REGIS - Reg. Intermediation Services 2019/1150 EN

1. The purpose of this Regulation is to contribute to the proper functioning of the internal market by laying down rules to ensure that business_users of online_intermediation_services and corporate_website_users in relation to online_search_engines are granted appropriate transparency, fairness and effective redress possibilities.

2. This Regulation shall apply to online_intermediation_services and online_search_engines provided, or offered to be provided, to business_users and corporate_website_users, respectively, that have their place of establishment or residence in the Union and that, through those online_intermediation_services or online_search_engines, offer goods or services to consumers located in the Union, irrespective of the place of establishment or residence of the providers of those services and irrespective of the law otherwise applicable.

3. This Regulation shall not apply to online payment services or to online advertising tools or online advertising exchanges, which are not provided with the aim of the facilitating the initiation of direct transactions and which do not involve a contractual relationship with consumers.

4. This Regulation shall be without prejudice to national rules which, in conformity with Union law, prohibit or sanction unilateral conduct or unfair commercial practices, to the extent that the relevant aspects are not covered by this Regulation. This Regulation shall 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.

5. This Regulation shall be without prejudice to Union law, in particular Union law applicable in the areas of judicial cooperation in civil matters, competition, data protection, trade secrets protection, consumer protection, electronic commerce and financial services.

Article 4

Restriction, suspension and termination

1. Where a provider of online_intermediation_services decides to restrict or suspend the provision of its online_intermediation_services to a given business_user in relation to individual goods or services offered by that business_user, it shall provide the business_user concerned, 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.

2. Where a provider of online_intermediation_services decides to terminate the provision of the whole of its online_intermediation_services to a given business_user, it shall provide the business_user concerned, at least 30 days prior to the termination taking effect, with a statement of reasons for that decision on a durable_medium.

3. In the case of restriction, suspension or termination, the provider of online_intermediation_services shall give the business_user the opportunity to clarify the facts and circumstances in the framework of the internal complaint-handling process referred to in Article 11. Where the restriction, suspension or termination is revoked by the provider of online_intermediation_services, it shall reinstate the business_user without undue delay, including providing the business_user with any access to personal or other data, or both, that resulted from its use of the relevant online_intermediation_services prior to the restriction, suspension or termination having taken effect.

4. The notice period in paragraph 2 shall not apply where a provider of online_intermediation_services:

(a)	is subject to a legal or regulatory obligation which requires it to terminate the provision of the whole of its online_intermediation_services to a given business_user in a manner which does not allow it to respect that notice period; or

(b)	exercises a right of termination under an imperative reason pursuant to national law which is in compliance with Union law;

(c)	can demonstrate that the business_user concerned has repeatedly infringed the applicable terms_and_conditions, resulting in the termination of the provision of the whole of the online_intermediation_services in question.

In cases where the notice period in paragraph 2 does not apply, the provider of online_intermediation_services shall provide the business_user concerned, without undue delay, with a statement of reasons for that decision on a durable_medium.

5. The statement of reasons referred to in paragraphs 1, and 2 and in the second subparagraph of paragraph 4 shall contain a reference to the specific facts or circumstances, including contents of third party notifications, that led to the decision of the provider of online_intermediation_services, as well as a reference to the applicable grounds for that decision referred to in point (c) of Article 3(1).

A provider of online_intermediation_services does not have to provide a statement of reasons where it is subject to a legal or regulatory obligation not to provide the specific facts or circumstances or the reference to the applicable ground or grounds, or where a provider of online_intermediation_services can demonstrate that the business_user concerned has repeatedly infringed the applicable terms_and_conditions, resulting in termination of the provision of the whole of the online_intermediation_services in question.

Article 7

Differentiated treatment

1. Providers of online_intermediation_services shall include in their terms_and_conditions a description of any differentiated treatment which they give, or might give, in relation to goods or services offered to consumers through those online_intermediation_services by, on the one hand, either that provider itself or any business_users which that provider controls and, on the other hand, other business_users. That description shall refer to the main economic, commercial or legal considerations for such differentiated treatment.

2. Providers of online_search_engines shall set out a description of any differentiated treatment which they give, or might give, in relation to goods or services offered to consumers through those online_search_engines by, on the one hand, either that provider itself or any corporate_website_users which that provider controls and, on the other hand, other corporate_website_users.

3. The descriptions referred to in paragraphs 1 and 2 shall cover in particular, where applicable, any differentiated treatment through specific measures taken by, or the behaviour of, the provider of online_intermediation_services or the provider of the online_search_engine relating to any of the following:

(a)

access that the provider, or that the business_users or corporate_website_users which that provider controls, may have to any personal data or other data, or both, which business_users, corporate_website_users or consumers provide for the use of the online_intermediation_services or the online_search_engines concerned or which are generated through the provision of those services;

(b)	ranking or other settings applied by the provider that influence consumer access to goods or services offered through those online_intermediation_services by other business_users or through those online_search_engines by other corporate_website_users;

(c)	any direct or indirect remuneration charged for the use of the online_intermediation_services or online_search_engines concerned;

(d)

access to, conditions for, or any direct or indirect remuneration charged for the use of services or functionalities, or technical interfaces, that are relevant to the business_user or the corporate_website_user and that are directly connected or ancillary to utilising the online_intermediation_services or online_search_engines concerned.

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.

Article 19

Entry into force and application

1. This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

2. It shall apply from 12 July 2020.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Brussels, 20 June 2019.

For the European Parliament

The President

A. TAJANI

For the Council

The President

G. CIAMBA

(1) OJ C 440, 6.12.2018, p. 177.

(2) Position of the European Parliament of 17 April 2019 (not yet published in the Official Journal) and Decision of the Council of 14 June 2019.

(3) Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ L 351, 20.12.2012, p. 1).

(4) Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) (OJ L 177, 4.7.2008, p. 6).

(5) Directive (EU) 2016/943 of the European Parliament and of the Council of 8 June 2016 on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure (OJ L 157, 15.6.2016, p. 1).

(6) Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (OJ L 119, 4.5.2016, p. 1).

(7) Directive (EU) 2016/680 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and on the free movement of such data, and repealing Council Framework Decision 2008/977/JHA (OJ L 119, 4.5.2016, p. 89).

(8) Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications) (OJ L 201, 31.7.2002, p. 37).

(9) Commission Recommendation 2003/361/EC of 6 May 2003 concerning the definition of micro, small and medium-sized enterprises (OJ L 124, 20.5.2003, p. 36).

(10) Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on certain aspects of mediation in civil and commercial matters (OJ L 136, 24.5.2008, p. 3).

(11) Council Decision 2010/48/EC of 26 November 2009 concerning the conclusion, by the European Community, of the United Nations Convention on the Rights of Persons with Disabilities (OJ L 23, 27.1.2010, p. 37).

(12) Directive (EU) 2015/1535 of the European Parliament and of the Council of 9 September 2015 laying down a procedure for the provision of information in the field of technical regulations and of rules on Information Society services (OJ L 241, 17.9.2015, p. 1).

(13) Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the EC Merger Regulation) (OJ L 24, 29.1.2004, p. 1).

whereas

(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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(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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(40) Mediation can offer providers of online_intermediation_services and their business_users a means to resolve disputes in a satisfactory manner, without having to use judicial proceedings which can be lengthy and costly.
Therefore, providers of online_intermediation_services should facilitate mediation by, in particular, identifying at least two public or private mediators with which they are willing to engage.
The aim of requiring the identification of a minimum number of mediators is to safeguard the mediators’ neutrality.
Mediators which provide their services from a location outside the Union should only be identified where it is guaranteed that the use of those services does not in any way deprive the business_users concerned of any legal protection offered to them under Union law or the law of the Member States, including the requirements of this Regulation and the applicable law regarding protection of personal data and trade secrets.
In order to be accessible, fair, and as swift, efficient and effective as possible, those mediators should meet certain set criteria.
Nonetheless, providers of online_intermediation_services and their business_users should remain free to jointly identify any mediator of their choice after a dispute has arisen between them.
In line with Directive 2008/52/EC of the European Parliament and of the Council (10), the mediation provided for in this Regulation should be a voluntary process in the sense that the parties are themselves in charge of the process and can start and terminate it at any time.
Notwithstanding its voluntary nature, providers of online_intermediation_services should examine in good faith requests to engage in the mediation provided for in this Regulation.

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(47) The Commission should continuously monitor the application of this Regulation in close cooperation with the Member States.
In this context, the Commission should aim to establish a broad information exchange network by leveraging relevant expert bodies, centres of excellence as well as the Observatory on the Online Platform Economy.
Member States should, upon request, provide any relevant information they have in this context to the Commission.
Finally, this exercise should benefit from the overall enhanced transparency in commercial relations between business_users and providers of online_intermediation_services and between corporate_website_users and online_search_engines that this Regulation aims to achieve.
In order to carry out its monitoring and review duties effectively under this Regulation, the Commission should endeavour to gather information from providers of online_intermediation_services.
Providers of online_intermediation_services should cooperate in good faith in facilitating the gathering of such data, where applicable.

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keyboard_tab REGIS - Reg. Intermediation Services 2019/1150 EN

REGIS - Reg. Intermediation Services 2019/1150 EN