Make your voice heard on the Digital Markets Act (DMA)

On 15 December 2020, the European Commission presented its proposal for a Digital Markets Act (DMA). In our online world, a small number of very large platforms have the power to impact our fundamental rights, society and democracy. The DMA presents a chance to break this power, to give people more rights and freedoms and start building a better internet, with more competition and more choice for users.

The DMA’s aim is to break the power of Big Tech and improve diversity and fair competition in digital markets and beyond. The DMA will set clear rules on what current gatekeeper companies must or can no longer do.

Please help us improve the proposal by contributing comments and suggestions on the Commission proposal. Your contribution will be valuable for our work and amendments in the EU Parliament. The discussion will close on Sunday, 23 May at midnight. Our teams remain at your disposal for any questions or further comments at joseph.mcnamee@europarl.europa.eu.

You can also comment on the proposed Digital Services Act, please click here.

Two ways to give feeback:

  1. You can leave a general remark concernig the text as whole here.
  2. You can amend single paragraphs using the plus icons. Furthermore, you can comment while reading (and don’t have to scroll to the very bottom). You can even discuss existing annotations.

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

on contestable and fair markets in the digital sector
(Digital Markets Act) 

(Text with EEA relevance) 

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, 

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 114 thereof, 

Having regard to the proposal from the European Commission, 

After transmission of the draft legislative act to the national parliaments, 

Having regard to the opinion of the European Economic and Social Committee, 

Having regard to the opinion of the Committee of the Regions, 

Acting in accordance with the ordinary legislative procedure, 

Whereas: 

  1. Digital services in general and online platforms in particular play an increasingly important role in the economy, in particular in the internal market, by providing new business opportunities in the Union and facilitating cross-border trading. 
  2. Core platform services, at the same time, feature a number of characteristics that can be exploited by their providers. These characteristics of core platform services include among others extreme scale economies, which often result from nearly zero marginal costs to add business users or end users. Other characteristics of core platform services are very strong network effects, an ability to connect many business users with many end users through the multi-sidedness of these services, a significant degree of dependence of both business users and end users, lock-in effects, a lack of multi-homing for the same purpose by end users, vertical integration, and data driven-advantages. All these characteristics combined with unfair conduct by providers of these services can have the effect of substantially undermining the contestability of the core platform services, as well as impacting the fairness of the commercial relationship between providers of such services and their business users and end users, leading to rapid and potentially far-reaching decreases in business users’ and end users’ choice in practice, and therefore can confer to the provider of those services the position of a so-called gatekeeper. 
  3. A small number of large providers of core platform services have emerged with considerable economic power. Typically, they feature an ability to connect many business users with many end users through their services which, in turn, allows them to leverage their advantages, such as their access to large amounts of data, from one area of their activity to new ones. Some of these providers exercise control over whole platform ecosystems in the digital economy and are structurally extremely difficult to challenge or contest by existing or new market operators, irrespective of how innovative and efficient these may be. Contestability is particularly reduced due to the existence of very high barriers to entry or exit, including high investment costs, which cannot, or not easily, be recuperated in case of exit, and absence of (or reduced access to) some key inputs in the digital economy, such as data. As a result, the likelihood increases that the underlying markets do not function well – or will soon fail to function well. 
  4. The combination of those features of gatekeepers is likely to lead in many cases to serious imbalances in bargaining power and, consequently, to unfair practices and conditions for business users as well as end users of core platform services provided by gatekeepers, to the detriment of prices, quality, choice and innovation therein. 
  5. It follows that the market processes are often incapable of ensuring fair economic outcomes with regard to core platform services. Whereas Articles 101 and 102 TFEU remain applicable to the conduct of gatekeepers, their scope is limited to certain instances of market power (e.g. dominance on specific markets) and of anti-competitive behaviour, while enforcement occurs ex post and requires an extensive investigation of often very complex facts on a case by case basis. Moreover, existing Union law does not address, or does not address effectively, the identified challenges to the well-functioning of the internal market posed by the conduct of gatekeepers, which are not necessarily dominant in competition-law terms. 
  6. Gatekeepers have a significant impact on the internal market, providing gateways for a large number of business users, to reach end users, everywhere in the Union and on different markets. The adverse impact of unfair practices on the internal market and particularly weak contestability of core platform services, including their negative societal and economic implications, have led national legislators and sectoral regulators to act. A number of national regulatory solutions have already been adopted or proposed to address unfair practices and the contestability of digital services or at least with regard to some of them. This has created a risk of divergent regulatory solutions and thereby fragmentation of the internal market, thus raising the risk of increased compliance costs due to different sets of national regulatory requirements. 
  7. Therefore, business users and end-users of core platform services provided by gatekeepers should be afforded appropriate regulatory safeguards throughout the Union against the unfair behaviour of gatekeepers in order to facilitate cross-border business within the Union and thereby improve the proper functioning of the internal market and to address existing or likely emerging fragmentation in the specific areas covered by this Regulation. Moreover, while gatekeepers tend to adopt global or at least pan-European business models and algorithmic structures, they can adopt, and in some cases have adopted, different business conditions and practices in different Member States, which is liable to create disparities between the competitive conditions for the users of core platform services provided by gatekeepers, to the detriment of integration within the internal market. 
  8. By approximating diverging national laws, obstacles to the freedom to provide and receive services, including retail services, within the internal market should be eliminated. A targeted set of harmonised mandatory rules should therefore be established at Union level to ensure contestable and fair digital markets featuring the presence of gatekeepers within the internal market. 
  9. A fragmentation of the internal market can only be effectively averted if Member States are prevented from applying national rules which are specific to the types of undertakings and services covered by this Regulation. At the same time, since this Regulation aims at complementing the enforcement of competition law, it should be specified that this Regulation is without prejudice to Articles 101 and 102 TFEU, to the corresponding national competition rules and to other national competition rules regarding unilateral behaviour that are based on an individualised assessment of market positions and behaviour, including its likely effects and the precise scope of the prohibited behaviour, and which provide for the possibility of undertakings to make efficiency and objective justification arguments for the behaviour in question. However, the application of the latter rules should not affect the obligations imposed on gatekeepers under this Regulation and their uniform and effective application in the internal market. 
  10. Articles 101 and 102 TFEU and the corresponding national competition rules concerning anticompetitive multilateral and unilateral conduct as well as merger control have as their objective the protection of undistorted competition on the market. This Regulation pursues an objective that is complementary to, but different from that of protecting undistorted competition on any given market, as defined in competition-law terms, which is to ensure that markets where gatekeepers are present are and remain contestable and fair, independently from the actual, likely or presumed effects of the conduct of a given gatekeeper covered by this Regulation on competition on a given market. This Regulation therefore aims at protecting a different legal interest from those rules and should be without prejudice to their application. 
  11. This Regulation should also complement, without prejudice to their application, the rules resulting from other acts of Union law regulating certain aspects of the provision of services covered by this Regulation, in particular Regulation (EU) 2019/1150 of the European Parliament and of the Council25, Regulation (EU) xx/xx/EU [DSA] of the European Parliament and of the Council26, Regulation (EU) 2016/679 of the European Parliament and of the Council, Directive (EU) 2019/790 of the European Parliament and of the Council, Directive (EU) 2015/2366 of the European Parliament and of the Council, and Directive (EU) 2010/13 of the European Parliament and of the Council, as well as national rules aimed at enforcing or, as the case may be, implementing that Union legislation. 
  12. Weak contestability and unfair practices in the digital sector are more frequent and pronounced for certain digital services than for others. This is the case in particular for widespread and commonly used digital services that mostly directly intermediate between business users and end users and where features such as extreme scale economies, very strong network effects, an ability to connect many business users with many end users through the multi-sidedness of these services, lock-in effects, a lack of multi-homing or vertical integration are the most prevalent. Often, there is only one or very few large providers of those digital services. These providers of core platform services have emerged most frequently as gatekeepers for business users and end users with far-reaching impacts, gaining the ability to easily set commercial conditions and terms in a unilateral and detrimental manner for their business users and end users. Accordingly, it is necessary to focus only on those digital services that are most broadly used by business users and end users and where, based on current market conditions, concerns about weak contestability and unfair practices by gatekeepers are more apparent and pressing from an internal market perspective. 
  13. In particular, online intermediation services, online search engines, operating systems, online social networking, video sharing platform services, number-independent interpersonal communication services, cloud computing services and online advertising services all have the capacity to affect a large number of end users and businesses alike, which entails a risk of unfair business practices. They therefore should be included in the definition of core platform services and fall into the scope of this Regulation. Online intermediation services may also be active in the field of financial services, and they may intermediate or be used to provide such services as listed non-exhaustively in Annex II to Directive (EU) 2015/1535 of the European Parliament and of the Council. In certain circumstances, the notion of end users should encompass users that are traditionally considered business users, but in a given situation do not use the core platform services to provide goods or services to other end users, such as for example businesses relying on cloud computing services for their own purposes. 
  14. A number of other ancillary services, such as identification or payment services and technical services which support the provision of payment services, may be provided by gatekeepers together with their core platform services. As gatekeepers frequently provide the portfolio of their services as part of an integrated ecosystem to which third-party providers of such ancillary services do not have access, at least not subject to equal conditions, and can link the access to the core platform service to take-up of one or more ancillary services, the gatekeepers are likely to have an increased ability and incentive to leverage their gatekeeper power from their core platform services to these ancillary services, to the detriment of choice and contestability of these services. 
  15. The fact that a digital service qualifies as a core platform service in light of its widespread and common use and its importance for connecting business users and end users does not as such give rise to sufficiently serious concerns of contestability and unfair practices. It is only when a core platform service constitutes an important gateway and is operated by a provider with a significant impact in the internal market and an entrenched and durable position, or by a provider that will foreseeably have such a position in the near future, that such concerns arise. Accordingly, the targeted set of harmonised rules laid down in this Regulation should apply only to undertakings designated on the basis of these three objective criteria, and they should only apply to those of their core platform services that individually constitute an important gateway for business users to reach end users. 
  16. In order to ensure the effective application of this Regulation to providers of core platform services which are most likely to satisfy these objective requirements, and where unfair conduct weakening contestability is most prevalent and impactful, the Commission should be able to directly designate as gatekeepers those providers of core platform services which meet certain quantitative thresholds. Such undertakings should in any event be subject to a fast designation process which should start upon the entry into force of this Regulation. 
  17. A very significant turnover in the Union and the provision of a core platform service in at least three Member States constitute compelling indications that the provider of a core platform service has a significant impact on the internal market. This is equally true where a provider of a core platform service in at least three Member States has a very significant market capitalisation or equivalent fair market value. Therefore, a provider of a core platform service should be presumed to have a significant impact on the internal market where it provides a core platform service in at least three Member States and where either its group turnover realised in the EEA is equal to or exceeds a specific, high threshold or the market capitalisation of the group is equal to or exceeds a certain high absolute value. For providers of core platform services that belong to undertakings that are not publicly listed, the equivalent fair market value above a certain high absolute value should be referred to. The Commission should use its power to adopt delegated acts to develop an objective methodology to calculate that value. A high EEA group turnover in conjunction with the threshold of users in the Union of core platform services reflects a relatively strong ability to monetise these users. A high market capitalisation relative to the same threshold number of users in the Union reflects a relatively significant potential to monetise these users in the near future. This monetisation potential in turn reflects in principle the gateway position of the undertakings concerned. Both indicators are in addition reflective of their financial capacity, including their ability to leverage their access to financial markets to reinforce their position. This may for example happen where this superior access is used to acquire other undertakings, which ability has in turn been shown to have potential negative effects on innovation. Market capitalisation can also be reflective of the expected future position and effect on the internal market of the providers concerned, notwithstanding a potentially relatively low current turnover. The market capitalisation value can be based on a level that reflects the average market capitalisation of the largest publicly listed undertakings in the Union over an appropriate period. 
  18. A sustained market capitalisation of the provider of core platform services at or above the threshold level over three or more years should be considered as strengthening the presumption that the provider of core platform services has a significant impact on the internal market. 
  19. There may be a number of factors concerning market capitalisation that would require an in-depth assessment in determining whether a provider of core platform services should be deemed to have a significant impact on the internal market. This may be the case where the market capitalisation of the provider of core platform services in preceding financial years was significantly lower than the average of the equity market, the volatility of its market capitalisation over the observed period was disproportionate to overall equity market volatility or its market capitalisation trajectory relative to market trends was inconsistent with a rapid and unidirectional growth. 
  20. A very high number of business users that depend on a core platform service to reach a very high number of monthly active end users allow the provider of that service to influence the operations of a substantial part of business users to its advantage and indicate in principle that the provider serves as an important gateway. The respective relevant levels for those numbers should be set representing a substantive percentage of the entire population of the Union when it comes to end users and of the entire population of businesses using platforms to determine the threshold for business users. 
  21. An entrenched and durable position in its operations or the foreseeability of achieving such a position future occurs notably where the contestability of the position of the provider of the core platform service is limited. This is likely to be the case where that provider has provided a core platform service in at least three Member States to a very high number of business users and end users during at least three years. 
  22. Such thresholds can be impacted by market and technical developments. The Commission should therefore be empowered to adopt delegated acts to specify the methodology for determining whether the quantitative thresholds are met, and to regularly adjust it to market and technological developments where necessary. This is particularly relevant in relation to the threshold referring to market capitalisation, which should be indexed in appropriate intervals. 
  23. Providers of core platform services which meet the quantitative thresholds but are able to present sufficiently substantiated arguments to demonstrate that, in the circumstances in which the relevant core platform service operates, they do not fulfil the objective requirements for a gatekeeper, should not be designated directly, but only subject to a further investigation. The burden of adducing evidence that the presumption deriving from the fulfilment of quantitative thresholds should not apply to a specific provider should be borne by that provider In its assessment, the Commission should take into account only the elements which directly relate to the requirements for constituting a gatekeeper, namely whether it is an important gateway which is operated by a provider with a significant impact in the internal market with an entrenched and durable position, either actual or foreseeable. Any justification on economic grounds seeking to demonstrate efficiencies deriving from a specific type of behaviour by the provider of core platform services should be 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. 
  24. Provision should also be made for the assessment of the gatekeeper role of providers of core platform services which do not satisfy all of the quantitative thresholds, in light of the overall objective requirements that they have a significant impact on the internal market, act as an important gateway for business users to reach end users and benefit from a durable and entrenched position in their operations or it is foreseeable that it will do so in the near future. 
  25. Such an assessment can only be done in light of a market investigation, while taking into account the quantitative thresholds. In its assessment the Commission should pursue the objectives of preserving and fostering the level of innovation, the quality of digital products and services, the degree to which prices are fair and competitive, and the degree to which quality or choice for business users and for end users is or remains high. Elements that are specific to the providers of core platform services concerned, such as extreme scale economies, very strong network effects, an ability to connect many business users with many end users through the multi-sidedness of these services, lock-in effects, a lack of multi-homing or vertical integration, can be taken into account. In addition, a very high market capitalisation, a very high ratio of equity value over profit or a very high turnover derived from end users of a single core platform service can point to the tipping of the market or leveraging potential of such providers. Together with market capitalisation, high growth rates, or decelerating growth rates read together with profitability growth, are examples of dynamic parameters that are particularly relevant to identifying such providers of core platform services that are foreseen to become entrenched. The Commission should be able to take a decision by drawing adverse inferences from facts available where the provider significantly obstructs the investigation by failing to comply with the investigative measures taken by the Commission. 
  26. A particular subset of rules should apply to those providers of core platform services that are foreseen to enjoy an entrenched and durable position in the near future. The same specific features of core platform services make them prone to tipping: once a service provider has obtained a certain advantage over rivals or potential challengers in terms of scale or intermediation power, its position may become unassailable and the situation may evolve to the point that it is likely to become durable and entrenched in the near future. Undertakings can try to induce this tipping and emerge as gatekeeper by using some of the unfair conditions and practices regulated in this Regulation. In such a situation, it appears appropriate to intervene before the market tips irreversibly. 
  27. However, such an early intervention should be limited to imposing only those obligations that are necessary and appropriate to ensure that the services in question remain contestable and allow to avoid the qualified risk of unfair conditions and practices. Obligations that prevent the provider of core platform services concerned from achieving an entrenched and durable position in its operations, such as those preventing unfair leveraging, and those that facilitate switching and multi-homing are more directly geared towards this purpose. To ensure proportionality, the Commission should moreover apply from that subset of obligations only those that are necessary and proportionate to achieve the objectives of this Regulation and should regularly review whether such obligations should be maintained, suppressed or adapted. 
  28. This should allow the Commission to intervene in time and effectively, while fully respecting the proportionality of the considered measures. It should also reassure actual or potential market participants about the fairness and contestability of the services concerned. 
  29. Designated gatekeepers should comply with the obligations laid down in this Regulation in respect of each of the core platform services listed in the relevant designation decision. The mandatory rules should apply taking into account the conglomerate position of gatekeepers, where applicable. Furthermore, implementing measures that the Commission may by decision impose on the gatekeeper following a regulatory dialogue should be designed in an effective manner, having regard to the features of core platform services as well as possible circumvention risks and in compliance with the principle of proportionality and the fundamental rights of the undertakings concerned as well as those of third parties. 
  30. The very rapidly changing and complex technological nature of core platform services requires a regular review of the status of gatekeepers, including those that are foreseen to enjoy a durable and entrenched position in their operations in the near future. To provide all of the market participants, including the gatekeepers, with the required certainty as to the applicable legal obligations, a time limit for such regular reviews is necessary. It is also important to conduct such reviews on a regular basis and at least every two years. 
  31. To ensure the effectiveness of the review of gatekeeper status as well as the possibility to adjust the list of core platform services provided by a gatekeeper, the gatekeepers should inform the Commission of all of their intended and concluded acquisitions of other providers of core platform services or any other services provided within the digital sector. Such information should not only serve the review process mentioned above, regarding the status of individual gatekeepers, but will also provide information that is crucial to monitoring broader contestability trends in the digital sector and can therefore be a useful factor for consideration in the context of the market investigations foreseen by this Regulation. 
  32. To safeguard the fairness and contestability of core platform services provided by gatekeepers, it is necessary to provide in a clear and unambiguous manner for a set of harmonised obligations with regard to those services. Such rules are needed to address the risk of harmful effects of unfair practices imposed by gatekeepers, to the benefit of the business environment in the services concerned, to the benefit of users and ultimately to the benefit of society as a whole. Given the fast-moving and dynamic nature of digital markets, and the substantial economic power of gatekeepers, it is important that these obligations are effectively applied without being circumvented. To that end, the obligations in question should apply to any practices by a gatekeeper, irrespective of its form and irrespective of whether it is of a contractual, commercial, technical or any other nature, insofar as a practice corresponds to the type of practice that is the subject of one of the obligations of this Regulation. 
  33. The obligations laid down in this Regulation are limited to what is necessary and justified to address the unfairness of the identified practices by gatekeepers and to ensure contestability in relation to core platform services provided by gatekeepers. Therefore, the obligations should correspond to those practices that are considered unfair by taking into account the features of the digital sector and where experience gained, for example in the enforcement of the EU competition rules, shows that they have a particularly negative direct impact on the business users and end users. In addition, it is necessary to provide for the possibility of a regulatory dialogue with gatekeepers to tailor those obligations that are likely to require specific implementing measures in order to ensure their effectiveness and proportionality. The obligations should only be updated after a thorough investigation on the nature and impact of specific practices that may be newly identified, following an in-depth investigation, as unfair or limiting contestability in the same manner as the unfair practices laid down in this Regulation while potentially escaping the scope of the current set of obligations. 
  34. The combination of these different mechanisms for imposing and adapting obligations should ensure that the obligations do not extend beyond observed unfair practices, while at the same time ensuring that new or evolving practices can be the subject of intervention where necessary and justified. 
  35. The obligations laid down in this Regulation are necessary to address identified public policy concerns, there being no alternative and less restrictive measures that would effectively achieve the same result, having regard to need to safeguard public order, protect privacy and fight fraudulent and deceptive commercial practices. 
  36. The conduct of combining end user data from different sources or signing in users to different services of gatekeepers gives them potential advantages in terms of accumulation of data, thereby raising barriers to entry. To ensure that gatekeepers do not unfairly undermine the contestability of core platform services, they should enable their end users to freely choose to opt-in to such business practices by offering a less personalised alternative. The possibility should cover all possible sources of personal data, including own services of the gatekeeper as well as third party websites, and should be proactively presented to the end user in an explicit, clear and straightforward manner. 
  37. Because of their position, gatekeepers might in certain cases restrict the ability of business users of their online intermediation services to offer their goods or services to end users under more favourable conditions, including price, through other online intermediation services. Such restrictions have a significant deterrent effect on the business users of gatekeepers in terms of their use of alternative online intermediation services, limiting inter-platform contestability, which in turn limits choice of alternative online intermediation channels for end users. To ensure that business users of online intermediation services of gatekeepers can freely choose alternative online intermediation services and differentiate the conditions under which they offer their products or services to their end users, it should not be accepted that gatekeepers limit business users from choosing to differentiate commercial conditions, including price. Such a restriction should apply to any measure with equivalent effect, such as for example increased commission rates or de-listing of the offers of business users. 
  38. To prevent further reinforcing their dependence on the core platform services of gatekeepers, the business users of these gatekeepers should be free in promoting and choosing the distribution channel they consider most appropriate to interact with any end users that these business users have already acquired through core platform services provided by the gatekeeper. Conversely, end users should also be free to choose offers of such business users and to enter into contracts with them either through core platform services of the gatekeeper, if applicable, or from a direct distribution channel of the business user or another indirect distribution channel such business user may use. This should apply to the promotion of offers and conclusion of contracts between business users and end users. Moreover, the ability of end users to freely acquire content, subscriptions, features or other items outside the core platform services of the gatekeeper should not be undermined or restricted. In particular, it should be avoided that gatekeepers restrict end users from access to and use of such services via a software application running on their core platform service. For example, subscribers to online content purchased outside a software application download or purchased from a software application store should not be prevented from accessing such online content on a software application on the gatekeeper’s core platform service simply because it was purchased outside such software application or software application store. 
  39. To safeguard a fair commercial environment and protect the contestability of the digital sector it is important to safeguard the right of business users to raise concerns about unfair behaviour by gatekeepers with any relevant administrative or other public authorities. For example, business users may want to complain about different types of unfair practices, such as discriminatory access conditions, unjustified closing of business user accounts or unclear grounds for product de-listings. Any practice that would in any way inhibit such a possibility of raising concerns or seeking available redress, for instance by means of confidentiality clauses in agreements or other written terms, should therefore be prohibited. This should be without prejudice to the right of business users and gatekeepers to lay down in their agreements the terms of use including the use of lawful complaints-handling mechanisms, including any use of alternative dispute resolution mechanisms or of the jurisdiction of specific courts in compliance with respective Union and national law This should therefore also be without prejudice to the role gatekeepers play in the fight against illegal content online. 
  40. Identification services are crucial for business users to conduct their business, as these can allow them not only to optimise services, to the extent allowed under Regulation (EU) 2016/679 and Directive 2002/58/EC of the European Parliament and of the Council, but also to inject trust in online transactions, in compliance with Union or national law. Gatekeepers should therefore not use their position as provider of core platform services to require their dependent business users to include any identification services provided by the gatekeeper itself as part of the provision of services or products by these business users to their end users, where other identification services are available to such business users. 
  41. Gatekeepers should not restrict the free choice of end users by technically preventing switching between or subscription to different software applications and services. Gatekeepers should therefore ensure a free choice irrespective of whether they are the manufacturer of any hardware by means of which such software applications or services are accessed and should not raise artificial technical barriers so as to make switching impossible or ineffective. The mere offering of a given product or service to end users, including by means of pre-installation, as well the improvement of end user offering, such as better prices or increased quality, would not in itself constitute a barrier to switching. 
  42. The conditions under which gatekeepers provide online advertising services to business users including both advertisers and publishers are often non-transparent and opaque. This opacity is partly linked to the practices of a few platforms, but is also due to the sheer complexity of modern day programmatic advertising. The sector is considered to have become more non-transparent after the introduction of new privacy legislation, and is expected to become even more opaque with the announced removal of third-party cookies. This often leads to a lack of information and knowledge for advertisers and publishers about the conditions of the advertising services they purchased and undermines their ability to switch to alternative providers of online advertising services. Furthermore, the costs of online advertising are likely to be higher than they would be in a fairer, more transparent and contestable platform environment. These higher costs are likely to be reflected in the prices that end users pay for many daily products and services relying on the use of online advertising. Transparency obligations should therefore require gatekeepers to provide advertisers and publishers to whom they supply online advertising services, when requested and to the extent possible, with information that allows both sides to understand the price paid for each of the different advertising services provided as part of the relevant advertising value chain. 
  43. A gatekeeper may in certain circumstances have a dual role as a provider of core platform services whereby it provides a core platform service to its business users, while also competing with those same business users in the provision of the same or similar services or products to the same end users. In these circumstances, a gatekeeper may take advantage of its dual role to use data, generated from transactions by its business users on the core platform, for the purpose of its own services that offer similar services to that of its business users. This may be the case, for instance, where a gatekeeper provides an online marketplace or app store to business users, and at the same time offer services as an online retailer or provider of application software against those business users. To prevent gatekeepers from unfairly benefitting from their dual role, it should be ensured that they refrain from using any aggregated or non-aggregated data, which may include anonymised and personal data that is not publicly available to offer similar services to those of their business users. This obligation should apply to the gatekeeper as a whole, including but not limited to its business unit that competes with the business users of a core platform service. 
  44. Business users may also purchase advertising services from a provider of core platform services for the purpose of providing goods and services to end users. In this case, it may occur that the data are not generated on the core platform service, but are provided to the core platform service by the business user or are generated based on its operations through the core platform service concerned. In certain instances, that core platform service providing advertising may have a dual role, as intermediary and as provider of advertising services. Accordingly, the obligation prohibiting a dual role gatekeeper from using data of business users should apply also with respect to the data that a core platform service has received from businesses for the purpose of providing advertising services related to that core platform service. 
  45. In relation to cloud computing services, this obligation should extend to data provided or generated by business users of the gatekeeper in the context of their use of the cloud computing service of the gatekeeper, or through its software application store that allows end users of cloud computing services access to software applications. This obligation should not affect the right of gatekeepers to use aggregated data for providing ancillary data analytics services, subject to compliance with Regulation 2016/679 and Directive 2002/58/EC as well as with the relevant obligations in this Regulation concerning ancillary services. 
  46. A gatekeeper may use different means to favour its own services or products on its core platform service, to the detriment of the same or similar services that end users could obtain through third parties. This may for instance be the case where certain software applications or services are pre-installed by a gatekeeper. To enable end user choice, gatekeepers should not prevent end users from un-installing any pre-installed software applications on its core platform service and thereby favour their own software applications. 
  47. The rules that the gatekeepers set for the distribution of software applications may in certain circumstances restrict the ability of end users to install and effectively use third party software applications or software application stores on operating systems or hardware of the relevant gatekeeper and restrict the ability of end users to access these software applications or software application stores outside the core platform services of that gatekeeper. Such restrictions may limit the ability of developers of software applications to use alternative distribution channels and the ability of end users to choose between different software applications from different distribution channels and should be prohibited as unfair and liable to weaken the contestability of core platform services. In order to ensure that third party software applications or software application stores do not endanger the integrity of the hardware or operating system provided by the gatekeeper the gatekeeper concerned may implement proportionate technical or contractual measures to achieve that goal if the gatekeeper demonstrates that such measures are necessary and justified and that there are no less restrictive means to safeguard the integrity of the hardware or operating system. 
  48. Gatekeepers are often vertically integrated and offer certain products or services to end users through their own core platform services, or through a business user over which they exercise control which frequently leads to conflicts of interest. This can include the situation whereby a gatekeeper offers its own online intermediation services through an online search engine. When offering those products or services on the core platform service, gatekeepers can reserve a better position to their own offering, in terms of ranking, as opposed to the products of third parties also operating on that core platform service. This can occur for instance with products or services, including other core platform services, which are ranked in the results communicated by online search engines, or which are partly or entirely embedded in online search engines results, groups of results specialised in a certain topic, displayed along with the results of an online search engine, which are considered or used by certain end users as a service distinct or additional to the online search engine. Other instances are those of software applications which are distributed through software application stores, or products or services that are given prominence and display in the newsfeed of a social network, or products or services ranked in search results or displayed on an online marketplace. In those circumstances, the gatekeeper is in a dual-role position as intermediary for third party providers and as direct provider of products or services of the gatekeeper. Consequently, these gatekeepers have the ability to undermine directly the contestability for those products or services on these core platform services, to the detriment of business users which are not controlled by the gatekeeper. 
  49. In such situations, the gatekeeper should not engage in any form of differentiated or preferential treatment in ranking on the core platform service, whether through legal, commercial or technical means, in favour of products or services it offers itself or through a business user which it controls. To ensure that this obligation is effective, it should also be ensured that the conditions that apply to such ranking are also generally fair. Ranking should in this context cover all forms of relative prominence, including display, rating, linking or voice results. To ensure that this obligation is effective and cannot be circumvented it should also apply to any measure that may have an equivalent effect to the differentiated or preferential treatment in ranking. The guidelines adopted pursuant to Article 5 of Regulation (EU) 2019/1150 should also facilitate the implementation and enforcement of this obligation.
  50. Gatekeepers should not restrict or prevent the free choice of end users by technically preventing switching between or subscription to different software applications and services. This would allow more providers to offer their services, thereby ultimately providing greater choice to the end user. Gatekeepers should ensure a free choice irrespective of whether they are the manufacturer of any hardware by means of which such software applications or services are accessed and shall not raise artificial technical barriers so as to make switching impossible or ineffective. The mere offering of a given product or service to consumers, including by means of pre-installation, as well as the improvement of the offering to end users, such as price reductions or increased quality, should not be construed as constituting a prohibited barrier to switching. 
  51. Gatekeepers can hamper the ability of end users to access online content and services including software applications. Therefore, rules should be established to ensure that the rights of end users to access an open internet are not compromised by the conduct of gatekeepers. Gatekeepers can also technically limit the ability of end users to effectively switch between different Internet access service providers, in particular through their control over operating systems or hardware. This distorts the level playing field for Internet access services and ultimately harms end users. It should therefore be ensured that gatekeepers do not unduly restrict end users in choosing their Internet access service provider. 
  52. Gatekeepers may also have a dual role as developers of operating systems and device manufacturers, including any technical functionality that such a device may have. For example, a gatekeeper that is a manufacturer of a device may restrict access to some of the functionalities in this device, such as near-field-communication technology and the software used to operate that technology, which may be required for the effective provision of an ancillary service by the gatekeeper as well as by any potential third party provider of such an ancillary service. Such access may equally be required by software applications related to the relevant ancillary services in order to effectively provide similar functionalities as those offered by gatekeepers. If such a dual role is used in a manner that prevents alternative providers of ancillary services or of software applications to have access under equal conditions to the same operating system, hardware or software features that are available or used in the provision by the gatekeeper of any ancillary services, this could significantly undermine innovation by providers of such ancillary services as well as choice for end users of such ancillary services. The gatekeepers should therefore be obliged to ensure access under equal conditions to, and interoperability with, the same operating system, hardware or software features that are available or used in the provision of any ancillary services by the gatekeeper. 
  53. The conditions under which gatekeepers provide online advertising services to business users including both advertisers and publishers are often non-transparent and opaque. This often leads to a lack of information for advertisers and publishers about the effect of a given ad. To further enhance fairness, transparency and contestability of online advertising services designated under this Regulation as well as those that are fully integrated with other core platform services of the same provider, the designated gatekeepers should therefore provide advertisers and publishers, when requested, with free of charge access to the performance measuring tools of the gatekeeper and the information necessary for advertisers, advertising agencies acting on behalf of a company placing advertising, as well as for publishers to carry out their own independent verification of the provision of the relevant online advertising services. 
  54. Gatekeepers benefit from access to vast amounts of data that they collect while providing the core platform services as well as other digital services. To ensure that gatekeepers do not undermine the contestability of core platform services as well as the innovation potential of the dynamic digital sector by restricting the ability of business users to effectively port their data, business users and end users should be granted effective and immediate access to the data they provided or generated in the context of their use of the relevant core platform services of the gatekeeper, in a structured, commonly used and machine-readable format. This should apply also to any other data at different levels of aggregation that may be necessary to effectively enable such portability. It should also be ensured that business users and end users can port that data in real time effectively, such as for example through high quality application programming interfaces. Facilitating switching or multi-homing should lead, in turn, to an increased choice for business users and end users and an incentive for gatekeepers and business users to innovate. 
  55. Business users that use large core platform services provided by gatekeepers and end users of such business users provide and generate a vast amount of data, including data inferred from such use. In order to ensure that business users have access to the relevant data thus generated, the gatekeeper should, upon their request, allow unhindered access, free of charge, to such data. Such access should also be given to third parties contracted by the business user, who are acting as processors of this data for the business user. Data provided or generated by the same business users and the same end users of these business users in the context of other services provided by the same gatekeeper may be concerned where this is inextricably linked to the relevant request. To this end, a gatekeeper should not use any contractual or other restrictions to prevent business users from accessing relevant data and should enable business users to obtain consent of their end users for such data access and retrieval, where such consent is required under Regulation (EU) 2016/679 and Directive 2002/58/EC. Gatekeepers should also facilitate access to these data in real time by means of appropriate technical measures, such as for example putting in place high quality application programming interfaces. 
  56. The value of online search engines to their respective business users and end users increases as the total number of such users increases. Providers of online search engines collect and store aggregated datasets containing information about what users searched for, and how they interacted with, the results that they were served. Providers of online search engine services collect these data from searches undertaken on their own online search engine service and, where applicable, searches undertaken on the platforms of their downstream commercial partners. Access by gatekeepers to such ranking, query, click and view data constitutes an important barrier to entry and expansion, which undermines the contestability of online search engine services. Gatekeepers should therefore be obliged to provide access, on fair, reasonable and non-discriminatory terms, to these ranking, query, click and view data in relation to free and paid search generated by consumers on online search engine services to other providers of such services, so that these third-party providers can optimise their services and contest the relevant core platform services. Such access should also be given to third parties contracted by a search engine provider, who are acting as processors of this data for that search engine. When providing access to its search data, a gatekeeper should ensure the protection of the personal data of end users by appropriate means, without substantially degrading the quality or usefulness of the data. 
  57. In particular gatekeepers which provide access to software application stores serve as an important gateway for business users that seek to reach end users. In view of the imbalance in bargaining power between those gatekeepers and business users of their software application stores, those gatekeepers should not be allowed to impose general conditions, including pricing conditions, that would be unfair or lead to unjustified differentiation. Pricing or other general access conditions should be considered unfair if they lead to an imbalance of rights and obligations imposed on business users or confer an advantage on the gatekeeper which is disproportionate to the service provided by the gatekeeper to business users or lead to a disadvantage for business users in providing the same or similar services as the gatekeeper. The following benchmarks can serve as a yardstick to determine the fairness of general access conditions: prices charged or conditions imposed for the same or similar services by other providers of software application stores; prices charged or conditions imposed by the provider of the software application store for different related or similar services or to different types of end users; prices charged or conditions imposed by the provider of the software application store for the same service in different geographic regions; prices charged or conditions imposed by the provider of the software application store for the same service the gatekeeper offers to itself. This obligation should not establish an access right and it should be without prejudice to the ability of providers of software application stores to take the required responsibility in the fight against illegal and unwanted content as set out in Regulation [Digital Services Act]. 
  58. To ensure the effectiveness of the obligations laid down by this Regulation, while also making certain that these obligations are limited to what is necessary to ensure contestability and tackling the harmful effects of the unfair behaviour by gatekeepers, it is important to clearly define and circumscribe them so as to allow the gatekeeper to immediately comply with them, in full respect of Regulation (EU) 2016/679 and Directive 2002/58/EC, consumer protection, cyber security and product safety. The gatekeepers should ensure the compliance with this Regulation by design. The necessary measures should therefore be as much as possible and where relevant integrated into the technological design used by the gatekeepers. However, it may in certain cases be appropriate for the Commission, following a dialogue with the gatekeeper concerned, to further specify some of the measures that the gatekeeper concerned should adopt in order to effectively comply with those obligations that are susceptible of being further specified. This possibility of a regulatory dialogue should facilitate compliance by gatekeepers and expedite the correct implementation of the Regulation. 
  59. As an additional element to ensure proportionality, gatekeepers should be given an opportunity to request the suspension, to the extent necessary, of a specific obligation in exceptional circumstances that lie beyond the control of the gatekeeper, such as for example an unforeseen external shock that has temporarily eliminated a significant part of end user demand for the relevant core platform service, where compliance with a specific obligation is shown by the gatekeeper to endanger the economic viability of the Union operations of the gatekeeper concerned. 
  60. In exceptional circumstances justified on the limited grounds of public morality, public health or public security, the Commission should be able to decide that the obligation concerned does not apply to a specific core platform service. Affecting these public interests can indicate that the cost to society as a whole of enforcing a certain obligation would in a certain exceptional case be too high and thus disproportionate. The regulatory dialogue to facilitate compliance with limited suspension and exemption possibilities should ensure the proportionality of the obligations in this Regulation without undermining the intended ex ante effects on fairness and contestability. 
  61. The data protection and privacy interests of end users are relevant to any assessment of potential negative effects of the observed practice of gatekeepers to collect and accumulate large amounts of data from end users. Ensuring an adequate level of transparency of profiling practices employed by gatekeepers facilitates contestability of core platform services, by putting external pressure on gatekeepers to prevent making deep consumer profiling the industry standard, given that potential entrants or start-up providers cannot access data to the same extent and depth, and at a similar scale. Enhanced transparency should allow other providers of core platform services to differentiate themselves better through the use of superior privacy guaranteeing facilities. To ensure a minimum level of effectiveness of this transparency obligation, gatekeepers should at least provide a description of the basis upon which profiling is performed, including whether personal data and data derived from user activity is relied on, the processing applied, the purpose for which the profile is prepared and eventually used, the impact of such profiling on the gatekeeper’s services, and the steps taken to enable end users to be aware of the relevant use of such profiling, as well as to seek their consent. 
  62. In order to ensure the full and lasting achievement of the objectives of this Regulation, the Commission should be able to assess whether a provider of core platform services should be designated as a gatekeeper without meeting the quantitative thresholds laid down in this Regulation; whether systematic non-compliance by a gatekeeper warrants imposing additional remedies; and whether the list of obligations addressing unfair practices by gatekeepers should be reviewed and additional practices that are similarly unfair and limiting the contestability of digital markets should be identified. Such assessment should be based on market investigations to be run in an appropriate timeframe, by using clear procedures and deadlines, in order to support the ex ante effect of this Regulation on contestability and fairness in the digital sector, and to provide the requisite degree of legal certainty. 
  63. Following a market investigation, an undertaking providing a core platform service could be found to fulfil all of the overarching qualitative criteria for being identified as a gatekeeper. It should then, in principle, comply with all of the relevant obligations laid down by this Regulation. However, for gatekeepers that have been designated by the Commission as likely to enjoy an entrenched and durable position in the near future, the Commission should only impose those obligations that are necessary and appropriate to prevent that the gatekeeper concerned achieves an entrenched and durable position in its operations. With respect to such emerging gatekeepers, the Commission should take into account that this status is in principle of a temporary nature, and it should therefore be decided at a given moment whether such a provider of core platform services should be subjected to the full set of gatekeeper obligations because it has acquired an entrenched and durable position, or conditions for designation are ultimately not met and therefore all previously imposed obligations should be waived. 
  64. The Commission should investigate and assess whether additional behavioural, or, where appropriate, structural remedies are justified, in order to ensure that the gatekeeper cannot frustrate the objectives of this Regulation by systematic non-compliance with one or several of the obligations laid down in this Regulation, which has further strengthened its gatekeeper position. This would be the case if the gatekeeper’s size in the internal market has further increased, economic dependency of business users and end users on the gatekeeper’s core platform services has further strengthened as their number has further increased and the gatekeeper benefits from increased entrenchment of its position. The Commission should therefore in such cases have the power to impose any remedy, whether behavioural or structural, having due regard to the principle of proportionality. Structural remedies, such as legal, functional or structural separation, including the divestiture of a business, or parts of it, should only be imposed either where there is no equally effective behavioural remedy or where any equally effective behavioural remedy would be more burdensome for the undertaking concerned than the structural remedy. Changes to the structure of an undertaking as it existed before the systematic non-compliance was established would only be proportionate where there is a substantial risk that this systematic non-compliance results from the very structure of the undertaking concerned. 
  65. The services and practices in core platform services and markets in which these intervene can change quickly and to a significant extent. To ensure that this Regulation remains up to date and constitutes an effective and holistic regulatory response to the problems posed by gatekeepers, it is important to provide for a regular review of the lists of core platform services as well as of the obligations provided for in this Regulation. This is particularly important to ensure that behaviour that may limit the contestability of core platform services or is unfair is identified. While it is important to conduct a review on a regular basis, given the dynamically changing nature of the digital sector, in order to ensure legal certainty as to the regulatory conditions, any reviews should be conducted within a reasonable and appropriate time-frame. Market investigations should also ensure that the Commission has a solid evidentiary basis on which it can assess whether it should propose to amend this Regulation in order to expand, or further detail, the lists of core platform services. They should equally ensure that the Commission has a solid evidentiary basis on which it can assess whether it should propose to amend the obligations laid down in this Regulation or whether it should adopt a delegated act updating such obligations. 
  66. In the event that gatekeepers engage in behaviour that is unfair or that limits the contestability of the core platform services that are already designated under this Regulation but without these behaviours being explicitly covered by the obligations, the Commission should be able to update this Regulation through delegated acts. Such updates by way of delegated act should be subject to the same investigatory standard and therefore following a market investigation. The Commission should also apply a predefined standard in identifying such behaviours. This legal standard should ensure that the type of obligations that gatekeepers may at any time face under this Regulation are sufficiently predictable.
  67. Where, in the course of a 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. 
  68. In order to ensure effective implementation and compliance with this Regulation, the Commission should have strong investigative and enforcement powers, to allow it to investigate, enforce and monitor the rules laid down in this Regulation, while at the same time ensuring the respect for the fundamental right to be heard and to have access to the file in the context of the enforcement proceedings. The Commission should dispose of these investigative powers also for the purpose of carrying out market investigations for the purpose of updating and reviewing this Regulation. 
  69. The Commission should be empowered to request information necessary for the purpose of this Regulation, throughout the Union. In particular, the Commission should have access to any relevant documents, data, database, algorithm and information necessary to open and conduct investigations and to monitor the compliance with the obligations laid down in this Regulation, irrespective of who possesses the documents, data or information in question, and regardless of their form or format, their storage medium, or the place where they are stored. 
  70. The Commission should be able to directly request that undertakings or association of undertakings provide any relevant evidence, data and information. In addition, the Commission should be able to request any relevant information from any public authority, body or agency within the Member State, or from any natural person or legal person for the purpose of this Regulation. When complying with a decision of the Commission, undertakings are obliged to answer factual questions and to provide documents. 
  71. The Commission should also be empowered to undertake onsite inspections and to interview any persons who may be in possession of useful information and to record the statements made. 
  72. The Commission should be able to take the necessary actions to monitor the effective implementation and compliance with the obligations laid down in this Regulation. Such actions should include the ability of the Commission to appoint independent external experts, such as and auditors to assist the Commission in this process, including where applicable from competent independent authorities, such as data or consumer protection authorities. 
  73. Compliance with the obligations imposed under this Regulation should be enforceable by means of fines and periodic penalty payments. To that end, appropriate levels of fines and periodic penalty payments should also be laid down for non-compliance with the obligations and breach of the procedural rules subject to appropriate limitation periods. The Court of Justice should have unlimited jurisdiction in respect of fines and penalty payments. 
  74. In order to ensure effective recovery of fines imposed on associations of undertakings for infringements that they have committed, it is necessary to lay down the conditions on which the Commission may require payment of the fine from the members of the association where the association is not solvent. 
  75. In the context of proceedings carried out under this Regulation, the undertakings concerned should be accorded the right to be heard by the Commission and the decisions taken should be widely publicised. While ensuring the rights to good administration and the rights of defence of the undertakings concerned, in particular, the right of access to the file and the right to be heard, it is essential that confidential information be protected. Furthermore, while respecting the confidentiality of the information, the Commission should ensure that any information relied on for the purpose of the decision is disclosed to an extent that allows the addressee of the decision to understand the facts and considerations that led up to the decision. Finally, under certain conditions certain business records, such as communication between lawyers and their clients, may be considered confidential if the relevant conditions are met. 
  76. In order to ensure uniform conditions for the implementation of Articles 3, 6, 12, 13, 15, 16, 17, 20, 22, 23, 25 and 30, implementing powers should be conferred on the Commission. Those powers should be exercised in accordance with Regulation (EU) No 182//2011 of the European Parliament and of the Council34. 
  77. The advisory committee established in accordance with Regulation (EU) No 182//2011 should also deliver opinions on certain individual decisions of the Commission issued under this Regulation. In order to ensure contestable and fair markets in the digital sector across the Union where gatekeepers are present, the power to adopt acts in accordance with Article 290 of the Treaty should be delegated to the Commission to supplement this Regulation. In particular, delegated acts should be adopted in respect of the methodology for determining the quantitative thresholds for designation of gatekeepers under this Regulation and in respect of the update of the obligations laid down in this Regulation where, based on a market investigation the Commission has identified the need for updating the obligations addressing practices that limit the contestability of core platform services or are unfair. It is of particular importance that the Commission carries out appropriate consultations and that those consultations be conducted in accordance with the principles laid down in the Interinstitutional Agreement on Better Law-Making of 13 April 201635. In particular, to ensure equal participation in the preparation of delegated acts, the European Parliament and the Council receive all documents at the same time as Member States’ experts, and their experts systematically have access to meetings of Commission expert groups dealing with the preparation of delegated acts. 
  78. The Commission should periodically evaluate this Regulation and closely monitor its effects on the contestability and fairness of commercial relationships in the online platform economy, in particular with a view to determining the need for amendments in light of relevant technological or commercial developments. This evaluation should include the regular review of the list of core platform services and the obligations addressed to gatekeepers as well as enforcement of these, in view of ensuring that digital markets across the Union are contestable and fair. In order to obtain a broad view of developments in the sector, the evaluation should take into account the experiences of Member States and relevant stakeholders. The Commission may in this regard also consider the opinions and reports presented to it by the Observatory on the Online Platform Economy that was first established by Commission Decision C(2018)2393 of 26 April 2018. Following the evaluation, the Commission should take appropriate measures. The Commission should to maintain a high level of protection and respect for the common EU rights and values, particularly equality and non-discrimination, as an objective when conducting the assessments and reviews of the practices and obligations provided in this Regulation. 
  79. The objective of this Regulation is to ensure a contestable and fair digital sector in general and core platform services in particular, 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 end users in the digital sector. This cannot be sufficiently achieved by the Member States, but can only, by reason of the business model and operations of the gatekeepers and the scale and effects of their operations, be fully achieved at Union level. The Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve that objective. 

This Regulation respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union, in particular Articles 16, 47 and 50 thereof. Accordingly, this Regulation should be interpreted and applied with respect to those rights and principles

HAVE ADOPTED THIS REGULATION: 

Chapter I 

Subject matter, scope and definitions 

Article 1
Subject-matter and scope 
  1. This Regulation lays down harmonised rules ensuring contestable and fair markets in the digital sector across the Union where gatekeepers are present. 
  2. This Regulation shall apply to core platform services provided or offered by gatekeepers to business users established in the Union or end users established or located in the Union, irrespective of the place of establishment or residence of the gatekeepers and irrespective of the law otherwise applicable to the provision of service. 
  3. This Regulation shall not apply to markets: 
    1. related to electronic communications networks as defined in point (1) of Article 2 of Directive (EU) 2018/1972 of the European Parliament and of the Council; 
    2. related to electronic communications services as defined in point (4) of Article 2 of Directive (EU) 2018/1972 other than those related to interpersonal communication services as defined in point (4)(b) of Article 2 of that Directive. 
  4. With regard to interpersonal communication services this Regulation is without prejudice to the powers and tasks granted to the national regulatory and other competent authorities by virtue of Article 61 of Directive (EU) 2018/1972. 
  5. Member States shall not impose on gatekeepers further obligations by way of laws, regulations or administrative action for the purpose of ensuring contestable and fair markets. This is without prejudice to rules pursuing other legitimate public interests, in compliance with Union law. In particular, nothing in this Regulation precludes Member States from imposing obligations, which are compatible with Union law, on undertakings, including providers of core platform services where these obligations are unrelated to the relevant undertakings having a status of gatekeeper within the meaning of this Regulation in order to protect consumers or to fight against acts of unfair competition. 
  6. This Regulation is without prejudice to the application of Articles 101 and 102 TFEU. It is also without prejudice to the application of: national rules prohibiting anticompetitive agreements, decisions by associations of undertakings, concerted practices and abuses of dominant positions; national competition rules prohibiting other forms of unilateral conduct insofar as they are applied to undertakings other than gatekeepers or amount to imposing additional obligations on gatekeepers; Council Regulation (EC) No 139/200437 and national rules concerning merger control; Regulation (EU) 2019/1150 and Regulation (EU) …./.. of the European Parliament and of the Council. 
  7. National authorities shall not take decisions which would run counter to a decision adopted by the Commission under this Regulation. The Commission and Member States shall work in close cooperation and coordination in their enforcement actions. 

Article 2
Definitions 

For the purposes of this Regulation, the following definitions apply: 

  1. ‘Gatekeeper’ means a provider of core platform services designated pursuant to Article 3; 
  2. ‘Core platform service’ means any of the following: 
    1. online intermediation services; 
    2. online search engines; 
    3. online social networking services; 
    4. video-sharing platform services; 
    5. number-independent interpersonal communication services; 
    6. operating systems; 
    7. cloud computing services; 
    8. advertising services, including any advertising networks, advertising exchanges and any other advertising intermediation services, provided by a provider of any of the core platform services listed in points (a) to (g); 
  3. ‘Information society service’ means any service within the meaning of point (b) of Article 1(1) of Directive (EU) 2015/1535; 
  4. ‘Digital sector’ means the sector of products and services provided by means of or through information society services; 
  5. ‘Online intermediation services’ means services as defined in point 2 of Article 2 of Regulation (EU) 2019/1150; 
  6. ‘Online search engine’ means a digital service as defined in point 5 of Article 2 of Regulation (EU) 2019/1150; 
  7. ‘Online social networking service’ means a platform that enables end users to connect, share, discover and communicate with each other across multiple devices and, in particular, via chats, posts, videos and recommendations; 
  8. ‘Video-sharing platform service’ means a service as defined in point (aa) of Article 1(1) of Directive (EU) 2010/1339; 
  9. ‘Number-independent interpersonal communications service’ means a service as defined in point 7 of Article 2 of Directive (EU) 2018/1972; 
  10. ‘Operating system’ means a system software which controls the basic functions of the hardware or software and enables software applications to run on it; 
  11. ‘Cloud computing services’ means a digital service as defined in point 19 of Article 4 of Directive (EU) 2016/1148 of the European Parliament and of the Council; 
  12. ‘Software application stores’ means a type of online intermediation services, which is focused on software applications as the intermediated product or service; 
  13. ‘Software application’ means any digital product or service that runs on an operating system; 
  14. ‘Ancillary service’ means services provided in the context of or together with core platform services, including payment services as defined in point 3 of Article 4 and technical services which support the provision of payment services as defined in Article 3(j) of Directive (EU) 2015/2366, fulfilment, identification or advertising services; 
  15. ‘Identification service’ means a type of ancillary services that enables any type of verification of the identity of end users or business users, regardless of the technology used; 
  16. ‘End user’ means any natural or legal person using core platform services other than as a business user; 
  17. ‘Business user’ means any natural or legal person acting in a commercial or professional capacity using core platform services for the purpose of or in the course of providing goods or services to end users; 
  18. ‘Ranking’ means the relative prominence given to goods or services offered through online intermediation services or online social networking services, or the relevance given to search results by online search engines, as presented, organised or communicated by the providers of online intermediation services or of online social networking services or by providers of online search engines, respectively, whatever the technological means used for such presentation, organisation or communication; 
  19. ‘Data’ means any digital representation of acts, facts or information and any compilation of such acts, facts or information, including in the form of sound, visual or audiovisual recording; 
  20. ‘Personal data’ means any information as defined in point 1 of Article 4 of Regulation (EU) 2016/679; 
  21. ‘Non-personal data’ means data other than personal data as defined in point 1 of Article 4 of Regulation (EU) 2016/679; 
  22. ‘Undertaking’ means all linked enterprises or connected undertakings that form a group through the direct or indirect control of an enterprise or undertaking by another and that are engaged in an economic activity, regardless of their legal status and the way in which they are financed; 
  23. ‘Control’ means the possibility of exercising decisive influence on an undertaking, as understood in Regulation (EU) No 139/2004. 

Chapter II 

Gatekeepers 

Article 3
Designation of gatekeepers 
  1. A provider of core platform services shall be designated as gatekeeper if: 
    1. it has a significant impact on the internal market; 
    2. it operates a core platform service which serves as an important gateway for business users to reach end users; and
    3. it enjoys an entrenched and durable position in its operations or it is foreseeable that it will enjoy such a position in the near future. 
  2. A provider of core platform services shall be presumed to satisfy: 
    1. the requirement in paragraph 1 point (a) where the undertaking to which it belongs achieves an annual EEA turnover equal to or above EUR 6.5 billion in the last three financial years, or where the average market capitalisation or the equivalent fair market value of the undertaking to which it belongs amounted to at least EUR 65 billion in the last financial year, and it provides a core platform service in at least three Member States; 
    2. the requirement in paragraph 1 point (b) where it provides a core platform service that has more than 45 million monthly active end users established or located in the Union and more than 10 000 yearly active business users established in the Union in the last financial year; 
      for the purpose of the first subparagraph, monthly active end users shall refer to the average number of monthly active end users throughout the largest part of the last financial year; 
    3. the requirement in paragraph 1 point (c) where the thresholds in point (b) were met in each of the last three financial years. 
  3. Where a provider of core platform services meets all the thresholds in paragraph 2, it shall notify the Commission thereof within three months after those thresholds are satisfied and provide it with the relevant information identified in paragraph 2.. That notification shall include the relevant information identified in paragraph 2 for each of the core platform services of the provider that meets the thresholds in paragraph 2 point (b). The notification shall be updated whenever other core platform services individually meet the thresholds in paragraph 2 point (b). 
  • A failure by a relevant provider of core platform services to notify the required information pursuant to this paragraph shall not prevent the Commission from designating these providers as gatekeepers pursuant to paragraph 4 at any time. 
  1. The Commission shall, without undue delay and at the latest 60 days after receiving the complete information referred to in paragraph 3, designate the provider of core platform services that meets all the thresholds of paragraph 2 as a gatekeeper, unless that provider, with its notification, presents sufficiently substantiated arguments to demonstrate that, in the circumstances in which the relevant core platform service operates, and taking into account the elements listed in paragraph 6, the provider does not satisfy the requirements of paragraph 1. 
  • Where the gatekeeper presents such sufficiently substantiated arguments to demonstrate that it does not satisfy the requirements of paragraph 1, the Commission shall apply paragraph 6 to assess whether the criteria in paragraph 1 are met. 
  1. The Commission is empowered to adopt delegated acts in accordance with Article 37 to specify the methodology for determining whether the quantitative thresholds laid down in paragraph 2 are met, and to regularly adjust it to market and technological developments where necessary, in particular as regards the threshold in paragraph 2, point (a). 
  2. The Commission may identify as a gatekeeper, in accordance with the procedure laid down in Article 15, any provider of core platform services that meets each of the requirements of paragraph 1, but does not satisfy each of the thresholds of paragraph 2, or has presented sufficiently substantiated arguments in accordance with paragraph 4. 

    For that purpose, the Commission shall take into account the following elements: 
    1. the size, including turnover and market capitalisation, operations and position of the provider of core platform services; 
    2. the number of business users depending on the core platform service to reach end users and the number of end users; 
    3. entry barriers derived from network effects and data driven advantages, in particular in relation to the provider’s access to and collection of personal and non-personal data or analytics capabilities;
    4. scale and scope effects the provider benefits from, including with regard to data; 
    5. business user or end user lock-in; 
    6. other structural market characteristics. 
  • In conducting its assessment, the Commission shall take into account foreseeable developments of these elements. 
  • Where the provider of a core platform service that satisfies the quantitative thresholds of paragraph 2 fails to comply with the investigative measures ordered by the Commission in a significant manner and the failure persists after the provider has been invited to comply within a reasonable time-limit and to submit observations, the Commission shall be entitled to designate that provider as a gatekeeper. 
  • Where the provider of a core platform service that does not satisfy the quantitative thresholds of paragraph 2 fails to comply with the investigative measures ordered by the Commission in a significant manner and the failure persists after the provider has been invited to comply within a reasonable time-limit and to submit observations, the Commission shall be entitled to designate that provider as a gatekeeper based on facts available. 
  1. For each gatekeeper identified pursuant to paragraph 4 or paragraph 6, the Commission shall identify the relevant undertaking to which it belongs and list the relevant core platform services that are provided within that same undertaking and which individually serve as an important gateway for business users to reach end users as referred to in paragraph 1(b). 
  2. The gatekeeper shall comply with the obligations laid down in Articles 5 and 6 within six months after a core platform service has been included in the list pursuant to paragraph 7 of this Article. 

Article 4
Review of the status of gatekeepers 
  1. The Commission may upon request or its own initiative reconsider, amend or repeal at any moment a decision adopted pursuant to Article 3 for one of the following reasons: 
    1. there has been a substantial change in any of the facts on which the decision was based; 
    2. the decision was based on incomplete, incorrect or misleading information provided by the undertakings. 
  2. The Commission shall regularly, and at least every 2 years, review whether the designated gatekeepers continue to satisfy the requirements laid down in Article 3(1), or whether new providers of core platform services satisfy those requirements. The regular review shall also examine whether the list of affected core platform services of the gatekeeper needs to be adjusted. 
  • Where the Commission, on the basis of that review pursuant to the first subparagraph, finds that the facts on which the designation of the providers of core platform services as gatekeepers was based, have changed, it shall adopt a corresponding decision.
  1. The Commission shall publish and update the list of gatekeepers and the list of the core platform services for which they need to comply with the obligations laid down in Articles 5 and 6 on an on-going basis. 

Chapter III 

Practices of gatekeepers that limit contestability or are unfair 

Article 5
Obligations for gatekeepers 

In respect of each of its core platform services identified pursuant to Article 3(7), a gatekeeper shall: 

  • refrain from combining personal data sourced from these core platform services with personal data from any other services offered by the gatekeeper or with personal data from third-party services, and from signing in end users to other services of the gatekeeper in order to combine personal data, unless the end user has been presented with the specific choice and provided consent in the sense of Regulation (EU) 2016/679. ; 
  • allow business users to offer the same products or services to end users through third party online intermediation services at prices or conditions that are different from those offered through the online intermediation services of the gatekeeper; 
  • allow business users to promote offers to end users acquired via the core platform service, and to conclude contracts with these end users regardless of whether for that purpose they use the core platform services of the gatekeeper or not, and allow end users to access and use, through the core platform services of the gatekeeper, content, subscriptions, features or other items by using the software application of a business user, where these items have been acquired by the end users from the relevant business user without using the core platform services of the gatekeeper; 
  • refrain from preventing or restricting business users from raising issues with any relevant public authority relating to any practice of gatekeepers; 
  • refrain from requiring business users to use, offer or interoperate with an identification service of the gatekeeper in the context of services offered by the business users using the core platform services of that gatekeeper; 
  • refrain from requiring business users or end users to subscribe to or register with any other core platform services identified pursuant to Article 3 or which meets the thresholds in Article 3(2)(b) as a condition to access, sign up or register to any of their core platform services identified pursuant to that Article; 
  • provide advertisers and publishers to which it supplies advertising services, upon their request, with information concerning the price paid by the advertiser and publisher, as well as the amount or remuneration paid to the publisher, for the publishing of a given ad and for each of the relevant advertising services provided by the gatekeeper. 

Article 6
Obligations for gatekeepers susceptible of being further specified 
  1. In respect of each of its core platform services identified pursuant to Article 3(7), a gatekeeper shall: 
    1. 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; 
    2. allow end users to un-install any 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; 
    3. allow the installation and effective use of third party software applications or software application stores using, or interoperating with, operating systems of that gatekeeper and allow these software applications or software application stores to be accessed by means other than the core platform services of that gatekeeper. The gatekeeper shall not be prevented from taking proportionate measures to ensure that third party software applications or software application stores do not endanger the integrity of the hardware or operating system provided by the gatekeeper; 
    4. refrain from treating more favourably in ranking services and products offered by the gatekeeper itself or by any third party belonging to the same undertaking compared to similar services or products of third party and apply fair and non-discriminatory conditions to such ranking; 
    5. refrain from technically restricting the ability of end users to switch between and subscribe to different software applications and services to be accessed using the operating system of the gatekeeper, including as regards the choice of Internet access provider for end users; 
    6. allow business users and providers of ancillary services access to and interoperability with the same operating system, hardware or software features that are available or used in the provision by the gatekeeper of any ancillary services; 
    7. provide advertisers and publishers, upon their request and free of charge, with access to the performance measuring tools of the gatekeeper and the information necessary for advertisers and publishers to carry out their own independent verification of the ad inventory; 
    8. provide effective portability of data generated through the activity of a business user or end user and shall, in particular, provide tools for end users to facilitate the exercise of data portability, in line with Regulation EU 2016/679, including by the provision of continuous and real-time access ; 
    9. provide business users, or third parties authorised by a business user, free of charge, with effective, high-quality, continuous and real-time access and use of aggregated or non-aggregated data, that is provided for or generated in the context of the use of the relevant core platform services by those business users and the end users engaging with the products or services provided by those business users; for personal data, provide access and use only where directly connected with the use effectuated by the end user in respect of the products or services offered by the relevant business user through the relevant core platform service, and when the end user opts in to such sharing with a consent in the sense of the Regulation (EU) 2016/679; ; 
    10. provide to any third party providers of online search engines, upon their request, with access on fair, reasonable and non-discriminatory terms to ranking, query, click and view data in relation to free and paid search generated by end users on online search engines of the gatekeeper, subject to anonymisation for the query, click and view data that constitutes personal data; 
    11. apply fair and non-discriminatory general conditions of access for business users to its software application store designated pursuant to Article 3 of this Regulation. 
  2. For the purposes of point (a) of paragraph 1 data that is not publicly available shall include any aggregated and non-aggregated data generated by business users that can be inferred from, or collected through, the commercial activities of business users or their customers on the core platform service of the gatekeeper. 

Article 7
Compliance with obligations for gatekeepers 
  1. The measures implemented by the gatekeeper to ensure compliance with the obligations laid down in Articles 5 and 6 shall be effective in achieving the objective of the relevant obligation. The gatekeeper shall ensure that these measures are implemented in compliance with Regulation (EU) 2016/679 and Directive 2002/58/EC, and with legislation on cyber security, consumer protection and product safety. 
  2. Where the Commission finds that the measures that the gatekeeper intends to implement pursuant to paragraph 1, or has implemented, do not ensure effective compliance with the relevant obligations laid down in Article 6, it may by decision specify the measures that the gatekeeper concerned shall implement. The Commission shall adopt such a decision within six months from the opening of proceedings pursuant to Article 18. 
  3. Paragraph 2 of this Article is without prejudice to the powers of the Commission under Articles 25, 26 and 27. 
  4. In view of adopting the decision under paragraph 2, the Commission shall communicate its preliminary findings within three months from the opening of the proceedings. In the preliminary findings, the Commission shall explain the measures it considers to take or it considers that the provider of core platform services concerned should take in order to effectively address the preliminary findings. 
  5. In specifying the measures under paragraph 2, the Commission shall ensure that the measures are effective in achieving the objectives of the relevant obligation and proportionate in the specific circumstances of the gatekeeper and the relevant service. 
  6. For the purposes of specifying the obligations under Article 6(1) points (j) and (k), the Commission shall also assess whether the intended or implemented measures ensure that there is no remaining imbalance of rights and obligations on business users and that the measures do not themselves confer an advantage on the gatekeeper which is disproportionate to the service provided by the gatekeeper to business users. 
  7. A gatekeeper may request the opening of proceedings pursuant to Article 18 for the Commission to determine whether the measures that the gatekeeper intends to implement or has implemented under Article 6 are effective in achieving the objective of the relevant obligation in the specific circumstances. A gatekeeper may, with its request, provide a reasoned submission to explain in particular why the measures that it intends to implement or has implemented are effective in achieving the objective of the relevant obligation in the specific circumstances. 

Article 8
Suspension 
  1. The Commission may, on a reasoned request by the gatekeeper, exceptionally suspend, in whole or in part, a specific obligation laid down in Articles 5 and 6 for a core platform service by decision adopted in accordance with the advisory procedure referred to in Article 32(4), where the gatekeeper demonstrates that compliance with that specific obligation would endanger, due to exceptional circumstances beyond the control of the gatekeeper, the economic viability of the operation of the gatekeeper in the Union, and only to the extent necessary to address such threat to its viability. The Commission shall aim to adopt the suspension decision without delay and at the latest 3 months following receipt of a complete reasoned request. 
  2. Where the suspension is granted pursuant to paragraph 1, the Commission shall review its suspension decision every year. Following such a review the Commission shall either lift the suspension or decide that the conditions of paragraph 1 continue to be met. 
  3. The Commission may, acting on a reasoned request by a gatekeeper, provisionally suspend the application of the relevant obligation to one or more individual core platform services already prior to the decision pursuant to paragraph 1. 
  • In assessing the request, the Commission shall take into account, in particular, the impact of the compliance with the specific obligation on the economic viability of the operation of the gatekeeper in the Union as well as on third parties. The suspension may be made subject to conditions and obligations to be defined by the Commission in order to ensure a fair balance between these interests and the objectives of this Regulation. Such a request may be made and granted at any time pending the assessment of the Commission pursuant to paragraph 1. 

Article 9
Exemption for overriding reasons of public interest 
  1. The Commission may, acting on a reasoned request by a gatekeeper or on its own initiative, by decision adopted in accordance with the advisory procedure referred to in Article 32(4), exempt it, in whole or in part, from a specific obligation laid down in Articles 5 and 6 in relation to an individual core platform service identified pursuant to Article 3(7), where such exemption is justified on the grounds set out in paragraph 2 of this Article. The Commission shall adopt the exemption decision at the latest 3 months after receiving a complete reasoned request. 
  2. An exemption pursuant to paragraph 1 may only be granted on grounds of: 
    1. public morality; 
    2. public health; 
    3. public security. 
  3. The Commission may, acting on a reasoned request by a gatekeeper or on its own initiative, provisionally suspend the application of the relevant obligation to one or more individual core platform services already prior to the decision pursuant to paragraph 1. 
  • In assessing the request, the Commission shall take into account, in particular, the impact of the compliance with the specific obligation on the grounds in paragraph 2 as well as the effects on the gatekeeper concerned and on third parties. The suspension may be made subject to conditions and obligations to be defined by the Commission in order to ensure a fair balance between the goals pursued by the grounds in paragraph 2 and the objectives of this Regulation. Such a request may be made and granted at any time pending the assessment of the Commission pursuant to paragraph 1. 

Article 10
Updating obligations for gatekeepers 
  1. The Commission is empowered to adopt delegated acts in accordance with Article 34 to update the obligations laid down in Articles 5 and 6 where, based on a market investigation pursuant to Article 17, it has identified the need for new obligations addressing practices that limit the contestability of core platform services or are unfair in the same way as the practices addressed by the obligations laid down in Articles 5 and 6. 
  2. A practice within the meaning of paragraph 1 shall be considered to be unfair or limit the contestability of core platform services where: 
    1. there is an imbalance of rights and obligations on business users and the gatekeeper is obtaining an advantage from business users that is disproportionate to the service provided by the gatekeeper to business users; or 
    2. the contestability of markets is weakened as a consequence of such a practice engaged in by gatekeepers. 

Article 11
Anti-circumvention 
  1. A gatekeeper shall ensure that the obligations of Articles 5 and 6 are fully and effectively complied with. While the obligations of Articles 5 and 6 apply in respect of core platform services designated pursuant to Article 3, their implementation shall not be undermined by any behaviour of the undertaking to which the gatekeeper belongs, regardless of whether this behaviour is of a contractual, commercial, technical or any other nature. 
  2. Where consent for collecting and processing of personal data is required to ensure compliance with this Regulation, a gatekeeper shall take the necessary steps to either enable business users to directly obtain the required consent to their processing, where required under Regulation (EU) 2016/679 and Directive 2002/58/EC, or to comply with Union data protection and privacy rules and principles in other ways including by providing business users with duly anonymised data where appropriate.
  • The gatekeeper shall not make the obtaining of this consent by the business user more burdensome than for its own services. 
  1. 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. 

Article 12
Obligation to inform about concentrations 
  1. A gatekeeper shall inform the Commission of any intended concentration within the meaning of Article 3 of Regulation (EC) No 139/2004 involving another provider of core platform services or of any other services provided in the digital sector irrespective of whether it is notifiable to a Union competition authority under Regulation (EC) No 139/2004 or to a competent national competition authority under national merger rules. 
  • A gatekeeper shall inform the Commission of such a concentration prior to its implementation and following the conclusion of the agreement, the announcement of the public bid, or the acquisition of a controlling interest. 
  1. The notification pursuant to paragraph 1 shall at least describe for the acquisition targets their EEA and worldwide annual turnover, for any relevant core platform services their respective EEA annual turnover, their number of yearly active business users and the number of monthly active end users, as well as the rationale of the intended concentration. 
  2. If, following any concentration as provided in paragraph 1, additional core platform services individually satisfy the thresholds in point (b) of Article 3(2), the gatekeeper concerned shall inform the Commission thereof within three months from the implementation of the concentration and provide the Commission with the information referred to in Article 3(2). 

Article 13
Obligation of an audit 

Within six months after its designation pursuant to Article 3, a gatekeeper shall submit to the Commission an independently audited description of any techniques for profiling of consumers that the gatekeeper applies to or across its core platform services identified pursuant to Article 3. This description shall be updated at least annually. 

Chapter IV 

Market investigation 

Article 14
Opening of a market investigation 
  1. When the Commission intends to carry out a market investigation in view of the possible adoption of decisions pursuant to Articles 15, 16 and 17, it shall adopt a decision opening a market investigation. 
  2. The opening decision shall specify:
    1. the date of opening of the investigation; 
    2. the description of the issue to which the investigation relates to; 
    3. the purpose of the investigation. 
  3. The Commission may reopen a market investigation that it has closed where: 
    1. there has been a material change in any of the facts on which the decision was based; 
  4. the decision was based on incomplete, incorrect or misleading information provided by the undertakings concerned. 

Article 15
Market investigation for designating gatekeepers 
  1. The Commission may conduct a market investigation for the purpose of examining whether a provider of core platform services should be designated as a gatekeeper pursuant to Article 3(6), or in order to identify core platform services for a gatekeeper pursuant to Article 3(7). It shall endeavour to conclude its investigation by adopting a decision in accordance with the advisory procedure referred to in Article 32(4) within twelve months from the opening of the market investigation. 
  2. In the course of a market investigation pursuant to paragraph 1, the Commission shall endeavour to communicate its preliminary findings to the provider of core platform services concerned within six months from the opening of the investigation. In the preliminary findings, the Commission shall explain whether it considers, on a provisional basis, that the provider of core platform services should be designated as a gatekeeper pursuant to Article 3(6). 
  3. Where the provider of core 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. 
  4. When the Commission pursuant to Article 3(6) designates as a gatekeeper a provider of core platform services that does not yet enjoy an entrenched and durable position in its operations, but it is foreseeable that it will enjoy such a position in the near future, it shall declare applicable to that gatekeeper only obligations laid down in Article 5(b) and Article 6(1) points (e), (f), (h) and (i) as specified in the designation decision. The Commission shall only declare applicable those obligations that are appropriate and necessary to prevent that the gatekeeper concerned achieves by unfair means an entrenched and durable position in its operations. The Commission shall review such a designation in accordance with the procedure laid down in Article 4. 

Article 16
Market investigation into systematic non-compliance 
  1. Where the market investigation shows that a gatekeeper has systematically infringed the obligations laid down in Articles 5 and 6 and has further strengthened or extended its gatekeeper position in relation to the characteristics under Article 3(1), the Commission may by decision adopted in accordance with the advisory procedure referred to in Article 32(4) impose on such gatekeeper any behavioural or structural remedies which are proportionate to the infringement committed and necessary to ensure compliance with this Regulation. The Commission shall conclude its investigation by adopting a decision within twelve months from the opening of the market investigation. 
  2. The Commission may only impose 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. 
  3. A gatekeeper shall be deemed to have engaged in a systematic non-compliance with the obligations laid down in Articles 5 and 6, where the Commission has issued at least three non-compliance or fining decisions pursuant to Articles 25 and 26 respectively against a gatekeeper in relation to any of its core platform services within a period of five years prior to the adoption of the decision opening a market investigation in view of the possible adoption of a decision pursuant to this Article. 
  4. A gatekeeper shall be deemed to 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. 
  5. The Commission shall communicate its objections to the gatekeeper concerned within six months from the opening of the investigation. In its objections, the Commission shall explain whether it preliminarily considers that the conditions of paragraph 1 are met and which remedy or remedies it preliminarily considers necessary and proportionate. 
  6. The Commission may at any time during the market investigation extend its duration where the extension is justified on objective grounds and proportionate. The extension may apply to the deadline by which the Commission has to issue its objections, or to the deadline for adoption of the final decision. The total duration of any extension or extensions pursuant to this paragraph shall not exceed six months.The Commission may consider commitments pursuant to Article 23 and make them binding in its decision. 

Article 17
Market investigation into new services and new practices 

The Commission may conduct a market investigation with the purpose of examining whether one or more services within the digital sector should be added to the list of core platform services or to detect types of practices that may limit the contestability of core platform services or may be unfair and which are not effectively addressed by this Regulation. It shall issue a public report at the latest within 24 months from the opening of the market investigation. 

Where appropriate, that report shall: 

  • be accompanied by a proposal to amend this Regulation in order to include additional services within the digital sector in the list of core platform services laid down in point 2 of Article 2;
  • be accompanied by a delegated act amending Articles 5 or 6 as provided for in Article 10. 

Chapter V 

Investigative, enforcement and monitoring powers 

Article 18
Opening of proceedings 

Where the Commission intends to carry out proceedings in view of the possible adoption of decisions pursuant to Article 7, 25 and 26, it shall adopt a decision opening a proceeding. 

Article 19
Requests for information 
  1. The Commission may by simple request or by decision require information from undertakings and associations of undertakings to provide all necessary information, including for the purpose of monitoring, implementing and enforcing the rules laid down in this Regulation. The Commission may also request access to data bases and algorithms of undertakings and request explanations on those by a simple request or by a decision. 
  2. The Commission may request information from undertakings and associations of undertakings pursuant to paragraph 1 also prior to opening a market investigation pursuant to Article 14 or proceedings pursuant to Article 18. 
  3. When sending a simple request for information to an undertaking or association of undertakings, the Commission shall state the purpose of the request, specify what information is required and fix the time-limit within which the information is to be provided, and the penalties provided for in Article 26 for supplying incomplete, incorrect or misleading information or explanations. 
  4. Where the Commission requires undertakings and associations of undertakings to supply information by decision, it shall state the purpose of the request, specify what information is required and fix the time-limit within which it is to be provided. Where the Commission requires undertakings to provide access to its data-bases and algorithms, it shall state the legal basis and the purpose of the request, and fix the time-limit within which it is to be provided. It shall also indicate the penalties provided for in Article 26 and indicate or impose the periodic penalty payments provided for in Article 27. It shall further indicate the right to have the decision reviewed by the Court of Justice. 
  5. The undertakings or associations of undertakings or their representatives shall supply the information requested on behalf of the undertaking or the association of undertakings concerned. Lawyers duly authorised to act may supply the information on behalf of their clients. The latter shall remain fully responsible if the information supplied is incomplete, incorrect or misleading. 
  6. At the request of the Commission, the governments and authorities of the Member States shall provide the Commission with all necessary information to carry out the duties assigned to it by this Regulation.

Article 20
Power to carry out interviews and take statements 

The Commission may interview any natural or legal person which consents to being interviewed for the purpose of collecting information, relating to the subject-matter of an investigation, including in relation to the monitoring, implementing and enforcing of the rules laid down in this Regulation. 

Article 21
Powers to conduct on-site inspections 
  1. The Commission may conduct on-site inspections at the premises of an undertaking or association of undertakings. 
  2. On-site inspections may also be carried out with the assistance of auditors or experts appointed by the Commission pursuant to Article 24(2). 
  3. During on-site inspections the Commission and auditors or experts appointed by it may require the undertaking or association of undertakings to provide access to and explanations on its organisation, functioning, IT system, algorithms, data-handling and business conducts. The Commission and auditors or experts appointed by it may address questions to key personnel. 
  4. Undertakings or associations of undertakings are required to submit to an on-site inspection ordered by decision of the Commission. The decision shall specify the subject matter and purpose of the visit, set the date on which it is to begin and indicate the penalties provided for in Articles 26 and 27 and the right to have the decision reviewed by the Court of Justice. 

Article 22
Interim measures 
  1. In case of urgency due to the risk of serious and irreparable damage for business users or end users of gatekeepers, the Commission may, by decision adopt in accordance with the advisory procedure referred to in Article 32(4), order interim measures against a gatekeeper on the basis of a prima facie finding of an infringement of Articles 5 or 6. 
  2. A decision pursuant to paragraph 1 may only be adopted in the context of proceedings opened in view of the possible adoption of a decision of non-compliance pursuant to Article 25(1). This decision shall apply for a specified period of time and may be renewed in so far this is necessary and appropriate. 

Article 23
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. 
  2. The Commission may, upon request or on its own initiative, reopen by decision the relevant proceedings, where:
    1. there has been a material change in any of the facts on which the decision was based; 
    2. the gatekeeper concerned acts contrary to its commitments; 
    3. 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. 

Article 24
Monitoring of obligations and measures 
  1. The Commission may take the necessary actions to monitor the effective implementation and compliance with the obligations laid down in Articles 5 and 6 and the decisions taken pursuant to Articles 7, 16, 22 and 23. 
  2. The actions pursuant to paragraph 1 may include the appointment of independent external experts and auditors to assist the Commission to monitor the obligations and measures and to provide specific expertise or knowledge to the Commission. 

Article 25
Non-compliance 
  1. The Commission shall adopt a non-compliance decision in accordance with the advisory procedure referred to in Article 32(4) where it finds that a gatekeeper does not comply with one or more of the following: 
    1. any of the obligations laid down in Articles 5 or 6; 
    2. measures specified in a decision adopted pursuant to Article 7(2); 
    3. measures ordered pursuant to Article 16(1); 
    4. interim measures ordered pursuant to Article 22; or 
    5. commitments made legally binding pursuant to Article 23. 
  2. Before adopting the decision pursuant to paragraph 1, the Commission shall communicate its preliminary findings to the gatekeeper concerned. In the preliminary findings, the Commission shall explain the measures it considers to take or it considers that the gatekeeper should take in order to effectively address the preliminary findings. 
  3. In the non-compliance decision adopted pursuant to paragraph 1, the Commission shall order the gatekeeper to cease and desist with the non-compliance within an appropriate deadline and to provide explanations on how it plans to comply with the decision. 
  4. The gatekeeper shall provide the Commission with the description of the measures it took to ensure compliance with the decision adopted pursuant to paragraph 1. 
  5. Where the Commission finds that the conditions of paragraph 1 are not met, it shall close the investigation by a decision.

Article 26
Fines 
  1. In the decision pursuant to Article 25, the Commission may impose on a gatekeeper fines not exceeding 10% of its total turnover in the preceding financial year where it finds that the gatekeeper, intentionally or negligently, fails to comply with: 
    1. any of the obligations pursuant to Articles 5 and 6; 
    2. the measures specified by the Commission pursuant to a decision under Article 7(2); 
    3. measures ordered pursuant to Article 16(1); 
    4. a decision ordering interim measures pursuant to Article 22; 
    5. a commitment made binding by a decision pursuant to Article 23. 
  2. The Commission may by decision impose on undertakings and associations of undertakings fines not exceeding 1% of the total turnover in the preceding financial year where they intentionally or negligently: 
    1. fail to provide within the time-limit information that is required for assessing their designation as gatekeepers pursuant to Article 3(2) or supply incorrect, incomplete or misleading information; 
    2. fail to notify information that is required pursuant to Article 12 or supply incorrect, incomplete or misleading information; 
    3. fail to submit the description that is required pursuant to Article 13; 
    4. supply incorrect, incomplete or misleading information or explanations that are requested pursuant to Articles 19 or Article 20; 
    5. fail to provide access to data-bases and algorithms pursuant to Article 19; 
    6. fail to rectify within a time-limit set by the Commission, incorrect, incomplete or misleading information given by a member of staff, or fail or refuse to provide complete information on facts relating to the subject-matter and purpose of an inspection pursuant to Article 21; 
    7. refuse to submit to an on-site inspection pursuant to Article 21. 
  3. In fixing the amount of the fine, regard shall be had to the gravity, duration, recurrence, and, for fines imposed pursuant to paragraph 2, delay caused to the proceedings. 
  4. When a fine is imposed on an association of undertakings taking account of the turnover of its members and the association is not solvent, the association shall be obliged to call for contributions from its members to cover the amount of the fine. 
  • Where such contributions have not been made to the association within a time-limit set by the Commission, the Commission may require payment of the fine directly by any of the undertakings whose representatives were members of the decision-making bodies concerned of the association. 
  • After having required payment in accordance with the second subparagraph, the Commission may require payment of the balance by any of the members of the association which were active on the market on which the infringement occurred, where necessary to ensure full payment of the fine.
  • However, the Commission shall not require payment pursuant to the second or the third subparagraph from undertakings which show that they have not implemented the infringing decision of the association and either were not aware of its existence or have actively distanced themselves from it before the Commission started investigating the case. 
  • The financial liability of each undertaking in respect of the payment of the fine shall not exceed 10 % of its total turnover in the preceding financial year. 

Article 27
Periodic penalty payments 
  1. The Commission may by decision impose on undertakings, including gatekeepers where applicable, periodic penalty payments not exceeding 5 % of the average daily turnover in the preceding financial year per day, calculated from the date set by that decision, in order to compel them: 
    1. to comply with the decision pursuant to Article 16(1); 
    2. to supply correct and complete information within the time limit required by a request for information made by decision pursuant to Article 19; 
    3. to ensure access to data-bases and algorithms of undertakings and to supply explanations on those as required by a decision pursuant to Article 19; 
    4. to submit to an on-site inspection which was ordered by a decision taken pursuant to Article 21; 
    5. to comply with a decision ordering interim measures taken pursuant to Article 22(1); 
    6. to comply with commitments made legally binding by a decision pursuant to Article 23(1); 
    7. to comply with a decision pursuant to Article 25(1). 
  2. Where the undertakings have satisfied the obligation which the periodic penalty payment was intended to enforce, the Commission may by decision adopted in accordance with the advisory procedure referred to in Article 32(4) set the definitive amount of the periodic penalty payment at a figure lower than that which would arise under the original decision. 

Article 28
Limitation periods for the imposition of penalties 
  1. The powers conferred on the Commission by Articles 26 and 27 shall be subject to a three year limitation period. 
  2. Time shall begin to run on the day on which the infringement is committed. However, in the case of continuing or repeated infringements, time shall begin to run on the day on which the infringement ceases. 
  3. Any action taken by the Commission for the purpose of an investigation or proceedings in respect of an infringement shall interrupt the limitation period for the imposition of fines or periodic penalty payments. The limitation period shall be interrupted with effect from the date on which the action is notified to at least one undertaking or association of undertakings which has participated in the infringement. Actions which interrupt the running of the period shall include in particular the following: 
    1. requests for information by the Commission; 
    2. on-site inspection; 
    3. the opening of a proceeding by the Commission pursuant to Article 18. 
  4. Each interruption shall start time running afresh. However, the limitation period shall expire at the latest on the day on which a period equal to twice the limitation period has elapsed without the Commission having imposed a fine or a periodic penalty payment. That period shall be extended by the time during which limitation is suspended pursuant to paragraph 5. 
  5. The limitation period for the imposition of fines or periodic penalty payments shall be suspended for as long as the decision of the Commission is the subject of proceedings pending before the Court of Justice of the European Union. 

Article 29
Limitation periods for the enforcement of penalties 
  1. The power of the Commission to enforce decisions taken pursuant to Articles 26 and 27 shall be subject to a limitation period of five years. 
  2. Time shall begin to run on the day on which the decision becomes final. 
  3. The limitation period for the enforcement of penalties shall be interrupted: 
    1. by notification of a decision varying the original amount of the fine or periodic penalty payment or refusing an application for variation; 
    2. by any action of the Commission or of a Member State, acting at the request of the Commission, designed to enforce payment of the fine or periodic penalty payment. 
  4. Each interruption shall start time running afresh. 
  5. The limitation period for the enforcement of penalties shall be suspended for so long as: 
    1. time to pay is allowed; 
    2. enforcement of payment is suspended pursuant to a decision of the Court of Justice. 

Article 30
Right to be heard and access to the file 
  1. Before adopting a decision pursuant to Article 7, Article 8(1), Article 9(1), Articles 15, 16, 22, 23, 25 and 26 and Article 27(2), the Commission shall give the gatekeeper or undertaking or association of undertakings concerned the opportunity of being heard on: 
    1. preliminary findings of the Commission, including any matter to which the Commission has taken objections; 
    2. measures that the Commission may intend to take in view of the preliminary findings pursuant to point (a) of this paragraph.
  2. Gatekeepers, undertakings and associations of undertakings concerned may submit their observations to the Commission’s preliminary findings within a time limit which shall be fixed by the Commission in its preliminary findings and which may not be less than 14 days. 
  3. The Commission shall base its decisions only on objections on which gatekeepers, undertakings and associations of undertakings concerned have been able to comment. 
  4. The rights of defence of the gatekeeper or undertaking or association of undertakings concerned shall be fully respected in any proceedings. The gatekeeper or undertaking or association of undertakings concerned shall be entitled to have access to the Commission’s file under the terms of a negotiated disclosure, subject to the legitimate interest of undertakings in the protection of their business secrets. The right of access to the file shall not extend to confidential information and internal documents of the Commission or the authorities of the Member States. In particular, the right of access shall not extend to correspondence between the Commission and the authorities of the Member States. Nothing in this paragraph shall prevent the Commission from disclosing and using information necessary to prove an infringement. 

Article 31
Professional secrecy 
  1. The information collected pursuant to Articles 3, 12, 13, 19, 20 and 21 shall be used only for the purposes of this Regulation. 
  2. Without prejudice to the exchange and to the use of information provided for the purpose of use pursuant to Articles 32 and 33, the Commission, the authorities of the Member States, their officials, servants and other persons working under the supervision of these authorities and any natural or legal person, including auditors and experts appointed pursuant to Article 24(2), shall not disclose information acquired or exchanged by them pursuant to this Regulation and of the kind covered by the obligation of professional secrecy. This obligation shall also apply to all representatives and experts of Member States participating in any of the activities of the Digital Markets Advisory Committee pursuant to Article 32. 

Article 32
Digital Markets Advisory Committee 
  1. The Commission shall be assisted by the Digital Markets Advisory Committee. That Committee shall be a Committee within the meaning of Regulation (EU) No 182/2011. 
  2. Where the opinion of the committee is to be obtained by written procedure, that procedure shall be terminated without result when, within the time-limit for delivery of the opinion, the chair of the committee so decides or a simple majority of committee members so request. 
  3. The Commission shall communicate the opinion of the Digital Markets Advisory Committee to the addressee of an individual decision, together with that decision. It shall make the opinion public together with the individual decision, having regard to the legitimate interest in the protection of professional secrecy.
  4. Where reference is made to this paragraph, Article 4 of Regulation (EU) No 182/2011 shall apply. 

Article 33
Request for a market investigation 
  1. When three or more Member States request the Commission to open an investigation pursuant to Article 15 because they consider that there are reasonable grounds to suspect that a provider of core platform services should be designated as a gatekeeper, the Commission shall within four months examine whether there are reasonable grounds to open such an investigation. 
  2. Member States shall submit evidence in support of their request. 

Chapter VI 

General provisions 

Article 34
Publication of decisions 
  1. The Commission shall publish the decisions which it takes pursuant to Articles 3, 7, 8, 9, 15, 16, 17, 22, 23(1), 25, 26 and 27. Such publication shall state the names of the parties and the main content of the decision, including any penalties imposed. 
  2. The publication shall have regard to the legitimate interest of gatekeepers or third parties in the protection of their confidential information. 

Article 35
Review by the Court of Justice of the European Union 

In accordance with Article 261 of the Treaty on the Functioning of the European Union, the Court of Justice of the European Union has unlimited jurisdiction to review decisions by which the Commission has imposed fines or periodic penalty payments. It may cancel, reduce or increase the fine or periodic penalty payment imposed. 

Article 36
Implementing provisions 
  1. The Commission may adopt implementing acts concerning: 3, 6, 12, 13, 15, 16, 17, 20, 22, 23, 25 and 30 
    1. the form, content and other details of notifications and submissions pursuant to Article 3; 
    2. the form, content and other details of the technical measures that gatekeepers shall implement in order to ensure compliance with points (h), (i) and (j) of Article 6(1). 
    3. the form, content and other details of notifications and submissions made pursuant to Articles 12 and 13; 
    4. the practical arrangements of extension of deadlines as provided in Article 16;
    5. the practical arrangements of the proceedings concerning investigations pursuant to Articles 15, 16, 17, and proceedings pursuant to Articles 22, 23 and 25; 
    6. the practical arrangements for exercising rights to be heard provided for in Article 30; 
    7. the practical arrangements for the negotiated disclosure of information provided for in Article 30; 
  2. the practical arrangements for the cooperation and coordination between the Commission and Member States provided for in Article 1(7).Those implementing acts shall be adopted in accordance with the advisory procedure referred to in Article 32(4). Before the adoption of any measures pursuant to paragraph 1, the Commission shall publish a draft thereof and invite all interested parties to submit their comments within the time limit it lays down, which may not be less than one month. 

Article 37
Exercise of the delegation 
  1. The power to adopt delegated acts is conferred on the Commission subject to the conditions laid down in this Article. 
  2. The power to adopt delegated acts referred to in Articles 3(6) and 9(1) shall be conferred on the Commission for a period of five years from DD/MM/YYYY. The Commission shall draw up a report in respect of the delegation of power not later than nine months before the end of the five-year period. The delegation of power shall be tacitly extended for periods of an identical duration, unless the European Parliament or the Council opposes such extension not later than three months before the end of each period. 
  3. The delegation of power referred to in Articles 3(6) and 9(1) may be revoked at any time by the European Parliament or by the Council. A decision to revoke shall put an end to the delegation of the power specified in that decision. It shall take effect the day following the publication of the decision in the Official Journal of the European Union or at a later date specified therein. It shall not affect the validity of any delegated acts already in force. 
  4. Before adopting a delegated act, the Commission shall consult experts designated by each Member State in accordance with the principles laid down in the Inter-institutional Agreement of 13 April 2016 on Better Law-Making. 
  5. As soon as it adopts a delegated act, the Commission shall notify it simultaneously to the European Parliament and to the Council. 
  6. A delegated act adopted pursuant to Articles 3(6) and 9(1) shall enter into force only if no objection has been expressed either by the European Parliament or by the Council within a period of two months of notification of that act to the European Parliament and to the Council or if, before the expiry of that period, the European Parliament and the Council have both informed the Commission that they will not object. That period shall be extended by two months at the initiative of the European Parliament or of the Council. 

Article 38
Review 
  1. By DD/MM/YYYY, and subsequently every three years, the Commission shall evaluate this Regulation and report to the European Parliament, the Council and the European Economic and Social Committee. 
  2. The evaluations shall establish whether additional rules, including regarding the list of core platform services laid down in point 2 of Article 2, the obligations laid down in Articles 5 and 6 and their enforcement, may be required to ensure that digital markets across the Union are contestable and fair. Following the evaluations, the Commission shall take appropriate measures, which may include legislative proposals. 
  3. Member States shall provide any relevant information they have that the Commission may require for the purposes of drawing up the report referred to in paragraph 1. 

Article 39
Entry into force and application 
  1. This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union
  2. This Regulation shall apply from six months after its entry into force. 
  • However Articles 3, 15, 18, 19, 20, 21, 26, 27, 30, 31 and 34 shall apply from [date of entry into force of this Regulation]. 
  1. This Regulation shall be binding in its entirety and directly applicable in all Member States. 

Done at Brussels, 

For the European Parliament
For the Council 

For the Council 
The President 

This initiative was launched by: MEPs Patrick Breyer, Alexandra Geese, Kim van Sparrentak, Marcel Kolaja, Rasmus Andresen, Damian Boeselager and Mikulas Peksa.

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  • 33
    587

    Privacy International welcomes the aim of the DMA to address some of the challenges posed by the way the current digital markets operate. The proposal contains provisions that could benefit individuals as they engage with services provided by gatekeepers.

    However, we believe that the proposal falls short of its stated aim by not adequately addressing the negative effects of gatekeepers’ practices on end users; and by not supporting the emergence of new platforms and competition among existing and new platforms, for the benefit of users. Further, we are concerned that the proposal fails to recognize any meaningful role for civil society in the implementation and monitoring of the DMA.

    In our analysis (available at: https://privacyinternational.org/advocacy/4460/eu-digital-markets-act-needs-be-bolder-address-data-exploitation-digital-gatekeepers ), we detail these and other shortcomings and we recommend that the DMA is amended to:
    • Include a strong interoperability requirement applicable to core services provided by digital platforms;
    • Address the lack of focus on end users;
    • Address negative effects of mergers in the digital markets;
    • Strengthen the requirements of auditing and transparency related to profiling;
    • Include provisions to ensure that civil society organisations are enabled to a) make a request to the Commission for the opening of a market investigation; b) notify the Commission of suspected infringements; and c) provide the Commission with information to open market investigations into new concerning practices;
    • Ensure its full compliance with the General Data Protection Regulation.

    We hope these suggestions will be useful as you consider the proposed DMA and we will endeavour to provide specific comments on the text of the proposal in the coming weeks.

    Reply
  • 17
    1

    I’m just worried, that the legislation would kill my fan art career, since I’ve been doing this since 2016.

    Will it affect fan projects like fanfiction and fanart? If yes, then it will be the doom for me.

    Reply
  • 2
    0

    ITI Comments to
    The Digital Markets Act Proposal

    As the global voice of the tech industry, ITI – The Information Technology Industry Council – welcomes the possibility to provide comments on the recently published Digital Markets Act proposal. Our goal is providing a critical but constructive perspective, aiming for rules that are proportionate and reasonable to the goals they plan to achieve and that take into account longstanding legal principles.

    ITI is the premier advocate for the global technology industry, representing over 75 global companies active across the whole spectrum of technology. ITI and its members stand ready to support the Commission in its endeavor to find proportionate policy tools to guarantee a consistent approach and fair competition in Europe. We fully support the goal of ensuring market access for innovative challengers, safeguarding consumer welfare and economic efficiency.

    ITI strongly supports free and undistorted competition as key to promoting innovation and consumer welfare. We are committed to addressing challenges potentially arising from digitalisation in the EU and globally. Because of our very diverse membership we recognize the many equities at stake in this debate, and the need for action to preserve competitive markets for all. Proportionate instruments that ensure a consistent policy approach and fair competition should be considered wherever necessary. Grasping differences in business models and user interaction across digital platforms is key to gauging potential non-competitive conduct and properly addressing any challenges. As the notion of platform refers to very different business models, policymakers should consider the role that specific companies play in the markets they operate in, the value they create, their relationship to customers and competitors, and possible alternative approaches.

    Consequently, the legislative proposal would benefit from further focus on a company’s conduct, its business models and its interaction with users. While we share the purpose of streamlining rules and proceedings to address emerging challenges in an increasingly digitalised economy, this should not be achieved at the expense of accuracy and balance of the rules. Proportionality is key in order to avoid unintended consequences linked to over-enforcement, in terms of choice, reach, trust and innovation.

    Any remedies should be tailored more specifically to the type of core platform service, and be relevant and effective within the specific market and context of application. The initiative should primarily focus on ensuring that market participants, smaller ones in particular, find an ecosystem that enables them to succeed, while focusing on promoting consumer welfare and addressing identified harms.

    Especially because the new rules would only target a narrowly defined set of companies, it is essential that they are based on objective criteria, with proportionate, well-justified obligations accompanied by appropriate due process guarantees to ensure the system is credible, well-functioning and effective. Relatedly, the proposal should preserve key procedural and substantive protections drawn from long-standing European and international legal principles. Clear procedural guarantees should apply to the process for the designation of “gatekeepers”, including a right for companies to challenge the interpretation and application of the proposal’s obligations, and opportunities to justify business practices as beneficial to competition or other public goals.

    Policy goals, scope and level of harmonisation

    The proposed regulation covers a wide range of services such as operating systems, cloud computing, messaging, user generated video streaming and advertising services, underpinned by various business models. These services have brought economic benefits, consumer choice and innovation. It is therefore crucial that regulatory intervention takes into consideration all sides of the services targeted – intervention on one side should be weighed against the benefits provided on all other sides.

    The proposal only takes account two policy goals, as outlined in Article 1(1), contestability and fairness. Such an approach runs the risk of unintended consequences, particularly in multi-sided markets, as actions to protect user safety on the one side can be perceived as unfair by a user on the other. On top of ensuring market access for innovative challengers, the DMA’s enforcement process should also take into consideration the short and long-term effects on consumer welfare. When discussing and developing the European Commission proposals, policymakers should also consider the consequences of limiting the size advantages for consumers stemming from network economies and economies of scale with a balance to be found between these consequences and the goals of the proposal.

    When it comes to the scope, we recommend the Commission better explains the reasoning and justification behind the selection of “core platform services” covered. While some of these core platform services clearly have an intermediation function, others only provide technical services that do not raise the same gatekeeper-related concerns.

    Finally, article 1(5) references a limitation for Member States to apply national rules that are specific to the types of undertakings in scope of this regulation. We agree with the Commission that the objective of avoiding a patchwork of different rules and obligations within the Single Market is fundamental, and brings considerable benefits to companies, regardless of their size. Precisely for this reason, it is of utmost importance that the public interest exception also included in the article is more narrowly tailored in order to minimize potential divergences between different national frameworks across the Single Market.

    Designation of “gatekeepers”

    The designation of “gatekeeper” is the prerequisite to attach more stringent obligations to platforms that play a systemic role in a market. A gatekeeper designation is not an indication of illegal conduct or infringement of existing legislation, rather an acknowledgement that a firm meets the designation criteria set out in article 3 and, as such, has a responsibility to meet additional obligations as a result of its status.

    The process of designation of the companies in scope needs to be rigorous and objective. It is crucial that the criteria are not designed to lead to define or exclude certain companies by default. At the same time, any overly broad definition would lead to uncertainty about the services in scope and risk unintentionally affecting activities that are less or not problematic.

    First, among the thresholds spelled out in article 3.2, it is not clear how turnover and market capitalisation may be an indicator of significant impact. When it comes to assessing a company’s influence on the market, other more significant indicators than turnover are not taken into account, like for example the number of alternative providers of similar platform services, as way to assess dependency. In addition, a safe harbour should be envisaged with criteria to identify services that should by default fall outside the scope of the regulation. Moreover, while it is crucial that the rules are objective and non-discriminatory, since the gatekeeper presumption is established simply through reliance on pure-size criteria, it could only work if accompanied by consideration of other, qualitative elements that can precisely assess dependency.

    Secondly, a clarification on how the number of users would serve as a significant indicator of a company’s dominance is needed. A large user base is not necessarily a compelling measure of significant market power if those users are also using other services in the same market. Among others, the way the user thresholds and definitions would concretely apply to cloud services remains unclear. The current broad definition of cloud services in Article 2, combined with the definition of end-users and the approach outlined in Article 3 for the designation of gatekeepers, could inadvertently lead to the designation of providers active in highly fragmented downstream sectors without competitive concerns. For example, many businesses rely on cloud infrastructure or IT providers to build applications, platforms or websites, yet the cloud provider is not necessarily intermediating between the business and its customers, particularly when the service in question is of technical nature. The reference in article 3.1(b) and 3.2(b) to a “gateway for business users to reach end users” should exclude services not acting as a necessary intermediary enabling business users to propose products to end users. Also, it should be clarified that the number of users refers solely to the direct users of a provider, rather than the potential sum of indirect users of business customers. There are also vast differences between business models that a wide range of users may use on infrequently basis (e.g. booking sites) vs. sites that users, however identified, may use regularly.

    Finally, having a straightforward definition of what constitutes a user is key, and the criteria to determine the active users should be defined in law, rather than be deferred to delegated acts by the European Commission as mentioned in article 3.5.

    The same observations can be made for the qualitative criteria laid down in article 3(6) for the designation as a “gatekeeper” of a provider of core platform services that does not meet the quantitative threshold of article 3.2.

    Most important in relation to article 3.6 is the consideration that this provision essentially affords the Commission an extremely wide margin of appreciation in the gatekeeper designation process and makes it possible to ignore the thresholds based on elements like turnover and number of users (the same elements constituting the thresholds), as well as scale and network effects, data and user lock-in. As ITI noted in previous submissions, while potentially resulting in user lock-in or limiting new entrants on the market, network effects may be observed even when no significant market influence exists. Users may even benefit from concentration, as it enables them to rely on one (or few) platform(s) for each specific service or activity, be it shopping, social interaction, transportation or accommodation among others. We have witnessed clear examples of this in the context of the COVID pandemic where new online services have emerged very quickly in conjunction with the enormous surge in demand. On the other hand, network effects can disincentivise switching between platforms, thereby possibly diminishing choice and effective competition. In this context, better understanding how certain company practices impact a specific market and correcting potential imbalances and failures may be useful, as long as such tools and rules are carefully assessed in order not to negatively impact consumer choice, innovation, and rapidly evolving markets and business models.

    In light of the above, other, more significant aspects to evaluate dependency should be used instead or in addition to the thresholds in article 3.2. While we recognise the challenge with these elements being of less immediate recognition, they would prove much more relevant to the purposes of targeting the obligations to companies having significant impact in a given market or service, and would remove legal uncertainties caused by the wide interpretation margins of the Article 3 criteria.

    ITI appreciates the provisions in article 4 that allow companies to contest a designation as a “gatekeeper” either on the merits or for example if relevant market circumstances have changed. The presumptions proposed to enable the designation of a company as a gatekeeper need to be rebuttable. In order to exclude obvious cases of services that are not gatekeepers, certain safe harbour rules could support the designation process, by referring to those features that indicate how a platform will not be able to act as a gatekeeper. The review process of the “gatekeepers” status as defined in article 4 needs to be efficient and capture the evolution of the market circumstances as soon as possible. Hence, we support that after the designation has taken place, a “gatekeeper” can request a review of their designation if relevant market circumstances have changed even ahead of the regular 2-year review, or at least when they are requested to comply with a specific obligation in the framework.

    Due process is crucial to ensure legal certainty and fairness. It is important that the whole procedure is smooth and effective. There should be clear notice for any company designated as gatekeeper, and a proportionate deadline for them to comply with the additional requirements. The proposal currently provides the Commission with ample margins of discretion when establishing which companies should or should not be subject to further obligations. It is essential that the significant regulatory intervention into companies’ activities comes with strongly articulated procedural safeguards.

    While the Commission will retain the power to regulate and make modifications, that authority is currently very broad, and should be subject to appropriate scrutiny, to ensure an appropriate level of accountability and avoid hampering the credibility of the framework. Among others, Article 17 gives the Commission disproportionate discretion to add new obligations under articles 5 and 6 through delegated acts, modifying substantive provisions without the intervention of the legislator.

    Substantive obligations

    Some of the obligations spelled out in Chapter III address valid concerns, such as preventing a user from raising issues with relevant public authorities. On the other hand, given the diversity of core services and business model targeted, the rationale for others is unclear and concepts that have been developed in the context of very specific situations require clarification on the respective context, with the obligations to be limited to the core platform service where they are relevant, to avoid risking stifling otherwise pro-competitive behaviours. Overall, the obligations on core platform service providers should be proportionate, reasonable and as clearly defined as possible.

    Article 5 should only contain a narrow set of “per se” prohibitions which is specific and targets practices that have been clearly demonstrated as being particularly harmful to competition. For instance, article 5(a) prohibits combining users’ data from different services without consent. However, not only the GDPR already contains horizontal provisions around consent, but it also provides additional legal bases alongside consent. Article 5(a) should reflect this and allow for data processing based on all the legal bases provided for in the GDPR.

    As it stands, Article 5(c) would allow business users of a gatekeeper service to do business directly with a platform’s end users, regardless of its terms and conditions. This would make it impossible for the platform to apply its business model, particularly when commission-based. It is difficult to discern whether these prescriptions are proportionate and appropriate in abstract and without a case-by-case assessment, and applying them in a generalized manner to very complex and diversified situations does not seem appropriate. Furthermore in case the end users acquire a business user’s product outside of the gatekeeper’s core platform, Article 5(c) would also allow end users to also access the product through the gatekeeper’s core platform, while using the business user’s application. In these circumstances, a gatekeeper should not be held responsible for risks the consumers may be exposed to in their direct interactions with independent applications.

    Clarifying the difference in the application of the obligations respectively in article 5 and those in article 6 that are “subject to further specification” is also crucial. Recital 58 of the proposal mentions that the process of further specification of the obligation is at the Commission’s discretion following a dialogue with the company concerned. While we certainly welcome the regulatory dialogue between the Commission and the companies in scope of this Regulation, a detailed process for “further specification” of the obligations should be established in the operative provisions of the DMA, with clear principles and criteria. We appreciate the possibility for gatekeepers to discuss with the Commission an implementation plan for the obligations in article 6, that are by their nature more open to interpretation.

    In the context of this regulatory dialogue and in order to ensure proportionality, companies concerned should have the possibility to provide objective justifications for the business practices targeted in articles 5 and 6, on the basis of clear principles as well as compliance with separate legal obligations (e.g. data protection). The removal of an obligation should be possible if, based on these objective justifications, the obligation does not serve the goals of the regulation.

    The procedures of article 8 suspending a specific obligation and of article 9 granting exceptions for overriding reasons of public interest should be as streamlined as possible. Consideration should be given to other, equally valid, reasons that may justify exceptions. The application of the exceptions should be subject to the regulatory dialogue we previously referred to.

    Further, we believe that other obligations may be too far-reaching for any company. This is the case for instance for the requirement in article 6(i) and 6(j) to grant continuous, real-time access to data of users to third parties authorized by a business user of the gatekeeper.

    The obligation in article 6(g) should also be carefully considered. At present, advertisers utilise data from independent measurement companies to verify performance. The proprietary information of platforms, independent measurement companies, or advertisers should not be subject to public view but instead should be transparent within the business relationship (as it is today). Such provision could otherwise undercut the present ad delivery ecosystem and risk revealing sensitive information.

    The obligation in article 6(k) to apply “fair” access conditions presents a challenge since what is fair for one set of users may be seen as unfair for others. In the pursuit of ensuring a fair business environment, the DMA should rather seek to address and define what is unfair and prohibited. This is the approach taken by the Unfair Commercial Practices Directive or the Unfair Trading Practices Directive in the agri-food sector.

    Finally, some obligations stand to redesign business models altogether, or present very complex technical challenges which are disproportionate to the goals of the DMA. This includes Article 6(c) on side-loading and alternative app stores. These obligations should only be imposed in case of identified and demonstrated antitrust violations, following well established enforcement proceedings.

    Market Investigations

    In line with the comments made above, the Commission powers in the context of market investigations as laid out in articles 14 to 17 should be complemented by strong due process guarantees, providing appropriate opportunities for companies (either potential gatekeepers or their competitors if they have a legitimate interest) to challenge the Commission’s decisions.

    It is important to maintain the limitations for the Commission in article 16.1, where it can only impose behavioural or structural remedies if a firm has both a) infringed the substantive obligations of articles 5 and 6, and b) has concurrently strengthened its gatekeeper position. In principle, the limitations in article 16.1 and 16.2 setting out strict conditions for the imposition of structural remedies appear also appropriate, structural remedies should only be applied as a last resort, and provided the suggestions related to the substantive articles 5 and 6 obligations are taken into account. A decision imposing structural remedies should also be subject to strict due process standards and to judicial review before its application, given the remedy’s seriousness and likely irreversibility of a structural remedy. In both instances the market investigations into systematic non-compliance referred to in the first paragraph should be accompanied by appropriate due process safeguards in paragraphs 5 and 6 and should afford the gatekeeper with a right to be heard and to contest the allegations, before the imposition of any remedy or fine.

    If the above conditions are met, in case of systematic, intentional non-compliance, i.e. an apparent unwillingness of the gatekeeper to comply with EU rules, we believe it appropriate, for a gatekeeper to face as a last resort the imposition of remedies. However, in order to follow the logic that a finding a systematic non-compliance be connected with repeated infringements over time, the 3 non-compliance decisions on any of the gatekeeper platform’s services within 5 years described in Article 16.3 should also be non- contextual and taken following three separate proceedings.

    Any proposal to amend the regulation following an investigation as per article 17 which concluded there is a need to add new core platform services, or new unfair practices to the scope of the regulation, should be accompanied by appropriate, open stakeholders’ consultations and should follow the ordinary legislative procedure rather than – as proposed – be implemented through delegated acts, which would exclude Parliament and Council from the decision-making process.

    Enforcement provisions

    As mentioned above, the Digital Markets Act proposal affords the Commission broad investigative and enforcement powers, accompanied by wide discretion in the interpretation and application of the substantive criteria and obligations. This needs to be accompanied by unambiguous due process safeguards, to increase accountability on all sides, including the right to be heard and to effectively challenge any decision without having to embark in lengthy proceedings in front of the Court of Justice of the EU.

    This is essential because while many powers in the DMA context are as strong and impactful as those the Commission enjoys in the antitrust context, they are not currently designed to be taken through the same strictly regulated procedural steps – which have also been subject to the EUCJ’s scrutiny over the course of the past 60 years.

    As regards the procedure for the request of information or decision to require information laid out in article 19, the draft should specify the request for information should always be proportionate, appropriately motivated, clear and specific. We suggest that the time-limit established by the Commission to provide information as laid out in articles 19(3) and 19(4) should be reasonable and open to extension requests for companies, should it be necessary to comply with the request. Appropriate additional guarantees should be included in case confidential business information is concerned.

    Some of the investigative powers in chapter V are extremely broad and far-reaching. The power to conduct on-site inspections as described in article 21 is particularly invasive, while the proportionality and necessity of on-site inspections in this context are not obvious. This is particularly true since the main stated purpose is asking questions and explanations to personnel (not only this would not require on-site presence, but also seems to be covered by article 20 on interviews) and providing access to the organisation and IT systems among others – here, it would be important to clarify the specific purpose for the access. Finally, it is unclear if the Commission decision to conduct an on-site inspection must be communicated to the company concerned in advance and with which notice period.

    We recognise the need for the power by article 22 to mandate interim measures in the interest of business users or end users in case of urgency due to the risk of serious and irreparable damage. This possibility requires careful consideration and should, again, be complemented with clear procedural guarantees, including in particular a clear a short time limit – as currently drafted, article 22.2. would allow the Commission to renew indefinitely measures that are instead supposed to be taken in exceptional circumstances and “in the interim” of an ongoing investigation.

    International aspects

    As today’s economy is highly digitalised and globalised, the international impact of the Digital Markets Act proposal needs to be carefully considered as the discussion progresses.

    ITI strongly supports free and undistorted competition as a key factor to promote innovation and consumer welfare globally. Maintaining an open and business friendly environment in Europe is not only important for European consumers, but also for the development of an innovative and successful business ecosystem in the European digital economy.

    Any criteria not based on objective principles risks unduly diminishing access to goods and services offered by firms falling within the DMA that – regardless of their foreign or European credentials – enable SMEs and startups in Europe, allowing them to compete across the single market and catalyzing their growth potential. For this reason, in addition to those already addressed in this submission, it is of the outmost importance that the rules are targeted to proven and clear market failures and remain non-discriminatory in nature, are fair and open to rebuttal.

    In addition, if throughout the legislative process the Digital Markets Act is developed in a way that disproportionately affects certain companies without clear and objective market-based concerns, it may risk creating tensions in the global trading environment and discourage further investment in Europe and – given the EU’s international normative influence – it could also constitute a precedent triggering the adoption of similar measures by other governments globally, not all of which share the EU’s commitment to due process and consumer welfare.

    The EU has an imperative to think globally when creating domestic rules – particularly those, like the DMA, which are inherently international in their proposed scope – by talking to its international partners and developing market rules that help foster a convergence that is important to all companies regardless of their place of establishment. As we have recommended in other contexts, we strongly encourage the EU to engage in meaningful dialogue with like-minded international partners as a means of ensuring that any final legislation is fair, proportionate, and in line with the EU’s international commitments and diplomatic priorities.

    Reply
  • 14
    2

    The legislative framework for regulating digital services and platforms must adequately protect rights of persons with disabilities. For this, both the Digital Services Act (DSA) and Digital Markets Act (DMA) must ensure:
    Accessibility: Our main demand is to ensure accessibility of intermediary services for persons with disabilities. It is important that accessibility is ensured for all users, and not only for consumers, to make sure that organisations and businesses run by or employing persons with disabilities enjoy the same rights as other users of digital services and platforms. We propose a new article under DSA Chapter III, Section 1- Provisions applicable to all providers of intermediary services highlighting accessibility. For DMA, we propose a requirement to ensure accessibility for persons with disabilities amending Article 6 – Obligations for gatekeepers susceptible of being further specified.
    Mainstreaming of accessibility throughout the legislation: in addition to the proposed article, accessibility of services, information, feedback and complaints mechanisms, dispute settling systems (Article 18, DSA), as well as reports of services (Articles 13, 23, and 33, DSA), national authorities (Article 44, DSA), and the European Commission is vital, so that this Regulation serves all EU citizens equally.
    Consistency with relevant international and Union legal frameworks: This Regulation must be consistent with other Union legislation on accessibility and equality, and be based on EU’s obligations under international human rights frameworks, namely the UN Convention on the Rights of Persons with Disabilities (UN CRPD) (see proposed new Recitals, DSA and DMA; Articles 1, DSA and DMA).
    Meaningful engagement with persons with disabilities: Involve persons with disabilities through their representative organisations in structures aimed at facilitating the implementation of the current Regulations, for example in the European Board for Digital Services (Article 47, DSA), or when drawing up codes of conduct for proper application of this Regulation (Article 35, DSA), and crisis protocols (Article 37, DSA).
    Effective data collection and reporting: Data on infringement of accessibility requirements under this Regulation should be reported by intermediary services to competent authorities, and included in the annual reports of these authorities in order to assess the effectiveness of this Regulation as regards ensuring accessibility of digital platforms and services for persons with disabilities (new Article 10, DSA).

    Context:

    As signatories to the United Nations Convention on the Rights of Persons with Disabilities (UN CRPD), the European Union (EU) and all Member States are legally obliged to ensure that persons with disabilities have access, on an equal basis with others, to information and communications technologies and systems, and other facilities and services open or provided to the public, both in urban and in rural areas. (Article 9 – accessibility).
    Accessibility is a pre-requisite for persons with disabilities to fully enjoy other rights enshrined by the UN CRPD, such as freedom of expression and opinion, and access to information (Article 21), participation in political and public life (Article 29), and participation in cultural life, recreation, leisure and sport (Article 30). The EU and Member States are also obliged to ensure rights of persons with disabilities to equality and non-discrimination (Article 5), freedom from exploitation, violence and abuse (Article 16), as well as protect the integrity of persons with disabilities (Article 17).
    Given growing importance of digital services and online platforms, especially of gatekeepers, in the lives of all persons, the protection of the above-mentioned rights and freedoms is equally important in the online domain. As we get more dependent on digital technologies, their impact on Sustainable Development Goals concerning access to education, work, healthcare, social services, housing, transport and other spheres grows. Despite this, millions of persons with disabilities in the EU still face exclusion from digital participation, which hinders their participation in mentioned areas of life. This is largely due to inaccessibility of digital technologies, including of online platforms and services. Online discrimination and hate speech experienced by many persons with disabilities further reinforces their marginalisation and exclusion from the public domain.
    Recent EU-initiatives such as the European Accessibility Act, the Web Accessibility Directive, Audiovisual Media Services Directive, and the European Electronic Communications Code have been important drivers for inclusion and participation of persons with disabilities in society, and have demonstrated that the EU is committed to meet its international human rights obligations under the UN CRPD. There are, however, still large gaps in EU accessibility and anti-discrimination legislation that would ensure full protection of rights of persons with disabilities.
    Having provided feedback to the European Commission’s public consultation on the Digital Services Act package, we are disappointed with the disregard of accessibility of digital services and platforms for persons with disabilities in EC proposals for Digital Services Act and Digital Markets Act. We strongly call on the European co-legislators to ensure accessibility of digital platforms and services, so that European law best serves the interest of all Union citizens, including of more than 100 million EU citizens with disabilities.
    As noted in our feedback to the EC public consultation and adjacent recommendations document, we reinstate our four main recommendations that are vital for making sure that the proposed legislative framework adequately protects rights of persons with disabilities in relation to digital services and online platforms. Those are:
    1. Ensuring accessibility of digital platforms and services with a universal design approach
    2. Preventing discriminatory content, including hate speech on online platforms and services
    3. Ensuring right to privacy and protection of personal data of persons with disabilities
    4. Strong enforcement mechanisms, including well-resourced EU and national regulatory authorities.

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    vzbv welcomes that the European Commission’s proposal for the DMA recognises problematic developments in digital markets that have aggravated over the past decade: The economic dependence of consumers and business users on large digital gatekeeper platforms has increased and the imbalance of bargaining power in these markets has risen. Large platform players often set their own rules to strategically exploit digital markets’ driving forces, like network effects, economies of scale and scope, and information asymmetries. These rules often turn into unfair conditions for consumers and business. They further weaken competition in these markets and the contestability of their own services’ or products’ market position.

    Therefore, vzbv welcomes that the DMA addresses these market failures by bolstering contestability of gatekeepers’ services and addressing the pervasive unfair conditions imposed upon consumers and business in these markets.

    vzbv welcomes that the obligations for gatekeepers are directly applicable and self-executing. The DMA must meaningfully complement rather than replace the European competition law framework – although its effects will be partly similar and vitalise the digital economy: It will create competition, foster innovation and enhance consumers’ choice – some core pillars of a successful market economy.

    Decisions on gatekeepers: Stronger focus on consumers is needed:

    The DMA’s focus is on unfairness towards business users and not consumers. In multi-sided platform markets such as those in which the gatekeepers operate, however, consumers and business users each constitute an equivalently important market side. Therefore, consumers need to be as much in the focus of “fairness rules” as business users are. For example, consumer representatives must have the right to be heard and to access files in European Commission’s DMA proceedings, similar to the rights they have in competition cases (Art. 30). Decisions on updating the obligations must also consider gatekeepers’ unfair treatment of consumers, not only their misconduct vis-a-vis business users (Art.10).

    Behavioural and structural Remedies: More timely intervention is needed:

    vzbv regrets that the European Commission removed the “New Competition Tool” (NCT) from its toolset. Nonetheless, the dynamics of digital markets require that the European Commission is able to impose case-specific behavioural and structural remedies in a timely and flexible manner. Unfortunately, the provisions in the DMA do not allow for this to the extend necessary. The DMA enables the European Commission to impose behavioural or structural remedies on a gatekeeper only if it has infringed the DMA’s obligation three times in the last five years and “further strengthened or extended its gatekeeper position” (Art. 16). This timespan can be exploited by gatekeepers to reap the benefits from unfair treatment of consumers and business and decrease the contestability of their services. Competent authorities must be enabled to address gatekeepers’ malpractices and non-compliance with the DMA-rules in a timelier manner with specific behavioural or structural remedies.

    Dark patterns and manipulation of consumers: Risk of circumvention of DMA obligations:

    The proposal does not refer to the gatekeepers’ use of so-called “dark patterns”. Dark patterns surreptitiously influence consumers’ behaviour by manipulative interface designs that exploit consumers’ behavioural biases . These techniques harm consumer welfare by unfairly subverting or impairing user autonomy, decision-making. Thereby they limit the contestability of gatekeepers’ services, as consumers are pushed to make decisions that do not reflect their actual preferences. Gatekeepers can exploit these recognised behavioural biases to channel and manipulate consumer choices in order to circumvent a number of obligations under Art. 5 and 6 DMA. This is specifically the case for the ban for combining users’ personal data in Art. 5 (a), the rule for allowing users to remove pre-installed software applications (Art. 6b) and the prohibition of technical lock-ins (Art. 6e).
    The DMA should explicitly provide that gatekeepers may not circumvent DMA obligations of gatekeepers by exploiting dark patterns and manipulative choice architectures. To this end, the DMA should impose a “fairness-by-design” duty on gatekeepers ensuring balanced choice architectures and interface designs that make it as easy as possible for consumers to make genuine choices while exercising their rights with respect to Art. 5 and 6.

    No efficiency defence for exceptions or suspension of obligations:

    The value of the self-executing obligations in Art. 5 and Art. 6 is that they directly protect consumers end ensure contestability. vzbv sees the risk, that potential gatekeepers will argue that the specific and self-executing obligations under Art 5 and 6 should be augmented into a more principle-based approach. The problem is, that a more principle-based approach, will be likely to allow an efficiency defence, for example to obtain exemptions or suspension of obligations under Art 5 and 6. It is likely, that companies will exploit the efficiency defence to circumvent obligations, to delay procedures and overwhelm competent authorities’ capacities. The DMA should prevent competent authorities from being caught in the “efficiency defence trap”.

    DMA must not override national competition laws:

    vzbv emphasizes that it must be ensured that DMA rules do not override national competition law, in particular, the recently revised German competition act . It introduces the possibility for the German competition authority (Bundeskartellamt) to impose obligations on large gatekeepers in platform markets that go beyond some of those proposed in the DMA (e.g. prohibitions on tying and bundling of services or self-preferencing).

    Manpower and Member States: Ensure effective enforcement:

    Considering the complexity of the investigations and cases, the number of full-time employees within the European Commission designated to enforce the DMA is too low, jeopardising the effective enforcement of the DMA rules. Lawmakers must significantly increase the number of full-time employees assigned to the enforcement of the DMA. In addition, lawmakers could amend provisions in the DMA enforcement regime to allow for more contributions from national authorities without sacrificing EU wide consistency in the enforcement.

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    Position of the European Broadcasting Union (EBU) on the Digital Markets Act

    The European Broadcasting Union (EBU) , representing public service media organisations in Europe, supports the proposed Digital Markets Act’s objective to create a fairer and more contestable digital space by establishing a strong rulebook for online gatekeeper platforms. Such rules are key to support fundamental values such as cultural diversity and media pluralism. Today, global online platforms largely determine who sees or hears what and when. The DMA must tackle unfair gatekeeper behaviour to guarantee citizens’ ability to access and engage online with the media they most trust and value and to enable Europe’s diverse media landscape to further prosper.

    The internet has brought innovative ways of reaching and interacting with citizens. Public service media offer their diverse content and information beyond their own digital channels and services, and use the opportunities provided by global platforms to engage with their audiences. But global platforms have huge influence over how media is served to and found by users. They control vast amounts of data and are in a unique position to impose their choices to audiences by self-preferencing their own services and content and by bundling service offerings.

    The proposed DMA is a timely opportunity to address the risks stemming from the powerful position of gatekeeper platforms and to promote fairness, competition, innovation, plurality and real choice for European citizens. We applaud the fact that the DMA will not only cover platform services – such as video-sharing platforms, social networks, search engines – that have become key for media consumption and distribution, but also other relevant platform services where global gatekeepers’ power is likely to rapidly grow: e.g. smart devices, voice assistants and their operating systems. We equally support the European Commission’s approach to introduce new obligations (“do’s and don’ts”) against gatekeeper platforms’ unfair behaviour.

    We now call upon decision-makers to strengthen the proposed DMA in the following areas.

    – Strengthen the ban on self-preferencing

    Citizens use online services such as social networks or search engines to find news, information and other media content. To ensure citizens’ easy access to a plurality of sources and to avoid platforms unilaterally favouring their own content, the DMA needs to impose a strong ban on self-preferencing.

    We welcome the proposed prohibition on self-preferencing in ranking but call for it to be extended to capture the various ways in which global platforms engage in self-preferencing practices. In line with the 2019 EU Platform-to-Business Regulation , the ban on self-preferencing should apply to ranking and other settings as well as to access and conditions for the use of technical functionalities and interfaces. We also call for other core platform services such as video-sharing platforms to be included in the definition of ranking, given the key role that they play for media consumption.

    – Prohibit unfair bundling and tying of services

    The proposed DMA prohibits bundling practices that require a user to subscribe to or register with one service to use another service. But it should also address other unfair bundling practices. For example, some gatekeeper platforms force business users to offer content on the gatekeepers’ premium (subscription-based) service as a condition to make that content equally available on the general (free) service – with no room for negotiation. For public media, this can mean being cut off from audiences, particularly young audiences, that they are expected to reach.

    – Ensure proper access to data and ban data-driven exploitative behaviour

    The DMA must ensure that media organizations have access to meaningful data related to their own content and services that appear on platforms. We applaud the proposal to grant business users such access, but we warn against any loophole enabling platforms to escape the obligation to share data (e.g. by ‘nudging’ end users into refusing to share personal data with business users).

    As shown by competition authorities’ investigations, gatekeeper platforms derive their market power from combining users’ personal data within a proprietary ecosystem . The proposed DMA allows platforms to combine data across different services if the user grants consent. However, gatekeeper platforms should altogether be prevented from combining data in order to effectively reduce their data power.

    – Ensure effective and adaptable enforcement

    We call upon the European Commission to allocate sufficient resources to ensure effective enforcement, as well as to allow business users to request the launch of a market investigation. The Commission’s capacity to designate as ‘gatekeepers’ emerging players that do not yet fulfil all the quantitative conditions set in the proposal will enable authorities to adapt to fast-changing digital markets that can ‘tip’ very quickly. However, the Regulation should allow the Commission to impose all obligations foreseen in the DMA to these entities and not only a select few.

    – Secure the application of sector-specific EU and national laws

    The DMA should not affect national and sector-specific rules supporting media pluralism and other legitimate public interests, nor prevent Member States from imposing stricter rules to address issues arising in national markets that are not necessarily pan-European.

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    With a single consent, a gatekeeper could combine all personal data across businesses and processing purposes. This dilutes the GDPR’s purpose limitation principle, in GDPR Article 5(1)b, and is highly dangerous. I suggest removing the final sentence.Reference

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    The concrete example is here Samsung’s installation of Facebook App on their smartphones which cannot be uninstalled (only deactivated) and occupies significant main memory.

    Also Samsung does not allow you to store certain data on the SD card instead of thew main memory. In a way that is cheating with your built-in memory because it gets occupied by system services that you did not request and cannot remove.

    What needs to be kept in mind for 46 is the removal of the notion of “own services” – facebook in the example is not Samsungs own service but a business partner, same for all kinds of preinstalled apps and search providers.Reference

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    It is unclear here with the use of the term “may” that an unwanted practice is described, not a permitted practice by this recital (cmp. the standard translation “dürfen” for may).

    See also below in 47 the phrase “may implement”.Reference

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    I think we specifically need to address the technical disabling of emptied ink cardridges by printer manufacturers firmware that otherwise EU law permits to refill. Also the inability to manually turn off such firmware updates and prevent third party ink cardriges without the possibility of a user override.

    This kind of practices need to banned. The EU under Monti wanted to terminate the abusive practices 20 years ago but it only got worse. Today you buy ink cardriges with 3.5 ml ink for 200 pages whereas in the 90ths you had 42ml. And you cannot refill them anymore because of firmware. Liter prices of printer ink are way above 5000 Eur.

    https://www.spiegel.de/netzwelt/web/eu-kommission-schluss-mit-dem-druckertinten-wucher-a-196301.htmlReference

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    Too weak. “increasingly important role” and just economical. We need a new phrase, that better nails it and helps to build and support the legal base case for the European intervention.

    While recitals are generally not so important, it seems useful to get it the right spin from the start: power concentrations and super-dominance.Reference

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    The value bearing term “important” does not suit a legal text.

    The gatekeeper role is here reduced to its ability to control/grant market access of commercial players.

    The term operator of a CPS is limited to those CPS which do *
    I suggest to cut the conditional.Reference

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    a) Definition would be inconsistent with Article 1.2:

    “provided or offered by gatekeepers to business users established in the Union or end users established or located in the Union,”

    b) the language is recursive: “A provider of core platform services shall be designated as gatekeeper if: ..it operates a core platform service…”

    Proposal:
    “its core platform service is provided for or offered to business users established in the Union or end users established or located in the Union,”Reference

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    + Additionally 1 should be considered satisfied where on ground of competition law has already been established a “dominant market position” for the undertaking.Reference

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    They probably mean disclosure of database layouts/schemes.

    I think it would make sense to beef that up a bit going into the technical specifics of database disclosure and satisfactory documents.

    Generally we know that from parliament committee inspections into government information systems, a disclosure of the database scheme would enable a technical analysis by a person skilled in the art while written legal statements blur the understanding.Reference

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    Furthermore the EU treaties mandate “as openly as possible” as a principle.Reference

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    needs to be without prejudice to the interop and decompilation rights by Directive 2009/24/ECReference

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    this should also include hardware use options, also explicitly use of memory.

    payment providers may a new pointReference

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    Here room for intervention in the field of
    certification and review/approval, developer signing certificates etc. ; availability of complaint and mediation procedures etc.Reference

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    “ensuring” appears to suggests that the regulatory objective is fully and comprehensively satisfied by compliance to this regulation. I would change it to “aimed at ensuring”Reference

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    Of course this appears necessary for making the case under the legal base.

    However, it is hardly acceptable to cut the prerogatives of national legislators.

    It is also questionable whether by means of Regulation member states can be restrained that way (“shall not impose”).

    The way out is I think to change the first sentence to relate to the European digital single market and the pan-European provision of services.

    The case under the present legal base for a regulation needs to be built more robust and without an emasculation of the member states.Reference

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    New recital 52
    “n/a As Party to the United Nations Convention on the Rights of Persons with Disabilities (UN CRPD), provisions of the Convention are integral part of the Union legal order and binding upon the Union and its Member States. The UN CRPD requires its Parties to take appropriate measures to ensure that persons with disabilities have access, on an equal basis with others, to information and communications technologies and systems, and other facilities and services open or provided to the public, both in urban and in rural areas. General Comment No 2 to the UN CRPD further states that “The strict application of universal design to all new goods, products, facilities, technologies and services should ensure full, equal and unrestricted access for all potential consumers, including persons with disabilities, in a way that takes full account of their inherent dignity and diversity.” Given the ever-growing importance of digital services and platforms, especially of gatekeepers, in private and public life, in line with the obligations enshrined in the UN CRPD, the EU must ensure a regulatory framework for gatekeeping services which protects rights of all recipients of services, including persons with disabilities. Declaration 22 annexed to the final Act of Amsterdam provides that the institutions of the Union are to take account of the needs of persons with disabilities in drawing up measures under Article 114 TFEU.”Reference

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    new recital 53
    “n/a Given the cross-border nature of the services at stake, EU action to harmonise accessibility requirements for gatekeepers across the internal market is vital to avoid market fragmentation and ensure that equal right to access and choice of those services by all consumers and other recipients of services, including by persons with disabilities, is protected throughout the Union. Lack of harmonised accessibility requirements for gatekeepers will also create barriers for the implementation of Union legislation on accessibility, as many of the services falling under those laws will rely on gatekeepers to reach end-users. Therefore, accessibility requirements for gatekeepers, including their user interfaces of their services, must be consistent with existing Union accessibility legislation, such as the European Accessibility Act and the Web Accessibility Directive, so that no one is left behind as result of digital innovation. This aim is in line with the Union of Equality: Strategy for the Rights of Persons with Disabilities 2021-2030 and the Union’s commitment to the United Nations’ Sustainable Development Goals.”Reference

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    New recital 54
    “The notions of ‘access’ or ‘accessibility’ are often referred to with the meaning of affordability (financial access), availability, or in relation to access to data, use of network, etc. It is important to distinguish these from ‘accessibility for persons with disabilities’ which means that services, technologies and products are perceivable, operable, understandable and robust for persons with disabilities.”Reference

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    add Directive (EU) 2019/882 ; Directive (EU) 2018/1808.Reference

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    add 24 new
    “‘persons with disabilities’ means persons within the meaning of Article 3 (1) of Directive (EU) 2019/882;”Reference

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    add l. new
    “ensure their services, including user interfaces, are accessible to persons with disabilities in accordance with Article 13 of Directive (EU) 2019/882. They shall also ensure that business users which rely on their core platform service to reach consumers for offering services and products in the scope of Directive (EU) 2019/882, comply with the requirements of Directive (EU) 2019/882.”Reference

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    add c new:
    “rights of consumers, including in relation to privacy, equal access and choice to services for consumers with disabilities, is not ensured by gatekeepers.”Reference

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    add c. new
    “further specification of accessibility requirements pursuant point (l – new) of Article 6(1).”Reference

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    The recent reform of the German Competition act (“Gesetz gegen Wettbe-werbsbeschränkungen” or GWB) enables the German competition authority (Bun-deskartellamt) to impose obligations on large gatekeepers in platform markets. These can go beyond some of the obligations laid out in the DMA (for example prohibitions on tying and bundling of service or self-preferencing, or the obligation to enable effective data portability and interoperability).
    Art. 1 (5) of the DMA prohibits Member States to “impose on gatekeepers’ further obliga-tions by way of laws, regulations or administrative action for the purpose of ensuring contestable and fair markets. This is without prejudice to rules pursuing other legitimate public interests, in compliance with Union law.” Recitals (5) and (19) state that the appli-cation of Articles 101 and 102 TFEU as well as the corresponding national competition rules will still be permitted by Member States. The newly amended German competition act allows the Bundeskartellamt to impose individual obligations on gatekeepers who do not meet the threshold of market dominance (and thus abuse of a dominant position). The dominance-based approach, however, is at the heart of enforcement of Article 101 and 102 TFEU and their corresponding national competition rules. There is the risk that the DMA would render the newly amended German competition act GWB (in parts) un-lawful as it targets gatekeepers below the dominance-threshold.

    > EU lawmakers must ensure that the DMA rules do not override national competition laws or even render them unlawful, in particular, the recently revised German compe-tition act (GWB) that allows imposing obligations on gatekeepers below the “domi-nance-threshold”.Reference

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    vzbv welcomes that the European Commission includes a broad range of core platform services (CPS) in the list in Art. 2 (2). It is appropriate to draw on such a broad range of services to identify gatekeepers, as gatekeepers emerge in the most diverse markets. vzbv holds that the list of CPS should be supplemented by streaming services and smart virtual personal assistants (like Amazon’s Alexa, Apple’s Siri etc.).
    The European market for smart virtual assistants is dominated by few players (Google, Apple, Amazon, Microsoft). The number of consumers relying on smart virtual assistants at home (via “smart speakers”) or in mobile devices increases continuously . Digital as-sistants are often used as recommender systems in various areas of life and markets where they increasingly influence consumer decisions . Thereby, they can constitute critical bottlenecks between consumers and third-party providers of services or products.
    Multisided streaming platform services (for example for games, music or films, like Dis-ney+ or Sky) are becoming increasingly important for consumers, not least because of the COVID 19 pandemic . This is reflected in the growing number of users, subscriptions and the turnover generated by these platforms. vzbv sees no reason for not explicitly including these platforms in the list of CPS.
    Although online intermediation services are CPSs pursuant to Art. 2, streaming services do not count as an online intermediation services means services as defined in point 2 of Article 2 of Regulation (EU) 2019/1150; which holds that an online intermediation service must “allow business users to offer goods or services to consumers, with a view to facilitating the initiating of direct transactions between those business users and consumers” [accentuation in italics by vzbv]. Typically streaming services like Disney+ do not facilitate direct transactions between content providers and consumers, but offer consumers a content catalogue for a flat monthly fee.
    Even if many streaming services do not pass the thresholds of Art. 3 (2) yet, this may change soon. In addition, streaming ser-vices may become increasingly integrated with other services (e.g. with shopping plat-forms or advertisement services), forming gatekeeper-ecosystems.

    > The list of core platform services in Art. 2 (2) should be supplemented by streaming services and smart virtual/digital assistants.Reference

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    Adjustment of threshold: 45 million end users across all core platforms services

    The user-number threshold in Art. 3 (2) (b), indicating the importance of a CPS as a gateway for business users to consumers, should be amended. The threshold now holds that the monthly active end users in the EU surpasses 45 million and that the active business users surpass 10 000 of the CPS core platform service active in at least three Member States. Digital services and products become increasingly intertwined, particularly as gatekeepers try to create ecosystems of interconnected services and devices. The “classic” US-based gatekeepers’ strategy used to be focussed on services/products in their core business. However, the current trend led by Chinese tech giants, e.g. in retailing, and emulated by western counterparts, is to integrate multiple services into an ecosystem . Thus, user numbers across all CPS of a provider is a more suitable proxy for the bottleneck power of a gatekeeper.

    > The threshold in Art. 3 (2) (b) should be adjusted: The requirement of a core platform service being an important gateway for business users to reach end users (in Art 3 (1) (b)) should be satisfied when a provider has 45 million monthly active end users established or located in the Union across all of its core platforms services and more than 10,000 active business users per year established in the Union during the last financial year.Reference

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    No efficiency defence for exception or suspension of gatekeeper status

    Art 3 (4) allows a gatekeeper to become “exempted” from its “gatekeeper-status” if it presents sufficiently substantiated arguments, demonstrating that it does not satisfy the requirements for being a gatekeeper. In its decision, the European Commission must take into account the elements listed in Art 3 (6). These include size, number of users, barriers to entry, effects of scale and scope and lock-in. vzbv welcomes that the elements in Art 3 (6) do not foresee an efficiency defence. In competition cases (particular merger cases, recently also in dominance abuse cases) efficiency defences often lead to long procedures, that can be strategically employed by undertakings to delay decisions.

    > The DMA should focus on timely addressing unfair conditions. The efficiency arguments should not be taken into account when assessing core service platform providers’ gatekeeper status. In particular, the efficiency defence should not be taken into account when deciding over exceptions from gatekeepers’ obligations, as it can be used by companies in a strategical way to delay procedures.Reference

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    vzbv supports the European Commission’s approach to designate gatekeepers based on a mix of quantitative and qualitative thresholds.

    > Art. 3 (6) must be upheld as it allows the European Commission to designate provi-ders of CPSs as gatekeepers, even if they do not meet all thresholds in Art. 3 (2). This gives the European Commission the necessary flexibility to designate underta-kings as gatekeepers if they develop new business models or if they do not meet the quantitative thresholds defined in Art. 3 (2).Reference

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    Uphold flexible approach to designate gatekeepers

    vzbv supports the European Commission’s approach to designate gatekeepers based on a mix of quantitative and qualitative thresholds.

    > Art. 3 (6) must be upheld as it allows the European Commission to designate provi-ders of CPSs as gatekeepers, even if they do not meet all thresholds in Art. 3 (2). This gives the European Commission the necessary flexibility to designate underta-kings as gatekeepers if they develop new business models or if they do not meet the quantitative thresholds defined in Art. 3 (2).Reference

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    Adjustment of threshold: 45 million end users across all core platforms services

    The user-number threshold in Art. 3 (2) (b), indicating the importance of a CPS as a gateway for business users to consumers, should be amended. The threshold now holds that the monthly active end users in the EU surpasses 45 million and that the active business users surpass 10 000 of the CPS core platform service active in at least three Member States. Digital services and products become increasingly intertwined, particularly as gatekeepers try to create ecosystems of interconnected services and devices. The “classic” US-based gatekeepers’ strategy used to be focussed on services/products in their core business. However, the current trend led by Chinese tech giants, e.g. in retailing, and emulated by western counterparts, is to integrate multiple services into an ecosystem . Thus, user numbers across all CPS of a provider is a more suitable proxy for the bottleneck power of a gatekeeper.

    >The threshold in Art. 3 (2) (b) should be adjusted: The requirement of a core platform service being an important gateway for business users to reach end users (in Art 3 (1) (b)) should be satisfied when a provider has 45 million monthly active end users established or located in the Union across all of its core platforms services and more than 10,000 active business users per year established in the Union during the last financial year.Reference

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    vzbv welcomes the obligations for gatekeepers laid down in Art. 5 and 6. As the obligations are directly applicable and self-executing, they protect consumers immediately six month after an undertaking has been designated as a gatekeeper from unfairly imposed unfair conditions. The obligations in Art. 5 and 6 are vital building blocks for addressing unfair conditions imposed on consumers and businesses by different gatekeepers. They are also suited to address gatekeepers’ attempts to undermine the contestability of their own services.

    > vzbv strongly urges European lawmakers not to weaken the fixed, self-executing obligations laid down in Art. 5 and Art. 6.Reference

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    The recent reform of the German Competition act (“Gesetz gegen Wettbe-werbsbeschränkungen” or GWB) enables the German competition authority (Bundeskartellamt) to impose obligations on large gatekeepers in platform markets.

    EU lawmakers must ensure that the DMA rules do not override national competition laws or even render them unlawful, in particular, the recently revised German competition act (GWB) that allows imposing obligations on gatekeepers below the “dominance-threshold”.Reference

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    The European market for smart virtual assistants is dominated by few players (Google, Apple, Amazon, Microsoft). The number of consumers relying on smart virtual assistants at home (via “smart speakers”) or in mobile devices increases continuously . Digital assistants are often used as recommender systems in various areas of life and markets where they increasingly influence consumer decisions . Thereby, they can constitute critical bottlenecks between consumers and third-party providers of services or products.

    > The list of core platform services in Art. 2 (2) should be supplemented by streaming services and smart virtual/digital assistants.Reference

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    The weakness of this obligation is that the ban on combining users’ personal data or on signing them into multiple services would not apply in case the user explicitly consented to these practices. It is common practice among gatekeepers to extensively use manipulative user interface designs (so-called “dark patterns”) to get user consent. For example, consumers’ behavioural biases are exploited to push them to consent to data collection and processing or deliberately stop them from unsubscribing from services. Often, users would have made other decisions had the choice architecture been more balanced.

    > Law makers must ensure that gatekeepers do not circumvent the ban on combining user data or on signing them into multiple services by obtaining user consent via unfair means. To ensure this, the anti-circumvention rule laid down in Art. 11 must be supplemented with provisions preventing gatekeepers from obtaining end user consent by exploiting consumer’s behavioural biases via manipulative interface design architectures (see vzbv comment on Art. 11 below).Reference

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    Art. 5 leaves loopholes that allow gatekeepers to still engage in tying and bundling of services, as both the tied and the tying service must either be a CPS or a service which is an important gateway for business users to access consumers (with more than 45m end users and over 10.000 business users). For example, under the current proposal of Art. 5 (f), Google could force users who would like to use only Fitbit (not a CPS) to subscribe to another CPS of Google, like Gmail.
    Tying and bundling to CPS allows gatekeepers to leverage their market position in a CPS to other markets. This harms competitors and reduces consumer welfare as users are forced to subscribe to services they do not want . Thus, the DMA provisions against tying and bundling should be broader than currently laid out in Art. 5 (f).

    > Art. 5 (f) should prohibit gatekeepers’ practices of tying and bundling of services if either one of the two services (the tying service or the tied service) is a core platform service pursuant to Art. 3.Reference

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    vzbv is concerned that gatekeepers will attempt to circumvent this obligation by purposely increasing the technical integration of the pre-installed software applications in question with other system components, for example the operating system. Also, current industry practice suggests that gatekeepers will try to use so-called dark patterns or manipulative user interface designs in order to obstruct or dissuade end users from removing pre-installed software applications.
    The DMA must prevent gatekeepers from exploiting dark patterns or manipulative choice architectures for obstructing or dissuading end users from removing pre-installed software applications (compare vzbv comments on Art. 11 below).

    > Art. 11 on anti-circumvention must contain an explicit provision banning gatekeepers’ practices of trying to prevent de-installation of pre-installed apps by purposely increasing their technical integration with other system components.Reference

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    vzbv sees a risk of gatekeepers circumventing the obligation to allow use or installation of third-party software application stores and software applications. This could for instance be done by artificially highly integrating their own services with the alleged purpose of security that could allegedly not be matched by external software.

    > The anti-circumvention clause (Art. 11) must prevent gatekeepers from circumventing the obligation to allow users to use or install third-party software application stores and software applications by purposefully abusing “the integrity of the hardware or operating system” as a justification.Reference

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      On 15 December 2020, the European Commission has published its long-awaited rules for digital services and digital markets, the Digital Services Act Package, consisting of two legislative proposals. One of them, the Digital Markets Act (COM(2020) 842 final) defines “do’s and don’ts” to address imbalances in digital markets. The Digital Services Act, on the other hand, attempts to curb some of the negative effects of limited liability while upholding the general principle from the 20-year-old e-commerce Directive, which regulated the distribution of content and goods online while limiting the liability of internet service providers and intermediaries like large platforms.
      We believe that the proposals are a step in the right direction to address the challenges that SMEs are facing in Europe’s digital economy. DIGITAL SME welcomes the proposals and that the European Commission is taking bold steps to bring back fairness to digital markets.
      Power imbalances and the practice of limiting access to newcomers is not new in digital markets. In the 2000s, the so-called “browser wars” served as a first indicator of what was to come. In 2009, DIGITAL SME backed the Commission on its antitrust investigation against Microsoft for tying Explorer to Windows. Similarly, in 2016, DIGITAL SME spoke out against the dominant position of Google’s Playstore on Android phones.
      DIGITAL SME believes that Europe needs an open and competitive digital ecosystem that enables innovation. Due to network effects and a closed proprietary environment, digital markets seem to concentrate more easily, leading to the dominance of a number of platforms which can sometimes act as gatekeepers. Large gatekeeper platforms are dominant across different fields, e.g., search and browser, app stores and operating systems, or social media and instant messaging. Their dominance allows them to attract ever-more users and collect more data about customers, which confirms their dominance even more.

      DIGITAL SME strongly welcomes the Digital Markets Act proposal. We think that it has strong elements to create a level-playing-field in digital markets which fosters innovation, and to provide opportunities to new market entrants. At the same time, we would like to raise a few additional points, which are outlined in the following pages, including:
      – According to Art. 2, a gatekeeper platform can be a ‘Core platform service’, defined in a list of several services. Given the quick pace of innovation in digital, we welcome that Art. 17 foresees a mechanism to add to the list of services. However, this process needs to be as transparent as possible and potentially include multistakeholder process.
      – We believe that the criteria defined in Article 3 to designate gatekeepers allow for a straightforward identification of those gatekeepers. As for the criteria of Art. 3(1) (b), the number of users should also include non-EU users as otherwise non-EU competitors with large users bases abroad could more easily enter the EU market building on their market power in other countries.
      – The thresholds defined in Article 3 should be kept at a level that ensures that upcoming innovative players will not be covered. We welcome that the proposal foresees qualitative criteria in Art. 3(6) which allow for future designation of gatekeepers based on those criteria, including reference to the role of data. This ensures that the DMA will sustainably contribute to fairness in digital markets by ensuring that not only large gatekeepers will be tackled, but that gatekeepers and specific behavior, that leads to market imbalances, will be addressed.
      – We believe that Art. 6(1)(c) which allows for the installation and effective use of third-party software applications needs to ensure that gatekeepers will not block the installation of third-party software based on security concerns. Users of the device should have the free choice to install third-party software and be able to do so after being notified of the risk.
      – Art. 6 should be strengthened to ensure interoperability and real user choice. Users should be able to switch to alternative services, which would allow innovative services to compete with incumbents. Stronger interoperability requirements for gatekeeper platforms would give a fair chance for new market entrants to compete on the merits of their services.
      – Finally, the European Commission needs to be equipped with sufficient human resources and budget to take up its role under the DMA.
      Please consult our position paper here: https://www.digitalsme.eu/digital/uploads/Position-paper-on-Digital-Markets-Act-FINAL-DRAFT.pdfReference

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    Even if the gatekeepers lifted the restrictions that technically prevent end users from installing alternative default applications, this is no guarantee that they will not use other means to obstruct or dissuade end users from switching to alternative applications by exploiting manipulative user interface designs or “dark patterns”.

    > The DMA provision on anti-circumvention (Art. 11) must prevent gatekeepers from using manipulative user interface designs in order to obstruct or dissuade end users from switching to software applications and services.Reference

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    It is not plausible why the obligation for interoperability should be limited to “ancillary services” and not extend to core platform services. The proposed rule, in its current form, would mean, for example, that Facebook would be obliged to let a competitor offer its own payment processing (ancillary service) for Oculus apps, but not oblige Facebook to allow them to offer a competing social media network or an alternative to the WhatsApp messaging service app (both being CPSs).

    > Gatekeepers should be obliged to allow access to and interoperability with their “operating systems hardware or software features” not merely for “ancillary services” of third-party providers but also for rival core platform services (as listed in Art. 2 (2)) of third providers.Reference

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    The deadlines in Art. 8 and Art. 9 favour gatekeepers as compared to other market participants. A gatekeeper can ask for the suspension of obligations where compliance would a) endanger its economic viability (Art. 8) or b) for overriding reasons of public interest (Art. 9). In both cases, the European Commission must respond within three month. In contrast, all European Commission decisions in relation to imposing obligations on gatekeepers would take significantly longer (six months). This is strongly geared towards gatekeepers’ interests as the discrepancy constitutes an imbalance to the detriment of third parties (business and end users).

    > In Art. 8 and Art. 9, the deadlines requiring the European Commission to decide over suspensions of obligations for gatekeepers should not favour gatekeepers but be extended from three to six months.Reference

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    This approach neglects end users/consumers and demand-side problems such as exploitation of consumers’ behavioural biases in relation to contestability, deception and lock-in effects. End users need to be as much in the focus of “fairness rules” as business users. It harms the well-functioning of markets and reduce welfare if the consumer side were ignored or considered second tier.

    > When updating the obligations for gatekeepers, the European Commission must not only consider gatekeepers’ unfair treatment of business users and risks to contestability. Decisions on updating the obligations must also consider consumer harm resulting from gatekeepers’ conduct.Reference

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    Unfortunately, the entire DMA refers nowhere to the use of so-called dark patterns used to surreptitiously influence consumers’ behaviour, manipulative user interface designs and the exploitation of consumers’ behavioural biases. Dark pattern’ means unfairly subverting or impairing user autonomy, decision-making, or choice via the structure, function or manner of operation a user interface or a part thereof.
    Articles in the DMA that are particularly vulnerable for being circumvented by gatekeepers exploiting dark patterns include:

    • Art. 5 (a) End user consent to personal data combination
    • Art. 5 (f) Tying of services
    • Art. 6 (b) Ability to uninstall apps
    • Art. 6 (c) Installing other apps/app stores
    • Art. 6 (d) Ranking and self-preferencing
    • Art. 6 (e) Prohibition of technical barriers to prevent end user switching
    • Art. 6 (h) Data portabilityReference

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    proposed Amendment for Art 11 (1), ad at the end of the sentence:

    contractual, commercial, technical or any other nature, “including by presenting end user choices in a non-neutral manner, or by otherwise subverting or impairing user au-tonomy, decision-making, or choice via the structure, function or manner of opera-tion of a user interface or a part thereof.”Reference

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    The DMA should explicitly provide that gatekeepers may not circumvent the obligations laid down in Art. 5 and 6 by exploiting so-called dark patterns and manipulative interface designs. The interfaces relevant for consumer decisions with relevance for the obligations in Art. 5 and 6 must be designed in a balanced way, not unduly favouring gatekeepers’ commercial interests to the detriment of business or end users. The interface design must not make the exercise of consumers’ rights or choices under Art. 5 and 6 unduly difficult by subverting, or impairing user autonomy and decision-making.Reference

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    propsed Amendment to explicutly prevent circumvention of oblligations by with dark patterns:

    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, “including by presenting end-user choices in a non-neutral manner, or by otherwise subverting or impairing user autonomy, decision-making, or choice via the structure, function or manner of operation of a user interface or a part thereof.”Reference

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    The DMA should increase the transparency obligations for gatekeepers vis-à-vis independent auditors with regard to a gatekeeper’s profiling techniques pursuant to Art. 13. It must be ensured that independent auditors are granted in depth transparency on a gatekeeper’s profiling techniques, including information on the kind of data that is used for profiling, its origins, purposes and exploitation of profiling (like personalised pricing and offerings, and rankings), sharing of data and profiling information (including by third parties). Also, the main findings of the independent audit must be published in order to enable consumers to make more conscious decisions about which services they want to use.Reference

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    Systematic infringement of the obligations imposed by the DMA can harm consumers without necessarily strengthening or extending its gatekeeper position. Therefore, the cumulative condition of extension and strengthening of the gatekeeper’s position as a precondition for imposing behavioural and structural remedies seems unjustified when the consumer welfare perspective is taken into account. If a gatekeeper systematically infringes the obligations of the DMA, this should suffice to impose behavioural or structural remedies, also as a disincentive to tactically infringe the DMA rules.

    > The European Commission should be empowered to impose behavioural or structural remedies on a gatekeeper if it was found to infringe the obligations laid down in Art. 5 and 6, regardless of whether it extended its gatekeeper position as a result of the infringement.Reference

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    vzbv regrets that the limitation periods for the imposition of penalties is 3 years, with the absolute limitation period of 6 years when interruptions are considered (Art. 28). This is significantly shorter than the 5 (10) years limitation period for competition law fines. Nonetheless, the subject matter of individual cases will be equally complex and difficult to grasp. Therefore, the shorter limitation period for the imposition of penalties does not seem to be justified.

    > The limitation period for the imposition of penalties (Art. 28) should be extended from three to five years.Reference

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    The practise of involving consumer representatives in competition cases has proved valuable and can serve as a blueprint for the DMA.
    vzbv as well as BEUC have contributed the consumer’s perspective in a number of landmark competition cases of the Bundeskartellamt and the European Commission.

    > Third parties, affected by gatekeepers’ conduct, including consumer associations representing consumers’ interests, must be grated the same rights to be heard and to access the files in European Commission’s DMA proceedings as gatekeepers have pursuant to Art. 30. This must include all relevant procedures on decisions that affect consumers, including market investigations for designating a gatekeeper status, compliance with, suspensions of and exemption from obligations, interim measures, fines, etc.Reference

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    Lawmakers must significantly increase the number of full-time employees assigned to the enforcement of the DMA within European Commission. Complementary to the increase in FTEs within the European Commission, vzbv suggests assessing how the DMA-enforcement regime could be amended to allow for more contributions from national authorities’ without sacrificing EU-wide consistency in the enforcement.Reference

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    Some of the core platform services (e.g. social media, instant messages) are horizontal communication mechanisms that connect generic “users” of any kind – there is no significant difference in features between “business users” and “end users” and often there is not even a special “business” account. So this formulation might be used to argue that they are out of scope as none of these platforms meets the qualitative requirements. You should add “or for other end users” after “business users”.Reference

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    Again, for platform services like social media or instant messaging, it is hard or even impossible to count the number of business users of the service in a factual manner. If a small business opens a Whatsapp account under a random mobile phone number, how do you tell they are a business? So the second quantitative requirement – more than 10’000 business users – should only apply to multi-sided platforms with clearly distinct roles for businesses and end-users, like the online intermediation services (Amazon etc.); you should add “only for core platform services listed at points (a) and (h) of Article 2(2)” to that second requirement.Reference

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    In line with the previous suggestion for Article 3(1), I suggest adding “or for other end users” after “business users”.Reference

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    This is the biggest shortcoming of the entire DMA proposal. We need full interoperability requirements on core platform services, not just on ancillary ones, for all users and citizens, not just for business users. We need to make these services open and interoperable like email and the web, to create opportunities for new European competitors and to give users actual choice, including more private options. So this should be amended as follows:

    “(f) allow business users, *end users,* and providers of ancillary services access to and interoperability with the same operating system, hardware or software features that are available or used in the provision by the gatekeeper of any ancillary services *or industry-standard features of its core platform services*;”Reference

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    This is ok, but data portability (with a broader scope) is already in the GDPR. On the other hand, data portability is not a valid replacement for a full interoperability requirement in point (f)!Reference

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    In line with my comment on Articles 3(1), 3(2) and 3(7), this should be amended as follows:

    “(a) there is an imbalance of rights and obligations on business or end users and the gatekeeper is obtaining an advantage that is disproportionate to the service provided by the gatekeeper to either group; or “Reference

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    Proposed amendment:

    “This Regulation is without prejudice to the application of
    Articles 101 and 102 TFEU. It is also without prejudice to the
    application of: national rules prohibiting anticompetitive
    agreements, decisions by associations of undertakings,
    concerted practices and abuses of dominant positions;
    national competition rules prohibiting other forms of
    unilateral conduct; Council Regulation (EC) No 139/2004 and
    national rules concerning merger control; Regulation (EU)
    2019/1150 and Regulation (EU) …./.. of the European
    Parliament and of the Council.”Reference

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    Proposed amendment:

    A new sub-paragraph (g) should be added to Article 2(2) of the
    Proposal (the rest should be re-numbered accordingly), which
    would read:
    “‘Core platform service’ means any of the following: […]
    (g) web browsers.”Reference

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    Proposed amendment:

    A new paragraph (11) should be added to Article 2 defining web browsers (and the rest of the paragraphs should be renumbered
    accordingly):

    “‘Web browser’ means a client software program that runs against a Web server or other Internet server and enables a user to navigate the World Wide Web (WWW) to access and display data, including standalone web browsers as well as
    web browsers integrated or embedded in software or similar;”Reference

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    Proposed amendment:

    “refrain from
    (i) combining personal data sourced from these core platform services with personal data from any other services offered by the gatekeeper or with personal data from third-party services,
    (ii) signing in end users to other services of the gatekeeper in order to combine personal data, or
    (iii) combining personal data sourced from these core platform services with personal data from sources or services where the gatekeeper is present as a third party, such as services provided by entities not under the full ownership of the gatekeeper, unless the gatekeeper solely operates as a data processor in accordance with Article 28 of Regulation (EU) 2016/679.”Reference

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    Proposed amendment:

    “allow business users to engage in in-app and out-of-app communications with end users acquired via the core platform service, and to conclude contracts with these end users regardless of whether for that purpose they use the core platform services of the gatekeeper, and allow end users to access and use, through the core platform services of the gatekeeper, content, subscriptions, features or other items by using the software application of a business user, where these items have been acquired by the end users from the relevant business user without using the core platform services of the gatekeeper”Reference

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    Proposed amendment:

    “refrain from requiring business users to use, offer or interoperate with:
    (i) an identification service of the gatekeeper;
    (ii) a payment service of the gatekeeper;
    (iii) services which support the provision of payment services of the gatekeeper;
    (iv) any other ancillary service of the gatekeeper.”Reference

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    Proposed amendment:

    “refrain from requiring business users or end users to subscribe to or register with any other core platform services or any ancillary services offered by the gatekeeper, including identification services and payment services, as a condition to access, sign up or register to any of their core platform services identified pursuant to that Article”Reference

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    Proposed amendment:

    (i) “refrain from treating more favourably in ranking services and products offered by the gatekeeper itself or by any third party belonging to the same undertaking compared to similar services or products of other parties;
    (ii) apply fair and non-discriminatory conditions to ranking;
    (iii) ensure that algorithms that determine the ranking of products and services are fair and transparent, and that the ranking of radio and publishers’ audio content in online platforms incorporating voice assistant technologies must accurately and impartially reflect users’ voice requests.”Reference

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    Proposed amendment:

    “provide advertisers and publishers, or third parties authorised by advertisers and publishers, upon their request and free of charge, with access to the performance measuring tools of the gatekeeper and granular, user-level and highquality
    information necessary for advertisers and publishers, or third parties authorised by advertisers and publishers, to carry out their own independent verification of the ad
    inventory”Reference

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    Proposed amendment:

    “provide business users, or third parties authorised by a business user, free of charge, with effective, high-quality, continuous and real-time access and use of aggregated or non-aggregated data, that is provided for or generated in the context of the use of the relevant core platform services or of ancillary services offered by the gatekeeper by those business users and the end users engaging with the products or services provided by those business users; for personal data, provide access and use only where directly connected with the use effectuated by the end user in respect of the products or services offered by the relevant business user through the relevant core platform service, and when such sharing is in compliance with Regulation (EU) 2016/679”Reference

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    Proposed amendment:

    (i) “apply fair and non-discriminatory general conditions of access for business users to its core platform service, including to its software application store, its online search engine, its online social networking
    service, its online platform incorporating voice assistant technologies or its web browser, designated pursuant to Article 3 of this Regulation;
    (ii) negotiate, on fair and non-discriminatory terms, for the use of third-party content on their core platform services, and participate in final offer arbitration, in good faith, if agreement cannot be reached;
    (iii) refrain from making it more difficult for business users to advertise or provide their offers in its core platform service”Reference

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    proposed amendment:

    to add: A new paragraph (l) should be added to Article 6(1) of the Proposal, which would read:
    “refrain from treating more favourably services and products offered by the gatekeeper itself or by any third party belonging to the same undertaking compared to similar services or products of third parties”Reference

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    proposed amendment:

    to add: A new paragraph (m) should be added to Article 6(1) of the Proposal, which would read:
    “refrain from inserting sponsorship or advertising around third-party content provided through its platform incorporating voice assistant technology, without the express consent of the provider of such content.”Reference

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    four months instead of six:

    Proposed amendment:

    “Where the Commission finds that the measures that the gatekeeper intends to implement pursuant to paragraph 1, or has implemented, do not ensure effective compliance with the relevant obligations laid down in Article 6, it may by decision specify the measures that the gatekeeper concerned shall implement. The Commission shall adopt such a decision within four months from the opening of proceedings pursuant to Article 18.”Reference

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    Proposed amendment:

    “In specifying the measures under paragraph 2, the Commission shall ensure that the measures are effective in achieving the objectives of the relevant obligation and proportionate in the specific circumstances of the gatekeeper and the relevant service. Interested parties shall be able to submit their observations as to the effectiveness of such measures.”Reference

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    Proposed amendment:

    “1. Within six months after its designation pursuant to Article 3, a gatekeeper shall submit to the Commission an independently audited description of any techniques for profiling of consumers that the gatekeeper applies to or across its core platform services identified pursuant to Article 3. This
    description shall be updated at least annually.
    2. A gatekeepers that engages in the ranking of products or services shall embed independent auditors within its platform granting them continuous and direct access to its algorithm. A gatekeeper shall submit to the Commission an independently audited description of it algorithmic ranking practices at least annually, without prejudice to the Commission’s ability to request access to the gatekeeper’s algorithm and appoint auditors or experts pursuant to Articles 19 and 21.”Reference

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    proposed amendment:

    “The Commission, acting on a complaint or on its own initiative, may conduct a market investigation for the purpose of examining whether a provider of core platform services should be designated as a gatekeeper pursuant to Article 3(6), or in order to identify core platform services for a gatekeeper pursuant to Article 3(7). It shall endeavour to conclude its investigation by adopting a decision in accordance with the advisory procedure referred to in Article 32(4) within twelve months from the opening of the market investigation.”Reference

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    Proposed amendment:

    “Where the market investigation, initiated by the Commission following a complaint or on its own initiative, shows that a gatekeeper has systematically infringed the obligations laid down in Articles 5 and 6 and has further strengthened or extended its gatekeeper position in relation to the characteristics under Article 3(1), the Commission may by decision adopted in accordance with the advisory procedure referred to in Article 32(4) impose on such gatekeeper any behavioural or structural remedies which are proportionate to the infringement committed and necessary to ensure compliance with this Regulation. The Commission shall conclude its investigation by adopting a decision within six months from the opening of the market investigation.”Reference

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    Proposed amendment:

    “The Commission, acting on a complaint or on its own initiative, may conduct a market investigation with the purpose of examining whether one or more services within the digital sector should be added to the list of core platform services or to detect types of practices that may limit the contestability of core platform services or may be unfair and which are not effectively addressed by this Regulation. It shall issue a public report at the latest within twelve months from the opening of the market investigation.Reference

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    to add:

    Proposed amendment:

    Add a new paragraph 2 to the Article and renumber the rest of the paragraphs accordingly. The new Article 25(2) would read:

    “The Commission shall adopt a non-compliance decision within twelve months from the decision opening the proceeding. The Commission may decide to open proceedings in view of the possible adoption of a noncompliance decision pursuant to this Article either acting on a complaint or on its own initiative.”Reference

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    Proposed amendment, whole article:

    Request for a market investigation or the opening of proceedings

    “1. One or more Member States may request the Commission to open an investigation or initiate proceedings pursuant to:
    (a) Article 15 because they consider that there are reasonable grounds to suspect that a provider of core platform services should be designated as a gatekeeper;
    (b) Article 16 because they consider that there are reasonable grounds to suspect that a gatekeeper has systematically infringed the obligations laid down in Articles 5 and 6 and has further strengthened or extended its gatekeeper position in relation to the characteristics under Article 3(1);
    (c) Article 17 because they consider that one or more services within the digital sector should be added to the list of core platform services or new practices should be addressed by this Regulation;
    (d) Article 25 because they consider that there are reasonable grounds to suspect that a gatekeeper has failed to comply with any of the obligations laid down in Articles 5 or 6 or any measures specified in a decision adopted pursuant to Article 7(2) or measures ordered pursuant to Article 16(1) or interim measures ordered pursuant to Article 22 or commitments made legally binding pursuant to Article 23.
    2. Member States shall submit evidence in support of their request.
    3. The Commission shall within four months following a request by one or more Member States examine whether there are reasonable grounds to open such an investigation.”Reference

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    Proposed amendment:

    New Article: Article 34:

    Lodging of complaints
    “Those entitled to lodge a complaint for the purposes of Articles 15, 16, 17 and 25 are legal persons who can show a legitimate interest.”Reference

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    Thank you very much for the opportunity to provide feedback.

    Proposed amendment:

    “In particular, online intermediation services (including, inter alia, online marketplaces, software application stores and platforms incorporating voice assistant technologies), online search engines, operating systems, web browsers, online social networking, video sharing platform services, number independent interpersonal communication services, cloud computing services and online advertising services all have the capacity to affect a large number of end users and businesses alike, which entails a risk of unfair business practices. They therefore should be included in the definition of core platform services and fall into the scope of this Regulation. Online intermediation services may also be active in the field of financial services, and they may intermediate or be used to provide such services as listed non-exhaustively in Annex II to Directive (EU) 2015/1535 of the European Parliament and of the Council. […]”Reference

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    proposed amendment:
    “To ensure that this obligation is effective, it should also be ensured that the conditions that apply to ranking are also generally fair. Ranking should in this context cover all forms of relative prominence, including display, rating, linking or voice results. To ensure that this obligation is effective and cannot be circumvented it should also apply to any measure that may have an equivalent effect to the differentiated or preferential treatment in ranking.”Reference

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    This part should be delete “The gatekeeper shall not be prevented from taking proportionate measures to ensure that third party software applications or software application stores do not endanger the integrity of the hardware or operating system provided by the gatekeeper;” –> This formulation may allow the gatekeeper to block new software due to security concerns. It should be replaced by: “The gatekeeper shall not be prevented from providing a short security notice that inform the user that installing software from unknown sources might be a security risk;”Reference

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    Ensure that interoperability not only applies to ancillary, but also core platform services.
    (f) allow business users, end users and providers of ancillary services or providers of rival core platform services access to and interoperability with the same operating system, hardware or software features that are available or used in the provision by the gatekeeper of any ancillary services or industry-standard features of its core platform services;Reference

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    while this is welcome, the gatekeeper may still offer a core platform service (e.g. an operating system) that comes with pre-installed other core-platform services (e.g. a playstore or browser) and prevent users to switch to alternatives. To prevent this the gatekeeper should
    (l -> NEW or add to b) refrain from pre-installing or setting as default any other core platform services identified pursuant to Article 3 or which meets the thresholds in Article 3(2)(b).Reference

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    Recital 11 states the complementary of the DMA to the General Data Protection Regulation (GDPR.) However, article 1(6) does not include GDPR in the national and European rules which shall be without prejudice to the application of the DMA.

    Further, given the scope of application of this proposal, the e-privacy directive (and the likely forthcoming e-privacy regulation) should also be expressly listed in article 1(6) among those EU laws that complement the DMA.
    Suggested amendment:
    6.This Regulation is without prejudice to the application of Articles 101 and 102 TFEU. It is also without prejudice to the application of: national rules prohibiting anticompetitive agreements, decisions by associations of undertakings, concerted practices and abuses of dominant positions; national competition rules prohibiting other forms of unilateral conduct insofar as they are applied to undertakings other than gatekeepers or amount to imposing additional obligations on gatekeepers; Council Regulation (EC) No 139/200437 and national rules concerning merger control; Regulation (EU) 2016/679; Directive 2002/58 [Regulation (EU) ./..], Regulation (EU) 2019/1150 and Regulation (EU) ./.. of the European Parliament and of the Council.Reference

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    The DMA’s objective “to allow end users and business users alike to reap the full benefits of the platform economy and the digital economy at large, in a contestable and fair environment” needs to be reflected in text of the proposal.

    The proposal falls short of its stated aim by not adequately addressing the negative effects of gatekeepers’ practices on end users; and by not supporting the emergence of new platforms and competition among existing and new platforms, for the benefit of users.
    Suggested amendment:
    (b) it operates a core platform service which serves as an important gateway for business users or for other end users to reach end users;Reference

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    According to the executive summary of the Impact Assessment Report, the DMA proposal should “foster the emergence of alternative platforms, which could deliver quality innovative products and services at affordable prices” (p. 2). However, the proposal focuses disproportionately on creating conditions for more competition at the business users’ level, rather than on creating conditions for more platforms to enter these markets or giving end users more choice between platforms.
    Suggested amendment:
    (b) the requirement in paragraph 1 point (b) where it provides a core platform service that has more than 45 million monthly active end users established or located in the Union and, only for core platform services listed at points (a) and (h) of Article 2(2), more than 10 000 yearly active business users established in the Union in the last financial year;Reference

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    Limiting the obligation in this provision to “in competition with business users” risks being interpreted as allowing such data, including personal data of end users, to be used by the gatekeeper in other contexts where they do not compete with those business users. This could accordingly allow the gatekeeper to consolidate their power by exploiting data of users or abusing their position to expand their dominance. Recital 43 clarifies that “this obligation should apply to the gatekeeper as a whole, including but not limited to its business unit that competes with the business users of a core platform service”.
    Suggested amendment:
    (a) refrain from using 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;Reference

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    Interoperability between core services could help addressing the negative implications of users’ lock-in and network effects. Interoperability can also give end users more effective control of their data and can contribute to address the power imbalance between individuals and gatekeepers. The importance of interoperability for an effective digital market has been noted by the European Commission in the past. Support for interoperability in social media and platform-based digital markets is growing and benefits have been highlighted in recent reports, such as CMA Online platforms and digital advertising market study, as well as legislative initiatives in EU member states, such as France and Germany.
    The proposal falls significantly short of a strong interoperability requirement. Article 6(1)(f) requires gatekeepers to provide access and interoperability only with regard to business users or providers of ancillary services. As worded, this provision does not extend interoperability requirements to core services provided by gatekeepers. End users would not therefore benefit from increased competition in social media networks or other core platform services, which will remain firmly within the control of existing platforms. In fact, as noted in the open letter to the European Parliament by civil society organisations “rather than fostering the emergence of new platforms, this provision has the potential to increase the systemic dependence of business users and ancillary services’ providers on the core platform, whose position remains uncontested and secured in its primary market(s)”.

    The shortcomings of the current interoperability provision are highlighted in the Opinion of the European Data Protection Supervisor (EDPS) who recommends the DMA to introduce “minimum interoperability requirements for gatekeepers, with explicit obligations on gatekeepers to support interoperability, as well as obligations not to take measures that impede such interoperability”.

    Suggested amendment:
    (f) allow business users, end users and providers of ancillary services access to and interoperability with the same operating system, hardware or software features that are available or used in the provision by the gatekeeper of any ancillary services or industry-standard features of its core platform services;Reference

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    This provision may allow for data sharing in ways that are not compatible with the GDPR, and may be interpreted to support the advancing of competition by relying on sharing of users’ personal data which could be detrimental for data protection rights. (See Opinion of the EU Data Protection Supervisor, paragraph 31.) For these reasons, Article 6(1)(j) should be amended to (a) delete reference to “aggregated or non-aggregated data” and limit the first sentence to “non personal data”; (b) clarify that any access and use of personal data must be compliant with the GPDR.
    Suggested amendment:
    (i)provide business users, or third parties authorised by a business user, free of charge, with effective, high-quality, continuous and real-time access and use of non personal data, that is provided for or generated in the context of the use of the relevant core platform services by those business users and the end users engaging with the products or services provided by those business users; for personal data, provide, with the consent of the data subject and in full compliance with Regulation (EU) 2016/679, access and use only where directly connected with the use effectuated by the end user in respect of the products or services offered by the relevant business user through the relevant core platform service, and when the end user opts in to such sharing with a consent in the sense of the Regulation (EU) 2016/679;Reference

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    As noted by EDPS, “query, click and view data” is personal data “likely to be of a highly sensitive nature” and that sharing this information can lead to “a high risk of re-identification” whose impact could be very negative on users’ privacy (See Opinion of the EU Data Protection Supervisor, paragraph 32.)

    The challenges of effective anonymisation and the risks of re-identification of query, click and view data generated by end users raise significant concerns that this provision may result in serious weakening of data protection. Short of deletion (preferred option), the provision should be amended to include reference to demonstrably effective anonymisation.
    Suggested amendment:
    delete this provisionReference

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    Article 10 of the DMA proposal allows the European Commission to update the obligations applicable to gatekeepers when, based on a market investigation, it has identified the need for new obligations addressing practices that limit the contestability and fairness. However, in defining which practices limit contestability, Article 10(2)(a) refers to “an imbalance of rights and obligations on business users and the gatekeeper is obtaining an advantage from business users that is disproportionate to the service provided by the gatekeeper to business users”.

    The proposal fails to include ‘end users’. There seems to be no rationale for such exclusion, given the aim of addressing limits to contestability and fairness.

    Suggested amendment:
    (a) there is an imbalance of rights and obligations on business users or end users and the gatekeeper is obtaining an advantage from business users or end users that is disproportionate to the service provided by the gatekeeper to either group; orReference

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    Trends of acquisitions in digital markets are among the key challenges to effective enforcement of merger regulation. Timely enforcement action at European level is often prevented, firstly, because some mergers fall below the threshold of notification under Regulation No. 139/2004; secondly, because of the lengthy procedures of the Commission, as noted in the Court of Auditors’ report.

    Article 12 of the DMA proposal (Obligation to inform about concentrations) fails to address these limitations. Notification under Article 12(1) does not trigger a merger investigation and by the time the Commission is notified, it is likely to be already too late to address many of the concerns that the acquisition might raise. This is particularly so given the practice of gatekeepers to buy up start-ups within their existing digital market to preclude them from growing into competitors; and/or to acquire strategically to establish a presence in a new market and then leverage their power, notably based on users’ data, to achieve dominance in those markets.

    The provision should be amended to: a) introduce an obligation on gatekeepers to prove that the intended acquisition of any services provided in the digital sector will not have negative effects on end users’ rights and interests; and b) enable the European Commission to commence an investigation prior to the intended acquisition of any services provided in the digital sector with the view to assess, inter alia, potential negative effects on end users’ rights and interests.
    Suggested amendment:
    2. The notification pursuant to paragraph 1 shall at least describe for the acquisition targets their EEA and worldwide annual turnover, for any relevant core platform services their respective EEA annual turnover, their number of yearly active business users and the number of monthly active end users, as well as the rationale of the intended concentration. The notification pursuant to paragraph 1 shall also contain evidence that the intended acquisition of any services provided in the digital sector would not have negative effects on end users’ rights and interests.
    2a. Following the notification pursuant paragraph 1, the Commission shall decide whether to commence an investigation prior to the completion of the intended acquisition with the view to assess potential negative effects on end users’ rights and interests.Reference

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    Because of the risks involved in these practices, GDPR regulates and limits profiling. However, the practices remain often secretive and requires significant efforts to be unmasked.

    Profiling is about recognizing patterns, revealing correlations and making inferences. Through profiling, highly sensitive information can be inferred, derived or predicted from other non-sensitive data. As a result, data about an individual’s behaviour can be used to generate previously unknown information about someone’s likely identity, attributes, behaviour, interests, or personality. This includes information revealing or predicting an individual’s likely racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, health, sexual behaviour or sexual orientation. Because of the inherently probabilistic nature of profiling, individuals are frequently misidentified, misclassified or misjudged as having certain attributes or characteristics.

    To address the above, the provision should specify a) that standards of auditing need to be developed in consultation with the EU Data Protection Supervisor, the European Data Protection Board, civil society and experts; b) that the results of auditing should be made public

    Suggested amendment:
    Within six months after its designation pursuant to Article 3, a gatekeeper shall submit to the Commission and the European Data Protection Board an independently audited description of any techniques for profiling of consumers and personalisation of the service that the gatekeeper applies to or across its core platform services identified pursuant to Article 3. This description shall be updated at least annually and shall be made public.
    The Commission shall develop, in consultation with the EU Data Protection Supervisor, the European Data Protection Board, civil society and experts, the standards and process of the audit.Reference

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    Nowhere in the proposal is a role expressly envisaged for civil society, such as consumer organisations, digital rights, human rights organisations, etc., despite the fact that these organisations are fundamental in protecting the rights and interests of users of digital services provided by gatekeepers.

    This is a notable omission given that it is civil society and consumers organisations that conduct many investigations exposing the abusive practices of companies in the digital markets; it is these organisations that often represent individuals or groups of individuals negatively affected by companies’ actions; and it is these organisations that have developed technical and legal expertise to support users in protecting their rights and interests.

    There is growing recognition by competition authorities of the need to reach to consumer organisations and other civil society organisations in order to better address the challenges of regulating digital markets.
    Suggested amendment:
    New paragraph 4:
    4.End users or their representatives, organisations acting in the field of the protection of users’ rights and freedoms organisations, business users or their representatives and any other third party who can show a legitimate interest shall have the right to submit complaints about gatekeepers violating their obligations under the DMA and/or to request the opening of a market investigation pursuant to Articles 15, 16 and 17.Reference

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    Nowhere in the proposal is a role expressly envisaged for civil society, such as consumer organisations, digital rights, human rights organisations, etc., despite the fact that these organisations are fundamental in protecting the rights and interests of users of digital services provided by gatekeepers.

    This is a notable omission given that it is civil society and consumers organisations that conduct many investigations exposing the abusive practices of companies in the digital markets; it is these organisations that often represent individuals or groups of individuals negatively affected by companies’ actions; and it is these organisations that have developed technical and legal expertise to support users in protecting their rights and interests.

    There is growing recognition by competition authorities of the need to reach to consumer organisations and other civil society organisations in order to better address the challenges of regulating digital markets.

    suggested amendment:
    1. Before adopting a decision pursuant to Article 7, Article 8(1), Article 9(1), Articles 15, 16, 22, 23, 25 and 26 and Article 27(2), the Commission shall give the gatekeeper or undertaking or association of undertakings, end users, their representatives and organisations acting in the field of the protection of users’ rights and freedoms concerned the opportunity of being heard on:
    (a) preliminary findings of the Commission, including any matter to which the Commission has taken objections;
    (b) measures that the Commission may intend to take in view of the preliminary findings pursuant to point (a) of this paragraph.
    2.Gatekeepers, undertakings and associations of undertakings, end users, their representatives and organisations acting in the field of the protection of users’ rights and freedoms concerned may submit their observations to the Commission’s preliminary findings within a time limit which shall be fixed by the Commission in its preliminary findings and which may not be less than 14 days.
    3. The Commission shall base its decisions only on objections on which gatekeepers, undertakings and associations of undertakings, end users, their representatives and organisations acting in the field of the protection of users’ rights and freedoms concerned have been able to comment.Reference

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    Nowhere in the proposal is a role expressly envisaged for civil society, such as consumer organisations, digital rights, human rights organisations, etc., despite the fact that these organisations are fundamental in protecting the rights and interests of users of digital services provided by gatekeepers.

    This is a notable omission given that it is civil society and consumers organisations that conduct many investigations exposing the abusive practices of companies in the digital markets; it is these organisations that often represent individuals or groups of individuals negatively affected by companies’ actions; and it is these organisations that have developed technical and legal expertise to support users in protecting their rights and interests.

    There is growing recognition by competition authorities of the need to reach to consumer organisations and other civil society organisations in order to better address the challenges of regulating digital markets.

    Suggested amendment:
    1. When three or more Member States or organisations acting in the field of the protection of users’ rights and freedoms request the Commission to open an investigation pursuant to Article 15 because they consider that there are reasonable grounds to suspect that a provider of core platform services should be designated as a gatekeeper, or pursuant to Article 16 because they consider that there are reasonable ground to suspect systematic non-compliance, the Commission shall within four months examine whether there are reasonable grounds to open such an investigation.
    2. Member States or organisations acting in the field of the protection of users’ rights and freedoms shall submit evidence in support of their request.Reference

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    This para misses the possibility to consider a gatekeeper’s practice unfair in situations where the imbalance of rights and obligations is on end-users. The DMA should consider this fairly typical exploitative case as something deserving of action. Therefore, we suggest this amendment:

    (a) there is an imbalance of rights and obligations on business users or end-users and the gatekeeper is obtaining an advantage from business users or end-users that is disproportionate to the service provided by the gatekeeper to business userseither group; orReference

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    The majority of automated decision-making systems used by gatekeepers include at least three sets of activities: massive data gathering; user profiling; and personalisation of the service based on such profiling. Each of these raises challenges for end-users: massive data collection is, more often than not, in conflict with variousGDPRrules, such as data minimisation and purpose limitation. The profiling too needs to comply with the GDPR and could additionally raise problems with non-discrimination rules. But it is within the personalisation element that the major challenges lie. Social media platforms or video sharing platforms are good examples here: on the one hand, personalisation can improve a user’s experience by navigating them towards a variety of content that is relevant for them. On the other hand, there are legitimate concerns that, in the absence of transparency about recommender systems or algorithmic systems, personalisation could be used to influence, or even manipulate, a user’s choices and behaviours.Even if the DMA adopts a narrower economic perspective, the need for a wider scope for Article 13 remains. Gatekeepers use automated systems to distribute the value created in the markets according to rent maximisation criteria. These rents cement their position of power, and their extractive business model limits the redistribution of value among those that create it. A comprehensive auditing of those automatedsystems is thus a first necessary step if regulators want to remedy this situation. Additionally, we recommend clarifying the main parameters of the mandatory audit such as, inter alia, the independence of who is called to perform it, the scope, and the criteria to be used in the assessment.

    Our suggestion is to amend the Article as follows:
    1. Within six months after its designation pursuant to Article 3, a gatekeeper shall submit to the Commission an independently audited description of any techniques for profiling of consumers and personalisation of the servicethat the gatekeeper applies to or across its core platform services identified pursuant to Article 3. This description shall be updated at least annually and made available to the public.
    2.The Commission shall develop, in consultation with the EU Data Protection Supervisor, the European Data Protection Board, civil society and relevant experts, the standards and process of the audit.Reference

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    The market investigation system proposed in the DMA does not create adequate mechanisms for end-users to be involved and heard in the process. This is despite the fact that the issues at stake have a strong impact on end-users’ rights. Providing ways for the end-users’ voice to be listened to, and amplified would also give a greater legitimacy to the DMA regime. It would enrich the regulator’s evidence base and improve the quality of its analysis. Therefore, we propose that Article 14 should include the possibility for end-users, civil society and other parties with a legitimate interest to submit complaints for violation of the obligations contained in the DMA and request the opening of market investigations pursuant to Articles 15, 16 and 17.

    We suggest to amend Article 14 as follows:
    1. When the Commission intends to carry out a market investigation in view of the possible adoption of decisions pursuant to Articles 15, 16 and 17, it shall adopt a decision opening a market investigation.
    2. The opening decision shall specify:
    (a) the date of opening of the investigation;
    (b) the description of the issue to which the investigation relates to;
    (c) the purpose of the investigation.
    3. The Commission may reopen a market investigation that it has closed where:
    (a) there has been a material change in any of the facts on which the decision was based;
    (b) the decision was based on incomplete, incorrect or misleading information provided by the undertakings concerned.
    4. End users or their representatives, civil society organisations, business users or their representatives and any other third party who can show a legitimate interest shall have the right to submit complaints about gatekeepers violating their obligations under the DMA and/or to request the opening of a market investigation pursuant to Articles 15, 16 and 17.Reference

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    In line with our comments to Article 14, we suggest to amend Article 30 as follows:

    Article 30
    1. Before adopting a decision pursuant to Article 7, Article 8(1), Article 9(1), Articles 15, 16, 22, 23, 25 and 26 and Article 27(2), the Commission shall give the gatekeeper or undertaking or association of undertakings, end-users or their representatives and civil societies concerned the opportunity of being heard on:
    (a) preliminary findings of the Commission, including any matter to which the Commission has taken objections;
    (b) measures that the Commission may intend to take in view of the preliminary findings pursuant to point (a) of this paragraph.
    2. Gatekeepers, undertakings and associations of undertakings, end-users or their representatives and civil societies concerned may submit their observations to the Commission’s preliminary findings within a time limit which shall be fixed by the Commission in its preliminary findings and which may not be less than 14 days.
    3. The Commission shall base its decisions only on objections on which gatekeepers, undertakings and associations of undertakings, end-users or their representatives and civil societies concerned have been able to comment.Reference

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    The market investigation system proposed in the DMA does not create adequate mechanisms for end-users to be involved and heard in the process. This is despite the fact that the issues at stake have a strong impact on end-users’ rights. Providing ways for the end-users’ voice to be listened to, and amplified would also give a greater legitimacy to the DMA regime. It would enrich the regulator’s evidence base and improve the quality of its analysis.Therefore, we propose that Article 14 should include the possibility for end-users, civil society and other parties with a legitimate interest to submit complaints for violation of the obligations contained in the DMA and request the opening of market investigations pursuant to Articles 15, 16 and 17. We also propose that end-users and civil society should be granted the right to be heard pursuant to Article 30. Finally, we call for the explicit inclusion of end-users in the obligation under Article 5(d).

    Therefore, we suggest to amend Article 14 as follows:

    1. When the Commission intends to carry out a market investigation in view of the possible adoption of decisions pursuant to Articles 15, 16 and 17, it shall adopt a decision opening a market investigation.
    2.The opening decision shall specify:
    (a) the date of opening of the investigation;
    (b) the description of the issue to which the investigation relates to;
    (c) the purpose of the investigation.
    3.The Commission may reopen a market investigation that it has closed where:
    (a) there has been a material change in any of the facts on which the decision was based;
    (b) the decision was based on incomplete, incorrect or misleading information provided by the undertakings concerned.
    4.End users or their representatives, civil society organisations, business users or their representatives and any other third party who can show a legitimate interest shall have the right to submit complaints about gatekeepers violating their obligations under the DMA and/or to request the opening of a market investigation pursuant to Articles 15, 16 and 17.Reference

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    We suggest to add end-users:

    (d) refrain from preventing or restricting business users or end-users fromraising issues with any relevant public authority relating to any practice of gatekeepers;Reference

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    Proposed amendment:

    (f) refrain from requiring business users or end-users to subscribe to or register with any other core platform services or ancillary services as a condition to access, sign up or register to any of their core platform services identified pursuant to that Article;Reference

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    Ensure wider interop that applies to CPSs too.
    We suggest to amend as follows:

    f) allow business users, end-users, and providers of ancillary services access to and interoperability with the same operating system, hardware or software features that are available or used in the provision by the gatekeeper of any ancillary services or industry-standard features of its core platform services;Reference

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