Activities of Andrzej HALICKI related to 2020/0374(COD)
Plenary speeches (1)
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 (59)
Amendment 79 #
Proposal for a regulation
Recital 2
Recital 2
(2) Core platform services, at the same time, feature a number of characteristics that can be exploited by their providers. These characteristics of core platform services include among others extreme scale economies, which often result from nearly zero marginal costs to add business users or end users. Other characteristics of core platform services are very strong network effects, an ability to connect many business users with many end users through the multi-sidedness of these services, a significant degree of dependence of both business users and end users, lock-in effects, a lack of multi- homing for the same purpose by end users, vertical integration, and data driven- advantages. All these characteristics combined with unfair conduct by providers of these services can have the effect of substantially undermining the contestability of the core platform services, as well as impacting the fairness of the commercial relationship between providers of such services and their business users and end users, leading to rapid and potentially far-reaching decreases in business users’ and end users’ choice in practice, and therefore can confer to the provider of those services the position of a so-called gatekeeper, depending on their size.
Amendment 80 #
Proposal for a regulation
Recital 5
Recital 5
(5) It follows that the market processes and ex-post competition law are often incapable of ensuring fair economic outcomes with regard to core platform services. Whereas Articles 101 and 102 TFEU remain applicable to the conduct of gatekeepers, their scope is limited to certain instances of market power (e.g. dominance on specific markets) and of anti-competitive behaviour, while enforcement occurs ex post and requires an extensive investigation of often very complex facts on a case by case basis. Moreover, existing Union law does not address, or does not address effectively, the identified challenges to the well- functioning of the internal market posed by the conduct of gatekeepers, which are not necessarily dominant in competition-law terms.
Amendment 82 #
Proposal for a regulation
Recital 6
Recital 6
(6) Gatekeepers have a significant impact on the internal market, providing gateways for a very large number of business users, to reach end users, everywhere in the Union and on different markets. The adverse impact of unfair practices on the internal market and particularly weak contestability of core platform services, including their negative societal and economic implications, have led national legislators and sectoral regulators to act. A number of national regulatory solutions have already been adopted or proposed to address unfair practices and the contestability of digital services or at least with regard to some of them. This has created a risk of divergent regulatory solutions and thereby fragmentation and reduced certainty for users and businesses of the internal market, thus raising the risk of increased compliance costs due to different sets of national regulatory requirements.
Amendment 88 #
Proposal for a regulation
Recital 12
Recital 12
(12) Weak contestability and unfair practices in the digital sector are more frequent and pronounced for certain digital services than for others. This is the case in particular for widespread and commonly used digital services that mostly directly intermediate between business users and end users and where features such as extreme scale economies, very strong network effects, an ability to connect many business users with many end users through the multi-sidedness of these services, lock-in effects, a lack of multi- homing or vertical integration are the most prevalent. Often, there is only one or very few large providers of those digital services. These providers of core platform services have emerged most frequently as gatekeepers for business users and end users with far-reaching impacts, gaining the ability to easily set commercial conditions and terms in a unilateral and detrimental manner for their business users and end users. Accordingly, it is necessary to focus only on those digital services that are most broadly used by business users and end users and where, based on current and prospective market conditions, concerns about weak contestability and unfair practices by gatekeepers are more apparent and pressing from an internal market perspective.
Amendment 94 #
Proposal for a regulation
Recital 13
Recital 13
(13) In particular, online intermediation services, online search engines, operating systems, online social networking, video sharing platform services, number- independent interpersonal communication services, cloud computing services and, online advertising services and web browsers all have the capacity to affect a large number of end users and businesses alike, which entails a risk of unfair business practices. They therefore any digital service which focuses on software application as the intermediated product or service 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 95 #
Proposal for a regulation
Recital 14
Recital 14
(14) A number of other ancillary services, such as identification or payment services and technical services which support the provision of payment services, may be provided by gatekeepers together with their core platform services. As gatekeepers frequently provide the portfolio of their services as part of an integrated ecosystem to which third-party providers of such ancillary services do not have access, at least not subject to equal conditions, and can link the access to the core platform service to take-up of one or more ancillary services, the gatekeepers are likely to have an increased ability and incentive to leverage their gatekeeper power from their core platform services to these ancillary services, to the detriment of choice and contestability of these services. Gatekeepers that provide ancillary services such as retailing or distribution activities that are targeted at end users alongside their core platform services and in a manner that is indistinguishable for the average user should also be subject to the obligations applicable to core platform services.
Amendment 98 #
Proposal for a regulation
Recital 23
Recital 23
(23) Providers of core platform services which meet the quantitative thresholds but are able to present sufficiently substantiated arguments to demonstrate that, in the circumstances in which the relevant core platform service operates, they do not fulfil the objective requirements for a gatekeeper, should not be designated directly, but only subject to a further investigation. The burden of adducing evidence that the presumption deriving from the fulfilment of quantitative thresholds should not apply to a specific provider should be borne by that provider In its assessment, the Commission should take into account only the elements which directly relate to the requirements for constituting a gatekeeper, namely whether it is an important gateway which is operated by a provider with a significant impact in the internal market with an entrenched and durable position, either actual or foreseeable. Any justification on economic grounds seeking to demonstrate efficiencies deriving from a specific type of behaviour by the provider of core platform services should be discardtherefore not be admitted, as it is not relevant to the designation as a gatekeeper. The Commission should be able to take a decision by relying on the quantitative thresholds where the provider significantly obstructs the investigation by failing to comply with the investigative measures taken by the Commission.
Amendment 102 #
Proposal for a regulation
Recital 29
Recital 29
(29) Designated gatekeepers should comply with the obligations laid down in this Regulation in respect of each of the core platform services listed in the relevant designation decision. The mandatory rules should apply taking into account the conglomerate position of gatekeepers and their ecosystem orchestrator power, where applicable. Furthermore, implementing measures based on Article 36 that the Commission may by decision impose on the gatekeeper following a regulatory dialogue should be designed in an effective manner, having regard to the features of core platform services as well as possible circumvention risks and in compliance with the principle of proportionality and the fundamental rights of the undertakings concerned as well as those of third parties.
Amendment 104 #
Proposal for a regulation
Recital 30
Recital 30
(30) The very rapidly changing and complex technological nature of core platform services requires a regular review of the status of gatekeepers, including those that are foreseen to enjoy a durable and entrenched position in their operations in the near future. To provide all of the market participants, including the gatekeepers, with the required certainty as to the applicable legal obligations, a time limit for such regular reviews is necessary. It is also important to conduct such reviews on a regular basis and at least every twohree years.
Amendment 105 #
Proposal for a regulation
Recital 31
Recital 31
(31) To ensure the effectiveness of the review of gatekeeper status as well as the possibility to adjust the list of core platform services provided by a gatekeeper, the gatekeepers should inform the Commission and other competent national authorities of all of their intended and concluded acquisitions of other providers of core platform services or any other services provided within the digital sector. Such information should not only serve the review process mentioned above, regarding the status of individual gatekeepers, but will also provide information that is crucial to monitoring broader contestability trends in the digital sector and can therefore be a useful factor for consideration in the context of the market investigations foreseen by this Regulation.
Amendment 107 #
Proposal for a regulation
Recital 32
Recital 32
(32) To safeguard the fairness and contestability of core platform services provided by gatekeepers, it is necessary to provide in a clear and unambiguous manner for a set of harmonised obligations with regard to those services. Such rules are needed to address the risk of harmful effects of unfair practices imposed by gatekeepers, to the benefit of the business environment in the services concerned, to the benefit of users and ultimately to the benefit of society as a whole. Given the fast-moving and dynamic nature of digital markets, and the substantial economic power of gatekeepers, it is important that these obligations are effectively applied without being circumvented. To that end, the obligations in question should apply to any practicesrelevant behaviour by a gatekeeper, irrespective of its form and irrespective of whether it is of a contractual, commercial, technical or any other nature, insofar as a practice corresponds to the type of practicebehaviour that is the subject of one of the obligations of this Regulation.
Amendment 110 #
Proposal for a regulation
Recital 36
Recital 36
(36) The conduct of combining end user data from different sources or signing in users to different services of gatekeepers gives them potential advantages in terms of accumulation of data, thereby raising barriers to entry. To ensure that gatekeepers do not unfairly undermine the contestability of core platform services, they should enable their end users to freely choose to opt-in to such business practices by offering a less personalised alternative. The possibility should cover all possible sources of personal data, including those created by the own services of the gatekeeper as well as third party websites, and should be proactively presented to the end user in an explicit, clear and straightforward manner.
Amendment 113 #
Proposal for a regulation
Recital 37
Recital 37
(37) Because of their position, gatekeepers might in certain cases restrict the ability of business users of their online intermediation services to offer their goods or services to end users under more favourable conditions, including price, through other online intermediation services or their own websites or other distribution channels. Such restrictions have a significant deterrent effect on the business users of gatekeepers in terms of their use of alternative online intermediation services, limiting inter- platform contestability, which in turn limits choice of alternative online intermediation channels for end users. To ensure that business users of online intermediation services of gatekeepers can freely choose alternative online intermediation services and differentiate the conditions under which they offer their products or services to their end users, it should not be acceppermitted that gatekeepers limit business users from choosing to differentiate commercial conditions, including price. Such a restriction should apply to any measure with equivalent effect, such as for example increased commission rates or de- listing or less favourable ranking of the offers of business users.
Amendment 120 #
Proposal for a regulation
Recital 39
Recital 39
(39) To safeguard a fair commercial environment and protect the contestability of the digital sector it is important to safeguard the right of business users to raise concerns about unfair behaviour by gatekeepers with any relevant administrative or other public authorities, including national courts. For example, business users may want to complain about different types of unfair practices, such as discriminatory access conditions, unjustified closing of business user accounts or unclear grounds for product de-listings. Any practice that would in any way inhibit or impede 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 122 #
Proposal for a regulation
Recital 41
Recital 41
(41) Gatekeepers should not restrict the free choice of end users by technically preventing switching between or subscription to different software applications and services. Gatekeepers should therefore ensure a free choice irrespective of whether they are the manufacturer of any hardware by means of which such software applications or services are accessed and should not raise artificialunjustified technical barriers so as to make switching more difficult, impossible or ineffective. The mere offering of a given product or service to end users, including by means of pre- installation, as well the improvement of end user offering, such as better prices or increased quality, would not in itself constitute a barrier to switching.
Amendment 125 #
Proposal for a regulation
Recital 42
Recital 42
(42) The conditions under which gatekeepers provide online advertising services to business users including both advertisers and publishers are often non- transparent, complex and opaque. This opacity is partly linked to the practices of a few platforms, but is also due to the sheer complexity of modern day programmatic advertising. The sector is considered to have become more non-transparent after the introduction of new privacy legislation, and is expected to become even more opaque with the announced removal of third-party cookies. This often leads to a lack of information and knowledge for advertisers and publishers about the conditions of the advertising services they purchased and undermines their ability to switch to alternative providers of online advertising services. Furthermore, the costs of online advertising are likely to be higher than they would be in a fairer, more transparent and contestable platform environment. These higher costs are likely to be reflected in the prices that end users pay for many daily products and services relying on the use of online advertising. Transparency obligations should therefore require gatekeepers to provide advertisers and publishers to whom they supply online advertising services, when requested and to the extent possible, withith free of charge, effective, high quality, continuous and real-time information that allows both sides to understand the price paid for each of the different advertising services provided as part of the relevant advertising value chain and the availability and visibility of advertisement.
Amendment 128 #
Proposal for a regulation
Recital 43
Recital 43
(43) A gatekeeper may in certain circumstances have a dual role as a provider of core platform services whereby it provides a core platform service to its business users, while also competing with those same business users in the provision of the same or similar services or products to the same end users, including as part of an ancillary service. In these circumstances, a gatekeeper may take advantage of its dual role to use data, generated from transactions by its business users on the core platform or from transactions on its ancillary service, for the purpose of its own services or goods that offer similar services to that of its business users or of its suppliers. This may be the case, for instance, where a gatekeeper provides an online marketplace or app store to business users, and at the same time offer services as an online retailer or provider of application software against those business users or against its suppliers. To prevent gatekeepers from unfairly benefitting from their dual role, it should be ensured that they refrain from using any aggregated or non-aggregated data, which may include anonymised and personal data that is not publicly available to offer similar services to those of their business users. This obligation should apply to the gatekeeper as a whole, including but not limited to its business unit that competes with the business users of a core platform service.
Amendment 130 #
Proposal for a regulation
Recital 47
Recital 47
(47) The rules that the gatekeepers set for the distribution of software applications may in certain circumstances restrict the ability of end users to install and effectively use third party software applications or software application stores on operating systems or hardware of the relevant gatekeeper and restrict the ability of end users to access these software applications or software application stores outside the core platform services of that gatekeeper. Such restrictions may limit the ability of developers of software applications to use alternative distribution channels and the ability of end users to choose between different software applications from different distribution channels and should be prohibited as unfair and liable to weaken the contestability of core platform services. In order to ensure that third party software applications or software application stores do not endanger the integrity of the hardware or operating system provided by the gatekeeper the gatekeeper concerned may implement proportionate technical or contractual measures to achieve that goal if the gatekeeper demonstrates that such measures are necessary and justified and that there are no less restrictive means to safeguard the integrity of the hardware or operating system. This prohibition on restricting the ability of end users to install and use, or access third - party software applications or application stores should not prevent gatekeepers to take the required responsibility in the fight against illegal content online.
Amendment 133 #
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, as opposed to the products of third parties also operating onusing that core platform service. This can occur for instance with products or services, including other core platform services, which are ranked inwithin or along the results communicated by online search engines, or which are partly or entirely embedded in online search engines results, groups of results specialised in a certain topic, displayed along with the results of an online search engine, which armay be considered or used by certain end users as a service distinct or additional to the online search engine. Such preferential or embedded display of a separate online intermediation service shall be regarded as a favouring irrespective of whether the information or results within the favoured groups of specialised results may also be provided by competing services and are as such ranked in a non-discriminatory way. 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 potentially leading to a conflict of interest. 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 137 #
Proposal for a regulation
Recital 50
Recital 50
(50) Gatekeepers should not restrict or prevent the free choice of end users by technically preventing switching between or subscription to different software applications and services. This would allow more providers to offer their services, thereby ultimately providing greater choice to the end user. Gatekeepers should ensure a free choice irrespective of whether they are the manufacturer of any hardware by means of which such software applications or services are accessed and shall not raise artificialunjustified technical barriers so as to make switching impossible or ineffective. The mere offering of a given product or service to consumers, including by means of pre-installation, as well as the improvement of the offering to end users, such as price reductions or increased quality, should not be construed as constituting a prohibited barrier to switching.
Amendment 141 #
Proposal for a regulation
Recital 54
Recital 54
(54) Gatekeepers benefit from access to vast amounts of data that they collect while providing the core platform services as well as other digital services. To ensure that gatekeepers do not undermine the contestability of core platform services as well as the innovation potential of the dynamic digital sector by restricting the ability of business users to effectively port their data, business users and end users should be granted effective, free of charge and immediate access to the data they provided or generated in the context of their use of the relevant core platform services of the gatekeeper, in a structured, commonly used and machine-readable format. This should apply also to any other data at different levels of aggregation that may be necessary to effectively enable such portability. It should also be ensured that business users and end users can port that data in real time effectively, such as for example through high quality application programming interfaces. Facilitating switching or multi- homing should lead, in turn, to an increased choice for business users and end users and an incentive for gatekeepers and business users to innovate.
Amendment 146 #
Proposal for a regulation
Recital 57
Recital 57
(57) In particular gGatekeepers which provide access to software application storcore platform services serve as an important gateway for business users that seek to reach end users. In view of the imbalance in bargaining power between those gatekeepers and business users of their software application storcore platform services, those gatekeepers should not be allowed to impose general conditions, including pricing conditions, data usage conditions or conditions related to the licensing of rights held by the business user that would be unfair or lead to unjustified differentiation. Pricing or other general access or treatment conditions should be considered unfair if they lead to an imbalance of rights and obligations imposed on business users or confer an advantage on the gatekeeper which is disproportionate to the service provided by the gatekeeper to business users or lead to a disadvantage for business users in providing the same or similar services as the gatekeeper. The following benchmarks can serve as a yardstick to determine the fairness of general access or treatment conditions: prices charged or conditions imposed for the same or similar services by other providers of software application storcore platform services; prices charged or conditions imposed by the provider of the software application storecore platform services for different related or similar services or to different types of end users; prices charged or conditions imposed by the provider of the software application storecore platform services for the same service in different geographic regions; prices charged or conditions imposed by the provider of the software application storecore platform services for the same service the gatekeeper offers to itself. This obligation should not establish an access right and it should be without prejudice to the ability of providers of software application storcore platform services to take the required responsibility in the fight against illegal and unwanted content as set out in Regulation [Digital Services Act].
Amendment 148 #
Proposal for a regulation
Recital 60
Recital 60
(60) In exceptional circumstances justified on the limited grounds of public moralhealth and security, public health or public security, the Commission should be able to decide that the obligation concerned does not apply to a specific core platform service. Affecting these public interests can indicate that the cost to society as a whole of enforcing a certain obligation would in a certain exceptional case be too high and thus disproportionate. The regulatory dialogue to facilitate compliance with limited suspension and exemption possibilities should ensure the proportionality of the obligations in this Regulation without undermining the intended ex ante effects on fairness and contestability. Where such an exemption is granted, the Commission should review its decision every two years.
Amendment 149 #
Proposal for a regulation
Recital 62
Recital 62
(62) In order to ensure the full and lasting achievement of the objectives of this Regulation, the Commission should be able to assess whether a provider of core platform services should be designated as a gatekeeper without meeting the quantitative thresholds laid down in this Regulation; whether systematic non- compliance by a gatekeeper warrants imposing additional remedies; and whether the list of obligations addressing unfair practices by gatekeepers should be reviewed and, if necessary, 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 150 #
Proposal for a regulation
Recital 64
Recital 64
(64) The Commission should investigate and assess whether additional behavioural, or, where appropriate, structural remedies are justified, in order to ensure that the gatekeeper cannot frustrate the objectives of this Regulation by systematically non-t complianceying with one or several 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 its position. The Commission should therefore in such cases of systematic non-compliance have the power to impose any remedy, whether behavioural or structural, having due regard to the principle of proportionality. Structural remedies, such as legal, functional or structural separation, including the divestiture of a business, or parts of it, should only be imposed either where there is no equally effective behavioural remedy or where any equally effective behavioural remedy would be more burdensome for the undertaking concerned than the structural remedy. Changes to the structure of an undertaking as it existed before the systematic non-compliance was established would only be proportionate where there is a substantial risk that this systematic non-compliance results from the very structure of the undertaking concernedthat is necessary to ensure effective compliance with this Regulation.
Amendment 161 #
Proposal for a regulation
Article 1 – paragraph 1
Article 1 – paragraph 1
1. This Regulation lays down harmonised rules ensuring contestable and fair markets in the digital sector across the Union where gatekeepers for large platforms are present.
Amendment 169 #
Proposal for a regulation
Article 1 – paragraph 6
Article 1 – paragraph 6
6. This Regulation complements and is without prejudice to the application of Articles 101 and 102 TFEU. It is also without prejudice to the application of: national rules prohibiting anticompetitive agreements, decisions by associations of undertakings, concerted practices and abuses of dominant positions; national competition rules prohibiting other forms of unilateral conduct insofar as they are applied to undertakings other than gatekeepers or amount to imposing additional obligations on gatekeepers; Council Regulation (EC) No 139/200438 and national rules concerning merger control; Regulation (EU) 2019/1150 and Regulation (EU) …./.. of the European Parliament and of the Council39 . __________________ 38Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the EC Merger Regulation) (OJ L 24, 29.1.2004, p. 1). 39Regulation (EU) …/.. of the European Parliament and of the Council – proposal on a Single Market For Digital Services (Digital Services Act) and amending Directive 2000/31/EC.
Amendment 175 #
Proposal for a regulation
Article 2 – paragraph 1 – point 2 – point h
Article 2 – paragraph 1 – point 2 – point h
(h) online advertising services, including any advertising networks, advertising exchanges and any other advertising intermediation services, provided by a provider of any of the core platform services listed in points (a) to (g);
Amendment 178 #
Proposal for a regulation
Article 2 – paragraph 1 – point 2 – point h a (new)
Article 2 – paragraph 1 – point 2 – point h a (new)
(ha) web browsers;
Amendment 187 #
Proposal for a regulation
Article 2 – paragraph 1 – point 10 a (new)
Article 2 – paragraph 1 – point 10 a (new)
(10a) ‘Web browsers’ are software used by users of client PCs, smart mobile devices and other devices to access and interact with web content hosted on servers that are connected to networks such as the Internet, including standalone web browsers as well as web browsers integrated or embedded in software or similar;
Amendment 190 #
Proposal for a regulation
Article 2 – paragraph 1 – point 12
Article 2 – paragraph 1 – point 12
(12) ‘Software application stores’ means a type of online intermediationny digital services, which is focused on software applications as the intermediated product or service;
Amendment 194 #
Proposal for a regulation
Article 2 – paragraph 1 – point 14
Article 2 – paragraph 1 – point 14
(14) ‘Ancillary service’ means services provided in the context of or together with core platform services, including retailing or distribution services, payment services as defined in point 3 of Article 4 and technical services which support the provision of payment services as defined in Article 3(j) of Directive (EU) 2015/2366, fulfilment, identification or advertising services;
Amendment 206 #
Proposal for a regulation
Article 3 – paragraph 1 – introductory part
Article 3 – paragraph 1 – introductory part
1. An undertaking that provider ofs core platform services shall be designated as gatekeeper if:
Amendment 209 #
Proposal for a regulation
Article 3 – paragraph 1 – point b
Article 3 – paragraph 1 – point b
(b) it operates as core platform service which serves as an important gateway for business users to reach end users; and
Amendment 210 #
Proposal for a regulation
Article 3 – paragraph 1 – point c
Article 3 – paragraph 1 – point c
(c) it enjoys an entrenched and durable position in its operations or it is foreseeable that it will enjoy such a position, based on an objective assessment by the competent authority taking into account past and predicted rates of growth and market concentration, in the near future.; and
Amendment 212 #
Proposal for a regulation
Article 3 – paragraph 1 – point c a (new)
Article 3 – paragraph 1 – point c a (new)
(ca) it has the ability to transfer its own core competencies to other areas.
Amendment 213 #
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 6.510 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 65100 billion in the last financial year, and it provides a core platform service in at least three Member States;
Amendment 214 #
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 atwo or more core platform services that has each more than 45 million monthly active end users established or located in the Union and more than 10 000 yearly active business users established in the Union in the last financial year. Monthly active end users and yearly active business users should be measured taking into account the indicators set out in the Annex to this Regulation;
Amendment 215 #
Proposal for a regulation
Article 3 – paragraph 2 – point c a (new)
Article 3 – paragraph 2 – point c a (new)
(ca) the requirement in paragraph 1 point (d) where the provider either offers a multi-platform integration with at least two core platform services or has a dual role.
Amendment 218 #
Proposal for a regulation
Article 3 – paragraph 4 a (new)
Article 3 – paragraph 4 a (new)
4a. Where the provider of the core platform service fails to provide within the deadline set by the Commission all the relevant information that is required to assess its designation as gatekeeper pursuant to Article 3 (2), the Commission shall be entitled to designate that provider as a gatekeeper based on the facts available.
Amendment 232 #
Proposal for a regulation
Article 4 – paragraph 2 – introductory part
Article 4 – paragraph 2 – introductory part
2. The Commission shall regularly, and at least every 23 years, review whether the designated gatekeepers continue to satisfy the requirements laid down in Article 3(1), or whether new providers of core platform services satisfy those requirements. The regular review shall also examine whether the list of affected core platform services of the gatekeeper needs to be adjusted.
Amendment 240 #
Proposal for a regulation
Article 5 – paragraph 1 – point b
Article 5 – paragraph 1 – point b
(b) allowrefrain from applying contractual obligations that prevent business users tofrom offering business users from offering the same products or services to end users themselves or through third party online intermediation services at prices or conditions that are different from those offered through the online intermediation services of the gatekeeper;
Amendment 244 #
Proposal for a regulation
Article 5 – paragraph 1 – point c
Article 5 – paragraph 1 – point c
(c) allow business users to promote different 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 247 #
Proposal for a regulation
Article 5 – paragraph 1 – point d
Article 5 – paragraph 1 – point d
(d) refrain from directly or indirectly preventing or restricting business users or supplier to the gatekeeper’s ancillary service from raising issues with any relevant public authority relating to any practice of gatekeepers;
Amendment 252 #
Proposal for a regulation
Article 5 – paragraph 1 – point f
Article 5 – paragraph 1 – point f
(f) refrain from requiring business users or end users to use, to subscribe to or register with any other core platform services identified pursuant to Article 3 or which meets the thresholds in Article 3(2)(b) as a condition to access, sign up or register to any of their core platform services identified pursuant to that Article;
Amendment 256 #
Proposal for a regulation
Article 5 – paragraph 1 – point g
Article 5 – paragraph 1 – point g
(g) provide individual advertisers and publishers to which it supplies advertising services, upon their request, with informa with free of charge, high-quality, effective, continuous and real-time access to information on the visibility and availability of advertisement portfolio as well as pricing conditions concerning the bids placed by advertisers and advertising intermediaries, the price paid by the advertiser and publisher, as well as the amount orand remuneration paid to the publisher, for the publishing of a given ad and for each of the relevant advertising services provided by the gatekeeper.
Amendment 270 #
Proposal for a regulation
Article 6 – paragraph 1 – point c
Article 6 – paragraph 1 – point c
(c) allow and technically enable the installation and effective 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 integrity of the hardware or operating system provided by the gatekeeper;
Amendment 274 #
Proposal for a regulation
Article 6 – paragraph 1 – point d
Article 6 – paragraph 1 – point d
(d) refrain from treating more favourably in ranking services and products offered by the gatekeeper itself or by any third party belonging to the same undertaking compared to similar services or products of othirder partyies and apply fair and non-discriminatory conditions to such ranking;
Amendment 291 #
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 and treatment for business users to its software application storcore platform services, in particular to its software application store, online search engine and to its online social networking service designated pursuant to Article 3 of this Regulation.
Amendment 299 #
Proposal for a regulation
Article 6 – paragraph 2
Article 6 – paragraph 2
2. For the purposes of point (a) of paragraph 1 data that is not publicly available shall include any aggregated and non-aggregated data generated by business users or generated by goods and services provided by a supplier to the gatekeeper’s ancillary services notably distribution, that can be inferred from, or collected through, the commercial activities of business users or their customers on the core platform, distribution or other ancillary service of the gatekeeper.
Amendment 309 #
Proposal for a regulation
Article 7 – paragraph 7
Article 7 – paragraph 7
7. A gatekeeper may request the opening of proceedings pursuant to Article 18 for the Commission to determine whether the measures that the gatekeeper intends to implement or has implemented under Article 6 are effective in achieving the objective of the relevant obligation in the specific circumstances. A gatekeeper may, with its request,In its request, the gatekeeper shall provide a reasoned submission to explain in particular why the measures that it intends to implement or has implemented are effective in achieving the objective of the relevant obligation in the specific circumstances.
Amendment 312 #
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 year. Following such a review the Commission shall either wholly or partly lift the suspension or decide that the conditions of paragraph 1 continue to be met.
Amendment 315 #
Proposal for a regulation
Article 9 – paragraph 2 – point a
Article 9 – paragraph 2 – point a
Amendment 324 #
Proposal for a regulation
Article 12 – paragraph 1 – introductory part
Article 12 – paragraph 1 – introductory part
1. A gatekeeper shall inform the Commission and 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 328 #
Proposal for a regulation
Article 12 – paragraph 1 – subparagraph 1
Article 12 – paragraph 1 – subparagraph 1
A gatekeeper shall informnotify the Commission of such a concentration prior to its implementation and following the conclusion of the agreement, the announcement of the public bid, or the acquisition of a controlling interest.
Amendment 340 #
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 348 #
Proposal for a regulation
Article 16 – paragraph 5
Article 16 – paragraph 5
5. The Commission shall communicate its objections to the gatekeeper concerned within sixfour 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 effective, necessary and proportionate.
Amendment 376 #
Proposal for a regulation
Article 27 – title
Article 27 – title
Periodic penalty payments
Amendment 394 #
Proposal for a regulation
Article 36 a (new)
Article 36 a (new)
Article 36a Guidelines To facilitate the compliance of gatekeepers with and the enforcement of the obligations in Articles 5, 6, 12 and 13, the Commission shall accompany the obligations set out in those Articles with guidelines, where appropriate. Where appropriate and necessary, the Commission may mandate the standardisation bodies to develop standards to facilitate the implementation of the obligations.