keyboard_tab REGIS - Reg. Intermediation Services 2019/1150 EN

• 3 Article 2 Definitions
• 2 Article 7 Differentiated treatment
• 2 Article 8 Specific contractual terms
• 1 Article 10 Restrictions to offer different conditions through other means
• 2 Article 11 Internal complaint-handling system
• 6 Article 12 Mediation
• 6 Article 14 Judicial proceedings by representative organisations or associations and by public bodies
• 1 Article 15 Enforcement
• 1 Article 18 Review
• Article 19 Entry into force and application

• online 75
• services 74
• shall 60
• intermediation 51
• business 48
• users 45
• which 37
• provider 26
• they 26
• providers 25
• search 24
• article 22
• website 18
• information 18
• engines 17
• means 17
• member 16
• paragraph 15
• through 15
• public 14
• user 14
• corporate 14
• goods 14
• conditions 14
• consumers 13
• regulation 13
• mediation 12
• concerned 11
• terms 11
•    the 11
• referred 11
• states 10
• complaints 10
• have 10
•    providers 10
• offered 9
• between 9
• accordance 9
• requirements 9
• internal 9
• commission 9
• legal 9
• bodies 9
• associations 9
• state 9
• down 9
• main 8
• include 8
• ranking 8
• relevant 8

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:

• (1) Online intermediation services are key enablers of entrepreneurship and new business models, trade and innovation, which can also improve consumer welfare and which are increasingly used by both the private and public sectors.

    they offer access to new markets and commercial opportunities allowing undertakings to exploit the benefits of the internal market.

    they allow consumers in the Union to exploit those benefits, in particular by increasing their choice of goods and services, as well as by contributing to offering competitive pricing online, but they also raise challenges that need to be addressed in order to ensure legal certainty.


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• (2) Online intermediation services can be crucial for the commercial success of undertakings who use such services to reach consumers.

    To fully exploit the benefits of the online platform economy, it is therefore important that undertakings can trust online_intermediation_services with which they enter into commercial relationships.

    This is important mainly because the growing intermediation of transactions through online_intermediation_services, fuelled by strong data-driven indirect network effects, leads to an increased dependence of such business_users, particularly micro, small and medium-sized enterprises (SMEs), on those services in order for them to reach consumers.

    Given that increasing dependence, the providers of those services often have superior bargaining power, which enables them to, in effect, behave unilaterally in a way that can be unfair and that can be harmful to the legitimate interests of their businesses users and, indirectly, also of consumers in the Union.

    For instance, they might unilaterally impose on business_users practices which grossly deviate from good commercial conduct, or are contrary to good faith and fair dealing.

    This Regulation addresses such potential frictions in the online platform economy.


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• (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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• (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.


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• (15) To ensure that the general terms_and_conditions of a contractual relationship enable business_users to determine the commercial conditions for the use, termination and suspension of online_intermediation_services, and to achieve predictability regarding their business relationship, those terms_and_conditions should be drafted in plain and intelligible language.

    Terms and conditions should not be considered to have been drafted in plain and intelligible language where they are vague, unspecific or lack detail on important commercial issues and thus fail to give business_users a reasonable degree of predictability on the most important aspects of the contractual relationship.

    Moreover, misleading language should not be considered to be plain and intelligible.


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• (16) In order to ensure that business_users have sufficient clarity regarding where, and to whom, their goods or services are being marketed, providers of online_intermediation_services should ensure, towards their business_users, the transparency of any additional distribution channels and potential affiliate programmes that they might use to market those goods or services.

    Additional channels and affiliate programmes should be understood in a technologically neutral manner but could, inter alia, include other websites, apps or other online_intermediation_services used to market the goods or services offered by the business_user.


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• (17) The ownership and control of intellectual property rights online can have significant economic importance for both the providers of online_intermediation_services and their business_users.

    To ensure clarity and transparency for business_users and for their better understanding, providers of online_intermediation_services should within their terms_and_conditions include general, or more detailed, information if they so wish, regarding the overall effects, if any, of those terms_and_conditions on the ownership and control of intellectual property rights of the business_user.

    Such information could, inter alia, include information such as the general usage of logos, trademarks or brand names.


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• (18) Ensuring transparency in the general terms_and_conditions can be essential to promoting sustainable business relationships and to preventing unfair behaviour to the detriment of business_users.

    Providers of online_intermediation_services should therefore also ensure that the terms_and_conditions are easily available at all stages of the commercial relationship, including to prospective business_users at the pre-contractual phase, and that any changes to those terms are notified on a durable_medium to business_users concerned within a set notice period which is reasonable and proportionate in light of the specific circumstances and which is at least 15 days.

    Proportionate longer notice periods of more than 15 days should be given where the proposed changes to the terms_and_conditions require business_users to make technical or commercial adaptations in order to comply with the change, for example by requiring them to make significant technical adjustments to their goods or services.

    That notice period should not apply where, and to the extent that, it is waived in an unambiguous manner by the business_user concerned or where, and to the extent that, the need to implement the change without respecting the notice period stems from a legal or regulatory obligation incumbent on the service provider under Union or national law.

    However, proposed editorial changes should not be covered by the term ‘change’ in as far as they do not alter the content or meaning of terms_and_conditions.

    The requirement of notifying proposed changes on a durable_medium should enable business_users to review effectively these changes at a later stage.

    Business users should be entitled to terminate their contract within 15 days from the receipt of the notice of any change, unless a shorter period applies to the contract, for example as resulting from national civil law.


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• (20) In order to protect business_users and to provide legal certainty for both sides, non-compliant terms_and_conditions should be null and void, that is, deemed to have never existed, with effects erga omnes and ex tunc.

    This should however only concern the specific provisions of the terms_and_conditions which are not compliant.

    The remaining provisions should remain valid and enforceable, in as far as they can be severed from the non-compliant provisions.

    Sudden changes to existing terms_and_conditions may significantly disrupt business_users’ operations.

    In order to limit such negative effects on business_users, and to discourage such behaviour, changes made in contravention of the obligation to provide a set notice period should therefore be null and void, that is, deemed to have never existed, with effects erga omnes and ex tunc.


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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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• (32) Specific contractual terms should be addressed in this Regulation, in particular in situations of imbalances in bargaining power, in order to ensure that contractual relations are conducted in good faith and on the basis of fair dealing.

    Predictability and transparency require that business_users are given a real opportunity to become acquainted with changes to terms_and_conditions, which should therefore not be imposed with retroactive effect unless they are based on a legal or regulatory obligation or are beneficial to those business_users.

    Business users should in addition be offered clarity as to the conditions under which their contractual relationship with providers of online_intermediation_services can be terminated.

    Providers of online_intermediation_services should ensure that the conditions for termination are always proportionate and can be exercised without undue difficulty.

    Finally, business_users should be fully informed of any access that providers of online_intermediation_services maintain, after the expiry of the contract, to the information that business_users provide or generate in the context of their use of online_intermediation_services.


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• (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.


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• (34) In the same vein, it is important for business_users to understand whether the provider shares with third parties any data which has been generated through the use of the intermediation service by the business_user.

    Business users should in particular be made aware of any sharing of data with third parties that occurs for purposes which are not necessary for the proper functioning of the online_intermediation_services; for example where the provider monetises data under commercial considerations.

    To allow business_users to fully exercise available rights to influence such data sharing, providers of online_intermediation_services should also be explicit about possibilities to opt out from the data sharing where they exist under their contractual relationship with the business_user.


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• (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.


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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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• (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.


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• (44) Various factors, such as limited financial means, a fear of retaliation and exclusive choice of law and forum provisions in terms_and_conditions, can limit the effectiveness of existing judicial redress possibilities, particularly those which require business_users or corporate_website_users to act individually and identifiably.

    To ensure the effective application of this Regulation, organisations, associations representing business_users or corporate_website_users, as well as certain public bodies set up in Member States, should be granted the possibility to take action before national courts in accordance with national law, including national procedural requirements.

    Such action before national courts should aim to stop or prohibit infringements of the rules set out in this Regulation and to prevent future damage that could undermine sustainable business relationships in the online platform economy.

    In order to ensure that such organisations or associations exercise that right effectively and in an appropriate manner, they should meet certain criteria.

    In particular, they must be properly established according to the law of a Member State, be of a non-profit making character and pursue their objectives on a sustained basis.

    Those requirements should prevent any ad hoc establishment of organisations or associations for the purpose of a specific action or specific actions, or for the sake of making profits.

    Furthermore, it should be ensured that there is no undue influence by any third party providers of financing on decision-making by those organisations or associations.


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• (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.


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• (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.


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