Activities of Markus BUCHHEIT related to 2020/0374(COD)
Plenary speeches (1)
Digital Services Act - Digital Markets Act (debate)
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 (100)
Amendment 103 #
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 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 112 #
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 with the particular platform service offered. Such undertakings should in any event be subject to a fast designation process which should start upon the entry into force of this Regulation.
Amendment 113 #
Proposal for a regulation
Recital 17
Recital 17
(17) AThe provision of and a very significant turnover in the Union and the provision of a core platform service in at least three Member Stateswith a core platform service in the Union 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 turnoverthe Union and where either its turnover with providing core platforms 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 with providing core platforms in conjunction with the threshold of users in the Union of core platform services reflects a relatively strong ability to monetise these users. A high market capitalisation relative to the same threshold number of users in the Union reflects a relatively significant potential to monetise these users in the near future. This monetisation potential in turn reflects in principle the gateway position of the undertakings concerned. Both indicators are in addition reflective of their financial capacity, including their ability to leverage their access to financial markets to reinforce their position. This may for example happen where this superior access is used to acquire other undertakings, which ability has in turn been shown to have potential negative effects on innovation. Market capitalisation can also be reflective of the expected future position and effect on the internal market of the providers concerned, notwithstanding a potentially relatively low current turnover. The market capitalisation value can be based on a level that reflects the average market capitalisation of the largest publicly listed undertakings in the Union over an appropriate period.
Amendment 115 #
Proposal for a regulation
Recital 18
Recital 18
Amendment 120 #
Proposal for a regulation
Recital 21
Recital 21
(21) An entrenched and durable position in its operations or the foreseeability of achieving such a position future occurs notably where the contestability of the position of the provider of the core platform service is limited. This is likely to be the case where that provider has provided a core platform service in at least three Member States to a very high number of business users and end users during at least three years.
Amendment 132 #
Proposal for a regulation
Recital 3
Recital 3
(3) A small number of large – non- European and notably American – 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 and abuse their position, 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 – to the detriment of European businesses and consumers.
Amendment 133 #
Proposal for a regulation
Recital 28
Recital 28
Amendment 138 #
Proposal for a regulation
Recital 7
Recital 7
(7) Therefore, bBusiness users and end- users of core platform services provided by gatekeepers should be afforded appropriate regulatory safeguards throughout the Union and the Member States 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. 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 and unfair business conditions and practices in different Member States, which is liable to create disparities between thewhich create unequal competitive conditions for the users of core platform services provided by gatekeepers, to the detriment of integration with and prevent commercial alternatives, including future innovative players and European digital businesses and SMEs, from entering and operating in the interndigital market.
Amendment 139 #
Proposal for a regulation
Recital 8
Recital 8
(8) By approximating diverging national laws, obstacles to the freedom to provide and rWhile the harmonisation of the internal market is not an objecetive services, including retail services, withinin itself, fragmentation of the internal market should be eliminated. A targeted set of harmonised mandatory rules should therefore be established at Union level as far as possible, in pursuit of the objective of that regulation, which is to ensure contestable and fair digital markets featuring the presence of gatekeepers within the internal marketor the benefit of European consumers and businesses.
Amendment 146 #
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, sSince 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 198 #
Proposal for a regulation
Recital 53
Recital 53
(53) The conditions under which gatekeepers provide online advertising services to business users including both advertisers and publishers are often non- transparent and opaque. This often leads to a lack of information for advertisers and publishers about the effect of a given ad. To further enhance fairness, transparency and contestability of online advertising services designated under this Regulation as well as those that are fully integrated with other core platform services of the same provider, the designated gatekeepers should therefore provide advertisers and publishers, when requested, with free of charge access to the performance measuring tools of the gatekeeper and the information necessary for advertisers, advertising agencies acting on behalf of a company placing advertising, as well as for publishers to carry out their own independent verification of the provision of the relevant online advertising services.
Amendment 204 #
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 and national competition rules, shows that they have a particularly negative direct impact on the business users and end users as well as businesses operating in the digital market including innovative players and European digital businesses and SMEs. In addition, it is necessary to provide for the possibility of a regulatory dialogue with gatekeepers to tailor those obligations that are likely to require specific implementing measures in order to ensure their effectiveness and proportionality. The obligations should only be updated after a thorough investigation on the nature and impact of specific practices that may be newly identified, following an in-depth investigation, as unfair or limiting contestability in the same manner as the unfair practices laid down in this Regulation while potentially escaping the scope of the current set of obligations.
Amendment 204 #
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 218 #
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. This exemption must be transparent and comprehensible to the public. 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.
Amendment 222 #
Proposal for a regulation
Recital 62
Recital 62
(62) In order to ensure the full and lasting achievement of the objectives of this Regulation, the Commission should be able to assess whether a provider of core platform services should be designated as a gatekeeper without meeting the quantitative thresholds laid down in this Regulation; wWhether systematic non- compliance by a gatekeeper warrants imposing additional remedies; and whether the list of obligations addressing unfair practices by gatekeepers should be reviewed and additional practices that are similarly unfair and limiting the contestability of digital markets should be identified. Such assessment should be based on market investigations to be run in an appropriate timeframe, by using clear procedures and deadlines, in order to support the ex ante effect of this Regulation on contestability and fairness in the digital sector, and to provide the requisite degree of legal certainty.
Amendment 230 #
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, end users and disadvantaged European enterprises to raise concerns about unfair behaviour by gatekeepers with any relevant administrative 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 235 #
Proposal for a regulation
Recital 68
Recital 68
Amendment 238 #
Proposal for a regulation
Recital 69
Recital 69
(69) The Commission should be empowered to request information necessary for the purpose of this Regulation, throughout the Union. In particular, the Commission should have access to any relevant documents, data, database, algorithm and information necessary to open and conduct investigations and to monitor the compliance with the obligations laid down in this Regulation, irrespective of who possesses the documents, data or information in question, and regardless of their form or format, their storage medium, or the place where they are stored.
Amendment 266 #
Proposal for a regulation
Article 1 – paragraph 3 – point b a (new)
Article 1 – paragraph 3 – point b a (new)
(b a) Due to the structural differences between B2C and B2B-only and industry- only platforms, the latter two shall be exempted from the regulation;
Amendment 317 #
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. This procedure may be initiated at the request of a competent national authority. The competent national authorities shall be consulted during the procedure.
Amendment 325 #
Proposal for a regulation
Recital 60
Recital 60
(60) IA national competent authority within its territory or the Commission within the Union may decide, 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, for a maximum period of one year, 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.
Amendment 330 #
Proposal for a regulation
Recital 61
Recital 61
(61) The data protection and privacy interests of end users are relevantessential to any assessment of potential negative effects of the observed practice of gatekeepers to collect and accumulate large amounts of data from end users. Ensuring an adequate level of transparency of profiling practices employed by gatekeepers facilitates contestability of core platform services, by putting external pressure on gatekeepers to prevent making deep consumer profiling the industry standard, 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, 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.
Amendment 337 #
Proposal for a regulation
Recital 64
Recital 64
(64) TAt the request of the European High-Level Group of Digital Regulators established by this Regulation, or on its own initiative, the Commission shouldall investigate and assess whether additional behavioural, or, where appropriate, structural remedies are justified, in order to ensure that the gatekeeper cannot frustratethwart the objectives of this Regulation by systematically non-t complianceying with one or severalmore of the obligations laid down in this Regulation, which has further strengthened its gatekeeper position. This would be the case if the gatekeeper’s size in the internal market has further increased, economic dependency of business users and end users on the gatekeeper’s core platform services has further strengthened as their number has further increased and the gatekeeper benefits from increased entrenchment of itsthereby maintaining or strengthening its gatekeeper position. The Commission should therefore in such cases have the power to impose, any remedy, whether behavioural or structural, having due regard to the principle of proportionality. St the request of the European High-Level Group of Digital Regulators, any necessary remedy, including structural remedies, suc through as legal, functional or structural separation, including or the divestiture of a business, or parts of it, should only be imposed either where there is no equally effective behavioural remedy or where any equally effective behavioural remedy would be more burdensome for the undertaking concerned than the structural remedy. Changes to the structure of an undertaking as it existed before the systematic non-compliance was established would only be proportionate where there is a substantial risk that this systematic non-compliance results from the very structure of the undertaking concernedin order to ensure compliance with the objectives of this Regulation.
Amendment 344 #
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, after having consulted the European High-Level Group of Digital Regulators or on a proposal by that group, 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 348 #
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 with the particular core plattform, 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 with the particular core plattform service in at least three Member States;
Amendment 353 #
Proposal for a regulation
Recital 68
Recital 68
(68) In order to ensure effective implementation and compliance with this Regulation, the Commission should haveand the Member States should pool their 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 356 #
Proposal for a regulation
Recital 70
Recital 70
(70) The Commission should be able to directly request that undertakings or association of undertakings provide any relevant evidence, data and information. In addition, the Commission should be able to request any relevant information from any public authority, body or agency within the Member State, or from any natural person or legal person for the purpose of this Regulation. WhenAny complying with a decision of the Commission, uetent national authority may initiate an investigation and provide information which the Commission must take into account in its assessments. Undertakings are obliged to answer factual questions and to provide documents.
Amendment 358 #
Proposal for a regulation
Article 3 – paragraph 3 a (new)
Article 3 – paragraph 3 a (new)
3 a. Where a company has been categorised as a gatekeeper, the Commission shall determine which service offered is considered a core platform service and thus becomes subject to the obligations of Articles 5 and 6.
Amendment 363 #
Proposal for a regulation
Recital 73
Recital 73
(73) Compliance with the obligations imposed under this Regulation should be enforceable by means of fines and, periodic penalty payments. To that end, appropriate levels of fin, behavioural and structural measures, and, periodic penalty payments should also be laid down for non-compliance with the obligations and breach of the procedural rules subject to appropriate limitation periods. The Court of Justice should have unlimited jurisdiction in respect of fines and penalty paymentsossibly, personal sanctions against the directors, representatives or employees responsible for the failing within the undertaking concerned.
Amendment 369 #
Proposal for a regulation
Recital 75 a (new)
Recital 75 a (new)
(75a) In order to ensure cooperation and coordination between the Commission and the Member States in their implementing measures, it is essential to set up a European High-Level Group of Digital Regulators, which will identify priorities, provide direct guidance to the Commission and offer advice. The establishment of the High-Level Group should promote the exchange of information and best practices between Member States, as well as better monitoring and more rigorous implementation, which together will ensure that gatekeepers comply with this Regulation.
Amendment 374 #
Proposal for a regulation
Recital 78 a (new)
Recital 78 a (new)
(78a) Points out that the development of a European industrial and technological base in the digital sector requires the introduction of a European preference for local or European production in digital procurement in Europe;
Amendment 375 #
Proposal for a regulation
Recital 78 b (new)
Recital 78 b (new)
(78b) Stresses that the personal data of European citizens should preferably be processed in Europe.
Amendment 376 #
Proposal for a regulation
Recital 79 – introductory part
Recital 79 – introductory part
(79) The objective of this Regulation is to ensure a contestable and fair digital sector in general and core platform services in particular, with a view to promoting innovation, high quality of digital products and services, fair and competitive prices, as well as a high quality and choice for end users in the digital sector. This cannot be sufficiently achieved by the Member States, but can only, by reason of the business model and operae Regulation should also create the conditions ofor the gatekeepers and the scale and effects of their operations, be fully achieved at Union leveldevelopment of the digital sector in Europe. The Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve that objective.
Amendment 378 #
Proposal for a regulation
Article 3 – paragraph 6 – subparagraph 1 – point a
Article 3 – paragraph 6 – subparagraph 1 – point a
(a) the size, including turnover and market capitalisationwith the core platform, operations and position of the provider of core platform services as well as its market share and competitors;
Amendment 383 #
Proposal for a regulation
Article premier – paragraph 1
Article premier – paragraph 1
1. This Regulation layse purpose of this Regulation is to contribute to the proper functioning of the internal market and consumer protection by laying down harmonised rules ensuring contestable and fair markets in the digital sector across the Union for European undertakings, including SMEs, where gatekeepers are present.
Amendment 395 #
Proposal for a regulation
Article premier – paragraph 5
Article premier – paragraph 5
5. Member States shall notmay, in keeping with the spirit of this Regulation, 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 and 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 410 #
Proposal for a regulation
Article premier – paragraph 7
Article premier – paragraph 7
7. National authorities shall not take decisions against the spirit of the Regulation which would run counter to a decision adopted by the Commission on a proposal by the High-Level Group under this Regulation. The Commission and Member States shall work in close cooperation and coordination in their investigation, supervisory and enforcement actions.
Amendment 520 #
Proposal for a regulation
Article 6 – paragraph 1 – point g
Article 6 – paragraph 1 – point g
(g) provide advertisers and publishers, upon their request and free of charge, with access to the performance measuring tools of the gatekeeper and the information necessary for advertisers and publishers to carry out their own independent verification of the ad inventory;
Amendment 533 #
Proposal for a regulation
Article 6 – paragraph 1 – point i
Article 6 – paragraph 1 – point i
(i) provide business users, or third parties authorised by a business user, free of charge, with effective, high-quality, continuous and real-time access and use of aggregated or non-aggregated data, that is provided for or generated in the context of the use of the relevant core platform services by those business users and the end users engaging with the products or services provided by those business users; for personal data, provide access and use only where directly connected with the use effectuated by the end user in respect of the products or services offered by the relevant business user through the relevant core platform service, and when the end user opts in to such sharing with a consent in the sense of the Regulation (EU) 2016/679; ;
Amendment 584 #
Proposal for a regulation
Article 9 – paragraph 1
Article 9 – paragraph 1
1. The Commission may, acting on a reasoned request by a gatekeeper or on its own initiative, by decision adopted in accordance with the advisory procedure referred to in Article 32(4), exempt it, in whole or in part, from a specific obligation laid down in Articles 5 and 6 in relation to an individual core platform service identified pursuant to Article 3(7), where such exemption is justified on the grounds set out in paragraph 2 of this Article. The Commission shall adopt the exemption decision at the latest 3 months after receiving a complete reasoned request; this process shall be transparent and traceable for the public.
Amendment 592 #
Proposal for a regulation
Chapter III – title
Chapter III – title
III In respect of each of its core platform services identified pursuant to Article 3(7), aContestability of markets and limits to certain unfair practices of gatekeeper shall:s
Amendment 607 #
Proposal for a regulation
Article 5 – paragraph 1 – point a a (new)
Article 5 – paragraph 1 – point a a (new)
(a a) Any multinational gatekeeper wishing to continue operating in the internal market must establish itself in the European Union and develop local jobs.
Amendment 608 #
Proposal for a regulation
Article 5 – paragraph 1 – point a b (new)
Article 5 – paragraph 1 – point a b (new)
(a b) The creation of local jobs shall be used by the competent national authorities and the Commission in the procedures to determine whether the gatekeepers have fulfilled their obligations.
Amendment 634 #
Proposal for a regulation
Article 5 – paragraph 1 – point d
Article 5 – paragraph 1 – point d
(d) refrain from preventing or restricting business users, end users or whistleblowers from raising issues with any relevant public authority relating to any practice of gatekeepers, and also refrain from identifying them;
Amendment 642 #
Proposal for a regulation
Article 5 – paragraph 1 – point e
Article 5 – paragraph 1 – point e
(e) refrain from requiring business users to use, offer or interoperate with an identification service of the gatekeeper or with a specific payment service (Visa, Mastercard, payment service of the gatekeeper or other) in the context of services offered by the business users using the core platform services of that gatekeeper;
Amendment 664 #
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 of undertakings and request explanations on those by a simple request or by a decision.
Amendment 671 #
Proposal for a regulation
Article 21 – paragraph 3
Article 21 – paragraph 3
3. During on-site inspections the Commission and auditors or experts appointed by it may require the undertaking or association of undertakings to provide access to and explanations on its organisation, functioning, IT system, algorithms, data-handling and business conducts. The Commission and auditors or experts appointed by it may address questions to key personnel.
Amendment 695 #
Proposal for a regulation
Article 5 – paragraph 1 – point g a (new)
Article 5 – paragraph 1 – point g a (new)
(g a) not acquire directly or indirectly any undertaking in a killer acquisition.
Amendment 697 #
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 10% of its total turnover generated by the core platform in the preceding financial year where it finds that the gatekeeper, intentionally or negligently, fails to comply with:
Amendment 699 #
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 1% of the total turnover generated by the core platform in the preceding financial year where they intentionally or negligently:
Amendment 702 #
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 10 % of its total turnover generated by the core platform in the preceding financial year.
Amendment 703 #
Proposal for a regulation
Article 27 – paragraph 1 – introductory part
Article 27 – paragraph 1 – introductory part
1. The Commission may by decision impose on undertakings, including gatekeepers where applicable, periodic penalty payments not exceeding 5 % of the average daily turnover generated by the core platform in the preceding financial year per day, calculated from the date set by that decision, in order to compel them:
Amendment 704 #
Proposal for a regulation
Article 5 – paragraph 1 – point g b (new)
Article 5 – paragraph 1 – point g b (new)
(g b) refrain from retaliating against undertakings which submit complaints or comments to the competent authorities.
Amendment 706 #
Proposal for a regulation
Article 5 – paragraph 1 a (new)
Article 5 – paragraph 1 a (new)
Gatekeepers shall report annually to the Commission the number of employees based in each Member State and the percentage of total global employees for each core platform service identified by this Regulation.
Amendment 859 #
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 873 #
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 threewo months 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 879 #
Proposal for a regulation
Article 7 – paragraph 6 a (new)
Article 7 – paragraph 6 a (new)
6a. A public consultation allows interested businesses and individuals to contribute anonymously and to inform procedures.
Amendment 893 #
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 viabilita risk of bankruptcy. The Commission shall aim to adopt the suspension decision without delay and at the latest 3 months following receipt of a complete reasoned request.
Amendment 900 #
Proposal for a regulation
Article 8 – paragraph 2
Article 8 – paragraph 2
2. Where the suspension is granted pursuant to paragraph 1, the Commission shall review its suspension decision every yearsix months. Following such a review the Commission shall either lift the suspension or decide that the conditions of paragraph 1 continue to be met.
Amendment 901 #
Proposal for a regulation
Article 8 – paragraph 3
Article 8 – paragraph 3
Amendment 907 #
Proposal for a regulation
Article 9 – paragraph 2 – point a
Article 9 – paragraph 2 – point a
Amendment 915 #
Proposal for a regulation
Article 10 – paragraph 1
Article 10 – paragraph 1
1. The Commission is empowered, on a proposal from the High-Level Group, to adopt delegated acts in accordance with Article 34 to update the obligations laid down in Articles 5 and 6 where, based on a market investigation pursuant to Article 17, it has identified the need for new obligations addressing practices that limit the contestability of core platform services or are unfair in the same way as the practices addressed by the obligations laid down in Articles 5 and 6.
Amendment 922 #
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 or end users that is disproportionate to the service provided by the gatekeeper to business users or end users; or
Amendment 928 #
Proposal for a regulation
Article 10 – paragraph 2 – point b
Article 10 – paragraph 2 – point b
(b) the contestability of markets is weakened as a consequence of such a practice engaged in by gatekeepers, in particular where businesses operating in the digital market, including innovative players and European digital businesses or SMEs, are hindered.
Amendment 957 #
Proposal for a regulation
Article 12 – paragraph 1 – introductory part
Article 12 – paragraph 1 – introductory part
1. A gatekeeper shall inform the Commission and the competent national authorities of any intended concentration within the meaning of Article 3 of Regulation (EC) No 139/2004 involving another provider of core platform services or of any other services provided in the digital sector irrespective of whether it is notifiable to a Union competition authority under Regulation (EC) No 139/2004 or to a competent national competition authority under national merger rules.
Amendment 976 #
Proposal for a regulation
Article 13 – paragraph 1
Article 13 – paragraph 1
Within sixthree months after its designation pursuant to Article 3, a gatekeeper shall submit to the Commission an independently audited description of any techniques for profiling of consumers that the gatekeeper applies to or across its core platform services identified pursuant to Article 3. This description shall be updated at least annually.
Amendment 979 #
Proposal for a regulation
Article 15 – paragraph 1
Article 15 – paragraph 1
1. The Commission may conduct a market investigation, on which it shall cooperate with the competent national authorities, for the purpose of examining whether a provider of core platform services should be designated as a gatekeeper pursuant to Article 3(6), or in order to identify core platform services for a gatekeeper pursuant to Article 3(7). It shall endeavour to conclude its investigation by adopting a decision in accordance with the advisory procedure referred to in Article 32(4) within twelvesix months from the opening of the market investigation.
Amendment 987 #
Proposal for a regulation
Article 15 – paragraph 2
Article 15 – paragraph 2
2. In the course of a market investigation pursuant to paragraph 1, the Commission shall endeavour to communicate its preliminary findings to the provider of core platform services concerned within sixthree months from the opening of the investigation. In the preliminary findings, the Commission shall explain whether it considers, on a provisional basis, that the provider of core platform services should be designated as a gatekeeper pursuant to Article 3(6).
Amendment 1006 #
Proposal for a regulation
Article 16 – paragraph 1
Article 16 – paragraph 1
1. Where the market investigation shows that a gatekeeper has systematically infringed the obligations laid down in Articles 5 and 6 and has further strengthened or extended its gatekeeper position in relation to the characteristics under Article 3(1), the Commission may by decision adopted in accordance with the advisory procedure referred to in Article 32(4) impose on such gatekeeper any behavioural or structural remedies which are proportionate to the infringement committed and necessary to ensure compliance with this Regulation. The Commission shall conclude its investigation by adopting a decision within twelvesix months from the opening of the market investigation. This provision shall be without prejudice to third-party liability or proceedings under national law in the event of intentional non-compliance or gross negligence.
Amendment 1017 #
Proposal for a regulation
Article 16 – paragraph 2
Article 16 – paragraph 2
2. The Commission may only impose structural remedies pursuant to paragraph 1 either where there is no equally effective behavioural remedy or where any equally effective behavioural remedy would be more burdensome for the gatekeeper concerned than the structural remedy.
Amendment 1019 #
Proposal for a regulation
Article 16 – paragraph 3
Article 16 – paragraph 3
3. A gatekeeper shall be deemed to have engaged in a systematic non- compliance with the obligations laid down in Articles 5 and 6, where the Commission has issued at least three non-compliance or fining decisions pursuant to Articles 25 and 26 respectively against a gatekeeper in relation to any of its core platform services within a period of five years prior to the adoption of the decision opening a market investigation in view of the possible adoption of a decision pursuant to this Article.
Amendment 1029 #
Proposal for a regulation
Article 16 – paragraph 5
Article 16 – paragraph 5
5. The Commission shall communicate its objections to the gatekeeper concerned within sixthree months from the opening of the investigation. In its objections, the Commission shall explain whether it preliminarily considers that the conditions of paragraph 1 are met and which remedy or remedies it preliminarily considers necessary and proportionate.
Amendment 1036 #
Proposal for a regulation
Article 17 – paragraph 1
Article 17 – paragraph 1
The Commission may conduct a market investigation with the High-Level Group 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 124 months from the opening of the market investigation.
Amendment 1038 #
Proposal for a regulation
Article 17 – paragraph 1 a (new)
Article 17 – paragraph 1 a (new)
A free advisory hub shall be set up within the Commission or the High-Level Group to respond informally and quickly to stakeholders’ questions on this legislation and provide guidance.
Amendment 1039 #
Proposal for a regulation
Article 17 – paragraph 1 b (new)
Article 17 – paragraph 1 b (new)
Gatekeepers intending to introduce a new service or working method may make use of a fast-track procedure to receive, within three months, a preliminary opinion from the High-Level Group on whether the proposed new service or working method is likely to comply with the obligations set out in this Regulation.
Amendment 1040 #
Proposal for a regulation
Article 17 – paragraph 1 c (new)
Article 17 – paragraph 1 c (new)
Administrative costs shall be invoiced. Depending on applications and administrative capacity, a schedule or a ceiling for applications per business may be laid down. This opinion shall not be binding on the courts.
Amendment 1045 #
Proposal for a regulation
Article 18 – paragraph -1 (new)
Article 18 – paragraph -1 (new)
-1. Each year, the European High- Level Group of Digital Regulators shall draw up the schedule of priority issues of great concern for investigations on the basis of complaints and available information on the development of European digital businesses.
Amendment 1047 #
Proposal for a regulation
Article 18 – paragraph 1
Article 18 – paragraph 1
Where the Commission, the European High-Level Group of Digital Regulators or a Member State intends to carry out proceedings in view of the possible adoption of decisions pursuant to Articles 7, 25 and 26, it shall adopt a decision opening a proceeding shall be published.
Amendment 1049 #
Proposal for a regulation
Article 18 a (new)
Article 18 a (new)
Article 18a The Commission shall set up a mechanism allowing whistleblowers or any stakeholder to provide information on the conduct of undertakings and associations of undertakings that may be relevant for the purposes of monitoring, implementing and enforcing the rules laid down in this Regulation. The Commission and national authorities shall safeguard the anonymity of whistleblowers, assess the information provided and, where appropriate, take account of it in their deliberations.
Amendment 1055 #
Proposal for a regulation
Article 19 – paragraph 6
Article 19 – paragraph 6
6. At the request of the Commission, the governments and authorities of the Member States shall provide the Commission with all necessary information to carry out the duties assigned to it by this Regulation. Competent national authorities or any stakeholder may also on their own initiative provide the Commission or the European High-Level Group of Digital Regulators with information to be taken into account in their deliberations.
Amendment 1061 #
Proposal for a regulation
Article 21 – paragraph 1 a (new)
Article 21 – paragraph 1 a (new)
1a. Inspectors authorised by the Commission or the High-Level Group may conduct inspections in a third country if data relevant for the purpose of the inspection, including data relating to European citizens or businesses, are stored, transmitted, processed or analysed in that third country.
Amendment 1062 #
Proposal for a regulation
Article 21 – paragraph 1 b (new)
Article 21 – paragraph 1 b (new)
1b. If an inspection cannot be conducted in a third country, the gatekeeper's European data shall be repatriated to the European Union within 12 months.
Amendment 1077 #
Proposal for a regulation
Article 24 – paragraph 1
Article 24 – paragraph 1
1. The Commission may take the necessary actions, in close cooperation with the competent national authorities, to monitor the effective implementation and compliance with the obligations laid down in Articles 5 and 6 and the decisions taken pursuant to Articles 7, 16, 22 and 23.
Amendment 1092 #
Proposal for a regulation
Article 25 – paragraph 3 a (new)
Article 25 – paragraph 3 a (new)
3a. An independent appeals board shall be set up so that administrative decisions can be challenged, with rulings on appeals to be issued within two months.
Amendment 1100 #
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 120% of its total turnover in the preceding financial year where it finds that the gatekeeper, intentionally or negligently, fails to comply with:
Amendment 1102 #
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 1108 #
Proposal for a regulation
Article 26 – paragraph 4 – subparagraph 4 a (new)
Article 26 – paragraph 4 – subparagraph 4 a (new)
Access to the service concerned shall ultimately be suspended on European Union territory in the event of failure to pay.
Amendment 1109 #
Proposal for a regulation
Article 27 – title
Article 27 – title
Amendment 1111 #
Proposal for a regulation
Article 27 a (new)
Article 27 a (new)
Article 27a Systematic non-compliance In the event of systematic non- compliance, the Commission may impose structural measures against a gatekeeper on a proposal from the High-Level Group.
Amendment 1112 #
Proposal for a regulation
Article 27 b (new)
Article 27 b (new)
Article 27b Structural measures Where the Europe-based workforce accounts for less than 30% of the European share of worldwide turnover, the Commission, in cooperation with the Member States and after hearing the gatekeeper, shall impose the necessary behavioural, functional or structural measures to remedy the situation within two years.
Amendment 1113 #
Proposal for a regulation
Article 27 c (new)
Article 27 c (new)
Article 27c In the event of systematic and intentional non-compliance or gross negligence, personal sanctions may be imposed on directors or managers, including a ban on entering the territory of a Member State.
Amendment 1114 #
Proposal for a regulation
Article 27 d (new)
Article 27 d (new)
Article 27d In the event of systematic and intentional non-compliance or gross negligence, a fine of up to 15% of their previous year's income may be imposed on directors or managers responsible for the failing or failings concerned.
Amendment 1122 #
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 affected, the opportunity of being heard on:
Amendment 1139 #
Proposal for a regulation
Article 31 a (new)
Article 31 a (new)
Article 31a European High-Level Group of Digital Regulators 1. The Commission and Member States shall establish a European High-Level Group of Digital Regulators in the form of an Expert Group consisting of the representatives of competent authorities of all the Member States, the Commission, relevant Union bodies and other representatives of competent authorities in specific sectors, including data protection and electronic communications. 2. The group shall be composed of the heads of the relevant competent authorities and shall be assisted by a secretariat provided by the Commission. 3. The work of the High-Level Group may be organised in working groups and supported by digital market technology experts. 4. Rapporteurs shall be chosen from among the experts appointed by the Member States opting to take part. 5. The group shall be chaired by a representative of a Member State for a period of three years.
Amendment 1142 #
Proposal for a regulation
Article 31 b (new)
Article 31 b (new)
Amendment 1147 #
Proposal for a regulation
Article 32 – paragraph 1
Article 32 – paragraph 1
1. The Commission shallmay be assisted by the Digital Markets Advisory Committee. That Committee shall be a Committee within the meaning of Regulation (EU) No 182/2011.
Amendment 1158 #
Proposal for a regulation
Article 33 – paragraph 1
Article 33 – paragraph 1
1. When threre one or more Member States or the European High-Level Group of Digital Regulators request the Commission to open an investigation pursuant to Article 15 because they consider that there are reasonable grounds to suspect that a provider of core platform services should be designated as a gatekeeper, the Commission shall within four months examine, 16, 17 or 25, the Commission shall open a preliminary investigation and examine within three months, in close cooperation with the European High-Level Group of Digital Regulators and the Member State or States concerned, whether there are reasonable grounds to open such anan in- depth investigation.
Amendment 1169 #
Proposal for a regulation
Article 33 – paragraph 2
Article 33 – paragraph 2
2. Member States shall submit evidence in support of their requestFor businesses, SMEs and consumers, Member States shall designate an ambassador who can relay their complaints to gatekeepers and bring about rapid resolution of disagreements or refer them to the High-Level Group and the Commission, in the case of irregular practices, for more in-depth investigation and possible damages equivalent to three times the loss concerned.
Amendment 1188 #
Proposal for a regulation
Article 38 – paragraph 1
Article 38 – paragraph 1
1. By DD/MM/YYYY, and subsequently every threewo years, the Commission shall evaluate this Regulation and report to the European Parliament, the Council and the European Economic and Social Committee.
Amendment 1190 #
Proposal for a regulation
Article 38 – paragraph 2
Article 38 – paragraph 2
2. The evaluations shall establish whether additional rules, including regarding the list of core platform services laid down in point 2 of Article 2, the obligations laid down in Articles 5 and 6 and their enforcement, may be required to ensure that digital markets across the Union are contestable and fair and to what extent this Regulation is helping to develop the European digital market. Following the evaluations, the Commission shall take appropriate measures, which may include legislative proposals.