Activities of Adam JARUBAS 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 (176)
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 95 #
Proposal for a regulation
Recital 10
Recital 10
(10) Articles 101 and 102 TFEU and the corresponding national competition rules concerning anticompetitive multilateral and unilateral conduct as well as merger control have as their objective the protection of undistorted competition on the market. This Regulation pursues an objective that is complementary to, but different from that of protecting undistorted competition on any given market, as defined in competition-law terms, which is to ensure that markets where gatekeepers are present are and remain contestable and fair, independently from the actual, likely or presumed effects of the conduct of a given gatekeeper covered by this Regulation on competition on a given market. This Regulation therefore aims at protecting a different legal interest from those rules and from rules under consumer protection law and thus it should be without prejudice to their application.
Amendment 97 #
Proposal for a regulation
Recital 11
Recital 11
(11) This Regulation should also complement, without prejudice to their application, the rules resulting from other acts of Union law regulating certain aspects of the provision of services covered by this Regulation, in particular Regulation (EU) 2019/1150 of the European Parliament and of the Council26 , Regulation (EU) xx/xx/EU [DSA] of the European Parliament and of the Council27 , Regulation (EU) 2016/679 of the European Parliament and of the Council28 , Directive (EU) 2019/790 of the European Parliament and of the Council29 , Directive (EU) 2015/2366 of the European Parliament and of the Council30 , Directive 2005/29/EC, Council Directive 93/13/EEC and Directive (EU) 2010/13 of the European Parliament and of the Council31 , as well as national rules aimed at enforcing or, as the case may be, implementing that Union legislation. _________________ 26 Regulation (EU) 2019/1150 of the European Parliament and of the Council of 20 June 2019 on promoting fairness and transparency for business users of online intermediation services (OJ L 186, 11.7.2019, p. 57). 27Regulation (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. 28Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (OJ L 119, 4.5.2016, p. 1). 29 Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/ (OJ L 130, 17.5.2019, p. 92.). 30Directive (EU) 2015/2366 of the European Parliament and of the Council of 25 November 2015 on payment services in the internal market, amending Directives 2002/65/EC, 2009/110/EC and 2013/36/EU and Regulation (EU) No 1093/2010, and repealing Directive 2007/64/EC ( OJ L 337, 23.12.2015, p. 35). 31Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) (OJ L 95, 15.4.2010, p. 1).
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 101 #
Proposal for a regulation
Recital 13
Recital 13
(13) In particular, online intermediation services, online search engines, operating systems (which include digital voice assistants and connected TVs), online social networking, video sharing platform services, number- independent interpersonal communication services, cloud computing services, web browsers 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. Virtual or voice activated assistants and other connected devices, represent the fastest developing interface for users to access the web, to use and control smart devices and access consumer IoT services, and therefore fall within the scope of this Regulation not only as operating systems, an online intermediation service or a search engine, but as a distinctive core platform service category. 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 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 108 #
Proposal for a regulation
Recital 15
Recital 15
(15) The fact that a digital service qualifies as a core platform service in light of its widespread and common use and its importance for connecting business users and end users does not as such give rise to sufficiently serious concerns of contestability and unfair practices. It is only when a core platform service constitutes an important gateway and is operated by a provider with a significant impact in the internal market and an entrenched and durable position, or by a provider that will foreseeably have such a position in the near future, that such concerns arise. Accordingly, the targeted set of harmonised rules laid down in this Regulation should apply only to undertakings designated on the basis of these three objective criteria, and they should only apply to those of their core platform services that individually constitute an important gateway for business users to reach end users.
Amendment 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 110 #
Proposal for a regulation
Recital 16
Recital 16
(16) In order to ensure the effective application of this Regulation to providers of core platform services which are most likely to satisfy these objective requirements, and where unfair conduct weakening contestability is most prevalent and impactful, the Commission should be able to directly designate as gatekeepers those providers of core platform services which meet certain quantitative thresholds. Such undertakings should in any event be subject to a fast designation process which should start upon the entry into force of this Regulation. The turnover and market value-based threshold should refer to the whole undertaking, while the user-based threshold should apply separately for, and only to, each type of core platform service rendered by a provider within an undertaking. Provisions in Chapter IV and Chapter V should refer to the whole undertaking controlling the gatekeeper for the sake of enforcement.
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 114 #
Proposal for a regulation
Recital 17
Recital 17
(17) A very significant turnover in the Union and the provision of a core platform service in at least three Member States constitute compelling indications that the provider of a core platform service has a significant impact on the internal market. This is equally true where a provider of a core platform service in at least three Member States has a very significant market capitalisation or equivalent fair market value. Therefore, a provider of a core platform service should be presumed to have a significant impact on the internal market where it provides a core platform service in at least three Member States and where either its group turnover realised in the EEA is equal to or exceeds a specific, high threshold or the market capitalisation of the group is equal to or exceeds a certain high absolute value. For providers of core platform services that belong to undertakings that are not publicly listed, the equivalent fair market value above a certain high absolute value should be referred to. The Commission should use its power to adopt delegated acts to develop an objective methodology to calculate that value. A high EEA group turnover in conjunction with the threshold of users in the Union of core platform services reflects a relatively strong ability to monetise these users. A high market capitalisation relative to the same threshold number of users in the Union reflects a relatively significant potential to monetise these users in the near future.. This monetisation potential in turn reflects in principle the gateway position of the undertakings concerned. Both indicators are in addition reflective of their financial capacity, including their ability to leverage their access to financial markets to reinforce their position. This may for example happen where this superior access is used to acquire other 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 118 #
Proposal for a regulation
Recital 21
Recital 21
(21) An entrenched and durable position in its operations or the foreseeability of achieving such a position future occurs notably where the contestability of the position of the provider of the core platform service is limited. This is likely to be the case where that provider has provided a core platform service in at least three Member States to a very high number of business users and end users during at least three years.
Amendment 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 126 #
Proposal for a regulation
Recital 24
Recital 24
(24) Provision should also be made for the assessment of the gatekeeper role of providers of core platform services which do not satisfy all of the quantitative thresholds, in light of the overall objective requirements that they have a significant impact on the internal market, act as an important gateway for business users to reach end users and benefit from a durable and entrenched position in their operations or it is foreseeable that it will do so in the near future.
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 129 #
Proposal for a regulation
Recital 25
Recital 25
(25) Such an assessment can only be done in light of a market investigation, while taking into account the quantitative thresholds. In its assessment the Commission should pursue the objectives of preserving and fostering the level of innovation, the quality of digital products and services, the degree to which prices are fair and competitive, and the degree to which quality or choice for business users and for end users is or remains high. Elements that are specific to the providers of core platform services concerned, 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, can be taken into account. In addition, a very high market capitalisation, a very high ratio of equity value over profit or a very high turnover derived from end users of a single core platform service can point to the tipping of the market or leveraging potential of such providers. Together with market capitalisation, high growth rates, or decelerating growth rates read together with profitability growth, are examples of dynamic parameters that are particularly relevant to identifying such providers of core platform services that are foreseen to become entrenched. The Commission should be able to take a decision by drawing adverse inferences from facts available where the provider significantly obstructs the investigation by failing to comply with the investigative measures taken by the Commission.
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 130 #
Proposal for a regulation
Recital 26
Recital 26
Amendment 132 #
Proposal for a regulation
Recital 27
Recital 27
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 135 #
Proposal for a regulation
Recital 30
Recital 30
(30) The very rapidly changing and complex technological nature of core platform services requires a regular review of the status of gatekeepers, including those that are foreseen to enjoy a durable and entrenched position in their operations in the near future. To provide all of the market participants, including the gatekeepers, with the required certainty as to the applicable legal obligations, a time limit for such regular reviews is necessary. It is also important to conduct such reviews on a regular basis and at least every two years.
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 139 #
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. Such information, especially regarding acquisitions of emerging competitors, 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 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 141 #
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 practicesbehaviour 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 practice that is the subject of one of the obligations ofcluding product or interface design subverting, impairing or making user decision- making more burdensome, insofar as such behaviour has an equivalent object or effect to the practices that are prohibited under this Regulation.
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 155 #
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 the same or more favourable conditions, including price, through ooutside their online intermediation services. 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 intermediadistribution channels for end users. To ensure that business users of online intermediation services of gatekeepers can freely choose alternative online intermediation servicedistribution channels and differentiate the conditions under which they offer their products or services to their end users, it should not be accepted 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 159 #
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 and end users to raise concerns about unfair behaviour by gatekeepers with any relevant administrative or other public authorities, including national courts. For example, business users or end users may want to complain about different types of unfair practices, such as discriminatory access conditions, unjustified closing of business user accounts or unclear grounds for product de-listings. Any practice that would in any way inhibit such a possibility of raising concerns or seeking available redress, for instance by means of confidentiality clauses in agreements or other written terms, should therefore be prohibited. This should be without prejudice to the right of business users and gatekeepers to lay down in their agreements the terms of use including the use of lawful complaints-handling mechanisms, including any use of alternative dispute resolution mechanisms or of the jurisdiction of specific courts in compliance with respective Union and national law This should therefore also be without prejudice to the role gatekeepers play in the fight against illegal content online.
Amendment 163 #
Proposal for a regulation
Recital 40 a (new)
Recital 40 a (new)
(40 a) The gatekeepers generate vast and growing internet traffic levels challenging the capacities of operators of transport and access networks as well as Internet Access Service Providers on the one hand but also allowing to leverage their bargaining power in commercially negotiating the contractual conditions for IP Transport. Causing congestion would not only impact the quality of the gatekeeper's own services but cause additional deterioration to the performance of third-party services, ultimately impeding end users and business users internet experience quality of which is attributed by the users to the Internet providers. Gatekeepers should therefore be obliged to treat network operators and Internet Access Service Providers fairly and not to exploit their gatekeeping position in commercial negotiations.
Amendment 164 #
Proposal for a regulation
Recital 41
Recital 41
(41) 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 therefore ensure a free choice irrespective of whether they are the manufacturer of any hardware by means of which such software applications or services are accessed and should not raise artificial technical barriers so as to make switching impossiblemore difficult or ineffective. The mere offering of a given product or service to end usconsumers, including by means of pre- installation, as well as the improvement of end userthe offering to end users, such as better prices or increased quality, wshould not in itself constitute abe construed as constituting a prohibited barrier to switching.
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 169 #
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 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 cookiesunilateral decision making by industry actors that are not representative of the entire advertising value chain. 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 171 #
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. 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, for the purpose of its own services that offer similar services to that of its business users. 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. 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. ThiSeveral providers of core platform services or ancillary services within the same undertaking, with at least one gatekeeper status, often results in a similar dual role. Thus 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 173 #
Proposal for a regulation
Recital 46
Recital 46
(46) A gatekeeper may use different means to favour its own services or products on its core platform service, to the detriment of the same or similar services that end users could obtain through third parties. This may for instance be the case where certain software applications or services are pre-installed by a gatekeeper. To enable end user choice, gatekeepers should not prevent end users and business users, including device manufacturers and device providers, from un- installing any pre-installed software applications on itstheir core platform service and thereby favour their own software applications, unless they are proven as essential to the functioning or security of the operating system, device or other software applications installed by the business or end users.
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 178 #
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 business users and end users to install, set as defaults 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. To ensure contestability, the gatekeeper should allow all downloaded applications or application stores to prompt the end user enabling decision on setting them as default. In order to ensure that third party software applications or software application stores do not endanger the integrity of the hardware or operating system provided by the gatekeeper and do not compromise data protection, user privacy, security or choice, the gatekeeper concerned may implement proportionate technical or contractual measures to achieve that goal if the gatekeeper demonstrates that such measures are necessary and justified and that there are no less restrictive means to safeguard the integrity of the hardware or operating system.
Amendment 181 #
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 arcan 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 should be regarded as a favouring irrespective of whether the information or results within the favoured groups of specialised results can 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 186 #
Proposal for a regulation
Recital 50
Recital 50
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 189 #
Proposal for a regulation
Recital 51
Recital 51
(51) Gatekeepers can hamper the ability of end users to access electronic communications services including internet access service, online content and services including software applications. Therefore, rules should be established to ensure that the rights of end users to access an open internet are not compromised by the conduct of gatekeepers. Gatekeepers can also technically and commercially limit the ability of end users to effectively access and switch between different Iinternet access service providers, in particular through their control over operating systems or hardware. This distorts the level playing field for Ielectronic communications (including internet access services) and ultimately harms end users. It should therefore be ensured that gatekeepers do not unduly restrict end users in choosing their Ielectronic communications network or internet access service provider.
Amendment 196 #
Proposal for a regulation
Recital 52 a (new)
Recital 52 a (new)
(52 a) Network effects, particularly strong for the core platform services of number-independent interpersonal communication services and online social networking, have significant negative effect for contestability and fairness on the internal market across the Union, undermining innovation, cost and quality competition and limiting business ans end users choice. To prevent this, gatekeepers should be obligated to provide interoperability using globally recognised industry-standard service features of social networking services or number- independent interpersonal communications services to end users, business users and providers or potential providers of number-independent interpersonal communication services and online social networking at the request of these providers.
Amendment 199 #
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 or third parties authorised by an end user 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 203 #
Proposal for a regulation
Recital 55
Recital 55
(55) Business users that use large core platform services provided by gatekeepers and end users of such business users provide and generate a vast amount of data, including data inferred from such use. In order to ensure that business users have access to the relevant data thus generated, the gatekeeper should, upon their request, allow unhindered access, free of charge, to such data. Such access should also be given to third parties contracted by the business user, who are acting as processors of this data for the business user. Data provided or generated by the same business users and the same end users of these business users in the context of other services provided by the same gatekeeper may be concerned where this is inextricably linked to the relevant request. To this end, a gatekeeper should not use any contractual or other restrictions to prevent business users from accessing relevant data and should enable business users to obtain consent of their end users for such data access and retrieval, where such consent is required under Regulation (EU) 2016/679 and Directive 2002/58/EC. Gatekeepers should also facilitate access to these data in real time by means of appropriate technical measures, such as for example putting in place high quality application programming interfaces or enabling access of data by the business user “in situ”, without a transfer by the gatekeeper.
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 207 #
Proposal for a regulation
Recital 57
Recital 57
(57) In particular gGatekeepers which provide access to software application storcore platform services serve as an important gateway for business users that seek to reach end users. In view of the imbalance in bargaining power between those gatekeepers and business users of their software application storcore platform services, those gatekeepers should not be allowed to impose general conditions, including pricing conditions, that would be unfair or lead to unjustified differentiation. Pricing or other general access conditions should be considered unfair if they lead to an imbalance of rights and obligations imposed on business users or confer an advantage on the gatekeeper which is disproportionate to the service provided by the gatekeeper to business users or lead to a disadvantage for business users in providing the same or similar services as the gatekeeper. The following benchmarks can serve as a yardstick to determine the fairness of general access conditions: prices charged or conditions imposed for the same or similar services by other providers of software application storcore platform services; prices charged or conditions imposed by the provider of the software application 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 212 #
Proposal for a regulation
Recital 58
Recital 58
(58) To ensure the effectiveness of the obligations laid down by this Regulation, while also making certain that these obligations are limited to what is necessary to ensure contestability and tackling the harmful effects of the unfair behaviour by gatekeepers, it is important to clearly define and circumscribe them so as to allow the gatekeeper to immediately comply with them, in full respect of Regulation (EU) 2016/679 and Directive 2002/58/EC, consumer protection, cyber security and product safety. The gatekeepers should ensure the compliance with this Regulation by design. The necessary measures should therefore be as much as possible and where relevant integrated into the technological design used by the gatekeepers. However, it may in certain cases be appropriate for the Commission, following a dialogue with the gatekeeper concerned, and mandatory consultation with interested third parties, to further specify in a decision some of the measures that the gatekeeper concerned should adopt in order to effectively comply with those obligations that are susceptible of being further specified. This possibility of a regulatory dialogue should facilitate compliance by gatekeepers and expedite the correct implementation of the Regulation.
Amendment 217 #
Proposal for a regulation
Recital 60
Recital 60
(60) In exceptional circumstances justified on the limited grounds of public morality, public health or public security, the Commission should be able to decide that the obligation concerned does not apply to a specific core platform service. Affecting these public interests can indicate that the cost to society as a whole of enforcing a certain obligation would in a certain exceptional case be too high and thus disproportionate. The regulatory dialogue to facilitate compliance with limited suspension and exemption possibilities should ensure the proportionality of the obligations in this Regulation without undermining the intended ex ante effects on fairness and contestability. Where such an exemption is granted, the Commission should review its decision every two years.
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 226 #
Proposal for a regulation
Recital 63
Recital 63
(63) Following a market investigation, an undertaking providing a core platform service could be found to fulfil all of the overarching qualitative criteria for being identified as a gatekeeper. It should then, in principle, comply with all of the relevant obligations laid down by this Regulation. However, for gatekeepers that have been designated by the Commission as likely to enjoy an entrenched and durable position in the near future, the Commission should only impose those obligations that are necessary and appropriate to prevent that the gatekeeper concerned achieves an entrenched and durable position in its operations. With respect to such emerging gatekeepers, the Commission should take into account that this status is in principle of a temporary nature, and it should therefore be decided at a given moment whether such a provider of core platform services should be subjected to the full set of gatekeeper obligations because it has acquired an entrenched and durable position, or conditions for designation are ultimately not met and therefore all previously imposed obligations should be waived.
Amendment 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 245 #
Proposal for a regulation
Recital 75
Recital 75
(75) In the context of proceedings carried out under this Regulation, the undertakings concerned should be accorded the right to be heard by the Commission and the decisions taken should be widely publicised. Other relevant stakeholders with sufficient interest, natural or legal persons, should also have a right to be heard, particularly parties directly affected by the obligations of Articles 5 and 6. Parties could be represented by associations applying on their behalf or other representatives. While ensuring the rights to good administration and the rights of defence of the undertakings concerned, in particular, the right of access to the file and the right to be heard, it is essential that confidential information be protected. Furthermore, while respecting the confidentiality of the information, the Commission should ensure that any information relied on for the purpose of the decision is disclosed to an extent that allows the addressee of the decision to understand the facts and considerations that led up to the decision. Finally, under certain conditions certain business records, such as communication between lawyers and their clients, may be considered confidential if the relevant conditions are met.
Amendment 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 249 #
Proposal for a regulation
Recital 75 a (new)
Recital 75 a (new)
(75 a) In order to facilitate cooperation and coordination between the Commission and Member States in their enforcement actions, a group of regulators with responsibilities in the digital sector should be established with the power to advise the Commission on a number of decisions; it should enable the exchange of information and best practices among the Members States, better monitoring and thus strengthen the implementation of this Regulation.
Amendment 250 #
Proposal for a regulation
Recital 76
Recital 76
(76) In order to ensure uniform conditions for the implementation of Articles 3, 5, 6, 12, 13, 15, 16, 17, 20, 22, 23, 25 and 30, implementing powers should be conferred on the Commission. Those powers should be exercised in accordance with Regulation (EU) No 182//2011 of the European Parliament and of the Council35 . _________________ 35Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers, (OJ L 55, 28.2.2011, p. 13).
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 260 #
Proposal for a regulation
Article 1 – paragraph 1
Article 1 – paragraph 1
1. This Regulation layse purpose of this Regulation is to contribute to the proper functioning of the internal market by laying down harmonised rules ensuring contestable and fair markets in the digital sector across the Union where gatekeepers are present.
Amendment 264 #
Proposal for a regulation
Article 1 – paragraph 2
Article 1 – paragraph 2
2. This Regulation shall apply to core platform services provided or offered by gatekeepers to business users established in the Union or end users established or located in the Union and business users, irrespective of the place of establishment or residence of the gatekeepers or business users and irrespective of the law otherwise applicable to the provision of service.
Amendment 265 #
Proposal for a regulation
Article 1 – paragraph 3 – point b
Article 1 – paragraph 3 – point b
(b) related to electronic communications services as defined in point (4) of Article 2 of Directive (EU) 2018/1972 other than those related to number-independent interpersonal communication services as defined in point (4)(b7) of Article 2 of that Directive.
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 272 #
Proposal for a regulation
Article 1 – paragraph 5
Article 1 – paragraph 5
5. In order to avoid the fragmentation of the internal market, Member States shall not impose on gatekeepers further obligations by way of laws, regulations or administrative action for the purpose of ensuring contestable and fair markets. This is without prejudice to rules pursuing other legitimate public interests, in compliance with Union law. In particular, nothing in this Regulation precludes Member States from imposing obligations, which are compatible with Union law, on undertakings, including those undertakings controlling the providers of core platform services where these obligations are unrelated to the relevant providers of core platform services undertakings having a status of gatekeeper within the meaning of this Regulation in order to protect consumers or to fight against acts of unfair competition.
Amendment 274 #
Proposal for a regulation
Article 1 – paragraph 5 a (new)
Article 1 – paragraph 5 a (new)
5 a. The Commission or any national institution, shall not apply obligations or prohibitions, included in this Regulation and reserved for the gatekeepers, or obligations or prohibitions identical in substance, to core platform services providers not designated by the Commission as gatekeepers under this Regulation.
Amendment 276 #
Proposal for a regulation
Article 1 – paragraph 6
Article 1 – paragraph 6
6. This Regulation is without prejudice to the application of Articles 101 and 102 TFEU. It is also without prejudice to the application of: national rules prohibiting anticompetitive agreements, decisions by associations of undertakings, concerted practices and abuses of dominant positions; national competition rules prohibiting other forms of unilateral conduct insofar as they are applied to undertakings other than gatekeepers or amount to imposing additional obligations on gatekeepers; Council Regulation (EC) No 139/200438 and national rules concerning merger control; Regulation (EU) 2019/1150; Directive 2005/29/EC; Council Directive 93/13/EEC 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 282 #
Proposal for a regulation
Article 2 – paragraph 1 – point 2 – point b a (new)
Article 2 – paragraph 1 – point 2 – point b a (new)
(b a) Voice activated assistants;
Amendment 285 #
Proposal for a regulation
Article 2 – paragraph 1 – point 2 – point f a (new)
Article 2 – paragraph 1 – point 2 – point f a (new)
(f a) web browsers;
Amendment 289 #
Proposal for a regulation
Article 2 – paragraph 1 – point 2 – point h
Article 2 – paragraph 1 – point 2 – point h
(h) advertising services, including any advertising networks, advertising exchanges and any other advertising intermediation services, provided by a provider of any of the core platform services listed in points (a) to (g) or a provider controlled by an undertaking controlling a provider of any of the core platform services listed in points (a) to (g);
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 307 #
Proposal for a regulation
Article 2 – paragraph 1 – point 6 a (new)
Article 2 – paragraph 1 – point 6 a (new)
(6 a) 'Voice activated assistants' means voice-activated pieces of software that can perform a variety of tasks, acting both as a platform for voice applications and a user interface;
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 310 #
Proposal for a regulation
Article 2 – paragraph 1 – point 9
Article 2 – paragraph 1 – point 9
(9) ‘Number-independent interpersonal communications service’ means a service as defined in point 7 of Article 2 of Directive (EU) 2018/1972, including interpersonal communications services using publicly assigned numbering resources, namely, a number or numbers in national or international numbering plans, for the purpose of identifying users and which enable communication with a number or numbers in national or international numbering plans other than instant voice communication;
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 312 #
Proposal for a regulation
Article 2 – paragraph 1 – point 10
Article 2 – paragraph 1 – point 10
(10) ‘Operating system’ means a system software which controls the basic functions of theany hardware that is capable of being connected to the Internet or software and enables software applications to run on it, including for stationary and mobile devices, televisions or wearables;
Amendment 313 #
Proposal for a regulation
Article 2 – paragraph 1 – point 10 a (new)
Article 2 – paragraph 1 – point 10 a (new)
(10 a) ‘web browser’ means a software application used by users to access and interact with World Wide Web content hosted on servers which are connected to networks such as the internet;
Amendment 322 #
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 that are related and necessary to effectively provide those core platform services, including 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 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 326 #
Proposal for a regulation
Article 2 – paragraph 1 – point 18
Article 2 – paragraph 1 – point 18
(18) ‘Ranking’ means the relative prominence given to goods or services offered through online intermediation services or online social networking services, or the relevance given to search results by online search engines, as presented, organised or communicated by the providers of online intermediation services or of online social networking services or by providers of online search engines, respectivelycore platform services, whatever the technological means used for such presentation, organisation or communication;
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 329 #
Proposal for a regulation
Article 2 – paragraph 1 – point 18 a (new)
Article 2 – paragraph 1 – point 18 a (new)
(18 a) ‘Search result’ is any information in any format, including texts, graphics, voice or other output, returned in response and related to a written or oral search query, irrespective of whether the information is an organic result, a paid result, a direct answer or any product, service or information offered in connection with, or displayed along with, or partly or entirely embedded in, the organic results;
Amendment 330 #
Proposal for a regulation
Article 2 – paragraph 1 – point 18 b (new)
Article 2 – paragraph 1 – point 18 b (new)
(18 b) ‘Organic results’ are ‘search results’ that are solely based upon the relevance of the information to the end user and allow the end user to access the corresponding information directly;
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 343 #
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 in the near future.
Amendment 347 #
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 atwo or more core platform services to business and end users in at least threewo Member States;
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 352 #
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;
Amendment 356 #
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 threone 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 360 #
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 60 days after receiving the complete information referred to in paragraph 3, adopt a decision to designate the provider of core platform services in accordance with the definitions of Article 2 and that meets all the thresholds of paragraph 2 as a gatekeeper, unless that provider, with its notification, presents sufficientlycompelling 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. Commission's gatekeeper designation decision shall specify which obligations from Article 5 and 6 are technically adequate and necessary to comply with paragraph 1 of Article 1, for the specific core platform service and binding for the designated gatekeeper.
Amendment 369 #
Proposal for a regulation
Article 3 – paragraph 4 – subparagraph 1
Article 3 – paragraph 4 – subparagraph 1
Where the gatekeeper presents such sufficientlycompelling substantiated arguments to demonstrate that it does not satisfy the requirements of paragraph 1, the Commission shall apply paragraph 6 to assess whether the criteria in paragraph 1 are met.
Amendment 371 #
Proposal for a regulation
Article 3 – paragraph 5
Article 3 – paragraph 5
5. The Commission is empowered to adopt delegated acts in accordance with Article 37 to specify the methodology for determining whether the quantitative thresholds laid down in paragraph 2 are met, and to regularly adjust it to market and technological developments where necessary, in particular as regards the threshold in paragraph 2, point (a). Delegated acts shall not adjust directly or indirectly the quantitative thresholds set in paragraph 2 and therefore not impact in any way the substance of the gatekeeper definition.
Amendment 372 #
Proposal for a regulation
Article 3 – paragraph 6 – introductory part
Article 3 – paragraph 6 – introductory part
6. The Commission may identify as a gatekeeper, in accordance with the procedure laid down in Article 15, any provider of core platform services, excluding Medium-sized, Small or Micro enterprises as defined in Commission Recommendation 2003/361/EC1a, that meets each of the requirements of paragraph 1, but does not satisfy each of the thresholds of paragraph 2, or has presented sufficiently substantiated arguments in accordance with paragraph 4. Commission's gatekeeper designation decision shall specify which obligations from Articles 5 and 6 are technically adequate and necessary to comply with paragraph 1 of Article 1, for the specific core platform service. _________________ 1aCommission Recommendation 2003/361/EC of 6 May 2003 concerning the definition of micro, small and medium-sized enterprises (OJ L 124, 20.5.2003, p. 36).
Amendment 382 #
Proposal for a regulation
Article 3 – paragraph 6 – subparagraph 1 – point e a (new)
Article 3 – paragraph 6 – subparagraph 1 – point e a (new)
(e a) the degree of multi-homing among business and end users;
Amendment 383 #
Proposal for a regulation
Article 3 – paragraph 6 – subparagraph 1 – point e b (new)
Article 3 – paragraph 6 – subparagraph 1 – point e b (new)
(e b) the extent to which the provider offers several interlinked core platform services and ancillary services;
Amendment 388 #
Proposal for a regulation
Article 3 – paragraph 6 – subparagraph 2
Article 3 – paragraph 6 – subparagraph 2
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.
Amendment 394 #
Proposal for a regulation
Article 3 – paragraph 7
Article 3 – paragraph 7
7. For each gatekeeper identified pursuant to paragraph 4 or paragraph 6, the Commission shall identify the relevant undertaking to which it belongs and list the relevant core platform services that are provided within that same undertaking and which individually serve as an important gateway for business users to reach end users as referred to in paragraph 1(b) and taking into account the elements in paragraph 6. The Commission shall specify, for each listed core platform service, the relevant obligations from Article 5 and 6, binding for the gatekeeper, that are technically adequate and necessary to comply with paragraph 1 of Article 1.
Amendment 398 #
Proposal for a regulation
Article 3 – paragraph 8
Article 3 – paragraph 8
8. The gatekeeper shall comply with the relevant obligations laid down in Articles 5 andwithin four months after a core platform service has been included in the list pursuant to paragraph 7 of this Article and relevant obligations laid down in Article 6 within sixfour months after a core platform service has been included in the list pursuant to paragraph 7 of this Article and the relevant obligations of Article 6 are further specified in according with Article 7.
Amendment 405 #
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 407 #
Proposal for a regulation
Article 4 – paragraph 3
Article 4 – paragraph 3
3. The Commission shall publish and update the list of gatekeepers and the list of the core platform services for which they need to comply with the obligations laid down in Articles 5 and 6 on an on-going basis and at least every two years.
Amendment 409 #
Proposal for a regulation
Article 5 – paragraph 1 – point a
Article 5 – paragraph 1 – point a
(a) refrain from combining personal data sourced from these core platform services with personal data from any other services offered by the gatekeeper or with personal data from third-party services, and from signing in end users to other services of the gatekeeper in order to combine personal data, unless the end user has been presented with the specific choice and provided consent in the sense of Article 6 (1)(a) of Regulation (EU) 2016/679. ; alternatively, the gatekeeper may rely on the legal basis included under Article 6 (1) of Regulation (EU) 2016/679 with the exception of points (b) and (f) of Article 6 (1) of Regulation (EU) 2016/679;
Amendment 419 #
Proposal for a regulation
Article 5 – paragraph 1 – point b
Article 5 – paragraph 1 – point b
(b) allow businessrefrain from applying contractual obligations or other means that prevent users tofrom offer the sameing by themselves or through third party the same or different products or services to end usersas those offered through third partye online intermediation services at prices or conditions that are different from thoseof the gatekeeper and allow to offered throughose outside the online intermediation services of the gatekeeper, at prices or conditions that are different or the same;
Amendment 429 #
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,engage in in-app and out-of-app communications, including promoting the same or different offers, with end users acquired via the core platform service, including those for which the core platform service has been remunerated or through othe 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 usingr channels, and to conclude contracts with these end users or receive payments for provided services, outside the core platform services of the gatekeeper;
Amendment 432 #
Proposal for a regulation
Article 5 – paragraph 1 – point c a (new)
Article 5 – paragraph 1 – point c a (new)
(c a) 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 the core platform services of the gatekeeper;
Amendment 436 #
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 and end users from raising issues with any relevant public authority, including national courts, relating to any practice of gatekeepers;
Amendment 441 #
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 angatekeeper's identification service, payment service, payment services supporting services or any ancillary or other service of the gatekeeper or third party, in the context of services offered by the business users using the core platform services of that gatekeeper;
Amendment 445 #
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, 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)any other service or product offered, owned or controled by the gatekeeper or any third party, particularly any ancillary services of the gatekeeper or any third party, such as payment services, as a condition to access, use, sign up or register to any of their core platform services identified pursuant to that Article 2 or to any other service offered by the gatekeeper and from automatically signing users of a core platform service into any such services or products offered, owned or controlled by the gatekeeper or any third party;
Amendment 451 #
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 information concerningwith 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 or remuneration paid to the publishernd the methodology for the calculation of advertising intermediation fees and surcharges, for the publishing of a given ad and for each of the relevant advertising services provided by the gatekeeper.
Amendment 453 #
Proposal for a regulation
Article 5 – paragraph 1 – point g a (new)
Article 5 – paragraph 1 – point g a (new)
(g a) in addition to the obligations pursuant to Regulation (EU) 2019/1150, ensure that the full chronology of the contracts concluded between the gatekeeper and a business user as well as any corresponding terms and conditions is easily available to that business user at all stages of the commercial relationship, including for at least five years following the end of the relationship.
Amendment 459 #
Proposal for a regulation
Article 5 – paragraph 1 – point g b (new)
Article 5 – paragraph 1 – point g b (new)
(g b) refrain from inserting sponsorship or advertising around third-party content provided through gatekeeper core platform service without the express consent of the provider of such content or imposing any other conditions or measures hindering business users from monetizing their services and allowing the gatekeeper to monetize on third-party content provided by its business users;
Amendment 462 #
Proposal for a regulation
Article 5 – paragraph 1 – point g c (new)
Article 5 – paragraph 1 – point g c (new)
(g c) refrain from using or combining, in competition with business users, any data not publicly available, generated in provision of different core platform services, ancillary service sand other services provided by the gatekeeper or through activities by those business users, including by the end users of these business users, of its core platform services or provided by those business users of its core platform services or by the end users of these business users;
Amendment 466 #
Proposal for a regulation
Article 5 – paragraph 1 – point g d (new)
Article 5 – paragraph 1 – point g d (new)
(g d) allow end users and business users to un-install any pre-installed software applications on its operating system without prejudice to the possibility for a gatekeeper to restrict such un-installation in relation to software applications that can be proven as essential for the functioning of the operating system or of the device and which cannot technically be offered on a standalone basis by third- parties;
Amendment 469 #
Proposal for a regulation
Article 5 – paragraph 1 – point g e (new)
Article 5 – paragraph 1 – point g e (new)
(g e) refrain from disclosing any commercially sensitive information obtained in connection with one of its advertising services to any third party belonging to the same undertaking and from using such commercially sensitive information for any purposes other than the provision of the specific advertising service unless this is necessary for carrying out a business transaction;
Amendment 473 #
Proposal for a regulation
Article 5 – paragraph 1 – point g f (new)
Article 5 – paragraph 1 – point g f (new)
(g f) refrain from applying unfair conditions in commercial negotiations for IP Transport.
Amendment 484 #
Proposal for a regulation
Article 6 – paragraph 1 – point a
Article 6 – paragraph 1 – point a
Amendment 487 #
Proposal for a regulation
Article 6 – paragraph 1 – point b
Article 6 – paragraph 1 – point b
Amendment 491 #
Proposal for a regulation
Article 6 – paragraph 1 – point c
Article 6 – paragraph 1 – point c
(c) allow the installationbusiness and end users, the installation, the designation as the default 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 allow all downloaded applications or application stores to prompt the end user enabling decision on setting them as default. The gatekeeper shall not be prevented from taking proportionate measures to ensure that third party software applications or software application stores do not endanger cyber security, privacy and data protection and the integrity of the hardware or operating system provided by the gatekeeper, where the gatekeeper can prove that such measures are necessary and justified and there are no less restrictive means to safeguard those purposes. The gatekeeper shall ensure that these measures are implemented in compliance with Regulation (EU) 2016/679 and Directive 2002/58/EC, and with legislation on cyber security, consumer protection and product safety;
Amendment 497 #
Proposal for a regulation
Article 6 – paragraph 1 – point d
Article 6 – paragraph 1 – point d
(d) refrain from treating more favourably in ranking or displaying 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; where a gatekeeper’s online search engine results page includes the display of separate products or services third parties shall be afforded equal opportunity to provide this product or services in exchange for remuneration; to avoid any conflicts of interest, the gatekeeper’s product or service shall be treated as a separate commercial entity and shall be commercially viable as a stand-alone service;
Amendment 501 #
Proposal for a regulation
Article 6 – paragraph 1 – point d a (new)
Article 6 – paragraph 1 – point d a (new)
(d a) refrain from treating more favourably in search results any sponsored or paid for online intermediation services as compared to organic, purely relevance-based online intermediation services;
Amendment 503 #
Proposal for a regulation
Article 6 – paragraph 1 – point e
Article 6 – paragraph 1 – point e
(e) refrain from technically, commercial or other means of restricting the ability of end users to switch between and, subscribe to and use different providers of electronic communications networks and services, software applications and services tohat can be accessed using the operating system of the gatekeeper, including as regards the choice of Internet access provider for end users;
Amendment 508 #
Proposal for a regulation
Article 6 – paragraph 1 – point f
Article 6 – paragraph 1 – point f
(f) allow end users, business users and, providers of ancillary services access to and, providers and potential providers of number- independent interpersonal communication services, online social networking services and advertising service providers for 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; or any industry-standard service features and access to the same technical information that are available or used in the provision by the gatekeeper of any ancillary services, social networking services, number-independent interpersonal communications services, advertising services or any industry- standard features of its core platform services, unless and only to the degree, it can be proven that necessary measures compromise compliance with Regulation (EU) 2016/679 and Directive 2002/58/EC, with legislation on cybersecurity, consumer protection and product safety;
Amendment 515 #
Proposal for a regulation
Article 6 – paragraph 1 – point g
Article 6 – paragraph 1 – point g
(g) provide advertisers and, publishers and mandated independent third parties, upon their request and free of charge, with access to the performance measuring tools of the gatekeeper and the information in a format necessary for advertisers and, publishers and mandated independent third parties, to carry out their own independent verification of the ad inventory; , including ranking, query, click and view data and continuous and real- time access via high-quality application programming interfaces to the data necessary for advertisers and publishers to run their own or third-party verification and measurement tools to measure the performance of the gatekeeper’s intermediation services and the performance of an advertisement;
Amendment 522 #
Proposal for a regulation
Article 6 – paragraph 1 – point h
Article 6 – paragraph 1 – point h
(h) provide effective portability of databusiness users and end users or third parties authorised by a business user or end user, free of charge, with effective portability of data provided by the business user or end user or generated through their activity of a business user or end user and shall, in particular,in the context of the use on the relevant core platform service, including by provideing tools for business users and end users to facilitate the effective exercise of such data portability, in line with Regulation (EU) 2016/679, and including by the provision of continuous and real-time access ;
Amendment 529 #
Proposal for a regulation
Article 6 – paragraph 1 – point i
Article 6 – paragraph 1 – point i
(i) provide business users, or third parties authorised by a business user, free of charge, with effective, high-quality, continuous and real-time access and use of aggregated orand non-aggregated data, that is provided for or generated in the context of the use of the relevant core platform services by those business users and the end users engaging with the products or services provided by those business users, including ranking, query, click and view data; this shall include, at the request of the business user, the possibility and necessary tools to access and analyse data “in-situ” without a transfer from the gatekeeper; 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 provided to the gatekeeper or directly to the business user as prescribed in Article 11(2) or where the business user may rely on Article 6(1)(c) or Article 6(1)(e) in the sense of the Regulation (EU) 2016/679; ;
Amendment 538 #
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 storeor conditions that are not less favourable than the conditions applied to its own service for business users to its core platform services designated pursuant to Article 3 of this Regulation.
Amendment 551 #
Proposal for a regulation
Article 6 a (new)
Article 6 a (new)
Article 6 a Anti-circumvention 1. A gatekeeper shall ensure that the obligations of Articles 5 and 6 are fully and effectively complied with. 2. While the obligations of Articles 5 and 6 apply in respect of core platform services designated pursuant to Article 3, a gatekeeper, including any undertaking to which the gatekeeper belongs, shall not engage in any behaviour regardless of whether this behaviour is of a contractual, commercial, technical or any other nature which, while formally, conceptually or technically distinct to a behaviour prohibited pursuant to Articles 5 and 6, has an equivalent object or effect, including product or interface design subverting, impairing or making user decision-making more burdensome. 3. 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. In case consent is directly expressed by the end-user at the level of the services offered by the business user through the relevant core platform service, it shall prevail over any consent provided at the gatekeeper level. 4. A gatekeeper shall not degrade the conditions or quality of any of the core platform services provided to business users or end users who avail themselves of the rights or choices laid down in Articles 5 and 6, or make the exercise of those rights or choices unduly difficult.
Amendment 552 #
Proposal for a regulation
Article 7 – paragraph 1
Article 7 – paragraph 1
1. It shall be the responsibility of the gatekeeper to ensure and demonstrate compliance by design with the relevant obligations laid down in Articles 5 and 6. 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 ensure that these measures are implemented in compliance with Regulation (EU) 2016/679 and Directive 2002/58/EC, and with legislation on cyber security, consumer protection and product safety.
Amendment 558 #
Proposal for a regulation
Article 7 – paragraph 2
Article 7 – paragraph 2
2. Where the Commission finds that the measures that the gatekeeper intends to implement pursuant to paragraph 1, or has implemented, do not ensure effective compliance with the relevant obligations laid down in Article 5 and 6, it mayshall by decision specify the measures that the gatekeeper concerned shall implement. The High-Level Group of Digital Regulators, Digital Markets Advisory Committee including Digital Markets Stakeholders Council and relevant stakeholders may submit to the Commission opinions on the necessary measures within the time foreseen for the adoption of the decision. The Commission shall adopt such a decision within sixfour months from the opening of proceedings pursuant to Article 18.
Amendment 566 #
Proposal for a regulation
Article 7 – paragraph 3 a (new)
Article 7 – paragraph 3 a (new)
3 a. Where the Commission intends to adopt a specification decision pursuant to paragraph 2, it shall publish a concise summary of the measures the gatekeeper is expectedto implement to ensure effective compliance with the obligations of this Regulation. The Commission shall invite interested third parties, including business users and end users representatives, Member States competative authorities, to submit their observations, within a time limit, which is fixed by the Commissionin in its publication and to take the observations under consideration when adopting a specification decision pursuant to paragraph 2. Publication shall have regard to the legitimate interest of undertakings in the protection of their business secrets.
Amendment 569 #
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 573 #
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 5 and 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 579 #
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 which should include consultation with the gatekeeper and third parties with a justified interest the Commission shall either wholly or partly lift the suspension or decide that the conditions of paragraph 1 continue to be met.
Amendment 581 #
Proposal for a regulation
Article 8 – paragraph 3 – introductory part
Article 8 – paragraph 3 – introductory part
3. TIn cases of urgency, the Commission may, acting on a reasoned request by a gatekeeper, provisionally suspend the application of the relevant obligation to one or more individual core platform services already prior to the decision pursuant to paragraph 1.
Amendment 586 #
Proposal for a regulation
Article 9 – paragraph 1 a (new)
Article 9 – paragraph 1 a (new)
1 a. Where the exemption is granted pursuant to paragraph 1, the Commission shall reviewits exemption decision every 2 years. Following such a review the Commission shall either wholly or partially lift the exemption or decide that theconditions of paragraph 1 continue to be met.
Amendment 592 #
Proposal for a regulation
Article 9 – paragraph 3 – introductory part
Article 9 – paragraph 3 – introductory part
3. TIn cases of urgency, the Commission may, acting on a reasoned request by a gatekeeper or on its own initiative, provisionally suspend the application of the relevant obligation to one or more individual core platform services already prior to the decision pursuant to paragraph 1.
Amendment 600 #
Proposal for a regulation
Article 10 – paragraph 2 – point a
Article 10 – paragraph 2 – point a
(a) there is an imbalance of rights andor obligations on business users and the gatekeeper is obtaining an advantage from business users that is disproportionate to the service provided by the gatekeeper to business users; or
Amendment 601 #
Proposal for a regulation
Article 11
Article 11
Amendment 611 #
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 617 #
Proposal for a regulation
Article 12 – paragraph 3 a (new)
Article 12 – paragraph 3 a (new)
3 a. The Commission shall publish on its website information on any intended or finalised concentration within the meaning of paragraph 1.
Amendment 621 #
Proposal for a regulation
Article 13 – paragraph 1
Article 13 – paragraph 1
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 that the gatekeeper applies to or across its core platform services identified pursuant to Article 3. This description shall be updated at least annually.
Amendment 624 #
Proposal for a regulation
Article 13 – paragraph 1 a (new)
Article 13 – paragraph 1 a (new)
The Commission shall publish on its website key audit results pursuant to paragraph 1. Publication shall have regard to the legitimate interest of undertakings in the protection of their business secrets.
Amendment 625 #
Proposal for a regulation
Article 13 – paragraph 1 b (new)
Article 13 – paragraph 1 b (new)
The Commission shall submit audit results pursuant to paragraph 1 to the competent national authorities.
Amendment 627 #
Proposal for a regulation
Article 14 – paragraph 3 a (new)
Article 14 – paragraph 3 a (new)
3 a. The Commission may also ask one or more competent national authority to support its market investigation.
Amendment 632 #
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 637 #
Proposal for a regulation
Article 15 – paragraph 4
Article 15 – paragraph 4
Amendment 644 #
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 committedeffective and necessary to ensure compliance with this Regulation. The Commission shall conclude its investigation by adopting a decision within twelve months from the opening of the market investigation.
Amendment 651 #
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 653 #
Proposal for a regulation
Article 16 – paragraph 4
Article 16 – paragraph 4
Amendment 657 #
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 necessary and proportionateeffective and necessary.
Amendment 660 #
Proposal for a regulation
Article 17 – paragraph 1
Article 17 – paragraph 1
The Commission may conduct a market investigation with the purpose of examining whether one or more services within the digital sector should be added to the list of core platform services or to detect types of practices that may limit the contestability of core platform services or may be unfair and which are not effectively addressed by this Regulation. It shall issue a public report at the latest within 2418 months from the opening of the market investigation.
Amendment 665 #
Proposal for a regulation
Article 19 – paragraph 4
Article 19 – paragraph 4
Amendment 685 #
Proposal for a regulation
Article 24 – paragraph 2
Article 24 – paragraph 2
2. The actions pursuant to paragraph 1 may include the appointment of independent external experts and auditors, including from competent independent national authorities to assist the Commission to monitor the obligations and measures and to provide specific expertise or knowledge to the Commission.
Amendment 689 #
Proposal for a regulation
Article 25 – paragraph 1 – introductory part
Article 25 – paragraph 1 – introductory part
1. The Commission shall, within six months from the opening of proceedings pursuant to Article 18, adopt a non- compliance decision in accordance with the advisory procedure referred to in Article 32(4) where it finds that a gatekeeper does not comply with one or more of the following:
Amendment 695 #
Proposal for a regulation
Article 25 – paragraph 3 a (new)
Article 25 – paragraph 3 a (new)
3 a. Non-compliance decision pursuant to paragraph 1 shall specify the measures the gatekeeper shall implement to ensure effective compliance with its obligations laid down in Articles 5 or 6. The Commission shall, where appropriate, be entitled to require the measures to be tested to optimise their effectiveness.
Amendment 705 #
Proposal for a regulation
Article 27 – paragraph 2
Article 27 – paragraph 2
2. Where the undertakings have satisfied the obligation which the periodic penalty payment was intended to enforce, the Commission may by decision adopted in accordance with the advisory procedure referred to in Article 32(4) set the definitive amount of the periodic penalty payment at a figure lower than that which would arise under the original decision.
Amendment 706 #
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 711 #
Proposal for a regulation
Article 30 – paragraph 1 a (new)
Article 30 – paragraph 1 a (new)
1 a. The Member State's authorities designated under this Regulation may also ask the Commission to hear other natural or legal persons with sufficient interest.
Amendment 714 #
Proposal for a regulation
Article 30 – paragraph 2
Article 30 – paragraph 2
2. Gatekeepers, undertakings and, associations of undertakings concerned, relevant natural and legal third persons with sufficient interested, may submit their observations to the Commission’s preliminary findings within a time limit which shall be fixed by the Commission in its preliminary findings and which may not be less than 14 days.
Amendment 716 #
Proposal for a regulation
Article 30 – paragraph 3
Article 30 – paragraph 3
3. The Commission shall base its decisions only on objections on which gatekeepers, undertakings and, associations of undertakings concerned, relevant interested natural and legal third persons, have been able to comment.
Amendment 718 #
Proposal for a regulation
Article 30 – paragraph 4 a (new)
Article 30 – paragraph 4 a (new)
4 a. Relevant stakeholders, natural or legal persons, with a sufficient interest shall be entitled to lodge complaints with regard to the non-compliance and systematic non-compliance by gatekeepers with their obligations under this Regulation.
Amendment 723 #
Proposal for a regulation
Article 31 a (new)
Article 31 a (new)
Amendment 725 #
Proposal for a regulation
Article 31 b (new)
Article 31 b (new)
Article 31 b Tasks of the European High-Level Group of Digital Regulators 1. The expert group shall have the following tasks: (a) to facilitate cooperation and coordination between the Commission and Member States in their enforcement actions by promoting the exchange of information and best practices about their work and decision-making principles and practices with the aim to develop a consistent regulatory approach and avoid conflicting decisions; (b) assist the Commission by means of advice, opinions, analysis and expertise in monitoring compliance with this Regulation; (c) make recommendations to the Commission on the need to conduct market investigations under Articles 14, 15, 16, 16a and 17; (d) make recommendations to the Commission on the need to update the obligations of the Regulation under Articles 5 and 6; (e) provide advice and expertise to the Commission in the preparation of legislative proposals and policy initiatives including under Article 38; (f) provide advice and expertise to the Commission in the preparation of delegated acts; (g) where necessary, provide advice and expertise in the early preparation of implementing acts, before submission to the committee in accordance with Regulation (EU) 182/2011; (h) maintain a publicly accessible electronic register of gatekeeper designation decisions adopted by the Commission under Article 3; (i) upon request by the Commission, provide technical advice and expertise before the adoption of a specification decision under Article 7. 2. The High-Level Group of Digital Regulators shall report every two years about its activities to the European Parliament and offer recommendations and policy suggestions on how to enhance the relevance of Union policies and laws and to enable consistency in the implementation of those policies and laws at national level.
Amendment 726 #
Proposal for a regulation
Article 31 c (new)
Article 31 c (new)
Article 31 c In accordance with the implementing provisions of article 36 the Commission when carrying out its functions under Articles 6, 7, 10, 16, 17, 24 and 25 shall consult with the European High Level Group of Digital Regulators.
Amendment 728 #
Proposal for a regulation
Article 32 – paragraph 1 a (new)
Article 32 – paragraph 1 a (new)
1 a. The Advisory Committee shall be composed of representatives of the competent authorities of the Member States. For meetings in which specific issues are being discussed, Member States shall be able to appoint an additional representative from an authority with the relevant expertise for the issues discussed. This is without prejudice to members of the Committee being assisted by other experts from the Member States.
Amendment 729 #
Proposal for a regulation
Article 32 – paragraph 1 b (new)
Article 32 – paragraph 1 b (new)
1 b. The Advisory Committee shall establish a Digital Markets Stakeholders Council (Stakeholders Council). The Stakeholders Council shall be composed of relevant representatives of business users and end users, research, academia, civil society and other relevant stakeholders, representing all Member States to maintain geographical balance. The Stakeholders Council shall nominate a relevant representatives, to attend meetings of the Advisory Committee and to participate in its work. The composition of the Stakeholders Council and its recommendations to the Advisory Committee shall be made public.
Amendment 740 #
Proposal for a regulation
Article 33 – paragraph 1
Article 33 – paragraph 1
1. When threone or more Member States request the Commission to open an investigation pursuant to Article 15 because they consider that there are reasonable grounds to suspect that a provider of core platform services should be designated as a gatekeeper, the Commission shall within four months examine whether there are reasonable grounds to open such an investigation.
Amendment 750 #
Proposal for a regulation
Article 36 – paragraph 1 – introductory part
Article 36 – paragraph 1 – introductory part
1. The Commission may adopt implementing acts concerning: 3, 5, 6, 12, 13, 15, 16, 17, 20, 22, 23, 25 and 30
Amendment 753 #
Proposal for a regulation
Article 36 – paragraph 1 – point g a (new)
Article 36 – paragraph 1 – point g a (new)
(g a) the procedure for the consultations of the Commission with the High Level Group of Digital Regulators in the performance of its functions under Article 6, 7, 10, 16, 17, 24 and 25;
Amendment 755 #
Proposal for a regulation
Article 36 a (new)
Article 36 a (new)
Article 36 a 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 standardization bodies to develop standards to facility the implementation of the obligations.
Amendment 756 #
2. The power to adopt delegated acts referred to in Articles 3(6) and 9(1)10 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 757 #
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(1)10 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.