(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.
- = -
(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.
- = -
(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.
- = -
(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.
- = -
(5) The nature of the relationship between providers of online_intermediation_services and business_users might also lead to situations in which business_users often have limited possibilities to seek redress where unilateral actions of the providers of those services lead to a dispute.
In many cases, those providers do not offer accessible and effective internal complaint-handling systems.
Existing alternative out-of-court dispute settlement mechanisms can also be ineffective for a variety of reasons, including a lack of specialised mediators and business_users’ fear of retaliation.
- = -
(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.
- = -
(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.
- = -
(13) Considering the quick pace of innovation, the definition of online_search_engine used in this Regulation should be technology-neutral.
In particular, the definition should be understood to also encompass voice requests.
- = -
(18) Ensuring transparency in the general terms_and_conditions can be essential to promoting sustainable business relationships and to preventing unfair behaviour to the detriment of business_users.
Providers of online_intermediation_services should therefore also ensure that the terms_and_conditions are easily available at all stages of the commercial relationship, including to prospective business_users at the pre-contractual phase, and that any changes to those terms are notified on a durable_medium to business_users concerned within a set notice period which is reasonable and proportionate in light of the specific circumstances and which is at least 15 days.
Proportionate longer notice periods of more than 15 days should be given where the proposed changes to the terms_and_conditions require business_users to make technical or commercial adaptations in order to comply with the change, for example by requiring them to make significant technical adjustments to their goods or services.
That notice period should not apply where, and to the extent that, it is waived in an unambiguous manner by the business_user concerned or where, and to the extent that, the need to implement the change without respecting the notice period stems from a legal or regulatory obligation incumbent on the service provider under Union or national law.
However, proposed editorial changes should not be covered by the term ‘change’ in as far as they do not alter the content or meaning of terms_and_conditions.
The requirement of notifying proposed changes on a durable_medium should enable business_users to review effectively these changes at a later stage.
Business users should be entitled to terminate their contract within 15 days from the receipt of the notice of any change, unless a shorter period applies to the contract, for example as resulting from national civil law.
- = -
(22) A provider of online_intermediation_services can have legitimate reasons to decide to restrict, suspend or terminate the provision of its services to a given business_user, including by delisting individual goods or services of a given business_user or effectively removing search results.
Short of being suspended, providers of online_intermediation_services can also restrict individual listings of business_users; for example, through their demotion or by negatively affecting a business_user’s appearance (‘dimming’) which can include lowering its ranking.
However, given that such decisions can significantly affect the interests of the business_user concerned, they should be provided, prior to or at the time of the restriction or suspension taking effect, with a statement of reasons for that decision on a durable_medium.
To minimise the negative impact of such decisions on business_users, providers of online_intermediation_services should also allow an opportunity to clarify the facts that led to that decision in the framework of the internal complaint-handling process, which will help the business_user, where this is possible, to re-establish compliance.
In addition, where the provider of online_intermediation_services revokes the decision to restrict, suspend or terminate, for example because the decision was made in error or the infringement of terms_and_conditions that led to this decision was not committed in bad faith and has been remedied in a satisfactory manner, the provider should reinstate the business_user concerned without undue delay, including providing the business_user with any access to personal or other data, or both, available prior to the decision.
- = -
(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.
- = -
(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.
- = -
(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.
- = -
(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.
- = -
(34) In the same vein, it is important for business_users to understand whether the provider shares with third parties any data which has been generated through the use of the intermediation service by the business_user.
Business users should in particular be made aware of any sharing of data with third parties that occurs for purposes which are not necessary for the proper functioning of the online_intermediation_services; for example where the provider monetises data under commercial considerations.
To allow business_users to fully exercise available rights to influence such data sharing, providers of online_intermediation_services should also be explicit about possibilities to opt out from the data sharing where they exist under their contractual relationship with the business_user.
- = -
(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.
- = -