REGIS - Reg. Intermediation Services 2019/1150 EN

1. Providers of online_intermediation_services shall set out in their terms_and_conditions the main parameters determining ranking and the reasons for the relative importance of those main parameters as opposed to other parameters.

2. Providers of online_search_engines shall set out the main parameters, which individually or collectively are most significant in determining ranking and the relative importance of those main parameters, by providing an easily and publicly available description, drafted in plain and intelligible language, on the online_search_engines of those providers. They shall keep that description up to date.

3. Where the main parameters include the possibility to influence ranking against any direct or indirect remuneration paid by business_users or corporate_website_users to the respective provider, that provider shall also set out a description of those possibilities and of the effects of such remuneration on ranking in accordance with the requirements set out in paragraphs 1 and 2.

4. Where a provider of an online_search_engine has altered the ranking order in a specific case or delisted a particular website following a third party notification, the provider shall offer the possibility for the corporate_website_user to inspect the contents of the notification.

5. The descriptions referred to in paragraphs 1, 2 and 3 shall be sufficient to enable the business_users or corporate_website_users to obtain an adequate understanding of whether, and if so how and to what extent, the ranking mechanism takes account of the following:

(a)	the characteristics of the goods and services offered to consumers through the online_intermediation_services or the online_search_engine;

(b)	the relevance of those characteristics for those consumers;

(c)	as regards online_search_engines, the design characteristics of the website used by corporate_website_users.

6. Providers of online_intermediation_services and providers of online_search_engines shall, when complying with the requirements of this Article, not be required to disclose algorithms or any information that, with reasonable certainty, would result in the enabling of deception of consumers or consumer harm through the manipulation of search results. This Article shall be without prejudice to Directive (EU) 2016/943.

7. To facilitate the compliance of providers of online_intermediation_services and providers of online_search_engines with and the enforcement of the requirements of this Article, the Commission shall accompany the transparency requirements set out in this Article with guidelines.

Article 11

Internal complaint-handling system

1. Providers of online_intermediation_services shall provide for an internal system for handling the complaints of business_users.

That internal complaint-handling system shall be easily accessible and free of charge for business_users and shall ensure handling within a reasonable time frame. It shall be based on the principles of transparency and equal treatment applied to equivalent situations, and treating complaints in a manner which is proportionate to their importance and complexity. It shall allow business_users to lodge complaints directly with the provider concerned regarding any of the following issues:

(a)	alleged non-compliance by that provider with any obligations laid down in this Regulation which affects the business_user lodging the complaint (‘the complainant’);

(b)	technological issues which relate directly to the provision of online_intermediation_services, and which affect the complainant;

(c)	measures taken by, or behaviour of, that provider which relate directly to the provision of the online_intermediation_services, and which affect the complainant.

2. As part of their internal complaint-handling system, providers of online_intermediation_services shall:

(a)	duly consider complaints lodged and the follow-up which they may need to give to the complaint in order to adequately address the issue raised;

(b)	process complaints swiftly and effectively, taking into account the importance and complexity of the issue raised;

(c)	communicate to the complainant the outcome of the internal complaint-handling process, in an individualised manner and drafted in plain and intelligible language.

3. Providers of online_intermediation_services shall provide in their terms_and_conditions all relevant information relating to the access to and functioning of their internal complaint-handling system.

4. Providers of online_intermediation_services shall establish and make easily available to the public information on the functioning and effectiveness of their internal complaint-handling system. They shall verify the information at least annually and where significant changes are needed, they shall update that information.

That information shall include the total number of complaints lodged, the main types of complaints, the average time period needed to process the complaints and aggregated information regarding the outcome of the complaints.

5. The provisions of this Article shall not apply to providers of online_intermediation_services that are small enterprises within the meaning of the Annex to Recommendation 2003/361/EC.

Article 12

Mediation

1. Providers of online_intermediation_services shall identify in their terms_and_conditions two or more mediators with which they are willing to engage to attempt to reach an agreement with business_users on the settlement, out of court, of any disputes between the provider and the business_user arising in relation to the provision of the online_intermediation_services concerned, including complaints that could not be resolved by means of the internal complaint-handling system referred to in Article 11.

Providers of online_intermediation_services may only identify mediators providing their mediation services from a location outside the Union where it is ensured that the business_users concerned are not effectively deprived of the benefit of any legal safeguards laid down in Union law or the law of the Member States as a consequence of the mediators providing those services from outside the Union.

2. The mediators referred to in paragraph 1 shall meet the following requirements:

(a)	they are impartial and independent;

(b)	their mediation services are affordable for business_users of the online_intermediation_services concerned;

(c)	they are capable of providing their mediation services in the language of the terms_and_conditions which govern the contractual relationship between the provider of online_intermediation_services and the business_user concerned;

(d)	they are easily accessible either physically in the place of establishment or residence of the business_user, or remotely using communication technologies;

(e)	they are capable of providing their mediation services without undue delay;

(f)	they have a sufficient understanding of general business-to-business commercial relations, allowing them to contribute effectively to the attempt to settle the disputes.

3. Notwithstanding the voluntary nature of mediation, providers of online_intermediation_services and business_users shall engage in good faith throughout any mediation attempts conducted pursuant to this Article.

4. Providers of online_intermediation_services shall bear a reasonable proportion of the total costs of mediation in each individual case. A reasonable proportion of those total costs shall be determined, on the basis of a suggestion by the mediator, by taking into account all relevant elements of the case at hand, in particular the relative merits of the claims of the parties to the dispute, the conduct of the parties, as well as the size and financial strength of the parties relative to one another.

5. Any attempt to reach an agreement through mediation on the settlement of a dispute in accordance with this Article shall not affect the rights of the providers of online_intermediation_services and of the business_users concerned to initiate judicial proceedings at any time before, during or after the mediation process.

6. If requested by a business_user, before entering into or during mediation, the provider of online_intermediation_services shall make available, to the business_user, information on the functioning and effectiveness of mediation related to its activities.

7. The obligation set out in paragraph 1 shall not apply to providers of online_intermediation_services that are small enterprises within the meaning of the Annex to Recommendation 2003/361/EC.

Article 13

Specialised mediators

The Commission shall, in close cooperation with the Member States, encourage providers of online_intermediation_services as well as organisations and associations representing them to, individually or jointly, set up one or more organisations providing mediation services which meet the requirements specified in Article 12(2), for the specific purpose of facilitating the out-of-court settlement of disputes with business_users arising in relation to the provision of those services, taking particular account of the cross-border nature of online_intermediation_services.

Article 17

Codes of conduct

1. The Commission shall encourage the drawing up of codes of conduct by providers of online_intermediation_services and by organisations and associations representing them, together with business_users, including SMEs and their representative organisations, that are intended to contribute to the proper application of this Regulation, taking account of the specific features of the various sectors in which online_intermediation_services are provided, as well as of the specific characteristics of SMEs.

2. The Commission shall encourage providers of online_search_engines and organisations and associations representing them to draw up codes of conduct that are specifically intended to contribute to the proper application of Article 5.

3. The Commission shall encourage the providers of online_intermediation_services to adopt and implement sector-specific codes of conduct, where such sector-specific codes of conduct exist and are widely used.

Article 18

Review

1. By 13 January 2022, 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 first evaluation of this Regulation shall be carried out, in particular, with a view to the following:

(a)	assessing the compliance with, and impact on the online platform economy of, the obligations laid down in Articles 3 to 10;

(b)	assessing the impact and effectiveness of any established codes of conduct to improve fairness and transparency;

(c)	investigating further the problems caused by the dependence of business_users on online_intermediation_services, and problems caused by unfair commercial practices by providers of online_intermediation_services, and to determine further to which extent those practices continue to be widespread;

(d)

investigating whether the competition between goods or services offered by a business_user and goods or services offered or controlled by a provider of online_intermediation_services constitutes fair competition and whether providers of online_intermediation_services misuse privileged data in this regard;

(e)	assessing the effect of this Regulation on any possible imbalances in the relationships between providers of operating systems and their business_users;

(f)	assessing whether the scope of the Regulation, especially as regards the definition of ‘business user’, is suitable in that it does not encourage bogus self-employment.

The first and subsequent evaluations shall establish whether additional rules, including regarding enforcement, may be required to ensure a fair, predictable, sustainable and trusted online business environment within the internal market. 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.

4. In carrying out the evaluation of this Regulation, the Commission shall take into account inter alia, the opinions and reports presented to it by the group of experts for the Observatory on the Online Platform Economy. It shall also take into account the content and functioning of any codes of conduct referred to in Article 17, where appropriate.

whereas

(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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(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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(41) Providers of online_intermediation_services should bear a reasonable proportion of the total costs of the mediation, taking into account all relevant elements of the case at hand.
To that end, the mediator should suggest which proportion is reasonable in the individual case.
In light of the costs and of the administrative burden associated with the necessity to identify mediators in terms_and_conditions, it is appropriate to exempt from that obligation any providers of online_intermediation_services which are small enterprises, in line with the relevant provisions of Recommendation 2003/361/EC.
The consolidation rules laid down in that Recommendation ensure that any circumvention of that obligation is prevented.
Nevertheless, this should not affect the right of such enterprises to identify mediators in their terms_and_conditions that comply with the criteria set out in this Regulation.

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(48) Codes of conduct, drawn up either by the service providers concerned or by organisations or associations representing them, can contribute to the proper application of this Regulation and should therefore be encouraged.
When drawing up such codes of conduct, in consultation with all relevant stakeholders, account should be taken of the specific features of the sectors concerned as well as of the specific characteristics of SMEs.
Such codes of conduct should be worded in an objective and non-discriminatory way.

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(49) The Commission should periodically evaluate this Regulation and closely monitor its effects on 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 effects on business_users which might result from the general use of exclusive choice of law and forum provisions in terms_and_conditions which are unilaterally determined by the provider of online_intermediation_services.
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 group of experts for the Observatory on the Online Platform Economy established in accordance with the Commission Decision C(2018)2393 has a key role in informing the evaluation of this Regulation by the Commission.
The Commission should therefore duly consider the opinions and reports presented to it by the group.
Following the evaluation, the Commission should take appropriate measures.
Further measures, including of a legislative nature, may be appropriate if and where the provisions established in this Regulation prove to be insufficient to adequately address imbalances and unfair commercial practices persisting in the sector.

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(50) When providing the information required under this Regulation, account should be taken as much as possible of the particular needs of persons with disabilities, in line with the objectives of the United Nations Convention on the Rights of Persons with Disabilities (11).

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keyboard_tab REGIS - Reg. Intermediation Services 2019/1150 EN

REGIS - Reg. Intermediation Services 2019/1150 EN