keyboard_tab REGIS - Reg. Intermediation Services 2019/1150 EN

(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.

(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.

(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.

(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.

(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.

(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.