REGIS - Reg. Intermediation Services 2019/1150 EN

(1)	‘business user’ means any private individual acting in a commercial or professional capacity who, or any legal person which, through online_intermediation_services offers goods or services to consumers for purposes relating to its trade, business, craft or profession;

(2)

‘online intermediation services’ means services which meet all of the following requirements:

(a)	they constitute information society services within the meaning of point (b) of Article 1(1) of Directive (EU) 2015/1535 of the European Parliament and of the Council (12);

(b)	they allow business_users to offer goods or services to consumers, with a view to facilitating the initiating of direct transactions between those business_users and consumers, irrespective of where those transactions are ultimately concluded;

(c)	they are provided to business_users on the basis of contractual relationships between the provider of those services and business_users which offer goods or services to consumers;

(3)	‘provider of online_intermediation_services’ means any natural or legal person which provides, or which offers to provide, online_intermediation_services to business_users;

(4)	‘consumer’ means any natural person who is acting for purposes which are outside this person’s trade, business, craft or profession;

(5)

‘online search engine’ means a digital service that allows users to input queries in order to perform searches of, in principle, all websites, or all websites in a particular language, on the basis of a query on any subject in the form of a keyword, voice request, phrase or other input, and returns results in any format in which information related to the requested content can be found;

(6)	‘provider of online_search_engine’ means any natural or legal person which provides, or which offers to provide, online_search_engines to consumers;

(7)

‘corporate website user’ means any natural or legal person which uses an online interface, meaning any software, including a website or a part thereof and applications, including mobile applications, to offer goods or services to consumers for purposes relating to its trade, business, craft or profession;

(8)

‘ranking’ means the relative prominence given to the goods or services offered through online_intermediation_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 by providers of online_search_engines, respectively, irrespective of the technological means used for such presentation, organisation or communication;

(9)	‘control’ means ownership of, or the ability to exercise decisive influence over, an undertaking, within the meaning of Article 3(2) of Council Regulation (EC) No 139/2004 (13);

(10)

‘terms and conditions’ means all terms_and_conditions or specifications, irrespective of their name or form, which govern the contractual relationship between the provider of online_intermediation_services and its business_users and are unilaterally determined by the provider of online_intermediation_services, that unilateral determination being evaluated on the basis of an overall assessment, for which the relative size of the parties concerned, the fact that a negotiation took place, or that certain provisions thereof might have been subject to such a negotiation and determined together by the relevant provider and business_user is not, in itself, decisive;

(11)

‘ancillary goods and services’ means goods and services offered to the consumer prior to the completion of a transaction initiated on the online_intermediation_services in addition to and complementary to the primary good or service offered by the business_user through the online_intermediation_services;

(12)	‘mediation’ means any structured process as defined in point (a) of Article 3 of Directive 2008/52/EC;

(13)	‘durable medium’ means any instrument which enables business_users to store information addressed personally to them in a way accessible for future reference and for a period of time adequate for the purposes of the information and allows the unchanged reproduction of the information stored.

Article 5

Ranking

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 9

Access to data

1. Providers of online_intermediation_services shall include in their terms_and_conditions a description of the technical and contractual access, or absence thereof, of business_users to any personal data or other data, or both, which business_users or consumers provide for the use of the online_intermediation_services concerned or which are generated through the provision of those services.

2. Through the description referred to in paragraph 1, providers of online_intermediation_services shall adequately inform business_users in particular of the following:

(a)

whether the provider of online_intermediation_services has access to personal data or other data, or both, which business_users or consumers provide for the use of those services or which are generated through the provision of those services, and if so, to which categories of such data and under what conditions;

(b)

whether a business_user has access to personal data or other data, or both, provided by that business_user in connection to the business_user’s use of the online_intermediation_services concerned or generated through the provision of those services to that business_user and the consumers of the business_user’s goods or services, and if so, to which categories of such data and under what conditions;

(c)

in addition to point (b), whether a business_user has access to personal data or other data, or both, including in aggregated form, provided by or generated through the provision of the online_intermediation_services to all of the business_users and consumers thereof, and if so, to which categories of such data and under what conditions; and

(d)

whether any data under point (a) is provided to third parties, along with, where the provision of such data to third parties is not necessary for the proper functioning of the online_intermediation_services, information specifying the purpose of such data sharing, as well as possibilities for business_users to opt out from that data sharing.

3. This Article shall be without prejudice to the application of Regulation (EU) 2016/679, Directive (EU) 2016/680 and Directive 2002/58/EC.

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 15

Enforcement

1. Each Member State shall ensure adequate and effective enforcement of this Regulation.

2. Member States shall lay down the rules setting out the measures applicable to infringements of this Regulation and shall ensure that they are implemented. The measures provided for shall be effective, proportionate and dissuasive.

whereas

(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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(46) Member States should be required to ensure adequate and effective enforcement of this Regulation.
Different enforcement systems already exist in Member States, and they should not be obliged to set up new national enforcement bodies.
Member States should have the option to entrust existing authorities, including courts, with the enforcement of this Regulation.
This Regulation should not oblige Member States to provide for ex officio enforcement or to impose fines.

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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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keyboard_tab REGIS - Reg. Intermediation Services 2019/1150 EN

REGIS - Reg. Intermediation Services 2019/1150 EN