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keyboard_tab REGIS - Reg. Intermediation Services 2019/1150 EN

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2019/1150 EN cercato: 'contractual' . Output generated live by software developed by IusOnDemand srl




whereas contractual:


definitions:


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Article 1

Subject matter and scope

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 2

Definitions

For the purposes of this Regulation, the following definitions apply:

(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 3

Terms and conditions

1.   Providers of online_intermediation_services shall ensure that their terms_and_conditions:

(a)

are drafted in plain and intelligible language;

(b)

are easily available to business_users at all stages of their commercial relationship with the provider of online_intermediation_services, including in the pre-contractual stage;

(c)

set out the grounds for decisions to suspend or terminate or impose any other kind of restriction upon, in whole or in part, the provision of their online_intermediation_services to business_users;

(d)

include information on any additional distribution channels and potential affiliate programmes through which providers of online_intermediation_services might market goods and services offered by business_users;

(e)

include general information regarding the effects of the terms_and_conditions on the ownership and control of intellectual property rights of business_users.

2.   Providers of online_intermediation_services shall notify, on a durable_medium, to the business_users concerned any proposed changes of their terms_and_conditions.

The proposed changes shall not be implemented before the expiry of a notice period which is reasonable and proportionate to the nature and extent of the envisaged changes and to their consequences for the business_user concerned. That notice period shall be at least 15 days from the date on which the provider of online_intermediation_services notifies the business_users concerned about the proposed changes. Providers of online_intermediation_services shall grant longer notice periods when this is necessary to allow business_users to make technical or commercial adaptations to comply with the changes.

The business_user concerned shall have the right to terminate the contract with the provider of online_intermediation_services before the expiry of the notice period. Such termination shall take effect within 15 days from the receipt of the notice pursuant to the first subparagraph, unless a shorter period applies to the contract.

The business_user concerned may, either by means of a written statement or a clear affirmative action, waive the notice period referred to in the second subparagraph at any moment from the receipt of the notice pursuant to the first subparagraph.

During the notice period, submitting new goods or services to the online_intermediation_services shall be considered clear affirmative action to waive the notice period, except 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. In such cases, the notice period shall not be considered automatically to be waived where the business_user submits new goods and services.

3.   Terms and conditions, or specific provisions thereof, which do not comply with the requirements of paragraph 1, as well as changes to terms_and_conditions implemented by a provider of online_intermediation_services contrary to the provisions of paragraph 2 shall be null and void.

4.   The notice period set out in the second subparagraph of 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 change its terms_and_conditions in a manner which does not allow it to respect the notice period referred to in the second subparagraph of paragraph 2;

(b)

has exceptionally to change its terms_and_conditions to address an unforeseen and imminent danger related to defending the online_intermediation_services, consumers or business_users from fraud, malware, spam, data breaches or other cybersecurity risks.

5.   Providers of online_intermediation_services shall ensure that the identity of the business_user providing the goods or services on the online_intermediation_services is clearly visible.

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 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.

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 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









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