keyboard_tab REGIS - Reg. Intermediation Services 2019/1150 EN

• 3 Article 1 Subject matter and scope
• 8 Article 2 Definitions
• 1 Article 3 Terms and conditions
• 4 Article 5 Ranking
• 1 Article 6 Ancillary goods and services
• 4 Article 7 Differentiated treatment
• 4 Article 9 Access to data
• 1 Article 10 Restrictions to offer different conditions through other means

• services 101
• online 89
• business 62
• intermediation 61
• which 52
• users 50
• shall 37
• means 31
• search 30
• goods 30
• provider 29
• consumers 27
• through 25
• conditions 22
• article 20
• engines 20
• data 20
• website 18
• user 18
• terms 15
• such 15
• information 14
• offered 14
• providers 14
• period 13
• notice 13
• regulation 13
• concerned 12
• corporate 12
• legal 11
• offer 11
• person 10
• description 10
• they 10
• purposes 10
•    providers 9
• union 8
• access 8
• natural 8
• ranking 8
• irrespective 8
• provided 8
• provision 8
• particular 7
• subject 7
• provide 7
• including 7
• trade 7
• directive 7
• thereof 7

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

Where ancillary_goods_and_services, including financial products, are offered to consumers through the online_intermediation_services, either by the provider of online_intermediation_services or by third parties, the provider of online_intermediation_services shall set out in its terms_and_conditions a description of the type of ancillary_goods_and_services offered and a description of whether and under which conditions the business_user is also allowed to offer its own ancillary_goods_and_services through the online_intermediation_services.

• (1) Online intermediation services are key enablers of entrepreneurship and new business models, trade and innovation, which can also improve consumer welfare and which are increasingly used by both the private and public sectors.

    They offer access to new markets and commercial opportunities allowing undertakings to exploit the benefits of the internal market.

    They allow consumers in the Union to exploit those benefits, in particular by increasing their choice of goods and services, as well as by contributing to offering competitive pricing online, but they also raise challenges that need to be addressed in order to ensure legal certainty.


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• (2) Online intermediation services can be crucial for the commercial success of undertakings who use such services to reach consumers.

    To fully exploit the benefits of the online platform economy, it is therefore important that undertakings can trust online_intermediation_services with which they enter into commercial relationships.

    This is important mainly because the growing intermediation of transactions through online_intermediation_services, fuelled by strong data-driven indirect network effects, leads to an increased dependence of such business_users, particularly micro, small and medium-sized enterprises (SMEs), on those services in order for them to reach consumers.

    Given that increasing dependence, the providers of those services often have superior bargaining power, which enables them to, in effect, behave unilaterally in a way that can be unfair and that can be harmful to the legitimate interests of their businesses users and, indirectly, also of consumers in the Union.

    For instance, they might unilaterally impose on business_users practices which grossly deviate from good commercial conduct, or are contrary to good faith and fair dealing.

    This Regulation addresses such potential frictions in the online platform economy.


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• (3) consumers have embraced the use of online_intermediation_services.

    A competitive, fair, and transparent online ecosystem where companies behave responsibly is also essential for consumer welfare.

    Ensuring the transparency of, and trust in, the online platform economy in business-to-business relations could also indirectly help to improve consumer trust in the online platform economy.

    Direct impacts of the development of the online platform economy on consumers are, however, addressed by other Union law, especially the consumer acquis.


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• (4) Similarly, online_search_engines can be important sources of Internet traffic for undertakings which offer goods or services to consumers through websites and can therefore significantly affect the commercial success of such corporate_website_users offering their goods or services online in the internal market.

    In this regard, the ranking of websites by providers of online_search_engines, including of those websites through which corporate_website_users offer their goods and services to consumers, has an important impact on consumer choice and the commercial success of those corporate_website_users.

    Even in the absence of a contractual relationship with corporate_website_users, providers of online_search_engines can therefore, in effect, behave unilaterally in a way that can be unfair and that can be harmful to the legitimate interests of corporate_website_users and, indirectly, also of consumers in the Union.


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• (8) Those rules should also provide for appropriate incentives to promote fairness and transparency, especially as regards the ranking of corporate_website_users in the search results generated by online_search_engines.

    At the same time, those rules should recognise and safeguard the important innovation potential of the wider online platform economy and allow for healthy competition leading to increased consumer choice.

    It is appropriate to clarify that this Regulation should not affect national civil law, in particular contract law, such as the rules on the validity, formation, effects or termination of a contract, in so far as the national civil law rules are in conformity with Union law and to the extent that the relevant aspects are not covered by this Regulation.

    Member States should remain free to apply national laws which prohibit or sanction unilateral conduct or unfair commercial practices to the extent that the relevant aspects are not covered by this Regulation.


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• (9) Since online_intermediation_services and online_search_engines typically have a global dimension, this Regulation should apply to providers of those services regardless of whether they are established in a Member State or outside the Union, provided that two cumulative conditions are met.

    Firstly, the business_users or corporate_website_users should be established in the Union.

    Secondly, the business_users or corporate_website_users should, through the provision of those services, offer their goods or services to consumers located in the Union at least for part of the transaction.

    In order to determine whether business_users or corporate_website_users are offering goods or services to consumers located in the Union, it is necessary to ascertain whether it is apparent that the business_users or corporate_website_users direct their activities to consumers located in one or more Member States.

    This criterion should be interpreted in accordance with the relevant case law of the Court of Justice of the European Union on point (c) of Article 17(1) of Regulation (EU) No 1215/2012 of the European Parliament and of the Council (3) and point (b) of Article 6(1) of Regulation (EC) No 593/2008 of the European Parliament and of the Council (4).

    Such consumers should be located in the Union, but do not need to have their place of residence in the Union nor have the nationality of any Member State.

    Accordingly, this Regulation should not apply where business_users or corporate websites users are not established in the Union or where they are established in the Union but where they use online_intermediation_services or online_search_engines to offer goods or services exclusively to consumers located outside the Union or to persons who are not consumers.

    Furthermore, this Regulation should apply irrespective of the law otherwise applicable to a contract.


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• (10) A wide variety of business-to-consumer relations are intermediated online by providers operating multi-sided services that are essentially based on the same ecosystem-building business model.

    In order to capture the relevant services, online_intermediation_services should be defined in a precise and technologically-neutral manner.

    In particular, the services should consist of information society services, which are characterised by the fact that they aim to facilitate the initiating of direct transactions between business_users and consumers, irrespective of whether the transactions are ultimately concluded online, on the online portal of the provider of online_intermediation_services in question or that of the business_user, offline or in fact not at all, meaning that there should be no requirement for any contractual relationship between the business_users and consumers as a precondition for online_intermediation_services falling within the scope of this Regulation.

    The mere inclusion of a service of a marginal character only should not be seen as making the aim of a website or service the facilitation of transactions within the meaning of online_intermediation_services.

    In addition, the services should be provided on the basis of contractual relationships between the providers and business_users which offer goods or services to consumers.

    Such a contractual relationship should be deemed to exist where both parties concerned express their intention to be bound in an unequivocal manner on a durable_medium, without an express written agreement necessarily being required.


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• (11) Examples of online_intermediation_services covered by this Regulation should consequently include online e-commerce market places, including collaborative ones on which business_users are active, online software applications services, such as application stores, and online social media services, irrespective of the technology used to provide such services.

    In this sense, online_intermediation_services could also be provided by means of voice assistant technology.

    It should also not be relevant whether those transactions between business_users and consumers involve any monetary payment or whether they are concluded in part offline.

    However, this Regulation should not apply to peer-to-peer online_intermediation_services without the presence of business_users, pure business-to-business online_intermediation_services which are not offered to consumers, online advertising tools and online advertising exchanges which are not provided with the aim of facilitating the initiation of direct transactions and which do not involve a contractual relationship with consumers.

    For the same reason, search engine optimisation software services as well as services which revolve around advertising-blocking software should not be covered by this Regulation.

    Technological functionalities and interfaces that merely connect hardware and applications should not be covered by this Regulation, as they normally do not fulfil the requirements for online_intermediation_services.

    However, such functionalities or interfaces can be directly connected or ancillary to certain online_intermediation_services and where this is the case, the relevant providers of online_intermediation_services should be subject to transparency requirements related to differentiated treatment based on these functionalities and interfaces.

    This Regulation should also not apply to online payment services, since they do not themselves meet the applicable requirements but are rather inherently auxiliary to the transaction for the supply of goods and services to the consumers concerned.


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• (12) In line with the relevant case-law of the Court of Justice of the European Union and in the light of the fact that the dependent position of business_users has been observed principally in respect of online_intermediation_services that serve as a gateway to consumers in the form of natural persons, the notion of consumer used to delineate the scope of this Regulation should be understood as referring solely to natural persons, where they are acting for purposes which are outside their trade, business, craft or profession.


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• (24) The ranking of goods and services by the providers of online_intermediation_services has an important impact on consumer choice and, consequently, on the commercial success of the business_users offering those goods and services to consumers.

    Ranking refers to the relative prominence of the offers of business_users or relevance given to search results as presented, organised or communicated by providers of online_intermediation_services or by providers of online_search_engines, resulting from the use of algorithmic sequencing, rating or review mechanisms, visual highlights, or other saliency tools, or combinations thereof.

    Predictability entails that providers of online_intermediation_services determine ranking in a non-arbitrary manner.

    Providers should therefore outline the main parameters determining ranking beforehand, in order to improve predictability for business_users, to allow them to better understand the functioning of the ranking mechanism and to enable them to compare the ranking practices of various providers.

    The specific design of this transparency obligation is important for business_users as it implies the identification of a limited set of parameters that are most relevant out of a possibly much larger number of parameters that have some impact on ranking.

    This reasoned description should help business_users to improve the presentation of their goods and services, or some inherent characteristics of those goods or services.

    The notion of main parameter should be understood to refer to any general criteria, processes, specific signals incorporated into algorithms or other adjustment or demotion mechanisms used in connection with the ranking.


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• (25) The description of the main parameters determining ranking should also include an explanation of any possibility for business_users to actively influence ranking against remuneration, as well as an explanation of the relative effects thereof.

    Remuneration could, in this respect, refer to payments made with the main or sole aim to improve ranking, as well as indirect remuneration in the form of the acceptance by a business_user of additional obligations of any kind which may have this as its practical effect, such as the use of services that are ancillary or of any premium features.

    The content of the description, including the number and type of main parameters, can accordingly vary strongly depending on the specific online_intermediation_services, but should provide business_users with an adequate understanding of how the ranking mechanism takes account of the characteristics of the actual goods or services offered by the business_user, and their relevance to the consumers of the specific online_intermediation_services.

    The indicators used for measuring the quality of goods or services of business_users, the use of editors and their ability to influence the ranking of those goods or services, the amplitude of the impact of remuneration on ranking as well as elements that do not or only remotely relate to the good or service itself, such as presentational features of the online offer, could be examples of main parameters that, when included in a general description of the ranking mechanism in plain and intelligible language, should assist business_users in obtaining the required adequate understanding of its functioning.


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• (26) Similarly, the ranking of websites by the providers of online_search_engines, notably of those websites through which undertakings offer goods and services to consumers, has an important impact on consumer choice and the commercial success of corporate_website_users.

    Providers of online_search_engines should therefore provide a description of the main parameters determining the ranking of all indexed websites and the relative importance of those main parameters as opposed to other parameters, including those of corporate_website_users as well as other websites.

    In addition to the characteristics of the goods and services and their relevance for consumers, this description should in the case of online_search_engines also allow corporate_website_users to obtain an adequate understanding of whether, and if so how and to what extent, certain design characteristics of the website used, such as their optimisation for display on mobile telecommunications devices, is taken into account.

    It should also include an explanation of any possibility for corporate_website_users to actively influence ranking against remuneration, as well as an explanation of the relative effects thereof.

    In the absence of a contractual relationship between providers of online_search_engines and corporate_website_users, that description should be available to the public in an obvious and easily accessible location on the relevant online_search_engine.

    Areas of websites that require users to log in or register should not be understood as easily and publicly available in this sense.


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• (27) Providers of online_intermediation_services or of online_search_engines should not be required to disclose the detailed functioning of their ranking mechanisms, including algorithms, under this Regulation.

    Their ability to act against bad faith manipulation of ranking by third parties, including in the interest of consumers, should equally not be impaired.

    A general description of the main ranking parameters should safeguard those interests, while providing business_users and corporate_website_users with an adequate understanding of the functioning of ranking in the context of their use of specific online_intermediation_services or online_search_engines.

    To ensure that the objective of this Regulation is achieved, consideration of the commercial interests of providers of online_intermediation_services or online_search_engines should, therefore, never lead to a refusal to disclose the main parameters determining ranking.

    In this regard, whilst this Regulation is without prejudice to Directive (EU) 2016/943 of the European Parliament and of the Council (5), the description given should at least be based on actual data on the relevance of the ranking parameters used.


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• (29) Ancillary goods and services should be understood as goods and services offered to the consumer immediately prior to the completion of a transaction initiated on online_intermediation_services to complement the primary good or service being offered by the business_user.

    Ancillary goods and services refer to products that typically depend on, and are directly related to, the primary good or service in order to function.

    Therefore, the term should exclude goods and services that are merely being sold in addition to the primary good or service in question rather than being complementary in their nature.

    Examples of ancillary services include repair services for a specific good or financial products such as car rental insurance offered so as to complement the specific goods or services being offered by the business_user.

    Likewise, ancillary goods might include goods that complement the specific product being offered by the business_user by constituting an upgrade or a customisation tool linked to that specific product.

    Providers of online_intermediation_services offering goods or services to consumers that are ancillary to a good or service sold by a business_user, using their online_intermediation_services, should set out in their terms_and_conditions a description of the type of ancillary_goods_and_services being offered.

    Such a description should be available in the terms_and_conditions regardless of whether the ancillary good or service is being provided by the provider of online_intermediation_services itself or by a third party.

    Such a description should be comprehensive enough to allow a business_user to understand whether any good or service is being sold as ancillary to the business_user’s good or service.

    The description should not necessarily include the specific good or service, but rather the type of product being offered as complementary to the primary product of the business_user.

    Furthermore, this description should in all circumstances include whether and under what conditions a business_user is allowed to offer its own ancillary good or service in addition to the primary good or service that it is offering through the online_intermediation_services.


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• (30) Where a provider of online_intermediation_services itself offers certain goods or services to consumers through its own online_intermediation_services, or does so through a business_user which it controls, that provider might compete directly with other business_users of its online_intermediation_services which are not controlled by the provider, which might give the provider an economic incentive and the ability to use its control over the online_intermediation_services to provide technical or economic advantages to its own offering, or those offered through a business_user which it controls, which it could deny to competing business_users.

    Such behaviour could undermine fair competition and restrict consumer choice.

    In such situations, in particular, it is important that the provider of online_intermediation_services acts in a transparent manner and provides an appropriate description of, and sets out the considerations for any differentiated treatment, whether through legal, commercial or technical means, such as functionalities involving operating systems that it might give in respect of goods or services it offers itself compared to those offered by business_users.

    To ensure proportionality, this obligation should apply at the level of the overall online_intermediation_services, rather than at the level of individual goods or services offered through those services.


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• (31) Where a provider of an online_search_engine itself offers certain goods or services to consumers through its own online_search_engine, or does so through a corporate_website_user which it controls, that provider might compete directly with other corporate_website_users of its online_search_engine which are not controlled by the provider.

    In such situations, in particular, it is important that the provider of the online_search_engine acts in a transparent manner and provides a description of any differentiated treatment, whether through legal, commercial or technical means, that it might give in respect of goods or services it offers itself or through a corporate_website_user which it controls, compared to those offered by competing corporate_website_users.

    To ensure proportionality, this obligation should apply at the level of the overall online_search_engine, rather than at the level of individual goods or services offered through those services.


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• (36) Providers of online_intermediation_services might in certain cases restrict in their terms_and_conditions the ability of business_users to offer goods or services to consumers under more favourable conditions through other means than through those online_intermediation_services.

    In those cases, the providers concerned should set out the grounds for doing so, in particular with reference to the main economic, commercial or legal considerations for the restrictions.

    This transparency obligation should however not be understood as affecting the assessment of the legality of such restrictions under other acts of Union law or the law of Member States that is in accordance with Union law, including in the areas of competition and unfair commercial practices, and the application of such laws.


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