital sectors'
Amendment 805 #
Proposal for a regulation
Article 34 – paragraph 1
Article 34 – paragraph 1
1. The Commission shall publish the decisions which it takes pursuant to Articles 3, 7, 8, 9, 15, 16, 17, 18, 22, 23(1), 25, 26 and 27, 27, 33 and 33(a). Such publication shall state the names of the parties and the main content of the decision, including any penalties imposed and a report stating the grounds for such a decision.
Amendment 817 #
3. Member States shall provide any relevant information they have that the Commission may require for the purposes of drawing up the report referred to in paragraph 1. Among such information, data allowing to determine the fairness of general access conditions to platform services should be examined, including as regards revenue streams deriving from advertisement, and the distribution of appropriate shares of revenues to third party rightholders.