34 Amendments of Frances FITZGERALD related to 2020/0374(COD)
Amendment 180 #
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 quesCommission should identify which obligations should apply to any practices by a gatekeeper, irrespective of its form and irrespective of whether it is of a contractual, commercial, technical each individual core platform service identified as an impor tany other nature,t gateway insofar as aits practices corresponds to the type of practice that is the subject ofto any one of these obligations of this Regulation.
Amendment 208 #
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 or removing any pre-installed software applications on its core platform service and thereby favour their own software applications. This obligation should not apply to applications which are necessary for functionality.
Amendment 225 #
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 prevents alternative providers of ancillary services or of 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 ancillary services by the gatekeeper. Providing such access should not compromise efforts of the gatekeeper to protect user safety, data protection or the functionality of the hardware.
Amendment 247 #
Proposal for a regulation
Recital 58
Recital 58
(58) The objectives of this Regulation are to ensure contestability and fairness for the digital sector in general and for business users and end users of core platform services provided by gatekeepers in particular, with a view to promoting innovation, high quality of digital products and services, fair and competitive prices, as well as a high quality and choice for end users in the digital sector. 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 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 264 #
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 Regulation or whether it should adopt a delegated act updating such obligations.
Amendment 266 #
Proposal for a regulation
Recital 66
Recital 66
(66) In the event that gatekeepers engage in behaviour that is unfair or that limits the contestability of the core platform services that are already designated under this Regulation but without these behaviours being explicitly covered by the obligations, the Commission should be able to update this Regulation through delegated actsislative acts in accordance with Article 294 of the TFEU. Such updates by way of delegated act should be subject to the same investigatory standard and therefore following a market investigation. The Commission should also apply a predefined standard in identifying such behaviours. This legal standard should ensure that the type of obligations that gatekeepers may at any time face under this Regulation are sufficiently predictable.
Amendment 275 #
Proposal for a regulation
Recital 72
Recital 72
(72) The Commission should be able to take the necessary actions to monitor the effective implementation and compliance with the obligations laid down in this Regulation. Such actions should include the ability of the Commission to appoint independent external experts, such as and auditors to assist the Commission in this process, including where applicable from competent independent authorities, such as data or consumer protection authorities. Considering the large number of business and end users of gatekeepers’ core platform services resulting in exponentially larger number of non- compliance practices, cases and scenarios, a reporting mechanism for business and end users would facilitate the Commission in the swift indentification of systemic non- compliance by gatekeepers. Such a reporting practice would additionally reduce the need for formal litigation practices and thus reduce the burden in national and EU courts of justice.
Amendment 352 #
(23 a) "Provider of a core platform service" means an entity or entities or part thereof, irrespective of their legal form, which provide any of the core platform services listed in paragraph 2 to business users or end users.
Amendment 387 #
Proposal for a regulation
Article 3 – paragraph 4 – introductory part
Article 3 – paragraph 4 – introductory part
4. The Commission shall, without undue delay and at the latest 60 days after receiving the complete information referred to in paragraph 3, shall adopt a decision to designate the provider of core platform services that meets all the thresholds of paragraph 2 as a gatekeeper, unless that provider, with its notification, presents sufficiently substantiated arguments to demonstrate that, in the circumstances in which the relevant core platform service operates, and taking into account the elements listed in paragraph 6, the provider does not satisfy the requirements of paragraph 1.
Amendment 396 #
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 their share of the market relevant to their core platform services;
Amendment 399 #
Proposal for a regulation
Article 3 – paragraph 6 – subparagraph 1 – point b
Article 3 – paragraph 6 – subparagraph 1 – point b
(b) the number of business users depending on the core platform service to reach end users and the number of end users and the availability of alternative ways for business users to reach end- users;
Amendment 400 #
Proposal for a regulation
Article 3 – paragraph 6 – subparagraph 1 – point e
Article 3 – paragraph 6 – subparagraph 1 – point e
(e) business user or end user lock-in and their ability to user similar services simultaneously;
Amendment 405 #
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 including whether there are other gatekeepers identified pursuant to paragraph 2 within the same undertaking.
Amendment 416 #
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 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). For each core platform service identified, the Commission shall specify which of the obligations outlined in Articles 5 and 6 the gatekeeper must comply with.
Amendment 449 #
Proposal for a regulation
Article 5 – paragraph 1 – point c
Article 5 – paragraph 1 – point c
(c) allow business users to promote offers to end users acquired via the core platform service, and to conclude contracts with these end users regardless of whether for that purpose they use the core platform services of the gatekeeper or not, and allow end users to access and use, through the core platform services of the gatekeeper, content, subscriptions, features or other items by using the software application of a business user, where these items have been acquired by the end users from the relevant business user without using the core platform services of the gatekeeper;
Amendment 451 #
Proposal for a regulation
Article 5 – paragraph 1 – point d
Article 5 – paragraph 1 – point d
(d) refrain from preventing or restricting business users from raising issues with any relevant public authority relating to any practice of gatekeepers, including by contractual obligations between the gatekeeper and the third party business users;
Amendment 459 #
Proposal for a regulation
Article 5 – paragraph 1 – point e
Article 5 – paragraph 1 – point e
(e) refrain from requiring business users to use, offer or interoperate with an identification, payment or any other ancillary service of the gatekeeper in the context of services offered by the business users using the core platform services of that gatekeeper;
Amendment 501 #
Proposal for a regulation
Article 6 – paragraph 1 – point b
Article 6 – paragraph 1 – point b
(b) allow end users to un-install or remove any pre-installed software applications on its core platform service without prejudice to the possibility for a gatekeeper to restrict such un-installation or removal 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 507 #
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 using, or interoperating with, operating systems of that gatekeeper and allow these software applications or software application stores to be accessed by means other than the core platform services of that gatekeeper. T unless the gatekeeper shall not be prevented from taking proportionate measures to ensure that third party software applications or software application stores do not endangecan demonstrate that doing so would undermine or jeopardise user safety, data protection, or the integrity of the hardware or operating system provided by the gatekeeper;
Amendment 514 #
Proposal for a regulation
Article 6 – paragraph 1 – point d
Article 6 – paragraph 1 – point d
(d) refrain from treating, without justification, more favourably in ranking services and products offered by the gatekeeper itself or by any third party belonging to the same undertaking compared to similar services or products of a third party and apply fair and non- discriminatory conditions to such ranking;
Amendment 522 #
Proposal for a regulation
Article 6 – paragraph 1 – point e
Article 6 – paragraph 1 – point e
(e) refrain from technically, commercially or operationally 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 531 #
Proposal for a regulation
Article 6 – paragraph 1 – point f
Article 6 – paragraph 1 – point f
(f) allow business users and providers of ancillary services access 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; unless the gatekeeper is in a position to demonstrate that doing so would compromise their efforts to protect user safety, data protection, or the integrity of their hardware;
Amendment 561 #
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 datadue safeguards to protect user safety, privacy, trade secrets and intellectual property;
Amendment 590 #
Proposal for a regulation
Article 7 – paragraph 1
Article 7 – paragraph 1
1. The measures implemented by the gatekeeper to ensure compliance with the obligations laid down in Articles 5 and 6 shall be effective in achieving the objective of the relevant obligation and the objectives of this Regulation, namely safeguarding contestability and fairness for business users as well as end users. 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 595 #
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 shall open proceedings pursuant to Article 18 where it may, by decision, following regulatory dialogue to facilitate compliance by the gatekeeper and expedite the implementation of this Regulation, 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. During the regulatory dialogue as prescribed in this paragraph, the gatekeeper may provide a reasoned submission to explain in particular why the measures it intends to implement or has implemented shall be effective in achieving the objectives of this Regulation pursuant to paragraph 1 and the relevant obligation, and the conditions in Article 7(5) and, where appropriate, Article 7(6).
Amendment 601 #
Proposal for a regulation
Article 7 – paragraph 2
Article 7 – paragraph 2
2. Where the Commission finds that the measures that the gatekeeper intends tohas implemented pursuant to paragraph 1, or has implemented, do not ensure effective compliance with the relevant obligations laid down in Article 6, it may 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.
Amendment 607 #
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 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, taking into account the issues discussed during the regulatory dialogue.
Amendment 622 #
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: (a) compliance with these obligations is technically not feasible; (b) deviation from these obligations is objectively justified in order to ensure the integrity and security of the gatekeepers core platform services; (c) a deviation from these obligations is necessary to ensure data security and compliance with privacy and date protection rules;and (d) 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.
Amendment 631 #
Proposal for a regulation
Article 9 – paragraph 2 – introductory part
Article 9 – paragraph 2 – introductory part
2. An exemption pursuant to paragraph 1 may only be granted on grounds ofpublic interest grounds including:
Amendment 633 #
Proposal for a regulation
Article 9 – paragraph 2 a (new)
Article 9 – paragraph 2 a (new)
2 a. An exemption pursuant to paragraph 1 may also be granted to enable the gatekeeper to: (a) ensure data security; (b) protect trade secrets;or (c) achieve compliance with any other EU legislation.
Amendment 647 #
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 through by any form of behavioural techniques and interface design that would undermine the effectiveness of Articles 5 and 6.
Amendment 656 #
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 makeobstruct or make discriminatory the exercise of those rights or choices unduly difficult.
Amendment 816 #
Proposal for a regulation
Article 38 – paragraph 2
Article 38 – paragraph 2
2. The evaluations shall: (a) establish whether additionalit is required to modify, add or remove rules, including regarding the list of core platform services laid down in point 2 of Article 2, the obligations laid down in Articles 5 and 6 and their enforcement, may be required to ensure that digital markets across the Union are contestable and fair; (b) consider relevant legal, regulatory and enforcement developments in digital markets; (c) the existence of countervailing benefits from the obligations laid down in Articles 5 and 6. Following the evaluations, the Commission shall take appropriate measures, which may include legislative proposals.
Amendment 818 #
Proposal for a regulation
Article 38 – paragraph 3 a (new)
Article 38 – paragraph 3 a (new)
3 a. The Commission shall report on the implementation of this Regulation in its annual report on Competition Policy.