Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on promoting fairness and transparency for business users of online intermediation services
Date: 2018-04-26
Institutions: Directorate-General for Communications Networks, Content and Technology, European Commission
Subjects: Internet, commercial contract, consumer protection, digital single market, electronic commerce, goods and services, provision of services, trade intermediary, unfair terms of contract

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   EUROPEAN COMMISSION  Brussels, 26.4.2018  COM(2018) 238 final 2018/0112 (COD)  Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on promoting fairness and transparency for business users of online intermediation services (Text with EEA relevance) {SEC(2018) 209 final} - {SWD(2018) 138 final} - {SWD(2018) 139 final}  
 
 
EXPLANATORY MEMORANDUM 

1. 

• 

CONTEXT OF THE PROPOSAL 

Reasons for and objectives of the proposal 

Online  platforms  are  key  enablers  of  digital  trade.  At  present,  more  than  a  million  EU 
enterprises  trade  through  online  platforms  in  order  to  reach  their  customers,1  and  it  is 
estimated that around 60% of private consumption and 30% of public consumption of goods 
and  services  related  to  the  total  digital  economy  are  transacted  via  online  intermediaries.2 
These  online  intermediation  activities  usually  benefit  from  important  data-driven  direct  and 
indirect network effects which tend to result in only a limited number of successful platforms 
per  intermediated  segment  of  the  economy.  This  growing  intermediation  of  transactions 
through online platforms, combined with strong indirect network effects that can be fuelled by 
data-driven advantages by the online platforms, lead to an increased dependency of businesses 
on  online  platforms  as  quasi  "gatekeepers"  to  markets  and  consumers.  The  asymmetry 
between  the  relative  market  strength  of  a  small  number  of  leading  online  platforms  –  not 
necessarily  dominant  in  the  sense  of  competition  law  –  is  exacerbated  by  the  inherently 
fragmented supply-side consisting of thousands of small merchants. To the extent these exist, 
a similar dynamic is not observed in relation to online platforms that intermediate business-to-
business  (B2B)  relations,  where  both  of  the  business  users  and  the  online  platform  tend  to 
constitute  large  and  sophisticated  firms  that  are  more  readily  able  to  ensure  balanced 
contractual  relationships.  A  Commission  study  from  20063  observed  that  this  awareness  of 
risks was one factor that held back the widespread adoption of B2B e-markets. 

The  providers  of  online  intermediation  services  covered  by  the  present  initiative  include  in 
principle  online  e-commerce  market  places,  online  software  application  stores  and  online 
social  media.  These  different  types  of  online  intermediation  services  all  aim  to  facilitate, 
through  the  provision  of  information  society  services,  the  initiating  of  direct  transactions 
between  contractually  bound  business  users  and  consumers,  irrespective  of  whether  the 
ultimate  transactions  are  executed  online  or  offline.  In  order  to  facilitate  such  direct 
transactions, these online intermediation services all essentially allow for an online presence 
of business users that offer goods or services to consumers, without those business users being 
required, in principle, to operate a standalone  website. In  addition to  allowing for an online 
presence  of  business  users,  online  intermediation  services  frequently  facilitate  direct 
communications  between  individual  business  users  and  consumers  through  an  embedded 
online  communications  interface.  As  regards  online  social  media,  it  is  noted  that  certain 
providers  of  this  category  of  online  service  providers  actually  incorporate  different  online 
intermediation  services  within  one  and  the  same  digital  environment,  all  of  which  can  be 
covered  by  this  initiative.  Business  pages  for  example  allow  consumers  to  find  local 
businesses and service providers and are an important enabler of business-to-consumer (B2C) 
transactions.  Such  business  pages  are  increasingly  integrated  with  a  direct  booking  or 
purchasing functionality, turning these services into online e-commerce market places. 

While offering great potential in terms of efficient access to (cross-border) markets, European 
businesses cannot fully exploit the potential of the online platform economy due to a number 

1  Copenhagen Economics, "Online Intermediaries: Impact on the EU economy" 2015.  
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3  Legal Study on unfair commercial practices within B2B e-markets, ENTR/04/69 of May 2006. 

Ibid.   

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of  potentially  harmful  trading  practices  and  a  lack  of  effective  redress  mechanisms  in  the 
Union. At the same time, online service providers concerned face difficulties operating across 
the single market due to emerging fragmentation. 

The  dependence  of  businesses  on  certain  online  services  implies  that  the  providers  of  such 
online  intermediation  services  have  a  scope  to  engage  in  a  number  of  potentially  harmful 
trading  practices  which  limit  business  users'  sales  through  them  and  risk  undermining  their 
trust, notably: unexplained changes in terms and conditions without prior notice; the delisting 
of goods or services and the suspension of accounts without a clear statement of reasons; lack 
of transparency related to the ranking of goods and services and of the undertakings offering 
them; unclear conditions for access to, and use of, data collected by providers; and a lack of 
transparency  regarding  favouring  of  providers'  own  competing  services  and  so-called  most-
favoured  nation  (MFN)  clauses  which  restrict  undertakings'  ability  to  offer  more  attractive 
conditions through other channels than the online intermediation services.  

Furthermore,  online  general  search  engines  can  also  be  important  sources  of  Internet  traffic 
for businesses and can affect the commercial success of corporate website users offering their 
goods or services online in the internal market. The ranking of websites by the providers of 
online search engines, including of those websites through which businesses offer their goods 
and services to consumers, has an important impact on consumer choice and the commercial 
success  of  those  corporate  website  users.  Thus,  even  in  the  absence  of  a  contractual 
relationship with their corporate website users, online general search engines equally exhibit a 
dependency-enabled issue, specifically for potentially harmful ranking practices, which may 
affect business users.  

At the same time, the current regulatory framework may not be effective in preventing some 
of  these  practices,  nor  in  providing  effective  redress.  Significant  emerging  regulatory 
fragmentation  in  the  EU  further  complicates  the  regulatory  environment.  Whilst  primarily 
resulting in impacts for business users, this situation affects all actors in the multi-sided online 
platform ecosystems, including consumers, which could face a reduced choice of competitive 
goods and services.  

This proposal is complemented by a Commission Decision setting up the group of experts for 
the Observatory on the Online Platform Economy which is tasked essentially with monitoring 
opportunities and challenges for the Union in the online platform economy, including issues 
related to the application of the Regulation which the Commission now proposes.  

• 

Consistency with existing policy provisions in the policy area 

There is no legislation at Union level addressing the online intermediated business-to-business 
relations at issue here. 

Competition  law  in  the  Union  targets  inter  alia  anticompetitive  behaviour  by  undertakings. 
The  unilateral  potentially  harmful  trading  practices  covered  by  this  initiative  do  not 
necessarily infringe EU competition law under Article 101 or Article 102 TFEU. As a result, 
competition law at Union or national level may not address all the types of issues covered by 
this initiative.  

Consumer protection law does address a range of potentially harmful trading practices, at EU 
level notably through the Unfair Commercial Practices Directive 2005/29/EC4 and the Unfair 

4 

OJ L 149, 11.6.2005, p.22. 

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Contract  Terms  Council  Directive  93/13/EEC5.  These  Directives  require  a  high  level  of 
transparency and 'professional diligence'. However, their scope is limited to B2C transactions. 
Conversely,  the  Misleading  and  Comparative  Advertising  Directive  2006/114/EC6  covers 
certain  B2B  relations.  It  aims  at  protecting  traders  against  misleading  advertising  and  their 
unfair  consequences  and  lays  down  the  conditions  under  which  comparative  advertising  is 
permitted. However, the provisions set forth in the latter instrument are limited to advertising 
practices  and  do  not  generally  address  the  potentially  harmful  trading  practices  mentioned 
above,  which  occur  as  part  of  an  existing  contractual  relationship  between  online  platforms 
and their business users. 

• 

Consistency with other Union policies 

The  present  proposal  aims  at  ensuring  a  fair,  predictable,  sustainable  and  trusted  legal 
environment  for  business  users,  corporate  website  users,  providers  of  online  intermediation 
services  and  online  search  engines  alike,  which  will  limit  the  occurrence  and  the  impact  of 
harmful  platform-to-business  trading  practices  occurring  in  certain  online  activities,  thereby 
safeguarding trust in the online platform economy and preventing further legal fragmentation 
of the Digital Single Market. 

The initiative thus contributes to the goals of the Digital Single Market Strategy by creating a 
clear,  transparent  and  stable  legal  environment  for  online  B2C  service  providers  and  their 
business  users,  to  tackle  market  fragmentation  and  to  allow  all  players  to  tap  into  the  new 
market  dynamics  under  fair  and  balanced  conditions  and  with  an  appropriate  degree  of 
transparency.  

The proposal is also consistent with a number of other Union policies and rules. In particular, 
it complements the rules of competition and consumer protection law mentioned above, while 
leaving the application of those rules unaffected.  

In addition, particularly where it comes to redress, the proposal should be understood against 
the background of rules of Union law concerning judicial cooperation in civil matters, such as 
Regulation  (EU)  No  1215/2012  on  jurisdiction  and  the  recognition  and  enforcement  of 
judgments  in  civil  and  commercial  matters7,  Regulation  (EC)  No  593/2008  on  the  law 
applicable to contractual obligations8, Regulation (EC) No 864/2007 on the law applicable to 
non-contractual  obligations9  and  Directive  (EC)  2008/52  on  certain  aspects  of  mediation  in 
civil and commercial matters10.  

The  obligation  to  provide  a  description  of  the  main  ranking  parameters  complements  the 
requirements  for  traders  under  EU  consumer  protection  law.  It  can  be  noted  in  this  respect 
that  the  Commission  has  proposed  amendments  as  part  of  the  New  Deal  for  Consumers11, 
containing a requirement to clearly identify for consumers any promoted search results based 
on  payments,  as  well  as  a  requirement  to  inform  about  the  main  parameters  determining 
ranking on online marketplaces.   

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OJ L 95, 21.4.1993, p.29. 
OJ L 376, 27.12.2006, p.21. 
OJ L 351, 20.12.2012, p.1.  
OJ L 177, 4.7.2008, p. 6. 
OJ L 199, 31.7.2007, p. 40 
OJ L 136, 24.5.2008, p.3. 
COM(2018) 
content/EN/TXT/?qid=1523880940100&uri=COM:2018:185:FIN  

11  April 

(final) 

2018, 

185 

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https://eur-lex.europa.eu/legal-

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Finally, the present proposal is compatible with Directive 2000/31/EC on certain legal aspects 
of  information  society  services,  in  particular  electronic  commerce,  in  the  Internal  Market12,  
which lays down a general framework relating to the provision of information society services 
in the Union. 

The  proposed  Regulation  will  leave  all  of  the  abovementioned  existing  acts  of  Union  law 
unaffected. 

2. 

• 

LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY 

Legal basis 

Given (i) that the initiative constitutes a core part of the Digital Single Market strategy, (ii) the 
intrinsic cross-border nature of the online services under consideration, and (iii) the emerging 
fragmentation of the single market through specific national legislation on the issues covered, 
Article 114 TFEU constitutes the relevant legal basis for this initiative.  

The  objective  of  Article  114  TFEU  is  to  approximate  provisions  in  Member  States  and  to 
ensure that coherent, non-discriminatory rules are applicable throughout the Union. Such an 
application of common rules throughout the Union addresses and avoids divergences between 
Member  States  and  ensures  legal  certainty,  thus  allowing  undertakings  and  consumers  to 
exploit  the  benefits  of  the  internal  market.  As  such,  this  initiative  contributes  to  the 
establishment and good functioning of the internal market. 

• 

Subsidiarity (for non-exclusive competence)  

The  intrinsic  cross-border  nature  of  the  online  services  at  issue  implies  that  the  objectives 
cannot be reached effectively by Member States alone. Leading online intermediation services 
providers  are  established  in  one  Member  State,  but  provide  access  to  almost  the  entire  EU 
population, both from their place of normal residency and while travelling across the Union. 
Importantly,  certain  types  of  online  services  are  at  the  same  time  used  for  commercial 
communications  through  having  an  online  presence  by  90%  of  the  respondents  to  the 
Commission's fact-finding on platform-to-business relations.  

Union action therefore constitutes the only way to ensure that common, suitable and effective 
rules apply to providers of the services concerned and the users of those services regardless of 
the law and forum identified in terms and conditions. On the specific set of issues described 
here, the European Council "underlined the necessity of increased transparency in platforms' 
practices and uses"13 as part of a future oriented regulatory framework for the Union. 

• 

Proportionality 

This proposal aims to offer business users and corporate website users trading in the Union an 
improved  business  environment.  At  the  same  time,  the  online  service  providers  concerned 
remain free, in principle, to set the general policies for the provision of their services and are 
offered  the  opportunity  to  shape  their  voluntary  commitments  by  way  of  industry  codes  of 
conducts within a principles-based legal framework. It therefore seeks to provide an adequate 
response  to  the  problem  identified,  whilst  safeguarding  the  innovation  capacity  of  online 
service  providers.  In  addition,  the  choice  of  a  Regulation  will  facilitate  the  scaling-up  of 

12 
13  European Council Conclusions, 19 October 2017, ST 14 2017 INIT .  

OJ L 178, 17.7.2000, p. 1 

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providers  to  the  benefit  of  all  actors  in  online  intermediated  services,  as  common  rules 
applicable  throughout  the  Union  will  inherently  lower  compliance  costs  and  enhance  legal 
certainty in particular for cross-border operations.  

The  proportionality  of  the  preferred  option,  as  reflected  in  this  proposal,  also  lies  in  the 
combination of comparatively general, principles-based Union rules, with an important scope 
for  industry  action  and  targeted  monitoring.  This  approach  is  tailored  to  the  fast  changing 
technological and economic environment online. The group of experts for the Observatory on 
the  Online  Platform  Economy,  which  will  be  set  up  in  parallel  to  this  proposal,  will  follow 
both  the  general  evolution  of  the  wider  online  platform  economy  and  the  specific  issues 
covered  here,  informed  amongst  others  by  the  legal  transparency  obligations.  The  approach 
put  in  place  in  this  proposed  Regulation  therefore  remains  proportionate  to  the  issues 
identified in online business-to-business relations.  

Considering  the  administrative  burden  of  the  various  components  of  the  initiative,  small 
enterprises  will  benefit  from  a  targeted  exemption  from  the  obligation  to  put  in  place  an 
effective internal complaint-handling system. It should be noted that this particular obligation 
sets  only  relatively  high-level  effectiveness  and  accessibility  criteria,  which  will  leave 
providers free to implement cost-effective technical solutions resulting in lower than average 
costs.  The  targeted  exemption  will  guarantee  that  where  an  administrative  burden  resulting 
from  the  initiative  cannot  be  fully  excluded,  only  undertakings  that  generate  sufficient 
revenue to absorb this are covered.  

• 

Choice of the instrument 

Limiting  Union  action  to  promoting  voluntary  industry-action  and  certain  accompanying 
measures  is  possible  but  unlikely  to  be  effective,  as  this  would  essentially  rely  on  the 
industry's  own  incentives  and  willingness  to  change  the  status  quo.  While  both  service 
providers and their business users have an interest in maximising interactions and transactions 
with  consumers  on  platforms,  their  short-term  interests  in  tackling  issues  arising  in  their 
business  relationships  are  only  imperfectly  aligned.  Previous  experience  with  the  Supply 
Chain Initiative (SCI) in the food sector also suggests that purely voluntary initiatives are not 
suited  for  creating  a  functioning  independent  redress  mechanism  and  fairness  rules  that  are 
attractive  and  credible  for  both  sides  of  the  market.  Despite  some  progress  (elaboration  of 
principles of good practice and setting up of a governance group), agricultural providers – the 
main  supposed  beneficiaries  of  the  scheme  –  did  not  sign  up  to  the  scheme  because  of 
confidentiality  and enforcement concerns. In  the  meantime, 21 Member States  have already 
adopted national legislation and initiatives to combat potentially harmful trading practices in 
the food supply chain. 

For this reason, only a legislative instrument can effectively address the problems identified. 
A Regulation is in addition preferred, as it is directly applicable in Member States, establishes 
the same level of obligations for private parties, and enables the coherent application of rules 
in  the  inherently  cross-border  online  intermediated  trade  and  online  search.  This  will  also 
address and prevent fragmentation of the Digital Single Market. 

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3. 

RESULTS 
CONSULTATIONS AND IMPACT ASSESSMENTS 

EX-POST 

EVALUATIONS, 

OF 

STAKEHOLDER 

Ex-post evaluations/fitness checks of existing legislation 

• 
The report of the Fitness Check of Consumer and Marketing law14 concluded there was a need 
to  consider  changes  to  the  Misleading  and  Comparative  Advertising  Directive  in  respect  of 
B2B  relations,  largely  confirming  the  findings  of  the  2012  Commission  Communication 
announcing  the  intention  to  revise  that  Directive15.  The  Inception  Impact  Assessment  on  a 
targeted revision of EU consumer law directives however underlined that the findings of the 
Fitness Check would rather inform this initiative on platform-to-business relations specifically 
within the Digital Single Market context. This initiative therefore, builds on the findings made 
during the most recent Fitness Check of Consumer and Marketing law. 

• 

Stakeholder consultations 

The  Commission  has  consulted  broadly  on  the  B2B  related  issues  emerging  in  the  online 
platforms'  ecosystem.  First,  preceding  the  Commission  Communication  on  online  platforms 
of May  201616, a  wide consultation  led to  a clearer  definition of the problem space  and the 
start  of  an  in-depth  fact-finding  exercise.  Second,  a  series  of  workshops  and  broad 
consultation through several surveys informed the problem definition and led to preliminary 
policy  options.  Finally,  in-depth  focus  groups,  workshops,  a  questionnaire  and  open 
presentation to the Member States contributed to the design and testing of policy options. In 
addition  to  the  consultation  tools  used,  the  Commission's  services  have  met  or  interviewed 
through bilateral meetings a series of stakeholders. 

Business  users,  particularly  micro,  small  and  medium-sized  enterprises,  generally  support 
legislative  action  to  ensure  effective  redress  options  and  greater  transparency  of  ranking 
practices, of MFN (price parity) clauses, and transparency in delisting processes.  

Most  online  service  providers  concerned  that  were  consulted  agree  that  providing  an 
explanation  to  a  business  user  upon  delisting  or  take-down of  an  offer  is  a  reasonable  legal 
obligation, provided their legal obligations to take down illegal content and to cooperate with 
investigations are respected. Consulted providers argued that they do not see the value added 
of external dispute resolution because they trust their own internal dispute resolution systems. 
They do not see in general a problem with implementing notice periods for changes in terms 
and conditions, however they are not in favour of rigid notice periods. Regarding transparency 
around  rankings  and  data  use,  providers  tend  to  agree  with  relatively  high-level  disclosure 
obligations,  but  warn  of  "gaming"  and  manipulation  of  algorithms  with  too  much 
transparency. Generally providers are supportive of the idea of monitoring the online platform 
economy provided that such monitoring happens in full respect of their trade secrets. 

Many  national  experts  from  Member  States'  administrations  are  of  the  view  that  addressing 
issues around terms and conditions is core to all online business-to-business issues. They also 
consider  that  the  proportionality  of  a  transparency  obligation  would  depend  on  the  precise 
wording  and  on  the  size  of  the  provider.  On  issues  such  as  notice  periods,  views  diverge 
depending on the experience at national level, ranging from no need to regulate to mandatory 

14  For  an  overview  of 

the  REFIT  Fitness  Check  of  EU  consumer  and  marketing 

law  see 

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http://ec.europa.eu/newsroom/just/item-detail.cfm?item_id=59332  

COM (2012) 702 final. 
COM (2016) 288 final. 

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fixed  notice  terms.  Some  national  experts  are  also  of  the  view  that  terms  and  conditions 
should be simplified in order to make them transparent and user-friendly for businesses. The 
consulted  national  experts  support  a  legal  transparency  obligation  to  provide  a  statement  of 
reasons for delisting. They share the general view that delisting-related requirements should 
be  aligned  with  illegal  content/notice-and-action  procedures.  A  transparency  obligation  on 
ranking  criteria  is  overall  considered  proportionate  and  legitimate.  The  experts  with  more 
experience  on  ranking  issues  are  supportive  of  measures  which  would  solve  the  problems 
encountered in a timely manner, although some say that the issue should be left to commercial 
and  competition  law.  A  general  preference  to  (i)  opt  for  a  transparency  obligation  covering 
ranking  practices  in  general,  and  (ii)  work  towards  identifying  best  practices  in  ranking 
captures the broad consensus view. On data, non-discrimination and MFN experts cautioned 
that further reflection was needed. However, there is an overall agreement among experts on 
the  importance  of  redress.  Some  concerns  exist  that  internal  complaint-handling  systems 
could be burdensome for small and medium-sized enterprises (SMEs). Some national experts 
are  in  favour  of  promoting  existing  best  practices  (possibly  as  part  of  a  self-regulatory 
measure).  Experts  representing  national  authorities  overall  recognise  the  interest  of  the 
monitoring exercise. They are however, generally opposed to the creation of a new body or 
European agency for that purpose. 

The  targeted  and  co-regulatory  nature  of  this  initiative,  which  is  built  on  transparency  and 
redress measures combined with enhanced monitoring through the group of experts set up in 
parallel,  reflects  common  grounds  in  the  views  of  the  various  groups  of  stakeholders 
consulted.  

• 

Collection and use of expertise 

Several  surveys,  a  public  consultation  and  multiple  studies  were  carried  out  by  the 
Commission or external contractors between 2015 and 2017. In-house economic research as 
well  as  policy  design  support  by  the  Joint  Research  Centre  further  informed  the  Impact 
Assessment underlying  this  initiative. Member States were in addition consulted through an 
online consultation which fed into a meeting of the e-commerce expert group dedicated to this 
initiative.  Finally,  the  Commission  organised  a  large  number  of  seminars  with  academic 
experts,  whose  views  have  contributed  to  the  problem  framing  and  evidence  collection 
strategy. 

• 

Impact assessment 

This proposal is based on an Impact Assessment. The Regulatory Scrutiny Board first issued a 
negative  opinion  with  comprehensive comments on this Impact Assessment on 1  December 
2017. After a significant revision of the Impact Assessment, the Board subsequently issued a 
positive  opinion  with  reservations  on  22  March  2018.  The  opinion  of  the  Board,  the 
recommendations and an explanation of how they have been taken into account are included 
in Annex 1 of the Staff Working Document accompanying this proposal. Annex 4 provides an 
overview of who would be affected by this proposal and how. 

The Commission examined different policy alternatives to achieve the general objective of the 
present  initiative,  which  is  to  establish  a  fair,  predictable,  sustainable  and  trusted  online 
business  environment,  while  maintaining  and  further  encouraging  an  innovation-driven 
ecosystem  around  online  platforms  across  the  EU.  In  such  a  business  environment  business 
traders  should  have  the  necessary  safeguards  to  prevent  harm  from  unfair  trading  practices 
and the ability to seek effective redress where necessary. It should also address and prevent 
regulatory fragmentation across the EU. Within a preferred co-regulatory design required to 

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ensure legal certainty and predictability for business users while safeguarding online service 
providers'  innovation  potential,  four  policy  options  were  ultimately  retained.  All  of  these 
policy  options  foresaw  comparatively  high-level,  principles-based  legal  transparency  and 
redress  obligations to  be  imposed  on  providers,  but  they  differed  in  terms  of  the  breadth  of 
potentially harmful trading practices that they covered. In addition, two out of four retained 
options extended the application of the legal transparency obligation on ranking to providers 
of  online  general  search  engines,  in  order  to  maximise  efficiency  and  to  ensure  equal 
treatment.  Finally,  one  of  the  latter  two  options  contained  a  single,  more  far-reaching 
obligation for providers to give business users the opportunity to ask, in line with the General 
Data  Protection  Regulation17,  for  customers'  consent  to  obtain  and  process  their  e-mail 
addresses after the completion of a transaction through the use of the services.  

The  policy  option  that  foresaw  legal  transparency  obligations  on  a  more  limited  number  of 
potentially harmful trading practices was judged to be of limited effectiveness. While it would 
increase  legal  certainty  through  legal  transparency  and  redress  measures,  the  risk  of  direct 
harm  to  businesses  and of  fragmentation  would  importantly  remain  since  some  high-impact 
trading  practices  (ranking,  data,  discrimination,  MFNs)  were  judged  unlikely  to  be 
sufficiently tackled through self-regulation. 

The three other policy options that foresaw legal transparency obligations on the full range of 
potentially harmful  trading  practices identified as  part  of this initiative were  all  found to  be 
effective. Extending the scope of application of the specific legal transparency obligation on 
ranking to providers of online general search engines was in this regard judged to achieve the 
relative  greatest  degree  of  effectiveness.  The  option  to  include  a  single,  more  far-reaching 
data sharing obligation was at the same time judged to be disproportionate, considering on the 
one hand the specific objective of maintaining the innovation potential of the online platform 
economy, and, on the other hand, non-legislative measures that are being presented in parallel 
to  foster  fair  policies  for  business-to-business  data  sharing.  Moreover,  the  retained  policy 
option  entails  that  the  legal  transparency  obligations  are  accompanied  by  an  enhanced 
external  scrutiny  of  online  platforms'  trading  practices,  which  is  an  important  factor  to 
incentivise a fair and predictable environment for business users. 

Providing legally binding transparency and redress obligations on the full range of potentially 
harmful  trading  practices  identified  as  part  of  this  initiative,  including  transparency  for  the 
issue  of  ranking  in  online  general  search  (to  which  only  the  collective  redress  enforcement 
provision – rather than also the other redress provisions of this proposed Regulation – would 
apply,  to  ensure  proportionality),  is  therefore  the  optimal  policy  choice.  In  addition  to 
safeguarding  the  Single  Market  potential  of  the  online  platform  economy,  the  proposal  is 
estimated  to  be  capable  of  reversing  a  dampening  effect  on  the  online  platform  economy 
resulting from a lack of trust of business users amounting to at least between EUR 0.81 billion 
and EUR 4.05 billion. It will also have a positive social impact, as the proposed Regulation 
will lead to an increase in turnover for the growing number of EU undertakings using online 
intermediation  services  which,  in  turn,  is  expected  to  yield  additional  employment 
opportunities.  

Although e-commerce market places, one of various types of providers which are in principle 
covered  by  the  initiative,  can  involve  the  physical  delivery  of  goods  supplied  by  business 

17 

Regulation  (EU)  2016/679  of  the  European  Parliament  and  of  the  Council  of  27  April  2016  on  the 
protection of natural persons with regard to the processing of personal data and on the free movement of 
such data, and repealing Directive 95/46/EC (OJ L 119, 4.5.2016, p. 1). 

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users to consumers, the increased use of this type of service as a result of the proposal is not 
expected  to  have  a  significant  detrimental  impact  on  the  environment.  Compliance  costs 
associated  with  the  proposal  are  expected  to  be  limited,  and  to  mainly  affect  providers  of 
online intermediation services and of online search engines. The proposed legal obligation to 
establish  an  internal  complaint-handling  system  places  the  comparatively  highest  potential 
burden on providers, with smaller providers being most likely to face some compliance cost. 
Therefore those small enterprises, as defined in the Commission's SME Recommendation of 
200318, are exempted from this specific provision. The proposal is therefore also judged to be 
proportionate.        

• 

Regulatory fitness and simplification 

As  mentioned  above,  small  enterprises  will  benefit  from  a  targeted  exemption  from  the 
obligation  to  put  in  place  an  internal  complaint-handling  system.  The  proposal  specifically 
aims at facilitating the sustainable growth of online intermediation services and is designed to 
be fully technologically-neutral.  

• 

Fundamental rights 

The  Union  is  committed  to  high  standards  of  fundamental  rights.  The  specific  objective  of 
timely and effective redress for business users contributes to enhancing business users' right 
to an effective remedy and to a fair trial (Article 47 of the Charter of Fundamental Rights of 
the European Union) as far as it would involve improved access to the judiciary.  

Moreover, the fair, predictable, sustainable and trusted online business environment that this 
proposal  aims  to  create  will  contribute  to  safeguarding  an  appropriate  balance  between  the 
respective  freedoms  to  conduct  a  business  of  service  providers  and  their  business  users 
(Article 16 of the Charter of Fundamental  Rights  of the European  Union).  In particular, the 
transparency  measures  laid  down  in  the  proposed  Regulation  are  a  precondition  for 
monitoring whether the fundamental right to conduct a business is not unduly constrained as 
far as the weaker party in business-to-business relations is concerned. 

4. 

BUDGETARY IMPLICATIONS 

The proposal will not have any implications for the EU budget. 

5. 

• 

OTHER ELEMENTS 

Implementation plans and monitoring, evaluation and reporting arrangements 

Monitoring of the evolution of impacts constitutes a key part of the proposed intervention in 
this  domain,  as  the  online  platform  economy  remains  a  dynamic,  fast  evolving  area  of  the 
economy. The monitoring is therefore divided into two strategic parts: 

One  is  entrusted  to  a  dedicated  expert  group  which,  jointly  with  a  team  of  Commission 
officials, constitutes an EU Observatory on the Online Platform Economy. As set out in the 
Commission  Decision  C(2018)2393,  the  expert  group  will  provide  advice  on,  and  expert 
analysis of, the evolution of the online platform economy in particular related to algorithmic 
decision-making, access to data, remuneration for material displayed online, transparency and 
accountability in B2B relations in online advertising, differentiated treatment and restrictions 

18 

Commission Recommendation 2003/361/EC of 6 May 2003 concerning the definition of micro, small 
and medium-sized enterprises (OJ L 124, 20.5/2003, p. 36). 

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9 

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on business users to offer different conditions when using other distribution channels. It will 
also liaise with other relevant expert groups and centres of excellence set up by the EU and 
Member States, where appropriate.  

The second is the specific monitoring of the evolution of impacts related to the regulatory and 
self-regulatory components of the proposed Regulation. 

The  Commission  will  monitor  market  indicators  for  the  online  platform  economy,  notably 
through the EU Observatory on the Online Platform Economy and based on the work of the 
group of experts. This analysis includes data such as: number and types of businesses trading 
on  online  intermediation  services,  number  and  type  of  complaints  handled  through  internal 
and  external  redress,  number  of  cases  successfully  solved,  the  amount  of  time  needed  to 
resolve the case, the place of establishment, size of the providers trading in the EU, including 
turnover realised in the EU market as an online intermediary. Within two years from the EU 
Observatory  becoming  active,  the  Commission  services  will  prepare  a  report  based  on  its 
activities and taking stock of the state of play, the progress made towards the achievement of 
the policy objectives and any unresolved issues. 

The effectiveness and efficiency of the proposal will be monitored using defined indicators, to 
inform  policy  development  with  regards  to  the  evolution  of  the  potentially  harmful  trading 
practices. Consequently, the impact of the intervention will be assessed in the context of an 
evaluation  exercise  and  that  assessment  will,  where  appropriate,  feed  into  the  review  of  the 
proposed  Regulation  as  specified  in  the  review  clause  thereof,  which  is  to  take  place  three 
years after its entry into force and subsequently every three years. 

• 

Detailed explanation of the specific provisions of the proposal 

Article 1 specifies the subject matter and scope of the proposed Regulation. It explains that it lays 
down  obligations  for  providers  of  online  intermediation  services  and,  in  certain  respects,  online 
search  engines  to  provide  business  users  and  corporate  website  users,  respectively,  with 
appropriate  transparency  and  to  offer  them  certain  redress  possibilities.  It  also  explains  the 
geographic scope of the proposed Regulation, which reflects the inherent cross-border nature of 
the online services at issue, where activities and transactions occurring within the Union can be 
intermediated by providers not established there. 

Article 2 contains the applicable legal definitions. 

Article 3 establishes requirements for the clarity, accessibility and modifications of pre-defined, 
standard terms and conditions used by providers of online intermediation services. 

Article  4  establishes  requirements  for  a  statement  of  reasons  from  a  provider  of  online 
intermediation services if it suspends or terminates the use by a business user of its intermediation 
services.  

Article 5 establishes requirements for a description of the main parameters determining ranking of 
business  users  in  search  results,  including  a  description  where  ranking  is  influenced  by  the 
business user giving direct or indirect remuneration to them, in the terms and conditions used by 
providers  of  online  intermediation  services.  The  Article  establishes  a  similar  requirement  to 
provide the main parameters determining ranking for providers of online search engines by means 
of an easily accessible and publicly available description. It also requires that the description of 
the  main  parameters  determining  ranking  should  give  the  business  users  or  corporate  website 
users  concerned  an  adequate  understanding  of  the  possible  implications  of  the  characteristics  of 
the goods or services offered,  the relevance of those characterics for consumers, as well as of the 
design characteristics of websites used in the context of online search engines. 

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10 

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Article 6 establishes requirements for a description of any differentiated treatment given to goods 
and services offered by the provider of online intermediation services itself, or by business users 
which it controls, in the terms and conditions used by providers of online intermediation services.  

Article 7 establishes a requirement to include a description of the access to personal data or other 
data  which  business  users  or  consumers  provide  to  online  intermediation  services  or  which  are 
generated through those services, in the standard terms and conditions used by providers of online 
intermediation services.  

Article  8  establishes  a  requirement  to  provide  and  publish  a  description  of  the  grounds  for 
restricting  the  ability  for  business  users  to  offer  different  conditions  to  consumers  for  obtaining 
goods or services through means other than the online intermediation services, in the terms and 
conditions used by providers of online intermediation services.  

Article 9 establishes a requirement for a provider of online intermediation services to provide for 
an internal system for handling complaints of business users together with requirements relating 
to the handling of such complaints, including obligations to duly consider complaints swiftly and 
effectively and communicate the outcome clearly and unambiguously to the business user. It also 
establishes  the  requirement  to  include  certain  information  on  the  internal  complaint-handling 
system in the terms and conditions. In addition, it establishes an obligation on providers of online 
intermediation services to publish reports on the number of complaints lodged, the subject matter 
of the complaints, the time period needed to process the complaints and the decision taken on the 
complaints.  

Article 10 establishes a requirement for providers of online intermediation services to list in their 
terms and conditions one or more mediators with which the provider is willing to engage to reach 
an agreement out of court on a dispute, for instance where an issue has not been resolved by the 
internal complaint handling system (established under Article 9). In addition, it establishes certain 
requirements for the mediators, including impartiality, accessibility, competency and resources as 
well as an obligation for the providers of online intermediation services to engage in mediation in 
good  faith.  The  requirements  in  the  Article  are  without  prejudice  to  the  right  of  either  party  to 
initiate judicial proceedings.  

Article  11  establishes  a  requirement  for  the  Commission  to  encourage  providers  of  online 
intermediation  services  to  individually  or  jointly  set  up  one  or  more  independent  mediator 
organisations to facilitate the settlement, out of court, of disputes that arise in the course of online 
intermediation services, particularly given their cross-border nature.  

Article  12  establishes  a  right  for  judicial  proceedings  to  be  brought  by  representative 
organisations, associations or public bodies to stop or prohibit any non-compliance by providers 
of online intermediation services with the requirements contained in the Regulation. In addition, it 
requires representative organisations and associations to meet certain requirements such as having 
a  non-profit  making  character,  establishment  as  a  legal  entity  under  the  law  of  the  relevant 
Member State, and pursue objectives that are in the collective interests of the business users they 
represent.  

Article  13  establishes  a  requirement  for  the  Commission  to  encourage  providers  of  online 
intermediation  services  as  well  as  of  online  search  engines,  and  organisations  and  associations 
representing them, to draw up codes of conduct.  

Article 14 establishes a requirement for the Commission to regularly evaluate the Regulation, for 
the first time three years after the date the Regulation enters into force.  

Article 15 establishes the date the Regulation shall apply six months from the date of publication. 

EN 

11 

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2018/0112 (COD) 

Proposal for a 

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

on promoting fairness and transparency for business users of online intermediation services 

(Text with EEA relevance) 

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, 

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 114 thereof, 

Having regard to the proposal from the European Commission, 

After transmission of the draft legislative act to the national parliaments, 
Having regard to the opinion of the European Economic and Social Committee1,  
Having regard to the opinion of the Committee of the Regions2,  

Acting in accordance with the ordinary legislative procedure, 

Whereas: 

(1) 

(2) 

(3) 

Online intermediation services are key enablers of entrepreneurship, 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 also allow consumers in the Union to exploit those 
benefits, in particular by increasing their choice of goods and services offered online.  

Online  intermediation  services  can  be  crucial  for  the  commercial  success  of  undertakings  who  use 
such  services  to  reach  consumers.  The  growing  intermediation  of  transactions  through  online 
intermediation services, fuelled by strong data-driven indirect network effects, lead to an increased 
dependence  of  such  business  users,  including  micro,  small  and  medium-sized  enterprises,  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  effectively  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. 

Similarly, online search engines can be important sources of Internet traffic for undertakings which 
offer  goods  or  services  to  consumers  through  websites  and  can  therefore  significantly  affect  the 
commercial  success  of  such  corporate  website  users  offering  their  goods  or  services  online  in  the 
internal  market.  In  this  regard,  the  ranking  of  websites  by  providers  of  online  search  engines, 
including of those websites through which corporate website users offer their goods and services to 
consumers,  has  an  important  impact  on  consumer  choice  and  the  commercial  success  of  those 
corporate  website  users.  Even  in  the  absence  of  a  contractual  relationship  with  corporate  website 
users, providers of online search engines can therefore effectively behave unilaterally in a way that 

1 
2 

OJ C , , p. . 
OJ C , , p. . 

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(4) 

(5) 

(6) 

(7) 

(8) 

can  be  unfair  and  that  can  be  harmful  to  the  legitimate  interests  of  corporate  website  users  and, 
indirectly, also of consumers in the Union.  

The dependence of business users on online intermediation services also leads to a situation 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. 

Online  intermediation  services  and  online  search  engines,  as  well  as  the  commercial  transactions 
facilitated by those services, have an intrinsic cross-border potential and are of particular importance 
for the proper functioning of the Union's internal market in today's economy. The potentially unfair 
and harmful trading practices of certain providers of those services in respect of business users and 
corporate website users hamper the full realisation of that potential and negatively affect the proper 
functioning of the internal market. In addition, the full realisation of that potential is hampered, and 
the  proper  functioning  of  the  internal  market  is  negatively  affected,  by  diverging  laws  of  certain 
Member  States  which,  with  a  varying  degree  of  effectiveness,  regulate  those  services,  while  other 
Member States are considering adopting such laws.  

A  uniform  and  targeted  set  of  mandatory  rules  should  therefore  be  established  at  Union  level  to 
ensure  a  fair,  predictable,  sustainable  and  trusted  online  business  environment  within  the  internal 
market  by  ensuring,  in  particular,  that  the  business  users  of  online  intermediation  services  are 
afforded  appropriate  transparency  as  well  as  effective  redress  possibilities  throughout  the  Union. 
Those  rules  should  also  provide  for  appropriate  transparency  as  regards  the  ranking  of  corporate 
website  users  in  the  search  results  generated  by  online  search  engines.  At  the  same,  those  rules 
should  be  such  as  to  safeguard  the  important  innovation  potential  of  the  wider  online  platform 
economy.  

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. 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 the 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.  

A wide variety of business-to-consumer commercial 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 either online, on the online portal of the provider of the online intermediation 
services  in  question  or  that  of  the  business  user,  or  offline.  In  addition,  the  services  should  be 
provided on the basis of  contractual relationships both between the providers and business users and 
between the providers and the consumers. Such a contractual relationship should be deemed to exist 
where  both  parties  concerned  express  their  intention  to  be  bound  in  an  unequivocal  and  verifiable 
manner, without an express written agreement necessarily being required. 

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(9) 

(10) 

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  and  online  social  media  services.  However,  this  Regulation 
should  not  apply  to  online  advertising  serving  tools  or  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.  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.  

In line with the relevant case-law of the Court of Justice of the European Union and in 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  is  to  be  understood  as  referring 
solely to natural persons, where they are acting for purposes which are outside their trade, business, 
craft or profession. 

(11)  For reasons of consistency, the definition of online search engine used in this Regulation should be 
aligned with the definition used in Directive (EU) 2016/1148 of the European Parliament and of the 
Council3.   

(12) 

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  not 
individually negotiated by the parties to them. Whether or not terms and conditions were individually 
negotiated should be determined on the basis of an overall assessment, whereby the fact that certain 
provisions thereof may have been individually negotiated is, in itself, not decisive. 

(13)  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  clear  and  unambiguous  language  which  is  easily 
understood by an average business user. Terms and conditions should not be considered to have been 
drafted  in  clear  and  unambiguous  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.  

(14)  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  contractual  relationship,  including  to  prospective  business 
users  at the pre-contractual phase, and that any modifications to those terms are notified to business 
users  within  a  set  notice  period  which  is  reasonable  and  proportionate  in  light  of  the  specific 
circumstances and which is at least 15 days. 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  modification  without  respecting  the  notice  period  stems 
from a legal obligation incumbent on the service provider under Union or national law. 

(15) 

In order to protect business users it should be possible for a competent court to establish that non-
compliant terms and conditions are not binding on the business user concerned, with effects ex nunc. 
Any such finding by a court should however only concern the specific provisions of the terms and 
conditions which are not compliant. The remaining provisions should remain valid and enforceable, 

3 

Directive (EU) 2016/1148 of the European Parliament and of the Council concerning measures for a high common level 
of security of network and information systems across the Union (OJ L 194, 19.7.2016, p. 1). 

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14 

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in as far as they can be severed from the non-compliant provisions. Sudden modifications 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,  modifications  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.  

(16)  A  provider  of  online  intermediation  services  can  have  legitimate  reasons  to  decide  to  suspend  or 
terminate  the  provision  of  its  services,  in  whole  or  in  part,  to  a  given  business  user,  including  by 
delisting individual goods or services of a given business user or effectively removing search results. 
However,  given  that  such  decisions  can  significantly  affect  the  interests  of  the  business  user 
concerned, they should be properly informed of the reasons thereof. The statement of reasons should 
allow business users to ascertain whether there is scope to challenge the decision, thereby improving 
the possibilities for business users to seek effective redress where necessary. In addition, requiring a 
statement  of  reasons  should  help  to  prevent  or  remedy  any  unintended  removal  of  online  content 
provided by business users which the provider incorrectly considers to be illegal content, in line with 
Commission  Recommendation  (EU)  No  2018/3344.  The  statement  of  reasons  should  identify  the 
objective ground or grounds for the decision, based on the grounds that the provider had set out in 
advance  in  its  terms  and  conditions,  and  refer  in  a  proportionate  manner  to  the  relevant  specific 
circumstances that led to that decision. 

(17)  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.  Providers  of  online  intermediation  services 
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 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.  The  description  of  the  main  parameters  determining  ranking  should  also  include  an 
explanation of any possibility for business users to actively influence ranking against remuneration, 
as  well  as  of  the  relative  effects  thereof.  This  description  should  provide  business  users  with  an 
adequate  understanding  of  how  the  ranking  mechanism  takes  account  of  the  characteristics  of  the 
actual  goods  or  services  offered  by  the  business  user,  and  their  relevance  to  the  consumers  of  the 
specific online intermediation services. 

(18)  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,  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 
their  optimisation  for  display  on  mobile 
characteristics  of 
telecommunications  devices,  is  taken  into  account.  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. To ensure predictability for corporate website users, the description should also be kept up to 
date,  including  the  possibility  that  any  changes  to  the  main  parameters  should  be  made  easily 

the  website  used,  such  as 

4 

Commission  Recommendation  (EU)  No  2018/334  of  1  March  2018  on  measures  to  effectively  tackle  illegal  content 
online (OJ L 63, 6.3.2018, p. 50).   

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identifiable. Whilst the providers are under no circumstances required to disclose any trade secrets as 
defined in Directive (EU) 2016/943 of the European Parliament and of the Council5 when complying 
with this requirement to disclose the main ranking parameters, the description given should at least 
be based on actual data on the relevance of the ranking parameters used. 

(19)  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 may compete directly with other business users of its online intermediation 
services which are not controlled by the provider. In such situations, in particular, it is important that 
the provider of online intermediation services 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 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. 

(20)  The ability to access and use data, including personal data, can enable important value creation in the 
online  platform  economy.  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, in order to enable business users to understand whether they can use the data to 
enhance  value  creation,  including  by  possibly  retaining  third-party  data  services.  Processing  of 
personal data should comply with Regulation (EU) 2016/679 of the European Parliament and of the 
Council.6 

(21)  Providers of online intermediation services might in certain cases restrict in the terms and conditions 
the  ability  of  business  users  to  offer  goods  or  services  to  consumers  under  more  favourable 
conditions through other means than through those online intermediation services. In those cases, the 
providers concerned should set out the grounds for doing so, in particular with reference to the main 
economic,  commercial  or  legal  considerations  for  the  restrictions.  This  transparency  obligation 
should  however  not  be  understood  as  affecting  the  assessment  of  the  legality  of  such  restrictions 
under other acts of Union law or the law of Member States in accordance with Union law, including 
in the areas of competition and unfair commercial practices, and the application of such laws. 

(22) 

In  order  to  enable  business  users,  including  those  whose  use  of  the  relevant  online  intermediation 
services  might  have  been  suspended  or  terminated,  to  have  access  to  immediate,  suitable  and 
effective  redress  possibilities,  providers  of  online  intermediation  services  should  provide  for  an 
internal  complaint-handling  system.  That  internal  complaint-handling  system  should  be  aimed  at 
ensuring that a significant proportion of complaints can be solved bilaterally by the provider of the 
online intermediation services and the relevant business user. In addition, ensuring that providers of 
online  intermediation  services  publish  information  on  the  functioning  and  effectiveness  of  their 
internal complaint-handling system should help business users to understand the 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. 

5 

6 

Directive (EU) 2016/943 of the European Parliament and of the Council of 8 June 2016 on the protection of undisclosed 
know-how  and  business  information  (trade  secrets)  against  their  unlawful  acquisition,  use  and  disclosure  (OJ  L  157, 
15.6.2016, p. 1).  
Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural 
persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 
95/46/EC (General Data Protection Regulation) (Text with EEA relevant) (OJ L 119, 4.5.2016, p. 1). 

    EN 

16 

  EN 

 
                                                 
(23)  The  requirements  of  this  Regulation  regarding  the  internal  complaint-handling  systems  aim  at 
allowing  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  cases other than any alleged 
non-compliance  with  the  legal  obligations  of  this  Regulation,  the  internal  complaint-handling 
systems should moreover not be open to complaints involving only negligible negative effects on the 
business  user  concerned.  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/EC7.  

(24)  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  mediators  with  which  they  are  willing  to  engage.  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. 

(25)  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 aim, the mediator 
should  suggest  which  proportion  is  reasonable  in  the  individual  case.  However,  that  proportion 
should never be less than half of those costs.  

(26) 

In  order  to  facilitate  the  settlement  of  disputes  relating  to  the  provision  of  online  intermediation 
services  using  mediation  in  the  Union,  the  Commission  should  encourage  the  setting  up  of 
specialised  mediation  organisations,  which  are  currently  lacking.  The  involvement  of  mediators 
having specialist knowledge of online intermediation services and online search engines as well as of 
the specific industry sectors within which those services are provided should add to the confidence 
both parties have in the mediation process and should increase the likelihood of that process leading 
to a swift, just and satisfactory outcome. 

(27)  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. 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.  Considering  the 
particular status of the relevant public bodies in Member States where such bodies have been set up, 
it should only be required that those have been specifically charged, in accordance with the relevant 

7 

Commission Recommendation 2003/361/EC of 6 May 2003 concerning the definition of micro, small and medium-sized 
enterprises (OJ L 124, 20.5.2003, p36).  

    EN 

17 

  EN 

 
                                                 
rules  of  national  law,  with  bringing  such  actions  either  in  the  collective  interest  of  the  parties 
concerned or in the general interest, without there being a need to apply those criteria to such public 
bodies.  Any  such  actions  should  in  no  way  affect  the  rights  of  the  business  users  and  corporate 
website users to take judicial action on an individual basis. 

(28)  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 micro, small and medium-sized enterprises.  

(29)  The  Commission  should  periodically  evaluate  this  Regulation,  in  particular  with  a  view  to 
determining the need for amendments in light of relevant technological or commercial developments.  

(30)  When providing the information required under this Regulation, account should be taken as much as 
possible of the particular needs of persons with disabilities, in line with the objectives of the United 
Nations Convention on the Rights of Persons with Disabilities8. 

(31)  As  the  objective  of  this  Regulation,  namely  to  ensure  a  fair,  predictable,  sustainable  and  trusted 
online  business  environment  within  the  internal  market,  cannot  be  sufficiently  achieved  by  the 
Member States, but can rather, by reason of its scale and effects, be better achieved at Union level, 
the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 
of the Treaty on European Union. In accordance with the principle of proportionality, as set out in 
that Article, this Regulation does not go beyond what is necessary in order to achieve that objective. 

(32) 

It is appropriate to clarify that this Regulation should not affect the application of the relevant rules 
of Union law applicable in the areas of judicial cooperation in civil matters, competition, consumer 
protection, electronic commerce and financial services.  

(33)  This Regulation seeks to ensure full respect for the right to an effective remedy and to a fair trial and 
promote the application of the freedom to provide a business, laid down in Article 47 and Article 16 
of the Charter of Fundamental Rights of the European Union respectively. 

HAVE ADOPTED THIS REGULATION: 

Article 1 

Subject-matter and scope 

This Regulation lays 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 
and effective redress possibilities. 

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 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. 

United  Nations  Convention  on 
https://www.un.org/development/desa/disabilities/convention-on-the-rights-of-persons-with-disabilities.html 

the  Rights  of  Persons  with  Disabilities 

(UNCRPD),  available  at: 

1. 

2. 

8 

    EN 

18 

  EN 

 
 
 
 
                                                 
Article 2 

Definitions 

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

(1)  

'business  user'  means  any  natural  or  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)  

(b)  

(c)  

they constitute information society services within the meaning of Article 1(1)(b) of Directive 
(EU) No 2015/1535 of the European Parliament and of the Council9; 

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; 

they are provided to business users on the basis of contractual relationships between, on the 
one hand, the provider of those services and, on the other hand, both those business users and 
the consumers to which those business users offer goods or services; 

'provider  of  online  intermediation  services'  means  any  natural  or  legal  person  which  provides,  or 
which offers to provide, online intermediation services to business users; 

'consumer' means any natural person who is acting for purposes which are outside his or her trade, 
business, craft or profession; 

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

'provider of online search engine' means any natural or legal person which provides, or which offers 
to provide, online search engines to consumers; 

'corporate  website  user'  means  any  natural  or  legal  person  which  uses  websites  to  offer  goods  or 
services to consumers for purposes relating to its trade, business, craft or profession; 

'ranking'  means  the  relative  prominence  given  to  the  goods  or  services  offered  to  consumers  by 
business  users  through  online  intermediation  services,  or  to  websites  indexed  for  consumers  by 
online  search  engines,  as  presented,  organised  or  communicated  to  those  consumers  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; 

'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) 139/200410; 

'terms  and  conditions'  means  all  terms,  conditions,  clauses  and  other  information,  irrespective  of 
their  name  or  form,  which  govern  the  contractual  relationship  between  the  provider  of  online 
intermediation services and their business users and are unilaterally determined by the provider of 
online intermediation services. 

Directive (EU) 2015/1535 of the European Parliament and of the Council of 9 September 2015 laying down a procedure 
for the provision of information in the field of technical regulations and of rules on Information Society services (OJ L 
241, 17.9.2015, p. 1). 
Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the 
EC Merger Regulation) (OJ L 24, 29.1.2004, p. 1). 

(3) 

(4) 

(5)  

(6) 

(7) 

(8) 

(9) 

(10) 

9 

10 

    EN 

19 

  EN 

 
                                                 
1. 

Providers of online intermediation services shall ensure that their terms and conditions:  

Article 3 

Terms and conditions 

(a) 

(b) 

(c) 

are drafted in clear and unambiguous language;  

are easily available for business users at all stages of their commercial relationship with the 
provider of online intermediation services, including in the pre-contractual stage;   

set out the objective  grounds for decisions  to  suspend  or  terminate, in whole or  in part,  the 
provision of their online intermediation services to business users.  

Terms and conditions, or specific provisions thereof, which do not comply with the requirements of 
paragraph  1  shall  not  be  binding  on  the  business  user  concerned  where  such  non-compliance  is 
established by a competent court.  

Providers  of  online  intermediation  services  shall  notify  to  the  business  users  concerned  any 
envisaged modification of their terms and conditions.  

The envisaged modifications shall not be implemented before the expiry of a notice period which is 
reasonable  and  proportionate  to  the nature and  extent  of  the  envisaged modifications  and  to  their 
consequences for the business user concerned. That notice period shall be at least 15 days from the 
date on which the provider of online intermediation services notifies the business users concerned 
about the envisaged modifications. 

The  business  user  concerned  may,  either  by  means  of  a  written  statement  or  a  clear  affirmative 
action, waive the notice period referred to in the second subparagraph.  

Modifications to terms and conditions implemented by a provider of online intermediation services 
contrary to the provisions of paragraph 3 shall be null and void.  

Paragraph 3 shall not apply where a provider of online intermediation services is subject to a legal 
obligation which requires it to modify its terms and conditions in a manner which does not allow it 
to respect the notice period referred to in the second subparagraph of paragraph 3.  

Article 4 

Suspension and termination 

Where a provider of online intermediation services decides to suspend or terminate, in whole or in 
part, the provision of its online intermediation services to a given business user, it shall provide the 
business user concerned, without undue delay, with a statement of reasons for that decision.  

The statement of reasons referred to in paragraph 1 shall contain a reference to the specific facts or 
circumstances that led to the decision of the provider of online intermediation services, as well as a 
reference  to  the  applicable  objective  ground  or  grounds  for  that  decision  referred  to  in  Article 
3(1)(c). 

2. 

3.  

4.  

5.  

1. 

2. 

    EN 

20 

  EN 

 
 
 
1. 

2. 

3.  

4. 

1. 

2. 

Article 5 

Ranking 

Providers  of  online  intermediation  services  shall  set  out  in  their  terms  and  conditions  the  main 
parameters  determining  ranking  and  the  reasons  for  the  relative  importance  of  those  main 
parameters as opposed to other parameters. 

Where  those  main  parameters  include  the  possibility  to  influence  ranking  against  any  direct  or 
indirect  remuneration  paid  by  business  users  to  the  provider  of  online  intermediation  services 
concerned,  that  provider  of  online  intermediation  services  shall  also  include  in  its  terms  and 
conditions a description of those possibilities and of the effects of such remuneration on ranking. 

Providers  of  online  search  engines  shall  set  out  for  corporate  website  users  the  main  parameters 
determining ranking, by providing an easily and publicly available description, drafted in clear and 
unambiguous  language  on  the  online  search  engines  of  those  providers.  They  shall  keep  that 
description up to date. 

The descriptions referred to in paragraphs 1 and 2 shall be sufficient to enable the business users or 
corporate website users to obtain an adequate understanding of whether, and if so how and to what 
extent, the ranking mechanism takes account of the following:  

(a) 

(b) 

(c) 

the  characteristics  of  the  goods  and  services  offered  to  consumers  through  the  online 
intermediation services or the online search engine;  

the relevance of those characteristics for those consumers;   

as regards online search engines, the design characteristics of the website used by corporate 
website users.  

Providers  of  online  intermediation  services  and  providers  of  online  search  engines  shall,  when 
complying  with  the  requirements  of  this  Article,  not  be  required  to  disclose  any  trade  secrets  as 
defined in Article 2(1) of Directive (EU) 2016/943. 

Article 6 

Differentiated treatment 

Providers of online intermediation services shall include in their terms and conditions a description 
of any differentiated treatment which they give, or may give, in relation to, on the one hand, goods 
or  services  offered  to  consumers  through  those  online  intermediation  services  by  either  that 
provider  itself  or  any  business  users  which  that  provider  controls  and,  on  the  other  hand,  other 
business users.  

The description referred to in paragraph 1 shall cover at least, where applicable, any differentiated 
treatment  through  specific  measures  taken  by,  or  the  behaviour  of,  the  provider  of  the  online 
intermediation services relating to any of the following:  

(a) 

access that the provider, or that the business users which that provider controls, may have to 
any personal data or other data, or both, which business users or consumers provide for the 
use  of  the  online  intermediation  services  concerned  or  which  are  generated  through  the 
provision of those services; 

(b) 

ranking; 

(c) 

any direct or indirect remuneration charged for the use of the online intermediation services 
concerned; 

    EN 

21 

  EN 

 
(d) 

access  to,  or  conditions  for  use  of,  services  that  are  directly  connected  or  ancillary  to  the 
online intermediation services concerned. 

Article 7 

Access to data 

1. 

2. 

Providers of online intermediation services shall include in their terms and conditions a description 
of the technical and contractual access, or absence thereof, of business users to any personal data or 
other  data,  or  both,  which  business  users  or  consumers  provide  for  the  use  of  the  online 
intermediation services concerned or which are generated through the provision of those services.  

Through the description referred to in paragraph 1, providers of online intermediation services shall 
adequately inform business users at least of the following: 

(a)  whether  the  provider  of  online  intermediation  services  has  access  to  personal  data  or  other 
data,  or  both,  which  business  users  or  consumers  provide  for  the  use  of  those  services  or 
which are generated through the provision of those services, and if so, to which categories of 
such data and under what conditions;  

(b)  whether a business user has access to personal data or other data, or both, provided by that 
business user in connection to his or her use of the online intermediation services concerned 
or generated through the provision of those services to that business user and the consumers 
of  his  or  her  goods  or  services,  and  if  so,  to  which  categories  of  such  data  and  under  what 
conditions; 

(c)  whether, in addition to point (b), a business user has access to personal data or other data, or 
both,  including  in  aggregated  form,  provided  by  or  generated  through  the  provision  of  the 
online intermediation services to all of the business users and consumers thereof, and if so, to 
which categories of such data and under what conditions. 

Restrictions to offer different conditions through other means   

Article 8 

1. 

2.  

Where,  in  the  provision  of  their  services,  providers  of  online  intermediation  services  restrict  the 
ability of business users to offer the same goods and services to consumers under different conditions 
through  other  means  than  through  those  services,  they  shall  include  grounds  for  that  restriction  in 
their terms and conditions and make those grounds easily available to the public. Those grounds shall 
include the main economic, commercial or legal considerations for those restrictions. 

The obligation set out in paragraph 1 shall not affect any prohibitions or limitations in respect of the 
imposition of such restrictions that result from the application of other Union rules or from national 
rules that are in accordance with Union law and to which the providers of the online intermediation 
services are subject. 

    EN 

22 

  EN 

 
 
 
Article 9 

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 for business users. It shall allow 
them  to  lodge  complaints  directly  with  the  provider  concerned  regarding  any  of  the  following 
issues:  

(a) 

(b) 

alleged  non-compliance  by  that  provider  with  any  legal  obligations  laid  down  in  this 
Regulation which negatively affects the complainant; 

technological issues which relate directly to the provision of online intermediation services, 
and which negatively affect the complainant in a non-negligible manner; 

(c)  measures taken by, or behaviour of, that provider which relate directly to the provision of the 
online  intermediation  services,  and  which  negatively  affect  the  complainant  in  a  non-
negligible manner. 

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, in a manner which is proportionate 
to the importance and complexity of that issue; 

(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 clear and unambiguous language. 

Providers of online intermediation services shall include in their terms and conditions all relevant 
information relating to the access to and functioning of their internal complaint-handling system.  

Providers of online intermediation services shall annually establish and make easily available to the  
public information on the functioning and effectiveness of their internal complaint-handling system.  

That  information  shall  include  the  total  number  of  complaints  lodged,  the  subject-matter  of  the 
complaints,  the  time  period  needed  to  process  the  complaints  and  the  decision  taken  on  the 
complaints.   

The provisions of this Article shall not apply to providers of online intermediation services that are 
small  enterprises  within  the  meaning  of  Article  2  (2)  of  the  Annex  to  Recommendation 
2003/361/EC11.  

Commission Recommendation 2003/361/EC of 6 May 2003 concerning the definition of micro, small and medium-sized 
enterprises (OJ L 124, 20.5/2003, p. 36). 

3. 

4. 

5. 

11 

    EN 

23 

  EN 

 
 
 
                                                 
Article 10 

Mediation  

1. 

Providers of online intermediation services shall identify in their terms and conditions one 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 9.  

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) 

(b) 

(c) 

(d) 

(e) 

(f) 

they are impartial and independent; 

their  mediation  services  are  affordable  for  an  average  business  user  of  the  online 
intermediation services concerned; 

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; 

they are easily  accessible either physically in  the place of establishment or  residence of the 
business user, or remotely using communication technologies; 

they are capable of providing their mediation services without undue delay; 

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. 

4. 

5. 

Providers  of  online  intermediation  services  shall  engage  in  good  faith  in  any  attempt  to  reach  an 
agreement through the mediation of any of the mediators which they identified in accordance with 
paragraph 1, with a view to reaching an agreement on the settlement of the dispute. 

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.  However, 
providers of online intermediation services shall in any case bear at least half of the total cost. 

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 the online intermediation services and 
of  the  business  users  concerned  to  initiate  judicial  proceedings  at  any  time  during  or  after  the 
mediation process. 

    EN 

24 

  EN 

 
 
Article 11 

Specialised mediators 

The  Commission  shall  encourage  providers  of  online  intermediation  services  as  well  as  organisations  and 
associations  representing  them  to  individually  or  jointly  set  up  one  or  more  organisations  providing 
mediation  services  which  meet  the  requirements  specified  in  Article  10(2),  for  the  specific  purpose  of 
facilitating the out-of-court settlement of disputes with business users arising in relation to the provision of 
those services, taking particular account of the cross-border nature of online intermediation services.  

Article 12 

Judicial proceedings by representative organisations or associations and by public bodies 

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 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.  

Organisations or associations shall have the right referred to in paragraph 1 only where, at the time 
of bringing the action, they meet all of the following requirements: 

(a) 

(b) 

they are properly constituted according to the law of a Member State; 

they  pursue  objectives  that  are  in  the  collective  interest  of  the  group  of  business  users  or 
corporate website users that they represent; 

(c) 

they are of a non-profit making character.  

In  Member  States  where  such  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.  

The right referred to in paragraph 1 shall be without prejudice to the rights of business users and 
corporate website users to individually take action before competent national courts, in accordance 
with  the  rules  of  the  law  of  the  Member  State  where  the  action  is  brought,  to  address  any  non-
compliance by providers of online intermediation services with the relevant requirements laid down 
in this Regulation. 

Article 13 

Codes of conduct 

The  Commission  shall  encourage  the  drawing  up  of  codes  of  conduct  by  providers  of  online 
intermediation  services  and  by  organisations  and  associations  representing  them,  intended  to 
contribute to the proper application of this Regulation, taking account of the specific features of the 
various  sectors  in  which  online  intermediation  services  are  provided,  as  well  as  of  the  specific 
characteristics of micro, small and medium-sized enterprises.  

The Commission shall encourage the drawing up of codes of conduct by providers of online search 
engines  and  by  organisations  and  associations  representing  them,  intended  to  contribute  to  the 
proper application of Article 5(2) and (3). 

1. 

2. 

3.  

1. 

2.  

    EN 

25 

  EN 

 
 
 
 
Article 14 

Review 

By  [date:  three  years  after  the  date  of  entry  into  force],  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.  

The first evaluation of this Regulation shall be carried out, in particular, with a view to assessing 
the compliance with, and impact on the online platform economy of, the obligations laid down in 
Articles  5,  6,  7  and  8,  and  whether  additional  rules,  including  regarding  enforcement,  may  be 
required  to  ensure  a  fair,  predictable,  sustainable  and  trusted  online  business  environment  within 
the internal market.  

Member  States  shall  provide  any  relevant  information  that  the  Commission  may  require  for  the 
purposes of drawing up the report referred to in paragraph 1.  

In  carrying  out  the  evaluation  of  this  Regulation,  the  Commission  shall  take  into  account  the 
opinions  and  reports  presented  to  it  by  the  group  of  experts  for  the  Observatory  on  the  Online 
Platform Economy established in accordance with the Commission Decision C(2018)2393. It shall 
also take into account the content and functioning of any codes of conduct referred to in Article 13, 
where appropriate.  

Article 15 

Entry into force and application 

This Regulation shall enter into force on the twentieth day following that of its publication in the 
Official Journal of the European Union. 

It shall apply from [date: six months following the day of its publication]. 

1. 

2. 

3. 

4.  

1. 

2. 

This Regulation shall be binding in its entirety and directly applicable in all Member States. 

Done at Brussels, 

For the European Parliament 
The President 

For the Council 
The President 

    EN 

26 

  EN