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~ Spotlight on ~

The Commission’s legislative process also stemmed from to consumers through its own channel, directly or
a public consultation in which business users of platforms indirectly, that are in competition with those offered
were asked to comment on their experiences, with plat- by the business user of the marketplace or search
forms acting as facilitators (e.g. marketplaces, etc.). Nine engine, the provider must act in a transparent manner
out of ten respondents considered that there was ‘room for and supply a description of any differential treatment,
improvement’ in the relationship and the most common whether through legal, commercial or technical means,
problematic practices found were: (1) platforms unilater- that it might give in respect to its own goods or ser-
ally applying terms and conditions felt by business users vices, compared to those offered by the business user
as “unbalanced” and non-negotiable; (2) platforms refus- of the marketplace/search engine;
ing access to those suppliers not accepting restrictions; (3) • Platforms are furthermore required to describe, in de-
platforms promoting their own services to the disadvan- tail, any technical or contractual conditions for access
tage of services provided by third-party merchants. to personal or other data, including the scope of such
access that they provide for themselves, business users
In summary, the main innovations under Regulation (EU) or third parties (including data related to accumulated
2019/1150 are the following: ratings and reviews);
• The Regulation provides for suppliers of online in-
• Any changes to the terms and conditions of platforms termediation services to maintain an internal system
must be notified to business users on a durable me- for handling the complaints of business users, free
dium within a set notice period of at least 15 days; of charge and able to handle the complaints within
• A provider of online intermediation services who a reasonable timeframe; the handling system must
legitimately decides to restrict, suspend or terminate handle, for instance, any technological issue linked to
the provision of services to business users must pro- the provision of online intermediation services or any
vide the concerned business user with a statement of complaints relevant to measures taken by the platform
reasons for that decision, prior to or at the time of the that may affect the activity of business users;
restriction or suspension taking place; • Mediators: providers of online intermediation services
• In the event of any suspension/restriction caused by must identify in their terms and conditions two or
a business user’s non-compliance with the terms and more mediators with which they are willing to engage
conditions or the applicable law, platforms must help to attempt to reach an agreement with business us-
business users, where possible, to re-establish compli- ers on the settlement, out of court, of any disputes
ance; between the provider and the business user in relation
• In addition, if the platform revokes a decision to re- to the provision of online intermediation services. The
strict, suspend or terminate any account, for instance, Regulation also sets outs all the requirements con-
because the decision was made in error or because cerning mediators (including, of course, impartiality
the business user has been able to remedy a previous and independence). ••
infringement of the terms and conditions, then the
platform must reinstate the business user concerned
without undue delay (also including access to personal
data);
• The new Regulation sets forth a 30-day minimum no-
tice period to terminate the contract with the business
user, which must also be accompanied by reasons why
the online service provider is taking such action;
• Ranking: platforms are required to set out in plain and
intelligible language their terms and conditions along
with the main parameters to determine ranking and
the reasons for which they have given more relevance
to one parameter over another;
• Online intermediation services may not impose retro-
active changes to terms and conditions, unless when
required to by a legal or regulatory obligation or when
such retroactive changes are beneficial to the business
users;
• Differentiated treatment: when a marketplace or
search engine provider itself offers goods and services

Alan Rhode is a co-founder at Taxmen, the one-stop-shop for legal and tax services to the e-Commerce industry.

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