Ref. Ares(2022)4957614 - 07/07/2022
systems, cloud computing services, advertising systems (as well as by virtual assistants, web browsers and
connected TVs) should be equally addressed.
We welcome that the European Parliament’s position also extends article 6(1)(d) to “other settings”,
hence encompassing a broader range of unfair practices such as the use of default settings to keep users
in a closed environment1, or preferential crawling/indexing. Likewise, the European Parliament introduces
in recitals 48 and 49 important clarifications that prevent possibilities to circumvent the prohibition such
as the embedded display of a separate intermediation service. The Parliament also introduces in art.
2(18a) a definition of “search results”, which further clarifies that any information in any format, paid for
or organic, that appears as a result of a search query, is considered a search result, thus ensuring that the
various gatekeepers’ services appearing along or within search results cannot escape the obligation.
Suggested wording: European Parliament’s position
Article 2(18)
(18) ‘Ranking’ means the relative prominence given to goods or services offered through online
intermediation services or online social networking core platform 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 core platform service
providers of online search engines, respectively, whatever, irrespectively of the technological means used
for such presentation, organisation or communication;
Article 2(19a)
(18a)(new) ‘Search results’ means any information in any format, including texts, graphics, voice or
other output, returned in response and related to a written or oral search query, irrespective of whether
the information is an organic result, a paid result, a direct answer or any product, service or information
offered in connection with, or displayed along with, or partly or entirely embedded in, the organic
results;
Article 6(1)(d)
Refrain from treating Not treat more favourably in ranking or other settings, 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 transparent, fair and non-discriminatory conditions to such
ranking third party services or products.
Access to data. It is important that gatekeepers provide access to aggregated "
and" non-aggregated data
(instead of "or"), as highlighted in the European Parliament’s position on article 6(1)(i).
On access to personal data specifically, article 11(2) as proposed by the European Commission and the co-
legislators would contradict article 6(1)(i), therefore creating a loophole that would circumvent the DMA.
This provision would allow gatekeeper platforms to fulfill the obligation to share personal data by simply
1 As an example, when using Apple’s virtual assistant Siri, end users can only access podcasts through Apple’s own
podcast service (“Apple podcast”), instead of being offered the possibility to use the content provider’s own service.
2
sharing anonymized data (which is non-personal by nature). This is insufficient and would not work in
practice.
In our view:
-
article 11(2) should be amended to avoid such a loophole - gatekeepers should de minimis provide
business users with the capacity to ask consent directly to end users;
-
the obligation for gatekeepers not to make the obtaining of consent more burdensome for
business users than for their own services should be maintained.
Suggested wording: new amendment
Article 11(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.
Audience measurement. We welcome the European Parliament’s approach to the audience
measurement provision in Article 6(1)(g). For such an obligation to produce the warranted results, the
information that the gatekeepers share should be granular, reliable and real-time, as well as
independently verified by trusted, approved and neutral third parties. If these conditions are not upheld,
the obligations would remain unenforceable.
We would therefore encourage the co-legislators to maintain the wording adopted by the European
Parliament:
Suggested wording: European Parliament’s position
Article 6(1)(g)
Provide advertisers and publishers, and 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
information necessary for advertisers and publishers to carry out their own independent verification of the
ad inventory including aggregated and non-aggregated data and performance data in a manner that
would allow advertisers and publishers to run their own verification and measurement tools to assess
performance of the core services provided for by the gatekeepers
Fair and non-discriminatory general conditions of access. We recommend that, to ensure the
effectiveness of the DMA, the obligation must be applied beyond App stores to all core platform services,
in particular to search engines and social networks. The DMA therefore must prohibit gatekeepers from
imposing unfair conditions, such as the granting of a royalty-free license, demanding data that is not
necessary to provide the intermediation service, or tying the ability of users to exercise statutory
remuneration rights to their participation in platform services. The European Parliament also adds that in
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addition (“and”) to fair and non-discriminatory conditions of access, conditions for business users shall
not be less favourable than the conditions applied to its own services. It is thus crucial that the “and” is
not changed into an “or”, as it would empty the obligation of its substance, allowing gatekeepers to apply
unfair conditions as long as they are equivalent to those applied to own services.
The Council also
introduced a revised Recital 57 which gives important clarifications with regard to unfair access conditions
relating to data and licences held by the business users. This wording should be considered, along with
the extension of Recital 57 to all core platform services as proposed by the European Parliament.
Suggested wording: European Parliament’s position
Article 6(1)(k)
Apply transparent, fair, reasonablefair and non-discriminatory general conditions of access and
conditions that are not less favourable than the conditions applied to its own service for business users
to its software application store core platform services designated pursuant to Article 3 of this Regulation.
Association of Commercial Television and VoD
EMMA/ENPA
Services in Europe
@enpa.eu
@acte.be
+32
+32
www.enpa.eu
www.acte.be
www.magazinemedia.eu
European Publishers Council (EPC)
Association of European Radios (AER)
@epceurope.eu
@aereurope.org
+44
+32
www.epceurope.eu
www.aereurope.org
News Media Europe
European Broadcasting Union (EBU)
@newsmediaeurope.eu
@ebu.ch
+32
+32
www.newsmediaeurope.eu
www.ebu.ch
Association of television and radio sales houses
(EGTA)
@egta.com
+32
http://www.egta.com/
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