Activities of Petra KAMMEREVERT related to 2020/0374(COD)
Plenary speeches (2)
Digital Markets Act (debate)
Digital Services Act - Digital Markets Act (debate)
Opinions (1)
OPINION on the proposal for a regulation of the European Parliament and of the Council on contestable and fair markets in the digital sector (Digital Markets Act)
Amendments (173)
Amendment 83 #
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 controls with which they cooperate or with which they have entered into particular 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 onintermediated via 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 the search results of online search engines results, groups of results specialised in a certain topic, displayed along with the results of an online search engine, which armay be considered or used by certain end users as a service distinct or additional to the online search engine. Other instances are those ofSuch preferential or embedded display 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. Inadmissible preferencing is also taking place in software applications which are distributed through software application stores, or products or services that are given prominence and display in the newsfeed of a social network, or products or services ranked in search results or displayed on an online marketplace, or products or services to which users are directed following a voice request by an end user to a digital voice assistant. In those circumstances, the gatekeeper is in a dual- role position as intermediary for third party providers and as direct provider of products or services of the gatekeeper. Consequently, these gatekeepers have the ability to undermine directly the contestability for those products or services on these core platform services, to the detriment of business users which are not controlled by the gatekeeper.
Amendment 86 #
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 doesn’t engage in any form of differentiated or preferential 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 format and 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 a stand-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, as well as that business users do have the same access as the gatekeeper to any information resulting from the ranking or any other competition-relevant aspects related to their respective products or services. 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. In particular, and with regard to digital voice assistants, it should be ensured that the ranking of products and services and thus the, typically single, response to a user’s voice request, should accurately and impartially reflect that request. 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 128 #
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. They serve as essential facilities for the digital economy by providing access to critical infrastructures.
Amendment 134 #
Proposal for a regulation
Recital 4
Recital 4
(4) The combination of those features of gatekeepers is likely to lead in many cases to serious imbalances in bargaining power and, consequently, to unfair practices and conditions for business users as well as end users of core platform services provided by gatekeepers, to the detriment of prices, quality, privacy and security standards, choice and innovation therein.
Amendment 137 #
Proposal for a regulation
Recital 6
Recital 6
(6) Gatekeepers have a significant impact on the internal market, providing gateways for a large number of business users, to reach end users, everywhere in the Union and on different markets. The adverse impact of unfair practices on the internal market and particularly weak contestability of core platform services, including their negative societal and economic implications, have led national legislators and sectoral regulators to act. A number of national regulatory solutions at national level have already been adopted or proposed to address unfair practices and the contestability of digital services or at least with regard to some of them. This has created a risk of divergent regulatory solutions and thereby fragmentation of the internal market, thus raising the risk of increased compliance costs due to different sets of national regulatory requirements.
Amendment 141 #
Proposal for a regulation
Recital 8
Recital 8
(8) By approximating diverging national laws, obstacles to the freedom to provide and receive services, including retail services, within the internal market should be eliminated. A targeted set of harmonised mandatory rulelegal obligations should therefore be established at Union level to ensure contestable and fair digital markets featuring the presence of gatekeepers within the internal market.
Amendment 142 #
(8) By approximating diverging national laws, obstacles to the freedom to provide and receive services, including retail services, within the internal market should be eliminated. A targeted set of harmonised mandatory rulelegal obligations should therefore be established at Union level to ensure contestable and fair digital markets featuring the presence of gatekeepers within the internal market.
Amendment 144 #
Proposal for a regulation
Recital 9
Recital 9
(9) A fragmentation of the internal market can only be effectively averted if Member States are prevented from applying national rules which are specific to the types of undertakings and services covered by this Regulation. At the same timeThis Regulation does not override national competition laws or render them unlawful nor does it preclude Member States from imposing identical, similar, stricter or different obligations on undertakings, in order to pursue legitimate public interests, in compliance with Union law. Those legitimate public interests are inter alia consumer protection, the fight against acts of unfair competition and the protection and fostering of media freedom and pluralism of media or opinion as well as diversity in cultures or in languages. In particular the right of the Member States to impose obligations on the undertakings referred to as "gatekeepers" within the meaning of this Regulation, but also on other undertakings, which serve to enforce legitimate public interests, remains unaffected, since this Regulation aims at complementing the enforcement of competition law, it should be specified that this Regulation is without prejudice to Articles 101 and 102 TFEU, to the corresponding national competition rules and to other national competition rulesprovisions at national level as well as other provisions at national level regarding unilateral behaviour that are, based on an individualised assessment of market positions and behaviour, including its likely effects and the precise scope of the prohibited behaviour, and which provide for the possibility of undertakings to make efficiency and objective justification arguments for the behaviour in question. However, the application of the latter rules should not affect the obligations imposed on gatekeepers under this Regulation and their uniform and effective application in the internal market.
Amendment 149 #
Proposal for a regulation
Recital 9
Recital 9
(9) A fragmentation of the internal market can only be effectively averted if Member States are prevented from applying national rules which are specific to the types of undertakings and services covered by this Regulation. At the same time, since this Regulation aims at complementing the enforcement of competition law, it should be specified that this Regulation is without prejudice to Articles 101 and 102 TFEU, to the corresponding national competition rules and to other national competition rules regarding unilateral behaviour that are based on an individualised assessment of market positions and behaviour, including its likely effects and the precise scope of the prohibited behaviour, and which provide for the possibility of undertakings to make efficiency and objective justification arguments for the behaviour in question. However, the application of the latter rules should not affect the obligations and prohibitions imposed on gatekeepers under this Regulation and their uniform and effective application in the internal market.
Amendment 150 #
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, and to protect the respective rights of business users and end users, 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 to their application.
Amendment 154 #
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 , 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 thatrules at national level adopted in accordance with 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). 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 155 #
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 only on 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 157 #
Proposal for a regulation
Article 5 – paragraph 1 – point e
Article 5 – paragraph 1 – point e
(e) refrain from requiring business users or end users to use, offer or interoperate with an identificationy service of the gatekeeper in the context of services offered by the business users using the core platform services of that gatekeeper;
Amendment 165 #
Proposal for a regulation
Recital 14
Recital 14
(14) A number of other ancillary services, such as identification or payment services (which depending on their function can act either as core service or as ancillary service) and technical services which support the provision of payment services, may be provided by gatekeepers together with their core platform services. As gatekeepers frequently provide the portfolio of their services as part of an integrated ecosystem to which third-party providers of such ancillary services do not have access, at least not subject to equal conditions, and can link the access to the core platform service to take-up of one or more ancillary services, the gatekeepers are likely to have an increased ability and incentive to leverage their gatekeeper power from their core platform services to these ancillary services, to the detriment of choice and contestability of these services.
Amendment 170 #
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, 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 ofthat fulfill these three objective criteria or are designated on the basis of those, 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 171 #
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 andor 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, that such concerns arise. Accordingly, the targeted set of harmonised rules laid down in this Regulation should apply ononly apply 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 173 #
Proposal for a regulation
Recital 16
Recital 16
(16) In order to ensure the effective application of this Regulation to providers of core platform services which are most likely to satisfy these objective requirements, and where unfair conduct weakening contestability is most prevalent and impactful, the Commission should be able to directly designate as gatekeepers those providers of core platform services which meet certain quantitative thresholds. Such undertakings should in any event be subject to a fast designation process which should be automatically deemed to be gatekeepers. Since the quantitative threshould start upon the entry into force of this Regulations are objective requirements, no further designation by the Commission is necessary.
Amendment 173 #
Proposal for a regulation
Article 6 – paragraph 1 – point d
Article 6 – paragraph 1 – point d
(d) refrain from embedding or treating more favourably in ranking and other settings, as well as in access to and conditions for the use of services, functionalities or technical interfaces, 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 othirder partyies and apply fair, reasonable and non-discriminatory conditions to such prankctices or settings;
Amendment 176 #
Proposal for a regulation
Recital 17
Recital 17
(17) A very significant turnover in the Union and the provision of a core platform service in at least three Member States constitute compelling indications that the provider of a core platform service has a significant impact on the internal market. This is equally true where a provider of a core platform service in at least three Member States has a very significant market capitalisation or equivalent fair market value. Therefore, a provider of a core platform service should be presumed to have a significant impact on the internal market where it provides a core platform service in at least three Member States and where either its group turnover realised in the EEA is equal to or exceeds a specific, high threshold or the market capitalisation of the group is equal to or exceeds a certain high absolute value. For providers of core platform services that belong to undertakings that are not publicly listed, the equivalent fair market value above a certain high absolute value should be referred to. The Commission shcould use its power to adopt delegated acts in order to develop an objective methodology to calculate that value. A high EEA group turnover in conjunction with the threshold of users in the Union of core platform services reflects a relatively strong ability to monetise these users. A high market capitalisation relative to the same threshold number of users in the Union reflects a relatively significant potential to monetise these users in the near future. This monetisation potential in turn reflects in principle the gateway position of the undertakings concerned. Both indicators are in addition reflective of their financial capacity, including their ability to leverage their access to financial markets to reinforce their position. This may for example happen where this superior access is used to acquire other undertakings, which ability has in turn been shown to have potential negative effects on innovation. Market capitalisation can also be reflective of the expected future position and effect on the internal market of the providers concerned, notwithstanding a potentially relatively low current turnover. The market capitalisation value can be based on a level that reflects the average market capitalisation of the largest publicly listed undertakings in the Union over an appropriate period.
Amendment 177 #
Proposal for a regulation
Recital 17
Recital 17
(17) A very significant turnover in the Union and the provision of a core platform service in at least three Member States constitute compelling indications that the provider of a core platform service has a significant impact on the internal market or a significant sector thereof. This is equally true where a provider of a core platform service in at least three Member States has a very significant market capitalisation or equivalent fair market value. Therefore, a provider of a core platform service should be presudeemed to have a significant impact on the internal market or a significant sector thereof where it provides a core platform service in at least three Member States and where either its group turnover realised in the EEA is equal to or exceeds a specific, high threshold or the market capitalisation of the group is equal to or exceeds a certain high absolute value. For providers of core platform services that belong to undertakings that are not publicly listed, the equivalent fair market value above a certain high absolute value should be referred to. The Commission should use its power to adopt delegated acts to develop an objective methodology to calculate that value. A high EEA group turnover in conjunction with the threshold of users in the Union of core platform services reflects a relatively strong ability to monetise these users. A high market capitalisation relative to the same threshold number of users in the Union reflects a relatively significant potential to monetise these users in the near future. This monetisation potential in turn reflects in principle the gateway position of the undertakings concerned. Both indicators are in addition reflective of their financial capacity, including their ability to leverage their access to financial markets to reinforce their position. This may for example happen where this superior access is used to acquire other undertakings, which ability has in turn been shown to have potential negative effects on innovation. Market capitalisation can also be reflective of the expected future position and effect on the internal market of the providers concerned, notwithstanding a potentially relatively low current turnover. The market capitalisation value can be based on a level that reflects the average market capitalisation of the largest publicly listed undertakings in the Union over an appropriate period.
Amendment 178 #
Proposal for a regulation
Recital 18
Recital 18
Amendment 181 #
Proposal for a regulation
Recital 21
Recital 21
(21) An entrenched and durable position in its operations or the foreseeability of achieving such a position future occurs notably where the contestability of the position of the provider of the core platform service is limited. This is likely to be the case where that provider has provided a core platform service in at least three Member States to a very high number of business users and end users during at least threewo years.
Amendment 184 #
Proposal for a regulation
Recital 23
Recital 23
Amendment 187 #
Proposal for a regulation
Recital 24
Recital 24
(24) Provision should also be made for the assessment of the gatekeeper role of providers of core platform services which do not satisfy all of the quantitative thresholds, in light of the overall objective requirements that they have a significant impact on the internal market, act as an important gateway for business users to reach end users and benefit from a durable and entrenched position in their operations or it is foreseeable that it will do so in the near future as well as in light of their market share in the relevant market.
Amendment 193 #
Proposal for a regulation
Recital 29
Recital 29
(29) Designated gGatekeepers should comply with the obligations laid down in this Regulation in respect of each of the core platform services listed in the relevant designation decision. The mandatory rules should apply taking into account the conglomerate position of gatekeepers, where applicable. Furthermore, implementing measures that the Commission may by decision impose on the gatekeeper following a regulatory dialogue should be designed in an effective manner, having regard to the features of core platform services as well as possible circumvention risks and in compliance with the principle of proportionality and the fundamental rights of the undertakings concerned as well as those of third parties. The regulatory dialogue should by no means constitute grounds to assume that the gatekeeper may invoke an efficiency defence.
Amendment 194 #
Proposal for a regulation
Recital 30
Recital 30
(30) The very rapidly changing and complex technological nature of core platform services requires a regular review of the status of gatekeepers, including those that are foreseen to enjoy a durable and entrenched position in their operations in the near future. To provide all of the market participants, including the gatekeepers, with the required certainty as to the applicable legal obligations, a time limit for such regular reviews is necessary. It is also important to conduct such reviews on a regular basis and at least every two years. four years for designated gatekeepers to assess whether they continue to satisfy the requirements, and at least every year to assess whether new providers of core platform services satisfy those requirements.
Amendment 195 #
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 for consideration in the context of the market investigations foreseen by this Regulation. To safeguard the fairness and contestability of core platform services provided by gatekeepers, any concentration by undertakings that have been considered as gatekeepers for more than 2 years shall be forbidden by default, unless the specific concentration is exceptionally compatible with the internal market because it does not impede fair competition. The burden of proof for compatibility with the internal market lies on the gatekeeper.
Amendment 201 #
Proposal for a regulation
Recital 32
Recital 32
(32) To safeguard the fairness and contestability of core platform services provided by gatekeepers, it is necessary to provide in a clear and unambiguous manner for a set of harmonised obligations with regard to those services. Such rules are needed to address the risk of harmful effects of unfair practices imposed by gatekeepers, to the benefit of the business environment in the services concerned, to the benefit of users and ultimately to the benefit of society as a whole. Given the fast-moving and dynamic nature of digital markets, and the substantial economic power of gatekeepers, it is important that these obligations are effectively applied without being circumvented. To that end, the obligations in question should apply to any practices by a gatekeeper, irrespective of its form, including through the use of dark patterns or manipulative choice architecture, and irrespective of whether it is of a contractual, commercial, technical or any other nature, insofar as a practice corresponds to the type of practice that is the subject of one of the obligations of this Regulation.
Amendment 205 #
Proposal for a regulation
Recital 33
Recital 33
(33) The obligations laid down in this Regulation are limited to what is necessary and justified to address the unfairness of the identified practices by gatekeepers and to ensure contestability in relation to core platform services provided by gatekeepers. Therefore, the obligations should correspond to those practices that are considered unfair by taking into account the features of the digital sector and where experience gained, for example in the enforcementhey can have a negative direct impact ofn the EU competition rules, shows that they have a particularly negative direct impact on the business users and end userbusiness users and end users. A general fairness clause allows for the necessary flexibility and ensures future-proofness. In addition, it is necessary to provide for the possibility of a regulatory dialogue with gatekeepers to tailor those obligations that are likely to require specific implementing measures in order to ensure their effectiveness and proportionality. The obligations should only be updated after a thorough investigation on the nature and impact of specific practices that may be newly identified, following an in-depth investigation, as unfair or limiting contestability in the same manner as the unfair practices laid down in this Regulation while potentially escaping the scope of the current set of obligations.
Amendment 223 #
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 servicedistribution channels. Such restrictions have a significant deterrent effect on the business users of gatekeepers in terms of their use of alternative online intermediation servicedistribution channels, limiting inter- platform contestability, which in turn limits choice of alternative online intermediadistribution channels for end users. To ensure that business users of online intermediation services of gatekeepers can freely choose alternative online intermediation services and differentiate the conditions under which they offer their products or services to their end users, it should not be accepbe prohibited that gatekeepers limit business users from choosing to differentiate commercial conditions, including price. Such a restricprohibition should apply to any measure with equivalent effect, such as for example increased commission rates or, de-listing or less favourable ranking of the offers of business users.
Amendment 232 #
Proposal for a regulation
Recital 39
Recital 39
(39) To safeguard a fair commercial environment and protect the contestability of the digital sector it is important to safeguard the right of business users and end users to raise concerns about unfair behaviour by gatekeepers with any relevant administrative or other public authorities. For example, business users or end users may want to complain about different types of unfair practices, such as discriminatory access conditions, unjustified closing of business user accounts or unclear grounds for product de-listings. Any practice that would in any way inhibit or hinder such a possibility of raising concerns or seeking available redress, for instance by means of confidentiality clauses in agreements or other written terms, should therefore be prohibited. This should be without prejudice to the right of business users or end users and gatekeepers to lay down in their agreements the terms of use including the use of lawful complaints-handling mechanisms, including any use of alternative dispute resolution mechanisms or of the jurisdiction of specific courts in compliance with respective Union and national law This should therefore also be without prejudice to the role gatekeepers play in the fight against illegal content online.
Amendment 241 #
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 or through product design. 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 hamper or 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 250 #
(43) A gatekeeper may in certain circumstances have a dual role as a provider of core platform services whereby it provides a core platform service to its business users, while also competing with those same business users in the provision of the same or similar services or products to the same end users. In these circumstances, a gatekeeper may take advantage of its dual role to use data, generated from transactions by its business users on the core platform, for the purpose of its own services that offer similar services to that of its business users. This may be the case, for instance, where a gatekeeper provides an online marketplace or app store to business users, and at the same time offer services as an online retailer or provider of application software against those business users. To prevent gatekeepers from unfairly benefitting from their dual role, it should be ensured that they refrain from using any aggregated or non-aggregated data, which may include anonymised and personal data that is not publicly available to offer similar services to those of their business users. This obligation should apply to the gatekeeper as a whole, including but not limited to its business unit that competes with the business users of a core platform service.
Amendment 252 #
Proposal for a regulation
Recital 46
Recital 46
(46) A gatekeeper may use different means to favour its own services or products on its core platform service, to the detriment of the same or similar services that end users could obtain through third parties. This may for instance be the case where certain software applications or services are pre-installed by a gatekeeper. To enable end user choice, gatekeepers should not prevent end users from un- installing any pre-installed-install software applications on its core platform service and thereby favour their own software applications as this inhibits user choice. The only exception shall be pre-installations that are essential for the functioning of the operating system or of the device and which cannot be technically offered on as standalone basis by third-parties.
Amendment 262 #
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 business users and end users to install, set as defaults and effectively use third party software applications or software application stores 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 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. The end user shall be required to decide which software application or software application store should become the default. 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 265 #
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 controls with which they cooperate or with which they have entered into particular 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 onintermediated via 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 the search results of online search engines results, groups of results specialised in a certain topic, displayed along with the results of an online search engine, which armay be considered or used by certain end users as a service distinct or additional to the online search engine. Other instances are those ofSuch preferential or embedded display 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. Inadmissible preferencing is also taking place in software applications which are distributed through software application stores, or products or services that are given prominence and display in the newsfeed of a social network, or products or services ranked in search results or displayed on an online marketplace, or products or services to which users are directed following a voice request by an end user to a digital voice assistant. In those circumstances, the gatekeeper is in a dual- role position as intermediary for third party providers and as direct provider of products or services of the gatekeeper. Consequently, these gatekeepers have the ability to undermine directly the contestability for those products or services on these core platform services, to the detriment of business users which are not controlled by the gatekeeper.
Amendment 272 #
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 doesn’t engage in any form of differentiated or preferential 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 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 format and 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 a stand-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, as well as that business users do have the same access as the gatekeeper to any information resulting from the ranking or any other competition-relevant aspects related to their respective products or services. 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. In particular, and with regard to digital voice assistants, it should be ensured that the ranking of products and services and thus the, typically single, response to a user’s voice request, should accurately and impartially reflect that request. 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 282 #
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 288 #
Proposal for a regulation
Recital 51
Recital 51
(51) Gatekeepers can hamper the ability of end users to access online content and services including software applications. Therefore, rules should be established to ensure that the rights of end users to access an open internet are not compromised by the conduct of gatekeepers. Gatekeepers can also technically limit the ability of end users to effectively switch between different Internet access service providers, in particular through their control over operating systems or hardware. This distorts the level playing field for Internet access services and ultimately harms end users. It should therefore be ensured that gatekeepers do not unduly restrict end users in choosing their Internet access service provider.
Amendment 290 #
Proposal for a regulation
Recital 51 a (new)
Recital 51 a (new)
(51 a) Interoperability can have a direct positive impact on contestability, fairness on the market and consumer welfare. Thus, interoperability which requires platforms to open up their access point interfaces (APIs) to potential competitors on the market would significantly reduce barriers to entry, as it would grant competitors access to existing networks and allow them to participate therein. This would as well allow competing platforms to offer their internal systems to users whose data lives elsewhere thereby enabling them to chose an equivalent consumer friendly alternative and at the same time enhance contestability.
Amendment 294 #
Proposal for a regulation
Recital 53
Recital 53
(53) The conditions under which gatekeepers provide online advertising services 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 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 services. This should include data relating to all parameters used by gatekeepers or services belonging to the same undertaking in the context of an advertising intermediation services in order to determine the outcome of such intermediation and corresponding prices for advertisements or charges for any intermediation service provided either on the buy-side or the sell-side.
Amendment 302 #
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 and anonymised 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 services. 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 310 #
Proposal for a regulation
Recital 57
Recital 57
(57) In particular gatekeepers which provide access to software application storeCore platform services offered by gatekeepers 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 stores, those gatekeepers should not be allowed to impose general conditions, including pricing conditions, 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 storesthe relevant core platform service; prices charged or conditions imposed by the provider of the software application storegatekeeper 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 storegatekeeper 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]. This obligation shall ensure that access conditions to core platform services are also fair and non-discriminatory for end- users.
Amendment 316 #
Proposal for a regulation
Recital 58
Recital 58
(58) To ensure the effectiveness of the obligations laid down by this Regulation, while also making certain that these obligations are limited to what is necessary to ensure contestability and tackling the harmful effects of the unfair behaviour by gatekeepers, it is important to clearly define and circumscribe them so as to allow the gatekeeper to immediately comply with them, in full respect of Regulation (EU) 2016/679 and Directive 2002/58/EC, consumer protection, cyber security and product safety. The gatekeepers should ensure the compliance with this Regulation by design. The necessary measures should therefore be as much as possible and where relevant integrated into the technological design used by the gatekeepers. However, it may in certain cases be appropriate for the Commission, following a dialogue with the gatekeeper concerned, to furthertechnically specify some of the measures that the gatekeeper concerned should adopt in order to effectively comply with those obligations that are susceptible of being further specifiedtechnically implement those obligations. This possibility of a regulatory dialogue should facilitate compliance by gatekeepers and expedite the correct implementation of the Regulation and should by no means constitute grounds to assume thatthe gatekeeper may invoke an efficiency defence. In order ensure the exante effects on fairness and contestability of markets and for the sake of legal certainty, it is essential that the Commission takes compliance decisions within legally binding deadlines.
Amendment 326 #
Proposal for a regulation
Recital 60
Recital 60
(60) In exceptional circumstances justified on the limited grounds of public morality, public health or public security, the Commission should be able to decide that the obligation concerned does not apply to a specific core platform service. Affecting these public interests can indicate that the cost to society as a whole of enforcing a certain obligation would in a certain exceptional case be too high and thus disproportionate. The regulatory dialogue to facilitate compliance with limited and duly justified suspension and exemption possibilities should ensure the proportionality of the obligations in this Regulation without undermining the intended ex ante effects on fairness and contestability.
Amendment 332 #
Proposal for a regulation
Recital 62
Recital 62
(62) In order to ensure the full and lasting achievement of the objectives of this Regulation, the Commission should be able to assess whether a provider of core platform services should be designated as a gatekeeper without meeting the quantitative thresholds laid down in this Regulation; whether systematic non- compliance by a gatekeeper warrants imposing additional remedies; and whether the list of obligations addressing unfair practices by gatekeepers should be reviewed and additional practices that are similarly unfair and limiting the contestability of digital markets should be identified. Such assessment should be based on market investigations to be run in an appropriate timeframe, by using clear procedures and legally binding deadlines, in order to support the ex ante effect of this Regulation on contestability and fairness in the digital sector, and to provide the requisite degree of legal certainty.
Amendment 339 #
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 of systematic buy of growing companies, 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. The Commission should be entitled to require changes to the imposed remedies if, following an investigation, it finds that the remedies are not effective to ensure compliance by the gatekeeper with its obligations laid down in Articles 5 or 6.
Amendment 342 #
Proposal for a regulation
Recital 65
Recital 65
(65) The services and practices in core platform services and markets in which these intervene can change quickly and to a significant extent. To ensure that this Regulation remains up to date and constitutes an effective and holistic regulatory response to the problems posed by gatekeepers, it is important to provide for a regular review of the lists of core platform services as well as of the obligations provided for in this Regulation. This is particularly important to ensure that behaviour that may limit the contestability of core platform services or is unfair is identified. While it is important to conduct a review on a regular basis, given the dynamically changing nature of the digital sector, in order to ensure legal certainty as to the regulatory conditions, any reviews should be conducted within a reasonable and appropriate time-frame. Market investigations should also ensure that the Commission has a solid evidentiary basis on which it can assess whether it should propose to amend this Regulation in order to expand, or further detail, the lists of core platform services. They should equally ensure that the Commission has a solid evidentiary basis on which it can assess whether it should propose to amend the obligations laid down in this Reguldopt a delegated act updating such obligations. Such an update should only enable the Commission to add new obligations or whether it should adopt a delegated act updating such obligaprohibitions to this Regulation but not to eliminate current obligations or prohibitions.
Amendment 345 #
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 acts. 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 350 #
Proposal for a regulation
Recital 67
Recital 67
(67) Where, in the course of a proceeding into non-compliance or an investigation into systemic non- compliance, a gatekeeper offers commitments to the Commission, the latter should be able to adopt a decision making these commitments binding on the gatekeeper concerned, where it finds that the commitments ensure effective compliance with the obligations of this Regulation. This decision should also find that there are no longer grounds for action by the Commission. If following an investigation, the commitments prove ineffective, the Commission shall be entitled to propose changes to the commitments to ensure its effectiveness.
Amendment 354 #
Proposal for a regulation
Recital 68
Recital 68
(68) In order to ensure effective implementation and compliance with this Regulation, the Commission, supported by the Member States, 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.
Amendment 358 #
Proposal for a regulation
Recital 71 a (new)
Recital 71 a (new)
(71 a) The Commission should be empowered to request the assistance of Member State authorities that should have the same investigative powers as the Commission. The relevant national authorities may include competition authorities, consumer protection authorities and data protection authorities and other relevant national regulators.
Amendment 364 #
Proposal for a regulation
Recital 74 a (new)
Recital 74 a (new)
(74 a) Consumers should be entitled to enforce their rights in relation to the obligations imposed on gatekeepers under this Regulation through collective redress actions in accordance with Directive (EU) 2020/1818.
Amendment 377 #
Proposal for a regulation
Recital 79 – point 1
Recital 79 – point 1
Amendment 386 #
Proposal for a regulation
Article 1 – paragraph 1
Article 1 – paragraph 1
1. This Regulation lays down harmonised rules ensuring contestable and fair markets for both business users and end users, in the digital sector across the Union where gatekeepers are present.
Amendment 387 #
Proposal for a regulation
Article 1 – paragraph 1 a (new)
Article 1 – paragraph 1 a (new)
1 a. 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, 13, 16, 47 and 50 thereof. Accordingly, this Regulation is interpreted and applied with respect to those rights and principles.
Amendment 397 #
Proposal for a regulation
Article 1 – paragraph 5
Article 1 – paragraph 5
5. Member States shall not impose on gatekeepers within the meaning of this Regulation further obligations by way of laws, regulations or administrative action for the purpose of ensuring contestable and fair markets. This is without prejudice toshall not affect rules pursuing other legitimate public interests, in compliance with Union law. In particular, nothing in this Regulation shall not precludes Member States from imposing obligations, which are compatible with Union law, on undertakings, including providers of core platform services where these obligations are unrelated to the relevant undertakings having a status of gatekeeper within the meaning of this Regulation in order to protect consumers or to fight against acts of unfair competitionproviders, in order to protect consumers, to fight against acts of unfair competition, to protect and to foster media freedom, pluralism of media or opinion as well as diversity in cultures and in languages or to pursue those other legitimate public interests.
Amendment 408 #
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 ishall also without prejudice tonot affect 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 . In particular, this Regulation does not preclude Member States from imposing obligations on undertakings other than gatekeepers or additional obligations on gatekeepers. _________________ 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). 39Regulation (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.
Amendment 413 #
Proposal for a regulation
Article 2 – paragraph 1 – point 2 – introductory part
Article 2 – paragraph 1 – point 2 – introductory part
(2) ‘Core platform service’ means a widespread and commonly used digital service that intermediates between business users and end users or within either group and is provided by a multi- sided platform service provider that can but does not have to be multi sided, such as any of the following:
Amendment 415 #
Proposal for a regulation
Article 2 – paragraph 1 – point 2 – point b a (new)
Article 2 – paragraph 1 – point 2 – point b a (new)
(b a) web browsers;
Amendment 418 #
Proposal for a regulation
Article 2 – paragraph 1 – point 2 – point d a (new)
Article 2 – paragraph 1 – point 2 – point d a (new)
(d a) voice assistants;
Amendment 419 #
Proposal for a regulation
Article 2 – paragraph 1 – point 2 – point d b (new)
Article 2 – paragraph 1 – point 2 – point d b (new)
(d b) mobile payment services;
Amendment 424 #
Proposal for a regulation
Article 2 – paragraph 1 – point 2 – point g
Article 2 – paragraph 1 – point 2 – point g
(g) software as a service including cloud computing services;
Amendment 446 #
Proposal for a regulation
Article 2 – paragraph 1 – point 6 a (new)
Article 2 – paragraph 1 – point 6 a (new)
(6 a) ‘Webbrowser’ means software used by users of client PCs, smart mobile devices and other devices to access and interact with web content hosted on servers that are connected to networks such as the Internet, including standalone web browsers as well as web browsers integrated or embedded in software or similar;
Amendment 449 #
Proposal for a regulation
Article 2 – paragraph 1 – point 8 a (new)
Article 2 – paragraph 1 – point 8 a (new)
(8 a) ‘Voice assistants’ means software that responds to oral or written commands and performs tasks such as executing search queries, accessing and interacting with other digital services on behalf of the end user;
Amendment 450 #
Proposal for a regulation
Article 2 – paragraph 1 – point 8 b (new)
Article 2 – paragraph 1 – point 8 b (new)
(8 b) ‘Mobile payment service’ means a payment service operated under financial regulation and performed from or via a mobile device;
Amendment 452 #
Proposal for a regulation
Article 2 – paragraph 1 – point 10
Article 2 – paragraph 1 – point 10
(10) ‘Operating system’ means a system software which controls the basic functions of the hardware or software and enables software applications to run on it, including systems that provide or control access to audiences;
Amendment 456 #
Proposal for a regulation
Article 2 – paragraph 1 – point 10 a (new)
Article 2 – paragraph 1 – point 10 a (new)
(10 a) `Digital voice assistant’ means a software application that provides capabilities for oral dialogue with a user in natural language and which intermediates between end users and business users offering voice-based apps;
Amendment 457 #
Proposal for a regulation
Article 2 – paragraph 1 – point 10 a (new)
Article 2 – paragraph 1 – point 10 a (new)
(10 a) ‘software as a service’ means a method of software delivery in which software is accessed online via a subscription;
Amendment 459 #
Proposal for a regulation
Article 2 – paragraph 1 – point 11 a (new)
Article 2 – paragraph 1 – point 11 a (new)
Amendment 475 #
Proposal for a regulation
Article 2 – paragraph 1 – point 18
Article 2 – paragraph 1 – point 18
(18) ‘Ranking’ means the relative prominence given to goods or services offered through online intermediation services or online social networking services, or the relevance given to search results by online search engines, as presented, organised or communicated by the providers of online intermediation services or of online social networkingcore platform services or by providers of online search engines, respectively, whatever, irrespective of the technological means used for such presentation, organisation or communication;
Amendment 477 #
Proposal for a regulation
Article 2 – paragraph 1 – point 18 a (new)
Article 2 – paragraph 1 – point 18 a (new)
(18 a) ’Search results’ means any information in any format, including texts, graphics, voice or other output, returned by core platform services provider in response and related to a written or oral search query, irrespective of whether the information is an organic result, a paid result, a direct answer or any product, service or information offered in connection with, or displayed along with, or partly or entirely embedded in, the organic results;
Amendment 478 #
(18 a) ’Search results’ means any information in any format, including texts, graphics, voice or other output, returned by core platform services provider in response and related to a written or oral search query, irrespective of whether the information is an organic result, a paid result, a direct answer or any product, service or information offered in connection with, or displayed along with, or partly or entirely embedded in, the organic results;
Amendment 491 #
Proposal for a regulation
Article 3 – title
Article 3 – title
Amendment 494 #
Proposal for a regulation
Article 3 – paragraph 1 – introductory part
Article 3 – paragraph 1 – introductory part
1. A provider of core platform services ishall be designated as gatekeeper if:
Amendment 495 #
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 to reach endor end users to reach other end users or business users; and
Amendment 501 #
Proposal for a regulation
Article 3 – paragraph 2 – introductory part
Article 3 – paragraph 2 – introductory part
2. A provider of core platform services shall be presudeemed to satisfy:
Amendment 503 #
Proposal for a regulation
Article 3 – paragraph 2 – point a
Article 3 – paragraph 2 – point a
(a) the requirement in paragraph 1 point (a) where the undertaking to which it belongs achieves an annual EEA turnover equal to or above EUR 6.5 billion in the last three financial years, or where the average market capitalisation or the equivalent fair market value of the undertaking to which it belongs amounted to at least EUR 65 billion in the last financial year, and it provides a core platform service in at least three Member States;
Amendment 508 #
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 core platform service that has more than 45 million monthly active end users established or located in the Union and more than 10 000 yearly active businessEEA across all of its core platforms services and more than 10 000 business per year users established in the Union EEA during the last financial year;
Amendment 517 #
Proposal for a regulation
Article 3 – paragraph 2 – point b – paragraph 1
Article 3 – paragraph 2 – point b – paragraph 1
for the purpose of the first subparagraph, monthly active end users shall refer to the average number of monthly active end users throughout the largest part of the last financial year;
Amendment 522 #
Proposal for a regulation
Article 3 – paragraph 3 – introductory part
Article 3 – paragraph 3 – introductory part
3. Where a provider of core platform services meets all the thresholds in paragraph 2, it shall notify the Commission thereof within three months after those thresholds are satisfied and provide it with the relevant information identified in paragraph 2.. That notification shall include the relevant information identified in paragraph 2 for each of the core platform services of the provider that meets the thresholds in paragraph 2 point (b). The notification shall be updated whenevbe considered as a gatekeeper and shall comply with all its obligations under other core platform services individually meet the thresholds in paragraph 2 point (b)urrent Regulation.
Amendment 529 #
Proposal for a regulation
Article 3 – paragraph 3 – subparagraph 1
Article 3 – paragraph 3 – subparagraph 1
Amendment 532 #
Amendment 540 #
Proposal for a regulation
Article 3 – paragraph 4 – subparagraph 1
Article 3 – paragraph 4 – subparagraph 1
Amendment 550 #
Proposal for a regulation
Article 3 – paragraph 6 – subparagraph 1 – point a
Article 3 – paragraph 6 – subparagraph 1 – point a
(a) the size, including turnover and market capitalisation, operations and position of the provider of core platform services as well as the market share in the relevant market;
Amendment 556 #
Proposal for a regulation
Article 3 – paragraph 6 – subparagraph 1 – point e
Article 3 – paragraph 6 – subparagraph 1 – point e
(e) entrenched lack of choice, business user or end user dependency or lock-in;
Amendment 571 #
Proposal for a regulation
Article 3 – paragraph 7
Article 3 – paragraph 7
7. For each gatekeeper identified pursuant to paragraph 41 or identified pursuant to 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).
Amendment 573 #
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 sixas soon as possible, and in any case no later than two months after a core platform service has been included in the list pursuant to paragraph 7 of this Article. If a gatekeeper fails to comply with the obligations within these 2 months, Articles 25 and 26 are applicable.
Amendment 578 #
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 sixas soon as possible, and in any case no later than two months after a core platform service has been included in the list pursuant to paragraph 7 of this Article.
Amendment 586 #
Proposal for a regulation
Article 4 – paragraph 2 – introductory part
Article 4 – paragraph 2 – introductory part
2. The Commission shall regularly, and at least every 24 years, review whether the in line with Article 3 (6) designated gatekeepers continue to satisfy the requirements laid down in Article 3(1), oand at least every year whether new providers of core platform services satisfy those requirements. The regular review shall also examine whether the list of affected core platform services of the gatekeeper needs to be adjusted. The review shall not have any suspending effect on the obligations.
Amendment 591 #
Proposal for a regulation
Article 4 – paragraph 3
Article 4 – paragraph 3
3. The Commission shall publish and update the list of gatekeepers and the list of the core platform services for which they need to comply with the obligations laid down in Articles 5 and 6 on an on-going basis. The Commission shall publish an annual report setting out the findings of its monitoring activities and present it to the European Parliament and the Council of the European Union.
Amendment 601 #
Proposal for a regulation
Article 5 – paragraph 1 – point a
Article 5 – paragraph 1 – point a
(a) refrain fromnot combininge personal data sourced from these core platform services with personal data from the same core platform service and any other services offered by the gatekeeper or with personal data from third-party services, and fromnot 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 617 #
Proposal for a regulation
Article 5 – paragraph 1 – point b
Article 5 – paragraph 1 – point b
(b) allow business users to offer the same products or services to end users through third party online intermediation services or its own online services at prices or conditions that are different from those offered through the online intermediation services of the gatekeeper;
Amendment 650 #
Proposal for a regulation
Article 5 – paragraph 1 – point e
Article 5 – paragraph 1 – point e
(e) refrain from requiring business users or end users to use, offer or interoperate with an identificationy service of the gatekeeper in the context of services offered by the business users using the core platform services of that gatekeeper;
Amendment 651 #
Proposal for a regulation
Article 5 – paragraph 1 – point e
Article 5 – paragraph 1 – point e
(e) refrain fromnot requiringe business users nor end users to use, offer or interoperate with an identificationcillary services of the gatekeeper in the context of services offered by the business users using the core platform services of that gatekeeper;
Amendment 656 #
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 in order to make use of or allow access to any of its core platform services to accept supplementary conditions or services that, by their nature or according to commercial usage, have no connection with and are not necessary for the provision of the relevant core platform service to its users, in particular 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) as a condition to access, sign up or register to any of their core platform services identified pursuant to that Article;
Amendment 662 #
Proposal for a regulation
Article 5 – paragraph 1 – point f
Article 5 – paragraph 1 – point f
(f) refrain fromnot requiringe 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) as a condition to access, sign up or register to any of their core platform services identified pursuant to that Article nor achieving the same result through product design;
Amendment 668 #
Proposal for a regulation
Article 5 – paragraph 1 – point f a (new)
Article 5 – paragraph 1 – point f a (new)
(f a) refrain from the compulsion to use only one specific payment method or payment processor as a condition in order to make use of or allow access to any of its core platform services for business users;
Amendment 672 #
Proposal for a regulation
Article 5 – paragraph 1 – point g
Article 5 – paragraph 1 – point g
(g) provide advertisers and publishers to which it supplies advertising services, 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.complete information concerning:
Amendment 674 #
Proposal for a regulation
Article 5 – paragraph 1 – point g
Article 5 – paragraph 1 – point g
(g) provide advertisers and publishers to which it supplies advertising services, upon their request, with complete information concerning the price paid by the advertiser and publisher,-setting mechanisms and schemes for the calculation of the fees as well as the price and fees paid by the advertiser and publisher, including any deductions and surcharges 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 680 #
Proposal for a regulation
Article 5 – paragraph 1 – point g – point i (new)
Article 5 – paragraph 1 – point g – point i (new)
i) the price and fees, including any deductions or surcharges, paid by the advertiser and publisher, as well as the amount or remuneration paid to the publisher, for the publishing of a given advertisement and for each of the relevant advertising services provided by the gatekeeper; and
Amendment 681 #
Proposal for a regulation
Article 5 – paragraph 1 – point g – point ii (new)
Article 5 – paragraph 1 – point g – point ii (new)
ii) the scheme for the calculation of the fees, and its application in relation to the respective bids submitted by the advertiser and publisher for each of the advertising services used.
Amendment 693 #
Proposal for a regulation
Article 5 – paragraph 1 – point g a (new)
Article 5 – paragraph 1 – point g a (new)
(g a) not use, any data that has been generated in the relationship between business users and end users, and that is not also available to the business user itself; this includes not using such data to launch products or services that compete with the products or services offered by their business users;
Amendment 700 #
Proposal for a regulation
Article 5 – paragraph 1 – point g b (new)
Article 5 – paragraph 1 – point g b (new)
(g b) not install any pre-installed software applications on its core platform service without prejudice to the possibility for a gatekeeper to do such pre- 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 707 #
Proposal for a regulation
Article 6 – title
Article 6 – title
Obligations for gatekeepers susceptible of being further technically specified
Amendment 711 #
Proposal for a regulation
Article 6 – paragraph 1 – point a
Article 6 – paragraph 1 – point a
(a) refrain from using, in competition with business users, any data not publicly available, which is generated through activities by those business users, including by the end users of these business users, of its core platform services or provided by data that is generated in the relationship between business users and end users, and that is not also available to those business users of its core platform services or by the end users of these business users itself;
Amendment 742 #
Proposal for a regulation
Article 6 – paragraph 1 – point d
Article 6 – paragraph 1 – point d
(d) refrain from embedding or treating more favourably in ranking and other settings, as well as in access to and conditions for the use of services, functionalities or technical interfaces, 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 othirder partyies and apply fair, reasonable and non-discriminatory conditions to such prankctices or settings;
Amendment 756 #
Proposal for a regulation
Article 6 – paragraph 1 – point d a (new)
Article 6 – paragraph 1 – point d a (new)
(d a) ensure that algorithms that determine the ranking of products and services are fair and transparent, and that the ranking of any content in online platforms incorporating voice assistant technologies must accurately and impartially reflect users’ voice requests;
Amendment 766 #
Proposal for a regulation
Article 6 – paragraph 1 – point e
Article 6 – paragraph 1 – point e
(e) refrain fromnot 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 781 #
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 and the information necessary for advertisers and publishers to carry out their own independent verification of the ad inventory; any intermediation measuring tools of the gatekeeper and provide for complete disclosure of and transparency in respect of the parameters and data used for decision making, execution and measurement of the intermediation services, in particular with regard to the ad inventory and services owned by the gatekeeper in relation to the ad inventory and intermediation services owned by other publishers or service providers connected with the gatekeeper´s platform either on the buy-side or the sell-side. A gatekeeper shall further provide, free of charge, complete information, data and technical interfaces necessary for advertisers and publishers or third parties with a legitimate interest, including authorised organisations by advertisers or publishers, to carry out their own independent, effective, high-quality, continuous and real-time evaluation of intermediation services provided by the gatekeeper, including but not limited to verification of the ad inventory, attribution and performance measurement;
Amendment 794 #
Proposal for a regulation
Article 6 – paragraph 1 – point h
Article 6 – paragraph 1 – point h
(h) provideimplement appropriate technical and organisational measures for ensuring effective portability of data generated through the activity of a business user or end user and shall, in particular, provide tools for end users to facilitate the exercise of data portability that is adequate, relevant and limited to what is necessary, in line with Regulation EU 2016/679, including by the provision of continuous and real-time access ;
Amendment 801 #
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 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 theprovided to the gatekeeper or directly to the business user as prescribed in Article 11(2) or where the business user may rely on Article 6(1), point (c), or Article 6(1),point (e), of Regulation (EU) 2016/679; ;
Amendment 809 #
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 ranking, query, click and view data that constitutes personal data;
Amendment 815 #
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 for business users and end users to any of its core platform services by default through implementing appropriate technical and organisational measures to its software application store designated pursuant to Article 3 of this Regulation.
Amendment 819 #
Proposal for a regulation
Article 6 – paragraph 1 – point k a (new)
Article 6 – paragraph 1 – point k a (new)
(k a) participate in the event of a dispute about the fairness of a price or remuneration as condition for business users to access or to use any of its core platform services identified pursuant to Article 3, in a binding procedure for fixing a fair price or remuneration and adhere the outcome of it, regardless of whether such a procedure is established by law or proposed by the business users or by organisations or rights management organisations representing such business users. The procedure regarding the issue of remuneration and price shall 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]. This procedure shall apply in particular in the case of a dispute about the remuneration laid down in Directive (EU) 2019/790;
Amendment 829 #
Proposal for a regulation
Article 6 – paragraph 1 – point k b (new)
Article 6 – paragraph 1 – point k b (new)
(k b) refrain from blanket de-listing without an appropriate and effective complaint procedure;
Amendment 830 #
Proposal for a regulation
Article 6 – paragraph 1 – point k c (new)
Article 6 – paragraph 1 – point k c (new)
(k c) refrain from terms, conditions or technical measures that hinder business users in their business activities on procurement or sales markets, if the gatekeeper's service constitutes an access to these markets, in particular if it thereby: - prevents or impedes business users from advertising their services or providing advertising services for third parties or from reaching end users via other access points and marketing their services, - prevents or impedes the processing of data relevant to competition or - treats its own services and products or the services and products of third parties more preferentially than those of competitors.
Amendment 833 #
Proposal for a regulation
Article 6 – paragraph 1 a (new)
Article 6 – paragraph 1 a (new)
Amendment 835 #
Proposal for a regulation
Article 6 – paragraph 2
Article 6 – paragraph 2
2. For the purposes of point (a) of paragraph 1 data that is not publicly available shall include any aggregated and non-aggregated data generated by business users that can be inferred from, or collected through, the commercial activities of business users or their customers on the core platform service of the gatekeeper. The Commission is required to publish the technical specifications for individual gatekeepers, without prejudice to business secrets.
Amendment 836 #
Proposal for a regulation
Article 6 – paragraph 2
Article 6 – paragraph 2
2. For the purposes of point (a) of paragraph 1 data that is not publicly available shall include any aggregated and non-aggregated data generaThe Commission is required to publish the behavioural requirements that it specifies for individual gatekeepers. This shall not extend byto business users that can be inferred from, or collected through, the commercial activities of business users or their customerscrets or confidential information inherent to the business model onf the core platform service of threspective gatekeeper.
Amendment 840 #
Proposal for a regulation
Article 7 – paragraph 1
Article 7 – paragraph 1
1. The measures implemented by the gatekeeper to ensure full compliance with the obligations laid down in Articles 5 and 6 shall be effective in achieving the objective of the relevant obligation. The gatekeeper shall be responsible for, and be able to demonstrate full compliance with these obligations (‘accountability’). The burden of proof regarding the efficiency lies on the gatekeeper. The gatekeeper shall demonstrate which measures have been taken to comply with these obligations. The gatekeeper shall ensure that these measures are implemented in compliance with Regulation (EU) 2016/679 and Directive 2002/58/EC, and with legislation on cyber security, consumer protection and product safety.
Amendment 858 #
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 may by decision specify the measures that the gatekeeper concerned shall implement. The Commission shall adopt such a decision within sixthree months from the opening of proceedings pursuant to Article 18.
Amendment 874 #
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 monthsix weeks 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.
Amendment 875 #
Proposal for a regulation
Article 7 – paragraph 5
Article 7 – paragraph 5
5. In specifying the measures under paragraph 2, the Commission shall ensure that the measures are effective in achieving the objectives of the relevant obligation and proportionate in the specific circumstances of the gatekeeper and the relevant service. Parties with a legitimate interest shall be able to submit their observations as to the effectiveness of such measures.
Amendment 884 #
Proposal for a regulation
Article 7 – paragraph 7
Article 7 – paragraph 7
7. A gatekeeper may request within the implementation deadline of Article 3 paragraph 8the opening of proceedings pursuant to Article 18 for the Commission to determine whether the measures that the gatekeeper intends to implement or has implemented under Article 6 are effective in achieving the objective of the relevant obligation in the specific circumstances. A gatekeeper may, with its request, provide a reasoned submission to explain in particular why the measures that it intends to implement or has implemented are effective in achieving the objective of the relevant obligation in the specific circumstances. The Commission shall adopt its decision within six months from the opening of proceedings pursuant to Article 18.
Amendment 891 #
Proposal for a regulation
Article 8 – paragraph 1
Article 8 – paragraph 1
1. The Commission may, on a reasoned request by the gatekeeper, exceptionally suspend, in whole or in part, a specific obligation laid down in Articles 5 and 6 for a core platform service by decision adopted in accordance with the advisory procedure referred to in Article 32(4), where the gatekeeper demonstrates that compliance with that specific obligation would endanger, due to exceptional circumstances beyond the control of the gatekeeper, the economic viability of the operation of the gatekeeper in the Union, and only to the extent necessary to address such threat to its viability. The Commission shall aim to adopt the suspension decision without delay and at the latest 3 months following receipt of a complete reasoned request and accompany this by a reasoned statement explaining the grounds for the suspension.
Amendment 904 #
Proposal for a regulation
Article 9 – paragraph 1
Article 9 – paragraph 1
1. The Commission may, acting on a reasoned request by a gatekeeper or on its own initiative, by decision adopted in accordance with the advisory procedure referred to in Article 32(4), exempt it, in whole or in part, from a specific obligation laid down in Articles 5 and 6 in relation to an individual core platform service identified pursuant to Article 3(7), where such exemption is justified on the grounds set out in paragraph 2 of this Article. The Commission shall adopt the exemption decision at the latest 3 months after receiving a complete reasoned request and accompany by a reasoned statement explaining the grounds for the suspension.
Amendment 913 #
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 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 additional 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. Suchan update should only enable the Commission to add new obligations or prohibitions to this Regulation but not to eliminate current obligations or prohibitions.
Amendment 934 #
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 by the gatekeeper themselves as well as undertakings which they belong. 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.
Amendment 938 #
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. Where consent is directly expressed by the end-user at the level of the services or products offered by the business user through the relevant core platform service, it shall prevail over any consent provided at the gatekeeper level.
Amendment 944 #
Proposal for a regulation
Article 11 – paragraph 2
Article 11 – paragraph 2
2. Where consent for collecting and, processing and sharing 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.
Amendment 949 #
Proposal for a regulation
Article 11 – paragraph 3
Article 11 – paragraph 3
3. A gatekeeper shall not degrade the conditions or quality of any of the core platform services provided to business users or end users who avail themselves of the rights or choices laid down in Articles 5 and 6, or make the exercise of those rights or choices unduly difficult, including through the use of “dark patterns” or manipulative choice architecturs.
Amendment 950 #
Proposal for a regulation
Article 11 – paragraph 3 a (new)
Article 11 – paragraph 3 a (new)
3a. A gatekeeper shall not use manipulative choice architectures in order to obstruct or dissuade end users from switching to software applications and services, engage in practices that aim at preventing the de-installation of pre- installed apps by purposely increasing their technical integration with other system components, nor directly or indirectly circumvent any of the obligations laid down in Articles 5 and 6 .
Amendment 952 #
Proposal for a regulation
Article 12 – title
Article 12 – title
Amendment 953 #
Proposal for a regulation
Article 12 – paragraph 1 – introductory part
Article 12 – paragraph 1 – introductory part
1. A gatekeeper shall informnotify 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 959 #
Proposal for a regulation
Article 12 – paragraph 1 – subparagraph 1
Article 12 – paragraph 1 – subparagraph 1
A gatekeeper shall informnotify 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, in accordance with the procedure set out in Regulation (EC) No 139/2004.
Amendment 963 #
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, as well as the rationale of the intended concentration, and its potential impact on the rights and interests of business users and end users.
Amendment 968 #
Proposal for a regulation
Article 12 – paragraph 3 a (new)
Article 12 – paragraph 3 a (new)
3a. The information gathered pursuant this Article may be used in parallel competition cases, especially for purposes of merger control.
Amendment 970 #
Proposal for a regulation
Article 12 – paragraph 3 b (new)
Article 12 – paragraph 3 b (new)
Amendment 975 #
Proposal for a regulation
Article 13 – paragraph 1
Article 13 – paragraph 1
Within six months after its designation pursuant to Article 3, a gatekeeper shall submit to the Commission an d Data Protection Authorities an independently audited description of any techniques for profiling of consumers that the gatekeeper applies to or across its coreany platform services identified pursuant to Article 3 and make them publicly available. This description shall be updated at least annually.
Amendment 980 #
Proposal for a regulation
Article 15 – paragraph 1
Article 15 – paragraph 1
1. The Commission, acting on a complaint or on its own initiative, 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 twelve months from the opening of the market investigation.
Amendment 982 #
Proposal for a regulation
Article 15 – paragraph 1
Article 15 – paragraph 1
1. The Commission mayshall conduct a market investigation for the purpose of examining whether a provider of core platform services should be designated as a gatekeeper pursuant to Article 3(6), or in order to identify core platform services for a gatekeeper pursuant to Article 3(7). It shall endeavour to conclude its investigation by adopting a decision in accordance with the advisory procedure referred to in Article 32(4) within twelve months from the opening of the market investigation.
Amendment 988 #
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 990 #
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 six 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 991 #
Proposal for a regulation
Article 15 – paragraph 3
Article 15 – paragraph 3
Amendment 1001 #
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, it shall declare applicable to that gatekeeper onlythe obligations laid down in Article 5(b) and Article 6(1) points (e), (f), (h) and (i)this Regulation 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 1002 #
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, it shall declare applicable to that gatekeeper onlyat least the 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 1009 #
Proposal for a regulation
Article 16 – paragraph 1
Article 16 – paragraph 1
1. Where the market investigation, initiated by the Commission following a complaint or on its own initiative, 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 Regulation. The Commission shall conclude its investigation by adopting a decision within twelve months from the opening of the market investigation.
Amendment 1022 #
Proposal for a regulation
Article 16 – paragraph 3
Article 16 – paragraph 3
3. A gatekeeper shall be deemed to have engaged in a systematic non- compliance with the obligations laid down in Articles 5 and 6, where the Commission has issued at least threetwo non-compliance or fining decisions pursuant to Articles 25 and 26 respectively against a gatekeeper in relation to any of its core platform services within a period of five years prior to the adoption of the decision opening a market investigation in view of the possible adoption of a decision pursuant to this Article.
Amendment 1025 #
Proposal for a regulation
Article 16 – paragraph 4
Article 16 – paragraph 4
Amendment 1033 #
Proposal for a regulation
Article 16 – paragraph 6 a (new)
Article 16 – paragraph 6 a (new)
6a. In order to ensure effective compliance by the gatekeeper with its obligations laid down in Articles 5 or 6, the Commission shall regularly review the remedies imposed in accordance with paragraph 1 or commitments accepted in accordance with paragraph 6. The Commission shall be entitled to require changes to the imposed remedies if, following an investigation, it finds that the remedies are not effective.
Amendment 1035 #
Proposal for a regulation
Article 17 – paragraph 1
Article 17 – paragraph 1
The Commission, acting on a complaint or on its own initiative, may conduct a market investigation with the purpose of examining whether one or more services within the digital sector should be added to the list of core platform services or to detect types of practices that may limit the contestability of core platform services or may be unfair and which are not effectively addressed by this Regulation. It shall issue a public report at the latest within 24 months from the opening of the market investigation.
Amendment 1050 #
Proposal for a regulation
Article 19 – paragraph 1
Article 19 – paragraph 1
1. The Commission may by simple request or by decision require information from undertakings and associations of undertakings to provide all necessary information, including for the purpose of monitoring, implementing and enforcing the rules laid down in this Regulation. The Commission may also request access to data bases and, algorithms and A/B testing of undertakings and request explanations on those by a simple request or by a decision. Where the simple request is not fullfilled within a period of 3 weeks, the Commission may require this information by decision.
Amendment 1058 #
Proposal for a regulation
Article 20 – paragraph 1
Article 20 – paragraph 1
The Commission mayshall interview any natural or legal person which consents to being interviewed for the purpose of collecting information, relating to the subject-matter of an investigation, including in relation to the monitoring, implementing and enforcing of the rules laid down in this Regulation.
Amendment 1063 #
Proposal for a regulation
Article 21 – paragraph 3
Article 21 – paragraph 3
3. During on-site inspections the Commission and auditors or experts appointed by it may require the undertaking or association of undertakings to provide access to and explanations on its organisation, functioning, IT system, algorithms, data-handling and business conducts. The Commission shall appoint rotating auditor or expert teams within the platform in order to have continuous and direct access to the data and algorithms. They should run behavioural experiments to evaluate the algorithm and use of the data. The Commission and auditors or experts appointed by it may address questions to key personnel.
Amendment 1076 #
Proposal for a regulation
Article 23 – paragraph 3
Article 23 – paragraph 3
3. Should the Commission consider that the commitments submitted by the gatekeeper concerned cannot ensure effective compliance with the obligations laid down in Articles 5 and 6, it shall explain the reasons for not making those commitments binding in the decision concluding the relevant proceedings and, following an investigation, require changes to the commitments in order to make them effective.
Amendment 1080 #
Proposal for a regulation
Article 24 – paragraph 1 a (new)
Article 24 – paragraph 1 a (new)
1a. End-users as well as their representatives have the right to submit formal complaints about gatekeepers non- compliance with the obligations set out in this Regulation in order to facilitate the monitoring of obligations and measures.
Amendment 1083 #
Proposal for a regulation
Article 25 – paragraph 1 – introductory part
Article 25 – paragraph 1 – introductory part
1. The Commission shall adopt a non- compliance decision in accordance with the advisory procedure referred to in Article 32(4) within a period of 6 months beginning from the moment of non- compliance where it finds that a gatekeeper does not comply with one or more of the following:
Amendment 1087 #
Proposal for a regulation
Article 25 – paragraph 3
Article 25 – paragraph 3
3. In the non-compliance decision adopted pursuant to paragraph 1, the Commission shall order the gatekeeper to cease and desist with the non-compliance within an appropriate deadline and to provide explanations on how it plans to comply with the decision. The Commission may by decision adopted in accordance with the advisory procedure referred to in Article 32(4) impose on such gatekeeper any behavioural remedies which are proportionate to the infringement committed and necessary to ensure compliance with this Regulation.
Amendment 1093 #
Proposal for a regulation
Article 25 – paragraph 4
Article 25 – paragraph 4
4. The gatekeeper shall provide the Commission with the description of the measures it took to ensure compliance with the decision adopted pursuant to paragraph 1. If the Commission, following an investigation, finds that the measures are not effective to ensure compliance by the gatekeeper with its obligations under Articles 5 and 6, the Commission shall be entitled to require changes to these measures.
Amendment 1099 #
Proposal for a regulation
Article 26 – paragraph 1 – introductory part
Article 26 – paragraph 1 – introductory part
1. In the decision pursuant to Article 25, the Commission may impose on a gatekeeper fines not exceeding 130% of its total turnover in the preceding financial year where it finds that the gatekeeper, intentionally or negligently, fails to comply with:
Amendment 1101 #
Proposal for a regulation
Article 26 – paragraph 2 – introductory part
Article 26 – paragraph 2 – introductory part
2. The Commission may by decision impose on undertakings and associations of undertakings fines not exceeding 15% of the total turnover in the preceding financial year where they intentionally or negligently:
Amendment 1105 #
Proposal for a regulation
Article 26 – paragraph 3
Article 26 – paragraph 3
3. In fixing the amount of the fine, regard shall be had to the gravity, duration, recurrence, and, for fines imposed pursuant to paragraph 2, delay caused to the proceedings. To calculate the duration of the infringement, the starting point shall be the moment of the first non- compliance under Article 3 paragraph 8.
Amendment 1107 #
Proposal for a regulation
Article 26 – paragraph 4 – subparagraph 4
Article 26 – paragraph 4 – subparagraph 4
The financial liability of each undertaking in respect of the payment of the fine shall not exceed 130 % of its total turnover in the preceding financial year.
Amendment 1116 #
Proposal for a regulation
Article 28 – paragraph 1
Article 28 – paragraph 1
1. The powers conferred on the Commission by Articles 26 and 27 shall be subject to a threfive year limitation period.
Amendment 1118 #
Proposal for a regulation
Article 29 – paragraph 1
Article 29 – paragraph 1
1. The power of the Commission to enforce decisions taken pursuant to Articles 26 and 27 shall be subject to a limitation period of fiseven years.
Amendment 1123 #
Proposal for a regulation
Article 30 – paragraph 1 – point b a (new)
Article 30 – paragraph 1 – point b a (new)
(ba) all relevant procedures or decisions that affect consumers such as inter alia market investigations for designating a gatekeeper, compliance with, suspensions of and exemption from obligations, interim measures, fines.
Amendment 1126 #
Proposal for a regulation
Article 30 – paragraph 2
Article 30 – paragraph 2
2. Gatekeepers, undertakings and, associations of undertakings concerned and third parties with a legitimate interest may submit their observations to the Commission’s preliminary findings within a time limit which shall be fixed by the Commission in its preliminary findings and which may not be less than 14 days.
Amendment 1152 #
Proposal for a regulation
Article 33 – title
Article 33 – title
Request for a market investigation and non-compliance proceedings
Amendment 1153 #
Proposal for a regulation
Article 33 – paragraph 1
Article 33 – paragraph 1
1. When three or more Member States or any legal person who can show a legitimate interest, request the Commission to open an investigation pursuant to Article 15, 16 or 17 because they consider that there are reasonable grounds to suspect that a provider of core platform services should be designated as a gatekeeper: (a) a core platform services provider should be designated as a gatekeeper, or (b) 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), or (c) one or more services should be added to the list of core platform services, or (d) types of practices that may limit the contestability of core platform services or may be unfair are not effectively addressed by this Regulation, the Commission shall within fourthree months examine whether there are reasonable grounds to open such an investigation. and shall give reasons for its decision not to open an investigation.
Amendment 1155 #
Proposal for a regulation
Article 33 – paragraph 1
Article 33 – paragraph 1
1. When threone or more designated authorities of the Member States request the Commission to open an investigation pursuant to Article 15, 16 or 17 because they consider that there are reasonable grounds to suspect that a provider of core platform services should be designated as a gatekeeper that there are new core platform services and practices to be added, or that there is a situation of (systemic) non-compliance, the Commission shall within fourthree months examine whether there are reasonable grounds to open such an investigation. If the Commission decides not to open an investigation, the Commission shall publish the respective reasons.
Amendment 1171 #
Proposal for a regulation
Article 33 – paragraph 2
Article 33 – paragraph 2
2. Member StatesAny party submitting a request for a market investigation shall submit evidence in support of their request.
Amendment 1176 #
Proposal for a regulation
Article 33 a (new)
Article 33 a (new)
Article 33 a In the Annex I to Directive (EU) 2020/1828 of the European Parliament and of the Council (3), the following point is added: Regulation (EU) 20XX/XXXX of the European Parliament and of the Council of DD MMM YYYY on contestable and fair markets in the digital sector.