(15) To ensure that the general terms_and_conditions of a contractual relationship enable business_users to determine the commercial conditions for the use, termination and suspension of online_intermediation_services, and to achieve predictability regarding their business relationship, those terms_and_conditions should be drafted in plain and intelligible language.
Terms and conditions should not be considered to have been drafted in plain and intelligible language where they are vague, unspecific or lack detail on important commercial issues and thus fail to give business_users a reasonable degree of predictability on the most important aspects of the contractual relationship.
Moreover, misleading language should not be considered to be plain and intelligible.
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(23) The termination of the whole of the online_intermediation_services and the related deletion of data provided for the use of, or generated through, the provision of online_intermediation_services represent a loss of essential information which could have a significant impact on business_users and could also impair their ability to properly exercise other rights granted to them by this Regulation.
Therefore, the provider of online_intermediation_services should provide the business_user concerned with a statement of reasons on a durable_medium, at least 30 days before the termination of the provision of the whole of its online_intermediation_services enters into effect.
However, in cases where a legal or regulatory obligation requires a provider of online_intermediation_services to terminate the provision of the whole of its online_intermediation_services to a given business_user, this notice period should not apply.
Equally, the notice period of 30 days should not apply where a provider of online_intermediation_services invokes rights of termination under national law in compliance with Union law which allow immediate termination where, taking into account all the circumstances of the specific case and weighing the interests of both parties, it cannot reasonably be expected to continue the contractual relationship until the agreed end or until the expiry of a notice period.
Finally, the notice period of 30 days should not apply where a provider of online_intermediation_services can demonstrate a repeated infringement of terms_and_conditions.
The various exceptions to the 30-day notice period can in particular arise in connection with illicit or inappropriate content, the safety of a good or service, counterfeiting, fraud, malware, spam, data breaches, other cybersecurity risks or suitability of the good or service to minors.
In order to ensure proportionality, providers of online_intermediation_services should, where reasonable and technically feasible, delist only individual goods or services of a business_user.
Termination of the whole of the online_intermediation_services constitutes the most severe measure.
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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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(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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(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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(32) Specific contractual terms should be addressed in this Regulation, in particular in situations of imbalances in bargaining power, in order to ensure that contractual relations are conducted in good faith and on the basis of fair dealing.
Predictability and transparency require that business_users are given a real opportunity to become acquainted with changes to terms_and_conditions, which should therefore not be imposed with retroactive effect unless they are based on a legal or regulatory obligation or are beneficial to those business_users.
Business users should in addition be offered clarity as to the conditions under which their contractual relationship with providers of online_intermediation_services can be terminated.
Providers of online_intermediation_services should ensure that the conditions for termination are always proportionate and can be exercised without undue difficulty.
Finally, business_users should be fully informed of any access that providers of online_intermediation_services maintain, after the expiry of the contract, to the information that business_users provide or generate in the context of their use of online_intermediation_services.
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(33) The ability to access and use data, including personal data, can enable important value creation in the online platform economy, both generally as well as for the business_users and online_intermediation_services involved.
Accordingly, it is important that providers of online_intermediation_services provide business_users with a clear description of the scope, nature and conditions of their access to and use of certain categories of data.
The description should be proportionate and might refer to general access conditions, rather than an exhaustive identification of actual data, or categories of data.
However, identification of and specific access conditions to certain types of actual data that might be highly relevant to the business_users could also be included in the description.
Such data could include ratings and reviews accumulated by business_users on the online_intermediation_services.
Altogether, the description should enable business_users to understand whether they can use the data to enhance value creation, including by possibly retaining third-party data 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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(39) The use of the word ‘internal’ should not be understood as preventing the delegation of an internal complaint-handling system to an external service provider or other corporate structure, as long as such a provider or other corporate structure has full authority and the ability to ensure compliance of the internal complaint-handling system with the requirements in this Regulation.
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(42) Since the providers of online_intermediation_services should always be required to identify mediators with which they are willing to engage, and should be obliged to engage in good faith throughout any mediation attempts conducted pursuant to this Regulation, these obligations should be established in a way that prevents abuse of the mediation system by business_users.
Business users should also be obliged to engage in mediation in good faith.
Providers of online_intermediation_services should not be obliged to engage in mediation where a business_user brings proceedings on a subject in relation to which that business_user has previously brought proceedings seeking mediation and the mediator has determined in that case that the business_user has not acted in good faith.
Providers of online_intermediation_services should also not be obliged to engage in mediation with business_users who have made repeated unsuccessful mediation attempts.
These exceptional situations should not limit the business_user’s ability to submit a case to mediation where, as determined by the mediator, the subject matter of the mediation is not related to the previous cases.
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(45) The identity of organisations, associations and public bodies which, in the view of the Member States, should be qualified to bring an action under this Regulation, should be communicated to the Commission.
In the course of such a communication, Member States should make specific reference to the relevant national provisions according to which the organisation, association or public body was established and, where appropriate, refer to the relevant public register in which the organisation or association is registered.
This additional option of a designation by Member States should provide for a certain level of legal certainty and predictability that business_users and corporate_website_users can rely on.
At the same time, it aims at making judicial procedures more efficient and shorter, which seems appropriate in this context.
The Commission should ensure the publication of a list of those organisations, associations and public bodies in the Official Journal of the European Union.
Inclusion on that list should serve as refutable proof of the legal capacity of the organisation, association or public body bringing the action.
Where there are any concerns regarding a designation, the Member State which designated an organisation, association or public body should investigate those concerns.
Organisations, associations and public bodies that are not designated by a Member State should have the possibility to bring an action before national courts subject to examination of legal capacity according to the criteria set out in this Regulation.
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