77 Amendments of Markus FERBER related to 2020/0374(COD)
Amendment 139 #
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, virtual assistants 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 148 #
Proposal for a regulation
Recital 17
Recital 17
(17) A very significant turnover in the Union and the provision of a core platform service in at least three Member States constitutes a 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 or a significant sector thereof. 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 andor a significant sector thereof where either its group turnover realised in the EEA is equal to or exceeds a specific, high threshold or the market capitalisation of the group is equal to or exceeds a certain high absolute value. For providers of core platform services that belong to undertakings that are not publicly listed, the equivalent fair market value above a certain high absolute value should be referred to. The Commission should use its power to adopt delegated acts to develop an objective methodology to calculate that value. A high EEA group turnover in conjunction with the threshold of users in the Union of core platform services reflects a relatively strong ability to monetise these users. A high market capitalisation relative to the same threshold number of users in the Union reflects a relatively significant potential to monetise these users in the near future. This monetisation potential in turn reflects in principle the gateway position of the undertakings concerned. Both indicators are in addition reflective of their financial capacity, including their ability to leverage their access to financial markets to reinforce their position. This may for example happen where this superior access is used to acquire other undertakings, which ability has in turn been shown to have potential negative effects on innovation. Market capitalisation can also be reflective of the expected future position and effect on the internal market of the providers concerned, notwithstanding a potentially relatively low current turnover. The market capitalisation value can be based on a level that reflects the average market capitalisation of the largest publicly listed undertakings in the Union over an appropriate period.
Amendment 153 #
Proposal for a regulation
Recital 21
Recital 21
(21) An entrenched and durable position in its operations or the foreseeability of achieving such a position future occurs notably where the contestability of the position of the provider of the core platform service is limited. This is likely to be the case where that provider has provided a core platform service in at least three Member States to a very high number of business users and end users during at least threewo years.
Amendment 171 #
Proposal for a regulation
Recital 31
Recital 31
(31) To ensureConsidering the essential role that data has on competition, a specific procedure should be introduced for intended concentrations within the meaning of Article 3 of Regulation (EC) No 139/2004 involving another provider of a core platform service or any other service in the digital sector. To ensure that competition in the Single Market is not distorted, 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 informtherefore notify the Commission of all of their intended and concluded acquisitions of other providers of core platform services or any other services provided within the digital sector. Such information should not onlytended concentrations should therefore not only be notified, but explicitly cleared by the Commission. The notification of such concentrations should therefore be subject to the merger control procedure provided for in Regulation (EC) No 139/2004. Such information also serves the review process mentioned above, regarding the status of individual gatekeepers, but will alsoand provides 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.
Amendment 215 #
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 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, display or default settings, 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 through software application stores, or products or services that are given prominence and display in the newsfeed of a social network, or products or services ranked in search results or displayed on an online marketplace. In those circumstances, the gatekeeper is in a dual- role position as intermediary for third party providers and as direct provider of products or services of the gatekeeper. Consequently, these gatekeepers have the ability to undermine directly the contestability for those products or services on these core platform services, to the detriment of business users which are not controlled by the gatekeeper.
Amendment 223 #
Proposal for a regulation
Recital 52
Recital 52
(52) Gatekeepers may also have a dual role as developers of operating systems and device manufacturers, including any technical functionality that such a device may have. For example, a gatekeeper that is a manufacturer of a device may restrict access to some of the functionalities in this device, such as near-field-communication technology and the software used to operate that technology, which may be required for the effective provision of an ancillary service by the gatekeeper as well as by any potential third party provider of such an ancillary service. Such access may equally be required by software applications related to the relevant ancillary services in order to effectively provide similar functionalities as those offered by gatekeepers. If such a dual role is used in a manner that prevents alternative providers of ancillary services or of software applications to have access under equal conditions to the same operating system, hardware or software featuresuch as, for example, near-field-communication technology, or software features such as, for example, biometric identity readers, including fingerprint and face recognition scanners that are available or used in the provision by the gatekeeper of any ancillary services, this could significantly undermine innovation by providers of such ancillary services as well as choice for end users of such ancillary services. The gatekeepers should therefore be obliged to ensure access under equal conditions to, and interoperability with, the same operating system, hardware or software features that are available or used in the provision of any ancillary services by the gatekeeper. Access under equal conditions is understood as of a technical, legal, economic, or any other nature.
Amendment 227 #
Proposal for a regulation
Recital 52
Recital 52
(52) Gatekeepers may also have a dual role as developers of operating systems and device manufacturers, including any technical functionality that such a device may have. For example, a gatekeeper that is a manufacturer of a device may restrict access to some of the functionalities in this device, such as near-field-communication technology and the software used to operate that technology, which may be required for the effective provision of an ancillary service by the gatekeeper as well as by any potential third party provider of such an ancillary service. Such access may equally be required by software applications related to the relevant ancillary services in order to effectively provide similar functionalities as those offered by gatekeepers. If such a dual role is used in a manner that prevents alternative providers of ancillary services or of software applications to have access under equal conditions to the same operating system, hardware or software features that are available or used in the provision by the gatekeeper of any ancillary services, this could significantly undermine innovation by providers of such ancillary services as well as choice for end users of such ancillary services. The gatekeepers should therefore be obliged to ensure access under equal conditions and free of charge to, and interoperability with, the same operating system, hardware or software features that are available or used in the provision of any ancillary services by the gatekeeper.
Amendment 256 #
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. 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. Artificial Intelligence could be used to nudge users to engage in certain actions or predict their actions without necessarily profiling them. The power of Big Data Artificial Intelligence that is exclusively developed or brought up by undertakings which engage with gatekeepers position and practices should not be neglected.
Amendment 264 #
Proposal for a regulation
Recital 65
Recital 65
(65) The services and practices in core platform services and markets in which these intervene can change quickly and to a significant extent. To ensure that this Regulation remains up to date and constitutes an effective and holistic regulatory response to the problems posed by gatekeepers, it is important to provide for a regular review of the lists of core platform services as well as of the obligations provided for in this Regulation. This is particularly important to ensure that behaviour that may limit the contestability of core platform services or is unfair is identified. While it is important to conduct a review on a regular basis, given the dynamically changing nature of the digital sector, in order to ensure legal certainty as to the regulatory conditions, any reviews should be conducted within a reasonable and appropriate time-frame. Market investigations should also ensure that the Commission has a solid evidentiary basis on which it can assess whether it should propose to amend this Regulation in order to expand, or further detail, the lists of core platform services. They should equally ensure that the Commission has a solid evidentiary basis on which it can assess whether it should propose to amend the obligations laid down in this Regulation or whether it should adopt a delegated act updating such obligations.
Amendment 265 #
Proposal for a regulation
Recital 66
Recital 66
Amendment 266 #
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 actsislative acts in accordance with Article 294 of the TFEU. 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 281 #
Proposal for a regulation
Recital 77
Recital 77
(77) The advisory committee established in accordance with Regulation (EU) No 182//2011 should also deliver opinions on certain individual decisions of the Commission issued under this Regulation. When composing the advisory committee, Member States shall also consider including the opinions of stakeholders, such as small and medium-sized enterprises (SMEs), consumer protection experts and business associations. In order to ensure contestable and fair markets in the digital sector across the Union where gatekeepers are present, the power to adopt acts in accordance with Article 290 of the Treaty should be delegated to the Commission to supplement this Regulation. In particular, delegated acts should be adopted in respect of the methodology for determining the quantitative thresholds for designation of gatekeepers under this Regulation and in respect of the update of the obligations laid down in this Regulation where, based on a market investigation the Commission has identified the need for updating the obligations addressing practices that limit the contestability of core platform services or are unfair. It is of particular importance that the Commission carries out appropriate consultations and that those consultations be conducted in accordance with the principles laid down in the Interinstitutional Agreement on Better Law-Making of 13 April 201636 . In particular, to ensure equal participation in the preparation of delegated acts, the European Parliament and the Council receive all documents at the same time as Member States' experts, and their experts systematically have access to meetings of Commission expert groups dealing with the preparation of delegated acts. _________________ 36Interinstitutional Agreement between the European Parliament, the Council of the European Union and the European Commission on Better Law-Making (OJ L 123, 12.5.2016, p.1).
Amendment 318 #
Proposal for a regulation
Article 2 – paragraph 1 – point 2 – point h a (new)
Article 2 – paragraph 1 – point 2 – point h a (new)
(h a) virtual or voice-activated assistants;
Amendment 352 #
(23 a) "Provider of a core platform service" means an entity or entities or part thereof, irrespective of their legal form, which provide any of the core platform services listed in paragraph 2 to business users or end users.
Amendment 364 #
Proposal for a regulation
Article 3 – paragraph 2 – point a
Article 3 – paragraph 2 – point a
(a) the requirement in paragraph 1 point (a) where the undertaking to which it belongs achieves an annual EEA turnover equal to or above EUR 6.5 billion in the last three financial years, or where the average market capitalisation or the equivalent fair market value of the undertaking to which it belongs amounted to at least EUR 65 billion in the last financial year, and it provides a core platform service in at least three Member States;
Amendment 371 #
Proposal for a regulation
Article 3 – paragraph 2 – point b – introductory part
Article 3 – paragraph 2 – point b – introductory part
(b) the requirement in paragraph 1 point (b) where it provides a core platform service that has more than 4520 million monthly active end users established or located in the Union and more than 107 000 yearly active business users established in the Union in the last financial year;
Amendment 373 #
Proposal for a regulation
Article 3 – paragraph 2 – point b – paragraph 1
Article 3 – paragraph 2 – point b – paragraph 1
for the purpose of the first subparagraph, monthly active end users shall refer to the average number of monthly active end users throughout the largest part of the last st financial year;
Amendment 376 #
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 380 #
Proposal for a regulation
Article 3 – paragraph 3 – introductory part
Article 3 – paragraph 3 – introductory part
3. Where a provider of core platform services meets all the thresholds in paragraph 2, it shall notify the Commission thereof within threewo months after those thresholds are satisfied and provide it with the relevant information identified in paragraph 2.. That notification shall include the relevant information identified in paragraph 2 for each of the core platform services of the provider that meets the thresholds in paragraph 2 point (b). The notification shall be updated whenever other core platform services individually meet the thresholds in paragraph 2 point (b).
Amendment 388 #
Proposal for a regulation
Article 3 – paragraph 4 – introductory part
Article 3 – paragraph 4 – introductory part
4. The Commission shall, without undue delay and at the latest 640 days after receiving the complete information referred to in paragraph 3, designate the provider of core platform services that meets all the thresholds of paragraph 2 as a gatekeeper, unless that provider, with its notification, presents sufficiently substantiated arguments to demonstrate that, in the circumstances in which the relevant core platform service operates, and taking into account the elements listed in paragraph 6, the provider does not satisfy the requirements of paragraph 1.
Amendment 405 #
Proposal for a regulation
Article 3 – paragraph 6 – subparagraph 1 – point f
Article 3 – paragraph 6 – subparagraph 1 – point f
(f) other structural market characteristics including whether there are other gatekeepers identified pursuant to paragraph 2 within the same undertaking.
Amendment 411 #
Proposal for a regulation
Article 3 – paragraph 6 – subparagraph 3
Article 3 – paragraph 6 – subparagraph 3
Where the provider of a core platform service that satisfies the quantitative thresholds of paragraph 2 fails to comply with the investigative measures ordered by the Commission in a significant manner and the failure persists after the provider has been invited to comply within a reasonable time-limit and to submit observations, the Commission shall be entitled to designate that provider as a gatekeeper.
Amendment 414 #
Proposal for a regulation
Article 3 – paragraph 6 – subparagraph 4
Article 3 – paragraph 6 – subparagraph 4
Where the provider of a core platform service that does not satisfy the quantitative thresholds of paragraph 2 fails to comply with the investigative measures ordered by the Commission in a significant manner and the failure persists after the provider has been invited to comply within a reasonable time-limit and to submit observations, the Commission shall be entitled to designate that provider as a gatekeeper based on facts available.
Amendment 422 #
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 sixthree months after a core platform service has been included in the list pursuant to paragraph 7 of this Article.
Amendment 423 #
Proposal for a regulation
Article 3 – paragraph 8
Article 3 – paragraph 8
8. The gatekeeper shall comply with the obligations laid down in Articles 5 and 6 within sixfour months after a core platform service has been included in the list pursuant to paragraph 7 of this Article.
Amendment 440 #
Proposal for a regulation
Article 5 – paragraph 1 – point a
Article 5 – paragraph 1 – point a
(a) refrain from combining personal data sourced from these core platform services with personal data from any other services offered by the gatekeeper or with personal data from third-party services, and from signing in end users to other services of the gatekeeper in order to combine personal data, unless the end user has been presented with the specific choice and has provided consent in the sense of Regulation (EU) 2016/679. ;
Amendment 449 #
Proposal for a regulation
Article 5 – paragraph 1 – point c
Article 5 – paragraph 1 – point c
(c) allow business users to promote offers to end users acquired via the core platform service, and to conclude contracts with these end users regardless of whether for that purpose they use the core platform services of the gatekeeper or not, and allow end users to access and use, through the core platform services of the gatekeeper, content, subscriptions, features or other items by using the software application of a business user, where these items have been acquired by the end users from the relevant business user without using the core platform services of the gatekeeper;
Amendment 451 #
Proposal for a regulation
Article 5 – paragraph 1 – point d
Article 5 – paragraph 1 – point d
(d) refrain from preventing or restricting business users from raising issues with any relevant public authority relating to any practice of gatekeepers, including by contractual obligations between the gatekeeper and the third party business users;
Amendment 455 #
Proposal for a regulation
Article 5 – paragraph 1 – point d
Article 5 – paragraph 1 – point d
(d) refrain from preventing or, restricting or discouraging business users from raising issues with any relevant public authority relating to any practice of gatekeepers;
Amendment 459 #
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, payment or any other ancillary service of the gatekeeper in the context of services offered by the business users using the core platform services of that gatekeeper;
Amendment 482 #
Proposal for a regulation
Article 5 – paragraph 1 – point g a (new)
Article 5 – paragraph 1 – point g a (new)
(g a) refrain from any other anti- competitive behaviour.
Amendment 502 #
Proposal for a regulation
Article 6 – paragraph 1 – point c
Article 6 – paragraph 1 – point c
(c) allow the installation and effective equivalent to all other parties use of third party software applications or software application stores using, or interoperating with, operating systems of that gatekeeper and allow these software applications or software application stores to be accessed by means other than the core platform services of that gatekeeper. 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 data protection, safety and integrity of the hardware or operating system provided by the gatekeeper. If the gatekeeper takes such measures, it shall provide the third party affected by these measures with detailed justification and limit them to what they can prove as being strictly indispensable for the objective of avoiding to endanger the integrity of the hardware or operating system provided by the gatekeeper;
Amendment 512 #
Proposal for a regulation
Article 6 – paragraph 1 – point d
Article 6 – paragraph 1 – point d
(d) refrain from treating more favourably in ranking and giving a more favourable display of services and products offered by the gatekeeper itself or by any third party belonging to the same undertaking compared to similar services or products of third party and apply fair and non-discriminatory conditions to such ranking and display;
Amendment 515 #
Proposal for a regulation
Article 6 – paragraph 1 – point d
Article 6 – paragraph 1 – point d
(d) refrain from treating more favourably in ranking, display or default settings services and products offered by the gatekeeper itself or by any third party belonging to the same undertaking compared to similar services or products of third party and apply fair and non- discriminatory conditions to such ranking, display or default settings;
Amendment 522 #
Proposal for a regulation
Article 6 – paragraph 1 – point e
Article 6 – paragraph 1 – point e
(e) refrain from technically, commercially or operationally 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 533 #
Proposal for a regulation
Article 6 – paragraph 1 – point f
Article 6 – paragraph 1 – point f
(f) allow business users and providers of core platform and ancillary services equivalent 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 platform and ancillary services;
Amendment 534 #
Proposal for a regulation
Article 6 – paragraph 1 – point f
Article 6 – paragraph 1 – point f
(f) allow business users and providers of ancillary services 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 ancillary services. Such access shall be granted free of charge;
Amendment 549 #
Proposal for a regulation
Article 6 – paragraph 1 – point h
Article 6 – paragraph 1 – point h
(h) provide effective portability of data provided by or generated through the activity of a business user or end user and shall, in particular, provide free of charge tools for end users to facilitate the exercise of datathe portability of personal data, in line with Regulation EU 2016/679, and of non- personal data, including by the provision of continuous and real-time access ;
Amendment 558 #
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 user-friendly 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 567 #
Proposal for a regulation
Article 6 – paragraph 1 – point k
Article 6 – paragraph 1 – point k
(k) apply fair and non-discriminatory general conditions of access for business users to its software application storecore platform services designated pursuant to Article 3 of this Regulation.
Amendment 593 #
Proposal for a regulation
Article 7 – paragraph 1
Article 7 – paragraph 1
1. The measures implemented by the gatekeeper to ensure compliance with the obligations laid down in Articles 5 and 6 shall be effective in achieving the objective of the relevant obligation. The gatekeeper shall enotify these measures thato these measures Commission and ensure that they 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 601 #
Proposal for a regulation
Article 7 – paragraph 2
Article 7 – paragraph 2
2. Where the Commission finds that the measures that the gatekeeper intends tohas implemented 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 six months from the opening of proceedings pursuant to Article 18.
Amendment 609 #
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 625 #
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. The suspension decision shall be accompanied by a reasoned statement detailing the grounds for the suspension.
Amendment 629 #
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. The exemption decision shall be accompanied by a reasoned statement detailing the grounds for the exemption.
Amendment 635 #
Proposal for a regulation
Article 10
Article 10
Amendment 647 #
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. While the obligations of Articles 5 and 6 apply in respect of core platform services designated pursuant to Article 3, their implementation shall not be undermined by any behaviour of the undertaking to which the gatekeeper belongs, regardless of whether this behaviour is of a contractual, commercial, technical or any other nature, including through by any form of behavioural techniques and interface design that would undermine the effectiveness of Articles 5 and 6.
Amendment 652 #
Proposal for a regulation
Article 11 – paragraph 2
Article 11 – paragraph 2
2. Where consent for collecting and processing of personal data is required to ensure compliance with this Regulation, a gatekeeper shall take the necessary steps to either enable business users to directly obtain the required consent to their processing, where required under Regulation (EU) 2016/679 and Directive 2002/58/EC, or to comply with Union data protection and privacy rules and principles in other ways including by providing business users with duly anonymised data where appropriate. The gatekeeper shall not make the obtaining of this consent by the business user more burdensome than for its own services.
Amendment 656 #
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 makeobstruct or make discriminatory the exercise of those rights or choices unduly difficult.
Amendment 659 #
Proposal for a regulation
Article 12 – title
Article 12 – title
Amendment 664 #
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 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 667 #
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 669 #
Proposal for a regulation
Article 12 – paragraph 1 a (new)
Article 12 – paragraph 1 a (new)
1 a. The European Commission shall issue a decision in accordance with Article 8 of Regulation (EC) No 139/2004 about the intended concentration.
Amendment 678 #
Proposal for a regulation
Article 13 – paragraph 1
Article 13 – paragraph 1
Within six months after its designation pursuant to Article 3, a gatekeeper shall submit to the Commission an independently audited description of any techniques for profiling of consumers and any other digital technology technique used to entice users to engage in certain actions or predict their actions that the gatekeeper applies to or across its core platform services identified pursuant to Article 3. This description shall be updated at least annually. Audits performed pursuant to paragraph 1 shall be performed by organisations which: (a) are independent from the gatekeeper concerned and have not provided any other service to the undertaking to which the gatekeeper belongs in the previous 12 months; (b) have proven expertise in the area of risk management, technical competence and capabilities in the area of digital technologies; (c) have proven objectivity and professional ethics, based in particular on adherence to codes of practice or appropriate standards;and (d) have not provided such an audit to the same gatekeeper for more than 3 consecutive years.
Amendment 698 #
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 only obligations laid down in Article 5(b) and Article 6(1) points (e), (f), (h) and (i), as specified in the designation decision. The Commission shall only declare applicable those obligations that are appropriate and necessary to prevent that the gatekeeper concerned achieves by unfair means an entrenched and durable position in its operations. The Commission shall review such a designation in accordance with the procedure laid down in Article 4.
Amendment 704 #
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 twelvnine months from the opening of the market investigation.
Amendment 710 #
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 threewo 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 722 #
Proposal for a regulation
Article 17 – paragraph 2 – point b
Article 17 – paragraph 2 – point b
Amendment 724 #
Proposal for a regulation
Article 17 – paragraph 2 – point b
Article 17 – paragraph 2 – point b
Amendment 729 #
Proposal for a regulation
Article 21 – paragraph 1
Article 21 – paragraph 1
1. TIn case of urgency due to the risk of serious and irreparable damage for business users or end users of gatekeepers, the Commission may conduct on- site inspections at the premises of an undertaking or association of undertakings for the purposes of investigations under this Regulation.
Amendment 731 #
Proposal for a regulation
Article 21 – paragraph 4
Article 21 – paragraph 4
4. Undertakings or associations of undertakings are required to submit to an on-site inspection ordered by decision of the Commission. The decision shall specify the subject matter and purpose of the visiton- site inspection, set the date on which it is to begin and indicate the penalties provided for in Articles 26 and 27 and the right to have the decision reviewed by the Court of Justice. The decision shall be proportionate in light of the seriousness and urgency of the alleged infringement and shall be duly justified.
Amendment 736 #
Proposal for a regulation
Article 23 – paragraph 2 – introductory part
Article 23 – paragraph 2 – introductory part
2. The Commission may, upon request by one or more national competent authorities or on its own initiative, reopen by decision the relevant proceedings, where:
Amendment 739 #
Proposal for a regulation
Article 24 – title
Article 24 – title
Amendment 741 #
Proposal for a regulation
Article 24 – paragraph 1 a (new)
Article 24 – paragraph 1 a (new)
1 a. The Commission shall establish and maintain a publicly accessible and user-friendly website containing at least the following information: (a) the number of non-compliance decisions adopted pursuant to Article 25; (b) the number of fines imposed pursuant to Article 26; (c) the names of the companies non- compliance decisions were taken against; (d) the names of the companies fines were imposed on. The Commission shall not publish any commercially sensitive information which may prejudice the interests of a company.
Amendment 753 #
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, but not longer than three months, and to provide explanations on how it plans to comply with the decision.
Amendment 759 #
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 762 #
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 767 #
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 772 #
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 774 #
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 790 #
Proposal for a regulation
Article 33 – paragraph 1
Article 33 – paragraph 1
1. When three or more Member States request the Commission to open an investigation pursuant to: (a) 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; (b) Article 16 because they consider that there are reasonable grounds to suspect that a gatekeeper has been in a position of systemic non-compliance with Articles 5 and 6;or (c) Article 17 because they consider that one or more services should be added to the list of core platform services as in Article 2 (2) of this Regulation, the Commission shall within four months examine and decide whether there are reasonable grounds to open such an investigation. The Commission shall add to this decision a detailed argumentation of its choice of action. The decision shall be publicly available and communicated to all National Competent Authorities.
Amendment 811 #
Proposal for a regulation
Article 37 – paragraph 2
Article 37 – paragraph 2
2. The power to adopt delegated acts referred to in Articles 3(6) and 9(15) shall be conferred on the Commission for a period of five years from DD/MM/YYYY. The Commission shall draw up a report in respect of the delegation of power not later than nine months before the end of the five-year period. The delegation of power shall be tacitly extended for periods of an identical duration, unless the European Parliament or the Council opposes such extension not later than three months before the end of each period.
Amendment 812 #
Proposal for a regulation
Article 37 – paragraph 3
Article 37 – paragraph 3
3. The delegation of power referred to in Articles 3(6) and 9(15) may be revoked at any time by the European Parliament or by the Council. A decision to revoke shall put an end to the delegation of the power specified in that decision. It shall take effect the day following the publication of the decision in the Official Journal of the European Union or at a later date specified therein. It shall not affect the validity of any delegated acts already in force.
Amendment 813 #
Proposal for a regulation
Article 37 – paragraph 6
Article 37 – paragraph 6
6. A delegated act adopted pursuant to Articles 3(6) and 9(15) shall enter into force only if no objection has been expressed either by the European Parliament or by the Council within a period of two months of notification of that act to the European Parliament and to the Council or if, before the expiry of that period, the European Parliament and the Council have both informed the Commission that they will not object. That period shall be extended by two months at the initiative of the European Parliament or of the Council.
Amendment 814 #
Proposal for a regulation
Article 37 a (new)
Article 37 a (new)
Article 37 a Reporting The European Commission's Annual Report on Competition Policy shall include a chapter on the implementation of this Regulation that details the most important trends in relation to the contestability and fairness of digital markets.
Amendment 815 #
Proposal for a regulation
Article 38 – paragraph 1
Article 38 – paragraph 1
1. By DD/MM/YYYYthree years after the date of application of this Regulation, and subsequently every three years, the Commission shall evaluate this Regulation and report to the European Parliament, the Council and the European Economic and Social Committee.
Amendment 818 #
Proposal for a regulation
Article 38 – paragraph 3 a (new)
Article 38 – paragraph 3 a (new)
3 a. The Commission shall report on the implementation of this Regulation in its annual report on Competition Policy.