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 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 14

Judicial proceedings by representative organisations or associations and by public bodies

1. Organisations and associations that have a legitimate interest in representing business_users or in representing corporate_website_users, as well as public bodies set up in Member States, shall have the right to take action before competent national courts in the Union, in accordance with the rules of the law of the Member State where the action is brought, to stop or prohibit any non-compliance by providers of online_intermediation_services or by providers of online_search_engines, with the relevant requirements laid down in this Regulation.

2. The Commission shall encourage Member States to exchange best practices and information with other Member States, based on registries of unlawful acts which have been subject to injunction orders before national courts, where such registries are set up by relevant public bodies or authorities.

3. Organisations or associations shall have the right referred to in paragraph 1 only where they meet all of the following requirements:

(a)	they are properly established in accordance with the law of a Member State;

(b)	they pursue objectives that are in the collective interest of the group of business_users or corporate_website_users that they represent on a sustained basis;

(c)	they are of a non-profit making character;

(d)	their decision-making is not unduly influenced by any third party providers of financing, in particular by providers of online_intermediation_services or of online_search_engines.

To this end, organisations or associations shall fully and publicly disclose information on their membership and source of financing.

4. In Member States where public bodies have been set up, those public bodies shall have the right referred to in paragraph 1, where they are charged with defending the collective interests of business_users or corporate_website_users or with ensuring compliance with the requirements laid down in this Regulation, in accordance with the national law of the Member State concerned.

5. Member States may designate:

(a)	organisations or associations established in their Member State that meet at least the requirements of paragraph 3 at the request of those organisations or associations;

(b)	public bodies set up in their Member State that meet the requirements of paragraph 4

that are granted the right referred to in paragraph 1. Member States shall communicate to the Commission the name and purpose of any such designated organisations, associations or public bodies.

6. The Commission shall draw up a list of the organisations, associations and public bodies designated in accordance with paragraph 5. That list shall specify the purpose of those organisations, associations and public bodies. That list shall be published in the Official Journal of the European Union. Changes to the list shall be published without delay and, in any event, an updated list shall be drawn up and published every six months.

7. The court shall accept the list referred to in paragraph 6 as proof of the legal capacity of the organisation, association or public body, without prejudice to the court’s right to examine whether the purpose of the claimant justifies its taking action in a specific case.

8. If a Member State or the Commission raises concerns regarding the compliance, by an organisation or association, with the criteria laid down in paragraph 3, or, by a public body, with the criteria laid down in paragraph 4, the Member State that designated that organisation, association or public body in accordance with paragraph 5 shall investigate the concerns and, where appropriate, revoke the designation if one or more of the criteria are not complied with.

9. The right referred to in paragraph 1 shall be without prejudice to the rights of business_users and corporate_website_users to start any action before competent national courts, in accordance with the rules of the law of the Member State where the action is brought, which is based on individual rights and aims to stop any non-compliance, by providers of online_intermediation_services or providers of online_search_engines, with the relevant requirements laid down in this Regulation.

whereas

(10) A wide variety of business-to-consumer relations are intermediated online by providers operating multi-sided services that are essentially based on the same ecosystem-building business model.
In order to capture the relevant services, online_intermediation_services should be defined in a precise and technologically-neutral manner.
In particular, the services should consist of information society services, which are characterised by the fact that they aim to facilitate the initiating of direct transactions between business_users and consumers, irrespective of whether the transactions are ultimately concluded online, on the online portal of the provider of online_intermediation_services in question or that of the business_user, offline or in fact not at all, meaning that there should be no requirement for any contractual relationship between the business_users and consumers as a precondition for online_intermediation_services falling within the scope of this Regulation.
The mere inclusion of a service of a marginal character only should not be seen as making the aim of a website or service the facilitation of transactions within the meaning of online_intermediation_services.
In addition, the services should be provided on the basis of contractual relationships between the providers and business_users which offer goods or services to consumers.
Such a contractual relationship should be deemed to exist where both parties concerned express their intention to be bound in an unequivocal manner on a durable_medium, without an express written agreement necessarily being required.

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(14) Providers of online_intermediation_services tend to use pre-formulated terms_and_conditions and in order to effectively protect business_users where needed, this Regulation should apply where the terms_and_conditions of a contractual relationship, regardless of their name or form, are unilaterally determined by the provider of online_intermediation_services.
Whether the terms_and_conditions were unilaterally determined should be evaluated case by case on the basis of an overall assessment.
For that overall assessment, 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 should not, in itself, be decisive.
In addition, the obligation for providers of online_intermediation_services to make their terms_and_conditions easily available to business_users, including in the pre-contractual stage of their commercial relationship, means that business_users will not be deprived of the transparency resulting from this Regulation as a result of them being in any way able to successfully negotiate.

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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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(38) The requirements of this Regulation regarding the internal complaint-handling systems aim to allow providers of online_intermediation_services a reasonable degree of flexibility when operating those systems and addressing individual complaints, so as to minimise any administrative burden.
In addition, the internal complaint-handling systems should allow providers of online_intermediation_services to address, where necessary, in a proportionate manner any use in bad faith which certain business_users might seek to make of those systems.
In light of the costs of setting up and operating such systems, it is appropriate to exempt from those obligations any providers of online_intermediation_services which constitute small enterprises, in line with the relevant provisions of Commission Recommendation 2003/361/EC (9).
The consolidation rules laid down in that Recommendation ensure that any circumvention is prevented.
That exemption should not affect the right of such enterprises to set up, on a voluntary basis, an internal complaint-handling system that complies with the criteria set out in this Regulation.

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(44) Various factors, such as limited financial means, a fear of retaliation and exclusive choice of law and forum provisions in terms_and_conditions, can limit the effectiveness of existing judicial redress possibilities, particularly those which require business_users or corporate_website_users to act individually and identifiably.
To ensure the effective application of this Regulation, organisations, associations representing business_users or corporate_website_users, as well as certain public bodies set up in Member States, should be granted the possibility to take action before national courts in accordance with national law, including national procedural requirements.
Such action before national courts should aim to stop or prohibit infringements of the rules set out in this Regulation and to prevent future damage that could undermine sustainable business relationships in the online platform economy.
In order to ensure that such organisations or associations exercise that right effectively and in an appropriate manner, they should meet certain criteria.
In particular, they must be properly established according to the law of a Member State, be of a non-profit making character and pursue their objectives on a sustained basis.
Those requirements should prevent any ad hoc establishment of organisations or associations for the purpose of a specific action or specific actions, or for the sake of making profits.
Furthermore, it should be ensured that there is no undue influence by any third party providers of financing on decision-making by those organisations or associations.

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keyboard_tab REGIS - Reg. Intermediation Services 2019/1150 EN

REGIS - Reg. Intermediation Services 2019/1150 EN