21 Amendments of Antonius MANDERS related to 2020/0374(COD)
Amendment 226 #
Proposal for a regulation
Recital 38
Recital 38
(38) To prevent further reinforcing their dependence on the core platform services of gatekeepers, the business users of these gatekeepers should be free in promoting and choosing the distribution channel they consider most appropriate to interact with any end users that these business users have already acquired through core platform services provided by the gatekeeper or through other channels. An acquired end user is an end user who has already entered into a contractual relationship with the business user. Such contractual relationships may be on either a paid or a free basis (e.g., free trials, free service tiers)and may have been entered into either on the gatekeeper’s core platform service or through any other channel. Conversely, end users should also be free to choose offers of such business users and to enter into contracts with them either through core platform services of the gatekeeper, if applicable, or from a direct distribution channel of the business user or another indirect distribution channel such business user may use. This should apply to the promotion of offers and conclusion of contracts between business users and end users. Moreover, the ability of end users to freely acquire content, subscriptions, features or other items outside the core platform services of the gatekeeper should not be undermined or restricted. In particular, it should be avoided that gatekeepers restrict end users from access to and use of such services via a software application running on their core platform service. For example, subscribers to online content purchased outside a software application download or purchased from a software application store should not be prevented from accessing such online content on a software application on the gatekeeper’s core platform service simply because it was purchased outside such software application or software application store.
Amendment 264 #
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 or with which they have entered into cooperation agreements or which they prefer due to other reasons unrelated to their service’s actual relevance, which frequently leads to conflicts of interest. This can include the situation whereby a gatekeeper offers its own online intermediation services through an online search engine. When offering those products or services on the core platform service, gatekeepers can reserve a better position to their own offering, in terms of ranking, as opposed to the products of third parties also operating onusing that core platform service. This can occur for instance with products or services, including other core platform services, which are ranked inwithin or along 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 armay be considered or used by certain end users as a service distinct or additional to the online search engine. Such preferential or embedded display of a separate online intermediation service shall constitute a favouring irrespective of whether the information or results within the favoured groups of specialised results may also be provided by competing services and are as such ranked in a non-discriminatory way. 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. 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 274 #
Proposal for a regulation
Recital 49
Recital 49
(49) In such situations of a conflict of interest, the gatekeeper should not partly or entirely embed such distinct product or service in online search engines results or groups of results. However, it may rank its products or services, provided that it does not engage in any form of differentiated or preferentialted treatment in ranking on the core platform service, whether through legal, commercial or technical means, in favour of products or services it offers itself or through a business user which it either controls. To ensure that this obligation is effective, it should also be ensured that the conditions that apply to such ranking are also generally fair or cooperates with or prefers for any other reason. In particular, where a gatekeeper’s online search engine results page includes the ranking of separate products or services, third parties shall be afforded equal opportunity to rank their product or service in the same formatand on the same terms and conditions. Should this take place in exchange for remuneration, to avoid any conflict of interest, the gatekeeper’s separate product or service shall be treated as a separate commercial entity and shall be commercially viable as as tand-alone service, offered outside of the gatekeeper’s core platform service. To ensure that this obligation is effective, it should also be ensured that the conditions that apply to such ranking are also generally fair and the gatekeeper's own products or services do not have more access to information about the ranking or any other competition-relevant aspects than products or services of third parties. Ranking should in this context cover all forms of relative prominence, including among others order, graphic display, rating, linking or voice results. To ensure that this obligation is effective and cannot be circumvented it should also apply to any measure that may have an equivalent effect to the differentiated or preferential treatment in ranking. Such an equivalent effect can for instance be achieved by ad formats that are used by users in a similar manner to the gatekeeper's or third parties' online intermediation services, or that benefit the gatekeeper in a similar manner to the preferential treatment in ranking itself (e.g., in terms of financial gains, user access/traffic or data access). The guidelines adopted pursuant to Article 5 of Regulation (EU) 2019/1150 should also facilitate the implementation and enforcement of this obligation.34 _________________ 34Commission Notice: Guidelines on ranking transparency pursuant to Regulation (EU) 2019/1150 of the European Parliament and of the Council (OJ C 424, 8.12.2020, p. 1).
Amendment 309 #
Proposal for a regulation
Recital 57
Recital 57
(57) In particular gGatekeepers which provide access to software application storcore platform services serve as an important gateway for business users that seek to reach end users. In view of the imbalance in bargaining power between those gatekeepers and business users of their software application storcore platform services, 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 or treatment 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 or treatment conditions: prices charged or conditions imposed for the same or similar services by other providers of software application storcore platform services; prices charged or conditions imposed by the provider of the software application storecore platform services 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 storecore platform services for the same service in different geographic regions; prices charged or conditions imposed by the provider of the software application storecore platform services 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 storcore platform services to take the required responsibility in the fight against illegal and unwanted content as set out in Regulation [Digital Services Act].
Amendment 471 #
Proposal for a regulation
Article 2 – paragraph 1 – point 17
Article 2 – paragraph 1 – point 17
(17) ‘Business user’ 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 goods or services to end users;
Amendment 479 #
Proposal for a regulation
Article 2 – paragraph 1 – point 18 a (new)
Article 2 – paragraph 1 – point 18 a (new)
(18 a) ‘Search results’ is any information in any format, including texts, graphics, voice or other output, returned in response and related to a written or oral search query, irrespective of whether the information is an organic result, a paid result, adirect answer or any product, service orinformation offered in connection with, or displayed along with, or partly orentirely embedded in, the organic results;
Amendment 500 #
Proposal for a regulation
Article 3 – paragraph 1 – point c a (new)
Article 3 – paragraph 1 – point c a (new)
Amendment 521 #
Proposal for a regulation
Article 3 – paragraph 2 – point c a (new)
Article 3 – paragraph 2 – point c a (new)
(c a) the criterion in paragraph 1(c a) if it meets the thresholds in points (a) and (b) and point (c) and there is a multi- platform integration with at least two core platform services of the provider or a dual role by the provider;
Amendment 625 #
Proposal for a regulation
Article 5 – paragraph 1 – point c
Article 5 – paragraph 1 – point c
(c) allow business users to promote any offers within the core platform service to end users acquired via the core platform service or through other channels, 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 697 #
Proposal for a regulation
Article 5 – paragraph 1 – point g a (new)
Article 5 – paragraph 1 – point g a (new)
(g a) refrain from setting their core platform services as default;
Amendment 739 #
Proposal for a regulation
Article 6 – paragraph 1 – point d
Article 6 – paragraph 1 – point d
(d) refrain from treating more favourably in ranking or display 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 third party and apply fair and non-discriminatory conditions to such ranking; where a gatekeeper’s online search engine results page includes the display of separate products or services, third parties shall be afforded equal opportunity to provide this product or services in exchange for remuneration; to avoid any conflicts of interest, the gatekeeper’s product or service shall be treated as a separate commercial entity and shall be commercially viable as a stand-alone service; exclusionary agreements between gatekeepers should be forbidden; if the gatekeeper has a monopoly, it should be closely observed by and under the scrutiny of the European Network of Digital Regulators (Art. 31a);
Amendment 808 #
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; forbid constraints on publishers’ access to dominant advertising platforms and search feeds;
Amendment 812 #
Proposal for a regulation
Article 6 – paragraph 1 – point k
Article 6 – paragraph 1 – point k
(k) apply fair and non-discriminatory general conditions of access and treatment for business users to its software application store designated pursuant to Article 3 of this Regulationcore platform services, in particular to its software application store, online search engine, browser, operational system, single sign- on system, online payment service and to its online social networking service designated pursuant to Article 3 of this Regulation. In all of these cases, the freedom of choice, interoperability and the acceptance of certificates must be guaranteed.
Amendment 818 #
Proposal for a regulation
Article 6 – paragraph 1 – point k a (new)
Article 6 – paragraph 1 – point k a (new)
(k a) participate in a binding arbitration procedure when there is no agreement in a dispute about the fairness of a price or remuneration for the use of copyright or similar protected content. The procedure about the issue of remuneration and price should start, if the parties have not reached an agreement about terms for resolving the issue of remuneration and pricing within 3 months after one party has asked to start a negotiation or about one party’s refusal to negotiate. In the case of a dispute with press publishers, all involved stakeholders need to be considered. In such a case, media companies are allowed to participate in collective bargaining. If any stakeholder is left out of the negotiations by the gatekeeper, this invalidates all other agreements. If gatekeepers decide to withdraw particular selected news services from the EU internal market due to content disputes, they need to withdraw their entire news service.
Amendment 839 #
Proposal for a regulation
Article 7 – title
Article 7 – title
Compliance with obligations for gatekeepers and regulatory dialogue
Amendment 841 #
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 consumers as well as business users. The gatekeeper shall ensure that these measures are implemented in compliance with Regulation (EU) 2016/679 and, Directive 2002/58/EC, the Regulation on a Single Market for Digital Services, and with legislation on cyber security, consumer protection and product safety, as well as intellectual property rights and Directive (EU) 2016/943.
Amendment 851 #
Proposal for a regulation
Article 7 – paragraph 2
Article 7 – paragraph 2
2. Where the Commission findconsiders that the measures that the gatekeeper intends to implement pursuant to paragraph 1, or has implemented, domay not ensure effective compliance with the relevant obligations laid down in Article 6, it may by decisions 5 and 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.
Amendment 1012 #
Proposal for a regulation
Article 16 – paragraph 1
Article 16 – paragraph 1
1. Where the market investigation shows that a gatekeeper has systematically infringed the obligations laid down in Articles 5 and 6 and has further strengthened or extended its gatekeeper position in relation to the characteristics under Article 3(1), the Commission may 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 Regulaeffective. The measures must be aimed at bringing the infringement found to an end, depriving the gatekeeper of the benefits derived from the infringement and ensuring that the infringement does not have restrictive effects on competition. The Commission shall conclude its investigation by adopting a decision within twelve months from the opening of the market investigation.
Amendment 1140 #
Proposal for a regulation
Article 31 a (new)
Article 31 a (new)
Article 31 a European Network of Digital Regulators The Commission shall establish a European Network of Digital Regulators in the form of an Expert Group, consisting of the representatives of competent competition authorities of all the Member States and the Commission.
Amendment 1143 #
Proposal for a regulation
Article 31 b (new)
Article 31 b (new)
Article 31 b Tasks of the European Network of Digital Regulators The expert group shall have the following tasks: (a) to facilitate cooperation and coordination between the Commission and Member States in their enforcement actions by promoting the exchange of information and best practices about their work and decision-making principles and practices with the aim of developing a consistent regulatory approach and avoiding conflicting decisions; (b) to assist the Commission by means of advice, opinions, analysis and expertise in monitoring compliance with this Regulation; (c) to make recommendations to the Commission on the need to conduct market investigations under Articles 14, 15, Article 16 and 17; (d) to make recommendations to the Commission on the need to update the obligations of the Regulation under Articles 5 and 6; (e) to provide advice and expertise to the Commission in the case of acquisitions of market competitors; (f) to provide advice and expertise to the Commission in the preparation of legislative proposals and policy initiatives including under Article 38; (g) to provide advice and expertise to the Commission in the preparation of delegated acts; (h) where necessary, to provide advice and expertise in the early preparation of implementing acts, before submission to the committee in accordance with Regulation (EU) N°182/2011; (i) to maintain a publicly accessible electronic register of gatekeeper designation decisions adopted by the Commission under Article 3; and (j) at the request of the Commission, to provide technical advice and expertise before the adoption of a specification decision under Article 7.
Amendment 1150 #
Proposal for a regulation
Article 32 a (new)
Article 32 a (new)
Article 32 a 1. The Commission and the competition authorities of the Member States shall cooperate closely to ensure that markets in which gatekeepers operate are and remain contestable and fair. 2. The Commission shall provide the competition authorities of the Member States with a copy of the main documents it has collected on the application of Articles 3, 4, 7 to10, 15, 16, 18 and 22 to 27. The Commission shall, upon request, transmit to the competition authority of a Member State a copy of other existing documents necessary for the assessment of the case. 3. For the purposes of cooperation in the application of this Regulation and Articles 101 and 102of the Treaty on the Functioning of the European Union, the Commission and the competition authorities of the Member States shall have the power to communicate to each other factual or legal circumstances, including confidential information, and to use such information as evidence. The information exchanged shall be used as evidence only for the purpose of applying Article 101 or 102 of the Treaty on the Functioning of the European Union and in relation to an object of investigation under this Regulation. 4. The competition authorities of the Member States may consult the Commission on any case involving the application of the competition rules of Union law to gatekeepers.