Regulation (EU) 2019/1150 (fairness and transparency)

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Regulation (EU) 2019/1150

Title: Regulation (EU) No. 2019/1150 of the European Parliament and of the Council of 20 June 2019 on the promotion of fairness and transparency for business users of online intermediation services
Designation:
(not official) 		Regulation to promote fairness and transparency
Scope: EEA
Legal matter: civil right
Basis: Article 114 TFEU
Procedure overview: European Commission
European Parliament
IPEX Wiki
Come into effect: July 31, 2019
To be used from: July 12, 2020
Reference: OJ L 186, July 11, 2019, p. 57 ff
Full text Consolidated version (not official)
basic version
Regulation has entered into force but is not yet applicable.
Please note the information on the current version of legal acts of the European Union !

The regulation to promote fairness and transparency (EU) 2019/1150 of 20 June 2019 (also: Platform-to-business VO or P2B regulation or shortly P2B-VO called) regulates the fairness and transparency and legal aid possibilities for the benefit of users of Online brokerage services and online search engines that are operated by entrepreneurs and that offer their customers products (Article 1 (1) of the P2B Regulation).

Objective and purpose of the regulation

Platform-based business models (online brokerage services) have become an integral part of national and cross-border trade. In particular, digital sales are important for the European internal market in order to find customers, offer services and present the attractiveness and advantages of one's own services. These online electronic intermediary services make a significant contribution to doing business online. Micro, small and medium-sized enterprises ( SMEs ) are now very largely dependent on such online intermediation services. Good and effective product placements and ranking options (e.g. in the sense of a satisfaction index with the performance of the offering entrepreneur) also increase sales.

With the P2B-VO , the European Union wants to prevent existing and new business models and offers from being blocked, influenced unilaterally or from being disadvantaged in any way by entrepreneurs or consumers who offer the goods.

The aim of the regulation is therefore to oblige commercial operators of online brokerage services and online search engines to be more transparent and fair with their customers and users. The P2B-VO aims to achieve a balance between the market power of commercial operators of online brokerage services and online search engines and customers, so that users (especially micro, small and medium-sized companies) are better protected. In particular, online intermediation services can also be critical to the business success of SMEs that use such services to reach consumers .

In particular, with regard to commercial users:

  • possible dependencies for SMEs that consumers want to achieve,
  • too great bargaining power on the part of the providers of online brokerage services (platforms) or online search engines,
  • unfair behavior which may harm the legitimate interests of their business users and, indirectly, of consumers in the Union,
  • Practices that grossly deviate from good business practice or that violate the principles of good faith and fair business dealings,

avoided or prevented and healthy competition made possible.

Among other things, through

  • a comprehensible design of general terms and conditions (GTC), their amendment and through certain information obligations,
  • the disclosure of ranking parameters,
  • Disclosure of the scope, type and conditions of access to certain categories of data and their use, and
  • Participation in out-of-court dispute resolution mechanisms (information requirements, free complaint management (internal) and mediation (external)),

a break in one-sided market power and ensure a fair, predictable, sustainable and trustworthy online business environment in the internal market.

Online mediation services

Examples

Online mediation services according to the P2B-VO are for example:

  • Online marketplaces for electronic commerce,
  • collaborative marketplaces on which commercial users are active,
  • Booking and price comparison portals,
  • Online services for software applications (e.g. application stores),
  • Online social media services (if commercial use is possible),
  • Functions provided by voice assistance technology.

The P2B-VO also applies to online search engines.

Exceptions

The P2B-VO does not apply to

  • Online payment services.
  • Peer-to-peer online switching services without the involvement of commercial users,
  • pure business-to-business online mediation services that are not offered to consumers,
  • Online advertising placement tools and,
  • Online advertising exchanges that are not provided to facilitate direct transactions and for which there is no contractual relationship with consumers,
  • Software services for search engine optimization as well
  • Services related to ad blocking software,
  • technical functions and interfaces that only connect hardware and applications (with exceptions),

No equal treatment requirement

The P2B-VO does not standardize the right to equal treatment. Commercial users of online intermediation services can (continue to) be treated unequally by the operator of an online intermediation service, provided this is done and disclosed according to transparent criteria. However, such unequal treatment of commercial users may be prohibited under national law or other legal bases of the European Union.

No right to access customer data

The P2B-VO does not standardize the right of commercial users to data from customers that are collected and processed by the online brokerage service. There is a transparency requirement for this. The commercial user can request that the online intermediary service explains in its terms and conditions whether and to what extent it grants or denies commercial users access to customer data or other data.

This also applies in particular if an online brokerage service offers goods itself.

Applicability of the P2B-VO

Basically

The P2B-VO applies if information society services are offered that are characterized by the fact that they aim to facilitate the initiation of direct transactions between commercial users and consumers, regardless of whether the transactions are ultimately online or online Portal of the respective provider of online intermediation services or the commercial user, offline or not at all . It is therefore not a prerequisite that online intermediation services fall within the scope of this regulation, that there is a contractual relationship between commercial users and consumers.

However, the P2B-VO is generally aimed at commercial users and not at consumers who use online intermediation services.

Worldwide

The regulation applies - because of the often global dimension of these providers online brokerage services and online search engines - regardless of where the online brokerage services and online search engines settled are or headquarters have and regardless of the otherwise applicable law, provided that:

  • the business users or users with a company website are located in the Union , or
  • business users or users with company websites offer their goods or services through these services to consumers who are located in the Union for at least part of the transaction .

With regard to the criteria described above, the relevant case law of the Court of Justice of the European Union on Article 17 Paragraph 1 Letter c of the Brussels Ia Regulation and Article 6 Paragraph 1 Letter b of Regulation (EC) No. 593/2008 ( Rome I Regulation ). For the application of the P2B Regulation , it is also sufficient if consumers are in the Union. They do not have to be resident in the EU or have the citizenship of a Union member state.

However , situations in which commercial users or users with company websites are not established in the Union or if they are established in the Union but use online brokerage services or online search engines to find goods or services are excluded from the application of the P2B Regulation exclusively to consumers outside the Union or to persons who are not consumers .

Remedies and Law Enforcement

Dispute resolution

In addition to the free option of internal complaints (free complaint management) and external search for solutions (external mediator), for which the providers of online mediation services and online search engines are responsible, the competent authorities and / or courts of the Union member states can still be called upon.

According to Article 15 (1) of the P2B Regulation , every EU member state is obliged to ensure that this regulation is adequately and effectively enforced. The measures taken to apply in the event of a breach of this Regulation must be effective, proportionate and dissuasive .

Representative actions

To enforce the P2B-VO before national courts are also

  • representative and suitable, non-profit-making organizations or associations that have a legitimate interest in representing commercial users or users with company websites, or also
  • public bodies

empowered. The enforcement of the P2B Regulation is to be entrusted to existing authorities, including courts, in the EU member states.

Legal basis and effect of the regulation

The regulation on the promotion of fairness and transparency ( P2B-VO ) is based in particular on Article 5 TEU ( subsidiarity clause ) and Article 114 TFEU . Article 114 TFEU stipulates that the European Union can enact provisions that contain measures to approximate the laws and regulations of the member states if this has as their object the establishment and functioning of the internal market and is necessary for this functioning of the internal market. The P2B Regulation also ensures that Article 47 of the Charter of Fundamental Rights of the European Union is fully applicable with regard to the right of every Union citizen to an effective legal remedy and an impartial court and promotes the application of the entrepreneurial freedom anchored in Article 16 of the Charter of Fundamental Rights .

The ordinance was issued in the ordinary legislative procedure .

The European Commission is entitled and, in accordance with the P2B-VO, should develop guidelines that offer the providers of online intermediation services and online search engines assistance in the application of the transparency regulations set out in this regulation for ranking. In this way, a contribution should be made to optimizing the way in which the main parameters for determining the ranking are determined and presented to commercial users and users with company websites . The European Commission should call on the providers of online intermediation services, as well as the organizations and associations that represent them , to work with business users, including SMEs, and their representative organizations to develop, adopt and implement codes of conduct that support the correct application of this Regulation and that support the specific Take into account the characteristics of the various industries in which online intermediation services are offered, as well as the specific characteristics of SMEs .

The P2B-VO does not affect national civil law , in particular contract law (e.g. provisions on the validity, formation, effects or termination of a contract), insofar as the provisions of national civil law are in accordance with Union law and the relevant aspects are not covered by this regulation .

In addition to the P2B Regulation, the Union member states can continue to apply national legal provisions that prohibit or punish unilateral acts or unfair business practices, provided that the relevant aspects are not regulated by the provisions of this regulation .

Structure and content of the regulation

  • Article 1 (subject matter and scope)
  • Article 2 (definitions)
  • Article 3 (General Terms and Conditions)
  • Article 4 (restriction, suspension and termination)
  • Article 5 (Ranking)
  • Article 6 (ancillary goods and services)
  • Article 7 (differentiated treatment)
  • Article 8 (special contractual provisions)
  • Article 9 (data access)
  • Article 10 (restriction of the possibility of offering other conditions by other means)
  • Article 11 (internal complaint management system)
  • Article 12 (mediation)
  • Article 13 (Specialized Mediators)
  • Article 14 (filing of complaints in court by representative organizations or associations and by public bodies)
  • Article 15 (enforcement)
  • Article 16 (surveillance)
  • Article 17 (Code of Conduct)
  • Article 18 (review)
  • Article 19 (entry into force and beginning of application)

Signing, entry into force, validity

The P2B-VO entered in accordance with Article 19 on July 31, 2019 and is valid from 12 July 2020. [obsolete]

It is binding in its entirety and is directly applicable in every EU member state.

literature

  • Tobias Haar: Platform-to-Business Regulation comes into force. In: iX . No. 8 , 2020, p. 84–86 ( heise.de [accessed July 30, 2020]).

Web links

Individual evidence

  1. ↑ English Regulation (EU) 2019/1150 of the European Parliament and of the Council of 20 June 2019 on promoting fairness and transparency for business users of online intermediation services , French Règlement (UE) 2019/1150 du Parlement Européen et du Conseil du 20 juin 2019 promouvant l'équité et la transparence pour les entreprises utilisatrices de services d'intermédiation en ligne .
  2. ↑ a b For the term user see Article 2 no. 2 and 7 and on the term consumer Article 2 no. 4 P2B-VO.
  3. ↑ a b c See Articles 11 to 13 as well as Recitals 2 to 7 and 14 to 27 as well as 29 to 32 and 36 to 44 of the P2B Regulation.
  4. ↑ For the term general terms and conditions, see Article 2 no. 10 P2B-VO and Article 3 P2B-VO.
  5. ↑ Providers of online brokerage services or online search engines are, however, not obliged to disclose the detailed functioning of their ranking methods - including the algorithms - according to the P2B-VO. See Recital 27 of the P2B Regulation. For the term ranking, see Article 2 no. 8 P2B-VO and Article 5 P2B-VO. However, you must meet the criteria according to which z. B. Products listed or how these criteria are weighted in the terms and conditions.
  6. ↑ See also Article 9 and z. B. Recitals 33 to 35 of the P2B Regulation
  7. ↑ See Article 1, Paragraph 2, Article 2, No. 2 and recitals 11 to 13 of the P2B Regulation.
  8. ↑ For the term online search engines, see Article 2 no. 5 P2B-VO.
  9. ↑ See Article 1 Paragraph 3 and Recitals 11 to 13 of the P2B Regulation.
  10. ↑ a b c See Article 1 Paragraph 4 and Recital 8 P2B Regulation .
  11. ↑ See also Article 7 of the P2B Regulation.
  12. ↑ Recital 10 of the P2B Regulation.
  13. ↑ a b See Recital 9 and Article 1 Paragraph 2 of the P2B Regulation.
  14. ↑ See Article 14 and Recitals 45 and 46 of the P2B Regulation.
  15. ↑ For the development of these provisions on the various treaty versions since 1957, see: Antonius Opilio : EUV | EGV | AEU , Dornbirn 2008, Edition Europa Verlag, 2nd edition, ISBN 3-901924-27-2 ( online Google books ).
  16. ↑ See also recitals 51 and 52 of the P2B Regulation.
  17. ↑ See Recital 28 of the P2B Regulation.
  18. ↑ Article 17 P2B-VO.