keyboard_tab REGIS - Reg. Intermediation Services 2019/1150 EN

index provided:

• 3 Article 1 Subject matter and scope
• 1 Article 2 Definitions
• 1 Article 8 Specific contractual terms
• 3 Article 9 Access to data
• 1 Article 15 Enforcement
• 1 Article 17 Codes of conduct

cloud tag:

• services 43
• online 38
• business 32
• intermediation 27
• which 26
• users 22
• data 17
• shall 15
• means 14
• regulation 14
• consumers 12
• article 11
• provided 10
• search 10
• goods 9
• such 9
• conditions 9
• providers 9
• through 8
• contractual 8
• information 8
• user 8
• engines 7
• provider 7
• conduct 6
• terms 6
• they 6
• union 6
• access 6
• codes 5
• under 5
• purposes 5
• legal 5
• person 5
• between 5
• provision 5
• generated 5
• irrespective 5
•    this 5
• rules 5
• ensure 5
• thereof 5
• offered 4
• particular 4
• trade 4
•    the 4
• proper 4
• directive 4
• whether 4
• including 4

and the number of total unique words without stopwords is: 352

Article 2

Definitions

For the purposes of this Regulation, the following definitions apply:

(1)	‘business user’ means any private individual acting in a commercial or professional capacity who, or any legal person which, through online_intermediation_services offers goods or services to consumers for purposes relating to its trade, business, craft or profession;

(2)

‘online intermediation services’ means services which meet all of the following requirements: (a) they constitute information society services within the meaning of point (b) of Article 1(1) of Directive (EU) 2015/1535 of the European Parliament and of the Council (12); (b) they allow business_users to offer goods or services to consumers, with a view to facilitating the initiating of direct transactions between those business_users and consumers, irrespective of where those transactions are ultimately concluded; (c) they are provided to business_users on the basis of contractual relationships between the provider of those services and business_users which offer goods or services to consumers;

(3)	‘provider of online_intermediation_services’ means any natural or legal person which provides, or which offers to provide, online_intermediation_services to business_users;

(4)	‘consumer’ means any natural person who is acting for purposes which are outside this person’s trade, business, craft or profession;

(5)

‘online search engine’ means a digital service that allows users to input queries in order to perform searches of, in principle, all websites, or all websites in a particular language, on the basis of a query on any subject in the form of a keyword, voice request, phrase or other input, and returns results in any format in which information related to the requested content can be found;

(6)	‘provider of online_search_engine’ means any natural or legal person which provides, or which offers to provide, online_search_engines to consumers;

(7)

‘corporate website user’ means any natural or legal person which uses an online interface, meaning any software, including a website or a part thereof and applications, including mobile applications, to offer goods or services to consumers for purposes relating to its trade, business, craft or profession;

(8)

‘ranking’ means the relative prominence given to the goods or services offered through online_intermediation_services, or the relevance given to search results by online_search_engines, as presented, organised or communicated by the providers of online_intermediation_services or by providers of online_search_engines, respectively, irrespective of the technological means used for such presentation, organisation or communication;

(9)	‘control’ means ownership of, or the ability to exercise decisive influence over, an undertaking, within the meaning of Article 3(2) of Council Regulation (EC) No 139/2004 (13);

(10)

‘terms and conditions’ means all terms_and_conditions or specifications, irrespective of their name or form, which govern the contractual relationship between the provider of online_intermediation_services and its business_users and are unilaterally determined by the provider of online_intermediation_services, that unilateral determination being evaluated on the basis of an overall assessment, for which 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 is not, in itself, decisive;

(11)

‘ancillary goods and services’ means goods and services offered to the consumer prior to the completion of a transaction initiated on the online_intermediation_services in addition to and complementary to the primary good or service offered by the business_user through the online_intermediation_services;

(12)	‘mediation’ means any structured process as defined in point (a) of Article 3 of Directive 2008/52/EC;

(13)	‘durable medium’ means any instrument which enables business_users to store information addressed personally to them in a way accessible for future reference and for a period of time adequate for the purposes of the information and allows the unchanged reproduction of the information stored.

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 9

Access to data

Article 15

Enforcement

Article 17

Codes of conduct

whereas

• (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.


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• (10) A wide variety of business-to-consumer relations are intermediated online by providers operating multi-sided services that are essentially based on the same ecosystem-building business model.

    In order to capture the relevant services, online_intermediation_services should be defined in a precise and technologically-neutral manner.

    In particular, the services should consist of information society services, which are characterised by the fact that they aim to facilitate the initiating of direct transactions between business_users and consumers, irrespective of whether the transactions are ultimately concluded online, on the online portal of the provider of online_intermediation_services in question or that of the business_user, offline or in fact not at all, meaning that there should be no requirement for any contractual relationship between the business_users and consumers as a precondition for online_intermediation_services falling within the scope of this Regulation.

    The mere inclusion of a service of a marginal character only should not be seen as making the aim of a website or service the facilitation of transactions within the meaning of online_intermediation_services.

    In addition, the services should be provided on the basis of contractual relationships between the providers and business_users which offer goods or services to consumers.

    Such a contractual relationship should be deemed to exist where both parties concerned express their intention to be bound in an unequivocal manner on a durable_medium, without an express written agreement necessarily being required.


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• (11) Examples of online_intermediation_services covered by this Regulation should consequently include online e-commerce market places, including collaborative ones on which business_users are active, online software applications services, such as application stores, and online social media services, irrespective of the technology used to provide such services.

    In this sense, online_intermediation_services could also be provided by means of voice assistant technology.

    It should also not be relevant whether those transactions between business_users and consumers involve any monetary payment or whether they are concluded in part offline.

    However, this Regulation should not apply to peer-to-peer online_intermediation_services without the presence of business_users, pure business-to-business online_intermediation_services which are not offered to consumers, online advertising tools and online advertising exchanges which are not provided with the aim of facilitating the initiation of direct transactions and which do not involve a contractual relationship with consumers.

    For the same reason, search engine optimisation software services as well as services which revolve around advertising-blocking software should not be covered by this Regulation.

    Technological functionalities and interfaces that merely connect hardware and applications should not be covered by this Regulation, as they normally do not fulfil the requirements for online_intermediation_services.

    However, such functionalities or interfaces can be directly connected or ancillary to certain online_intermediation_services and where this is the case, the relevant providers of online_intermediation_services should be subject to transparency requirements related to differentiated treatment based on these functionalities and interfaces.

    This Regulation should also not apply to online payment services, since they do not themselves meet the applicable requirements but are rather inherently auxiliary to the transaction for the supply of goods and services to the consumers concerned.


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• (22) A provider of online_intermediation_services can have legitimate reasons to decide to restrict, suspend or terminate the provision of its services to a given business_user, including by delisting individual goods or services of a given business_user or effectively removing search results.

    Short of being suspended, providers of online_intermediation_services can also restrict individual listings of business_users; for example, through their demotion or by negatively affecting a business_user’s appearance (‘dimming’) which can include lowering its ranking.

    However, given that such decisions can significantly affect the interests of the business_user concerned, they should be provided, 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.

    To minimise the negative impact of such decisions on business_users, providers of online_intermediation_services should also allow an opportunity to clarify the facts that led to that decision in the framework of the internal complaint-handling process, which will help the business_user, where this is possible, to re-establish compliance.

    In addition, where the provider of online_intermediation_services revokes the decision to restrict, suspend or terminate, for example because the decision was made in error or the infringement of terms_and_conditions that led to this decision was not committed in bad faith and has been remedied in a satisfactory manner, the provider should reinstate the business_user concerned without undue delay, including providing the business_user with any access to personal or other data, or both, available prior to the decision.


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• (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.


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• (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.


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• (40) Mediation can offer providers of online_intermediation_services and their business_users a means to resolve disputes in a satisfactory manner, without having to use judicial proceedings which can be lengthy and costly.

    Therefore, providers of online_intermediation_services should facilitate mediation by, in particular, identifying at least two public or private mediators with which they are willing to engage.

    The aim of requiring the identification of a minimum number of mediators is to safeguard the mediators’ neutrality.

    Mediators which provide their services from a location outside the Union should only be identified where it is guaranteed that the use of those services does not in any way deprive the business_users concerned of any legal protection offered to them under Union law or the law of the Member States, including the requirements of this Regulation and the applicable law regarding protection of personal data and trade secrets.

    In order to be accessible, fair, and as swift, efficient and effective as possible, those mediators should meet certain set criteria.

    Nonetheless, providers of online_intermediation_services and their business_users should remain free to jointly identify any mediator of their choice after a dispute has arisen between them.

    In line with Directive 2008/52/EC of the European Parliament and of the Council (10), the mediation provided for in this Regulation should be a voluntary process in the sense that the parties are themselves in charge of the process and can start and terminate it at any time.

    Notwithstanding its voluntary nature, providers of online_intermediation_services should examine in good faith requests to engage in the mediation provided for in this Regulation.


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• (43) In order to facilitate the settlement of disputes relating to the provision of online_intermediation_services using mediation in the Union, the Commission should, in close cooperation with the Member States, encourage the setting up of specialised mediation organisations, which are currently lacking.

    The involvement of mediators having specialist knowledge of online_intermediation_services as well as of the specific industry sectors within which those services are provided should add to the confidence both parties have in the mediation process and should increase the likelihood of that process leading to a swift, just and satisfactory outcome.


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