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 8

Specific contractual terms

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:

(a)	not impose retroactive changes to terms_and_conditions, except when they are required to respect a legal or regulatory obligation or when the retroactive changes are beneficial for the business_users;

(b)	ensure that their terms_and_conditions include information on the conditions under which business_users can terminate the contractual relationship with the provider of online_intermediation_services; and

(c)

include in their terms_and_conditions a description of the technical and contractual access, or absence thereof, to the information provided or generated by the business_user, which they maintain after the expiry of the contract between the provider of online_intermediation_services and the business_user.

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 17

Codes of conduct

1. The Commission shall encourage the drawing up of codes of conduct by providers of online_intermediation_services and by organisations and associations representing them, together with business_users, including SMEs and their representative organisations, that are intended to contribute to the proper application of this Regulation, taking account of the specific features of the various sectors in which online_intermediation_services are provided, as well as of the specific characteristics of SMEs.

2. The Commission shall encourage providers of online_search_engines and organisations and associations representing them to draw up codes of conduct that are specifically intended to contribute to the proper application of Article 5.

3. The Commission shall encourage the providers of online_intermediation_services to adopt and implement sector-specific codes of conduct, where such sector-specific codes of conduct exist and are widely used.

Article 18

Review

1. By 13 January 2022, and subsequently every three years, the Commission shall evaluate this Regulation and report to the European Parliament, the Council and the European Economic and Social Committee.

2. The first evaluation of this Regulation shall be carried out, in particular, with a view to the following:

(a)	assessing the compliance with, and impact on the online platform economy of, the obligations laid down in Articles 3 to 10;

(b)	assessing the impact and effectiveness of any established codes of conduct to improve fairness and transparency;

(c)	investigating further the problems caused by the dependence of business_users on online_intermediation_services, and problems caused by unfair commercial practices by providers of online_intermediation_services, and to determine further to which extent those practices continue to be widespread;

(d)

investigating whether the competition between goods or services offered by a business_user and goods or services offered or controlled by a provider of online_intermediation_services constitutes fair competition and whether providers of online_intermediation_services misuse privileged data in this regard;

(e)	assessing the effect of this Regulation on any possible imbalances in the relationships between providers of operating systems and their business_users;

(f)	assessing whether the scope of the Regulation, especially as regards the definition of ‘business user’, is suitable in that it does not encourage bogus self-employment.

The first and subsequent evaluations shall establish whether additional rules, including regarding enforcement, may be required to ensure a fair, predictable, sustainable and trusted online business environment within the internal market. Following the evaluations, the Commission shall take appropriate measures, which may include legislative proposals.

3. Member States shall provide any relevant information they have that the Commission may require for the purposes of drawing up the report referred to in paragraph 1.

4. In carrying out the evaluation of this Regulation, the Commission shall take into account inter alia, the opinions and reports presented to it by the group of experts for the Observatory on the Online Platform Economy. It shall also take into account the content and functioning of any codes of conduct referred to in Article 17, where appropriate.

whereas

(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.

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(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.

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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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(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.

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(48) Codes of conduct, drawn up either by the service providers concerned or by organisations or associations representing them, can contribute to the proper application of this Regulation and should therefore be encouraged.
When drawing up such codes of conduct, in consultation with all relevant stakeholders, account should be taken of the specific features of the sectors concerned as well as of the specific characteristics of SMEs.
Such codes of conduct should be worded in an objective and non-discriminatory way.

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(52) This Regulation seeks to ensure full respect for the right to an effective remedy and to a fair trial as laid down in Article 47 of the Charter of Fundamental Rights of the European Union and promote the application of the freedom to conduct a business as laid down in Article 16 of the Charter,

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keyboard_tab REGIS - Reg. Intermediation Services 2019/1150 EN

REGIS - Reg. Intermediation Services 2019/1150 EN