131 Amendments of Eva KAILI related to 2020/0374(COD)
Amendment 87 #
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. Furthermore, they could play an important role in safeguarding the freedom and pluralism of the media, including by disseminating news and by facilitating public debate.
Amendment 111 #
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. Furthermore, they could play an important role in safeguarding the freedom and pluralism of the media, including by disseminating news and by facilitating public debate.
Amendment 115 #
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 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. In addition, there are unjustified advantages for digital platforms in the form of circumvention constructions in the payment of profit taxes and in the employment conditions of platform workers, which further distort competition.
Amendment 118 #
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, security standards, funding of traditional publishers, choice and innovation therein.
Amendment 125 #
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 128 #
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 the respective rights of business users and end users are protected, 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 136 #
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 sconcentrations within the meaning of Article 3 of Regulation (EC) No 139/2004 or any agreement or series of agreements having a substantially similar effector. 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 should be forbidden by default, unless the specific concentration is indisputably not impeding contestable and fair markets in the digital sector. The burden of proof for this lies on the gatekeeper.
Amendment 144 #
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 167 #
Proposal for a regulation
Recital 42
Recital 42
(42) The advertising revenues for many online advertising services, such as traditional publishers, have significantly declined, whereas the advertising revenues for gatekeepers have steadily increased. The conditions under which gatekeepers provide online advertising services to business users including both advertisers and publishers are very often non- transparent and opaque. This opacity is plartgely linked to the practices of a few platforms, but is also due to the sheer complexity of modern day programmatic advertising. The online advertising sector is considered to have become more non- transparent after the introduction of new privacy legislation, and is expected to become even more opaque with the announced removal of third-party cookies. This often leads to a lack of trustworthy information and knowledge for advertisers and publishers about the conditions of the advertising services they purchased and undermines their ability to switch to alternative providers of online advertising services or build their own service. Furthermore, the costs of online advertising are likely to besignificantly higher than they would be in a fairer, more transparent and contestable platform environment. These higher costs are likely to be reflected in the prices that end users pay for many daily products and services relying on the use of online advertising. Transparency obligations should therefore require gatekeepers to provide advertisers and publishers to whom they supply online advertising services, when requested and to the extent possible, with information that allows both sides to understand the price paid for each of the different advertising services provided as part of the relevant advertising value chain. In addition, a few dominant platforms have gathered significant sets of data and data points, which erodes the exclusive trademarks of publishers and advertisers and extracts their client's data, creating unfair competition. Transparency obligations should therefore require gatekeepers to provide advertisers and publishers to whom they supply online advertising services continuous, real-time and free of charge access to the performance measuring tools of the gatekeeper and provide for entire disclosure and transparency of the parameters and data used for with information that allows both sides to understand the price paid for each of the different advertising services provided as part of the relevant advertising value chain. A gatekeeper should further provide, free of charge, reliable, non-aggregated, granular and complete data necessary for advertisers and publishers to carry out their own independent high-quality and real-time evaluation of intermediation services, including verification of the ad inventory. Moreover, a prohibition on combining data sets should prevent tracking of end users and thereby level the playing field for providers of online advertising services, strengthening funding of public media and restoring privacy of end-users.
Amendment 169 #
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.
Amendment 170 #
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 yearfour 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 172 #
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 sconcentrations within the meaning of Article 3 of Regulation (EC) No 139/2004 or any agreement or series of agreements having a substantially similar effector. 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 two years should be forbidden by default, unless the specific concentration is indisputably not impeding contestable and fair markets in the digital sector. The burden of proof for this lies on the gatekeeper.
Amendment 179 #
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 architectures, 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 183 #
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 usand in orders 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 mannerimpede business models that are based on the collection of users’ personal data, combining personal data should be prohibited.
Amendment 190 #
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 service or availability, through other distribution 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 or availability. Such a restriction 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 194 #
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, judicial or other public authorities. 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 198 #
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 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 200 #
Proposal for a regulation
Recital 42
Recital 42
(42) The advertising revenues for many online advertising services, such as traditional publishers, have significantly declined, whereas the advertising revenues for gatekeepers have steadily increased1a. The conditions under which gatekeepers provide online advertising services to business users including both advertisers and publishers are very often non- transparent and opaque. This opacity is plartgely linked to the practices of a few platforms, but is also due to the sheer complexity of modern day programmatic advertising. The online advertising sector is considered to have become more non- transparent after the introduction of new privacy legislation, and is expected to become even more opaque with the announced removal of third-party cookies. This often leads to a lack of trustworthy information and knowledge for advertisers and publishers about the conditions of the advertising services they purchased and undermines their ability to switch to alternative providers of online advertising services or build their own service. Furthermore, the costs of online advertising are likely to besignificantly higher than they would be in a fairer, more transparent and contestable platform environment. These higher costs are likely to be reflected in the prices that end users pay for many daily products and services relying on the use of online advertising. Transparency obligations should therefore require gatekeepers to provide advertisers and publishers to whom they supply online advertising services, when requested and to the extent possible,In addition, a few dominant platforms have gathered significant sets of data and data points, which erodes the exclusive trademarks of publishers and advertisers and extracts their client's data, creating unfair competition. Transparency obligations should therefore require gatekeepers to provide advertisers and publishers to whom they supply online advertising services continuous, real-time and free of charge access to the performance measuring tools of the gatekeeper and provide for entire disclosure and transparency of the parameters and data used for with information that allows both sides to understand the price paid for each of the different advertising services provided as part of the relevant advertising value chain. A gatekeeper should further provide, free of charge, reliable, non-aggregated, granular and complete data necessary for advertisers and publishers to carry out their own independent high-quality and real-time evaluation of intermediation services, including verification of the ad inventory. Moreover, a prohibition on combining data sets should prevent tracking of end users and thereby level the playing field for providers of online advertising services, strengthening funding of public media and restoring privacy of end users. _________________ 1ahttps://trackingfreeads.eu/the-costs-of- tracking-ads/
Amendment 207 #
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, software application stores or ancillary services are pre-installed by a gatekeeper. To enable end user choice, gatekeepers should not prevent end users from un- -installing any pre-installed software applications on its core platform service and thereby favour their own software applications, without prejudice to applications essential for the integrity of the service, operating system or the device and which cannot technically be offered on a standalone basis by third parties.
Amendment 211 #
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 end users to install 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 should 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 212 #
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 cooperate with 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 on 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 throughSuch preferential or embedded display should constitute an inadmissible preference, irrespective of whether the information or results may also be provided by competing services and are as such ranked in a non-discriminatory way. Inadmissible preferencing can also take place in other instances, such as 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 listed in core platform service settings, or the results provided by a virtual 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 220 #
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 222 #
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 use open protocols, such as Application Programming Interface, lowers significantly the barriers to entry for potential competitors on the market, 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 229 #
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 a continuous, real-time and free of charge access to the performance measuring tools of the gatekeeper and the information necessaryprovide for entire disclosure and transparency of the parameters and data used for decision making, execution and measurement of the intermediation services 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. A gatekeeper should further provide, free of charge, reliable, non-aggregated, granular and complete data necessary for advertisers and publishers to carry out their own independent high-quality and real-time evaluation of intermediation services, including verification of the ad inventory. 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 235 #
Proposal for a regulation
Recital 55
Recital 55
(55) Business users that use large core platform services provided by gatekeepers and end users of such business users provide and generate a vast amount of data, including data inferred from such use. In order to ensure that business users have access to the relevant data thus generated, the gatekeeper should, upon their request, allow unhindered access, free of charge, to such data. Such access should also be given to third parties contracted by the business user, who are acting as processors of this data for the business user. Data provided or generated by the same business users and the same end users of these business users in the context of other services provided by the same gatekeeper may be concerned where this is inextricably linked to the relevant request. To this end, a gatekeeper should not use any contractual or other restrictions to prevent business users from accessing relevant data and should enable business users to obtain consent of their end users for such data access and retrieval, where such consent is required under Regulation (EU) 2016/679 and Directive 2002/58/EC. Gatekeepers should also facilitate access to these data in real time by means of appropriate technical measures, such as for example putting in place high quality application programming interfaces.
Amendment 237 #
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 and technical cooperation, 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. Furthermore, gatekeepers should ensure organic search results are given an equal ranking as sponsored and paid- for results.
Amendment 258 #
Proposal for a regulation
Recital 61
Recital 61
(61) The data protection and privacy interests of end users are relevant to any assessment of potential negative effects of the observed practice of gatekeepers to collect and accumulate large amounts of data from end users. EIn order to ensuringe an adequate level of transparency of profiling practices employed by gatekeepers facilitates contestability of core platform services, by puttingdata and consumer protection, external pressure should be put on gatekeepers to prevent making deep consumer profiling the industry standard, in particular given that potential entrants or start-up providers cannot access data to the same extent and depth, and at a similar scale. Enhanced transparency should allow other providers of core platform services to differentiate themselves better through the use of superior privacy guaranteeing facilities. To ensure a minimum level of effectiveness of this transparency obligation, gProviders of core platform services should commit to superior privacy guaranteeing facilities. Business models that are based on the commercial tracking and profiling of consumers should be proscribed. To that end the mixing of data from different services should be prohibited. Gatekeepers should at least provide a description of the basis upon which profiling is performed, including whether personal data and data derived from user activity is relied on, the processing applied, the purpose for which the profile is prepared and eventually used, the impact of such profiling on the gatekeeper’s services, and the steps taken to enable end users to be aware of the relevant use of such profiling, as well as to seek their consent. Such information should be shared with other relevant enforcement authorities, in particular Data Protection Authorities.
Amendment 262 #
Proposal for a regulation
Article 1 – paragraph 1
Article 1 – paragraph 1
1. This Regulation lays down harmonised rules ensuring contestable and fair markets in the digital sector and plurality of media across the Union where gatekeepers are present.
Amendment 267 #
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 270 #
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 authorities, 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 274 #
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. The relevant national authorities may include competition authorities, consumer protection authorities and data protection authorities and other relevant national regulators.
Amendment 278 #
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 287 #
Proposal for a regulation
Article 1 – paragraph 1
Article 1 – paragraph 1
1. This Regulation lays down harmonised rules ensuring contestable and fair markets in the digital sector and plurality of media across the Union where gatekeepers are present.
Amendment 297 #
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 is also without prejudice to 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 . It is as well without prejudice to Regulation (EU) 2019/1150; Regulation (EU) 2016/679; Directive 2002/58/EC and Directive 2005/29/EC of the European Parliament and of the Council and Council Directive 93/13/EEC. _________________ 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 302 #
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 303 #
Proposal for a regulation
Article 2 – paragraph 1 – point 2 – point c a (new)
Article 2 – paragraph 1 – point 2 – point c a (new)
(c a) online on-demand audiovisual media services;
Amendment 304 #
Proposal for a regulation
Article 2 – paragraph 1 – point 2 – point c b (new)
Article 2 – paragraph 1 – point 2 – point c b (new)
(c b) online on-demand audio media services;
Amendment 305 #
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 308 #
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 315 #
Proposal for a regulation
Article 2 – paragraph 1 – point 2 – point h
Article 2 – paragraph 1 – point 2 – point h
(h) advertising services, including any advertising networks, advertising exchanges and any other advertising intermediation services, provided by any undertaking of the provider of any of the core platform services listed in points (a) to (g);
Amendment 326 #
Proposal for a regulation
Article 2 – paragraph 1 – point 6 a (new)
Article 2 – paragraph 1 – point 6 a (new)
Amendment 327 #
Proposal for a regulation
Article 2 – paragraph 1 – point 7 a (new)
Article 2 – paragraph 1 – point 7 a (new)
(7 a) "Online on-demand audiovisual media service" means a service as defined in point (g) of Article 1(1) of Directive (EU) 2010/13;
Amendment 328 #
Proposal for a regulation
Article 2 – paragraph 1 – point 7 b (new)
Article 2 – paragraph 1 – point 7 b (new)
(7 b) "Online on-demand audio media service" (i.e. a non-linear audio media service) means an audio media service provided by a media service provider for the listening of programmes at the moment chosen by the user and at his individual request on the basis of a catalogue of programmes selected by the media service provider;
Amendment 329 #
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 332 #
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 343 #
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 or provided through online intermediation services or, online social networking services, video-sharing platform services, operating systems, web browsers, 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 networking services or by providers of online search enginsuch services, respectively, whatever the technological means used for such presentation, organisation or communication;
Amendment 344 #
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 357 #
Proposal for a regulation
Article 3 – title
Article 3 – title
3 DesignQualification ofas gatekeepers
Amendment 359 #
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 360 #
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 end users or end users to reach other end users or business users; and
Amendment 363 #
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 366 #
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 threone Member States;
Amendment 370 #
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 aone or more core platform service that hass combining more than 4523 million monthly active end users established or located in the Union and more than 107 000 yearly active business users per year established in the Union during the last financial year;
Amendment 374 #
Proposal for a regulation
Article 3 – paragraph 2 – point c
Article 3 – paragraph 2 – point c
(c) the requirement in paragraph 1 point (c) where the thresholds in point (b) were met in each of the last threewo financial years.
Amendment 385 #
Proposal for a regulation
Article 3 – paragraph 4
Article 3 – paragraph 4
Amendment 391 #
Proposal for a regulation
Article 3 – paragraph 4 – subparagraph 1
Article 3 – paragraph 4 – subparagraph 1
Amendment 395 #
Proposal for a regulation
Article 3 – paragraph 6 – introductory part
Article 3 – paragraph 6 – introductory part
6. The Commission may identify as a gatekeeper, in accordance with the procedure laid down in Article 15, any provider of core platform services that meets each of the requirements of paragraph 1, but does not satisfy each of the thresholds of paragraph 2, or has presented sufficiently substantiated arguments in accordance with paragraph 4.
Amendment 401 #
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 418 #
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 420 #
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, article 25 and 26 are triggered.
Amendment 426 #
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), and at least every year or 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 428 #
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 436 #
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 other core platform services, any other services offered by the gatekeeper or with personal data from third-party services, and fromnot sign ing in business users and 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 444 #
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 through its own online services or distribution channels at prices or conditions that are different from those offered through the online intermediation services of the gatekeeper;
Amendment 454 #
Proposal for a regulation
Article 5 – paragraph 1 – point d
Article 5 – paragraph 1 – point d
(d) refrain fromnot directly or indirectly preventing or restricting business users and end users from raising issues with any relevant public authority or judicial authority relating to any practice of gatekeepers;
Amendment 458 #
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 any ancillary or identification service of the gatekeeper itself, or third parties belonging to the same undertaking, in the context of services offered by the business users using the core platform services of that gatekeeper;
Amendment 465 #
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 use, 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 Articleservice of the gatekeeper as a condition to access, sign up or register to any of their core platform services nor achieve the same result through product design, nor automatically sign users of a core platform service into any such services owned or controlled by the gatekeeper;
Amendment 467 #
Proposal for a regulation
Article 5 – paragraph 1 – point f a (new)
Article 5 – paragraph 1 – point f a (new)
(f a) not require the acceptance of supplementary conditions that have by their nature or according to commercial usage, no connection with and are not necessary for the provision of the platform or services to its business users;
Amendment 473 #
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, on a continuous and real-time basis, with complete information concerning the price- 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 477 #
Proposal for a regulation
Article 5 – paragraph 1 – point g a (new)
Article 5 – paragraph 1 – point g a (new)
(g a) allow business users to opt out of new, modified or updated terms and conditions requested by the core platform service provider if such modifications to the terms and conditions are not the result of an existing or new legal requirement, and ensure that business users remain listed on the core platform service without experiencing a reduced or downgraded level of service;
Amendment 486 #
Proposal for a regulation
Article 5 – paragraph 1 – point g b (new)
Article 5 – paragraph 1 – point g b (new)
(g b) not use any data that has been generated in the relationship between business users and end users which is not also available to the business user itself;
Amendment 489 #
Proposal for a regulation
Article 5 – paragraph 1 – point g c (new)
Article 5 – paragraph 1 – point g c (new)
(g c) not pre-install any software applications on its core platform services, unless those applications are essential for the integrity of the service, operating system or the device and cannot technically be offered on a standalone basis by third-parties;
Amendment 490 #
Proposal for a regulation
Article 5 – paragraph 1 – point g d (new)
Article 5 – paragraph 1 – point g d (new)
Amendment 491 #
Proposal for a regulation
Article 6 – title
Article 6 – title
Obligations for gatekeepers susceptible of being further technically specified
Amendment 493 #
Proposal for a regulation
Article 6 – paragraph 1 – point a
Article 6 – paragraph 1 – point a
Amendment 497 #
Amendment 503 #
Proposal for a regulation
Article 6 – paragraph 1 – point c
Article 6 – paragraph 1 – point c
(c) allow theand technically enable business users and end users to installation and effective use of third party software applications or software application stores using, or interoperating with, operating systems of that gatekeeper and allow and enable these software applications orand software application stores to be accessed by means other than the core platform services of that gatekeeper. The end user shall be required to decide which application or application store should become the default. The gatekeeper shall not be prevented from taking proportionate measures 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 provided that the gatekeeper can prove that such measures are necessary, proportionate and justified to safeguard the integrity of the hardware or operating system;
Amendment 508 #
Proposal for a regulation
Article 6 – paragraph 1 – point d
Article 6 – paragraph 1 – point d
Amendment 517 #
Proposal for a regulation
Article 6 – paragraph 1 – point g
Article 6 – paragraph 1 – point g
(g) provide advertisers and publishers, upon their request a continuous, real-time 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 independentprovide for full disclosure and transparency of the parameters and data used for decision making, execution and measurement of the intermediation services. A gatekeeper shall further provide, free of charge, reliable, non-aggregated, granular and complete data necessary for advertisers and publishers to carry out their own independent high-quality and real- time evaluation of intermediation services, including verification of the ad inventory;
Amendment 526 #
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 530 #
Proposal for a regulation
Article 6 – paragraph 1 – point f
Article 6 – paragraph 1 – point f
(f) allow business users, end users and providers of ancillary servicesservices to have, to the fullest extent technically supported, access to and interoperability with the same operating system, hardware or software features that are available or used in the provision by the gatekeeper of any core and ancillary services by providing complete and accurate information, while guaranteeing a high level of security and personal data protection;
Amendment 539 #
Proposal for a regulation
Article 6 – paragraph 1 – point g
Article 6 – paragraph 1 – point g
(g) provide advertisers and publishers, upon their request a continuous, real-time 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 independentprovide for full disclosure and transparency of the parameters and data used for decision making, execution and measurement of the intermediation services. A gatekeeper shall further provide, free of charge, reliable, non-aggregated, granular and complete data necessary for advertisers and publishers to carry out their own independent high-quality and real- time evaluation of intermediation services, including verification of the ad inventory;
Amendment 548 #
Proposal for a regulation
Article 6 – paragraph 1 – point h
Article 6 – paragraph 1 – point h
(h) provide effective portability of data generated through, including by implementing appropriate technical and organisational measures, generated through or in the context of 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 555 #
Proposal for a regulation
Article 6 – paragraph 1 – point i
Article 6 – paragraph 1 – point i
(i) provide business users and end users, or third parties authorised by a business user or end user, free of charge, in a user-friendly manner with effective, high-quality, continuous and real-time access and use of aggregated orand 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, with the consent of the data subject, access and use to those data 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 in line with the principles of purpose limitation and data minimisation, and when the end user opts in to such sharing with a consent in the sense of the Regulation (EU) 2016/679; ;
Amendment 560 #
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 565 #
Proposal for a regulation
Article 6 – paragraph 1 – point k
Article 6 – paragraph 1 – point k
(k) apply transparent, 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 584 #
Proposal for a regulation
Article 6 – paragraph 1 a (new)
Article 6 – paragraph 1 a (new)
1 a. Affected third parties that have a legitimate interest should be part of the regulatory dialogue.
Amendment 585 #
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 shall publish the technical specifications for individual gatekeepers, without prejudice to business secrets.
Amendment 587 #
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 600 #
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 610 #
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 615 #
Proposal for a regulation
Article 7 – paragraph 7
Article 7 – paragraph 7
7. A gatekeeper may request within the implementation deadline of Article 3(8) 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. The Commission shall adopt its decision within six months from the opening of proceedings pursuant to Article 18.
Amendment 626 #
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 639 #
Proposal for a regulation
Article 10 – paragraph 2 – point a
Article 10 – paragraph 2 – point a
(a) there is an imbalance of rights and obligations on business users or end users and the gatekeeper is obtaining an advantage from business users that is disproportionate to the service provided by the gatekeeper to business users or end users; or
Amendment 645 #
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 itself as well as by undertakings to which it belongs. 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, shall not engage in any behaviour regardless of whether this behaviour is of a contractual, commercial, technical or any other nature, which is able to have an equivalent object or effect to a behaviour prohibited pursuant to Articles 5 and 6.
Amendment 649 #
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, and shall offer users a choice in a neutral way, safeguarding the autonomous decision-making of business users or end users via form, function or operation of the user interface.
Amendment 655 #
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 architectures.
Amendment 657 #
Proposal for a regulation
Article 11 – paragraph 3 a (new)
Article 11 – paragraph 3 a (new)
3 a. A gatekeeper shall not obstruct or dissuade end users from switching to software applications and services nor directly or indirectly circumvent any of the obligations laid down in Articles 5 and 6 nor by use manipulative choice architectures.
Amendment 658 #
Proposal for a regulation
Article 11 – paragraph 3 b (new)
Article 11 – paragraph 3 b (new)
3 b. The right for the maker of a database provided for in Article 7(1) of Directive 96/9/EC shall not be exercised by a gatekeeper in such a way that prevents the re-use of data or restricts its re-use beyond the limits set by this Regulation.
Amendment 661 #
Proposal for a regulation
Article 12 – title
Article 12 – title
12 Obligation to inform about cConcentrations
Amendment 665 #
Proposal for a regulation
Article 12 – paragraph 1 – introductory part
Article 12 – paragraph 1 – introductory part
1. A gatekeeper shall informnotify to the Commission of any intended concentration within the meaning of Article 3 of Regulation (EC) No 139/2004 involving another provider of core platfor any agreement orm servicies or of any other services provided in the digital sf agreements having a substantially similar effector, 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 666 #
Proposal for a regulation
Article 12 – paragraph 1 – subparagraph 1
Article 12 – paragraph 1 – subparagraph 1
A gatekeeper shall informnotify to 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 671 #
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 675 #
Proposal for a regulation
Article 12 – paragraph 3 a (new)
Article 12 – paragraph 3 a (new)
3 a. The information gathered pursuant to this Article may be used in parallel competition cases, especially for purposes of merger control.
Amendment 677 #
Proposal for a regulation
Article 12 – paragraph 3 b (new)
Article 12 – paragraph 3 b (new)
3 b. If an undertaking is to be considered a gatekeeper according to Article 3 of this Regulation for longer than 2 years, any concentration shall be forbidden, unless the specific concentration is indisputably not impeding contestable and fair markets in the digital sector. The burden of proof for this lies on the gatekeeper.
Amendment 682 #
Proposal for a regulation
Article 13 – paragraph 1
Article 13 – paragraph 1
Within six months after its designfirst qualification pursuant to Article 3, a gatekeeper shall submit to the Commission and Data Protection Authorities an independently audited description of any techniques for profiling of consumersbusiness users and end users and the personalisation of their service 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 690 #
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 693 #
Proposal for a regulation
Article 15 – paragraph 3
Article 15 – paragraph 3
Amendment 697 #
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 703 #
Proposal for a regulation
Article 16 – paragraph 1
Article 16 – paragraph 1
1. Where the market investigation shows that a gatekeeper has systematically infringed the obligations laid down in Articles 5 and 6 and has further strengthened or extended its gatekeeper position in relation to the characteristics under Article 3(1), the Commission mayshall 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 full 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 711 #
Proposal for a regulation
Article 16 – paragraph 4
Article 16 – paragraph 4
Amendment 716 #
Proposal for a regulation
Article 16 – paragraph 6 a (new)
Article 16 – paragraph 6 a (new)
6 a. 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 720 #
Proposal for a regulation
Article 17 – paragraph 1
Article 17 – paragraph 1
The Commission 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 2418 months from the opening of the market investigation.
Amendment 727 #
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 fulfilled within a period of 3 weeks, the Commission may require this information by decision.
Amendment 730 #
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. They shall 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 738 #
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 744 #
Proposal for a regulation
Article 24 – paragraph 2 a (new)
Article 24 – paragraph 2 a (new)
2 a. Member States shall designate authorities with particular expertise and experience to assist the Commission in the enforcement of this Regulation. Those authorities shall support the Commission in the tasks of monitoring and investigating compliance. The Commission shall entitle designated authorities to use the powers enshrined in Articles 19, 20 and 21 for this purpose as well as to receive complaints from end users and business users on non- compliance by gatekeepers in their territory to report them to the Commission.
Amendment 746 #
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 751 #
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 755 #
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 760 #
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 761 #
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 766 #
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 769 #
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 773 #
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 776 #
Proposal for a regulation
Article 30 – paragraph 1 – introductory part
Article 30 – paragraph 1 – introductory part
1. Before adopting a decision pursuant to Article 7, Article 8(1), Article 9(1), Articles 15, 16, 22, 23, 25 and 26 and Article 27(2), the Commission shall give the gatekeeper or undertaking or association of undertakings concerned and third parties with a legitimate interest the opportunity of being heard on:
Amendment 778 #
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 783 #
Proposal for a regulation
Article 31 – paragraph 1
Article 31 – paragraph 1
1. The information collected pursuant to Articles 3, 12, 13, 19, 20 and 21 shall be used only for the purposes of this Regulation.
Amendment 784 #
Proposal for a regulation
Article 31 – paragraph 2
Article 31 – paragraph 2
2. Without prejudice to the exchange and to the use of information provided for the purpose of use pursuant to Articles 12, 13, 32 and 33, the Commission, the authorities of the Member States, their officials, servants and other persons working under the supervision of these authorities and any natural or legal person, including auditors and experts appointed pursuant to Article 24(2), shall not disclose information acquired or exchanged by them pursuant to this Regulation and of the kind covered by the obligation of professional secrecy. This obligation shall also apply to all representatives and experts of Member States participating in any of the activities of the Digital Markets Advisory Committee pursuant to Article 32.
Amendment 789 #
Proposal for a regulation
Article 33 – title
Article 33 – title
33 Request for a market investigation and non-compliance proceedings
Amendment 803 #
Proposal for a regulation
Article 33 a (new)
Article 33 a (new)
Article 33 a In Annex I to Directive (EU) 2020/1828 of the European Parliament and of the Council, 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.