50 Amendments of Marc TARABELLA related to 2018/0112(COD)
Amendment 68 #
Proposal for a regulation
Recital 3 a (new)
Recital 3 a (new)
(3a) In the same vein, operating system providers (including device manufacturers when they customise the operating system developed by a third party) now play a critical role as an intermediary between content providers and consumers. The main purpose of an operating system is to control the basic functions of a device and enable the user to make use of such a device and run application software on it. However, beyond the strict core functionalities of a device, operating systems are usually proposed with a set of accessory by- default application software in order to offer the consumer a turnkey device. This can shape deeply the choice of applications used by consumers later on since it can create a status quo bias. Moreover, operating systems also handle the way those applications can be run on the device (e.g. shutting down software application programs running in the background when they wear down the battery, managing the memory allocations for these software application programs, etc.). As such, operating systems also act as a key platform between application developers and consumers. As operating system providers are often vertically integrated with application developers, issues can arise notably regarding the possibility of a differentiated treatment between native and third-party applications; this differentiated treatment can for example be of a technical or a contractual nature. Increasing transparency would help prevent unfair commercial behaviours.
Amendment 77 #
Proposal for a regulation
Recital 5
Recital 5
(5) Online intermediation services, operating systems and online search engines, as well as the commercial transactions facilitated by those services, have an intrinsic cross- border potential and are of particular importance for the proper functioning of the Union’s internal market in today’s economy. The potentially unfair and harmful trading practices of certain providers of those services in respect of business users and corporate website users hamper the full realisation of that potential and negatively affect the proper functioning of the internal market. In addition, the full realisation of that potential is hampered, and the proper functioning of the internal market is negatively affected, by diverging laws of certain Member States which, with a varying degree of effectiveness, regulate those services, while other Member States are considering adopting such laws.
Amendment 81 #
Proposal for a regulation
Recital 5
Recital 5
(5) Online intermediation services and online search engines, as well as the commercial transactions facilitated by those services, have an intrinsic cross- border potential and are of particular importance for the proper functioning of the Union’s internal market in today’s economy. The potentially unfair and harmful trading practices of certain providers of those services in respect of business users and corporate website users hamper the full realisation of that potential and negatively affect the proper functioning of the internal market. In addition, the full realisation of that potential is hampered, and the proper functioning of the internal market is negatively affected, by diverging laws of certain Member States which, with a varying degree of effectiveness, regulate those services, while other Member States are considering adopting such laws.
Amendment 91 #
Proposal for a regulation
Recital 7
Recital 7
(7) Since online intermediation services, operating systems and online search engines typically have a global dimension, this Regulation should apply to providers of those services regardless of whether they are established in a Member State or outside the Union, provided that two cumulative conditions are met. Firstly, the business users or corporate website users should be established in the Union. Secondly, the business users or corporate website users should, through the provision of those services, offer their goods or services to consumers located in the Union at least for part of the transaction. Such consumers should be located in the Union, but do not need to have their place of residence in the Union nor have the nationality of any Member State. Accordingly, this Regulation should not apply where the business users or corporate websites users are not established in the Union or where they are established in the Union but where they use online intermediation services or online search engines to offer goods or services exclusively to consumers located outside the Union or to persons who are not consumers.
Amendment 103 #
Proposal for a regulation
Recital 9
Recital 9
(9) Examples of online intermediation services covered by this Regulation should consequently include online e-commerce market places, including collaborative ones on which business users are active, online software applications services such as application stores, and online social media services. Services that partially operate offline, for example for the purpose of data consumption saving, should also be understood as online intermediation services; as the local storage and the computing power of devices increase rapidly, such a flexibility in assessing the online character of a service is crucial to limit the risk of bypassing the present proposition of regulation. However, this Regulation should not apply to online advertising serving tools or online advertising exchanges which are not provided with the aim of facilitating the initiation of direct transactions and which do not involve a contractual relationship with consumers. This Regulation should also not apply to online payment services, since they do not themselves meet the applicable requirements but are rather inherently auxiliary to the transaction for the supply of goods and services to the consumers concerned.
Amendment 118 #
Proposal for a regulation
Recital 11
Recital 11
(11) For reasons of consistency, the definition of online search engine used in this Regulation should be aligned with the definition used in Directive (EU) 2016/1148 of the European Parliament and of the Council21. Services that partially operate offline, for example for the purpose of data consumption saving, should also be understood as online search engines; as the local storage and the computing power of devices increase rapidly, such a flexibility in assessing the online character of a search engine is crucial to limit the risk of by passing the present proposition of regulation. _________________ 21 Directive (EU) 2016/1148 of the European Parliament and of the Council concerning measures for a high common level of security of network and information systems across the Union (OJ L 194, 19.7.2016, p. 1).
Amendment 171 #
Proposal for a regulation
Recital 18 a (new)
Recital 18 a (new)
(18a) Providers of online search engines often allow the ranking of search results to be influenced against forms of remuneration paid by corporate website users. Clear details regarding such practice should be made publicly available for corporate website users and consumers to understand the effects of remuneration on ranking. Nevertheless, search results whose placement in the ranking has been influenced by forms of payment should be clearly flagged, making them easily distinguishable from other search results where remuneration was not paid.
Amendment 191 #
Proposal for a regulation
Recital 20 a (new)
Recital 20 a (new)
(20a) Business users should be able to transfer their online reputation, such as ratings and reviews accumulated with one provider of online intermediation services, to alternative providers of similar services with a comparable system of online reputation. The portability of business users’ reputation will enable for greater competition between providers, giving access to a wider choice to both business users and consumers alike.
Amendment 228 #
1. This Regulation lays down rules to ensure that business users of online intermediation services and operating systems and corporate website users in relation to online search engines are granted appropriate transparency and effective redress possibilities.
Amendment 246 #
Proposal for a regulation
Article 2 – paragraph 1 – point 2 – introductory part
Article 2 – paragraph 1 – point 2 – introductory part
(2) ‘online intermediation services’ means services even partially off-line, which meet all of the following requirements:
Amendment 259 #
Proposal for a regulation
Article 2 – paragraph 1 – point 3 a (new)
Article 2 – paragraph 1 – point 3 a (new)
(3a) device ‘operating system’ means system software products that control the basic functions of a device and enable the user to make use of such a device and run application software on it.
Amendment 262 #
Proposal for a regulation
Article 2 – paragraph 1 – point 3 b (new)
Article 2 – paragraph 1 – point 3 b (new)
Amendment 267 #
Proposal for a regulation
Article 2 – paragraph 1 – point 5
Article 2 – paragraph 1 – point 5
(5) ‘online search engine’ means a digital service that allows users to perform searches of, in principle, all websites or websites in a particular language on the basis of a query on any subject in the form of a keyword, phrase, vocal request or other input, and returns linksresults in any format in which information related to the requested content can be found;
Amendment 284 #
Proposal for a regulation
Article 3 – paragraph 1 – introductory part
Article 3 – paragraph 1 – introductory part
1. Providers of online intermediation services and providers of operating systems shall ensure that their terms and conditions:
Amendment 298 #
Proposal for a regulation
Article 3 – paragraph 1 – point b
Article 3 – paragraph 1 – point b
(b) are easily available for business users at all stages of their commercial relationship with the provider of online intermediation services or the provider of operating system, including in the pre- contractual stage;
Amendment 309 #
Proposal for a regulation
Article 3 – paragraph 1 – point c
Article 3 – paragraph 1 – point c
(c) set out the objective grounds for decisions to suspend or terminate, in whole or in part, the provision of their online intermediation services or their operating system to business users.
Amendment 322 #
Proposal for a regulation
Article 3 – paragraph 3 – subparagraph 1
Article 3 – paragraph 3 – subparagraph 1
Providers of online intermediation services and providers of operating systems shall notify to the business users concerned any envisaged modification of their terms and conditions.
Amendment 338 #
Proposal for a regulation
Article 3 – paragraph 4
Article 3 – paragraph 4
4. Modifications to terms and conditions implemented by a provider of online intermediation services or by a provider of operating systems contrary to the provisions of paragraph 3 shall be null and void.
Amendment 344 #
Proposal for a regulation
Article 3 – paragraph 5
Article 3 – paragraph 5
5. Paragraph 3 shall not apply where a provider of online intermediation services or by a provider of operating systems is subject to a legal obligation which requires it to modify its terms and conditions in a manner which does not allow it to respect the notice period referred to in the second subparagraph of paragraph 3.
Amendment 411 #
Proposal for a regulation
Article 5 – paragraph 2
Article 5 – paragraph 2
2. Providers of online search engines shall set out for corporate website users the main parameters determining ranking and the reasons for the relative importance of those main parameters as opposed to other parameters, by providing an easily and publicly available description, drafted in clear and unambiguous language on the online search engines of those providers. They shall keep that description up to date.
Amendment 415 #
Proposal for a regulation
Article 5 – paragraph 2 a (new)
Article 5 – paragraph 2 a (new)
2a. Individual parameters determining ranking shall be applied in a non- discriminatory manner.
Amendment 416 #
Proposal for a regulation
Article 5 – paragraph 2 b (new)
Article 5 – paragraph 2 b (new)
2b. Where those main parameters include the possibility to influence ranking against any direct or indirect remuneration paid by corporate website users to the provider of online search engine concerned, that provider of online search engine shall also include in its terms and conditions a description of those possibilities and of the effects of such remuneration on ranking. In any case, providers of online search engines shall not influence ranking of search results against any direct or indirect remuneration paid by corporate website users, unless they mark search results where remuneration was paid in a clearly identifiable manner.
Amendment 444 #
Proposal for a regulation
Article 6 – paragraph 1
Article 6 – paragraph 1
1. Providers of online intermediation services and providers of operating systems shall include in their terms and conditions a description of any differentiated treatment which they give, or may give, in relation to, on the one hand, goods or services offered to consumers through those online intermediation services or operating systems by either that provider itself or any business users which that provider controls and, on the other hand, other business users.
Amendment 456 #
Proposal for a regulation
Article 6 – paragraph 2 – introductory part
Article 6 – paragraph 2 – introductory part
2. The description referred to in paragraph 1 shall cover at least, where applicable, any differentiated treatment through specific measures taken by, or the behaviour of, the provider of the online intermediation services or the provider of the operating system relating to any of the following:
Amendment 460 #
Proposal for a regulation
Article 6 – paragraph 2 – point a
Article 6 – paragraph 2 – point a
(a) access that the provider, or that the business users which that provider controls, may have to any personal data or other data, or both, which business users or consumers provide for the use of the online intermediation services or of the operating system concerned or which are generated through the provision of those services;
Amendment 467 #
Proposal for a regulation
Article 6 – paragraph 2 – point c
Article 6 – paragraph 2 – point c
(c) any direct or indirect remuneration charged for the use of the online intermediation services or the use of the operating system concerned;
Amendment 472 #
Proposal for a regulation
Article 6 – paragraph 2 – point d
Article 6 – paragraph 2 – point d
(d) access to, or conditions for use of, services that are directly connected or ancillary to the online intermediation services or of the operating system concerned.
Amendment 483 #
Proposal for a regulation
Article 7 – paragraph 1
Article 7 – paragraph 1
1. Providers of online intermediation services or online search engines shall include in their terms and conditions a description of the technical and contractual access, or absence thereof, of business users and corporate website users to any personal data or other data, or both, which business users, corporate website users or consumers provide for the use of the search engines or the online intermediation services concerned or which are generated through the provision of those services.
Amendment 495 #
Proposal for a regulation
Article 7 – paragraph 2 – introductory part
Article 7 – paragraph 2 – introductory part
2. Through the description referred to in paragraph 1, providers of online intermediation services or search engines shall adequately inform business users at least of the following:
Amendment 498 #
Proposal for a regulation
Article 7 – paragraph 2 – point a
Article 7 – paragraph 2 – point a
(a) whether the provider of online intermediation services or of search engine has access to personal data or other data, or both, which business users, corporate websites or consumers provide for the use of those services or which are generated through the provision of those services, and if so, to which categories of such data and under what conditions;
Amendment 505 #
Proposal for a regulation
Article 7 – paragraph 2 – point b
Article 7 – paragraph 2 – point b
(b) whether a business user has access to personal data or other data, or both, provided by that business user in connection to his or her use of the online intermediation services or online search engine concerned or generated through the provision of those services to that business user and the consumers of his or her goods or services, and if so, to which categories of such data and under what conditions;
Amendment 509 #
Proposal for a regulation
Article 7 – paragraph 2 – point c
Article 7 – paragraph 2 – point c
(c) whether, in addition to point (b), a business user or corporate website has access to personal data or other data, or both, including in aggregated form, provided by or generated through the provision of the online intermediation services or online search engine to all of the business users and consumers thereof, and if so, to which categories of such data and under what conditions.
Amendment 518 #
Proposal for a regulation
Article 7 – paragraph 2 a (new)
Article 7 – paragraph 2 a (new)
2a. Business users shall have the right to receive ratings, reviews or any other data concerning themselves that they have accumulated on online intermediation services, regardless of whether they have provided such data to the provider of online intermediation services, in a structured, commonly used and machine- readable format. They shall have the right to transfer such data to another provider of similar online intermediation services with a comparable system of ratings and reviews. Where technically feasible, business users shall have the right to have such data transmitted directly from one provider of online intermediation services to another.
Amendment 520 #
Proposal for a regulation
Article 7 – paragraph 2 a (new)
Article 7 – paragraph 2 a (new)
2a. Notwithstanding the provisions of paragraphs 1 and 2, and with due respect of Regulation2016/679 (GDPR), providers of online intermediated services, facilitating the contracting between the business users and the consumers, shall transmit the relevant consumers data generated through the transaction to the business users or the corporate website users, if the consumer gives explicit consent.
Amendment 535 #
Proposal for a regulation
Article 8 – paragraph 1
Article 8 – paragraph 1
1. Where, in the provision of their services, providers of online intermediation services or providers of operating systems restrict the ability of business users to offer the same goods and services to consumers under different conditions through other means than through those services, they shall include grounds for that restriction in their terms and conditions and make those grounds easily available to the public. Those grounds shall include the main economic, commercial or legal considerations for those restrictions.
Amendment 549 #
Proposal for a regulation
Article 9 – paragraph 1 – subparagraph 1
Article 9 – paragraph 1 – subparagraph 1
Providers of online intermediation services, providers of online search engines, and providers of operating systems shall provide for an internal system for handling the complaints of business users.
Amendment 563 #
Proposal for a regulation
Article 9 – paragraph 2 – introductory part
Article 9 – paragraph 2 – introductory part
2. As part of their internal complaint- handling system, providers of online intermediation services, providers of online search engines, and providers of operating systems shall:
Amendment 572 #
Proposal for a regulation
Article 9 – paragraph 3
Article 9 – paragraph 3
3. Providers of online intermediation services, providers of online search engines, and providers of operating systems shall include in their terms and conditions all relevant information relating to the access to and functioning of their internal complaint-handling system.
Amendment 582 #
Proposal for a regulation
Article 9 – paragraph 4 – subparagraph 1
Article 9 – paragraph 4 – subparagraph 1
Providers of online intermediation services, providers of online search engines, and providers of operating systems shall annually establish and make easily available to the public information on the functioning and effectiveness of their internal complaint-handling system.
Amendment 592 #
Proposal for a regulation
Article 9 – paragraph 5
Article 9 – paragraph 5
5. The provisions of this Article shall not apply to providers of online intermediation services, providers of online search engines, and providers of operating systems that are small enterprises within the meaning of Article 2 (2) of the Annex to Recommendation 2003/361/EC29 . _________________ 29 Commission Recommendation 2003/361/EC of 6 May 2003 concerning the definition of micro, small and medium- sized enterprises (OJ L 124, 20.5/2003, p. 36).
Amendment 607 #
Proposal for a regulation
Article 10 – paragraph 1 – subparagraph 1
Article 10 – paragraph 1 – subparagraph 1
Providers of online intermediation services, providers of online search engines, and providers of operating systems shall identify in their terms and conditions one or more mediators with which they are willing to engage to attempt to reach an agreement with business users on the settlement, out of court, of any disputes between the provider and the business user arising in relation to the provision of the online intermediation services concerned, including complaints that could not be resolved by means of the internal complaint-handling system referred to in Article 9.
Amendment 610 #
Proposal for a regulation
Article 10 – paragraph 1 – subparagraph 2
Article 10 – paragraph 1 – subparagraph 2
Providers of online intermediation services, providers of online search engines, and providers of operating systems may only identify mediators providing their mediation services from a location outside the Union where it is ensured that the business users concerned are not effectively deprived of the benefit of any legal safeguards laid down in Union law or the law of the Member States as a consequence of the mediators providing those services from outside the Union.
Amendment 613 #
Proposal for a regulation
Article 10 – paragraph 2 – point b
Article 10 – paragraph 2 – point b
(b) their mediation services are affordable for an average business user of the online intermediation services , providers of online search engines, and providers of operating systems concerned;
Amendment 616 #
Proposal for a regulation
Article 10 – paragraph 2 – point c
Article 10 – paragraph 2 – point c
(c) they are capable of providing their mediation services in the language of the terms and conditions which govern the contractual relationship between the provider of online intermediation services, providers of online search engines, and providers of operating systems and the business user concerned;
Amendment 618 #
Proposal for a regulation
Article 10 – paragraph 3
Article 10 – paragraph 3
3. Providers of online intermediation services, providers of online search engines, and providers of operating systems shall engage in good faith in any attempt to reach an agreement through the mediation of any of the mediators which they identified in accordance with paragraph 1, with a view to reaching an agreement on the settlement of the dispute.
Amendment 634 #
Proposal for a regulation
Article 10 – paragraph 4
Article 10 – paragraph 4
4. Providers of online intermediation services, providers of online search engines, and providers of operating systems shall bear a reasonable proportion of the total costs of mediation in each individual case. A reasonable proportion of those total costs shall be determined, on the basis of a suggestion by the mediator, by taking into account all relevant elements of the case at hand, in particular the relative merits of the claims of the parties to the dispute, the conduct of the parties, as well as the size and financial strength of the parties relative to one another. However, providers of online intermediation services, providers of online search engines, and providers of operating systems shall in any case bear at least half of the total cost.
Amendment 639 #
Proposal for a regulation
Article 10 – paragraph 5
Article 10 – paragraph 5
5. Any attempt to reach an agreement through mediation on the settlement of a dispute in accordance with this Article shall not affect the rights of the providers of the online intermediation services, online search engines or operating systems and of the business users concerned to initiate judicial proceedings at any time during or after the mediation process.
Amendment 652 #
Proposal for a regulation
Article 11 – paragraph 1
Article 11 – paragraph 1
The Commission shall encourage providers of online intermediation services, providers of online search engines, and providers of operating systems as well as organisations and associations representing them to individually or jointly set up one or more organisations providing mediation services which meet the requirements specified in Article 10(2), for the specific purpose of facilitating the out-of-court settlement of disputes with business users arising in relation to the provision of those services, taking particular account of the cross- border nature of online intermediation services.
Amendment 658 #
Proposal for a regulation
Article 12 – paragraph 1
Article 12 – paragraph 1
1. Organisations and associations that have a legitimate interest in representing business users or in representing corporate website users, as well as public bodies set up in Member States, shall have the right to take action before national courts in the Union, in accordance with the rules of the law of the Member State where the action is brought, to stop or prohibit any non- compliance by providers of online intermediation services or by providers of online search engines or by providers of operating systems with the relevant requirements laid down in this Regulation.
Amendment 692 #
Proposal for a regulation
Article 12 – paragraph 3
Article 12 – paragraph 3
3. The right referred to in paragraph 1 shall be without prejudice to the rights of business users and corporate website users to individually take action before competent national courts, in accordance with the rules of the law of the Member State where the action is brought, to address any non-compliance by providers of online intermediation services, by providers of online search engines, or by providers of operating systems with the relevant requirements laid down in this Regulation.