keyboard_tab REGIS - Reg. Intermediation Services 2019/1150 EN

(14) Providers of online_intermediation_services tend to use pre-formulated terms_and_conditions and in order to effectively protect business_users where needed, this Regulation should apply where the terms_and_conditions of a contractual relationship, regardless of their name or form, are unilaterally determined by the provider of online_intermediation_services.

  Whether the terms_and_conditions were unilaterally determined should be evaluated case by case on the basis of an overall assessment.

  For that overall assessment, 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 should not, in itself, be decisive.

  In addition, the obligation for providers of online_intermediation_services to make their terms_and_conditions easily available to business_users, including in the pre-contractual stage of their commercial relationship, means that business_users will not be deprived of the transparency resulting from this Regulation as a result of them being in any way able to successfully negotiate.

(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.

(19) In general, submitting new goods or services, including software applications, to the online_intermediation_services should be considered to be clear affirmative action, resulting in the waiving, by the business_user, of the notice period required for changes to the terms_and_conditions.

  However, 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, the notice period should not be considered to be automatically waived where the business_user submits new goods and services.

  The provider of online_intermediation_services should expect the changes to terms_and_conditions to require the business_user to make significant technical adjustments where, for example, entire features of the online_intermediation_services that business_users had access to are removed or added, or where business_users might need to adapt their goods or reprogramme their services to be able to continue to operate through the online_intermediation_services.

(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.

(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.