European Parliament 2019-2024
Committee on the Internal Market and Consumer Protection
2020/0374(COD)
1.6.2021
***I DRAFT REPORT
on the proposal for a regulation of the European Parliament and of the Council Contestable and fair markets in the digital sector (Digital Markets Act) (COM(2020)0842 – C9-0419/2020 – 2020/0374(COD))
Committee on the Internal Market and Consumer Protection
Rapporteur: Andreas Schwab
Rapporteurs for the opinion (*): Stéphanie Yon-Courtin, Committee on Economic and Monetary Affairs Carlos Zorrinho, Committee on Industry, Research and Energy
(*) Associated committees – Rule 57 of the Rules of Procedure
PR\1231257EN.docx PE692.792v01-00
EN United in diversityEN PR_COD_1amCom
Symbols for procedures
* Consultation procedure *** Consent procedure ***I Ordinary legislative procedure (first reading) ***II Ordinary legislative procedure (second reading) ***III Ordinary legislative procedure (third reading)
(The type of procedure depends on the legal basis proposed by the draft act.)
Amendments to a draft act
Amendments by Parliament set out in two columns
Deletions are indicated in bold italics in the left-hand column. Replacements are indicated in bold italics in both columns. New text is indicated in bold italics in the right-hand column.
The first and second lines of the header of each amendment identify the relevant part of the draft act under consideration. If an amendment pertains to an existing act that the draft act is seeking to amend, the amendment heading includes a third line identifying the existing act and a fourth line identifying the provision in that act that Parliament wishes to amend.
Amendments by Parliament in the form of a consolidated text
New text is highlighted in bold italics. Deletions are indicated using either the ▌symbol or strikeout. Replacements are indicated by highlighting the new text in bold italics and by deleting or striking out the text that has been replaced. By way of exception, purely technical changes made by the drafting departments in preparing the final text are not highlighted.
PE692.792v01-00 2/82 PR\1231257EN.docx EN CONTENTS
Page
DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION ...... 5
EXPLANATORY STATEMENT ...... 78
ANNEX: List of entities or persons from whom the rapporteur has received input ...... 81
PR\1231257EN.docx 3/82 PE692.792v01-00 EN PE692.792v01-00 4/82 PR\1231257EN.docx EN DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION on the proposal for a regulation of the European Parliament and of the Council Contestable and fair markets in the digital sector (Digital Markets Act) (COM(2020)0842 – C9-0419/2020 – 2020/0374(COD))
(Ordinary legislative procedure: first reading)
The European Parliament,
– having regard to the Commission proposal to Parliament and the Council (COM(2020)0842),
– having regard to Article 294(2) and Article 114 of the Treaty on the Functioning of the European Union, pursuant to which the Commission submitted the proposal to Parliament (C9-0419/2020),
– having regard to Article 294(3) of the Treaty on the Functioning of the European Union,
– having regard to the opinion of the European Economic and Social Committee of XXX,
– having regard to the opinion of the Committee of the Regions of XXX,
– having regard to Rule 59 of its Rules of Procedure,
– having regard to the opinions of the Committee on Economic and Monetary Affairs, the Committee on Industry, Research and Energy, the Committee on Transport and Tourism, the Committee on Culture and Education, the Committee on Legal Affairs and the Committee on Civil Liberties, Justice and Home Affairs,
– having regard to the report of the Committee on the Internal Market and Consumer Protection (A9-0000/2021),
1. Adopts its position at first reading hereinafter set out;
2. Calls on the Commission to refer the matter to Parliament again if it replaces, substantially amends or intends to substantially amend its proposal;
3. Instructs its President to forward its position to the Council, the Commission and the national parliaments.
Amendment 1
Proposal for a regulation Recital 21
PR\1231257EN.docx 5/82 PE692.792v01-00 EN Text proposed by the Commission Amendment
(21) An entrenched and durable position (21) An entrenched and durable position in its operations or the foreseeability of in its operations or the foreseeability of achieving such a position future occurs achieving such a position future occurs notably where the contestability of the notably where the contestability of the position of the provider of the core position of the provider of the core platform service is limited. This is likely to platform service is limited. This is likely to be the case where that provider has be the case where that provider has provided a core platform service in at least provided a core platform service in at least three Member States to a very high number three Member States to a very high number of business users and end users during at of business users and end users during at least three years. least three years. A list of indicators to be used by the providers of core platforms services when measuring active monthly end users and active yearly business usersshould be provided in an Annex to this Regulation.
Or. en
Amendment 2
Proposal for a regulation Recital 22
Text proposed by the Commission Amendment
(22) Such thresholds can be impacted by (22) Such thresholds can be impacted by market and technical developments. The market and technical developments. The Commission should therefore be Commission should therefore be empowered to adopt delegated acts to empowered to adopt delegated acts to specify the methodology for determining specify the methodology for determining whether the quantitative thresholds are whether the quantitative thresholds are met met, and to regularly adjust it to market and update the list of indicators set out in and technological developments where the Annex to this Regulation, and to necessary. This is particularly relevant in regularly adjust it to market and relation to the threshold referring to market technological developments where capitalisation, which should be indexed in necessary. This is particularly relevant in appropriate intervals. relation to the threshold referring to market capitalisation, which should be indexed in appropriate intervals.
Or. en
PE692.792v01-00 6/82 PR\1231257EN.docx EN Amendment 3
Proposal for a regulation Recital 23
Text proposed by the Commission Amendment
(23) Providers of core platform services (23) Providers of core platform services which meet the quantitative thresholds but should be able to demonstrate that, despite are able to present sufficiently meeting the quantitative thresholds, due to substantiated arguments to demonstrate the exceptional circumstances in which the that, in the circumstances in which the relevant core platform service operates, relevant core platform service operates, they do not fulfil the objective they do not fulfil the objective requirements to qualify as a gatekeeper. requirements for a gatekeeper, should not only if they are able to present sufficiently be designated directly, but only subject to compelling evidence to demonstrate this. a further investigation. The burden of The burden of adducing compelling adducing evidence that the presumption evidence that the presumption deriving deriving from the fulfilment of quantitative from the fulfilment of quantitative thresholds should not apply to a specific thresholds should not apply to a specific provider should be borne by that provider provider should be borne by that provider. In its assessment, the Commission should The Commission should be able to take a take into account only the elements which decision by relying on the quantitative directly relate to the requirements for thresholds and facts available where the constituting a gatekeeper, namely whether provider significantly obstructs the it is an important gateway which is investigation by failing to comply with the operated by a provider with a significant investigative measures taken by the impact in the internal market with an Commission. 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 discarded, 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.
Or. en
PR\1231257EN.docx 7/82 PE692.792v01-00 EN Amendment 4
Proposal for a regulation Recital 30
Text proposed by the Commission Amendment
(30) The very rapidly changing and (30) The very rapidly changing and complex technological nature of core complex technological nature of core platform services requires a regular review platform services requires a regular review of the status of gatekeepers, including of the status of gatekeepers, including those that are foreseen to enjoy a durable those that are foreseen to enjoy a durable and entrenched position in their operations and entrenched position in their operations in the near future. To provide all of the in the near future. To provide all of the market participants, including the market participants, including the gatekeepers, with the required certainty as gatekeepers, with the required certainty as to the applicable legal obligations, a time to the applicable legal obligations, a time limit for such regular reviews is necessary. limit for such regular reviews is necessary. It is also important to conduct such reviews It is also important to conduct such reviews on a regular basis and at least every two on a regular basis and at least every three years. years.
Or. en
Amendment 5
Proposal for a regulation Recital 31
Text proposed by the Commission Amendment
(31) To ensure the effectiveness of the (31) To ensure the effectiveness of the review of gatekeeper status as well as the review of gatekeeper status as well as the possibility to adjust the list of core possibility to adjust the list of core platform services provided by a platform services provided by a gatekeeper, the gatekeepers should inform gatekeeper, the gatekeepers should inform the Commission of all of their intended and the Commission and other competent concluded acquisitions of other providers national authorities of all of their intended of core platform services or any other and concluded acquisitions of other services provided within the digital sector. providers of core platform services or any Such information should not only serve the other services provided within the digital review process mentioned above, regarding sector. Such information should not only the status of individual gatekeepers, but serve the review process mentioned above, will also provide information that is crucial regarding the status of individual to monitoring broader contestability trends gatekeepers, but will also provide in the digital sector and can therefore be a information that is crucial to monitoring useful factor for consideration in the broader contestability trends in the digital
PE692.792v01-00 8/82 PR\1231257EN.docx EN context of the market investigations sector and can therefore be a useful factor foreseen by this Regulation. for consideration in the context of the market investigations foreseen by this Regulation.
Or. en
Amendment 6
Proposal for a regulation Recital 32
Text proposed by the Commission Amendment
(32) To safeguard the fairness and (32) To safeguard the fairness and contestability of core platform services contestability of core platform services provided by gatekeepers, it is necessary to provided by gatekeepers, it is necessary to provide in a clear and unambiguous provide in a clear and unambiguous manner for a set of harmonised obligations manner for a set of harmonised obligations with regard to those services. Such rules with regard to those services. Such rules are needed to address the risk of harmful are needed to address the risk of harmful effects of unfair practices imposed by effects of unfair practices imposed by gatekeepers, to the benefit of the business gatekeepers, to the benefit of the business environment in the services concerned, to environment in the services concerned, to the benefit of users and ultimately to the the benefit of users and ultimately to the benefit of society as a whole. Given the benefit of society as a whole. Given the fast-moving and dynamic nature of digital fast-moving and dynamic nature of digital markets, and the substantial economic markets, and the substantial economic power of gatekeepers, it is important that power of gatekeepers, it is important that these obligations are effectively applied these obligations are effectively applied without being circumvented. To that end, without being circumvented. To that end, the obligations in question should apply to the obligations in question should apply to any practices by a gatekeeper, irrespective any behaviour by a gatekeeper, of its form and irrespective of whether it is irrespective of its form and irrespective of of a contractual, commercial, technical or whether it is of a contractual, commercial, any other nature, insofar as a practice technical or any other nature, insofar as corresponds to the type of practice that is such behaviour may, in practice, have an the subject of one of the obligations of this equivalent object or effect to the practices Regulation. that are prohibited under this Regulation.
Or. en
PR\1231257EN.docx 9/82 PE692.792v01-00 EN Amendment 7
Proposal for a regulation Recital 33
Text proposed by the Commission Amendment
(33) The obligations laid down in this (33) The obligations laid down in this Regulation are limited to what is necessary Regulation are limited to what is necessary and justified to address the unfairness of and justified to address the unfairness of the identified practices by gatekeepers and the identified practices by gatekeepers and to ensure contestability in relation to core to ensure contestability in relation to core platform services provided by gatekeepers. platform services provided by gatekeepers. Therefore, the obligations should Therefore, the obligations should correspond to those practices that are correspond to those practices that are considered unfair by taking into account considered unfair by taking into account the features of the digital sector and where the features of the digital sector and where experience gained, for example in the experience gained, for example in the enforcement of the EU competition rules, enforcement of the EU competition rules, shows that they have a particularly shows that they have a particularly negative direct impact on the business negative direct impact on the business users and end users. In addition, it is users and end users. In addition, it is necessary to provide for the possibility of a necessary to provide for the possibility of a regulatory dialogue with gatekeepers to regulatory dialogue with gatekeepers to tailor those obligations that are likely to tailor those obligations that are likely to require specific implementing measures in require specific implementing measures in order to ensure their effectiveness and order to ensure their effectiveness and proportionality. The obligations should proportionality. The obligations should only be updated after a thorough only be updated after a thorough investigation on the nature and impact of investigation on the nature and impact of specific practices that may be newly specific practices that may be newly identified, following an in-depth identified as unfair or limiting investigation, as unfair or limiting contestability in the same manner as the contestability in the same manner as the unfair practices laid down in this unfair practices laid down in this Regulation while potentially escaping the Regulation while potentially escaping the scope of the current set of obligations. scope of the current set of obligations.
Or. en
Amendment 8
Proposal for a regulation Recital 36
PE692.792v01-00 10/82 PR\1231257EN.docx EN Text proposed by the Commission Amendment
(36) The conduct of combining end user (36) The conduct of combining end user data from different sources or signing in data from different sources or signing in users to different services of gatekeepers users to different services of gatekeepers gives them potential advantages in terms of gives them potential advantages in terms of accumulation of data, thereby raising accumulation of data, thereby raising barriers to entry. To ensure that barriers to entry. To ensure that gatekeepers do not unfairly undermine the gatekeepers do not unfairly undermine the contestability of core platform services, contestability of core platform services, they should enable their end users to freely they should enable their end users to freely choose to opt-in to such business practices choose to opt-in to such business practices by offering a less personalised alternative. by offering a less personalised but The possibility should cover all possible equivalent alternative. The possibility sources of personal data, including own should cover all possible sources of services of the gatekeeper as well as third personal data, including own services of party websites, and should be proactively the gatekeeper as well as third party presented to the end user in an explicit, websites, and should be proactively clear and straightforward manner. presented to the end user in an explicit, clear and straightforward manner.
Or. en
Amendment 9
Proposal for a regulation Recital 37
Text proposed by the Commission Amendment
(37) Because of their position, (37) Because of their position, gatekeepers might in certain cases restrict gatekeepers might, in certain cases, the ability of business users of their online through the imposition of contractual intermediation services to offer their goods terms and conditions, restrict the ability of or services to end users under more business users of their online favourable conditions, including price, intermediation services to offer their goods through other online intermediation or services to end users under more services. Such restrictions have a favourable conditions, including price, significant deterrent effect on the business through other online intermediation users of gatekeepers in terms of their use of services. Such restrictions have a alternative online intermediation services, significant deterrent effect on the business limiting inter-platform contestability, users of gatekeepers in terms of their use of which in turn limits choice of alternative alternative online intermediation services, online intermediation channels for end limiting inter-platform contestability, users. To ensure that business users of which in turn limits choice of alternative online intermediation services of online intermediation channels for end
PR\1231257EN.docx 11/82 PE692.792v01-00 EN gatekeepers can freely choose alternative users. To ensure that business users of online intermediation services and online intermediation services of differentiate the conditions under which gatekeepers can freely choose alternative they offer their products or services to their online intermediation services and end users, it should not be accepted that differentiate the conditions under which gatekeepers limit business users from they offer their products or services to their choosing to differentiate commercial end users, it should not be accepted that conditions, including price. Such a gatekeepers limit business users from restriction should apply to any measure choosing to differentiate commercial with equivalent effect, such as for example conditions, including price. Such a increased commission rates or de-listing of restriction should apply to any measure the offers of business users. with equivalent effect, such as for example increased commission rates or de-listing of the offers of business users.
Or. en
Amendment 10
Proposal for a regulation Recital 38
Text proposed by the Commission Amendment
(38) To prevent further reinforcing their (38) To prevent further reinforcing their dependence on the core platform services dependence on the core platform services of gatekeepers, the business users of these of gatekeepers, the business users of these gatekeepers should be free in promoting gatekeepers should be free in promoting and choosing the distribution channel they and choosing the distribution channel they consider most appropriate to interact with consider most appropriate to interact with any end users that these business users any end users that these business users have already acquired through core have already acquired through core platform services provided by the platform services provided by the gatekeeper. Conversely, end users should gatekeeper, and for which the core also be free to choose offers of such platform service has been remunerated. business users and to enter into contracts Conversely, end users should also be free with them either through core platform to choose offers of such business users and services of the gatekeeper, if applicable, or to enter into contracts with them either from a direct distribution channel of the through core platform services of the business user or another indirect gatekeeper, if applicable, or from a direct distribution channel such business user distribution channel of the business user or may use. This should apply to the another indirect distribution channel such promotion of offers and conclusion of business user may use. This should apply contracts between business users and end to the promotion of offers and conclusion users. Moreover, the ability of end users to of contracts between business users and freely acquire content, subscriptions, end users. Moreover, the ability of end features or other items outside the core users to freely acquire content,
PE692.792v01-00 12/82 PR\1231257EN.docx EN platform services of the gatekeeper should subscriptions, features or other items not be undermined or restricted. In outside the core platform services of the particular, it should be avoided that gatekeeper should not be undermined or gatekeepers restrict end users from access restricted. In particular, it should be to and use of such services via a software avoided that gatekeepers restrict end users application running on their core platform from access to and use of such services via service. For example, subscribers to online a software application running on their content purchased outside a software core platform service. For example, application download or purchased from a subscribers to online content purchased software application store should not be outside a software application download or prevented from accessing such online purchased from a software application content on a software application on the store should not be prevented from gatekeeper’s core platform service simply accessing such online content on a because it was purchased outside such software application on the gatekeeper’s software application or software core platform service simply because it application store. was purchased outside such software application or software application store.
Or. en
Amendment 11
Proposal for a regulation Recital 39
Text proposed by the Commission Amendment
(39) To safeguard a fair commercial (39) To safeguard a fair commercial environment and protect the contestability environment and protect the contestability of the digital sector it is important to of the digital sector it is important to safeguard the right of business users to safeguard the right of business users to raise concerns about unfair behaviour by raise concerns about unfair behaviour by gatekeepers with any relevant gatekeepers with any relevant administrative or other public authorities. administrative or other public authorities, For example, business users may want to including national courts. For example, complain about different types of unfair business users may want to complain about practices, such as discriminatory access different types of unfair practices, such as conditions, unjustified closing of business discriminatory access conditions, user accounts or unclear grounds for unjustified closing of business user product de-listings. Any practice that accounts or unclear grounds for product would in any way inhibit such a possibility de-listings. Any practice that would in any of raising concerns or seeking available way inhibit such a possibility of raising redress, for instance by means of concerns or seeking available redress, for confidentiality clauses in agreements or instance by means of confidentiality other written terms, should therefore be clauses in agreements or other written prohibited. This should be without terms, should therefore be prohibited. This prejudice to the right of business users and should be without prejudice to the right of
PR\1231257EN.docx 13/82 PE692.792v01-00 EN gatekeepers to lay down in their business users and gatekeepers to lay down agreements the terms of use including the in their agreements the terms of use use of lawful complaints-handling including the use of lawful complaints- mechanisms, including any use of handling mechanisms, including any use of alternative dispute resolution mechanisms alternative dispute resolution mechanisms or of the jurisdiction of specific courts in or of the jurisdiction of specific courts in compliance with respective Union and compliance with respective Union and national law This should therefore also be national law This should therefore also be without prejudice to the role gatekeepers without prejudice to the role gatekeepers play in the fight against illegal content play in the fight against illegal content online. online.
Or. en
Amendment 12
Proposal for a regulation Recital 42
Text proposed by the Commission Amendment
(42) The conditions under which (42) The conditions under which gatekeepers provide online advertising gatekeepers provide online advertising services to business users including both services to business users including both advertisers and publishers are often non- advertisers and publishers are often non- transparent and opaque. This opacity is transparent and opaque. This opacity is partly linked to the practices of a few partly linked to the practices of a few platforms, but is also due to the sheer platforms, but is also due to the sheer complexity of modern day programmatic complexity of modern day programmatic advertising. The sector is considered to advertising. The sector is considered to have become more non-transparent after have become more non-transparent after the introduction of new privacy legislation, the introduction of new privacy legislation, and is expected to become even more and is expected to become even more opaque with the announced removal of opaque with the announced removal of third-party cookies. This often leads to a third-party cookies. This often leads to a lack of information and knowledge for lack of information and knowledge for advertisers and publishers about the advertisers and publishers about the conditions of the advertising services they conditions of the advertising services they purchased and undermines their ability to purchased and undermines their ability to switch to alternative providers of online switch to alternative providers of online advertising services. Furthermore, the costs advertising services. Furthermore, the costs of online advertising are likely to be higher of online advertising are likely to be higher than they would be in a fairer, more than they would be in a fairer, more transparent and contestable platform transparent and contestable platform environment. These higher costs are likely environment. These higher costs are likely to be reflected in the prices that end users to be reflected in the prices that end users pay for many daily products and services pay for many daily products and services
PE692.792v01-00 14/82 PR\1231257EN.docx EN relying on the use of online advertising. relying on the use of online advertising. Transparency obligations should therefore Transparency obligations should therefore require gatekeepers to provide advertisers require gatekeepers to provide advertisers and publishers to whom they supply online and publishers to whom they supply online advertising services, when requested and advertising services, with free of charge, to the extent possible, with information effective, high-quality, continuous and that allows both sides to understand the real-time information that allows both price paid for each of the different sides to understand the price paid for each advertising services provided as part of the of the different advertising services relevant advertising value chain. provided as part of the relevant advertising value chain and the availability and visibility of advertisement.
Or. en
Amendment 13
Proposal for a regulation Recital 46
Text proposed by the Commission Amendment
(46) A gatekeeper may use different (46) A gatekeeper may use different means to favour its own services or means to favour its own services or products on its core platform service, to the products on its core platform service, to the detriment of the same or similar services detriment of the same or similar services that end users could obtain through third that end users could obtain through third parties. This may for instance be the case parties. This may for instance be the case where certain software applications or where certain software applications or services are pre-installed by a gatekeeper. services are pre-installed by a gatekeeper. To enable end user choice, gatekeepers To enable end user choice, gatekeepers should not prevent end users from un- should not prevent end users from un- installing any pre-installed software installing any pre-installed software applications on its core platform service applications on its operating system and and thereby favour their own software thereby favour their own software applications. applications.
Or. en
Amendment 14
Proposal for a regulation Recital 48
PR\1231257EN.docx 15/82 PE692.792v01-00 EN Text proposed by the Commission Amendment
(48) Gatekeepers are often vertically (48) Gatekeepers are often vertically integrated and offer certain products or integrated and offer certain products or services to end users through their own services to end users through their own core platform services, or through a core platform services, or through a business user over which they exercise business user over which they exercise control which frequently leads to conflicts control which frequently leads to conflicts of interest. This can include the situation of interest. This can include the situation whereby a gatekeeper offers its own online whereby a gatekeeper offers its own online intermediation services through an online intermediation services through an online search engine. When offering those search engine. When offering those products or services on the core platform products or services on the core platform service, gatekeepers can reserve a better service, gatekeepers can reserve a better position to their own offering, in terms of position to their own offering, in terms of ranking, as opposed to the products of third ranking, as opposed to the products of third parties also operating on that core platform parties also operating on that core platform service. This can occur for instance with service. This can occur for instance with products or services, including other core products or services, including other core platform services, which are ranked in the platform services, which are ranked in the results communicated by online search results communicated by online search engines, or which are partly or entirely engines, or which are partly or entirely embedded in online search engines results, embedded in online search engines results, groups of results specialised in a certain groups of results specialised in a certain topic, displayed along with the results of an topic, displayed along with the results of an online search engine, which are considered online search engine, which are considered or used by certain end users as a service or used by certain end users as a service distinct or additional to the online search distinct or additional to the online search engine. Other instances are those of engine. Other instances are those of software applications which are distributed software applications which are distributed through software application stores, or through software application stores, or products or services that are given products or services that are given prominence and display in the newsfeed of prominence and display in the newsfeed of a social network, or products or services a social network, or products or services ranked in search results or displayed on an ranked in search results or displayed on an online marketplace. In those online marketplace. In those circumstances, the gatekeeper is in a dual- circumstances, the gatekeeper is in a dual- role position as intermediary for third party role position as intermediary for third party providers and as direct provider of providers and as direct provider of products or services of the gatekeeper. products or services of the gatekeeper Consequently, these gatekeepers have the leading to conflicts of interest. ability to undermine directly the Consequently, these gatekeepers have the contestability for those products or services ability to undermine directly the on these core platform services, to the contestability for those products or services detriment of business users which are not on these core platform services, to the controlled by the gatekeeper. detriment of business users which are not controlled by the gatekeeper.
PE692.792v01-00 16/82 PR\1231257EN.docx EN Or. en
Amendment 15
Proposal for a regulation Recital 49
Text proposed by the Commission Amendment
(49) In such situations, the gatekeeper (49) In such situations, the gatekeeper should not engage in any form of should not engage in any form of differentiated or preferential treatment in differentiated or preferential treatment in ranking on the core platform service, ranking or display on the core platform whether through legal, commercial or service, whether through legal, commercial technical means, in favour of products or or technical means, in favour of products services it offers itself or through a or services it offers itself or through a business user which it controls. To ensure business user which it controls. To ensure that this obligation is effective, it should that this obligation is effective, it should also be ensured that the conditions that also be ensured that the conditions that apply to such ranking are also generally apply to such ranking are also generally fair. Ranking should in this context cover fair. Ranking should in this context cover all forms of relative prominence, including all forms of relative prominence, including display, rating, linking or voice results. To display, rating, linking or voice results. To ensure that this obligation is effective and ensure that this obligation is effective and cannot be circumvented it should also cannot be circumvented it should also apply to any measure that may have an apply to any measure that may have an equivalent effect to the differentiated or equivalent effect to the differentiated or preferential treatment in ranking. The preferential treatment in ranking. In guidelines adopted pursuant to Article 5 of addition, to avoid any conflicts of interest, Regulation (EU) 2019/1150 should also gatekeepers should be required to treat its facilitate the implementation and own product or services, as a separate enforcement of this obligation.34 commercial entity that is commercially viable as a stand-alone service. The guidelines adopted pursuant to Article 5 of Regulation (EU) 2019/1150 should also facilitate the implementation and enforcement of this obligation.34 ______34 Commission Notice: Guidelines on 34 Commission Notice: Guidelines on ranking transparency pursuant to ranking transparency pursuant to Regulation (EU) 2019/1150 of the Regulation (EU) 2019/1150 of the European Parliament and of the Council European Parliament and of the Council (OJ C 424, 8.12.2020, p. 1). (OJ C 424, 8.12.2020, p. 1).
Or. en
PR\1231257EN.docx 17/82 PE692.792v01-00 EN Amendment 16
Proposal for a regulation Recital 54
Text proposed by the Commission Amendment
(54) Gatekeepers benefit from access to (54) Gatekeepers benefit from access to vast amounts of data that they collect while vast amounts of data that they collect while providing the core platform services as providing the core platform services as well as other digital services. To ensure well as other digital services. To ensure that gatekeepers do not undermine the that gatekeepers do not undermine the contestability of core platform services as contestability of core platform services as well as the innovation potential of the well as the innovation potential of the dynamic digital sector by restricting the dynamic digital sector by restricting the ability of business users to effectively port ability of business users to effectively port their data, business users and end users their data, business users and end users or should be granted effective and immediate third parties authorised by an end user access to the data they provided or should be granted effective, free of charge generated in the context of their use of the and immediate access to the data they relevant core platform services of the provided or generated in the context of gatekeeper, in a structured, commonly used their use of the relevant core platform and machine-readable format. This should services of the gatekeeper, in a structured, apply also to any other data at different commonly used and machine-readable levels of aggregation that may be necessary format. This should apply also to any other to effectively enable such portability. It data at different levels of aggregation that should also be ensured that business users may be necessary to effectively enable and end users can port that data in real time such portability. It should also be ensured effectively, such as for example through that business users and end users can port high quality application programming that data in real time effectively, such as interfaces. Facilitating switching or multi- for example through high quality homing should lead, in turn, to an application programming interfaces. increased choice for business users and end Facilitating switching or multi-homing users and an incentive for gatekeepers and should lead, in turn, to an increased choice business users to innovate. for business users and end users and an incentive for gatekeepers and business users to innovate.
Or. en
Amendment 17
Proposal for a regulation Recital 55
PE692.792v01-00 18/82 PR\1231257EN.docx EN Text proposed by the Commission Amendment
(55) Business users that use large core (55) Business users that use large core platform services provided by gatekeepers platform services provided by gatekeepers and end users of such business users and end users of such business users provide and generate a vast amount of data, provide and generate a vast amount of data, including data inferred from such use. In including data inferred from such use. In order to ensure that business users have order to ensure that business users have access to the relevant data thus generated, access to the relevant data thus generated, the gatekeeper should, upon their request, the gatekeeper should, upon their request, allow unhindered access, free of charge, to allow unhindered access, free of charge, to such data. Such access should also be such data. Such access should also be given to third parties contracted by the given to third parties contracted by the business user, who are acting as processors business user, who are acting as processors of this data for the business user. Data of this data for the business user. Data provided or generated by the same business provided or generated by the same business users and the same end users of these users and the same end users of these business users in the context of other business users in the context of other services provided by the same gatekeeper services provided by the same gatekeeper may be concerned where this is may be concerned where this is inextricably linked to the relevant request. inextricably linked to the relevant request. To this end, a gatekeeper should not use To this end, a gatekeeper should not use any contractual or other restrictions to any contractual or other restrictions to prevent business users from accessing prevent business users from accessing relevant data and should enable business relevant data and should enable business users to obtain consent of their end users users to obtain consent of their end users for such data access and retrieval, where for such data access and retrieval, where such consent is required under Regulation such consent is required under Regulation (EU) 2016/679 and Directive 2002/58/EC. (EU) 2016/679 and Directive 2002/58/EC. Gatekeepers should also facilitate access to Gatekeepers should also facilitate access to these data in real time by means of these data in real time by means of appropriate technical measures, such as for appropriate technical measures, such as for example putting in place high quality example putting in place high quality application programming interfaces. application programming interfaces or enabling access to data by the business user “in situ”, without a transfer by the gatekeeper.
Or. en
Amendment 18
Proposal for a regulation Recital 57
PR\1231257EN.docx 19/82 PE692.792v01-00 EN Text proposed by the Commission Amendment
(57) In particular gatekeepers which (57) Gatekeepers which provide access provide access to software application to core platform services serve as an stores serve as an important gateway for important gateway for business users that business users that seek to reach end users. seek to reach end users. In view of the In view of the imbalance in bargaining imbalance in bargaining power between power between those gatekeepers and those gatekeepers and business users of business users of their software application their core platform services, those stores, those gatekeepers should not be gatekeepers should not be allowed to allowed to impose general conditions, impose general conditions, including including pricing conditions, that would be pricing conditions, that would be unfair or unfair or lead to unjustified differentiation. lead to unjustified differentiation. Pricing Pricing or other general access conditions or other general access conditions should should be considered unfair if they lead to be considered unfair if they lead to an an imbalance of rights and obligations imbalance of rights and obligations imposed on business users or confer an imposed on business users or confer an advantage on the gatekeeper which is advantage on the gatekeeper which is disproportionate to the service provided by disproportionate to the service provided by the gatekeeper to business users or lead to the gatekeeper to business users or lead to a disadvantage for business users in a disadvantage for business users in providing the same or similar services as providing the same or similar services as the gatekeeper. The following benchmarks the gatekeeper. The following benchmarks can serve as a yardstick to determine the can serve as a yardstick to determine the fairness of general access conditions: fairness of general access conditions: prices charged or conditions imposed for prices charged or conditions imposed for the same or similar services by other the same or similar services by other providers of software application stores; providers of core platform services; prices prices charged or conditions imposed by charged or conditions imposed by the the provider of the software application provider of core platform services for store for different related or similar different related or similar services or to services or to different types of end users; different types of end users; prices charged prices charged or conditions imposed by or conditions imposed by the provider of the provider of the software application core platform services for the same service store for the same service in different in different geographic regions; prices geographic regions; prices charged or charged or conditions imposed by the conditions imposed by the provider of the provider of core platform services for the software application store for the same same service the gatekeeper offers to itself. service the gatekeeper offers to itself. This This obligation should not establish an obligation should not establish an access access right and it should be without right and it should be without prejudice to prejudice to the ability of providers of core the ability of providers of software platform services to take the required application stores to take the required responsibility in the fight against illegal responsibility in the fight against illegal and unwanted content as set out in and unwanted content as set out in Regulation [Digital Services Act]. Regulation [Digital Services Act].
Or. en
PE692.792v01-00 20/82 PR\1231257EN.docx EN Amendment 19
Proposal for a regulation Recital 58
Text proposed by the Commission Amendment
(58) To ensure the effectiveness of the (58) To ensure the effectiveness of the obligations laid down by this Regulation, obligations laid down by this Regulation, while also making certain that these while also making certain that these obligations are limited to what is necessary obligations are limited to what is necessary to ensure contestability and tackling the to ensure contestability and tackling the harmful effects of the unfair behaviour by harmful effects of the unfair behaviour by gatekeepers, it is important to clearly gatekeepers, it is important to clearly define and circumscribe them so as to define and circumscribe them so as to allow the gatekeeper to immediately allow the gatekeeper to immediately comply with them, in full respect of comply with them, in full respect of Regulation (EU) 2016/679 and Directive Regulation (EU) 2016/679 and Directive 2002/58/EC, consumer protection, cyber 2002/58/EC, consumer protection, cyber security and product safety. The security and product safety. The gatekeepers should ensure the compliance gatekeepers should ensure the compliance with this Regulation by design. The with this Regulation by design. The necessary measures should therefore be as necessary measures should therefore be as much as possible and where relevant much as possible and where relevant integrated into the technological design integrated into the technological design used by the gatekeepers. However, it may used by the gatekeepers. However, it may in certain cases be appropriate for the in certain cases be appropriate for the Commission, following a dialogue with the Commission, following a dialogue with the gatekeeper concerned, to further specify gatekeeper concerned, and, where some of the measures that the gatekeeper appropriate, after consulting interested concerned should adopt in order to third parties, to further specify in a effectively comply with those obligations decision some of the measures that the that are susceptible of being further gatekeeper concerned should adopt in order specified. This possibility of a regulatory to effectively comply with those dialogue should facilitate compliance by obligations that are susceptible of being gatekeepers and expedite the correct further specified. This possibility of a implementation of the Regulation. regulatory dialogue should facilitate compliance by gatekeepers and expedite the correct implementation of the Regulation.
Or. en
PR\1231257EN.docx 21/82 PE692.792v01-00 EN Amendment 20
Proposal for a regulation Recital 60
Text proposed by the Commission Amendment
(60) In exceptional circumstances (60) In exceptional circumstances justified on the limited grounds of public justified on the limited grounds of public morality, public health or public security, morality, public health or public security, the Commission should be able to decide the Commission should be able to decide that the obligation concerned does not that the obligation concerned does not apply to a specific core platform service. apply to a specific core platform service. Affecting these public interests can Affecting these public interests can indicate that the cost to society as a whole indicate that the cost to society as a whole of enforcing a certain obligation would in a of enforcing a certain obligation would in a certain exceptional case be too high and certain exceptional case be too high and thus disproportionate. The regulatory thus disproportionate. The regulatory dialogue to facilitate compliance with dialogue to facilitate compliance with limited suspension and exemption limited suspension and exemption possibilities should ensure the possibilities should ensure the proportionality of the obligations in this proportionality of the obligations in this Regulation without undermining the Regulation without undermining the intended ex ante effects on fairness and intended ex ante effects on fairness and contestability. contestability. Where such an exemption is granted, the Commission should review its decision every two years.
Or. en
Amendment 21
Proposal for a regulation Recital 62
Text proposed by the Commission Amendment
(62) In order to ensure the full and (62) In order to ensure the full and lasting achievement of the objectives of lasting achievement of the objectives of this Regulation, the Commission should be this Regulation, the Commission should be able to assess whether a provider of core able to assess whether a provider of core platform services should be designated as a platform services should be designated as a gatekeeper without meeting the gatekeeper without meeting the quantitative thresholds laid down in this quantitative thresholds laid down in this Regulation; whether systematic non- Regulation; whether systematic non- compliance by a gatekeeper warrants compliance by a gatekeeper warrants imposing additional remedies; and whether imposing additional remedies; and whether
PE692.792v01-00 22/82 PR\1231257EN.docx EN the list of obligations addressing unfair the list of obligations addressing unfair practices by gatekeepers should be practices by gatekeepers should be reviewed and additional practices that are reviewed; and whether additional practices similarly unfair and limiting the that are similarly unfair and limiting the contestability of digital markets should be contestability of digital markets should be identified. Such assessment should be identified. Such assessment should be based on market investigations to be run in based on market investigations to be run in an appropriate timeframe, by using clear an appropriate timeframe, by using clear procedures and deadlines, in order to procedures and deadlines, in order to support the ex ante effect of this support the ex ante effect of this Regulation on contestability and fairness in Regulation on contestability and fairness in the digital sector, and to provide the the digital sector, and to provide the requisite degree of legal certainty. requisite degree of legal certainty.
Or. en
Amendment 22
Proposal for a regulation Recital 64
Text proposed by the Commission Amendment
(64) The Commission should investigate (64) The Commission should investigate and assess whether additional behavioural, and assess whether additional behavioural, or, where appropriate, structural remedies or, where appropriate, structural remedies are justified, in order to ensure that the are justified, in order to ensure that the gatekeeper cannot frustrate the objectives gatekeeper cannot frustrate the objectives of this Regulation by systematic non- of this Regulation by systematically not compliance with one or several of the complying with one or several of the obligations laid down in this Regulation, obligations laid down in this Regulation. which has further strengthened its The Commission should therefore in such gatekeeper position. This would be the cases of systematic non-compliance have case if the gatekeeper’s size in the internal the power to impose any remedy, whether market has further increased, economic behavioural or structural, that is necessary dependency of business users and end to ensure effective compliance with this users on the gatekeeper’s core platform Regulation. services has further strengthened as their number has further increased and the gatekeeper benefits from increased entrenchment of its position. The Commission should therefore in such cases have the power to impose any remedy, whether behavioural or structural, having due regard to the principle of proportionality. Structural remedies, such as legal, functional or structural
PR\1231257EN.docx 23/82 PE692.792v01-00 EN separation, including the divestiture of a business, or parts of it, should only be imposed either where there is no equally effective behavioural remedy or where any equally effective behavioural remedy would be more burdensome for the undertaking concerned than the structural remedy. Changes to the structure of an undertaking as it existed before the systematic non-compliance was established would only be proportionate where there is a substantial risk that this systematic non-compliance results from the very structure of the undertaking concerned.
Or. en
Amendment 23
Proposal for a regulation Recital 65
Text proposed by the Commission Amendment
(65) The services and practices in core (65) The services and practices in core platform services and markets in which platform services and markets in which these intervene can change quickly and to a these intervene can change quickly and to a significant extent. To ensure that this significant extent. For example, it is Regulation remains up to date and possible that the Commission will soon constitutes an effective and holistic need to assess whether new services such regulatory response to the problems posed as voice-enabled services, need to be by gatekeepers, it is important to provide added to the list of core platform services. for a regular review of the lists of core To ensure that this Regulation remains up platform services as well as of the to date and constitutes an effective and obligations provided for in this holistic regulatory response to the Regulation. This is particularly important problems posed by gatekeepers, it is to ensure that behaviour that may limit important to provide for a regular review of the contestability of core platform services the lists of core platform services. While it or is unfair is identified. While it is is important to conduct a review on a important to conduct a review on a regular regular basis, given the dynamically basis, given the dynamically changing changing nature of the digital sector, in nature of the digital sector, in order to order to ensure legal certainty as to the ensure legal certainty as to the regulatory regulatory conditions, any reviews should conditions, any reviews should be be conducted within a reasonable and conducted within a reasonable and appropriate time-frame. Market appropriate time-frame. Market investigations should also ensure that the
PE692.792v01-00 24/82 PR\1231257EN.docx EN investigations should also ensure that the Commission has a solid evidentiary basis Commission has a solid evidentiary basis on which it can assess whether it should on which it can assess whether it should propose to amend this Regulation in order propose to amend this Regulation in order to expand, or further detail, the lists of core to expand, or further detail, the lists of core platform services. They should equally platform services. They should equally ensure that the Commission has a solid ensure that the Commission has a solid evidentiary basis on which it can assess evidentiary basis on which it can assess whether it should propose to amend the whether it should propose to amend the obligations laid down in this Regulation or obligations laid down in this Regulation or whether it should adopt a delegated act whether it should adopt a delegated act updating such obligations. updating such obligations.
Or. en
Amendment 24
Proposal for a regulation Recital 67
Text proposed by the Commission Amendment
(67) Where, in the course of a deleted proceeding into non-compliance or an investigation into systemic non- compliance, a gatekeeper offers commitments to the Commission, the latter should be able to adopt a decision making these commitments binding on the gatekeeper concerned, where it finds that the commitments ensure effective compliance with the obligations of this Regulation. This decision should also find that there are no longer grounds for action by the Commission.
Or. en
Amendment 25
Proposal for a regulation Recital 75 a (new)
PR\1231257EN.docx 25/82 PE692.792v01-00 EN Text proposed by the Commission Amendment
(75a) 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 Establishing that group of regulators should enable the exchange of information and best practices among the Members States, better monitoring and thus strengthen the implementation of this Regulation.
Or. en
Amendment 26
Proposal for a regulation Recital 76
Text proposed by the Commission Amendment
(76) In order to ensure uniform (76) In order to ensure uniform conditions for the implementation of conditions for the implementation of Articles 3, 6, 12, 13, 15, 16, 17, 20, 22, 23, Articles 3, 5, 6, 12, 13, 15, 16, 17, 20, 22, 25 and 30, implementing powers should be 23, 25 and 30, implementing powers conferred on the Commission. Those should be conferred on the Commission. powers should be exercised in accordance Those powers should be exercised in with Regulation (EU) No 182//2011 of the accordance with Regulation (EU) No European Parliament and of the Council1. 182//2011 of the European Parliament and of the Council1. ______1 Regulation (EU) No 182/2011 of the 1 Regulation (EU) No 182/2011 of the European Parliament and of the Council of European Parliament and of the Council of 16 February 2011 laying down the rules 16 February 2011 laying down the rules and general principles concerning and general principles concerning mechanisms for control by Member States mechanisms for control by Member States of the Commission’s exercise of of the Commission’s exercise of implementing powers, (OJ L 55, implementing powers, (OJ L 55, 28.2.2011, p. 13). 28.2.2011, p. 13).
Or. en
PE692.792v01-00 26/82 PR\1231257EN.docx EN Amendment 27
Proposal for a regulation Recital 77
Text proposed by the Commission Amendment
(77) The advisory committee established (77) The advisory committee established in accordance with Regulation (EU) No in accordance with Regulation (EU) No 182//2011 should also deliver opinions on 182//2011 should also deliver opinions on certain individual decisions of the certain individual decisions of the Commission issued under this Regulation. Commission issued under this Regulation. In order to ensure contestable and fair In order to ensure contestable and fair markets in the digital sector across the markets in the digital sector across the Union where gatekeepers are present, the Union where gatekeepers are present, the power to adopt acts in accordance with power to adopt acts in accordance with Article 290 of the Treaty should be Article 290 of the Treaty should be delegated to the Commission to delegated to the Commission to supplement this Regulation. In particular, supplement this Regulation. In particular, delegated acts should be adopted in respect delegated acts should be adopted in respect of the methodology for determining the of the methodology for determining the quantitative thresholds for designation of quantitative thresholds for designation of gatekeepers under this Regulation and in gatekeepers under this Regulation. It is of respect of the update of the obligations particular importance that the Commission laid down in this Regulation where, based carries out appropriate consultations and on a market investigation the Commission that those consultations be conducted in has identified the need for updating the accordance with the principles laid down in obligations addressing practices that limit the Interinstitutional Agreement on Better the contestability of core platform services Law-Making of 13 April 201636 . In or are unfair. It is of particular importance particular, to ensure equal participation in that the Commission carries out the preparation of delegated acts, the appropriate consultations and that those European Parliament and the Council consultations be conducted in accordance receive all documents at the same time as with the principles laid down in the Member States' experts, and their experts Interinstitutional Agreement on Better systematically have access to meetings of Law-Making of 13 April 201636 . In Commission expert groups dealing with the particular, to ensure equal participation in preparation of delegated acts. the preparation of delegated acts, the European Parliament and the Council receive all documents at the same time as Member States' experts, and their experts systematically have access to meetings of Commission expert groups dealing with the preparation of delegated acts. ______36 Interinstitutional Agreement between the 36 Interinstitutional Agreement between the
PR\1231257EN.docx 27/82 PE692.792v01-00 EN European Parliament, the Council of the European Parliament, the Council of the European Union and the European European Union and the European Commission on Better Law-Making (OJ L Commission on Better Law-Making (OJ L 123, 12.5.2016, p.1). 123, 12.5.2016, p.1).
Or. en
Amendment 28
Proposal for a regulation Recital 77 a (new)
Text proposed by the Commission Amendment
(77a) National courts will have an important role in applying this Regulation and should be allowed to ask the Commission to send them information or opinions on questions concerning the application of this Regulation. At the same time, the Commission should be able to submit oral or written observations to courts of the Member States.
Or. en
Amendment 29
Proposal for a regulation Article 1 – paragraph 1
Text proposed by the Commission Amendment
1. This Regulation lays down 1. The purpose of this Regulation is harmonised rules ensuring contestable and to contribute to the proper functioning of fair markets in the digital sector across the the internal market by laying down Union where gatekeepers are present. harmonised rules ensuring contestable and fair markets in the digital sector across the Union where gatekeepers are present.
Or. en
PE692.792v01-00 28/82 PR\1231257EN.docx EN Amendment 30
Proposal for a regulation Article 1 – paragraph 5
Text proposed by the Commission Amendment
5. Member States shall not impose on 5. In order to avoid the gatekeepers further obligations by way of fragmentation of the internal market, laws, regulations or administrative action Member States shall not impose on for the purpose of ensuring contestable and gatekeepers further obligations by way of fair markets. This is without prejudice to laws, regulations or administrative action rules pursuing other legitimate public for the purpose of ensuring contestable and interests, in compliance with Union law. In fair markets. This is without prejudice to particular, nothing in this Regulation rules pursuing other legitimate public precludes Member States from imposing interests, in compliance with Union law. In obligations, which are compatible with particular, nothing in this Regulation Union law, on undertakings, including precludes Member States from imposing providers of core platform services where obligations, which are compatible with these obligations are unrelated to the Union law, on undertakings, including relevant undertakings having a status of providers of core platform services where gatekeeper within the meaning of this these obligations are unrelated to the Regulation in order to protect consumers or relevant undertakings having a status of to fight against acts of unfair competition. gatekeeper within the meaning of this Regulation in order to protect consumers or to fight against acts of unfair competition.
Or. en
Amendment 31
Proposal for a regulation Article 1 – paragraph 6
Text proposed by the Commission Amendment
6. This Regulation is without 6. This Regulation is without prejudice to the application of Articles 101 prejudice to the application of Articles 101 and 102 TFEU. It is also without prejudice and 102 TFEU. It is also without prejudice to the application of: national rules to the application of: national rules prohibiting anticompetitive agreements, prohibiting anticompetitive agreements, decisions by associations of undertakings, decisions by associations of undertakings, concerted practices and abuses of dominant concerted practices and abuses of dominant positions; national competition rules positions; national competition rules prohibiting other forms of unilateral prohibiting other forms of unilateral conduct insofar as they are applied to conduct; Council Regulation (EC) No undertakings other than gatekeepers or 139/200438 and national rules concerning
PR\1231257EN.docx 29/82 PE692.792v01-00 EN amount to imposing additional obligations merger control; Regulation (EU) on gatekeepers; Council Regulation (EC) 2019/1150 and Regulation (EU) …./.. of No 139/200438 and national rules the European Parliament and of the concerning merger control; Regulation Council39 . (EU) 2019/1150 and Regulation (EU) …./.. of the European Parliament and of the Council39 . ______38 Council Regulation (EC) No 139/2004 38 Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of of 20 January 2004 on the control of concentrations between undertakings (the concentrations between undertakings (the EC Merger Regulation) (OJ L 24, EC Merger Regulation) (OJ L 24, 29.1.2004, p. 1). 29.1.2004, p. 1). 39 Regulation (EU) …/.. of the European 39 Regulation (EU) …/.. of the European Parliament and of the Council – proposal Parliament and of the Council – proposal on a Single Market For Digital Services on a Single Market For Digital Services (Digital Services Act) and amending (Digital Services Act) and amending Directive 2000/31/EC. Directive 2000/31/EC.
Or. en
Amendment 32
Proposal for a regulation Article 1 – paragraph 7
Text proposed by the Commission Amendment
7. National authorities shall not take 7. National authorities, including decisions which would run counter to a national courts, shall not take decisions decision adopted by the Commission under which would run counter to a decision this Regulation. The Commission and adopted by the Commission under this Member States shall work in close Regulation. The Commission and Member cooperation and coordination in their States shall work in close cooperation and enforcement actions. coordination in their enforcement actions.
Or. en
Amendment 33
Proposal for a regulation Article 2 – paragraph 1 – point 2 – point e
PE692.792v01-00 30/82 PR\1231257EN.docx EN Text proposed by the Commission Amendment
(e) number-independent interpersonal (e) number-independent interpersonal communication services; communication services provided by any other core platform services;
Or. en
Amendment 34
Proposal for a regulation Article 2 – paragraph 1 – point 2 – point g
Text proposed by the Commission Amendment
(g) cloud computing services; (g) cloud computing services provided by any other core platform services;
Or. en
Amendment 35
Proposal for a regulation Article 2 – paragraph 1 – point 2 – point h
Text proposed by the Commission Amendment
(h) advertising services, including any (h) online advertising services, advertising networks, advertising including any advertising networks, exchanges and any other advertising advertising exchanges and any other intermediation services, provided by a advertising intermediation services, provider of any of the core platform provided by a provider of any of the core services listed in points (a) to (g); platform services listed in points (a) to (g);
Or. en
Amendment 36
Proposal for a regulation Article 2 – paragraph 1 – point 14
PR\1231257EN.docx 31/82 PE692.792v01-00 EN Text proposed by the Commission Amendment
(14) ‘Ancillary service’ means services (14) ‘Ancillary service’ means services provided in the context of or together with provided in the context of or together with core platform services, including payment core platform services, including payment services as defined in point 3 of Article 4 services as defined in point 3 of Article 4 and technical services which support the and technical services which support the provision of payment services as defined in provision of payment services as defined in Article 3(j) of Directive (EU) 2015/2366, Article 3(j) of Directive (EU) 2015/2366, fulfilment, identification or advertising identification or advertising services; services;
Or. en
Amendment 37
Proposal for a regulation Article 3 – paragraph 2 – point a
Text proposed by the Commission Amendment
(a) the requirement in paragraph 1 (a) the requirement in paragraph 1 point (a) where the undertaking to which it point (a) where the undertaking to which it belongs achieves an annual EEA turnover belongs achieves an annual EEA turnover equal to or above EUR 6.5 billion in the equal to or above EUR 10 billion in the last last three financial years, or where the three financial years, or where the average average market capitalisation or the market capitalisation or the equivalent fair equivalent fair market value of the market value of the undertaking to which it undertaking to which it belongs amounted belongs amounted to at least EUR 100 to at least EUR 65 billion in the last billion in the last financial year, and it financial year, and it provides a core provides a core platform service in at least platform service in at least three Member three Member States; States;
Or. en
Justification
The DMA should be clearly targeted to those platforms that play an unquestionable role as gatekeepers due to their size and their impact on the internal market. To this end, it is appropriate to increase the quantitative thresholds and to add - as an additional condition for companies to be designated as gatekeepers under Article 3 (2) of the Regulation - that they are providers of not only one but, at least, two core platform services. The provision of two or more core platform services is also an important indicator of the role of these companies as providers of an ecosystem of services.
PE692.792v01-00 32/82 PR\1231257EN.docx EN Amendment 38
Proposal for a regulation Article 3 – paragraph 2 – point b – subparagraph 1
Text proposed by the Commission Amendment
(b) the requirement in paragraph 1 (b) the requirement in paragraph 1 point (b) where it provides a core platform point (b) where it provides two or more service that has more than 45 million core platform services each of which has monthly active end users established or more than 45 million monthly active end located in the Union and more than 10 000 users established or located in the Union yearly active business users established in and more than 10 000 yearly active the Union in the last financial year; business users established in the Union in the last financial year. Monthly active end users and yearly active business users shall be measured taking into account the indicators set out in the Annex to this Regulation.
Or. en
Justification
A list of the indicators should be added as annex to this Regulation enabling providers of core platform services to know in advance how to measure the number of monthly active end-users and yearly active business users under Article 3 (2).
Amendment 39
Proposal for a regulation Article 3 – paragraph 3 – subparagraph 1
Text proposed by the Commission Amendment
Where a provider of core platform services Where a provider of core platform services meets all the thresholds in paragraph 2, it meets all the thresholds in paragraph 2, it shall notify the Commission thereof within shall notify the Commission thereof within three months after those thresholds are one month after those thresholds are satisfied and provide it with the relevant satisfied and provide it with the relevant information identified in paragraph 2.. That information identified in paragraph 2.. That notification shall include the relevant notification shall include the relevant information identified in paragraph 2 for information identified in paragraph 2 for each of the core platform services of the each of the core platform services of the provider that meets the thresholds in provider that meets the thresholds in paragraph 2 point (b). The notification paragraph 2 point (b). The notification
PR\1231257EN.docx 33/82 PE692.792v01-00 EN shall be updated whenever other core shall be updated whenever other core platform services individually meet the platform services individually meet the thresholds in paragraph 2 point (b). thresholds in paragraph 2 point (b).
Or. en
Justification
The designation of a company as gatekeeper should be a fast procedure. One month seems adequate to issue a designation decision.
Amendment 40
Proposal for a regulation Article 3 – paragraph 4 – subparagraph 1
Text proposed by the Commission Amendment
The Commission shall, without undue The Commission shall, without undue delay and at the latest 60 days after delay and at the latest 60 days after receiving the complete information receiving the complete information referred to in paragraph 3, designate the referred to in paragraph 3, designate the provider of core platform services that provider of core platform services that meets all the thresholds of paragraph 2 as a meets all the thresholds of paragraph 2 as a gatekeeper, unless that provider, with its gatekeeper, unless that provider, with its notification, presents sufficiently notification, presents compelling substantiated arguments to demonstrate substantiated arguments to demonstrate that, in the circumstances in which the that, in the circumstances in which the relevant core platform service operates, relevant core platform service operates, the and taking into account the elements provider does not satisfy the requirements listed in paragraph 6, the provider does of paragraph 1. not satisfy the requirements of paragraph 1.
Or. en
Amendment 41
Proposal for a regulation Article 3 – paragraph 4 – subparagraph 2
Text proposed by the Commission Amendment
Where the gatekeeper presents such deleted sufficiently substantiated arguments to demonstrate that it does not satisfy the
PE692.792v01-00 34/82 PR\1231257EN.docx EN requirements of paragraph 1, the Commission shall apply paragraph 6 to assess whether the criteria in paragraph 1 are met.
Or. en
Justification
Where the designation is based on the quantitative and objective criteria of Article 3 (2), companies designated as gatekeepers should only be able to challenge the designation where compelling evidence exists to demonstrate that they do not satisfy the requirements of paragraph 1. The thorough analysis under Article 3 (6) should not be required (nor would be justified) where companies meet the quantitative presumptions of Article 3 (2).
Amendment 42
Proposal for a regulation Article 3 – paragraph 4 a (new)
Text proposed by the Commission Amendment
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.
Or. en
Justification
If companies do not cooperate with the provision of information to the Commission, the Commission should be able to designate a company as a gatekeeper based on the facts available.
Amendment 43
Proposal for a regulation Article 3 – paragraph 5
PR\1231257EN.docx 35/82 PE692.792v01-00 EN Text proposed by the Commission Amendment
5. The Commission is empowered to 5. The Commission is empowered to adopt delegated acts in accordance with adopt delegated acts in accordance with Article 37 to specify the methodology for Article 37 to specify the methodology for determining whether the quantitative determining whether the quantitative thresholds laid down in paragraph 2 are thresholds laid down in paragraph 2 are met, and to regularly adjust it to market met, to update the list of indicators set out and technological developments where in the Annex to this Regulation and to necessary, in particular as regards the regularly adjust that methodology and threshold in paragraph 2, point (a). those lists to market and technological developments where necessary, in particular as regards the threshold in paragraph 2, point (a).
Or. en
Justification
The Commission should be empowered to update the list of indicators set out in the Annex taking into account market and technological developments.
Amendment 44
Proposal for a regulation Article 3 – paragraph 6 – subparagraph 1
Text proposed by the Commission Amendment
The Commission may identify as a The Commission may identify as a gatekeeper, in accordance with the gatekeeper, in accordance with the procedure laid down in Article 15, any procedure laid down in Article 15, any provider of core platform services that provider of core platform services that meets each of the requirements of meets each of the requirements of paragraph 1, but does not satisfy each of paragraph 1, but does not satisfy each of the thresholds of paragraph 2, or has the thresholds of paragraph 2. presented sufficiently substantiated arguments in accordance with paragraph 4.
Or. en
Justification
Justification: The thorough analysis under Article 3 (6) should not be required (nor would be justified) where companies meet the quantitative presumptions of Article 3 (2).
PE692.792v01-00 36/82 PR\1231257EN.docx EN Amendment 45
Proposal for a regulation Article 3 – paragraph 6 – subparagraph 2 – point e a (new)
Text proposed by the Commission Amendment
(ea) the degree of multi-homing among business and end users;
Or. en
Justification
The degree of multi-homing is an important indicator to assess gatekeeper status that should be explicitly added in Article 3 (6).
Amendment 46
Proposal for a regulation Article 3 – paragraph 6 – subparagraph 4
Text proposed by the Commission Amendment
Where the provider of a core platform deleted service that satisfies the quantitative thresholds of paragraph 2 fails to comply with the investigative measures ordered by the Commission in a significant manner and the failure persists after the provider has been invited to comply within a reasonable time-limit and to submit observations, the Commission shall be entitled to designate that provider as a gatekeeper.
Or. en
Amendment 47
Proposal for a regulation Article 3 – paragraph 6 – subparagraph 5
PR\1231257EN.docx 37/82 PE692.792v01-00 EN Text proposed by the Commission Amendment
Where the provider of a core platform deleted service that does not satisfy the quantitative thresholds of paragraph 2 fails to comply with the investigative measures ordered by the Commission in a significant manner and the failure persists after the provider has been invited to comply within a reasonable time-limit and to submit observations, the Commission shall be entitled to designate that provider as a gatekeeper based on facts available.
Or. en
Justification
Replaced by the new wording under Article 3 (4a)
Amendment 48
Proposal for a regulation Article 3 – paragraph 8
Text proposed by the Commission Amendment
8. The gatekeeper shall comply with 8. The gatekeeper shall comply with the obligations laid down in Articles 5 and the obligations laid down in Articles 5 and 6 within six months after a core platform 6 within four months after a core platform service has been included in the list service has been included in the list pursuant to paragraph 7 of this Article. pursuant to paragraph 7 of this Article.
Or. en
Amendment 49
Proposal for a regulation Article 4 – paragraph 2 – subparagraph 1
Text proposed by the Commission Amendment
The Commission shall regularly, and at The Commission shall regularly, and at least every 2 years, review whether the least every three years, review whether the
PE692.792v01-00 38/82 PR\1231257EN.docx EN designated gatekeepers continue to satisfy designated gatekeepers continue to satisfy the requirements laid down in Article 3(1), the requirements laid down in Article 3(1), or whether new providers of core platform or whether new providers of core platform services satisfy those requirements. The services satisfy those requirements. The regular review shall also examine whether regular review shall also examine whether the list of affected core platform services of the list of affected core platform services of the gatekeeper needs to be adjusted. the gatekeeper needs to be adjusted.
Or. en
Amendment 50
Proposal for a regulation Article 4 – paragraph 3
Text proposed by the Commission Amendment
3. The Commission shall publish and 3. The Commission shall publish and update the list of gatekeepers and the list of update the list of gatekeepers and the list of the core platform services for which they the core platform services for which they need to comply with the obligations laid need to comply with the obligations laid down in Articles 5 and 6 on an on-going down in Articles 5 and 6, on an on-going basis. basis and at least every two years.
Or. en
Amendment 51
Proposal for a regulation Article 5 – paragraph 1 – point a
Text proposed by the Commission Amendment
(a) refrain from combining personal (a) refrain from combining personal data sourced from these core platform data sourced from these core platform services with personal data from any other services with personal data from any other services offered by the gatekeeper or with services offered by the gatekeeper or with personal data from third-party services, and personal data from third-party services, and from signing in end users to other services from signing in end users to other services of the gatekeeper in order to combine of the gatekeeper in order to combine personal data, unless the end user has been personal data, unless the end user has been presented with the specific choice and presented with the specific choice and provided consent in the sense of provided consent in the sense of Article Regulation (EU) 2016/679. ; 6(1), point (a), of Regulation (EU) 2016/679; alternatively, the gatekeeper
PR\1231257EN.docx 39/82 PE692.792v01-00 EN may rely on the legal basis included under Article 6(1) of that Regulation with the exception of points (b) and (f) thereof.
Or. en
Justification
This obligation aims at preventing gatekeepers from misusing the GDPR in the context of combining personal data sourced from core platform services with personal data from any other services offered by the gatekeeper.
Amendment 52
Proposal for a regulation Article 5 – paragraph 1 – point b
Text proposed by the Commission Amendment
(b) allow business users to offer the (b) refrain from applying contractual same products or services to end users obligations that prevent business users through third party online intermediation from offering the same products or services at prices or conditions that are services to end users through third party different from those offered through the online intermediation services at prices or online intermediation services of the conditions that are different from those gatekeeper; offered through the online intermediation services of the gatekeeper;
Or. en
Justification
This obligation aims at prohibiting gatekeepers to constrain the ability of end-users to engage in multi-homing; it prohibits gatekeepers from applying contractual obligations that prevent business users from offering their good/services at different price/conditions (e.g. better prices) through other platforms (so-called Most-Favoured Nation (MFN) clauses);
Amendment 53
Proposal for a regulation Article 5 – paragraph 1 – point c
Text proposed by the Commission Amendment
(c) allow business users to promote (c) allow business users to promote offers to end users acquired via the core different offers to end users acquired via
PE692.792v01-00 40/82 PR\1231257EN.docx EN platform service, and to conclude contracts the core platform service and for which with these end users regardless of whether the core platform service has been for that purpose they use the core platform remunerated or through other channels, services of the gatekeeper or not, and and to conclude contracts with these end allow end users to access and use, users outside the core platform services of through the core platform services of the the gatekeeper. gatekeeper, content, subscriptions, features or other items by using the software application of a business user, where these items have been acquired by the end users from the relevant business user without using the core platform services of the gatekeeper;
Or. en
Justification
This obligation aims at prohibiting gatekeepers from constraining the ability of business users to promote their own services to reach out end users and offer them services outside the core platform service; The second part of the provision is moved to a different point.
Amendment 54
Proposal for a regulation Article 5 – paragraph 1 – point c a (new)
Text proposed by the Commission Amendment
(ca) 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, even where these items have been acquired by the end users from the relevant business user without using the core platform services of the gatekeeper;
Or. en
Justification
This obligation aims at prohibiting gatekeepers to constrain the ability of end-users to engage in multi-homing by imposing on gatekeepers the obligation to allow end users to access alternative services through the core platform service; moved from the previous point.
PR\1231257EN.docx 41/82 PE692.792v01-00 EN Amendment 55
Proposal for a regulation Article 5 – paragraph 1 – point d
Text proposed by the Commission Amendment
(d) refrain from preventing or (d) refrain from preventing or restricting business users from raising restricting business users from raising issues with any relevant public authority issues with any relevant public authority, relating to any practice of gatekeepers; including national courts, relating to any practice of gatekeepers;
Or. en
Amendment 56
Proposal for a regulation Article 5 – paragraph 1 – point g
Text proposed by the Commission Amendment
(g) provide advertisers and publishers (g) provide individual advertisers and to which it supplies advertising services, publishers to which it supplies advertising upon their request, with information services, with free of charge, high-quality, concerning the price paid by the advertiser effective, continuous and real-time access and publisher, as well as the amount or to information on the visibility and remuneration paid to the publisher, for the availability of advertisement portfolio as publishing of a given ad and for each of the well as pricing conditions concerning the relevant advertising services provided by bids placed by advertisers and advertising the gatekeeper. intermediaries, the price paid by the advertiser and publisher, as well as the amount and remuneration paid to the publisher, for the publishing of a given ad and for each of the relevant advertising services provided by the gatekeeper.
Or. en
Justification
Changes aimed at improve transparency of the online advertisement market.
PE692.792v01-00 42/82 PR\1231257EN.docx EN Amendment 57
Proposal for a regulation Article 5 – paragraph 1 – point g a (new)
Text proposed by the Commission Amendment
(ga) refrain from using, in competition with business users, any data not publicly available, which is generated 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;
Or. en
Justification
Moved from Article 6 as this obligation does not seem susceptible of being further specified.
Amendment 58
Proposal for a regulation Article 5 – paragraph 1 – point g b (new)
Text proposed by the Commission Amendment
(gb) allow end users to uninstall 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 are essential for the functioning of the operating system or of the device and which cannot technically be offered on a stand-alone basis by third- parties;
Or. en
Justification
Moved from Article 6 as this obligation does not seem susceptible of being further specified.
PR\1231257EN.docx 43/82 PE692.792v01-00 EN Amendment 59
Proposal for a regulation Article 6 – paragraph 1 – point a
Text proposed by the Commission Amendment
(a) refrain from using, in competition deleted with business users, any data not publicly available, which is generated 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;
Or. en
Justification
Moved to Article 5 as this obligation does not seem susceptible of being further specified.
Amendment 60
Proposal for a regulation Article 6 – paragraph 1 – point b
Text proposed by the Commission Amendment
(b) allow end users to un-install any deleted pre-installed software applications on its core platform service without prejudice to the possibility for a gatekeeper to restrict such un-installation in relation to software applications 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;
Or. en
Justification
Moved to Article 5 as this obligation does not seem susceptible of being further specified.
PE692.792v01-00 44/82 PR\1231257EN.docx EN Amendment 61
Proposal for a regulation Article 6 – paragraph 1 – point c
Text proposed by the Commission Amendment
(c) allow the installation and effective (c) allow the installation and effective use of third party software applications or use of third party software applications or software application stores using, or software application stores using, or interoperating with, operating systems of interoperating with, operating systems of that gatekeeper and allow these software that gatekeeper and allow these software applications or software application stores applications or software application stores to be accessed by means other than the to be accessed by means other than the core platform services of that gatekeeper. core platform services of that gatekeeper. The gatekeeper shall not be prevented from The gatekeeper shall not be prevented from taking proportionate measures to ensure taking measures that are both necessary that third party software applications or and proportionate to ensure that third party software application stores do not endanger software applications or software the integrity of the hardware or operating application stores do not endanger the system provided by the gatekeeper; integrity of the hardware or operating system provided by the gatekeeper;
Or. en
Amendment 62
Proposal for a regulation Article 6 – paragraph 1 – point d
Text proposed by the Commission Amendment
(d) refrain from treating more (d) refrain from treating more favourably in ranking services and favourably in ranking or display services products offered by the gatekeeper itself or and products offered by the gatekeeper by any third party belonging to the same itself or by any third party belonging to the undertaking compared to similar services same undertaking compared to similar or products of third party and apply fair services or products of third party and and non-discriminatory conditions to such apply fair and non-discriminatory ranking; 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
PR\1231257EN.docx 45/82 PE692.792v01-00 EN service shall be treated as a separate commercial entity and shall be commercially viable as a stand-alone service;
Or. en
Justification
This obligation aims at prohibiting self-preferencing where conflicts of interest exist in online search market (where gatekeeper competes with third parties in the offer of good or services);
Amendment 63
Proposal for a regulation Article 6 – paragraph 1 – point h
Text proposed by the Commission Amendment
(h) provide effective portability of data (h) provide end users or third parties generated through the activity of a authorised by an end user, free of charge, business user or end user and shall, in with effective portability of data provided particular, provide tools for end users to by the end user or generated through his facilitate the exercise of data portability, in or her activity in the context of their use line with Regulation EU 2016/679, on the relevant core platform service, including by the provision of continuous including by providing tools for end users and real-time access ; 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;
Or. en
Justification
This provision aims at promoting contestability by ensuring that there is effective data portability. Access by business users is covered under Article 6 (1) (i).
Amendment 64
Proposal for a regulation Article 6 – paragraph 1 – point i
Text proposed by the Commission Amendment
(i) provide business users, or third (i) provide business users, or third
PE692.792v01-00 46/82 PR\1231257EN.docx EN parties authorised by a business user, free parties authorised by a business user, free of charge, with effective, high-quality, of charge, with continuous and real-time continuous and real-time access and use of access and use of aggregated or non- aggregated or non-aggregated data, that is aggregated data, that is provided for or provided for or generated in the context of generated in the context of the use of the the use of the relevant core platform relevant core platform services by those services by those business users and the business users and the end users engaging end users engaging with the products or with the products or services provided by services provided by those business users; those business users; this shall include at for personal data, provide access and use the request of the business user, the only where directly connected with the use possibility and necessary tools to access effectuated by the end user in respect of the and analyse data “in-situ” without a products or services offered by the relevant transfer from the gatekeeper. For personal business user through the relevant core data, provide access and use only where platform service, and when the end user directly connected with the use effectuated opts in to such sharing with a consent in by the end user in respect of the products the sense of the Regulation (EU) 2016/679; or services offered by the relevant business user through the relevant core platform service, and when the end user opts in to such sharing with a consent in the sense of the Regulation (EU) 2016/679;
Or. en
Justification
This provision aims at promoting fairness and contestability by allowing business users to access and use key data relevant for improving their offers and relations with their customers, which are otherwise exclusively absorbed by the gatekeeper.
Amendment 65
Proposal for a regulation Article 6 – paragraph 1 – point k
Text proposed by the Commission Amendment
(k) apply fair and non-discriminatory (k) apply fair and non-discriminatory general conditions of access for business general conditions of access or conditions users to its software application store that are not less favourable than the designated pursuant to Article 3 of this conditions applied to its own services for Regulation. business users to its core platform services designated pursuant to Article 3 of this Regulation.
Or. en
PR\1231257EN.docx 47/82 PE692.792v01-00 EN Justification
This provision aims at promoting contestability by obliging the gatekeeper to provide its core platform services under FRAND terms and at least at conditions that are nor less favourable than the conditions that it applied yo its own core platform services.
Amendment 66
Proposal for a regulation Article 7 – paragraph 1
Text proposed by the Commission Amendment
1. The measures implemented by the 1. It shall be the responsibility of the gatekeeper to ensure compliance with the gatekeeper to ensure and demonstrate obligations laid down in Articles 5 and 6 compliance with the obligations laid down shall be effective in achieving the objective in Articles 5 and 6 by design. The of the relevant obligation. The gatekeeper measures implemented by the gatekeeper shall ensure that these measures are to ensure compliance with the obligations implemented in compliance with laid down in Articles 5 and 6 shall be Regulation (EU) 2016/679 and Directive effective in achieving the objective of the 2002/58/EC, and with legislation on cyber relevant obligation. The gatekeeper shall security, consumer protection and product ensure that these measures are safety. implemented in compliance with Regulation (EU) 2016/679 and Directive 2002/58/EC, and with legislation on cyber security, consumer protection and product safety.
Or. en
Amendment 67
Proposal for a regulation Article 7 – paragraph 2
Text proposed by the Commission Amendment
2. Where the Commission finds that 2. Where the Commission finds that the measures that the gatekeeper intends to the measures that the gatekeeper intends to implement pursuant to paragraph 1, or has implement pursuant to paragraph 1, or has implemented, do not ensure effective implemented, do not ensure effective compliance with the relevant obligations compliance with the relevant obligations laid down in Article 6, it may by decision laid down in Article 6, it may by decision specify the measures that the gatekeeper specify the measures that the gatekeeper concerned shall implement. The concerned shall implement. The
PE692.792v01-00 48/82 PR\1231257EN.docx EN Commission shall adopt such a decision Commission shall adopt such a decision within six months from the opening of within four months from the opening of proceedings pursuant to Article 18. proceedings pursuant to Article 18.
Or. en
Amendment 68
Proposal for a regulation Article 7 – paragraph 3 a (new)
Text proposed by the Commission Amendment
3a. 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 expected to implement to ensure effective compliance with the obligations of this Regulation. The Commission may decide to invite interested third parties to submit their observations within a time limit, which is fixed by the Commission in its publication. Publication shall have regard to the legitimate interest of undertakings in the protection of their business secrets.
Or. en
Amendment 69
Proposal for a regulation Article 7 – paragraph 4
Text proposed by the Commission Amendment
4. In view of adopting the decision 4. In view of adopting the decision under paragraph 2, the Commission shall under paragraph 2, the Commission shall communicate its preliminary findings communicate its preliminary findings within three months from the opening of within two months from the opening of the the proceedings. In the preliminary proceedings. In the preliminary findings, findings, the Commission shall explain the the Commission shall explain the measures measures it considers to take or it considers it considers to take or it considers that the that the provider of core platform services provider of core platform services
PR\1231257EN.docx 49/82 PE692.792v01-00 EN concerned should take in order to concerned should take in order to effectively address the preliminary effectively address the preliminary findings. findings.
Or. en
Amendment 70
Proposal for a regulation Article 7 – paragraph 7
Text proposed by the Commission Amendment
7. A gatekeeper may request the 7. A gatekeeper may request the opening of proceedings pursuant to Article opening of proceedings pursuant to Article 18 for the Commission to determine 18 for the Commission to determine whether the measures that the gatekeeper whether the measures that the gatekeeper intends to implement or has implemented intends to implement or has implemented under Article 6 are effective in achieving under Article 6 are effective in achieving the objective of the relevant obligation in the objective of the relevant obligation in the specific circumstances. A gatekeeper the specific circumstances. In its request, may, with its request, provide a reasoned the gatekeeper shall provide a reasoned submission to explain in particular why the submission to explain in particular why the measures that it intends to implement or measures that it intends to implement or has implemented are effective in achieving has implemented are effective in achieving the objective of the relevant obligation in the objective of the relevant obligation in the specific circumstances. the specific circumstances.
Or. en
Justification
The possibility of market testing the measures the gatekeeper is expected to implement to ensure effective compliance with the obligations of this Regulation should be foreseen.
Amendment 71
Proposal for a regulation Article 8 – paragraph 2
Text proposed by the Commission Amendment
2. Where the suspension is granted 2. Where the suspension is granted pursuant to paragraph 1, the Commission pursuant to paragraph 1, the Commission shall review its suspension decision every shall review its suspension decision every
PE692.792v01-00 50/82 PR\1231257EN.docx EN year. Following such a review the year. Following such a review the Commission shall either lift the suspension Commission shall either wholly or partly or decide that the conditions of paragraph 1 lift the suspension or decide that the continue to be met. conditions of paragraph 1 continue to be met.
Or. en
Amendment 72
Proposal for a regulation Article 8 – paragraph 3 – subparagraph 1
Text proposed by the Commission Amendment
The Commission may, acting on a In cases of urgency, the Commission may, reasoned request by a gatekeeper, acting on a reasoned request by a provisionally suspend the application of the gatekeeper, provisionally suspend the relevant obligation to one or more application of the relevant obligation to individual core platform services already one or more individual core platform prior to the decision pursuant to paragraph services already prior to the decision 1. pursuant to paragraph 1.
Or. en
Amendment 73
Proposal for a regulation Article 9 – title
Text proposed by the Commission Amendment
Exemption for overriding reasons of Exemption on grounds of public morality, public interest public health or public security
Or. en
Amendment 74
Proposal for a regulation Article 9 – paragraph 1 a (new)
PR\1231257EN.docx 51/82 PE692.792v01-00 EN Text proposed by the Commission Amendment
1a. Where the exemption is granted pursuant to paragraph 1, the Commission shall review its exemption decision every two years. Following such a review the Commission shall lift either wholly or partially the exemption or decide that the conditions of paragraph 1 continue to be met.
Or. en
Amendment 75
Proposal for a regulation Article 9 – paragraph 3 – subparagaph 1
Text proposed by the Commission Amendment
The Commission may, acting on a In cases of urgency, the Commission may, reasoned request by a gatekeeper or on its acting on a reasoned request by a own initiative, provisionally suspend the gatekeeper or on its own initiative, application of the relevant obligation to provisionally suspend the application of the one or more individual core platform relevant obligation to one or more services already prior to the decision individual core platform services already pursuant to paragraph 1. prior to the decision pursuant to paragraph 1.
Or. en
Amendment 76
Proposal for a regulation Article 11
Text proposed by the Commission Amendment
Article 11 Article 6a (new) Anti-circumvention Anti-circumvention 1. A gatekeeper shall ensure that the 1. A gatekeeper shall ensure that the obligations of Articles 5 and 6 are fully and obligations of Articles 5 and 6 are fully and effectively complied with. While the effectively complied with. While the
PE692.792v01-00 52/82 PR\1231257EN.docx EN obligations of Articles 5 and 6 apply in obligations of Articles 5 and 6 apply in respect of core platform services respect of core platform services designated pursuant to Article 3, their designated pursuant to Article 3, a implementation shall not be undermined gatekeeper, including any undertaking to by any behaviour of the undertaking to which the gatekeeper belongs, shall not which the gatekeeper belongs, regardless engage in any behaviour regardless of of whether this behaviour is of a whether this behaviour is of a contractual, contractual, commercial, technical or any commercial, technical or any other nature other nature. which, while formally, conceptually or technically distinct to a behaviour prohibited pursuant to Articles 5 and 6, is able in practice to have an equivalent object or effect. 2. Where consent for collecting and 2. Where consent for collecting and processing of personal data is required to processing of personal data is required to ensure compliance with this Regulation, a ensure compliance with this Regulation, a gatekeeper shall take the necessary steps to gatekeeper shall take the necessary steps to either enable business users to directly either enable business users to directly obtain the required consent to their obtain the required consent to their processing, where required under processing, where required under Regulation (EU) 2016/679 and Directive Regulation (EU) 2016/679 and Directive 2002/58/EC, or to comply with Union data 2002/58/EC, or to comply with Union data protection and privacy rules and principles protection and privacy rules and principles in other ways including by providing in other ways including by providing business users with duly anonymised data business users with duly anonymised data where appropriate. The gatekeeper shall where appropriate. not make the obtaining of this consent by the business user more burdensome than for its own services. 3. A gatekeeper shall not degrade the conditions or quality of any of the core platform services provided to business users or end users who avail themselves of the rights or choices laid down in Articles 5 and 6, or make the exercise of those rights or choices unduly difficult.
Or. en
Justification
The provision is moved after Article 6 as newArticle 6 a
PR\1231257EN.docx 53/82 PE692.792v01-00 EN Amendment 77
Proposal for a regulation Article 12 – paragraph 1 – subparagraph 1
Text proposed by the Commission Amendment
A gatekeeper shall inform the Commission A gatekeeper shall inform the Commission of any intended concentration within the and the competent national authorities of meaning of Article 3 of Regulation (EC) any intended concentration within the No 139/2004 involving another provider of meaning of Article 3 of Regulation (EC) core platform services or of any other No 139/2004 involving another provider of services provided in the digital sector core platform services or of any other irrespective of whether it is notifiable to a services provided in the digital sector Union competition authority under irrespective of whether it is notifiable to a Regulation (EC) No 139/2004 or to a Union competition authority under competent national competition authority Regulation (EC) No 139/2004 or to a under national merger rules. competent national competition authority under national merger rules.
Or. en
Justification
Member States should also be informed about concentrations involving gatekeepers and providers of other core platform services in case they wish to refer the assessment of those mergers to the Commission.
Amendment 78
Proposal for a regulation Article 14 – paragraph 3 a (new)
Text proposed by the Commission Amendment
3a. The Commission may also ask one or more competent national authority to support its market investigation.
Or. en
Amendment 79
Proposal for a regulation Article 15 – paragraph 2
PE692.792v01-00 54/82 PR\1231257EN.docx EN Text proposed by the Commission Amendment
2. In the course of a market 2. In the course of a market investigation pursuant to paragraph 1, the investigation pursuant to paragraph 1, the Commission shall endeavour to Commission shall endeavour to communicate its preliminary findings to communicate its preliminary findings to the provider of core platform services the provider of core platform services concerned within six months from the concerned within three months from the opening of the investigation. In the opening of the investigation. In the preliminary findings, the Commission shall preliminary findings, the Commission shall explain whether it considers, on a explain whether it considers, on a provisional basis, that the provider of core provisional basis, that the provider of core platform services should be designated as a platform services should be designated as a gatekeeper pursuant to Article 3(6). gatekeeper pursuant to Article 3(6).
Or. en
Amendment 80
Proposal for a regulation Article 15 – paragraph 3
Text proposed by the Commission Amendment
3. Where the provider of core deleted platform services satisfies the thresholds set out in Article 3(2), but has presented significantly substantiated arguments in accordance with Article 3(4), the Commission shall endeavour to conclude the market investigation within five months from the opening of the market investigation by a decision pursuant to paragraph 1. In that case the Commission shall endeavour to communicate its preliminary findings pursuant to paragraph 2 to the provider of core platform services within three months from the opening of the investigation.
Or. en
PR\1231257EN.docx 55/82 PE692.792v01-00 EN Amendment 81
Proposal for a regulation Article 16 – paragraph 1
Text proposed by the Commission Amendment
1. Where the market investigation 1. Where the market investigation shows that a gatekeeper has systematically shows that a gatekeeper has systematically infringed the obligations laid down in infringed the obligations laid down in Articles 5 and 6 and has further Articles 5 and 6, the Commission may by strengthened or extended its gatekeeper decision adopted in accordance with the position in relation to the characteristics advisory procedure referred to in Article under Article 3(1), the Commission may 32(4) impose on such gatekeeper any by decision adopted in accordance with the behavioural or structural remedies which advisory procedure referred to in Article are effective and necessary to ensure 32(4) impose on such gatekeeper any compliance with this Regulation. The behavioural or structural remedies which Commission shall conclude its are proportionate to the infringement investigation by adopting a decision within committed and necessary to ensure twelve months from the opening of the compliance with this Regulation. The market investigation. Commission shall conclude its investigation by adopting a decision within twelve months from the opening of the market investigation.
Or. en
Amendment 82
Proposal for a regulation Article 16 – paragraph 2
Text proposed by the Commission Amendment
2. The Commission may only impose deleted structural remedies pursuant to paragraph 1 either where there is no equally effective behavioural remedy or where any equally effective behavioural remedy would be more burdensome for the gatekeeper concerned than the structural remedy.
Or. en
PE692.792v01-00 56/82 PR\1231257EN.docx EN Amendment 83
Proposal for a regulation Article 16 – paragraph 3
Text proposed by the Commission Amendment
3. A gatekeeper shall be deemed to 3. A gatekeeper shall be deemed to have engaged in a systematic non- have engaged in a systematic non- compliance with the obligations laid down compliance with the obligations laid down in Articles 5 and 6, where the Commission in Articles 5 and 6, where the Commission has issued at least three non-compliance or has issued at least two non-compliance or fining decisions pursuant to Articles 25 and fining decisions pursuant to Articles 25 and 26 respectively against a gatekeeper in 26 respectively against a gatekeeper in relation to any of its core platform services relation to any of its core platform services within a period of five years prior to the within a period of five years prior to the adoption of the decision opening a market adoption of the decision opening a market investigation in view of the possible investigation in view of the possible adoption of a decision pursuant to this adoption of a decision pursuant to this Article. Article.
Or. en
Amendment 84
Proposal for a regulation Article 16 – paragraph 4
Text proposed by the Commission Amendment
4. A gatekeeper shall be deemed to deleted have further strengthened or extended its gatekeeper position in relation to the characteristics under Article 3(1), where its impact on the internal market has further increased, its importance as a gateway for business users to reach end users has further increased or the gatekeeper enjoys a further entrenched and durable position in its operations.
Or. en
PR\1231257EN.docx 57/82 PE692.792v01-00 EN Amendment 85
Proposal for a regulation Article 16 – paragraph 5
Text proposed by the Commission Amendment
5. The Commission shall 5. The Commission shall communicate its objections to the communicate its objections to the gatekeeper concerned within six months gatekeeper concerned within four months from the opening of the investigation. In its from the opening of the investigation. In its objections, the Commission shall explain objections, the Commission shall explain whether it preliminarily considers that the whether it preliminarily considers that the conditions of paragraph 1 are met and conditions of paragraph 1 are met and which remedy or remedies it preliminarily which remedy or remedies it preliminarily considers necessary and proportionate. considers effective and necessary.
Or. en
Amendment 86
Proposal for a regulation Article 16 – paragraph 6
Text proposed by the Commission Amendment
6. The Commission may at any time 6. The Commission may at any time during the market investigation extend its during the market investigation extend its duration where the extension is justified on duration where the extension is justified on objective grounds and proportionate. The objective grounds and proportionate. The extension may apply to the deadline by extension may apply to the deadline by which the Commission has to issue its which the Commission has to issue its objections, or to the deadline for adoption objections, or to the deadline for adoption of the final decision. The total duration of of the final decision. The total duration of any extension or extensions pursuant to any extension or extensions pursuant to this paragraph shall not exceed six this paragraph shall not exceed six months. months.The Commission may consider commitments pursuant to Article 23 and make them binding in its decision.
Or. en
PE692.792v01-00 58/82 PR\1231257EN.docx EN Amendment 87
Proposal for a regulation Article 17 – paragraph 1
Text proposed by the Commission Amendment
The Commission may conduct a market The Commission may conduct a market investigation with the purpose of investigation with the purpose of examining whether one or more services examining whether one or more services within the digital sector should be added to within the digital sector should be added to the list of core platform services or to the list of core platform services. It shall detect types of practices that may limit the issue a public report at the latest within 18 contestability of core platform services or months from the opening of the market may be unfair and which are not investigation. effectively addressed by this Regulation. It shall issue a public report at the latest within 24 months from the opening of the market investigation.
Or. en
Amendment 88
Proposal for a regulation Article 19 – paragraph 2
Text proposed by the Commission Amendment
2. The Commission may request 2. The Commission may request information from undertakings and information from undertakings and associations of undertakings pursuant to associations of undertakings pursuant to paragraph 1 also prior to opening a market paragraph 1 also prior to opening a market investigation pursuant to Article 14 or investigation pursuant to Article 14. proceedings pursuant to Article 18.
Or. en
Amendment 89
Proposal for a regulation Article 19 – paragraph 4
PR\1231257EN.docx 59/82 PE692.792v01-00 EN Text proposed by the Commission Amendment
4. Where the Commission requires 4. Where the Commission requires undertakings and associations of undertakings and associations of undertakings to supply information by undertakings to supply information by decision, it shall state the purpose of the decision, it shall state the purpose of the request, specify what information is request, specify what information is required and fix the time-limit within required and fix the time-limit within which it is to be provided. Where the which it is to be provided. Where the Commission requires undertakings to Commission requires undertakings to provide access to its data-bases and provide access to its data-bases and algorithms, it shall state the legal basis and algorithms, it shall state the purpose of the the purpose of the request, and fix the request, specify what information is time-limit within which it is to be required and fix the time-limit within provided. It shall also indicate the penalties which it is to be provided. It shall also provided for in Article 26 and indicate or indicate the penalties provided for in impose the periodic penalty payments Article 26 and indicate or impose the provided for in Article 27. It shall further periodic penalty payments provided for in indicate the right to have the decision Article 27. It shall further indicate the right reviewed by the Court of Justice. to have the decision reviewed by the Court of Justice.
Or. en
Amendment 90
Proposal for a regulation Article 23
Text proposed by the Commission Amendment
Article 23 deleted Commitments 1. If during proceedings under Articles 16 or 25 the gatekeeper concerned offers commitments for the relevant core platform services to ensure compliance with the obligations laid down in Articles 5 and 6, the Commission may by decision adopted in accordance with the advisory procedure referred to in Article 32(4) make those commitments binding on that gatekeeper and declare that there are no further grounds for action.
PE692.792v01-00 60/82 PR\1231257EN.docx EN 2. The Commission may, upon request or on its own initiative, reopen by decision the relevant proceedings, where: (a) there has been a material change in any of the facts on which the decision was based; (b) the gatekeeper concerned acts contrary to its commitments; (c) the decision was based on incomplete, incorrect or misleading information provided by the parties. 3. Should the Commission consider that the commitments submitted by the gatekeeper concerned cannot ensure effective compliance with the obligations laid down in Articles 5 and 6, it shall explain the reasons for not making those commitments binding in the decision concluding the relevant proceedings.
Or. en
Justification
Commitment decisions do not seem appropriate nor justified given the ex ante self-executing nature of the Regulation.
Amendment 91
Proposal for a regulation Article 25 – paragraph 1 – point e
Text proposed by the Commission Amendment
(e) commitments made legally binding deleted pursuant to Article 23.
Or. en
Amendment 92
Proposal for a regulation Article 26 – paragraph 1 – point a a (new)
PR\1231257EN.docx 61/82 PE692.792v01-00 EN Text proposed by the Commission Amendment
(aa) the obligation to notify information that is required pursuant to Article 12;
Or. en
Amendment 93
Proposal for a regulation Article 26 – paragraph 1 – point a b (new)
Text proposed by the Commission Amendment
(ab) the obligation to notify information that is required pursuant to Article 13 or supply incorrect, incomplete or misleading information;
Or. en
Amendment 94
Proposal for a regulation Article 26 – paragraph 2 – point b
Text proposed by the Commission Amendment
(b) fail to notify information that is deleted required pursuant to Article 12 or supply incorrect, incomplete or misleading information;
Or. en
Justification
Moved above, under Article 26 (1).
PE692.792v01-00 62/82 PR\1231257EN.docx EN Amendment 95
Proposal for a regulation Article 26 – paragraph 2 – point c
Text proposed by the Commission Amendment
(c) fail to submit the description that deleted is required pursuant to Article 13;
Or. en
Justification
Moved above, under Article 26 (1).
Amendment 96
Proposal for a regulation Article 27 – paragraph 2
Text proposed by the Commission Amendment
2. Where the undertakings have 2. Where the undertakings have satisfied the obligation which the periodic satisfied the obligation which the periodic penalty payment was intended to enforce, penalty payment was intended to enforce, the Commission may by decision adopted the Commission may by decision adopted in accordance with the advisory procedure in accordance with the advisory procedure referred to in Article 32(4) set the referred to in Article 32(4) set the definitive amount of the periodic penalty definitive amount of the periodic penalty payment at a figure lower than that which payment. would arise under the original decision.
Or. en
Amendment 97
Proposal for a regulation Article 28 – paragraph 1
Text proposed by the Commission Amendment
1. The powers conferred on the 1. The powers conferred on the Commission by Articles 26 and 27 shall be Commission by Articles 26 and 27 shall be subject to a three year limitation period. subject to a five year limitation period.
PR\1231257EN.docx 63/82 PE692.792v01-00 EN Or. en
Amendment 98
Proposal for a regulation Article 31 a (new)
Text proposed by the Commission Amendment
Article 31a European High-Level Group of Digital Regulators 1. The Commission shall establish a European High-Level Group of Digital Regulators in the form of an Expert Group, consisting of the representatives of competent authorities of all the Member States, the Commission, relevant Union bodies and other representatives of competent authorities in specific sectors including data protection and electronic communications. 2. The Group shall be composed of the head of the relevant competent authorities and shall be assisted by a secretariat provided by the Commission. 3. The work of the high-level group may be organised into Expert Working Groups building cross-regulator specialist teams that provide the Commission with high level of expertise.
Or. en
Justification
The nature of digital services means that different regulatory regimes will inevitably interlink and overlap. For this reason, it seems appropriate to create of a High Level Group of Digital Regulators, bringing together representatives of the competent authorities of all Member States, the Commission, as well as any relevant EU bodies and other representatives of competent authorities in specific sectors.
PE692.792v01-00 64/82 PR\1231257EN.docx EN Amendment 99
Proposal for a regulation Article 31 b (new)
Text proposed by the Commission Amendment
Article 31b 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 of developing a consistent regulatory approach and avoiding conflicting decisions; (b) to assist the Commission by means of advice, opinions, analysis and expertise in monitoring compliance with this Regulation; (c) to make recommendations to the Commission on the need to conduct market investigations under Articles 14, 15, Article 16 and 17; (d) to make recommendations to the Commission on the need to update the obligations of the Regulation under Articles 5 and 6; (e) to provide advice and expertise to the Commission in the preparation of legislative proposals and policy initiatives including under Article 38; (f) to provide advice and expertise to the Commission in the preparation of delegated acts; (g) where necessary, to provide advice and expertise in the early preparation of implementing acts, before submission to the committee in accordance with Regulation (EU) N°182/2011;
PR\1231257EN.docx 65/82 PE692.792v01-00 EN (h) to maintain a publicly accessible electronic register of gatekeeper designation decisions adopted by the Commission under Article 3; and (i) at the request of the Commission, to 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 on 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.
Or. en
Justification
The High Level Group should among, other things, facilitate cooperation and coordination between the Commission and Member States in their enforcement decisions, in the interest of a consistent regulatory approach and avoiding conflicting decisions.
Amendment 100
Proposal for a regulation Article 32 – paragraph 1 a (new)
Text proposed by the Commission Amendment
1a. The Advisory Committee should 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 entitled to appoint an additional representative from an authority with the relevant expertise for the issues discussed. This is without prejudice to the right of members of the Committee to be assisted by other experts from the Member States.
Or. en
PE692.792v01-00 66/82 PR\1231257EN.docx EN Amendment 101
Proposal for a regulation Article 36 – paragraph 1 – introductory part
Text proposed by the Commission Amendment
1. The Commission may adopt 1. The Commission may adopt implementing acts concerning: 3, 6, 12, 13, implementing acts concerning: 3, 5, 6, 12, 15, 16, 17, 20, 22, 23, 25 and 30 13, 15, 16, 17, 20, 22, 23, 25 and 30
Or. en
Amendment 102
Proposal for a regulation Article 36 – paragraph 1 – point a a (new)
Text proposed by the Commission Amendment
(aa) the form, content and other details on how information on price and remuneration are to be given, pursuant to Article 5(g);
Or. en
Amendment 103
Proposal for a regulation Article 36 – paragraph 1 – point a b (new)
Text proposed by the Commission Amendment
(ab) the form, content and other details on how choice is be provided and consent is to be given, pursuant to Article 5(a);
Or. en
PR\1231257EN.docx 67/82 PE692.792v01-00 EN Amendment 104
Proposal for a regulation Article 36 – paragraph 1 – point g a (new)
Text proposed by the Commission Amendment
(ga) the practical arrangements for the cooperation and coordination between the Commission and Member States provided for in Article 1(7). (Technical change. Wording moved from the AM relating to Article 36(20).
Or. en
Amendment 105
Proposal for a regulation Article 36 – paragraph 2
Text proposed by the Commission Amendment
2. the practical arrangements for the 2. Those implementing acts shall be cooperation and coordination between the adopted in accordance with the advisory Commission and Member States provided procedure referred to in Article 32(4). for in Article 1(7).Those implementing Before the adoption of any measures acts shall be adopted in accordance with pursuant to paragraph 1, the Commission the advisory procedure referred to in shall publish a draft thereof and invite all Article 32(4). Before the adoption of any interested parties to submit their comments measures pursuant to paragraph 1, the within the time limit it lays down, which Commission shall publish a draft thereof may not be less than one month. and invite all interested parties to submit their comments within the time limit it lays down, which may not be less than one month.
Or. en
Justification
Technical change; wording moved above. See AM relating to Article 36(1) point (g a)(new)
PE692.792v01-00 68/82 PR\1231257EN.docx EN Amendment 106
Proposal for a regulation Article 36 a (new)
Text proposed by the Commission Amendment
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, where appropriate, issue guidelines accompanying the obligations set out in those Articles . Where appropriate and necessary, the Commission may authorise the standardisation bodies to develop standards to facilitate the implementation of the obligations.
Or. en
Amendment 107
Proposal for a regulation Article 37 – paragraph 2
Text proposed by the Commission Amendment
2. The power to adopt delegated acts 2. The power to adopt delegated acts referred to in Articles 3(6) and 9(1) shall referred to in Articles 3(6) and 10 shall be be conferred on the Commission for a conferred on the Commission for a period period of five years from DD/MM/YYYY. of five years from DD/MM/YYYY. The The Commission shall draw up a report in Commission shall draw up a report in respect of the delegation of power not later respect of the delegation of power not later than nine months before the end of the than nine months before the end of the five-year period. The delegation of power five-year period. The delegation of power shall be tacitly extended for periods of an shall be tacitly extended for periods of an identical duration, unless the European identical duration, unless the European Parliament or the Council opposes such Parliament or the Council opposes such extension not later than three months extension not later than three months before the end of each period. before the end of each period.
Or. en
PR\1231257EN.docx 69/82 PE692.792v01-00 EN Justification
Thecnical change.
Amendment 108
Proposal for a regulation Article 37 – paragraph 3
Text proposed by the Commission Amendment
3. The delegation of power referred to 3. The delegation of power referred to in Articles 3(6) and 9(1) may be revoked at in Articles 3(5) and 10 may be revoked at any time by the European Parliament or by any time by the European Parliament or by the Council. A decision to revoke shall put the Council. A decision to revoke shall put an end to the delegation of the power an end to the delegation of the power specified in that decision. It shall take specified in that decision. It shall take effect the day following the publication of effect the day following the publication of the decision in the Official Journal of the the decision in the Official Journal of the European Union or at a later date specified European Union or at a later date specified therein. It shall not affect the validity of therein. It shall not affect the validity of any delegated acts already in force. any delegated acts already in force.
Or. en
Justification
Technical change.
Amendment 109
Proposal for a regulation Article 39 – paragraph 2 – subparagraph 1
Text proposed by the Commission Amendment
This Regulation shall apply from six This Regulation shall apply from ... [two months after its entry into force. months after its entry into force].
Or. en
PE692.792v01-00 70/82 PR\1231257EN.docx EN Amendment 110
Proposal for a regulation Annex I – title (new)
Text proposed by the Commission Amendment
Annex I List of indicators to be used by the providers of core platform services when measuring active monthly end users for the purposes of Article 3(1), point (b)
Or. en
Amendment 111
Proposal for a regulation Annex I – paragraph 1 – point a (new)
Text proposed by the Commission Amendment
(a) App stores - Number of users having downloaded at least one app and/or having made at least one in-app purchase via the app store provider or have inserted at least one query during the month
Or. en
Amendment 112
Proposal for a regulation Annex I – paragraph 1 – point b (new)
Text proposed by the Commission Amendment
(b) Online market places - Number of unique visitors, based on the number of IP addresses with active sessions that inserted at least one query - Number of unique end users that transacted in any way (including by
PR\1231257EN.docx 71/82 PE692.792v01-00 EN clicking on a link, inquiring about specific goods or services, etc.) with business users - Online search engines - Number of IP addresses with active sessions that inserted at least one query
Or. en
Amendment 113
Proposal for a regulation Annex I – paragraph 1 – point c (new)
Text proposed by the Commission Amendment
(c) Online social networking services - Number of users that used the service at least once in the month by clicking on, liking, querying or otherwise engaging with it
Or. en
Amendment 114
Proposal for a regulation Annex I – paragraph 1 – point d (new)
Text proposed by the Commission Amendment
(d) Video-sharing platform services - Number of IP addresses with active sessions that used the service at least once in the month - Number of unique site visitors playing a video
Or. en
PE692.792v01-00 72/82 PR\1231257EN.docx EN Amendment 115
Proposal for a regulation Annex I – paragraph 1 – point e (new)
Text proposed by the Commission Amendment
(e) Number-independent interpersonal communication services - Users with an account that sent a message at least once in the month - Number of unique users that sent or received a message
Or. en
Amendment 116
Proposal for a regulation Annex I – paragraph 1 – point f (new)
Text proposed by the Commission Amendment
(f) Operating systems - Number of monthly active devices (i.e. a device running on any version of the OS that is still active and which was used in any way at least once in that month) with a given autonomous operating system - Installed base of unique users
Or. en
Amendment 117
Proposal for a regulation Annex I – paragraph 1 – point g (new)
Text proposed by the Commission Amendment
(g) Cloud computing services
Or. en
PR\1231257EN.docx 73/82 PE692.792v01-00 EN Amendment 118
Proposal for a regulation Annex I – paragraph 1 – point h (new)
Text proposed by the Commission Amendment
(h) Online advertising services
Or. en
Amendment 119
Proposal for a regulation Annex I – paragraph 2 (new)
Text proposed by the Commission Amendment
2. List of indicators to be used by the providers of core platform services when measuring yearly active business users for the purposes of Article 3(1), point (b)
Or. en
Amendment 120
Proposal for a regulation Annex I – paragraph 2 – point a (new)
Text proposed by the Commission Amendment
(a) App stores - Number of app developers whose app has been downloaded or has offered at least one app for sale in a given year on app store
Or. en
PE692.792v01-00 74/82 PR\1231257EN.docx EN Amendment 121
Proposal for a regulation Annex I – paragraph 2 – point b (new)
Text proposed by the Commission Amendment
(b) Market places - Number of traders concluding at least one transaction on the CPS in a given year - Number of traders listing a new good/item on the CPS in a given year - Number of traders using any ‘paid ranking’ service on the CPS in a given year - Online search engines - Number of corporate website users indexed by the online search engine at any given point in a given year
Or. en
Amendment 122
Proposal for a regulation Annex I – paragraph 2 – point c (new)
Text proposed by the Commission Amendment
(c) Online social networking services - Number of businesses with an active page in the social network in a given year - Number of app developers integrating with the social network in a given year
Or. en
Amendment 123
Proposal for a regulation Annex I – paragraph 2 – point d (new)
PR\1231257EN.docx 75/82 PE692.792v01-00 EN Text proposed by the Commission Amendment
(d) Video-sharing platform services - Number of providers of content/publishers with at least one piece of content/video published per year - Number of professional users that engaged in any way with the CPS in a given year, including by subscribing end users of the same CPS, by using ‘paid ranking services’ of the CPS, by adding any new content or otherwise
Or. en
Amendment 124
Proposal for a regulation Annex I – paragraph 2 – point e (new)
Text proposed by the Commission Amendment
(e) Number-independent interpersonal communication services - Number of professional users that used any chat-like functionality to communicate directly with an end users user of an NI-ICS in a given year - Number of businesses with business accounts used at least once for communication with end users in a given year
Or. en
Amendment 125
Proposal for a regulation Annex I – paragraph 2 – point f (new)
PE692.792v01-00 76/82 PR\1231257EN.docx EN Text proposed by the Commission Amendment
(f) Operating systems - Number of professional users that called any of the OS APIs at least once in a given year
Or. en
Amendment 126
Proposal for a regulation Annex I – paragraph 2 – point g (new)
Text proposed by the Commission Amendment
(g) Cloud computing services - Number of professional users having contracted cloud services at any point in a given year
Or. en
Amendment 127
Proposal for a regulation Annex I – paragraph 2 – point h (new)
Text proposed by the Commission Amendment
(h) Online advertising services
Or. en
PR\1231257EN.docx 77/82 PE692.792v01-00 EN EXPLANATORY STATEMENT
1. Background
On 15 December 2020, the Commission submitted to the European Parliament and to the Council a proposal for a Regulation on contestable and fair markets in the digital sector (“Digital Markets Act”). The Digital Markets Act, together with the Digital Services Act, is part of the Commission’s European Digital Strategy, “Shaping Europe’s Digital Future”, which aims at reforming the European digital space, by setting a comprehensive set of new rules for all digital services, including social media, online market places, and other online platforms that operate in the European Union.
The Digital Markets Act proposal builds on the horizontal Platform to Business Regulation, and aims at ensuring a contestable and fair digital sector, with a view to promoting innovation, high quality of digital products and services, fair and competitive prices, as well as a high quality and choice for business and end users in the digital sector. The proposal is a response to IMCO’s legislative own initiative report that was adopted by the plenary on 20 October 2020 (2020/2018 (INL).
2. Draft Report
The Rapporteur fully supports the overall objectives of the proposed Regulation, namely to ensure the proper functioning of the internal market by promoting contestable and fair markets in the digital sector. The Rapporteur also supports the specific objectives of (i) addressing market failures to ensure contestable and competitive digital markets for increased innovation and consumer choice, (ii) addressing gatekeepers’ unfair conduct; and (iii) enhancing coherence and legal certainty to preserve the internal market.
The Rapporteur highlights the positive contribution made by the platform economy to the GDP and the European economy as a whole. He believes that the COVID-19 outbreak has forced many businesses in Europe to go online since, for quite some time, this was their only option to reach out to users and consumers. The Rapporteur believes that, in the long term, such a forced digital transition may have a positive impact in the Digital Single Market as more and more businesses in Europe realise that their markets extend beyond national boundaries.
In this context, the Rapporteur recalls that today, many large online platforms provide effective gateways for a large number of business users, to reach end users, throughout the Union and beyond. Online platforms have had a significant impact on the internal market by facilitating cross-border trade and by opening entirely new business opportunities to a large number of European companies. At the same time, the Rapporteur acknowledges that, due to their dimension and the characteristics of the digital economy, some of these platforms may also act as “gatekeepers” with the ability and the incentive to engage in unfair practices, thereby preventing other businesses to grow. Competition law enforcement in digital markets, though very important, has not been effective enough in dealing with all problems in these markets and has not been able to remedy, let alone prevent, harm to consumers.
For these reasons, the Rapporteur is convinced that this Regulation is a very timely proposal that should be adopted and enforced without delay. By setting clear rules on what companies
PE692.792v01-00 78/82 PR\1231257EN.docx EN with “gatekeeper” status are allowed to do and not to do in the European Union, this Regulation creates a level playing field for the digital economy that will hopefully be seized upon by many businesses within and outside Europe, to the benefit of European consumers.
In view of these considerations, the Rapporteur welcomes the proposal and suggests strengthening some elements of the proposed Regulation with the following main modifications, also because the resources of the European Commission will always be limited.
2.1 Definition and designation of gatekeepers
The Rapporteur believes that the DMA should be clearly targeted to those platforms that play an unquestionable role as gatekeepers due to their size and their impact on the internal market. To this end, the Rapporteur deems it appropriate to increase the quantitative thresholds and to add - as an additional condition for companies to be designated as gatekeepers under Article 3(2) of the Regulation - that they are providers of not only one but, at least, two core platform services. The provision of two or more core platform services is also an important indicator of the role of these companies as providers of ecosystems of services.
These changes should not preclude the Commission’s ability to designate as gatekeeper other providers of core platform services, following an assessment under Article 3(6). At the same time, such a thorough analysis should not be required (nor would it be justified) where companies meet the quantitative presumptions of Article 3(2).
The Rapporteur is of the opinion that the application of this Regulation should be fast and efficient. Companies are expected to cooperate but if they do not, the Commission should be able to designate a provider of core platform services as a gatekeeper based on the facts available. At the same time, legal predictability should be enhanced. To this end, the Rapporteur proposes a list of indicators to be added as an Annex to this Regulation, in order to enable providers of core platform services to know in advance how to establish the number of monthly active end-users and yearly active business users for the purposes of Article 3(2).
2.2 Obligations and prohibitions
The Rapporteur notes that a different clustering of the obligations and prohibitions could have brought added value to this Regulation. Nevertheless, the Rapporteur also sees merit in the segmentation proposed by the Commission, which identifies the obligations susceptible of being further specified, to the benefit of an effective application of the Regulation. The Rapporteur suggests that further changes should be made, clarifying that the obligations and prohibitions foreseen in the Regulation are self-executing, and that gatekeepers are expected to ensure compliance as soon as the Regulation enters into force. Furthermore, the Rapporteur is of the view that the regulatory dialogue should foresee the possibility for the Commission to market-test the measures the gatekeeper is expected to implement in order to ensure effective compliance with the Regulation. The Rapporteur proposes that the anti-circumvention prohibition should be strengthened to prohibit gatekeepers from engaging in any behaviour that would, in practice, have the same object or effect as the practices listed in Articles 5 and 6.
2.3 Market investigation and structural remedies
The Rapporteur submits that the Commission should be allowed to request national authorities
PR\1231257EN.docx 79/82 PE692.792v01-00 EN to support market investigations for the designation of gatekeepers. In addition, the imposition of structural remedies should be possible after the adoption by the Commission of two non- compliance decisions. The Rapporteur holds that such an approach is justified given the ex ante self-executing nature of the Regulation. For the same reason, the Rapporteur proposes that the adoption of commitment decisions should not be possible.
2.4 Governance, enforcement and regulatory consistency
The Rapporteur is of the opinion that the nature of digital services means that different regulatory regimes will inevitably interlink and overlap. For this reason, the Rapporteur proposes the creation of a High Level Group of Digital Regulators, bringing together representatives of the competent authorities of all Member States, the Commission, as well as any relevant EU bodies and other representatives of competent authorities in specific sectors. Such a High Level Group should facilitate cooperation and coordination between the Commission and Member States in their enforcement decisions, in the interest of a consistent regulatory approach. The High Level Group should also assist the Commission in monitoring compliance with this Regulation by enabling the pooling of insight, resources and expertise across Europe to the benefit of EU consumers and the internal market.
PE692.792v01-00 80/82 PR\1231257EN.docx EN ANNEX: List of entities or persons from whom the rapporteur has received input
The following list is drawn up on a purely voluntary basis under the exclusive responsibility of the rapporteur. The rapporteur has received input from the following entities or persons in the preparation of the [draft report / report, until the adoption thereof in committee]:
Entity and/or person Santander Allegro BBVA Google Vodafone Kelkoo Group CCIA Europe Apple Prof Marco Siragusa ACT APP Association ARD/ ZDF Springer Match group Apple Netflix Santander Criteo IBM BEUC Expedia Salseforce Amazon Yelp Google AT&T Spotify CCIA Europe EMMA/ENPA Snapchat Booking.com Eurocommerce Facebook Vaunet ECOSIA European Publishers Council
PR\1231257EN.docx 81/82 PE692.792v01-00 EN Bundesdruckerei Independent Retail Europe Reporters sans Frontières/Reporters without borders GSMA ETNO ITI – The Information Technology Industry Council DuckDuckGo BDZV/VDZ European Broadcasting Union (EBU) Handelsverband Deutschland (HDE) Eurochambres VZBV ZEV Prof. Heike Schweizer Prof. Ruprecht Podszun Prof. Christian Kersting Prof. Nicolas Petit Prof. Graef
PE692.792v01-00 82/82 PR\1231257EN.docx EN