keyboard_tab REGIS - Reg. Intermediation Services 2019/1150 EN

• 1 Article 5 Ranking
• 1 Article 6 Ancillary goods and services
• 4 Article 9 Access to data
• 1 Article 14 Judicial proceedings by representative organisations or associations and by public bodies
• 4 Article 18 Review
• Article 19 Entry into force and application

• online 35
• services 34
• shall 34
• business 23
• intermediation 22
• users 21
• data 17
• providers 14
• paragraph 13
• member 13
• which 13
• public 12
• search 11
• whether 11
• article 11
• website 10
• associations 9
• bodies 9
• commission 9
• referred 9
• requirements 9
• regulation 9
• provider 8
• state 8
• corporate 8
• such 8
• goods 8
• they 8
• engines 8
• consumers 8
• through 8
• organisations 7
• accordance 7
• description 7
• user 7
• ranking 7
• conditions 7
• have 7
• states 7
• parameters 6
• list 6
• laid 6
• down 6
•    the 6
• right 6
• under 5
• without 5
• provision 5
• information 5
• third 5

Where ancillary_goods_and_services, including financial products, are offered to consumers through the online_intermediation_services, either by the provider of online_intermediation_services or by third parties, the provider of online_intermediation_services shall set out in its terms_and_conditions a description of the type of ancillary_goods_and_services offered and a description of whether and under which conditions the business_user is also allowed to offer its own ancillary_goods_and_services through the online_intermediation_services.

• (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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• (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.


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• (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.


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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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• (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.


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• (31) Where a provider of an online_search_engine itself offers certain goods or services to consumers through its own online_search_engine, or does so through a corporate_website_user which it controls, that provider might compete directly with other corporate_website_users of its online_search_engine which are not controlled by the provider.

    In such situations, in particular, it is important that the provider of the online_search_engine acts in a transparent manner and provides a description of any differentiated treatment, whether through legal, commercial or technical means, that it might give in respect of goods or services it offers itself or through a corporate_website_user which it controls, compared to those offered by competing corporate_website_users.

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