keyboard_tab REGIS - Reg. Intermediation Services 2019/1150 EN

• 1 Article 1 Subject matter and scope
• 2 Article 3 Terms and conditions
• 2 Article 8 Specific contractual terms
• 1 Article 11 Internal complaint-handling system
• 1 Article 12 Mediation
• 2 Article 15 Enforcement
• 1 Article 18 Review
• Article 19 Entry into force and application

• services 57
• online 51
• shall 47
• intermediation 42
• business 39
• users 25
• which 22
• regulation 16
• conditions 15
• terms 15
• user 15
• provider 14
• providers 14
• notice 13
• they 13
• period 12
• mediation 12
• information 12
• article 12
• concerned 11
• internal 10
• complaints 10
• changes 10
• ensure 9
• union 9
•    providers 8
• goods 8
• system 7
• complaint-handling 7
• paragraph 7
• include 6
•    the 6
• rules 6
• from 6
• between 6
• contractual 6
• referred 6
• subparagraph 5
• within 5
• providing 5
• reasonable 5
• commercial 5
• down 5
• contract 5
• into 5
• relevant 5
• apply 5
• provided 5
• functioning 5
• provision 4

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:

• (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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• (7) A targeted set of mandatory rules should be established at Union level to ensure a fair, predictable, sustainable and trusted online business environment within the internal market.

    In particular, business_users of online_intermediation_services should be afforded appropriate transparency, as well as effective redress possibilities, throughout the Union in order to facilitate cross-border business within the Union and thereby improve the proper functioning of the internal market and to address possible emerging fragmentation in the specific areas covered by this Regulation.


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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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• (16) In order to ensure that business_users have sufficient clarity regarding where, and to whom, their goods or services are being marketed, providers of online_intermediation_services should ensure, towards their business_users, the transparency of any additional distribution channels and potential affiliate programmes that they might use to market those goods or services.

    Additional channels and affiliate programmes should be understood in a technologically neutral manner but could, inter alia, include other websites, apps or other online_intermediation_services used to market the goods or services offered by the business_user.


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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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• (21) In order to ensure that business_users can fully exploit the commercial opportunities offered by online_intermediation_services, providers of these services should not completely prevent their business_users from featuring their trading identity as part of their offering or presence on the relevant online_intermediation_services.

    However, this prohibition of interference should not be understood as a right for business_users to unilaterally determine the presentation of their offering or presence on the relevant online_intermediation_services.


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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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• (27) Providers of online_intermediation_services or of online_search_engines should not be required to disclose the detailed functioning of their ranking mechanisms, including algorithms, under this Regulation.

    Their ability to act against bad faith manipulation of ranking by third parties, including in the interest of consumers, should equally not be impaired.

    A general description of the main ranking parameters should safeguard those interests, while providing business_users and corporate_website_users with an adequate understanding of the functioning of ranking in the context of their use of specific online_intermediation_services or online_search_engines.

    To ensure that the objective of this Regulation is achieved, consideration of the commercial interests of providers of online_intermediation_services or online_search_engines should, therefore, never lead to a refusal to disclose the main parameters determining ranking.

    In this regard, whilst this Regulation is without prejudice to Directive (EU) 2016/943 of the European Parliament and of the Council (5), the description given should at least be based on actual data on the relevance of the ranking parameters used.


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• (30) Where a provider of online_intermediation_services itself offers certain goods or services to consumers through its own online_intermediation_services, or does so through a business_user which it controls, that provider might compete directly with other business_users of its online_intermediation_services which are not controlled by the provider, which might give the provider an economic incentive and the ability to use its control over the online_intermediation_services to provide technical or economic advantages to its own offering, or those offered through a business_user which it controls, which it could deny to competing business_users.

    Such behaviour could undermine fair competition and restrict consumer choice.

    In such situations, in particular, it is important that the provider of online_intermediation_services acts in a transparent manner and provides an appropriate description of, and sets out the considerations for any differentiated treatment, whether through legal, commercial or technical means, such as functionalities involving operating systems that it might give in respect of goods or services it offers itself compared to those offered by business_users.

    To ensure proportionality, this obligation should apply at the level of the overall online_intermediation_services, rather than at the level of individual goods or services offered through those services.


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• (31) Where a provider of an online_search_engine itself offers certain goods or services to consumers through its own online_search_engine, or does so through a corporate_website_user which it controls, that provider might compete directly with other corporate_website_users of its online_search_engine which are not controlled by the provider.

    In such situations, in particular, it is important that the provider of the online_search_engine acts in a transparent manner and provides a description of any differentiated treatment, whether through legal, commercial or technical means, that it might give in respect of goods or services it offers itself or through a corporate_website_user which it controls, compared to those offered by competing corporate_website_users.

    To ensure proportionality, this obligation should apply at the level of the overall online_search_engine, rather than at the level of individual goods or services offered through those 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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• (38) The requirements of this Regulation regarding the internal complaint-handling systems aim to allow providers of online_intermediation_services a reasonable degree of flexibility when operating those systems and addressing individual complaints, so as to minimise any administrative burden.

    In addition, the internal complaint-handling systems should allow providers of online_intermediation_services to address, where necessary, in a proportionate manner any use in bad faith which certain business_users might seek to make of those systems.

    In light of the costs of setting up and operating such systems, it is appropriate to exempt from those obligations any providers of online_intermediation_services which constitute small enterprises, in line with the relevant provisions of Commission Recommendation 2003/361/EC (9).

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

    That exemption should not affect the right of such enterprises to set up, on a voluntary basis, an internal complaint-handling system that complies with the criteria set out in this Regulation.


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• (39) The use of the word ‘internal’ should not be understood as preventing the delegation of an internal complaint-handling system to an external service provider or other corporate structure, as long as such a provider or other corporate structure has full authority and the ability to ensure compliance of the internal complaint-handling system with the requirements in this Regulation.


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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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• (45) The identity of organisations, associations and public bodies which, in the view of the Member States, should be qualified to bring an action under this Regulation, should be communicated to the Commission.

    In the course of such a communication, Member States should make specific reference to the relevant national provisions according to which the organisation, association or public body was established and, where appropriate, refer to the relevant public register in which the organisation or association is registered.

    This additional option of a designation by Member States should provide for a certain level of legal certainty and predictability that business_users and corporate_website_users can rely on.

    At the same time, it aims at making judicial procedures more efficient and shorter, which seems appropriate in this context.

    The Commission should ensure the publication of a list of those organisations, associations and public bodies in the Official Journal of the European Union.

    Inclusion on that list should serve as refutable proof of the legal capacity of the organisation, association or public body bringing the action.

    Where there are any concerns regarding a designation, the Member State which designated an organisation, association or public body should investigate those concerns.

    Organisations, associations and public bodies that are not designated by a Member State should have the possibility to bring an action before national courts subject to examination of legal capacity according to the criteria set out in this Regulation.


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• (46) Member States should be required to ensure adequate and effective enforcement of this Regulation.

    Different enforcement systems already exist in Member States, and they should not be obliged to set up new national enforcement bodies.

    Member States should have the option to entrust existing authorities, including courts, with the enforcement of this Regulation.

    This Regulation should not oblige Member States to provide for ex officio enforcement or to impose fines.


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• (51) Since the objective of this Regulation, namely to ensure a fair, predictable, sustainable and trusted online business environment within the internal market, cannot be sufficiently achieved by the Member States, but can rather, by reason of its scale and effects, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union.

    In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve that objective.


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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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