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keyboard_tab REGIS - Reg. Intermediation Services 2019/1150 EN

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2019/1150 EN cercato: 'obligation' . Output generated live by software developed by IusOnDemand srl




whereas obligation:


definitions:


cloud tag: and the number of total unique words without stopwords is: 590

 

Article 3

Terms and conditions

1.   Providers of online_intermediation_services shall ensure that their terms_and_conditions:

(a)

are drafted in plain and intelligible language;

(b)

are easily available to business_users at all stages of their commercial relationship with the provider of online_intermediation_services, including in the pre-contractual stage;

(c)

set out the grounds for decisions to suspend or terminate or impose any other kind of restriction upon, in whole or in part, the provision of their online_intermediation_services to business_users;

(d)

include information on any additional distribution channels and potential affiliate programmes through which providers of online_intermediation_services might market goods and services offered by business_users;

(e)

include general information regarding the effects of the terms_and_conditions on the ownership and control of intellectual property rights of business_users.

2.   Providers of online_intermediation_services shall notify, on a durable_medium, to the business_users concerned any proposed changes of their terms_and_conditions.

The proposed changes shall not be implemented before the expiry of a notice period which is reasonable and proportionate to the nature and extent of the envisaged changes and to their consequences for the business_user concerned. That notice period shall be at least 15 days from the date on which the provider of online_intermediation_services notifies the business_users concerned about the proposed changes. Providers of online_intermediation_services shall grant longer notice periods when this is necessary to allow business_users to make technical or commercial adaptations to comply with the changes.

The business_user concerned shall have the right to terminate the contract with the provider of online_intermediation_services before the expiry of the notice period. Such termination shall take effect within 15 days from the receipt of the notice pursuant to the first subparagraph, unless a shorter period applies to the contract.

The business_user concerned may, either by means of a written statement or a clear affirmative action, waive the notice period referred to in the second subparagraph at any moment from the receipt of the notice pursuant to the first subparagraph.

During the notice period, submitting new goods or services to the online_intermediation_services shall be considered clear affirmative action to waive the notice period, except 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. In such cases, the notice period shall not be considered automatically to be waived where the business_user submits new goods and services.

3.   Terms and conditions, or specific provisions thereof, which do not comply with the requirements of paragraph 1, as well as changes to terms_and_conditions implemented by a provider of online_intermediation_services contrary to the provisions of paragraph 2 shall be null and void.

4.   The notice period set out in the second subparagraph of paragraph 2 shall not apply where a provider of online_intermediation_services:

(a)

is subject to a legal or regulatory obligation which requires it to change its terms_and_conditions in a manner which does not allow it to respect the notice period referred to in the second subparagraph of paragraph 2;

(b)

has exceptionally to change its terms_and_conditions to address an unforeseen and imminent danger related to defending the online_intermediation_services, consumers or business_users from fraud, malware, spam, data breaches or other cybersecurity risks.

5.   Providers of online_intermediation_services shall ensure that the identity of the business_user providing the goods or services on the online_intermediation_services is clearly visible.

Article 4

Restriction, suspension and termination

1.   Where a provider of online_intermediation_services decides to restrict or suspend the provision of its online_intermediation_services to a given business_user in relation to individual goods or services offered by that business_user, it shall provide the business_user concerned, prior to or at the time of the restriction or suspension taking effect, with a statement of reasons for that decision on a durable_medium.

2.   Where a provider of online_intermediation_services decides to terminate the provision of the whole of its online_intermediation_services to a given business_user, it shall provide the business_user concerned, at least 30 days prior to the termination taking effect, with a statement of reasons for that decision on a durable_medium.

3.   In the case of restriction, suspension or termination, the provider of online_intermediation_services shall give the business_user the opportunity to clarify the facts and circumstances in the framework of the internal complaint-handling process referred to in Article 11. Where the restriction, suspension or termination is revoked by the provider of online_intermediation_services, it shall reinstate the business_user without undue delay, including providing the business_user with any access to personal or other data, or both, that resulted from its use of the relevant online_intermediation_services prior to the restriction, suspension or termination having taken effect.

4.   The notice period in paragraph 2 shall not apply where a provider of online_intermediation_services:

(a)

is subject to a legal or regulatory obligation which requires it to terminate the provision of the whole of its online_intermediation_services to a given business_user in a manner which does not allow it to respect that notice period; or

(b)

exercises a right of termination under an imperative reason pursuant to national law which is in compliance with Union law;

(c)

can demonstrate that the business_user concerned has repeatedly infringed the applicable terms_and_conditions, resulting in the termination of the provision of the whole of the online_intermediation_services in question.

In cases where the notice period in paragraph 2 does not apply, the provider of online_intermediation_services shall provide the business_user concerned, without undue delay, with a statement of reasons for that decision on a durable_medium.

5.   The statement of reasons referred to in paragraphs 1, and 2 and in the second subparagraph of paragraph 4 shall contain a reference to the specific facts or circumstances, including contents of third party notifications, that led to the decision of the provider of online_intermediation_services, as well as a reference to the applicable grounds for that decision referred to in point (c) of Article 3(1).

A provider of online_intermediation_services does not have to provide a statement of reasons where it is subject to a legal or regulatory obligation not to provide the specific facts or circumstances or the reference to the applicable ground or grounds, or where a provider of online_intermediation_services can demonstrate that the business_user concerned has repeatedly infringed the applicable terms_and_conditions, resulting in termination of the provision of the whole of the online_intermediation_services in question.

Article 8

Specific contractual terms

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:

(a)

not impose retroactive changes to terms_and_conditions, except when they are required to respect a legal or regulatory obligation or when the retroactive changes are beneficial for the business_users;

(b)

ensure that their terms_and_conditions include information on the conditions under which business_users can terminate the contractual relationship with the provider of online_intermediation_services; and

(c)

include in their terms_and_conditions a description of the technical and contractual access, or absence thereof, to the information provided or generated by the business_user, which they maintain after the expiry of the contract between the provider of online_intermediation_services and the business_user.

Article 10

Restrictions to offer different conditions through other means

1.   Where, in the provision of their services, providers of online_intermediation_services restrict the ability of business_users to offer the same goods and services to consumers under different conditions through other means than through those services, they shall include the grounds for that restriction in their terms_and_conditions and make those grounds easily available to the public. Those grounds shall include the main economic, commercial or legal considerations for those restrictions.

2.   The obligation set out in paragraph 1 shall not affect any prohibitions or limitations in respect of the imposition of such restrictions that result from the application of other acts of Union law or the law of Member States that is in accordance with Union law and to which the providers of online_intermediation_services are subject.

Article 11

Internal complaint-handling system

1.   Providers of online_intermediation_services shall provide for an internal system for handling the complaints of business_users.

That internal complaint-handling system shall be easily accessible and free of charge for business_users and shall ensure handling within a reasonable time frame. It shall be based on the principles of transparency and equal treatment applied to equivalent situations, and treating complaints in a manner which is proportionate to their importance and complexity. It shall allow business_users to lodge complaints directly with the provider concerned regarding any of the following issues:

(a)

alleged non-compliance by that provider with any obligations laid down in this Regulation which affects the business_user lodging the complaint (‘the complainant’);

(b)

technological issues which relate directly to the provision of online_intermediation_services, and which affect the complainant;

(c)

measures taken by, or behaviour of, that provider which relate directly to the provision of the online_intermediation_services, and which affect the complainant.

2.   As part of their internal complaint-handling system, providers of online_intermediation_services shall:

(a)

duly consider complaints lodged and the follow-up which they may need to give to the complaint in order to adequately address the issue raised;

(b)

process complaints swiftly and effectively, taking into account the importance and complexity of the issue raised;

(c)

communicate to the complainant the outcome of the internal complaint-handling process, in an individualised manner and drafted in plain and intelligible language.

3.   Providers of online_intermediation_services shall provide in their terms_and_conditions all relevant information relating to the access to and functioning of their internal complaint-handling system.

4.   Providers of online_intermediation_services shall establish and make easily available to the public information on the functioning and effectiveness of their internal complaint-handling system. They shall verify the information at least annually and where significant changes are needed, they shall update that information.

That information shall include the total number of complaints lodged, the main types of complaints, the average time period needed to process the complaints and aggregated information regarding the outcome of the complaints.

5.   The provisions of this Article shall not apply to providers of online_intermediation_services that are small enterprises within the meaning of the Annex to Recommendation 2003/361/EC.

Article 12

Mediation

1.   Providers of online_intermediation_services shall identify in their terms_and_conditions two or more mediators with which they are willing to engage to attempt to reach an agreement with business_users on the settlement, out of court, of any disputes between the provider and the business_user arising in relation to the provision of the online_intermediation_services concerned, including complaints that could not be resolved by means of the internal complaint-handling system referred to in Article 11.

Providers of online_intermediation_services may only identify mediators providing their mediation services from a location outside the Union where it is ensured that the business_users concerned are not effectively deprived of the benefit of any legal safeguards laid down in Union law or the law of the Member States as a consequence of the mediators providing those services from outside the Union.

2.   The mediators referred to in paragraph 1 shall meet the following requirements:

(a)

they are impartial and independent;

(b)

their mediation services are affordable for business_users of the online_intermediation_services concerned;

(c)

they are capable of providing their mediation services in the language of the terms_and_conditions which govern the contractual relationship between the provider of online_intermediation_services and the business_user concerned;

(d)

they are easily accessible either physically in the place of establishment or residence of the business_user, or remotely using communication technologies;

(e)

they are capable of providing their mediation services without undue delay;

(f)

they have a sufficient understanding of general business-to-business commercial relations, allowing them to contribute effectively to the attempt to settle the disputes.

3.   Notwithstanding the voluntary nature of mediation, providers of online_intermediation_services and business_users shall engage in good faith throughout any mediation attempts conducted pursuant to this Article.

4.   Providers of online_intermediation_services shall bear a reasonable proportion of the total costs of mediation in each individual case. A reasonable proportion of those total costs shall be determined, on the basis of a suggestion by the mediator, by taking into account all relevant elements of the case at hand, in particular the relative merits of the claims of the parties to the dispute, the conduct of the parties, as well as the size and financial strength of the parties relative to one another.

5.   Any attempt to reach an agreement through mediation on the settlement of a dispute in accordance with this Article shall not affect the rights of the providers of online_intermediation_services and of the business_users concerned to initiate judicial proceedings at any time before, during or after the mediation process.

6.   If requested by a business_user, before entering into or during mediation, the provider of online_intermediation_services shall make available, to the business_user, information on the functioning and effectiveness of mediation related to its activities.

7.   The obligation set out in paragraph 1 shall not apply to providers of online_intermediation_services that are small enterprises within the meaning of the Annex to Recommendation 2003/361/EC.

Article 18

Review

1.   By 13 January 2022, and subsequently every three years, the Commission shall evaluate this Regulation and report to the European Parliament, the Council and the European Economic and Social Committee.

2.   The first evaluation of this Regulation shall be carried out, in particular, with a view to the following:

(a)

assessing the compliance with, and impact on the online platform economy of, the obligations laid down in Articles 3 to 10;

(b)

assessing the impact and effectiveness of any established codes of conduct to improve fairness and transparency;

(c)

investigating further the problems caused by the dependence of business_users on online_intermediation_services, and problems caused by unfair commercial practices by providers of online_intermediation_services, and to determine further to which extent those practices continue to be widespread;

(d)

investigating whether the competition between goods or services offered by a business_user and goods or services offered or controlled by a provider of online_intermediation_services constitutes fair competition and whether providers of online_intermediation_services misuse privileged data in this regard;

(e)

assessing the effect of this Regulation on any possible imbalances in the relationships between providers of operating systems and their business_users;

(f)

assessing whether the scope of the Regulation, especially as regards the definition of ‘business user’, is suitable in that it does not encourage bogus self-employment.

The first and subsequent evaluations shall establish whether additional rules, including regarding enforcement, may be required to ensure a fair, predictable, sustainable and trusted online business environment within the internal market. Following the evaluations, the Commission shall take appropriate measures, which may include legislative proposals.

3.   Member States shall provide any relevant information they have that the Commission may require for the purposes of drawing up the report referred to in paragraph 1.

4.   In carrying out the evaluation of this Regulation, the Commission shall take into account inter alia, the opinions and reports presented to it by the group of experts for the Observatory on the Online Platform Economy. It shall also take into account the content and functioning of any codes of conduct referred to in Article 17, where appropriate.

Article 19

Entry into force and application

1.   This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

2.   It shall apply from 12 July 2020.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Brussels, 20 June 2019.

For the European Parliament

The President

A. TAJANI

For the Council

The President

G. CIAMBA


(1)  OJ C 440, 6.12.2018, p. 177.

(2)  Position of the European Parliament of 17 April 2019 (not yet published in the Official Journal) and Decision of the Council of 14 June 2019.

(3)  Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ L 351, 20.12.2012, p. 1).

(4)  Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) (OJ L 177, 4.7.2008, p. 6).

(5)  Directive (EU) 2016/943 of the European Parliament and of the Council of 8 June 2016 on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure (OJ L 157, 15.6.2016, p. 1).

(6)  Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (OJ L 119, 4.5.2016, p. 1).

(7)  Directive (EU) 2016/680 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and on the free movement of such data, and repealing Council Framework Decision 2008/977/JHA (OJ L 119, 4.5.2016, p. 89).

(8)  Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications) (OJ L 201, 31.7.2002, p. 37).

(9)  Commission Recommendation 2003/361/EC of 6 May 2003 concerning the definition of micro, small and medium-sized enterprises (OJ L 124, 20.5.2003, p. 36).

(10)  Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on certain aspects of mediation in civil and commercial matters (OJ L 136, 24.5.2008, p. 3).

(11)  Council Decision 2010/48/EC of 26 November 2009 concerning the conclusion, by the European Community, of the United Nations Convention on the Rights of Persons with Disabilities (OJ L 23, 27.1.2010, p. 37).

(12)  Directive (EU) 2015/1535 of the European Parliament and of the Council of 9 September 2015 laying down a procedure for the provision of information in the field of technical regulations and of rules on Information Society services (OJ L 241, 17.9.2015, p. 1).

(13)  Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the EC Merger Regulation) (OJ L 24, 29.1.2004, p. 1).


whereas









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