keyboard_tab REGIS - Reg. Intermediation Services 2019/1150 EN

• 2 Article 2 Definitions
• 9 Article 3 Terms and conditions
• 2 Article 4 Restriction, suspension and termination
• 1 Article 5 Ranking
• 2 Article 6 Ancillary goods and services
• 2 Article 7 Differentiated treatment
• 4 Article 8 Specific contractual terms
• 4 Article 9 Access to data
• 3 Article 10 Restrictions to offer different conditions through other means
• 1 Article 11 Internal complaint-handling system
• 2 Article 12 Mediation

• services 118
• online 102
• intermediation 84
• business 79
• shall 58
• which 50
• users 49
• provider 42
• user 36
• conditions 30
• article 25
• terms 23
• goods 23
• concerned 22
• through 22
• search 21
• data 20
• providers 19
• consumers 19
• means 18
• information 18
• they 18
• provision 16
• notice 16
• period 16
•    providers 14
• engines 14
• website 14
• provide 12
• mediation 12
• such 12
• offered 11
• access 11
• description 11
• paragraph 11
• legal 11
• changes 10
• corporate 10
• referred 10
• complaints 10
• include 10
• termination 9
• internal 9
• from 9
•    the 9
• ranking 8
• including 8
• contractual 8
• under 8
• main 8

Where ancillary_goods_and_services, including financial products, are offered to consumers through the online_intermediation_services, either by the provider of online_intermediation_services or by third parties, the provider of online_intermediation_services shall set out in its terms and conditions a description of the type of ancillary_goods_and_services offered and a description of whether and under which conditions the business_user is also allowed to offer its own ancillary_goods_and_services through the online_intermediation_services.

In order to ensure that contractual relations between providers of online_intermediation_services and business_users are conducted in good faith and based on fair dealing, providers of online_intermediation_services shall:

• (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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• (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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• (15) To ensure that the general terms and conditions of a contractual relationship enable business_users to determine the commercial conditions for the use, termination and suspension of online_intermediation_services, and to achieve predictability regarding their business relationship, those terms and conditions should be drafted in plain and intelligible language.

    Terms and conditions should not be considered to have been drafted in plain and intelligible language where they are vague, unspecific or lack detail on important commercial issues and thus fail to give business_users a reasonable degree of predictability on the most important aspects of the contractual relationship.

    Moreover, misleading language should not be considered to be plain and intelligible.


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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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• (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.


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• (19) In general, submitting new goods or services, including software applications, to the online_intermediation_services should be considered to be clear affirmative action, resulting in the waiving, by the business_user, of the notice period required for changes to the terms and conditions.

    However, in cases where the reasonable and proportionate notice period is longer than 15 days because the changes to the terms and conditions require the business_user to make significant technical adjustments to its goods or services, the notice period should not be considered to be automatically waived where the business_user submits new goods and services.

    The provider of online_intermediation_services should expect the changes to terms and conditions to require the business_user to make significant technical adjustments where, for example, entire features of the online_intermediation_services that business_users had access to are removed or added, or where business_users might need to adapt their goods or reprogramme their services to be able to continue to operate through the online_intermediation_services.


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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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• (29) Ancillary goods and services should be understood as goods and services offered to the consumer immediately prior to the completion of a transaction initiated on online_intermediation_services to complement the primary good or service being offered by the business_user.

    Ancillary goods and services refer to products that typically depend on, and are directly related to, the primary good or service in order to function.

    Therefore, the term should exclude goods and services that are merely being sold in addition to the primary good or service in question rather than being complementary in their nature.

    Examples of ancillary services include repair services for a specific good or financial products such as car rental insurance offered so as to complement the specific goods or services being offered by the business_user.

    Likewise, ancillary goods might include goods that complement the specific product being offered by the business_user by constituting an upgrade or a customisation tool linked to that specific product.

    Providers of online_intermediation_services offering goods or services to consumers that are ancillary to a good or service sold by a business_user, using their online_intermediation_services, should set out in their terms and conditions a description of the type of ancillary_goods_and_services being offered.

    Such a description should be available in the terms and conditions regardless of whether the ancillary good or service is being provided by the provider of online_intermediation_services itself or by a third party.

    Such a description should be comprehensive enough to allow a business_user to understand whether any good or service is being sold as ancillary to the business_user’s good or service.

    The description should not necessarily include the specific good or service, but rather the type of product being offered as complementary to the primary product of the business_user.

    Furthermore, this description should in all circumstances include whether and under what conditions a business_user is allowed to offer its own ancillary good or service in addition to the primary good or service that it is offering through the online_intermediation_services.


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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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• (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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• (36) Providers of online_intermediation_services might in certain cases restrict in their terms and conditions the ability of business_users to offer goods or services to consumers under more favourable conditions through other means than through those online_intermediation_services.

    In those cases, the providers concerned should set out the grounds for doing so, in particular with reference to the main economic, commercial or legal considerations for the restrictions.

    This transparency obligation should however not be understood as affecting the assessment of the legality of such restrictions under other acts of Union law or the law of Member States that is in accordance with Union law, including in the areas of competition and unfair commercial practices, and the application of such laws.


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• (41) Providers of online_intermediation_services should bear a reasonable proportion of the total costs of the mediation, taking into account all relevant elements of the case at hand.

    To that end, the mediator should suggest which proportion is reasonable in the individual case.

    In light of the costs and of the administrative burden associated with the necessity to identify mediators in terms and conditions, it is appropriate to exempt from that obligation any providers of online_intermediation_services which are small enterprises, in line with the relevant provisions of Recommendation 2003/361/EC.

    The consolidation rules laid down in that Recommendation ensure that any circumvention of that obligation is prevented.

    Nevertheless, this should not affect the right of such enterprises to identify mediators in their terms and conditions that comply 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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• (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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