keyboard_tab REGIS - Reg. Intermediation Services 2019/1150 EN

(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.

(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.

(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.

(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.

(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.

(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.