Activities of Jiří MAŠTÁLKA related to 2018/0112(COD)
Shadow opinions (1)
OPINION on the proposal for a regulation of the European Parliament and of the Council on promoting fairness and transparency for business users of online intermediation services
Amendments (37)
Amendment 58 #
Proposal for a regulation
Recital 9
Recital 9
(9) Examples of online intermediation services covered by this Regulation should consequently include online e-commerce market places, including collaborative ones on which business users are active, online software applications services and online social media services. However, this Regulation should not apply to online advertising serving tools or online advertising exchanges which are not provided with the aim of facilitating the initiation of direct transactions and which do not involve a contractual relationship with consumers. This Regulation should also not apply to online payment services, since they do not themselves meet the applicable requirements but are rather inherently auxiliary to the transaction for the supply of goods and services to the consumers concerned. This Regulation does not apply to online services which sell goods or services through licensing agreements from rights-holder, since the online service provider fully manages the relationship with the consumer.
Amendment 60 #
Proposal for a regulation
Recital 11
Recital 11
(11) For reasons of consistency, the definition of online search engine used in this Regulation should be aligned with the definition used in Directive (EU) 2016/1148 of the European Parliament and of the Council21 . This regulation does not apply to search functionalities which do not encompass, at least in principle, all websites, such as search functions within an online intermediation services or which is a feature of an operating system software. _________________ 21 Directive (EU) 2016/1148 of the European Parliament and of the Council concerning measures for a high common level of security of network and information systems across the Union (OJ L 194, 19.7.2016, p. 1).
Amendment 79 #
Proposal for a regulation
Recital 16
Recital 16
(16) A provider of online intermediation services can have legitimate reasons to decide to suspend or terminate the provision of its services, in whole or in part, to a given business user, including by delisting individual goods or services of a given business user or effectively removing search results. This could include violation of the terms and conditions, as well as suspicion of business user violation which could be harmful to the consumer or to the platform (for example, but not limited to : security issues, fraud, phishing, illegal and harmful content). However, given that such decisions can significantly affect the interests of the business user concerned, they should be properly informed of the reasons thereof. The statement of reasons should allow business users to ascertain whether there is scope to challenge the decision, thereby improving the possibilities for business users to seek effective redress where necessary. In addition, requiring a statement of reasons should help to prevent or remedy any unintended removal of online content provided by business users which the provider incorrectly considers to be illegal content, in line with Commission Recommendation (EU) No 2018/33422 . The statement of reasons should identify the objective ground or grounds for the decision, based on the grounds that the provider had set out in advance in its terms and conditions, and refer in a proportionate manner to the relevant specific circumstances that led to that decision. However, such statement of reasons should not be provided if the information could help a business user suspected of performing practices that are harmful to the consumers or to the platform, as highlighted above, maintain or improve their harmful practices. _________________ 22 Commission Recommendation (EU) No 2018/334 of 1 March 2018 on measures to effectively tackle illegal content online (OJ L 63, 6.3.2018, p. 50).
Amendment 83 #
Proposal for a regulation
Recital 18
Recital 18
(18) Similarly, the ranking of websites by the providers of online search engines, notably of those websites through which undertakings offer goods and services to consumers, has an important impact on consumer choice and the commercial success of corporate website users. Providers of online search engines should therefore provide a description of the main parameters determining the ranking of all indexed websites, including those of corporate website users as well as other websites. In addition to the characteristics of the goods and services and their relevance for consumers, this description should in the case of online search engines also allow corporate website users to obtain an adequate understanding of whether, and if so how and to what extent, certain design characteristics of the website used, such as their optimisation for display on mobile telecommunications devices, is taken into account. In the absence of a contractual relationship between providers of online search engines and corporate website users, that description should be available to the public in an obvious and easily accessible location on the relevant online search engine. To ensure predictability for corporate website users, the description should also be kept up to date, including the possibility that any changes to the main parameters should be made easily identifiable. Whilst the providers are under no circumstances required to disclose any trade secrets as defined in Directive (EU) 2016/943 of the European Parliament and of the Council23 when complying with this requirement to disclose the main ranking parameters, the description given should at least be based on actual data on the relevance of the ranking parameters used. For the avoidance of doubt, any obligation on online search engines to ensure that the description of the main parameters determining ranking is kept up to date shall not require online search engines to reveal any trade secrets as defined in Article 2(1) of Directive (EU) 2016/943. _________________ 23 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).
Amendment 109 #
Proposal for a regulation
Recital 25
Recital 25
(25) Providers of online intermediation services should bear a reasonable proportion of the total costs of the mediation, taking into account all relevant elements of the case at hand including whether the case was brought in good faith with a reasonable prospect of success. To that aim, the mediator should suggest which proportion is reasonable in the individual case. However, that proportion should never be less than half of those costs.
Amendment 128 #
Proposal for a regulation
Article 2 – paragraph 1 – point 5
Article 2 – paragraph 1 – point 5
(5) 'online search engine' means a digital service, including inter alia digital interfaces and applications, including mobile applications with search functionality that allows users to perform searches of, in principle, all websites or websites in a particular language on the basis of a query on any subject in the form of a keyword, phrase or other input, and returns links results in which information related to the requested content can be found;
Amendment 138 #
Proposal for a regulation
Article 2 – paragraph 1 – point 8
Article 2 – paragraph 1 – point 8
(8) 'ranking' means the relative prominence in search results given to the goods or services offered to consumers by business users through online intermediation services, or to websites indexed for consumers by online search engines, as presented, organised or communicated to those consumers by the providers of online intermediation services or by providers of online search engines, respectively, irrespective of the technological means used for such presentation, organisation or communication;
Amendment 142 #
Proposal for a regulation
Article 2 – paragraph 1 – point 10
Article 2 – paragraph 1 – point 10
(10) 'terms and conditions' means all terms, conditions, and clauses and other information, irrespective of their name or form, which govern the contractual relationship between the provider of online intermediation services and their business users and are unilaterally determined by the provider of online intermediation services.
Amendment 145 #
Proposal for a regulation
Article 3 – paragraph 1 – point a
Article 3 – paragraph 1 – point a
(a) are drafted in clear and unambiguousplain and intelligible language;
Amendment 151 #
Proposal for a regulation
Article 3 – paragraph 1 – point c
Article 3 – paragraph 1 – point c
(c) set out the objective grounds for decisions to suspend or terminate, in whole or in part, the provision of their online intermediation services to business users.
Amendment 155 #
Proposal for a regulation
Article 3 – paragraph 3 – subparagraph 1
Article 3 – paragraph 3 – subparagraph 1
Providers of online intermediation services shall notify to the business users concerned of any envisagedmaterial modification of their terms and conditions which are to affect them in a non-negligible and negative matter.
Amendment 167 #
Proposal for a regulation
Article 3 – paragraph 4
Article 3 – paragraph 4
4. Modifications to terms and conditions implemented by a provider of online intermediation services contrary to the provisions of paragraph 3 shall be null and void as established by a competent court, for the remainder of the notice period.
Amendment 177 #
Proposal for a regulation
Article 4 – paragraph 2
Article 4 – paragraph 2
2. The statement of reasons referred to in paragraph 1 shall contain a reference to the specific facts or circumstances that led to the decision of the provider of online intermediation services, as well as a referencerefer to the applicable objective ground or grounds for that decision referred to in Article 3(1)(c).
Amendment 179 #
Proposal for a regulation
Article 4 – paragraph 2 – subparagraph 1 (new)
Article 4 – paragraph 2 – subparagraph 1 (new)
The reference to the specific facts and circumstances that led to suspension or termination of the online intermediation service in the statement of reasons should not be required when an investigation is ongoing, when other legal obligations prohibit the online intermediation service from doing so, or when it could cause harm to any user(s) of the online intermediation service or other third parties. A provider of online services shall also not be obliged to provide a statement of reasons to any person it reasonably determines is a repeat infringer.
Amendment 184 #
Proposal for a regulation
Article 5 – paragraph 1 – subparagraph 1
Article 5 – paragraph 1 – subparagraph 1
Providers of online intermediation services shall set out in their terms and conditionsprovide an easily available description of the main parameters determining ranking. Where those main parameters determining ranking and the reasons for the relative importance of those main parameinclude the possibility to influence ranking against any direct or indirect remuneration paid by business users to the provider of online intermediation services concerned, that provider of online intermediation services shall also include in its terms as opposed to other parametersnd conditions a description of those possibilities and of the effects of such remuneration on ranking.
Amendment 189 #
Proposal for a regulation
Article 5 – paragraph 1 – subparagraph 2
Article 5 – paragraph 1 – subparagraph 2
Amendment 195 #
Proposal for a regulation
Article 5 – paragraph 2
Article 5 – paragraph 2
2. Providers of online search engines shall set out for corporate website users the main parameters determining ranking, by providing an easily and publicly available description, drafted in clear and unambiguous language on the online search engines of those providers. They shall keep that description up to date. with regard to material changes that can reasonably be expected to affect corporate website users in a non-negligible and negative manner
Amendment 203 #
Proposal for a regulation
Article 5 – paragraph 4
Article 5 – paragraph 4
4. Providers of online intermediation services and providers of online search engines shall, when complying with the requirements of this Article, not be required to disclose any trade secrets as defined in Article 2(1) of Directive (EU) 2016/943. nor any other business sensitive information, disclosure of which could undermine the provider’s competitive advantage. Providers of online intermediation services and providers of online search engines shall also not be required to disclose any information that would be likely to facilitate either the manipulation of results or the deception of consumers.
Amendment 228 #
Proposal for a regulation
Article 7 – paragraph 1
Article 7 – paragraph 1
1. Providers of online intermediation services shall incluprovide ian their terms and conditions aeasily accessible 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.
Amendment 245 #
Proposal for a regulation
Article 8 – paragraph 1
Article 8 – paragraph 1
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 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.
Amendment 246 #
Proposal for a regulation
Article 8 – paragraph 2
Article 8 – paragraph 2
Amendment 254 #
Proposal for a regulation
Article 9 – paragraph 4 – subparagraph 1
Article 9 – paragraph 4 – subparagraph 1
Providers of online intermediation services shall annually establish and make easily available to the public information on the functioning and effectiveness of their internal complaint-handling systemprovide an annual report on the use of their internal complaint handling systems, outline the main types of problems businesses may face when using the online intermediation service.
Amendment 256 #
That information shall include the total number of complaints lodged, the subject- matter of the complaints, thmain types of complaints and the average time period needed to process the complaints and the decision taken on the complaints. In order to protect the privacy of the business users involved, the information shall only be provided in aggregated data. Providers of online intermediation services shall, when complying with the requirements of this paragraph, not be required to disclose any trade secrets as defined in article 2(1) of Directive (EU) 2016/943 or any information where a legal or confidentiality obligation does not allow them to do so or any information that may lead to consumer harm.
Amendment 260 #
Proposal for a regulation
Article 9 – paragraph 5 a (new)
Article 9 – paragraph 5 a (new)
5a. The obligations set out in paragraph 2 of this Article shall not apply to complaints brought by business users reasonably determined by the relevant online intermediation service provider as being abusive, spurious or vexatious.
Amendment 266 #
Proposal for a regulation
Article 10 – paragraph 1 – subparagraph 1
Article 10 – paragraph 1 – subparagraph 1
Providers of online intermediation services shall identify in their terms and conditions one or more mediators with which they are willing to engage to attempt to reach an agreement with business users on the settlement, out of court, of any disputes between the provider and the business user arising in relation to the provision of the online intermediation services concerned, including complaints thatwhich could not be resolved by means of the internal complaint-handling system referred to in Article 9.
Amendment 269 #
Proposal for a regulation
Article 10 – paragraph 3
Article 10 – paragraph 3
3. PWhen the internal complaint handling mechanism fails to resolve the complaint, providers of online intermediation services and business users shall engage in good faith in any attempt to reach an agreement through the mediation of any of the mediators which they identified in accordance with paragraph 1, with a view to reaching an agreement on the settlement of the dispute.
Amendment 276 #
Proposal for a regulation
Article 10 – paragraph 4
Article 10 – paragraph 4
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. However, providers of online intermediation services shall in any case bear at least half of the total cost.
Amendment 279 #
Proposal for a regulation
Article 10 – paragraph 5 a (new)
Article 10 – paragraph 5 a (new)
5a. Providers of online services shall not be obliged to engage in mediation with any business user it reasonably determines is a repeat infringer, including any business user who has brought repeated unsuccessful mediation claims.
Amendment 282 #
Proposal for a regulation
Article 12 – paragraph 1
Article 12 – paragraph 1
1. OAfter all the other options to settle a dispute between a platform and a business user provided for in this regulation in Article 9 and Article 10 have been exhausted, organisations and associations that have a genuine long- standing and legitimate interest in representing business users or in representing corporate website users and that are authorised and supervised by appropriate Member State public bodies, as well as public bodies set up in Member States, shall have the right to take action before national courts in the Union, in accordance with the rules of the law of the Member State where the action is brought, to stop or prohibit any non- compliance by providers of online intermediation services or by providers of online search engines with the relevant requirements laid down in this Regulation.
Amendment 287 #
Proposal for a regulation
Article 12 – paragraph 2 – subparagraph 1 – introductory part
Article 12 – paragraph 2 – subparagraph 1 – introductory part
Organisations or associations shall have the right referred to in paragraph 1 only where, at the time of bringing the action, they and for the duration of the action, they continue to meet all of the following requirements :
Amendment 295 #
Proposal for a regulation
Article 12 – paragraph 2 – subparagraph 1 – point a
Article 12 – paragraph 2 – subparagraph 1 – point a
(a) they are properly constituted according to the law of a Member State and hold a current qualified entity licence issued by the relevant public body of that Member State;
Amendment 298 #
Proposal for a regulation
Article 12 – paragraph 2 – subparagraph 1 – point b
Article 12 – paragraph 2 – subparagraph 1 – point b
(b) they pursue objectives that are in the collective interest of the group of a majority of business users or corporate website users that they represent;, which group must consist of at least 10 independent business users or corporate website users
Amendment 302 #
Proposal for a regulation
Article 12 – paragraph 2 – subparagraph 1 – point c
Article 12 – paragraph 2 – subparagraph 1 – point c
(c) they are of a non-profit making character. and are transparent about the source of funding for bringing and continuing the action and can demonstrate that they have sufficient financial resources to represent the best interests of their business or corporate website users and to meet any adverse costs should the action fail;
Amendment 303 #
Proposal for a regulation
Article 12 – paragraph 2 – subparagraph 1 – point c a (new)
Article 12 – paragraph 2 – subparagraph 1 – point c a (new)
(ca) they comply with all codes of ethics and conduct of the public body issuing their licence, and demonstrably act in accordance with the wider public interest;
Amendment 310 #
Proposal for a regulation
Article 12 – paragraph 2 – subparagraph 2
Article 12 – paragraph 2 – subparagraph 2
In Member States where such public bodies have been set up, those public bodies shall have the right referred to in paragraph 1, and shall be entitled to issue the required licence to an organisation or association, 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.
Amendment 315 #
Proposal for a regulation
Article 12 – paragraph 2 a (new)
Article 12 – paragraph 2 a (new)
2a. Where a Member State public body issues a qualified entity licence to an organisation or association, that public body shall be responsible for regularly reviewing the status and conduct of that organisation or association to ensure that it is complying with the requirements of this Article. The Member State public body shall immediately revoke the qualified entity licence of any organisation or association found to not to be in compliance with the requirements of this Article.
Amendment 328 #
Proposal for a regulation
Article 15 – paragraph 2
Article 15 – paragraph 2
2. It shall apply from [date: six24 months following the day of its publication].