DMA |
Draft Amendment |
Notes |
Article 3(1): An undertaking shall be designated as a gatekeeper if:
(a) |
it has a significant impact on the internal market; |
(b) |
it provides a core platform service which is an important gateway for business users to reach end users; and |
(c) |
it enjoys an entrenched and durable position, in its operations, or it is foreseeable that it will enjoy such a position in the near future. |
|
Undertaking that holds significant Market Power: Undertakings that have a certain scale in terms of one or more core platform services and operate in a way that has a significant impact on access to end users or on the activities of business users and which have the power or foreseen to be able to reach the power to maintain this impact in an established and permanent manner. |
Although the details will be set by a communiqué, the Draft Amendment seems to be following a parallel approach with the DMA. |
Article 3(2): An undertaking shall be presumed to satisfy the respective requirements in paragraph 1:
(a) |
as regards paragraph 1, point (a), where it achieves an annual Union turnover equal to or above EUR 7,5 billion in each of the last three financial years, or where its average market capitalisation or its equivalent fair market value amounted to at least EUR 75 billion in the last financial year, and it provides the same core platform service in at least three Member States; |
(b) |
as regards paragraph 1, point (b), where it provides a core platform service that in the last financial year has at least 45 million monthly active end users established or located in the Union and at least 10 000 yearly active business users established in the Union, identified and calculated in accordance with the methodology and indicators set out in the Annex; |
(c) |
as regards paragraph 1, point (c), where the thresholds in point (b) of this paragraph were met in each of the last three financial years. |
|
N/A
Will be determined by the Communique on the Implementation of Article 8/A of the Law No. 4054 |
The Draft Amendment adopts the same criteria as Article 3(1) of the DMA; however, it does not include the financial criteria similar to Article 3(2) of the DMA. Rather it sets the Board to issue communiques addressing the relevant criteria. |
Article 5(2): The gatekeeper shall not do any of the following:
(a) |
process, for the purpose of providing online advertising services, personal data of end users using services of third parties that make use of core platform services of the gatekeeper; |
(b) |
combine personal data from the relevant core platform service with personal data from any further core platform services or from any other services provided by the gatekeeper or with personal data from third-party services; |
(c) |
cross-use personal data from the relevant core platform service in other services provided separately by the gatekeeper, including other core platform services, and vice versa; and |
(d) |
sign 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 has given consent within the meaning of Article 4, point (11), and Article 7 of Regulation (EU) 2016/679.
Where the consent given for the purposes of the first subparagraph has been refused or withdrawn by the end user, the gatekeeper shall not repeat its request for consent for the same purpose more than once within a period of one year.
This paragraph is without prejudice to the possibility for the gatekeeper to rely on Article 6(1), points (c), (d) and (e) of Regulation (EU) 2016/679, where applicable. |
6/A (g): In a way that prevents competitor undertakings from entering the market and prevents those already in the market from competing effectively;
1) not combine the personal data they obtain from the core platform services with the personal data obtained from any other services they offer or with personal data obtained from third parties, shall not process these data by combining and shall not use them for / in the context of other services, especially in targeted advertising; unless it is necessary for the performance of a contract to which the end user is a party,
2) not process the competitively sensitive data obtained from business users for purposes other than the fulfilment of the relevant service, unless it provides clear, precise, and sufficient options to the business user. |
- The DMA’s provision is drafted in a general way whereas Draft Amendment’s provision only applies if the conduct has anti-competitive effects (i.e., prevents competitor undertakings from entering the market and prevents those already in the market from competing effectively).
- The DMA only includes personal data however the Draft Amendment covers personal data as well as competitively sensitive data obtained from business users.
- Regarding data processing prohibition, the Draft Amendment stipulates a limitation (i.e., if necessary for the performance of a contract to which the end user is a party) on the other hand, the DMA presents consent as a general exception to all obligations under this paragraph.
- In addition, the Draft Amendment prohibits processing the competitively sensitive data unless it provides clear, precise, and sufficient options to the business user.
- In Article 5(2) para. (c) and (d) cross-use and sign-in end-users to combine data are regulated specifically unlike the Draft Amendment. |
Article 5(3): The gatekeeper shall not prevent business users from offering the same products or services to end users through third-party online intermediation services or through their own direct online sales channel at prices or conditions that are different from those offered through the online intermediation services of the gatekeeper.
Article 5(4): The gatekeeper shall allow business users, free of charge, to communicate and promote offers, including under different conditions, to end users acquired via its core platform service or through other channels, and to conclude contracts with those end users, regardless of whether, for that purpose, they use the core platform services of the gatekeeper. |
6/A (f): Refrain from restricting or obstructing business users, to work with competitor undertakings to make offers to or make agreements with end users over platforms or other channels, to advertise their goods and services via these channels, and refrain from preventing them to offer different prices or conditions for a certain good or service while working with competitor undertakings or over their own channels or different channels. |
- Unlike the Draft Amendment, the DMA stipulates that undertakings will allow business users to make offers on different platforms as free of charge. |
Article 5(5): The gatekeeper shall allow end users to access and use, through its core platform services, content, subscriptions, features or other items, by using the software application of a business user, including where those end users acquired such items from the relevant business user without using the core platform services of the gatekeeper. |
No parallel provision. |
|
Article 5(6): The gatekeeper shall not directly or indirectly prevent or restrict business users or end users from raising any issue of non-compliance with the relevant Union or national law by the gatekeeper with any relevant public authority, including national courts, related to any practice of the gatekeeper. This is without prejudice to the right of business users and gatekeepers to lay down in their agreements the terms of use of lawful complaints-handling mechanisms. |
No parallel provision. |
|
Article 5(7): The gatekeeper shall not require end users to use, or business users to use, to offer, or to interoperate with, an identification service, a web browser engine or a payment service, or technical services that support the provision of payment services, such as payment systems for in-app purchases, of that gatekeeper in the context of services provided by the business users using that gatekeeper’s core platform services. |
6/A (c): Refrain from making the goods or services offered to business users and end users tied on other goods or services offered by themselves, |
- The DMA is drafted more generally whereas the Draft Amendment lists the services offered by gatekeeper that cannot be tied. |
Article 5(8): The gatekeeper shall not require business users or end users to subscribe to, or register with, any further core platform services listed in the designation decision pursuant to Article 3(9) or which meet the thresholds in Article 3(2), point (b), as a condition for being able to use, access, sign up for or registering with any of that gatekeeper’s core platform services listed pursuant to that Article. |
6/A (d): Refrain from requiring business users or end users to subscribe or register with other core platform services of this undertaking holding significant market power as a condition for accessing, logging in or registering any core platform service. |
|
Article 5(9): The gatekeeper shall provide each advertiser to which it supplies online advertising services, or third parties authorised by advertisers, upon the advertiser’s request, with information on a daily basis free of charge, concerning each advertisement placed by the advertiser, regarding:
(a) |
the price and fees paid by that advertiser, including any deductions and surcharges, for each of the relevant online advertising services provided by the gatekeeper, |
(b) |
the remuneration received by the publisher, including any deductions and surcharges, subject to the publisher’s consent; and |
(c) |
the metrics on which each of the prices, fees and remunerations are calculated. |
In the event that a publisher does not consent to the sharing of information regarding the remuneration received, as referred to in point (b) of the first subparagraph, the gatekeeper shall provide each advertiser free of charge with information concerning the daily average remuneration received by that publisher, including any deductions and surcharges, for the relevant advertisements.
Article 5(10): The gatekeeper shall provide each publisher to which it supplies online advertising services, or third parties authorised by publishers, upon the publisher’s request, with free of charge information on a daily basis, concerning each advertisement displayed on the publisher’s inventory, regarding:
(a) |
the remuneration received and the fees paid by that publisher, including any deductions and surcharges, for each of the relevant online advertising services provided by the gatekeeper; |
(b) |
the price paid by the advertiser, including any deductions and surcharges, subject to the advertiser’s consent; and |
(c) |
the metrics on which each of the prices and remunerations are calculated. |
In the event an advertiser does not consent to the sharing of information, the gatekeeper shall provide each publisher free of charge with information concerning the daily average price paid by that advertiser, including any deductions and surcharges, for the relevant advertisements.
Article 6(8): The gatekeeper shall provide advertisers and publishers, as well as 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 the data necessary for advertisers and publishers to carry out their own independent verification of the advertisements inventory, including aggregated and non-aggregated data. Such data shall be provided in a manner that enables advertisers and publishers to run their own verification and measurement tools to assess the performance of the core platform services provided for by the gatekeepers.
|
6/A (m): Provide free, continuous, and real-time complete information about the visibility and the usability of the advertisement portfolio including the pricing conditions regarding the offers, bidding process and essentials of price determination, and the price paid to the publisher for the relevant advertising services, and access to advertising verification and performance measurement tools and the data required for the use of these tools to the advertisers, publishers, advertising intermediaries which it provides online advertising service or to third parties that are authorized by those. |
- The DMA (by Article 5(9), together with 5(10) and 6(8)) takes a more segmented approach subject to the whom the information related to the advertising provided. In addition, abovementioned provisions also deal with the case when publisher/advertiser does not consent to the sharing of information in contrast to the Draft Amendment.
- The Draft Amendment includes information about bidding process unlike the DMA. |
Article 6(2): The gatekeeper shall not use, in competition with business users, any data that is not publicly available that is generated or provided by those business users in the context of their use of the relevant core platform services or of the services provided together with, or in support of, the relevant core platform services, including data generated or provided by the customers of those business users.
For the purposes of the first subparagraph, the 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, including click, search, view and voice data, on the relevant core platform services or on services provided together with, or in support of, the relevant core platform services of the gatekeeper. |
6/A (b): Refrain from using the data that are not publicly available while competing with other business users. |
- The DMA provides detailed information on the source of not publicly available data (i.e., generated or provided by business users) whereas the Draft Amendment does not do so since it provides the definition of data that is not publicly available under Article 3.
- The DMA in the second paragraph includes several examples of how the data can be collected while the definition of the Draft Amendment does not refer something similar. |
Article 6(3): The gatekeeper shall allow and technically enable end users to easily un-install any software applications on the operating system of the gatekeeper, without prejudice to the possibility for that 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.
The gatekeeper shall allow and technically enable end users to easily change default settings on the operating system, virtual assistant and web browser of the gatekeeper that direct or steer end users to products or services provided by the gatekeeper. That includes prompting end users, at the moment of the end users’ first use of an online search engine, virtual assistant or web browser of the gatekeeper listed in the designation decision pursuant to Article 3(9), to choose, from a list of the main available service providers, the online search engine, virtual assistant or web browser to which the operating system of the gatekeeper directs or steers users by default, and the online search engine to which the virtual assistant and the web browser of the gatekeeper directs or steers users by default.
Article 6(4): The gatekeeper shall allow and technically enable the installation and effective use of third-party software applications or software application stores using, or interoperating with, its operating system and allow those software applications or software application stores to be accessed by means other than the relevant core platform services of that gatekeeper. The gatekeeper shall, where applicable, not prevent the downloaded third-party software applications or software application stores from prompting end users to decide whether they want to set that downloaded software application or software application store as their default. The gatekeeper shall technically enable end users who decide to set that downloaded software application or software application store as their default to carry out that change easily.
The gatekeeper shall not be prevented from taking, to the extent that they are strictly necessary and 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, provided that such measures are duly justified by the gatekeeper.
Furthermore, the gatekeeper shall not be prevented from applying, to the extent that they are strictly necessary and proportionate, measures and settings other than default settings, enabling end users to effectively protect security in relation to third-party software applications or software application stores, provided that such measures and settings other than default settings are duly justified by the gatekeeper. |
6/A (e): Allow end users to easily uninstall software, applications or app stores that have been preinstalled into the operating system of the devices, to switch to different software, applications or app stores, to install and effectively use third-party software, applications or app stores, to allow default settings to be easily changed, to allow third-party software, applications or app stores to be offered to user choice and these to be made default, and fulfil technical requirements in these regards. |
- The DMA includes a much more detailed provisions in this area while the Draft Amendment looks to be leaving these to secondary legislation.
- The DMA leaves out the possibility to uninstall any software application that is essential for the functioning of the operating system.
- The DMA explicitly envisages the rights of providers to take strictly necessary and proportionate measures, to ensure that integrity and security of services provided by those are not endangered, unlike the Draft Amendment.
- With regard to changing default settings on operating system, the DMA requires that end-user should be provided with a list of the main available service providers. |
Article 6(5): The gatekeeper shall not treat more favourably, in ranking and related indexing and crawling, services and products offered by the gatekeeper itself than similar services or products of a third party. The gatekeeper shall apply transparent, fair and non-discriminatory conditions to such ranking. |
6/A (a): Refrain from discriminating their own goods and services in ranking, scanning, indexing or in other conditions, compared to the goods or services of business users and ensure that the relevant conditions are fair and transparent. |
|
Article 6(6): The gatekeeper shall not restrict technically or otherwise the ability of end users to switch between, and subscribe to, different software applications and services that are accessed using the core platform services of the gatekeeper, including as regards the choice of Internet access services for end users. |
No parallel provision. |
|
Article 6(7): The gatekeeper shall allow providers of services and providers of hardware, free of charge, effective interoperability with, and access for the purposes of interoperability to, the same hardware and software features accessed or controlled via the operating system or virtual assistant listed in the designation decision pursuant to Article 3(9) as are available to services or hardware provided by the gatekeeper. Furthermore, the gatekeeper shall allow business users and alternative providers of services provided together with, or in support of, core platform services, free of charge, effective interoperability with, and access for the purposes of interoperability to, the same operating system, hardware or software features, regardless of whether those features are part of the operating system, as are available to, or used by, that gatekeeper when providing such services.
The gatekeeper shall not be prevented from taking strictly necessary and proportionate measures to ensure that interoperability does not compromise the integrity of the operating system, virtual assistant, hardware or software features provided by the gatekeeper, provided that such measures are duly justified by the gatekeeper. |
6/A (j): Enable the interoperability of core platforms services and/or ancillary services with other related products or services efficiently and free of charge and fulfil the technical requirements for this.
6/A (k): In order to maintain provision of core platform services or ancillary services by other undertakings, provide free of charge access to the necessary operating system, hardware or software features, limited to the relevant core platform service, and shall fulfil the technical requirements for this, |
- The DMA explicitly envisages the rights of gatekeepers to take strictly necessary and proportionate measures, to ensure that the integrity and security of services provided by gatekeepers are not endangered, unlike the Draft Amendment. |
Article 6(9): The gatekeeper shall provide end users and third parties authorised by an end user, at their request and free of charge, with effective portability of data provided by the end user or generated through the activity of the end user in the context of the use of the relevant core platform service, including by providing, free of charge, tools to facilitate the effective exercise of such data portability, and including by the provision of continuous and real-time access to such data. |
6/A (i): Enable end-users using core platform services or ancillary services, business users, or end-users of such business users to free of charge and effectively transfer their data provided by them or generated within the scope of activities of these parties on the relevant platform upon their request and provides free of charge tools to facilitate data portability. In this context, the transfer of data, including personal data of end users, by business users shall be carried out in accordance with Law No. 6698. |
- 6/A (i) does not include third parties authorized to whom the data will be provided while the DMA does not cover business users. |
Article 6(10): The gatekeeper shall provide business users and third parties authorised by a business user, at their request, free of charge, with effective, high-quality, continuous and real-time access to, and use of, aggregated and non-aggregated data, including personal data, that is provided for or generated in the context of the use of the relevant core platform services or services provided together with, or in support 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. With regard to personal data, the gatekeeper shall provide for such access to, and use of, personal data only where the data are directly connected with the use effectuated by the end users in respect of the products or services offered by the relevant business user through the relevant core platform service, and when the end users opt in to such sharing by giving their consent. |
6/A (h): Provide relevant business users free of charge, efficient, continuous, and real-time access to the aggregated and non-aggregated data which is provided by business users while using core platform services or ancillary services, or by end users of these business users or is produced within the scope of the activities of these parties on the relevant platform, upon request of the relevant business users and third parties authorized by them. In this context, access to the personal data of end users shall be carried out in accordance with the Law on the Protection of Personal Data No. 6698 dated 24.3.2016. |
The DMA determines the scope of the personal data that will be given access to the business user where the Draft Amendment includes all data without explicitly referring to personal data or its scope. |
Article 6(11): The gatekeeper shall provide to any third-party undertaking providing online search engines, at its 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 its online search engines. Any such query, click and view data that constitutes personal data shall be anonymised. |
6/A (l): Upon their request, provide business users with adequate information on the scope, quality and performance of core platform services and ancillary services, as well as pricing principles and conditions of access to these services. |
The following provisions of the DMA seems to be targeted by Article 6/A (l) of the Draft Amendment. The details on the scope of this Article 6/A (l) will be regulated by a communiqué set to be issued at most 6 months after the amendments enter into force. |
Article 6(12): The gatekeeper shall apply fair, reasonable, and non-discriminatory general conditions of access for business users to its software application stores, online search engines and online social networking services listed in the designation decision pursuant to Article 3(9).
For that purpose, the gatekeeper shall publish general conditions of access, including an alternative dispute settlement mechanism.
The Commission shall assess whether the published general conditions of access comply with this paragraph. |
Article 6(13): The gatekeeper shall not have general conditions for terminating the provision of a core platform service that are disproportionate. The gatekeeper shall ensure that the conditions of termination can be exercised without undue difficulty. |
|
|
|
6/A (n): Refrain from discriminating between business users by imposing unfair or unreasonable terms on business users. |
The scope of this very general provision of the Draft Amendment is expected to be made certain with the communiqué. |