keyboard_tab REGIS - Reg. Intermediation Services 2019/1150 EN

(3) Consumers have embraced the use of online_intermediation_services.

  A competitive, fair, and transparent online ecosystem where companies behave responsibly is also essential for consumer welfare.

  Ensuring the transparency of, and trust in, the online platform economy in business-to-business relations could also indirectly help to improve consumer trust in the online platform economy.

  Direct impacts of the development of the online platform economy on consumers are, however, addressed by other Union law, especially the consumer acquis.

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

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

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

(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.

(30) Where a provider of online_intermediation_services itself offers certain goods or services to consumers through its own online_intermediation_services, or does so through a business_user which it controls, that provider might compete directly with other business_users of its online_intermediation_services which are not controlled by the provider, which might give the provider an economic incentive and the ability to use its control over the online_intermediation_services to provide technical or economic advantages to its own offering, or those offered through a business_user which it controls, which it could deny to competing business_users.

  Such behaviour could undermine fair competition and restrict consumer choice.

  In such situations, in particular, it is important that the provider of online_intermediation_services acts in a transparent manner and provides an appropriate description of, and sets out the considerations for any differentiated treatment, whether through legal, commercial or technical means, such as functionalities involving operating systems that it might give in respect of goods or services it offers itself compared to those offered by business_users.

  To ensure proportionality, this obligation should apply at the level of the overall online_intermediation_services, rather than at the level of individual goods or services offered through those services.

(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.

(39) The use of the word ‘internal’ should not be understood as preventing the delegation of an internal complaint-handling system to an external service provider or other corporate structure, as long as such a provider or other corporate structure has full authority and the ability to ensure compliance of the internal complaint-handling system with the requirements in this Regulation.

(42) Since the providers of online_intermediation_services should always be required to identify mediators with which they are willing to engage, and should be obliged to engage in good faith throughout any mediation attempts conducted pursuant to this Regulation, these obligations should be established in a way that prevents abuse of the mediation system by business_users.

  Business users should also be obliged to engage in mediation in good faith.

  Providers of online_intermediation_services should not be obliged to engage in mediation where a business_user brings proceedings on a subject in relation to which that business_user has previously brought proceedings seeking mediation and the mediator has determined in that case that the business_user has not acted in good faith.

  Providers of online_intermediation_services should also not be obliged to engage in mediation with business_users who have made repeated unsuccessful mediation attempts.

  These exceptional situations should not limit the business_user’s ability to submit a case to mediation where, as determined by the mediator, the subject matter of the mediation is not related to the previous cases.

(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.