Activities of Ondřej KOVAŘÍK 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)
Shadow 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 (57)
Amendment 37 #
Proposal for a regulation
Recital 2
Recital 2
(2) Core platform services, at the same time, feature a number of characteristics that can be exploited by their providers. These characteristics of core platform services include among others extreme scale economies, which often result from nearly zero marginal costs to add business users, active users or end users. Other characteristics of core platform services are very strong network effects, an ability to connect many business users with many active users and end users through the multi-sidedness of these services, a significant degree of dependence of both business users and end users, lock-in effects, a lack of multi- homing for the same purpose by end users, vertical integration, and data driven- advantages. All these characteristics combined with unfair conduct by providers of these services can have the effect of substantially undermining the contestability of the core platform services, as well as impacting the fairness of the commercial relationship between providers of such services and their business users and end users, leading to rapid and potentially far-reaching decreases in business users’ and end users’ choice in practice, and therefore can confer to the provider of those services the position of a so-called gatekeeper.
Amendment 38 #
Proposal for a regulation
Recital 2 a (new)
Recital 2 a (new)
(2 a) Acknowledges that the digital economy, particularly platforms, can have a significant impact on long-established regulated business models in many strategic sectors such as transportation and hospitality. Stresses the need to foster a level-playing field between gatekeepers and traditional enterprises operating in the transport and tourism sectors. Furthermore, emphasises the need for transparency, for the sake of consumers, in transport and tourism platforms, specifically of algorithms affecting service, pricing, advertising and digital trust building mechanisms such as ratings and reviews.
Amendment 39 #
Proposal for a regulation
Recital 2 b (new)
Recital 2 b (new)
(2 b) Considers that in defining gatekeepers and core platform services it is important to distinguish between two types of end user, the active end user and the passive end user. An active end user would in principle share their personal data with the gatekeeper or platform in the form of a profile or storing personal data with the gatekeeper in a similar way. Believes, therefore, that it is important to distinguish this type of user from an end user who browses a platform or page but does not share any personal data directly with the gatekeeper or platform.
Amendment 40 #
Proposal for a regulation
Recital 3
Recital 3
(3) A small number of large providers of core platform services have emerged with considerable economic power. Typically, they feature an ability to connect many business users with many active users and end users through their services which, in turn, allows them to leverage their advantages, such as their access to large amounts of data, from one area of their activity to new ones. Some of these providers exercise control over whole platform ecosystems in the digital economy and are structurally extremely difficult to challenge or contest by existing or new market operators, irrespective of how innovative and efficient these may be. Contestability is particularly reduced due to the existence of very high barriers to entry or exit, including high investment costs, which cannot, or not easily, be recuperated in case of exit, and absence of (or reduced access to) some key inputs in the digital economy, such as data. As a result, the likelihood increases that the underlying markets do not function well – or will soon fail to function well.
Amendment 40 #
Proposal for a regulation
Recital 13
Recital 13
(13) In particular, online intermediation services, online search engines, operating systems, online social networking, video sharing platform services, number- independent interpersonal communication services, cloud computing services and, online advertising services and web browsers all have the capacity to affect a large number of end users and businesses alike, which entails a risk of unfair business practices. They therefore should be included in the definition of core platform services and fall into the scope of this Regulation. Online intermediation services may also be active in the field of financial services, and they may intermediate or be used to provide such services as listed non-exhaustively in Annex II to Directive (EU) 2015/1535 of the European Parliament and of the Council32 . In certain circumstances, the notion of end users should encompass users that are traditionally considered business users, but in a given situation do not use the core platform services to provide goods or services to other end users, such as for example businesses relying on cloud computing services for their own purposes. _________________ 32Directive (EU) 2015/1535 of the European Parliament and of the Council of 9 September 2015 laying down a procedure for the provision of information in the field of technical regulations and of rules on Information Society services, OJ L 241, 17.9.2015, p. 1.
Amendment 41 #
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 active and end users of core platform services provided by gatekeepers, to the detriment of prices, quality, choice and innovation therein.
Amendment 42 #
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 active and 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 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 43 #
(7) Therefore, business users, active users and end- users of core platform services provided by gatekeepers should be afforded appropriate regulatory safeguards throughout the Union against the unfair behaviour of gatekeepers in order to facilitate cross- border business within the Union and thereby improve the proper functioning of the internal market and to address existing or likely emerging fragmentation in the specific areas covered by this Regulation. In this regard, calls on the Commission to clarify the liability of transport and tourism platforms, in order to promote responsible behaviour, transparency, legal certainty and thereby increase user confidence. Moreover, while gatekeepers tend to adopt global or at least pan-European business models and algorithmic structures, they can adopt, and in some cases have adopted, different business conditions and practices in different Member States, which is liable to create disparities between the competitive conditions for the users of core platform services provided by gatekeepers, to the detriment of integration within the internal market.
Amendment 44 #
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 rules should therefore be established at Union level to ensure contestable and fair digital markets featuring the presence of gatekeepers within the internal market, and in order to create and maintain a safer environment and legal certainty for the users and public authorities.
Amendment 45 #
(29) Designated gatekeepers 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 participants, agenda and results of regulatory dialogue should be made public. The regulatory dialogue itself should not take longer than 6 months.
Amendment 46 #
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 active or 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. In this regard, stresses the importance and the particularities of the transport and tourism online platform market, which require a sector-specific approach and special attention in this regard. Highlights the importance of collaborative economy platforms in the transport and tourism sectors, on which services are provided by both individuals and professionals and stresses the importance of avoiding imposing disproportionate information requirements and administrative burdens on peer-to-peer providers of services.
Amendment 46 #
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 enforcement of the EU competition rules, shows that they have a particularly negative direct impact on the business users and end users. In addition, it is necessary to provide for the possibility of a brief 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 49 #
Proposal for a regulation
Recital 39
Recital 39
(39) To safeguard a fair commercial environment and protect the contestability of the digital sector it is important to safeguard the right of business users to raise concerns about unfair behaviour by gatekeepers with any relevant administrative or other public authorities including national courts. For example, business users may want to complain about different types of unfair practices, such as discriminatory access conditions, unjustified closing of business user accounts or unclear grounds for product de-listings. Any practice that would in any way inhibit such a possibility of raising concerns or seeking available redress, for instance by means of confidentiality clauses in agreements or other written terms, should therefore be prohibited. This should be without prejudice to the right of business users and gatekeepers to lay down in their agreements the terms of use including the use of lawful complaints- handling mechanisms, including any use of alternative dispute resolution mechanisms or of the jurisdiction of specific courts in compliance with respective Union and national law This should therefore also be without prejudice to the role gatekeepers play in the fight against illegal content online.
Amendment 54 #
Proposal for a regulation
Recital 48
Recital 48
(48) Gatekeepers are often vertically integrated and offer certain products or services to end users through their own core platform services, or through a business user over which they exercise control or with which they have entered into 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 in the results communicated by online search engines, or which are partly or entirely embedded in online search engines results, groups of results specialised in a certain topic, displayed along with the results of an online search engine, which are considered or used by certain end users as a service distinct or additional to the online search engine. Other instances are those of software applications which are distributed through software application stores, or products or services that are given prominence and display in the newsfeed of a social network, or products or services ranked in search results or displayed on an online marketplace. 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 55 #
Proposal for a regulation
Recital 49
Recital 49
(49) IWhile in such situations of a conflict of interest, the gatekeeper should not partly or entirely embed such distinct product or service in online search engine results or groups of results. Gatekeeper may rank its products or services, provided that it does not 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 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. Rank or cooperates with or prefers any other reason unrelated to the relevance of the product or service. In particular, where a gatekeeper´s onlinge should in this context cover all forms of relative prominence, including 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. The guidelines adopearch engine results page includes ranking of separate products or services 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 separated pursuant to Artroduct or servicle 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)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.
Amendment 58 #
Proposal for a regulation
Recital 28
Recital 28
(28) This should allow the Commission to intervene in time and effectively, while fully respecting the proportionality of the considered measures. It should also reassure actual or potential market participants about the fairness and contestability of the services concerned. In this regard, calls on the Commission to undertake further steps by initiating a more comprehensive data sharing framework for online platforms dedicated to short-term rentals, following consultations with all relevant stakeholders, and to establish an obligation for platforms to hare their data accordingly, in full compliance with Regulation (EU) 2016/679, with Eurostat and the national statistics office of the country where the service providers operate.
Amendment 61 #
Proposal for a regulation
Recital 57
Recital 57
(57) In particular gGatekeepers which provide access to software application storcore platform services serve as an important gateway for business users that seek to reach end users. In view of the imbalance in bargaining power between those gatekeepers and business users of their software application storcore platform services, those gatekeepers should not be allowed to impose general conditions, including pricing conditions, 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 storcore platform services; prices charged or conditions imposed by the provider of the software application store for different related or similar services or to different types of end users; prices charged or conditions imposed by the provider of the software application storecore platform services for the same service in different geographic regions; prices charged or conditions imposed by the provider of the software application storecore platform services for the same service the gatekeeper offers to itself. This obligation should not establish an access right and it should be without prejudice to the ability of providers of software application storcore platform services to take the required responsibility in the fight against illegal and unwanted content as set out in Regulation [Digital Services Act].
Amendment 62 #
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 further specify some of the measures that the gatekeeper concerned should adopt in order to effectively comply with those obligations that are susceptible of being further specified. This possibility of a regulatory dialogue should facilitate compliance by gatekeepers and expedite the correct implementation of the Regulation.
Amendment 63 #
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 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. The participants, agenda and results of regulatory dialogue should be made public. The regulatory dialogue itself should not take longer than 6 months.
Amendment 65 #
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. The Commission may soon need to assess whether new services such as voice-enabled services, should be added to the list of core platform services. To ensure that this Regulation remains up to date and constitutes an effective and holistic regulatory response to the problems posed by gatekeepers, it is important to provide for a regular review of the lists of core platform services as well as of the obligations provided for in this Regulation. This is particularly important to ensure that behaviour that may limit the contestability of core platform services or is unfair is identified. While it is important to conduct a review on a regular basis, given the dynamically changing nature of the digital sector, in order to ensure legal certainty as to the regulatory conditions, any reviews should be conducted within a reasonable and appropriate time-frame. Market investigations should also ensure that the Commission has a solid evidentiary basis on which it can assess whether it should propose to amend this Regulation in order to expand, or further detail, the lists of core platform services. They should equally ensure that the Commission has a solid evidentiary basis on which it can assess whether it should propose to amend the obligations laid down in this Regulation or whether it should adopt a delegated act updating such obligations.
Amendment 68 #
Proposal for a regulation
Article 1 – paragraph 1
Article 1 – paragraph 1
1. This Regulation layse purpose of this Regulation is to contribute to the proper functioning of the internal market by laying down harmonised rules ensuring contestable and fair markets in the digital sector across the Union where gatekeepers are present.
Amendment 75 #
Proposal for a regulation
Article 1 – paragraph 5
Article 1 – paragraph 5
5. In order to avoid the fragmentation of the internal market, Member States shall not impose on gatekeepers further obligations by way of laws, regulations or administrative action for the purpose of ensuring contestable and fair markets. This is without prejudice to rules pursuing other legitimate public interests, in compliance with Union law. In particular, nothing in this Regulation 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 competition.
Amendment 76 #
Proposal for a regulation
Recital 72
Recital 72
(72) The Commission should be able to take the necessary actions to monitor the effective implementation and compliance with the obligations laid down in this Regulation. Such actions should include the ability of the Commission to appoint independent external experts, such as and auditors to assist the Commission in this procesrequest the active cooperation of the European Court of Auditors, including where applicable from competent national authorities and independent authorities, such as data or consumer protection authorities.
Amendment 78 #
Proposal for a regulation
Recital 75
Recital 75
(75) In the context of proceedings carried out under this Regulation, the undertakings concerned should be accorded the right to be heard by the Commission and the decisions taken should be widely publicised. While ensuring the rights to good administration and the rights of defence of the undertakings concerned, in particular, the right of access to the file and the right to be heard, it is essential that confidential informationand sensitive commercial information, which could affect the privacy of trade secrets, be protected. Furthermore, while respecting the confidentiality of the information, the Commission should ensure that any information relied on for the purpose of the decision is disclosed to an extent that allows the addressee of the decision to understand the facts and considerations that led up to the decision. Finally, under certain conditions certain business records, such as communication between lawyers and their clients, may be considered confidential if the relevant conditions are met.
Amendment 81 #
Proposal for a regulation
Article 2 – paragraph 1 – point 2 – point h a (new)
Article 2 – paragraph 1 – point 2 – point h a (new)
(h a) web browsers
Amendment 82 #
Proposal for a regulation
Recital 78
Recital 78
(78) The Commission should periodically evaluate this Regulation and closely monitor its effects on the contestability and fairness of commercial relationships in the online platform economy, in particular with a view to determining the need for amendments in light of relevant technological or commercial developments. This evaluation should include the regular review of the list of core platform services and the obligations addressed to gatekeepers as well as enforcement of these, in view of ensuring that digital markets across the Union are contestable and fair. In order to obtain a broad view of developments in the sector, the evaluation should take into account the experiences of Member States and relevant stakeholders. The Commission may in this regard also consider the opinions and reports presented to it by the Observatory on the Online Platform Economy that was first established by Commission Decision C(2018)2393 of 26 April 2018, by Eurostat, and by the national statistics offices of the countries where the service providers operate. Following the evaluation, the Commission should take appropriate measures. The Commission should to maintain a high level of protection and respect for the common EU rights and values, particularly equality and non-discrimination, as an objective when conducting the assessments and reviews of the practices and obligations provided in this Regulation.
Amendment 87 #
Proposal for a regulation
Article 2 – paragraph 1 – point 16 a (new)
Article 2 – paragraph 1 – point 16 a (new)
(16 a) 'Active user' means any natural or legal person using core platform services, and having saved personal data in the form of a profile of that user or similar, on a platform on a long-term basis;
Amendment 89 #
(b) it operates a core platform service which serves as an important gateway for business users to reach both active and end users; and
Amendment 93 #
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 450 million monthly active end users established or located in the Union and more than 10 000 yearly active business users established in the Union in the last financial year;
Amendment 106 #
Proposal for a regulation
Article 3 – paragraph 6 – subparagraph 3
Article 3 – paragraph 6 – subparagraph 3
Amendment 108 #
Proposal for a regulation
Article 3 – paragraph 6 – subparagraph 4
Article 3 – paragraph 6 – subparagraph 4
Amendment 109 #
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 sixfour months after a core platform service has been included in the list pursuant to paragraph 7 of this Article.
Amendment 126 #
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 serviceservices and their providers 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 imposed on gatekeepers under this Regulation and their uniform and effective application in the internal market.
Amendment 145 #
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 undertakingproviders of core platform services 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 146 #
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 undertakingproviders of core platform services should in any event be subject to a fast designation process which should start upon the entry into force of this Regulation.
Amendment 149 #
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 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 undertakingproviders of core platform services, 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 undertakingcore platform services in the Union over an appropriate period.
Amendment 164 #
Proposal for a regulation
Recital 26
Recital 26
(26) A particular subset of rules should apply to those providers of core platform services that are foreseen to enjoy an entrenched and durable position in the near future. The same specific features of core platform services make them prone to tipping: once a service provider has obtained a certain advantage over rivals or potential challengers in terms of scale or intermediation power, its position may become unassailable and the situation may evolve to the point that it is likely to become durable and entrenched in the near future. UndertakingProviders of core platform services can try to induce this tipping and emerge as gatekeeper by using some of the unfair conditions and practices regulated in this Regulation. In such a situation, it appears appropriate to intervene before the market tips irreversibly.
Amendment 168 #
Proposal for a regulation
Recital 29
Recital 29
(29) Designated gatekeepers 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 within the undertaking to which they belong, 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.
Amendment 184 #
Proposal for a regulation
Recital 36
Recital 36
(36) The conduct of combining end user data from different sources or signing in users to different services of gatekeepers gives them potential advantages in terms of accumulation of data, thereby raising barriers to entry. To ensure that gatekeepers do not unfairly undermine the contestability of core platform services, they should enable their end users to freely choose to opt-in to such business practices by offering a less personalised alternative. The possibility should cover all possible sources of personal data, including own services of the gatekeeper as well as third party websites, and should be proactively presented to the end user in an explicit, clear and straightforward manner. This should be amended without prejudice without other provisions governing the storage, processing and use of data, such as the Regulation (EU) 2016/679 or the proposed Data Governance Act.
Amendment 195 #
Proposal for a regulation
Article 19 – paragraph 3
Article 19 – paragraph 3
3. When sending a simple request for information to an undertaking or association of undertakings, the Commission shall state the purpose of the request, specify what information is required and fix the time-limit within which the information is to be provided, and the penalties provided for in Article 26 for supplying incomplete, incorrect or misleading information or explanations. Such time-limits provided should respect the size and capabilities of an undertaking or association of undertakings.
Amendment 196 #
Proposal for a regulation
Article 19 – paragraph 4
Article 19 – paragraph 4
4. Where the Commission requires undertakings and associations of undertakings to supply information by decision, it shall state the purpose of the request, specify what information is required and fix the time-limit within which it is to be provided. Where the Commission requires undertakings to provide access to its data-bases and algorithms, it shall state the legal basis and the purpose of the request, and fix the time- limit within which it is to be provided. It shall also indicate the penalties provided for in Article 26 and indicate or impose the periodic penalty payments provided for in Article 27. It shall further indicate the right to have the decision reviewed by the Court of Justice. Such time-limits provided should respect the size and capabilities of an undertaking or association of undertakings.
Amendment 261 #
Proposal for a regulation
Recital 63
Recital 63
(63) Following a market investigation, an undertaking providinger of a core platform service could be found to fulfil all of the overarching qualitative criteria for being identified as a gatekeeper. It should then, in principle, comply with all of the relevant obligations laid down by this Regulation. However, for gatekeepers that have been designated by the Commission as likely to enjoy an entrenched and durable position in the near future, the Commission should only impose those obligations that are necessary and appropriate to prevent that the gatekeeper concerned achieves an entrenched and durable position in its operations. With respect to such emerging gatekeepers, the Commission should take into account that this status is in principle of a temporary nature, and it should therefore be decided at a given moment whether such a provider of core platform services should be subjected to the full set of gatekeeper obligations because it has acquired an entrenched and durable position, or conditions for designation are ultimately not met and therefore all previously imposed obligations should be waived.
Amendment 316 #
Proposal for a regulation
Article 2 – paragraph 1 – point 2 – point h a (new)
Article 2 – paragraph 1 – point 2 – point h a (new)
Amendment 348 #
Proposal for a regulation
Article 2 – paragraph 1 – point 23 a (new)
Article 2 – paragraph 1 – point 23 a (new)
(23 a) "Payment aggregation services" means technical services within the meaning of article 3(j) of Directive (EU) 2015/2366 of the European Parliament and of the Council allowing end users to enroll and execute payment services within the meaning of article 4(3) of Directive (EU) 2015/2366 of the European Parliament and of the Council provided by different Payment Service Providers on the basis of a contractual relationship between the payment aggregation service provider and the third party providers whose payment services are aggregated.
Amendment 384 #
Proposal for a regulation
Article 3 – paragraph 3 – subparagraph 1
Article 3 – paragraph 3 – subparagraph 1
A failure by a relevant provider of core platform services to notify the required information pursuant to this paragraph shall not prevent the Commission from designating these providers as gatekeepers pursuant to paragraph 4 at any time or adopting a decision pursuant to Article 7(2).
Amendment 407 #
Proposal for a regulation
Article 3 – paragraph 6 – subparagraph 1 a (new)
Article 3 – paragraph 6 – subparagraph 1 a (new)
Where other gatekeepers are not identified pursuant to paragraph 2 within the undertaking to which the provider of core platform services belongs, only exceptionally may the abovementioned elements allow such provider of core platform services to be identified as a gatekeeper in accordance with the procedure laid down in Article 15. This process shall also take into consideration whether there are other gatekeepers identified pursuant to paragraph 2 within the undertaking.
Amendment 419 #
Proposal for a regulation
Article 3 – paragraph 8
Article 3 – paragraph 8
8. The gatekeeper shall notify the Commission of the measures that it intends to implement to ensure compliance with the obligations laid down in Articles 5 and 6 after a core platform service has been included in the list pursuant to paragraph 7 of this Article and shall comply with the obligations laid down in Articles 5 and 6 within six months after a core platform service has been included in the list pursuant to paragraph 7 of this Article.
Amendment 431 #
Proposal for a regulation
Article 5 – paragraph 1 – point a
Article 5 – paragraph 1 – point a
(a) refrain from combining personal data sourced from these core platform services with personal data from any other services offered by the gatekeeper or with personal data from third-party services, and from signing in end users to other services of the gatekeeper in order to combine personal data, unless the end user has been presented with the specific choice and provided consent provided consent in the sense of Regulation (EU) 2016/679 and in particular, has been presented with the effective possibility of selecting the specific purposes for which they consent to the processing of their personal data, including the sources of their personal data to be combined, without such selection affecting the sense of Regulation (EU) 2016/679. degree of quality of their engagement with the core platform services;
Amendment 453 #
Proposal for a regulation
Article 5 – paragraph 1 – point d
Article 5 – paragraph 1 – point d
(d) refrain from preventing or restricting business users from raising issues with any relevant public authority relating to any practice of gatekeepers, including by means of contractual conditions;
Amendment 496 #
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 ancillary services provided by those business users of its core platform services or by the end users of these business users;
Amendment 516 #
Proposal for a regulation
Article 6 – paragraph 1 – point d
Article 6 – paragraph 1 – point d
(d) refrain from treating more favourably in ranking services and products offered by the gatekeeper itself or by any third party belonging to the same undertaking compared to similar services or products of third party and apply fair and non-discriminatory conditions to such ranking, including display;
Amendment 529 #
Proposal for a regulation
Article 6 – paragraph 1 – point f
Article 6 – paragraph 1 – point f
(f) allowprovide business users and providers of ancillary services access under fair and equal conditions to and interoperability with the same operating system, hardware or software features that are available or used in the provision by the gatekeeper of any ancillary services, directly or through a partnership agreement, of any ancillary services and any core platform service, where such access or interoperability is necessary to provide ancillary services to the core platform service of the gatekeeper;
Amendment 547 #
Proposal for a regulation
Article 6 – paragraph 1 – point h
Article 6 – paragraph 1 – point h
(h) provide 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, in line with of personal data, in line with and building on Regulation EU 2016/679, and non- personal data including by the provision of continuous and real-time access . The Commission shall determine by means of implementing acts the technical means acceptable to ensure an easy, secure, continuous and real-time access;
Amendment 554 #
Proposal for a regulation
Article 6 – paragraph 1 – point i
Article 6 – paragraph 1 – point i
(i) provide business users, or thirdeffective paorties authorised by a business user, free of charge, with effective, high-quality, continuous and real-time access andability of data generated through the activity of a business user of aggregated or non-aggregated data, that is provided for r end user and shall, in particular, provide tools for 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 onld users to facilitate the exercise of data portability of personal data, in line with and building on Regulation EU 2016/679, and of non- personal data including by wthere directly connected with the use effectuated by the end user in respect of the products or services offered by the relevant business user through the relevant core platform service, and when the end user opts in to such sharing with a consent in the sense of the Regulation (EU) 2016/679; provision of continuous and real-time access. The Commission shall determine by means of implementing acts the technical means acceptable to ensure an easy, secure, continuous and real-time access;
Amendment 586 #
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 collectedprovided by, or observed from business users or end users through, the commercial activities of business users or their customers on the core platform service of the gatekeeper.
Amendment 616 #
Proposal for a regulation
Article 7 – paragraph 7
Article 7 – paragraph 7
7. A gatekeeper may request the opening of proceedings pursuant to Article 18 for the Commission to determine whether the measures that the gatekeeper intends to implement or has implemented under Article 6 are effective in achieving the objective of the relevant obligation in the specific circumstances. A gatekeeper may, with its request, provide a reasoned submission to explain in particular why the measures that it intends to implement or has implemented are effective in achieving the objective of the relevant obligation in the specific circumstances. A gatekeeper shall continue to comply with all relevant obligations during the proceedings pursuant to Article 18.
Amendment 732 #
Proposal for a regulation
Article 21 a (new)
Article 21 a (new)
Article 21 a Feedback from third parties The Commission shall provide a dedicated mechanism for third parties to raise any obstacles encountered with the gatekeeper’s implementation of obligations under Articles 5 and 6 of the Regulation.