REGIS - Reg. Intermediation Services 2019/1150 EN

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 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.

whereas

(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.

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(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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(17) The ownership and control of intellectual property rights online can have significant economic importance for both the providers of online_intermediation_services and their business_users.
To ensure clarity and transparency for business_users and for their better understanding, providers of online_intermediation_services should within their terms_and_conditions include general, or more detailed, information if they so wish, regarding the overall effects, if any, of those terms_and_conditions on the ownership and control of intellectual property rights of the business_user.
Such information could, inter alia, include information such as the general usage of logos, trademarks or brand names.

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(20) In order to protect business_users and to provide legal certainty for both sides, non-compliant terms_and_conditions should be null and void, that is, deemed to have never existed, with effects erga omnes and ex tunc.
This should however only concern the specific provisions of the terms_and_conditions which are not compliant.
The remaining provisions should remain valid and enforceable, in as far as they can be severed from the non-compliant provisions.
Sudden changes to existing terms_and_conditions may significantly disrupt business_users’ operations.
In order to limit such negative effects on business_users, and to discourage such behaviour, changes made in contravention of the obligation to provide a set notice period should therefore be null and void, that is, deemed to have never existed, with effects erga omnes and ex tunc.

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(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.

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(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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(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.

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(43) In order to facilitate the settlement of disputes relating to the provision of online_intermediation_services using mediation in the Union, the Commission should, in close cooperation with the Member States, encourage the setting up of specialised mediation organisations, which are currently lacking.
The involvement of mediators having specialist knowledge of online_intermediation_services as well as of the specific industry sectors within which those services are provided should add to the confidence both parties have in the mediation process and should increase the likelihood of that process leading to a swift, just and satisfactory outcome.

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keyboard_tab REGIS - Reg. Intermediation Services 2019/1150 EN

REGIS - Reg. Intermediation Services 2019/1150 EN