keyboard_tab REGIS - Reg. Intermediation Services 2019/1150 EN

(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.

(5) The nature of the relationship between providers of online_intermediation_services and business_users might also lead to situations in which business_users often have limited possibilities to seek redress where unilateral actions of the providers of those services lead to a dispute.

  In many cases, those providers do not offer accessible and effective internal complaint-handling systems.

  Existing alternative out-of-court dispute settlement mechanisms can also be ineffective for a variety of reasons, including a lack of specialised mediators and business_users’ fear of retaliation.

(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.

(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.

(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.

(29) Ancillary goods and services should be understood as goods and services offered to the consumer immediately prior to the completion of a transaction initiated on online_intermediation_services to complement the primary good or service being offered by the business_user.

  Ancillary goods and services refer to products that typically depend on, and are directly related to, the primary good or service in order to function.

  Therefore, the term should exclude goods and services that are merely being sold in addition to the primary good or service in question rather than being complementary in their nature.

  Examples of ancillary services include repair services for a specific good or financial products such as car rental insurance offered so as to complement the specific goods or services being offered by the business_user.

  Likewise, ancillary goods might include goods that complement the specific product being offered by the business_user by constituting an upgrade or a customisation tool linked to that specific product.

  Providers of online_intermediation_services offering goods or services to consumers that are ancillary to a good or service sold by a business_user, using their online_intermediation_services, should set out in their terms_and_conditions a description of the type of ancillary_goods_and_services being offered.

  Such a description should be available in the terms_and_conditions regardless of whether the ancillary good or service is being provided by the provider of online_intermediation_services itself or by a third party.

  Such a description should be comprehensive enough to allow a business_user to understand whether any good or service is being sold as ancillary to the business_user’s good or service.

  The description should not necessarily include the specific good or service, but rather the type of product being offered as complementary to the primary product of the business_user.

  Furthermore, this description should in all circumstances include whether and under what conditions a business_user is allowed to offer its own ancillary good or service in addition to the primary good or service that it is offering through the online_intermediation_services.

(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.

(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.

(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.

(36) Providers of online_intermediation_services might in certain cases restrict in their terms_and_conditions the ability of business_users to offer goods or services to consumers under more favourable conditions through other means than through those online_intermediation_services.

  In those cases, the providers concerned should set out the grounds for doing so, in particular with reference to the main economic, commercial or legal considerations for the restrictions.

  This transparency obligation should however not be understood as affecting the assessment of the legality of such restrictions under other acts of Union law or the law of Member States that is in accordance with Union law, including in the areas of competition and unfair commercial practices, and the application of such laws.

(37) In order to enable business_users, including those whose use of the relevant online_intermediation_services might have been restricted, suspended or terminated, to have access to immediate, suitable and effective possibilities of redress, providers of online_intermediation_services should provide for an internal complaint-handling system.

  That internal complaint-handling system should be based on principles of transparency and equal treatment applied to equivalent situations, aimed at ensuring that a significant proportion of complaints can be solved bilaterally by the provider of online_intermediation_services and the relevant business_user in a reasonable period of time.

  The providers of online_intermediation_services might maintain in force during the duration of the complaint the decision that they have taken.

  Any attempt to reach an agreement through the internal complaint handling-process does not affect the rights of providers of online_intermediation_services or business_users to initiate judicial proceedings at any time during or after the internal complaint-handling process.

  In addition, providers of online_intermediation_services should publish and, at least annually, verify information on the functioning and effectiveness of their internal complaint-handling system to help business_users to understand the main types of issues that can arise in the context of the provision of different online_intermediation_services and the possibility of reaching a quick and effective bilateral resolution.

(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.

(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.