REGIS - Reg. Intermediation Services 2019/1150 EN

1. The purpose of this Regulation is to contribute to the proper functioning of the internal market by laying down rules to ensure that business_users of online_intermediation_services and corporate_website_users in relation to online_search_engines are granted appropriate transparency, fairness and effective redress possibilities.

2. This Regulation shall apply to online_intermediation_services and online_search_engines provided, or offered to be provided, to business_users and corporate_website_users, respectively, that have their place of establishment or residence in the Union and that, through those online_intermediation_services or online_search_engines, offer goods or services to consumers located in the Union, irrespective of the place of establishment or residence of the providers of those services and irrespective of the law otherwise applicable.

3. This Regulation shall not apply to online payment services or to online advertising tools or online advertising exchanges, which are not provided with the aim of the facilitating the initiation of direct transactions and which do not involve a contractual relationship with consumers.

4. This Regulation shall be without prejudice to national rules which, in conformity with Union law, prohibit or sanction unilateral conduct or unfair commercial practices, to the extent that the relevant aspects are not covered by this Regulation. This Regulation shall 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.

5. This Regulation shall be without prejudice to Union law, in particular Union law applicable in the areas of judicial cooperation in civil matters, competition, data protection, trade secrets protection, consumer protection, electronic commerce and financial services.

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 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 7

Differentiated treatment

1. Providers of online_intermediation_services shall include in their terms_and_conditions a description of any differentiated treatment which they give, or might give, in relation to goods or services offered to consumers through those online_intermediation_services by, on the one hand, either that provider itself or any business_users which that provider controls and, on the other hand, other business_users. That description shall refer to the main economic, commercial or legal considerations for such differentiated treatment.

2. Providers of online_search_engines shall set out a description of any differentiated treatment which they give, or might give, in relation to goods or services offered to consumers through those online_search_engines by, on the one hand, either that provider itself or any corporate_website_users which that provider controls and, on the other hand, other corporate_website_users.

3. The descriptions referred to in paragraphs 1 and 2 shall cover in particular, where applicable, any differentiated treatment through specific measures taken by, or the behaviour of, the provider of online_intermediation_services or the provider of the online_search_engine relating to any of the following:

(a)

access that the provider, or that the business_users or corporate_website_users which that provider controls, may have to any personal data or other data, or both, which business_users, corporate_website_users or consumers provide for the use of the online_intermediation_services or the online_search_engines concerned or which are generated through the provision of those services;

(b)	ranking or other settings applied by the provider that influence consumer access to goods or services offered through those online_intermediation_services by other business_users or through those online_search_engines by other corporate_website_users;

(c)	any direct or indirect remuneration charged for the use of the online_intermediation_services or online_search_engines concerned;

(d)

access to, conditions for, or any direct or indirect remuneration charged for the use of services or functionalities, or technical interfaces, that are relevant to the business_user or the corporate_website_user and that are directly connected or ancillary to utilising the online_intermediation_services or online_search_engines concerned.

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 14

Judicial proceedings by representative organisations or associations and by public bodies

1. Organisations and associations that have a legitimate interest in representing business_users or in representing corporate_website_users, as well as public bodies set up in Member States, shall have the right to take action before competent national courts in the Union, in accordance with the rules of the law of the Member State where the action is brought, to stop or prohibit any non-compliance by providers of online_intermediation_services or by providers of online_search_engines, with the relevant requirements laid down in this Regulation.

2. The Commission shall encourage Member States to exchange best practices and information with other Member States, based on registries of unlawful acts which have been subject to injunction orders before national courts, where such registries are set up by relevant public bodies or authorities.

3. Organisations or associations shall have the right referred to in paragraph 1 only where they meet all of the following requirements:

(a)	they are properly established in accordance with the law of a Member State;

(b)	they pursue objectives that are in the collective interest of the group of business_users or corporate_website_users that they represent on a sustained basis;

(c)	they are of a non-profit making character;

(d)	their decision-making is not unduly influenced by any third party providers of financing, in particular by providers of online_intermediation_services or of online_search_engines.

To this end, organisations or associations shall fully and publicly disclose information on their membership and source of financing.

4. In Member States where public bodies have been set up, those public bodies shall have the right referred to in paragraph 1, where they are charged with defending the collective interests of business_users or corporate_website_users or with ensuring compliance with the requirements laid down in this Regulation, in accordance with the national law of the Member State concerned.

5. Member States may designate:

(a)	organisations or associations established in their Member State that meet at least the requirements of paragraph 3 at the request of those organisations or associations;

(b)	public bodies set up in their Member State that meet the requirements of paragraph 4

that are granted the right referred to in paragraph 1. Member States shall communicate to the Commission the name and purpose of any such designated organisations, associations or public bodies.

6. The Commission shall draw up a list of the organisations, associations and public bodies designated in accordance with paragraph 5. That list shall specify the purpose of those organisations, associations and public bodies. That list shall be published in the Official Journal of the European Union. Changes to the list shall be published without delay and, in any event, an updated list shall be drawn up and published every six months.

7. The court shall accept the list referred to in paragraph 6 as proof of the legal capacity of the organisation, association or public body, without prejudice to the court’s right to examine whether the purpose of the claimant justifies its taking action in a specific case.

8. If a Member State or the Commission raises concerns regarding the compliance, by an organisation or association, with the criteria laid down in paragraph 3, or, by a public body, with the criteria laid down in paragraph 4, the Member State that designated that organisation, association or public body in accordance with paragraph 5 shall investigate the concerns and, where appropriate, revoke the designation if one or more of the criteria are not complied with.

9. The right referred to in paragraph 1 shall be without prejudice to the rights of business_users and corporate_website_users to start any action before competent national courts, in accordance with the rules of the law of the Member State where the action is brought, which is based on individual rights and aims to stop any non-compliance, by providers of online_intermediation_services or providers of online_search_engines, with the relevant requirements laid down in this Regulation.

Article 16

Monitoring

The Commission, in close cooperation with Member States, shall closely monitor the impact of this Regulation on relationships between online_intermediation_services and their business_users and between online_search_engines and corporate_website_users. To this end, the Commission shall gather relevant information to monitor changes in these relationships, including by carrying out relevant studies. Member States shall assist the Commission by providing, upon request, any relevant information gathered including about specific cases. The Commission may, for the purpose of this Article and Article 18, seek to gather information from providers of online_intermediation_services.

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.

whereas

(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.

- = -

(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.

- = -

(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.

- = -

(12) In line with the relevant case-law of the Court of Justice of the European Union and in the light of the fact that the dependent position of business_users has been observed principally in respect of online_intermediation_services that serve as a gateway to consumers in the form of natural persons, the notion of consumer used to delineate the scope of this Regulation should be understood as referring solely to natural persons, where they are acting for purposes which are outside their trade, business, craft or profession.

- = -

(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.

- = -

(21) In order to ensure that business_users can fully exploit the commercial opportunities offered by online_intermediation_services, providers of these services should not completely prevent their business_users from featuring their trading identity as part of their offering or presence on the relevant online_intermediation_services.
However, this prohibition of interference should not be understood as a right for business_users to unilaterally determine the presentation of their offering or presence on the relevant online_intermediation_services.

- = -

(24) The ranking of goods and services by the providers of online_intermediation_services has an important impact on consumer choice and, consequently, on the commercial success of the business_users offering those goods and services to consumers.
Ranking refers to the relative prominence of the offers of business_users or relevance given to search results as presented, organised or communicated by providers of online_intermediation_services or by providers of online_search_engines, resulting from the use of algorithmic sequencing, rating or review mechanisms, visual highlights, or other saliency tools, or combinations thereof.
Predictability entails that providers of online_intermediation_services determine ranking in a non-arbitrary manner.
Providers should therefore outline the main parameters determining ranking beforehand, in order to improve predictability for business_users, to allow them to better understand the functioning of the ranking mechanism and to enable them to compare the ranking practices of various providers.
The specific design of this transparency obligation is important for business_users as it implies the identification of a limited set of parameters that are most relevant out of a possibly much larger number of parameters that have some impact on ranking.
This reasoned description should help business_users to improve the presentation of their goods and services, or some inherent characteristics of those goods or services.
The notion of main parameter should be understood to refer to any general criteria, processes, specific signals incorporated into algorithms or other adjustment or demotion mechanisms used in connection with the ranking.

- = -

(26) Similarly, the ranking of websites by the providers of online_search_engines, notably of those websites through which undertakings offer goods and services to consumers, has an important impact on consumer choice and the commercial success of corporate_website_users.
Providers of online_search_engines should therefore provide a description of the main parameters determining the ranking of all indexed websites and the relative importance of those main parameters as opposed to other parameters, including those of corporate_website_users as well as other websites.
In addition to the characteristics of the goods and services and their relevance for consumers, this description should in the case of online_search_engines also allow corporate_website_users to obtain an adequate understanding of whether, and if so how and to what extent, certain design characteristics of the website used, such as their optimisation for display on mobile telecommunications devices, is taken into account.
It should also include an explanation of any possibility for corporate_website_users to actively influence ranking against remuneration, as well as an explanation of the relative effects thereof.
In the absence of a contractual relationship between providers of online_search_engines and corporate_website_users, that description should be available to the public in an obvious and easily accessible location on the relevant online_search_engine.
Areas of websites that require users to log in or register should not be understood as easily and publicly available in this sense.

- = -

(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.

- = -

(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.

- = -

(41) Providers of online_intermediation_services should bear a reasonable proportion of the total costs of the mediation, taking into account all relevant elements of the case at hand.
To that end, the mediator should suggest which proportion is reasonable in the individual case.
In light of the costs and of the administrative burden associated with the necessity to identify mediators in terms_and_conditions, it is appropriate to exempt from that obligation any providers of online_intermediation_services which are small enterprises, in line with the relevant provisions of Recommendation 2003/361/EC.
The consolidation rules laid down in that Recommendation ensure that any circumvention of that obligation is prevented.
Nevertheless, this should not affect the right of such enterprises to identify mediators in their terms_and_conditions that comply 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.

- = -

(47) The Commission should continuously monitor the application of this Regulation in close cooperation with the Member States.
In this context, the Commission should aim to establish a broad information exchange network by leveraging relevant expert bodies, centres of excellence as well as the Observatory on the Online Platform Economy.
Member States should, upon request, provide any relevant information they have in this context to the Commission.
Finally, this exercise should benefit from the overall enhanced transparency in commercial relations between business_users and providers of online_intermediation_services and between corporate_website_users and online_search_engines that this Regulation aims to achieve.
In order to carry out its monitoring and review duties effectively under this Regulation, the Commission should endeavour to gather information from providers of online_intermediation_services.
Providers of online_intermediation_services should cooperate in good faith in facilitating the gathering of such data, where applicable.

- = -

(48) Codes of conduct, drawn up either by the service providers concerned or by organisations or associations representing them, can contribute to the proper application of this Regulation and should therefore be encouraged.
When drawing up such codes of conduct, in consultation with all relevant stakeholders, account should be taken of the specific features of the sectors concerned as well as of the specific characteristics of SMEs.
Such codes of conduct should be worded in an objective and non-discriminatory way.

- = -

(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.

- = -

keyboard_tab REGIS - Reg. Intermediation Services 2019/1150 EN

REGIS - Reg. Intermediation Services 2019/1150 EN