(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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(3) Consumers have embraced the use of online_intermediation_services.
A competitive, fair, and transparent online ecosystem where companies behave responsibly is also essential for consumer welfare.
Ensuring the transparency of, and trust in, the online platform economy in business-to-business relations could also indirectly help to improve consumer trust in the online platform economy.
Direct impacts of the development of the online platform economy on consumers are, however, addressed by other Union law, especially the consumer acquis.
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(6) Online intermediation services and online_search_engines, as well as the transactions facilitated by those services, have an intrinsic cross-border potential and are of particular importance for the proper functioning of the Union’s internal market in today’s economy.
The potentially unfair and harmful commercial practices of certain providers of those services, and the lack of effective redress mechanisms, hamper the full realisation of that potential and negatively affect the proper functioning of the internal market.
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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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(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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(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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(47) The Commission should continuously monitor the application of this Regulation in close cooperation with the Member States.
In this context, the Commission should aim to establish a broad information exchange network by leveraging relevant expert bodies, centres of excellence as well as the Observatory on the Online Platform economy.
Member States should, upon request, provide any relevant information they have in this context to the Commission.
Finally, this exercise should benefit from the overall enhanced transparency in commercial relations between business_users and providers of online_intermediation_services and between corporate_website_users and online_search_engines that this Regulation aims to achieve.
In order to carry out its monitoring and review duties effectively under this Regulation, the Commission should endeavour to gather information from providers of online_intermediation_services.
Providers of online_intermediation_services should cooperate in good faith in facilitating the gathering of such data, where applicable.
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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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