33 Amendments of Leszek MILLER related to 2020/0374(COD)
Amendment 222 #
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 servicedistribution channels, 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 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 234 #
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 authoritieinstitutions. 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 237 #
Proposal for a regulation
Recital 40
Recital 40
(40) Identification services areGatekeepers offer a range of ancillary services. To ensure contestability, it is crucial forthat business users to conduct their business, as these can allow them not only to optimise services, to the extent allowed under Regulation (EU) 2016/679 and Directive 2002/58/EC of the European Parliament and of the Council33 , but also to inject trust in online transactions, in compliance with Union or national laware free to choose such ancillary services freely, without having to fear any detrimental effects for the provision of the core platform service. Gatekeepers should therefore not use their position as provider of core platform services to require their dependent business users to include any identificationuse, offer or include any ancillary services provided by the gatekeeper itselfor as part of the provision of services or products by these business users toicular their end usersd party, where other identificationancillary services are available to such business users. _________________ 33Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data andIn particular, gatekeepers shall not make their service dependent on business users including any identification service provided by the gatekeeper itself as part of the protectvision of privacy in the electronic communicationservices or products by these business usector (Directive on privacy and electronic communications) (OJ L 201, 31.7.2002, p. 37)rs to their end users, where alternatives exist.
Amendment 242 #
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 artificial technical barriers so as to make switching impossiblemore difficult 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 257 #
Proposal for a regulation
Recital 46
Recital 46
(46) A gatekeeper may use different means to favour its own services or products on its core platform service, to the detriment of the same or similar services that end users could obtain through third parties. This may for instance be the case where certain software applications or, software application stores or ancillary services are pre-installed by a gatekeeper. To enable end user choice, gatekeepers should not preventlimit the choice of end users from un- by pre-installing any pre-installed software applicationsown service on its core platform service and thereby favour their own software applicationsis service.
Amendment 266 #
Proposal for a regulation
Recital 48
Recital 48
(48) Gatekeepers are often vertically integrated and offer certain products or services to end users through their own core platform services, or through a business user over which they exercise control or with which they have entered into particular cooperation agreements or which they prefer due to other reasons unrelated to their service’s actual relevance, 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 onintermediated via that core platform service. This can occur for instance with products or services, including other core platform services, which are ranked within or along in the results communicated by online search engines, or which are partly or entirely embedded in search results of 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 constitute 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. 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 273 #
Proposal for a regulation
Recital 49
Recital 49
(49) In such situations of a conflict of interest, the gatekeeper should not partly or entirely embed such distinct product or service in online search engines results or groups of results. However, it may rank its products or services, provided that it does not engage in any form of differentiated or preferentialted treatment in ranking on the core platform service, whether through legal, commercial or technical means, in favour of products or services it offers itself or through a business user which it either controls. To ensure that this obligation is effective, it should also be ensured that the conditions that apply to such ranking are also generally fair or cooperates with or prefers for any other reason. In particular, where a gatekeeper’s online search engine results page includes the ranking of separate products or services, third parties shall be afforded equal opportunity to rank their product or service in the same format and on the same terms and conditions. Should this take place in exchange for remuneration, to avoid any conflict of interest, the gatekeeper’s separate product or service shall be treated as a separate commercial entity and shall be commercially viable as a stand-alone service, offered outside of the gatekeeper’s core platform service. To ensure that this obligation is effective, it should also be ensured that the conditions that apply to such ranking are also generally fair and the gatekeeper's own products or services do not have more access to information about the ranking or any other competition-relevant aspects than products or services of third parties. Ranking should in this context cover all forms of relative prominence, including among others order, graphic display, rating, linking or voice results. To ensure that this obligation is effective and cannot be circumvented it should also apply to any measure that may have an equivalent effect to the differentiated or preferential treatment in ranking. Such an equivalent effect can for instance be achieved by ad formats that are used by users in a similar manner to the gatekeeper's or third parties' online intermediation services, or that benefit the gatekeeper in a similar manner to the preferential treatment in ranking itself (e.g., in terms of financial gains, user access/traffic or data access). The guidelines adopted pursuant to Article 5 of Regulation (EU) 2019/1150 should also facilitate the implementation and enforcement of this obligation.34 _________________ 34Commission Notice: Guidelines on ranking transparency pursuant to Regulation (EU) 2019/1150 of the European Parliament and of the Council (OJ C 424, 8.12.2020, p. 1).
Amendment 279 #
Proposal for a regulation
Recital 50
Recital 50
(50) Gatekeepers can hamper the ability of end users to access online content and services including software applications. Therefore, rules should be established to ensure that the rights of end users to access an open internet are not compromised by the conduct of gatekeepers. In particular, gatekeepers should not restrict or prevent the free choice of end users by technically preventing switching between or subscription to different software applications andonline content or 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 applicationson the core platform service through which such online content or services are accessed and shall not raise artificial technical barriers so as to make switching impossible or ineffective. Gatekeepers can also technically limit the ability of end users to effectively switch between different Internet access service providers, in particular through their control over operating systems or hardware. This distorts the level playing field for Internet access services and ultimately harms end users. It should therefore be ensured that gatekeepers do not unduly restrict end users in choosing their Internet access service provider. 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 285 #
Proposal for a regulation
Recital 51
Recital 51
Amendment 405 #
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 gatekeepersse rules are unrelated to the relevant undertakings having a status of gatekeeper within the meaning of this regulation 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 415 #
Proposal for a regulation
Article 2 – paragraph 1 – point 2 – point b a (new)
Article 2 – paragraph 1 – point 2 – point b a (new)
(b a) web browsers;
Amendment 426 #
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 where the undertaking to which it belongs is also a provider of any of the core platform services listed in points (a) to (g);
Amendment 446 #
Proposal for a regulation
Article 2 – paragraph 1 – point 6 a (new)
Article 2 – paragraph 1 – point 6 a (new)
(6 a) ‘Webbrowser’ means 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 478 #
(18 a) ’Search results’ means any information in any format, including texts, graphics, voice or other output, returned by core platform services provider in response and related to a written or oral search query, irrespective of whether the information is an organic result, a paid result, a direct answer or any product, service or information offered in connection with, or displayed along with, or partly or entirely embedded in, the organic results;
Amendment 482 #
Proposal for a regulation
Article 2 – paragraph 1 – point 18 a (new)
Article 2 – paragraph 1 – point 18 a (new)
(18 a) ‘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 513 #
Proposal for a regulation
Article 3 – paragraph 2 – point b – paragraph 1
Article 3 – paragraph 2 – point b – paragraph 1
for the purpose of the first subparagraph, monthly active end users shall refer to the average number of monthly active end users throughout the largest partat least six (not necessarily consecutive) months of the last financial year;
Amendment 619 #
Proposal for a regulation
Article 5 – paragraph 1 – point b
Article 5 – paragraph 1 – point b
(b) allow business users to offer the same products or services to end users themselves or through third party online intermediation services at prices or conditions that are different from those offered through the online intermediation services of the gatekeeper;
Amendment 636 #
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 from raising issues with any relevant public authority or national court relating to any practice of gatekeepers;
Amendment 652 #
Proposal for a regulation
Article 5 – paragraph 1 – point e
Article 5 – paragraph 1 – point e
(e) refrain from requiring business users to use, offer or interoperate with an identificationy ancillary service of the gatekeeper in the context of services offered by the business users using the core platform services of that gatekeeper;
Amendment 661 #
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 offered by the gatekeeper as a condition to use, access, sign up or register to any of their core platform services identified pursuant to that Article or to any other service offered by the gatekeeper;
Amendment 679 #
Proposal for a regulation
Article 5 – paragraph 1 – point g
Article 5 – paragraph 1 – point g
(g) provide advertisers and publishers to which it supplies advertising services, or third parties authorised by them, upon their request, with information concerning the price paid by the advertiser and publisher, as well as the amount or remuneration paid to the publisher, for the publishing of a given ad and for each of the relevant advertising services provided by the gatekeeper.
Amendment 686 #
Proposal for a regulation
Article 5 – paragraph 1 – point g a (new)
Article 5 – paragraph 1 – point g a (new)
(g a) 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 712 #
Proposal for a regulation
Article 6 – paragraph 1 – point a
Article 6 – paragraph 1 – point a
(a) refrain from using, in competition with business users, any data not publicly available, which is generated through or in the context of activities by those business users or their competitors, including by the end users of these business users or their competitors, of its core platform services or provided by those business users of its core platform services or their competitors or by the end users of these business users or their competitors;
Amendment 724 #
Proposal for a regulation
Article 6 – paragraph 1 – point b
Article 6 – paragraph 1 – point b
(b) allow end users to un-install any pre-installed software applicationrefrain from pre-installing own services on its core platform service without prejudice to the possibility for a gatekeeper to restrict such un-installation in relation to software applicationsuch services that are 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 735 #
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 and interoperability of third party software applications or software application stores using, or interoperating with, operating systems of that gatekeeper and allow and enable these software applications or, software application stores or services 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 or services do not endanger the integrity of the hardware or operating system provided by the gatekeeper;
Amendment 753 #
Proposal for a regulation
Article 6 – paragraph 1 – point d
Article 6 – paragraph 1 – point d
(d) refrain from embedding or treating more favourably in ranking services and products offered by the gatekeeper itself or by any third party belonging to the same undertaking compared to similar services or products of third partyies and apply fair and non-discriminatory conditions to such ranking;
Amendment 758 #
Proposal for a regulation
Article 6 – paragraph 1 – point d a (new)
Article 6 – paragraph 1 – point d a (new)
(d a) refrain from applying bias in the display or functioning of interfaces of its core platform services that promote the use of other services of the gatekeeper;
Amendment 765 #
Proposal for a regulation
Article 6 – paragraph 1 – point e
Article 6 – paragraph 1 – point e
(e) refrain from technically restricting the ability of end users to switch between and subscribe to different software applications andonline content or services to be accessed using the operating systemcore platform service of the gatekeeper, including as regards the choice of Internet access provider for end users;
Amendment 780 #
Proposal for a regulation
Article 6 – paragraph 1 – point f a (new)
Article 6 – paragraph 1 – point f a (new)
(f a) provide the information to allow third-party operating systems, software applications or ancillary services to interoperate with the gatekeeper's core platform services by making the core platform service's features and functionality available to the fullest extent as technically supported by the core platform service, for use with the third- party software application or service;
Amendment 782 #
Proposal for a regulation
Article 6 – paragraph 1 – point g
Article 6 – paragraph 1 – point g
(g) provide advertisers and publishers, upon their request and free of charge, with access to the performance measuring tools of the gatekeeper, and the information necessary for advertisers and publishers to carry out their own independent verification of the ad inventory 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 ad;
Amendment 795 #
Proposal for a regulation
Article 6 – paragraph 1 – point h
Article 6 – paragraph 1 – point h
(h) provide effective portability of data provided for or generated through or in the context of the activity of a business user or end user and shall, in particular, provide tools forfree of charge tools for business users and end users to facilitate the exercise of data portability, in line with Regulation EU 2016/679, including by the provision of continuous and real-time access ;
Amendment 821 #
Proposal for a regulation
Article 6 – paragraph 1 – point k a (new)
Article 6 – paragraph 1 – point k a (new)
(k a) In the event of a dispute about the fairness of a price or remuneration as condition of access for business users to each of its core platform services identified pursuant to Article 3(7), the gatekeeper shall participate in and adhere to the outcome of a binding procedure for fixing a fair price or remuneration, be such a procedure established by law or be such a procedure proposed by the business users or by organisations or rights management organisation representing such business users. The procedure about the issue of remuneration and price should start, if the parties have not reached an agreement about terms for resolving the issue of remuneration and pricing within. This procedure shall apply in particular in the case of a dispute about the remuneration for the use of content protected by the press publisher right in Directive (EU) 2019/790.
Amendment 943 #
Proposal for a regulation
Article 11 – paragraph 2
Article 11 – paragraph 2
2. Where consent for collecting and processing of personal data is required to ensure compliance with this Regulation, a gatekeeper shall take the necessary steps to either enable business users to directly obtain the required consent to their processing, where required under Regulation (EU) 2016/679 and Directive 2002/58/EC, or, if the consent is not obtained, 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.