Source: EURLEX
Language: en
Format: md

**EUROPEAN UNION**

**THE EUROPEAN PARLIAMENT** **THE COUNCIL**

**Brussels, 24 May 2019**
**(OR. en)**

**2018/0112 (COD)** **PE-CONS 56/19**

**MI 181**

**COMPET 163**

**DIGIT 41**

**IND 56**

**TELECOM 76**

**PI 39**

**AUDIO 32**

**JUSTCIV 63**

**CODEC 491**

**LEGISLATIVE ACTS AND OTHER INSTRUMENTS**

Subject: REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE
COUNCIL on promoting fairness and transparency for business users of
online intermediation services

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**REGULATION (EU) 2019/…**

**OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL**

**of …**

**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 Committee **[1]**,

After consulting the Committee of the Regions,

Acting in accordance with the ordinary legislative procedure **[2]**,

**1** OJ C 440, 6.12.2018, p. 177.
**2** Position of the European Parliament of 17 April 2019 (not yet published in the Official
Journal) and Decision of the Council of ….

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Whereas:

(1) Online intermediation services are key enablers of entrepreneurship and new business

models, trade and innovation, which can also improve consumer welfare and which are

increasingly used by both the private and public sectors. They offer access to new markets

and commercial opportunities allowing undertakings to exploit the benefits of the internal

market. They allow consumers in the Union to exploit those benefits, in particular by

increasing their choice of goods and services, as well as by contributing to offering

competitive pricing online, but they also raise challenges that need to be addressed in order

to ensure legal certainty.

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(2) Online intermediation services can be crucial for the commercial success of undertakings

who use such services to reach consumers. To fully exploit the benefits of the online

platform economy, it is therefore important that undertakings can trust online

intermediation services with which they enter into commercial relationships. This is

important mainly because the growing intermediation of transactions through online

intermediation services, fuelled by strong data-driven indirect network effects, leads to an

increased dependence of such business users, particularly micro, small and medium-sized

enterprises (SMEs), on those services in order for them to reach consumers. Given that

increasing dependence, the providers of those services often have superior bargaining

power, which enables them to, in effect, behave unilaterally in a way that can be unfair and

that can be harmful to the legitimate interests of their businesses users and, indirectly, also

of consumers in the Union. For instance, they might unilaterally impose on business users

practices which grossly deviate from good commercial conduct, or are contrary to good

faith and fair dealing. This Regulation addresses such potential frictions in the online

platform economy.

(3) Consumers have embraced the use of online intermediation services. A competitive, fair,

and transparent online ecosystem where companies behave responsibly is also essential for

consumer welfare. Ensuring the transparency of, and trust in, the online platform economy

in business-to-business relations could also indirectly help to improve consumer trust in the

online platform economy. Direct impacts of the development of the online platform

economy on consumers are, however, addressed by other Union law, especially the

consumer acquis.

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(4) 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, in effect, behave unilaterally in a way that can be

unfair and that can be harmful to the legitimate interests of corporate website users and,

indirectly, also of consumers in the Union.

(5) The nature of the relationship between providers of online intermediation services and

business users might also lead to situations in which business users often have limited

possibilities to seek redress where unilateral actions of the providers of those services lead

to a dispute. In many cases, those providers do not offer accessible and effective internal

complaint-handling systems. Existing alternative out-of-court dispute settlement

mechanisms can also be ineffective for a variety of reasons, including a lack of specialised

mediators and business users’ fear of retaliation.

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(6) Online intermediation services and online search engines, as well as the 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 commercial practices of certain providers of those

services, and the lack of effective redress mechanisms, hamper the full realisation of that

potential and negatively affect the proper functioning of the internal market.

(7) A targeted set of mandatory rules should be established at Union level to ensure a fair,

predictable, sustainable and trusted online business environment within the internal market.

In particular, business users of online intermediation services should be afforded

appropriate transparency, as well as effective redress possibilities, throughout the Union in

order to facilitate cross-border business within the Union and thereby improve the proper

functioning of the internal market and to address possible emerging fragmentation in the

specific areas covered by this Regulation.

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(8) Those rules should also provide for appropriate incentives to promote fairness and

transparency, especially as regards the ranking of corporate website users in the search

results generated by online search engines. At the same time, those rules should recognise

and safeguard the important innovation potential of the wider online platform economy and

allow for healthy competition leading to increased consumer choice. It is appropriate to

clarify that this Regulation should not affect national civil law, in particular contract law,

such as the rules on the validity, formation, effects or termination of a contract, in so far as

the national civil law rules are in conformity with Union law and to the extent that the

relevant aspects are not covered by this Regulation. Member States should remain free to

apply national laws which prohibit or sanction unilateral conduct or unfair commercial

practices to the extent that the relevant aspects are not covered by this Regulation.

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(9) Since online intermediation services and online search engines typically have a global

dimension, this Regulation should apply to providers of those services regardless of

whether they are established in a Member State or outside the Union, provided that two

cumulative conditions are met. Firstly, the business users or corporate website users should

be established in the Union. Secondly, the business users or corporate website users

should, through the provision of those services, offer their goods or services to consumers

located in the Union at least for part of the transaction. In order to determine whether

business users or corporate website users are offering goods or services to consumers

located in the Union, it is necessary to ascertain whether it is apparent that the business

users or corporate website users direct their activities to consumers located in one or more

Member States. This criterion should be interpreted in accordance with the relevant case

law of the Court of Justice of the European Union on point (c) of Article 17(1) of

Regulation (EC) No 1215/2012 of the European Parliament and of the Council **[1]** and point

(b) of Article 6(1) of Regulation (EC) No 593/2008 of the European Parliament and of the

Council **[2]** . Such consumers should be located in the Union, but do not need to have their

place of residence in the Union nor have the nationality of any Member State. Accordingly,

this Regulation should not apply where business users or corporate websites users are not

established in the Union or where they are established in the Union but where they use

online intermediation services or online search engines to offer goods or services

exclusively to consumers located outside the Union or to persons who are not consumers.

Furthermore, this Regulation should apply irrespective of the law otherwise applicable to a

contract.

**1** Regulation (EU) No 1215/2012 of the European Parliament and of the Council of
12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil
and commercial matters, (OJ L 351, 20.12.2012, p. 1).
**2** Regulation (EC) No 593/2008 of the European Parliament and of the Council of
17 June 2008 on the law applicable to contractual obligations (Rome I), (OJ L 177,
4.7.2008, p. 6).

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(10) A wide variety of business-to-consumer relations are intermediated online by providers

operating multi-sided services that are essentially based on the same ecosystem-building

business model. In order to capture the relevant services, online intermediation services

should be defined in a precise and technologically-neutral manner. In particular, the

services should consist of information society services, which are characterised by the fact

that they aim to facilitate the initiating of direct transactions between business users and

consumers, irrespective of whether the transactions are ultimately concluded online, on the

online portal of the provider of online intermediation services in question or that of the

business user, offline or in fact not at all, meaning that there should be no requirement for

any contractual relationship between the business users and consumers as a precondition

for online intermediation services falling within the scope of this Regulation. The mere

inclusion of a service of a marginal character only should not be seen as making the aim of

a website or service the facilitation of transactions within the meaning of online

intermediation services. In addition, the services should be provided on the basis of

contractual relationships between the providers and business users which offer goods or

services to consumers. Such a contractual relationship should be deemed to exist where

both parties concerned express their intention to be bound in an unequivocal manner on a

durable medium, without an express written agreement necessarily being required.

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(11) Examples of online intermediation services covered by this Regulation should

consequently include online e-commerce market places, including collaborative ones on

which business users are active, online software applications services, such as application

stores, and online social media services, irrespective of the technology used to provide

such services. In this sense, online intermediation services could also be provided by

means of voice assistant technology. It should also not be relevant whether those

transactions between business users and consumers involve any monetary payment or

whether they are concluded in part offline. However, this Regulation should not apply to

peer-to-peer online intermediation services without the presence of business users, pure

business-to-business online intermediation services which are not offered to consumers,

online advertising tools and online advertising exchanges which are not provided with the

aim of facilitating the initiation of direct transactions and which do not involve a

contractual relationship with consumers. For the same reason, search engine optimisation

software services as well as services which revolve around advertising-blocking software

should not be covered by this Regulation. Technological functionalities and interfaces that

merely connect hardware and applications should not be covered by this Regulation, as

they normally do not fulfil the requirements for online intermediation services. However,

such functionalities or interfaces can be directly connected or ancillary to certain online

intermediation services and where this is the case, the relevant providers of online

intermediation services should be subject to transparency requirements related to

differentiated treatment based on these functionalities and interfaces. This Regulation

should also not apply to online payment services, since they do not themselves meet the

applicable requirements but are rather inherently auxiliary to the transaction for the supply

of goods and services to the consumers concerned.

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(12) In line with the relevant case-law of the Court of Justice of the European Union and in the

light of the fact that the dependent position of business users has been observed principally

in respect of online intermediation services that serve as a gateway to consumers in the

form of natural persons, the notion of consumer used to delineate the scope of this

Regulation should be understood as referring solely to natural persons, where they are

acting for purposes which are outside their trade, business, craft or profession.

(13) Considering the quick pace of innovation, the definition of online search engine used in

this Regulation should be technology-neutral. In particular, the definition should be

understood to also encompass voice requests.

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(14) Providers of online intermediation services tend to use pre-formulated terms and

conditions and in order to effectively protect business users where needed, this Regulation

should apply where the terms and conditions of a contractual relationship, regardless of

their name or form, are unilaterally determined by the provider of online intermediation

services. Whether the terms and conditions were unilaterally determined should be

evaluated case by case on the basis of an overall assessment. For that overall assessment,

the relative size of the parties concerned, the fact that a negotiation took place, or that

certain provisions thereof might have been subject to such a negotiation and determined

together by the relevant provider and business user should not, in itself, be decisive. In

addition, the obligation for providers of online intermediation services to make their terms

and conditions easily available to business users, including in the pre-contractual stage of

their commercial relationship, means that business users will not be deprived of the

transparency resulting from this Regulation as a result of them being in any way able to

successfully negotiate.

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(15) To ensure that the general terms and conditions of a contractual relationship enable

business users to determine the commercial conditions for the use, termination and

suspension of online intermediation services, and to achieve predictability regarding their

business relationship, those terms and conditions should be drafted in plain and intelligible

language. Terms and conditions should not be considered to have been drafted in plain and

intelligible language where they are vague, unspecific or lack detail on important

commercial issues and thus fail to give business users a reasonable degree of predictability

on the most important aspects of the contractual relationship. Moreover, misleading

language should not be considered to be plain and intelligible.

(16) In order to ensure that business users have sufficient clarity regarding where, and to whom,

their goods or services are being marketed, providers of online intermediation services

should ensure, towards their business users, the transparency of any additional distribution

channels and potential affiliate programmes that they might use to market those goods or

services. Additional channels and affiliate programmes should be understood in a

technologically neutral manner but could, inter alia, include other websites, apps or other

online intermediation services used to market the goods or services offered by the business

user.

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(17) The ownership and control of intellectual property rights online can have significant

economic importance for both the providers of online intermediation services and their

business users. To ensure clarity and transparency for business users and for their better

understanding, providers of online intermediation services should within their terms and

conditions include general, or more detailed, information if they so wish, regarding the

overall effects, if any, of those terms and conditions on the ownership and control of

intellectual property rights of the business user. Such information could, inter alia, include

information such as the general usage of logos, trademarks or brand names.

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(18) Ensuring transparency in the general terms and conditions can be essential to promoting

sustainable business relationships and to preventing unfair behaviour to the detriment of

business users. Providers of online intermediation services should therefore also ensure

that the terms and conditions are easily available at all stages of the commercial

relationship, including to prospective business users at the pre-contractual phase, and that

any changes to those terms are notified on a durable medium to business users concerned

within a set notice period which is reasonable and proportionate in light of the specific

circumstances and which is at least 15 days. Proportionate longer notice periods of more

than 15 days should be given where the proposed changes to the terms and conditions

require business users to make technical or commercial adaptations in order to comply

with the change, for example by requiring them to make significant technical adjustments

to their goods or services. That notice period should not apply where, and to the extent

that, it is waived in an unambiguous manner by the business user concerned or where, and

to the extent that, the need to implement the change without respecting the notice period

stems from a legal or regulatory obligation incumbent on the service provider under Union

or national law. However, proposed editorial changes should not be covered by the term

‘change’ in as far as they do not alter the content or meaning of terms and conditions. The

requirement of notifying proposed changes on a durable medium should enable business

users to review effectively these changes at a later stage. Business users should be entitled

to terminate their contract within 15 days from the receipt of the notice of any change,

unless a shorter period applies to the contract, for example as resulting from national civil

law.

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(19) In general, submitting new goods or services, including software applications, to the online

intermediation services should be considered to be clear affirmative action, resulting in the

waiving, by the business user, of the notice period required for changes to the terms and

conditions. However, in cases where the reasonable and proportionate notice period is

longer than 15 days because the changes to the terms and conditions require the business

user to make significant technical adjustments to its goods or services, the notice period

should not be considered to be automatically waived where the business user submits new

goods and services. The provider of online intermediation services should expect the

changes to terms and conditions to require the business user to make significant technical

adjustments where, for example, entire features of the online intermediation services that

business users had access to are removed or added, or where business users might need to

adapt their goods or reprogramme their services to be able to continue to operate through

the online intermediation services.

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(20) In order to protect business users and to provide legal certainty for both sides,

non-compliant terms and conditions should be null and void, that is, deemed to have never

existed, with effects _erga omnes_ and _ex tunc_ . This should however only concern the

specific provisions of the terms and conditions which are not compliant. The remaining

provisions should remain valid and enforceable, in as far as they can be severed from the

non-compliant provisions. Sudden changes to existing terms and conditions may

significantly disrupt business users’ operations. In order to limit such negative effects on

business users, and to discourage such behaviour, changes made in contravention of the

obligation to provide a set notice period should therefore be null and void, that is, deemed

to have never existed, with effects _erga omnes_ and _ex tunc_ .

(21) In order to ensure that business users can fully exploit the commercial opportunities

offered by online intermediation services, providers of these services should not

completely prevent their business users from featuring their trading identity as part of their

offering or presence on the relevant online intermediation services. However, this

prohibition of interference should not be understood as a right for business users to

unilaterally determine the presentation of their offering or presence on the relevant online

intermediation services.

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(22) A provider of online intermediation services can have legitimate reasons to decide to

restrict, suspend or terminate the provision of its services to a given business user,

including by delisting individual goods or services of a given business user or effectively

removing search results. Short of being suspended, providers of online intermediation

services can also restrict individual listings of business users; for example, through their

demotion or by negatively affecting a business user’s appearance (‘dimming’) which can

include lowering its ranking. However, given that such decisions can significantly affect

the interests of the business user concerned, they should be provided, prior to or at the time

of the restriction or suspension taking effect, with a statement of reasons for that decision

on a durable medium. To minimise the negative impact of such decisions on business

users, providers of online intermediation services should also allow an opportunity to

clarify the facts that led to that decision in the framework of the internal

complaint-handling process, which will help the business user, where this is possible, to

re-establish compliance. In addition, where the provider of online intermediation services

revokes the decision to restrict, suspend or terminate, for example because the decision

was made in error or the infringement of terms and conditions that led to this decision was

not committed in bad faith and has been remedied in a satisfactory manner, the provider

should reinstate the business user concerned without undue delay, including providing the

business user with any access to personal or other data, or both, available prior to the

decision.

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The statement of reasons regarding the decision to restrict, suspend or terminate the

provision of online intermediation services 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. The statement of reasons should

identify the 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, including third party notifications, that led to that decision.

However, a provider of online intermediation services should not be required to provide a

statement of reasons for restrictions, suspensions or terminations insofar as it would

infringe a legal or regulatory obligation. Furthermore, a statement of reasons should not be

required where a provider of online intermediation services can demonstrate that the

business user concerned has repeatedly infringed the applicable terms and conditions,

resulting in termination of the provision of the whole of the online intermediation services

in question.

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(23) The termination of the whole of the online intermediation services and the related deletion

of data provided for the use of, or generated through, the provision of online intermediation

services represent a loss of essential information which could have a significant impact on

business users and could also impair their ability to properly exercise other rights granted

to them by this Regulation. Therefore, the provider of online intermediation services

should provide the business user concerned with a statement of reasons on a durable

medium, at least 30 days before the termination of the provision of the whole of its online

intermediation services enters into effect. However, in cases where a legal or regulatory

obligation requires a provider of online intermediation services to terminate the provision

of the whole of its online intermediation services to a given business user, this notice

period should not apply. Equally, the notice period of 30 days should not apply where a

provider of online intermediation services invokes rights of termination under national law

in compliance with Union law which allow immediate termination where, taking into

account all the circumstances of the specific case and weighing the interests of both

parties, it cannot reasonably be expected to continue the contractual relationship until the

agreed end or until the expiry of a notice period. Finally, the notice period of 30 days

should not apply where a provider of online intermediation services can demonstrate a

repeated infringement of terms and conditions. The various exceptions to the 30-day notice

period can in particular arise in connection with illicit or inappropriate content, the safety

of a good or service, counterfeiting, fraud, malware, spam, data breaches, other

cybersecurity risks or suitability of the good or service to minors. In order to ensure

proportionality, providers of online intermediation services should, where reasonable and

technically feasible, delist only individual goods or services of a business user.

Termination of the whole of the online intermediation services constitutes the most severe

measure.

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(24) The ranking of goods and services by the providers of online intermediation services has

an important impact on consumer choice and, consequently, on the commercial success of

the business users offering those goods and services to consumers. Ranking refers to the

relative prominence of the offers of business users or relevance given to search results as

presented, organised or communicated by providers of online intermediation services or by

providers of online search engines, resulting from the use of algorithmic sequencing, rating

or review mechanisms, visual highlights, or other saliency tools, or combinations thereof.

Predictability entails that providers of online intermediation services determine ranking in

a non-arbitrary manner. Providers should therefore outline the main parameters

determining ranking beforehand, in order to improve predictability for business users, to

allow them to better understand the functioning of the ranking mechanism and to enable

them to compare the ranking practices of various providers. The specific design of this

transparency obligation is important for business users as it implies the identification of a

limited set of parameters that are most relevant out of a possibly much larger number of

parameters that have some impact on ranking. This reasoned description should help

business users to improve the presentation of their goods and services, or some inherent

characteristics of those goods or services. The notion of main parameter should be

understood to refer to any general criteria, processes, specific signals incorporated into

algorithms or other adjustment or demotion mechanisms used in connection with the

ranking.

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(25) 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 an explanation of the relative effects thereof. Remuneration could,

in this respect, refer to payments made with the main or sole aim to improve ranking, as

well as indirect remuneration in the form of the acceptance by a business user of additional

obligations of any kind which may have this as its practical effect, such as the use of

services that are ancillary or of any premium features. The content of the description,

including the number and type of main parameters, can accordingly vary strongly

depending on the specific online intermediation services, but 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. The indicators

used for measuring the quality of goods or services of business users, the use of editors and

their ability to influence the ranking of those goods or services, the amplitude of the impact

of remuneration on ranking as well as elements that do not or only remotely relate to the

good or service itself, such as presentational features of the online offer, could be examples

of main parameters that, when included in a general description of the ranking mechanism

in plain and intelligible language, should assist business users in obtaining the required

adequate understanding of its functioning.

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(26) Similarly, the ranking of websites by the providers of online search engines, notably of

those websites through which undertakings offer goods and services to consumers, has an

important impact on consumer choice and the commercial success of corporate website

users. Providers of online search engines should therefore provide a description of the main

parameters determining the ranking of all indexed websites and the relative importance of

those main parameters as opposed to other parameters, including those of corporate

website users as well as other websites. In addition to the characteristics of the goods and

services and their relevance for consumers, this description should in the case of online

search engines also allow corporate website users to obtain an adequate understanding of

whether, and if so how and to what extent, certain design characteristics of the website

used, such as their optimisation for display on mobile telecommunications devices, is taken

into account. It should also include an explanation of any possibility for corporate website

users to actively influence ranking against remuneration, as well as an explanation of the

relative effects thereof. In the absence of a contractual relationship between providers of

online search engines and corporate website users, that description should be available to

the public in an obvious and easily accessible location on the relevant online search engine.

Areas of websites that require users to log in or register should not be understood as easily

and publicly available in this sense.

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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 identifiable. The existence of an up-to-date description of the main parameters

would also benefit users other than corporate website users of the online search engine. In

some cases, providers of online search engines can decide to influence the ranking in a

specific case or delist a particular website from a ranking based on a third-party

notification. Unlike providers of online intermediation services, providers of online search

engines cannot, due to the lack of any contractual relationship between the parties, be

expected to notify a corporate website user directly of a change in ranking order or a

delisting due to a third party notification. Nevertheless, a corporate website user should be

able to inspect the contents of the notification that has led to the change in ranking order in

a specific case or to delisting of a particular website, by investigating the contents of the

notification such as in a publicly accessible online database. That would help to mitigate

potential abuses, by competitors, of notifications that could lead to delisting.

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(27) Providers of online intermediation services or of online search engines should not be

required to disclose the detailed functioning of their ranking mechanisms, including

algorithms, under this Regulation. Their ability to act against bad faith manipulation of

ranking by third parties, including in the interest of consumers, should equally not be

impaired. A general description of the main ranking parameters should safeguard those

interests, while providing business users and corporate website users with an adequate

understanding of the functioning of ranking in the context of their use of specific online

intermediation services or online search engines. To ensure that the objective of this

Regulation is achieved, consideration of the commercial interests of providers of online

intermediation services or online search engines should, therefore, never lead to a refusal

to disclose the main parameters determining ranking. In this regard, whilst this Regulation

is without prejudice to Directive (EU) 2016/943 of the European Parliament and of the

Council **[1]**, the description given should at least be based on actual data on the relevance of

the ranking parameters used.

(28) The Commission should develop guidelines to assist providers of online intermediation

services and providers of online search engines in applying the ranking transparency

requirements laid down by this Regulation. This effort should help to optimise the manner

in which the main parameters determining ranking are identified and presented to business

users and corporate website users.

**1** 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).

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(29) Ancillary goods and services should be understood as goods and services offered to the

consumer immediately prior to the completion of a transaction initiated on online

intermediation services to complement the primary good or service being offered by the

business user. Ancillary goods and services refer to products that typically depend on, and

are directly related to, the primary good or service in order to function. Therefore, the term

should exclude goods and services that are merely being sold in addition to the primary

good or service in question rather than being complementary in their nature. Examples of

ancillary services include repair services for a specific good or financial products such as

car rental insurance offered so as to complement the specific goods or services being

offered by the business user. Likewise, ancillary goods might include goods that

complement the specific product being offered by the business user by constituting an

upgrade or a customisation tool linked to that specific product. Providers of online

intermediation services offering goods or services to consumers that are ancillary to a good

or service sold by a business user, using their online intermediation services, should set out

in their terms and conditions a description of the type of ancillary goods and services being

offered. Such a description should be available in the terms and conditions regardless of

whether the ancillary good or service is being provided by the provider of online

intermediation services itself or by a third party. Such a description should be

comprehensive enough to allow a business user to understand whether any good or service

is being sold as ancillary to the business user’s good or service. The description should not

necessarily include the specific good or service, but rather the type of product being

offered as complementary to the primary product of the business user. Furthermore, this

description should in all circumstances include whether and under what conditions a

business user is allowed to offer its own ancillary good or service in addition to the

primary good or service that it is offering through the online intermediation services.

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(30) Where a provider of online intermediation services itself offers certain goods or services to

consumers through its own online intermediation services, or does so through a business

user which it controls, that provider might compete directly with other business users of its

online intermediation services which are not controlled by the provider, which might give

the provider an economic incentive and the ability to use its control over the online

intermediation services to provide technical or economic advantages to its own offering, or

those offered through a business user which it controls, which it could deny to competing

business users. Such behaviour could undermine fair competition and restrict consumer

choice. In such situations, in particular, it is important that the provider of online

intermediation services acts in a transparent manner and provides an appropriate

description of, and sets out the considerations for any differentiated treatment, whether

through legal, commercial or technical means, such as functionalities involving operating

systems that it might give in respect of goods or services it offers itself compared to those

offered by business users. To ensure proportionality, this obligation should apply at the

level of the overall online intermediation services, rather than at the level of individual

goods or services offered through those services.

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(31) Where a provider of an online search engine itself offers certain goods or services to

consumers through its own online search engine, or does so through a corporate website

user which it controls, that provider might compete directly with other corporate website

users of its online search engine which are not controlled by the provider. In such

situations, in particular, it is important that the provider of the online search engine acts in

a transparent manner and provides a description of any differentiated treatment, whether

through legal, commercial or technical means, that it might give in respect of goods or

services it offers itself or through a corporate website user which it controls, compared to

those offered by competing corporate website users. To ensure proportionality, this

obligation should apply at the level of the overall online search engine, rather than at the

level of individual goods or services offered through those services.

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(32) Specific contractual terms should be addressed in this Regulation, in particular in situations

of imbalances in bargaining power, in order to ensure that contractual relations are

conducted in good faith and on the basis of fair dealing. Predictability and transparency

require that business users are given a real opportunity to become acquainted with changes

to terms and conditions, which should therefore not be imposed with retroactive effect

unless they are based on a legal or regulatory obligation or are beneficial to those business

users. Business users should in addition be offered clarity as to the conditions under which

their contractual relationship with providers of online intermediation services can be

terminated. Providers of online intermediation services should ensure that the conditions

for termination are always proportionate and can be exercised without undue difficulty.

Finally, business users should be fully informed of any access that providers of online

intermediation services maintain, after the expiry of the contract, to the information that

business users provide or generate in the context of their use of online intermediation

services.

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(33) The ability to access and use data, including personal data, can enable important value

creation in the online platform economy, both generally as well as for the business users

and online intermediation services involved. Accordingly, it is important that providers of

online intermediation services provide business users with a clear description of the scope,

nature and conditions of their access to and use of certain categories of data. The

description should be proportionate and might refer to general access conditions, rather

than an exhaustive identification of actual data, or categories of data. However,

identification of and specific access conditions to certain types of actual data that might be

highly relevant to the business users could also be included in the description. Such data

could include ratings and reviews accumulated by business users on the online

intermediation services. Altogether, the description should enable business users to

understand whether they can use the data to enhance value creation, including by possibly

retaining third-party data services.

(34) In the same vein, it is important for business users to understand whether the provider

shares with third parties any data which has been generated through the use of the

intermediation service by the business user. Business users should in particular be made

aware of any sharing of data with third parties that occurs for purposes which are not

necessary for the proper functioning of the online intermediation services; for example

where the provider monetises data under commercial considerations. To allow business

users to fully exercise available rights to influence such data sharing, providers of online

intermediation services should also be explicit about possibilities to opt out from the data

sharing where they exist under their contractual relationship with the business user.

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(35) Those requirements should not be understood as any obligation for providers of online

intermediation services to either disseminate or not to disseminate personal or

non-personal data to their business users. However, transparency measures could

contribute to increased data sharing and enhance, as a key source of innovation and

growth, the aims to create a common European data space. Processing of personal data

should comply with the Union legal framework on the protection of natural persons with

regard to the processing of personal data, and on respect for private life and the protection

of personal data in electronic communications, in particular Regulation (EU) 2016/679 **[1]**,

Directive (EU) 2016/680 **[2]** and Directive 2002/58/EC **[3]** of the European Parliament and of

the Council.

**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) (OJ L 119, 4.5.2016, p. 1).
**2** Directive (EU) 2016/680 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 by competent
authorities for the purposes of the prevention, investigation, detection or prosecution of
criminal offences or the execution of criminal penalties, and on the free movement of such
data, and repealing Council Framework Decision 2008/977/JHA (OJ L 119, 4.5.2016,
p. 89).
**3** Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002
concerning the processing of personal data and the protection of privacy in the electronic
communications sector (Directive on privacy and electronic communications) (OJ L 201,
31.7.2002, p. 37).

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(36) Providers of online intermediation services might in certain cases restrict in their 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 that is in accordance with Union law, including in the areas of

competition and unfair commercial practices, and the application of such laws.

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(37) In order to enable business users, including those whose use of the relevant online

intermediation services might have been restricted, suspended or terminated, to have

access to immediate, suitable and effective possibilities of redress, providers of online

intermediation services should provide for an internal complaint-handling system. That

internal complaint-handling system should be based on principles of transparency and

equal treatment applied to equivalent situations, aimed at ensuring that a significant

proportion of complaints can be solved bilaterally by the provider of online intermediation

services and the relevant business user in a reasonable period of time. The providers of

online intermediation services might maintain in force during the duration of the complaint

the decision that they have taken. Any attempt to reach an agreement through the internal

complaint handling-process does not affect the rights of providers of online intermediation

services or business users to initiate judicial proceedings at any time during or after the

internal complaint-handling process. In addition, providers of online intermediation

services should publish and, at least annually, verify information on the functioning and

effectiveness of their internal complaint-handling system to help business users to

understand the main types of issues that can arise in the context of the provision of

different online intermediation services and the possibility of reaching a quick and

effective bilateral resolution.

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(38) The requirements of this Regulation regarding the internal complaint-handling systems aim

to allow providers of online intermediation services a reasonable degree of flexibility when

operating those systems and addressing individual complaints, so as to minimise any

administrative burden. In addition, the internal complaint-handling systems should allow

providers of online intermediation services to address, where necessary, in a proportionate

manner any use in bad faith which certain business users might seek to make of those

systems. In light of the costs of setting up and operating such systems, it is appropriate to

exempt from those obligations any providers of online intermediation services which

constitute small enterprises, in line with the relevant provisions of Commission

Recommendation 2003/361/EC **[1]** . The consolidation rules laid down in that

Recommendation ensure that any circumvention is prevented. That exemption should not

affect the right of such enterprises to set up, on a voluntary basis, an internal

complaint-handling system that complies with the criteria set out in this Regulation.

(39) The use of the word ‘internal’ should not be understood as preventing the delegation of an

internal complaint-handling system to an external service provider or other corporate

structure, as long as such a provider or other corporate structure has full authority and the

ability to ensure compliance of the internal complaint-handling system with the

requirements in this Regulation.

**1** 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).

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(40) Mediation can offer providers of online intermediation services and their business users a

means to resolve disputes in a satisfactory manner, without having to use judicial

proceedings which can be lengthy and costly. Therefore, providers of online intermediation

services should facilitate mediation by, in particular, identifying at least two public or

private mediators with which they are willing to engage. The aim of requiring the

identification of a minimum number of mediators is to safeguard the mediators’ neutrality.

Mediators which provide their services from a location outside the Union should only be

identified where it is guaranteed that the use of those services does not in any way deprive

the business users concerned of any legal protection offered to them under Union law or

the law of the Member States, including the requirements of this Regulation and the

applicable law regarding protection of personal data and trade secrets. In order to be

accessible, fair, and as swift, efficient and effective as possible, those mediators should

meet certain set criteria. Nonetheless, providers of online intermediation services and their

business users should remain free to jointly identify any mediator of their choice after a

dispute has arisen between them. In line with Directive 2008/52/EC of the

European Parliament and of the Council **[1]**, the mediation provided for in this Regulation

should be a voluntary process in the sense that the parties are themselves in charge of the

process and can start and terminate it at any time. Notwithstanding its voluntary nature,

providers of online intermediation services should examine in good faith requests to

engage in the mediation provided for in this Regulation.

**1** Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on
certain aspects of mediation in civil and commercial matters (OJ L 136, 24.5.2008, p. 3).

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(41) Providers of online intermediation services should bear a reasonable proportion of the total

costs of the mediation, taking into account all relevant elements of the case at hand. To that

end, the mediator should suggest which proportion is reasonable in the individual case. In

light of the costs and of the administrative burden associated with the necessity to identify

mediators in terms and conditions, it is appropriate to exempt from that obligation any

providers of online intermediation services which are small enterprises, in line with the

relevant provisions of Recommendation 2003/361/EC. The consolidation rules laid down

in that Recommendation ensure that any circumvention of that obligation is prevented.

Nevertheless, this should not affect the right of such enterprises to identify mediators in

their terms and conditions that comply with the criteria set out in this Regulation.

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(42) Since the providers of online intermediation services should always be required to identify

mediators with which they are willing to engage, and should be obliged to engage in good

faith throughout any mediation attempts conducted pursuant to this Regulation, these

obligations should be established in a way that prevents abuse of the mediation system by

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

Providers of online intermediation services should not be obliged to engage in mediation

where a business user brings proceedings on a subject in relation to which that business

user has previously brought proceedings seeking mediation and the mediator has

determined in that case that the business user has not acted in good faith. Providers of

online intermediation services should also not be obliged to engage in mediation with

business users who have made repeated unsuccessful mediation attempts. These

exceptional situations should not limit the business user’s ability to submit a case to

mediation where, as determined by the mediator, the subject matter of the mediation is not

related to the previous cases.

(43) In order to facilitate the settlement of disputes relating to the provision of online

intermediation services using mediation in the Union, the Commission should, in close

cooperation with the Member States, encourage the setting up of specialised mediation

organisations, which are currently lacking. The involvement of mediators having specialist

knowledge of online intermediation services 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.

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(44) Various factors, such as limited financial means, a fear of retaliation and exclusive choice

of law and forum provisions in terms and conditions, can limit the effectiveness of existing

judicial redress possibilities, particularly those which require business users or corporate

website users to act individually and identifiably. To ensure the effective application of this

Regulation, organisations, associations representing business users or corporate website

users, as well as certain public bodies set up in Member States, should be granted the

possibility to take action before national courts in accordance with national law, including

national procedural requirements. Such action before national courts should aim to stop or

prohibit infringements of the rules set out in this Regulation and to prevent future damage

that could undermine sustainable business relationships in the online platform economy. In

order to ensure that such organisations or associations exercise that right effectively and in

an appropriate manner, they should meet certain criteria. In particular, they must be

properly established according to the law of a Member State, be of a non-profit making

character and pursue their objectives on a sustained basis. Those requirements should

prevent any ad hoc establishment of organisations or associations for the purpose of a

specific action or specific actions, or for the sake of making profits. Furthermore, it should

be ensured that there is no undue influence by any third party providers of financing on

decision-making by those organisations or associations.

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In order to avoid a conflict of interest, organisations or associations representing business

users or corporate website users should, in particular, be prevented from being subject to

undue influence from any providers of online intermediation services or of any online

search engines. The full and public disclosure of information on membership and source of

financing should facilitate national courts in assessing whether these eligibility criteria are

met. 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 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.

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(45) The identity of organisations, associations and public bodies which, in the view of the

Member States, should be qualified to bring an action under this Regulation, should be

communicated to the Commission. In the course of such a communication, Member States

should make specific reference to the relevant national provisions according to which the

organisation, association or public body was established and, where appropriate, refer to

the relevant public register in which the organisation or association is registered. This

additional option of a designation by Member States should provide for a certain level of

legal certainty and predictability that business users and corporate website users can rely

on. At the same time, it aims at making judicial procedures more efficient and shorter,

which seems appropriate in this context. The Commission should ensure the publication of

a list of those organisations, associations and public bodies in the _Official Journal of the_

_European Union_ . Inclusion on that list should serve as refutable proof of the legal capacity

of the organisation, association or public body bringing the action. Where there are any

concerns regarding a designation, the Member State which designated an organisation,

association or public body should investigate those concerns. Organisations, associations

and public bodies that are not designated by a Member State should have the possibility to

bring an action before national courts subject to examination of legal capacity according to

the criteria set out in this Regulation.

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(46) Member States should be required to ensure adequate and effective enforcement of this

Regulation. Different enforcement systems already exist in Member States, and they

should not be obliged to set up new national enforcement bodies. Member States should

have the option to entrust existing authorities, including courts, with the enforcement of

this Regulation. This Regulation should not oblige Member States to provide for ex officio

enforcement or to impose fines.

(47) The Commission should continuously monitor the application of this Regulation in close

cooperation with the Member States. In this context, the Commission should aim to

establish a broad information exchange network by leveraging relevant expert bodies,

centres of excellence as well as the Observatory on the Online Platform Economy.

Member States should, upon request, provide any relevant information they have in this

context to the Commission. Finally, this exercise should benefit from the overall enhanced

transparency in commercial relations between business users and providers of online

intermediation services and between corporate website users and online search engines that

this Regulation aims to achieve. In order to carry out its monitoring and review duties

effectively under this Regulation, the Commission should endeavour to gather information

from providers of online intermediation services. Providers of online intermediation

services should cooperate in good faith in facilitating the gathering of such data, where

applicable.

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(48) Codes of conduct, drawn up either by the service providers concerned or by organisations

or associations representing them, can contribute to the proper application of this

Regulation and should therefore be encouraged. When drawing up such codes of conduct,

in consultation with all relevant stakeholders, account should be taken of the specific

features of the sectors concerned as well as of the specific characteristics of SMEs. Such

codes of conduct should be worded in an objective and non-discriminatory way.

(49) The Commission should periodically evaluate this Regulation and closely monitor its

effects on the online platform economy, in particular with a view to determining the need

for amendments in light of relevant technological or commercial developments. This

evaluation should include the effects on business users which might result from the general

use of exclusive choice of law and forum provisions in terms and conditions which are

unilaterally determined by the provider of online intermediation services. In order to obtain

a broad view of developments in the sector, the evaluation should take into account the

experiences of Member States and relevant stakeholders. The group of experts for the

Observatory on the Online Platform Economy established in accordance with the

Commission Decision C(2018)2393 has a key role in informing the evaluation of this

Regulation by the Commission. The Commission should therefore duly consider the

opinions and reports presented to it by the group. Following the evaluation, the

Commission should take appropriate measures. Further measures, including of a legislative

nature, may be appropriate if and where the provisions established in this Regulation prove

to be insufficient to adequately address imbalances and unfair commercial practices

persisting in the sector.

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(50) 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 Disabilities **[1]** .

(51) Since 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.

(52) This Regulation seeks to ensure full respect for the right to an effective remedy and to a

fair trial as laid down in Article 47 of the Charter of Fundamental Rights of the

European Union and promote the application of the freedom to conduct a business as laid

down in Article 16 of the Charter,

HAVE ADOPTED THIS REGULATION:

**1** Council Decision 2010/48/EC of 26 November 2009 concerning the conclusion, by the
European Community, of the United Nations Convention on the Rights of Persons with
Disabilities (OJ L 23, 27.1.2010, p.37.).

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_Article 1_

_Subject-matter and scope_

1. The purpose of this Regulation is to contribute to the proper functioning of the internal

market by laying down rules to ensure that business users of online intermediation services

and corporate website users in relation to online search engines are granted appropriate

transparency, fairness and effective redress possibilities.

2. This Regulation shall apply to online intermediation services and online search engines

provided, or offered to be provided, to business users and corporate website users,

respectively, that have their place of establishment or residence in the Union and that,

through those online intermediation services or online search engines, offer goods or

services to consumers located in the Union, irrespective of the place of establishment or

residence of the providers of those services and irrespective of the law otherwise

applicable.

3. This Regulation shall not apply to online payment services or to online advertising tools or

online advertising exchanges, which are not provided with the aim of the facilitating the

initiation of direct transactions and which do not involve a contractual relationship with

consumers.

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4. This Regulation shall be without prejudice to national rules which, in conformity with

Union law, prohibit or sanction unilateral conduct or unfair commercial practices, to the

extent that the relevant aspects are not covered by this Regulation. This Regulation shall

not affect national civil law, in particular contract law, such as the rules on the validity,

formation, effects or termination of a contract, in so far as the national civil law rules are in

conformity with Union law, and to the extent that the relevant aspects are not covered by

this Regulation.

5. This Regulation shall be without prejudice to Union law, in particular Union law

applicable in the areas of judicial cooperation in civil matters, competition, data protection,

trade secrets protection, consumer protection, electronic commerce and financial services.

_Article 2_

_Definitions_

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

(1) ‘business user’ means any private individual acting in a commercial or professional

capacity who, or any legal person which, through online intermediation services offers

goods or services to consumers for purposes relating to its trade, business, craft or

profession;

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(2) ‘online intermediation services’ means services which meet all of the following

requirements:

(a) they constitute information society services within the meaning of point (b) of

Article 1(1) of Directive (EU) 2015/1535 of the European Parliament and of the

Council **[1]** ;

(b) they allow business users to offer goods or services to consumers, with a view to

facilitating the initiating of direct transactions between those business users and

consumers, irrespective of where those transactions are ultimately concluded;

(c) they are provided to business users on the basis of contractual relationships between

the provider of those services and business users which offer goods or services to

consumers;

(3) ‘provider of online intermediation services’ means any natural or legal person which

provides, or which offers to provide, online intermediation services to business users;

(4) ‘consumer’ means any natural person who is acting for purposes which are outside this

person’s trade, business, craft or profession;

**1** 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).

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(5) ‘online search engine’ means a digital service that allows users to input queries in order to

perform searches of, in principle, all websites, or all websites in a particular language, on

the basis of a query on any subject in the form of a keyword, voice request, phrase or other

input, and returns results in any format in which information related to the requested

content can be found;

(6) ‘provider of online search engine’ means any natural or legal person which provides, or

which offers to provide, online search engines to consumers;

(7) ‘corporate website user’ means any natural or legal person which uses an online interface,

meaning any software, including a website or a part thereof and applications, including

mobile applications, to offer goods or services to consumers for purposes relating to its

trade, business, craft or profession;

(8) ‘ranking’ means the relative prominence given to the goods or services offered through

online intermediation services, or the relevance given to search results by online search

engines, as presented, organised or communicated by the providers of online

intermediation services or by providers of online search engines, respectively, irrespective

of the technological means used for such presentation, organisation or communication;

(9) ‘control’ means ownership of, or the ability to exercise decisive influence over, an

undertaking, within the meaning of Article 3(2) of Council Regulation (EC) No 139/2004 **[1]** ;

**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).

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(10) ‘terms and conditions’ means all terms and conditions or specifications, irrespective of

their name or form, which govern the contractual relationship between the provider of

online intermediation services and its business users and are unilaterally determined by the

provider of online intermediation services, that unilateral determination being evaluated on

the basis of an overall assessment, for which the relative size of the parties concerned, the

fact that a negotiation took place, or that certain provisions thereof might have been subject

to such a negotiation and determined together by the relevant provider and business user is

not, in itself, decisive;

(11) ‘ancillary goods and services’ means goods and services offered to the consumer prior to

the completion of a transaction initiated on the online intermediation services in addition to

and complementary to the primary good or service offered by the business user through the

online intermediation services;

(12) ‘mediation’ means any structured process as defined in point (a) of Article 3 of

Directive 2008/52/EC;

(13) ‘durable medium’ means any instrument which enables business users to store information

addressed personally to them in a way accessible for future reference and for a period of

time adequate for the purposes of the information and allows the unchanged reproduction

of the information stored.

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_Article 3_

_Terms and conditions_

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

(a) are drafted in plain and intelligible language;

(b) are easily available to business users at all stages of their commercial relationship

with the provider of online intermediation services, including in the pre-contractual

stage;

(c) set out the grounds for decisions to suspend or terminate or impose any other kind of

restriction upon, in whole or in part, the provision of their online intermediation

services to business users;

(d) include information on any additional distribution channels and potential affiliate

programmes through which providers of online intermediation services might market

goods and services offered by business users;

(e) include general information regarding the effects of the terms and conditions on the

ownership and control of intellectual property rights of business users.

2. Providers of online intermediation services shall notify, on a durable medium, to the

business users concerned any proposed changes of their terms and conditions.

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The proposed changes shall not be implemented before the expiry of a notice period which

is reasonable and proportionate to the nature and extent of the envisaged changes 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 proposed changes. Providers of online intermediation

services shall grant longer notice periods when this is necessary to allow business users to

make technical or commercial adaptations to comply with the changes.

The business user concerned shall have the right to terminate the contract with the provider

of online intermediation services before the expiry of the notice period. Such termination

shall take effect within 15 days from the receipt of the notice pursuant to the first

subparagraph, unless a shorter period applies to the contract.

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 at any

moment from the receipt of the notice pursuant to the first subparagraph.

During the notice period, submitting new goods or services to the online intermediation

services shall be considered clear affirmative action to waive the notice period, except in

cases where the reasonable and proportionate notice period is longer than 15 days because

the changes to the terms and conditions require the business user to make significant

technical adjustments to its goods or services. In such cases, the notice period shall not be

considered automatically to be waived where the business user submits new goods and

services.

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3. Terms and conditions, or specific provisions thereof, which do not comply with the

requirements of paragraph 1, as well as changes to terms and conditions implemented by a

provider of online intermediation services contrary to the provisions of paragraph 2 shall

be null and void.

4. The notice period set out in the second subparagraph of paragraph 2 shall not apply where

a provider of online intermediation services:

(a) is subject to a legal or regulatory obligation which requires it to change 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 2;

(b) has exceptionally to change its terms and conditions to address an unforeseen and

imminent danger related to defending the online intermediation services, consumers

or business users from fraud, malware, spam, data breaches or other cybersecurity

risks.

5. Providers of online intermediation services shall ensure that the identity of the business

user providing the goods or services on the online intermediation services is clearly visible.

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_Article 4_

_Restriction, suspension and termination_

1. Where a provider of online intermediation services decides to restrict or suspend the

provision of its online intermediation services to a given business user in relation to

individual goods or services offered by that business user, it shall provide the business user

concerned, prior to or at the time of the restriction or suspension taking effect, with a

statement of reasons for that decision on a durable medium.

2. Where a provider of online intermediation services decides to terminate the provision of

the whole of its online intermediation services to a given business user, it shall provide the

business user concerned, at least 30 days prior to the termination taking effect, with a

statement of reasons for that decision on a durable medium.

3. In the case of restriction, suspension or termination, the provider of online intermediation

services shall give the business user the opportunity to clarify the facts and circumstances

in the framework of the internal complaint-handling process referred to in Article 11.

Where the restriction, suspension or termination is revoked by the provider of online

intermediation services, it shall reinstate the business user without undue delay, including

providing the business user with any access to personal or other data, or both, that resulted

from its use of the relevant online intermediation services prior to the restriction,

suspension or termination having taken effect.

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4. The notice period in paragraph 2 shall not apply where a provider of online intermediation

services:

(a) is subject to a legal or regulatory obligation which requires it to terminate the

provision of the whole of its online intermediation services to a given business user

in a manner which does not allow it to respect that notice period, or

(b) exercises a right of termination under an imperative reason pursuant to national law

which is in compliance with Union law;

(c) can demonstrate that the business user concerned has repeatedly infringed the

applicable terms and conditions, resulting in the termination of the provision of the

whole of the online intermediation services in question.

In cases where the notice period in paragraph 2 does not apply, the provider of online

intermediation services shall provide the business user concerned, without undue delay,

with a statement of reasons for that decision on a durable medium.

5. The statement of reasons referred to in paragraphs 1, and 2 and in the second subparagraph

of paragraph 4 shall contain a reference to the specific facts or circumstances, including

contents of third party notifications, that led to the decision of the provider of online

intermediation services, as well as a reference to the applicable grounds for that decision

referred to in point (c) of Article 3(1).

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A provider of online intermediation services does not have to provide a statement of

reasons where it is subject to a legal or regulatory obligation not to provide the specific

facts or circumstances or the reference to the applicable ground or grounds, or where a

provider of online intermediation services can demonstrate that the business user

concerned has repeatedly infringed the applicable terms and conditions, resulting in

termination of the provision of the whole of the online intermediation services in question.

_Article 5_

_Ranking_

1. 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.

2. Providers of online search engines shall set out the main parameters, which individually or

collectively are most significant in determining ranking and the relative importance of

those main parameters, by providing an easily and publicly available description, drafted in

plain and intelligible language, on the online search engines of those providers. They shall

keep that description up to date.

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3. Where the main parameters include the possibility to influence ranking against any direct

or indirect remuneration paid by business users or corporate website users to the respective

provider, that provider shall also set out a description of those possibilities and of the

effects of such remuneration on ranking in accordance with the requirements set out in

paragraphs 1 and 2.

4. Where a provider of an online search engine has altered the ranking order in a specific case

or delisted a particular website following a third party notification, the provider shall offer

the possibility for the corporate website user to inspect the contents of the notification.

5. The descriptions referred to in paragraphs 1, 2 and 3 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) the characteristics of the goods and services offered to consumers through the online

intermediation services or the online search engine;

(b) the relevance of those characteristics for those consumers;

(c) as regards online search engines, the design characteristics of the website used by

corporate website users.

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6. 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

algorithms or any information that, with reasonable certainty, would result in the enabling

of deception of consumers or consumer harm through the manipulation of search results.

This Article shall be without prejudice to Directive (EU) 2016/943.

7. To facilitate the compliance of providers of online intermediation services and providers of

online search engines with and the enforcement of the requirements of this Article, the

Commission shall accompany the transparency requirements set out in this Article with

guidelines.

_Article 6_

_Ancillary goods and services_

Where ancillary goods and services, including financial products, are offered to consumers through

the online intermediation services, either by the provider of online intermediation services or by

third parties, the provider of online intermediation services shall set out in its terms and conditions a

description of the type of ancillary goods and services offered and a description of whether and

under which conditions the business user is also allowed to offer its own ancillary goods and

services through the online intermediation services.

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_Article 7_

_Differentiated treatment_

1. Providers of online intermediation services shall include in their terms and conditions a

description of any differentiated treatment which they give, or might give, in relation to

goods or services offered to consumers through those online intermediation services by, on

the one hand, either that provider itself or any business users which that provider controls

and, on the other hand, other business users. That description shall refer to the main

economic, commercial or legal considerations for such differentiated treatment.

2. Providers of online search engines shall set out a description of any differentiated

treatment which they give, or might give, in relation to goods or services offered to

consumers through those online search engines by, on the one hand, either that provider

itself or any corporate website users which that provider controls and, on the other hand,

other corporate website users.

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3. The descriptions referred to in paragraphs 1 and 2 shall cover in particular, where

applicable, any differentiated treatment through specific measures taken by, or the

behaviour of, the provider of online intermediation services or the provider of the online

search engine relating to any of the following:

(a) access that the provider, or that the business users or corporate website users which

that provider controls, may have to any personal data or other data, or both, which

business users, corporate website users or consumers provide for the use of the

online intermediation services or the online search engines concerned or which are

generated through the provision of those services;

(b) ranking or other settings applied by the provider that influence consumer access to

goods or services offered through those online intermediation services by other

business users or through those online search engines by other corporate website

users;

(c) any direct or indirect remuneration charged for the use of the online intermediation

services or online search engines concerned;

(d) access to, conditions for, or any direct or indirect remuneration charged for the use of

services or functionalities, or technical interfaces, that are relevant to the business

user or the corporate website user and that are directly connected or ancillary to

utilising the online intermediation services or online search engines concerned.

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_Article 8_

_Specific contractual terms_

In order to ensure that contractual relations between providers of online intermediation services and

business users are conducted in good faith and based on fair dealing, providers of online

intermediation services shall:

(a) not impose retroactive changes to terms and conditions, except when they are required to

respect a legal or regulatory obligation or when the retroactive changes are beneficial for

the business users;

(b) ensure that their terms and conditions include information on the conditions under which

business users can terminate the contractual relationship with the provider of online

intermediation services; and

(c) include in their terms and conditions a description of the technical and contractual access,

or absence thereof, to the information provided or generated by the business user, which

they maintain after the expiry of the contract between the provider of online intermediation

services and the business user.

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_Article 9_

_Access to data_

1. 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.

2. Through the description referred to in paragraph 1, providers of online intermediation

services shall adequately inform business users in particular 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 the business user’s use of the online

intermediation services concerned or generated through the provision of those

services to that business user and the consumers of the business user’s goods or

services, and if so, to which categories of such data and under what conditions;

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(c) in addition to point (b), whether 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; and

(d) whether any data under point (a) is provided to third parties, along with, where the

provision of such data to third parties is not necessary for the proper functioning of

the online intermediation services, information specifying the purpose of such data

sharing, as well as possibilities for business users to opt out from that data sharing.

3. This Article shall be without prejudice to the application of Regulation (EU) 2016/679,

Directive (EU) 2016/680 and Directive 2002/58/EC.

_Article 10_

_Restrictions to offer different conditions through other means_

1. 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 the 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.

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2. 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 acts

of Union law or the law of Member States that is in accordance with Union law and to

which the providers of online intermediation services are subject.

_Article 11_

_Internal complaint-handling system_

1. Providers of online intermediation services shall provide for an internal system for

handling the complaints of business users.

That internal complaint-handling system shall be easily accessible and free of charge for

business users and shall ensure handling within a reasonable time frame. It shall be based

on the principles of transparency and equal treatment applied to equivalent situations, and

treating complaints in a manner which is proportionate to their importance and complexity.

It shall allow business users to lodge complaints directly with the provider concerned

regarding any of the following issues:

(a) alleged non-compliance by that provider with any obligations laid down in this

Regulation which affects the business user lodging the complaint

(‘the complainant’);

(b) technological issues which relate directly to the provision of online intermediation

services, and which affect the complainant;

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(c) measures taken by, or behaviour of, that provider which relate directly to the

provision of the online intermediation services, and which affect the complainant.

2. As part of their internal complaint-handling system, providers of online intermediation

services shall:

(a) duly consider complaints lodged and the follow-up which they may need to give to

the complaint in order to adequately address the issue raised;

(b) process complaints swiftly and effectively, taking into account the importance and

complexity of the issue raised;

(c) communicate to the complainant the outcome of the internal complaint-handling

process, in an individualised manner and drafted in plain and intelligible language.

3. Providers of online intermediation services shall provide in their terms and conditions all

relevant information relating to the access to and functioning of their internal

complaint-handling system.

4. Providers of online intermediation services shall establish and make easily available to the

public information on the functioning and effectiveness of their internal

complaint-handling system. They shall verify the information at least annually and where

significant changes are needed, they shall update that information.

That information shall include the total number of complaints lodged, the main types of

complaints, the average time period needed to process the complaints and aggregated

information regarding the outcome of the complaints.

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5. The provisions of this Article shall not apply to providers of online intermediation services

that are small enterprises within the meaning of the Annex to

Recommendation 2003/361/EC.

_Article 12_

_Mediation_

1. Providers of online intermediation services shall identify in their terms and conditions two

or more mediators with which they are willing to engage to attempt to reach an agreement

with business users on the settlement, out of court, of any disputes between the provider

and the business user arising in relation to the provision of the online intermediation

services concerned, including complaints that could not be resolved by means of the

internal complaint-handling system referred to in Article 11.

Providers of online intermediation services may only identify mediators providing their

mediation services from a location outside the Union where it is ensured that the business

users concerned are not effectively deprived of the benefit of any legal safeguards laid

down in Union law or the law of the Member States as a consequence of the mediators

providing those services from outside the Union.

2. The mediators referred to in paragraph 1 shall meet the following requirements:

(a) they are impartial and independent;

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(b) their mediation services are affordable for business users of the online intermediation

services concerned;

(c) they are capable of providing their mediation services in the language of the terms

and conditions which govern the contractual relationship between the provider of

online intermediation services and the business user concerned;

(d) they are easily accessible either physically in the place of establishment or residence

of the business user, or remotely using communication technologies;

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

(f) they have a sufficient understanding of general business-to-business commercial

relations, allowing them to contribute effectively to the attempt to settle the disputes.

3. Notwithstanding the voluntary nature of mediation, providers of online intermediation

services and business users shall engage in good faith throughout any mediation attempts

conducted pursuant to this Article.

4. Providers of online intermediation services shall bear a reasonable proportion of the total

costs of mediation in each individual case. A reasonable proportion of those total costs

shall be determined, on the basis of a suggestion by the mediator, by taking into account all

relevant elements of the case at hand, in particular the relative merits of the claims of the

parties to the dispute, the conduct of the parties, as well as the size and financial strength of

the parties relative to one another.

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5. Any attempt to reach an agreement through mediation on the settlement of a dispute in

accordance with this Article shall not affect the rights of the providers of online

intermediation services and of the business users concerned to initiate judicial proceedings

at any time before, during or after the mediation process.

6. If requested by a business user, before entering into or during mediation, the provider of

online intermediation services shall make available, to the business user, information on

the functioning and effectiveness of mediation related to its activities.

7. The obligation set out in paragraph 1 shall not apply to providers of online intermediation

services that are small enterprises within the meaning of the Annex to

Recommendation 2003/361/EC.

_Article 13_

_Specialised mediators_

The Commission shall, in close cooperation with the Member States, 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 12(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.

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_Article 14_

_Judicial proceedings by representative organisations or associations and by public bodies_

1. Organisations and associations that have a legitimate interest in representing business users

or in representing corporate website users, as well as public bodies set up in

Member States, shall have the right to take action before competent national courts in the

Union, in accordance with the rules of the law of the Member State where the action is

brought, to stop or prohibit any non-compliance by providers of online intermediation

services or by providers of online search engines, with the relevant requirements laid down

in this Regulation.

2. The Commission shall encourage Member States to exchange best practices and

information with other Member States, based on registries of unlawful acts which have

been subject to injunction orders before national courts, where such registries are set up by

relevant public bodies or authorities.

3. Organisations or associations shall have the right referred to in paragraph 1 only where

they meet all of the following requirements:

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

(b) they pursue objectives that are in the collective interest of the group of business users

or corporate website users that they represent on a sustained basis;

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

(d) their decision-making is not unduly influenced by any third party providers of

financing, in particular by providers of online intermediation services or of online

search engines.

To this end, organisations or associations shall fully and publicly disclose information on

their membership and source of financing.

4. In Member States where public bodies have been set up, those public bodies shall have the

right referred to in paragraph 1, where they are charged with defending the collective

interests of business users or corporate website users or with ensuring compliance with the

requirements laid down in this Regulation, in accordance with the national law of the

Member State concerned.

5. Member States may designate:

(a) organisations or associations established in their Member State that meet at least the

requirements of paragraph 3 at the request of those organisations or associations;

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

that are granted the right referred to in paragraph 1. Member States shall communicate to

the Commission the name and purpose of any such designated organisations, associations

or public bodies.

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6. The Commission shall draw up a list of the organisations, associations and public bodies

designated in accordance with paragraph 5. That list shall specify the purpose of those

organisations, associations and public bodies. That list shall be published in the _Official_

_Journal of the European Union_ . Changes to the list shall be published without delay and,

in any event, an updated list shall be drawn up and published every six months.

7. The court shall accept the list referred to in paragraph 6 as proof of the legal capacity of the

organisation, association or public body, without prejudice to the court’s right to examine

whether the purpose of the claimant justifies its taking action in a specific case.

8. If a Member State or the Commission raises concerns regarding the compliance, by an

organisation or association, with the criteria laid down in paragraph 3, or, by a public body,

with the criteria laid down in paragraph 4, the Member State that designated that

organisation, association or public body in accordance with paragraph 5 shall investigate

the concerns and, where appropriate, revoke the designation if one or more of the criteria

are not complied with.

9. The right referred to in paragraph 1 shall be without prejudice to the rights of business

users and corporate website users to start any action before competent national courts, in

accordance with the rules of the law of the Member State where the action is brought,

which is based on individual rights and aims to stop any non-compliance, by providers of

online intermediation services or providers of online search engines, with the relevant

requirements laid down in this Regulation.

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_Article 15_

_Enforcement_

1. Each Member State shall ensure adequate and effective enforcement of this Regulation.

2. Member States shall lay down the rules setting out the measures applicable to

infringements of this Regulation and shall ensure that they are implemented. The measures

provided for shall be effective, proportionate and dissuasive.

_Article 16_

_Monitoring_

The Commission, in close cooperation with Member States, shall closely monitor the impact of this

Regulation on relationships between online intermediation services and their business users and

between online search engines and corporate website users. To this end, the Commission shall

gather relevant information to monitor changes in these relationships, including by carrying out

relevant studies. Member States shall assist the Commission by providing, upon request, any

relevant information gathered including about specific cases. The Commission may, for the purpose

of this Article and Article 18, seek to gather information from providers of online intermediation

services.

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_Article 17_

_Codes of conduct_

1. The Commission shall encourage the drawing up of codes of conduct by providers of

online intermediation services and by organisations and associations representing them,

together with business users, including SMEs and their representative organisations, that

are 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 SMEs.

2. The Commission shall encourage providers of online search engines and organisations and

associations representing them to draw up codes of conduct that are specifically intended

to contribute to the proper application of Article 5.

3. The Commission shall encourage the providers of online intermediation services to adopt

and implement sector-specific codes of conduct, where such sector-specific codes of

conduct exist and are widely used.

_Article 18_

_Review_

1. By … [18 months after the date of application of this Regulation], 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.

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2. The first evaluation of this Regulation shall be carried out, in particular, with a view to the

following:

(a) assessing the compliance with, and impact on the online platform economy of, the

obligations laid down in Articles 3 to 10;

(b) assessing the impact and effectiveness of any established codes of conduct to

improve fairness and transparency;

(c) investigating further the problems caused by the dependence of business users on

online intermediation services, and problems caused by unfair commercial practices

by providers of online intermediation services, and to determine further to which

extent those practices continue to be widespread;

(d) investigating whether the competition between goods or services offered by a

business user and goods or services offered or controlled by a provider of online

intermediation services constitutes fair competition and whether providers of online

intermediation services misuse privileged data in this regard;

(e) assessing the effect of this Regulation on any possible imbalances in the relationships

between providers of operating systems and their business users;

(f) assessing whether the scope of the Regulation, especially as regards the definition of

‘business user’, is suitable in that it does not encourage bogus self-employment.

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The first and subsequent evaluations shall establish whether additional rules, including

regarding enforcement, may be required to ensure a fair, predictable, sustainable and

trusted online business environment within the internal market. Following the evaluations,

the Commission shall take appropriate measures, which may include legislative proposals.

3. Member States shall provide any relevant information they have that the Commission may

require for the purposes of drawing up the report referred to in paragraph 1.

4. In carrying out the evaluation of this Regulation, the Commission shall take into account

inter alia, the opinions and reports presented to it by the group of experts for the

Observatory on the Online Platform Economy. It shall also take into account the content

and functioning of any codes of conduct referred to in Article 17, where appropriate.

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_Article 19_

_Entry into force and application_

1. This Regulation shall enter into force on the twentieth day following that of its publication

in the _Official Journal of the European Union_ .

2. It shall apply from … [twelve months after the date of its publication].

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

Done at …,

_For the European Parliament_ _For the Council_

_The President_ _The President_

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