44 Amendments of Dita CHARANZOVÁ related to 2018/0112(COD)
Amendment 73 #
Proposal for a regulation
Recital 5
Recital 5
(5) Online intermediation services and online search engines, as well as the commercial transactions facilitated by those services, have an intrinsic cross- border potential and are of particular importance for the proper functioning of the Union’s internal market in today’s economy. The potentially unfair and harmful trading practices of certain providers of those services in respect of business users and corporate website users hamper the full realisation of that potential and negatively affect the proper functioning of the internal market. In addition, the full realisation of that potential is hampered, and the proper functioning of the internal market is negatively affected, by diverging laws of certain Member States which, with a varying degree of effectiveness, regulate those services, while other Member States are considering adopting such laws.
Amendment 89 #
Proposal for a regulation
Recital 7
Recital 7
(7) 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 accordance with Regulation (EC) No 44/2001 (Brussels I) and Regulation (EC) No 593/2008 (Rome I), this would mean that the online intermediation services and online search engines have targeted or directed sales to consumers located in one or more Member States, irrespective of where in the Union. Such consumers should be located in the Union, but do not need to have their place of residence in the Union nor have the nationality of any Member State. Accordingly, this Regulation should not apply where the business users or corporate websites users are not established in the Union or where they are established in the Union but where they use online intermediation services or online search engines to offer goods or services exclusively to consumers located outside the Union or to persons who are not consumers.
Amendment 95 #
Proposal for a regulation
Recital 8
Recital 8
(8) A wide variety of business-to- consumer commercial relations are intermediated online by providers operating multi-sided services that are essentially based on the same ecosystem- building business model. In order to capture the relevant services, online intermediation services should be defined in a precise and technologically-neutral manner. In particular, the services should consist of information society services, which are characterised by the fact that they aim to facilitate the initiating ofenable business users to target or direct offers of goods or services to consumers, with a view to receiving direct or indirect remuneration from direct transactions between business users and consumers, irrespective of whether the transactions are ultimately concluded either online, on the online portal of the provider of the online intermediation services in question or that of the business user, or offline. In addition, the services should be provided on the basis of contractual relationships both between the providers and business users and between the providers and the consumers. Such a contractual relationship should be deemed to exist where both parties concerned express their intention to be bound in an unequivocal and verifiable manner, without an express written agreement necessarily being required.
Amendment 116 #
Proposal for a regulation
Recital 10
Recital 10
(10) In line with the relevant case-law of the Court of Justice of the European Union and in light of the fact that the dependent position of business users has been observed principally in respect of online intermediation services that serve as a gateway to consumers in the form of natural persons, the notion of consumer used to delineate the scope of this Regulation is to be understood as referring solely to natural persons, where they are acting for purposes which are outside their trade, business, craft or profession. For the purpose of this Regulation, therefore, online intermediation services and search engines that allow solely direct or target offers of goods and services from businesses to other businesses are excluded because while there may be an imbalance relationship, there is not direct consequence on consumers.
Amendment 129 #
Proposal for a regulation
Recital 13
Recital 13
(13) To ensure that the general terms and conditions of a contractual relationship enable business users to determine the commercial conditions for the use, termination and suspension of online intermediation services, and to achieve predictability regarding their business relationship, those terms and conditions should be drafted in clear and unambiguousplain and intelligible language which is easily understood by an average business user. Terms and conditions should not be considered to have been drafted in clear and unambiguousplain 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, language that could be seen as misleading in the choice of phrasing should not be considered plain and intelligible.
Amendment 135 #
Proposal for a regulation
Recital 14
Recital 14
(14) Ensuring transparency in the general terms and conditions can be essential to promoting sustainable business relationships and to preventing unfair behaviour to the detriment of business users. Providers of online intermediation services should therefore also ensure that the terms and conditions are easily available at all stages of the contractual relationship, including to prospective business users at the pre-contractual phase, and that any modifications to those terms are notified to business users within a set notice period which is reasonable and proportionate in light of the specific circumstances and which is at least 150 days. That notice period should not apply where, and to the extent that, it is waived in an unambiguous manner by the business user concerned, where a modification is of a purely administrative nature and have no negative effect on the end-user, where a modification is needed to prevent an imminent harm or danger to the service or consumer, or where, and to the extent that, the need to implement the modification without respecting the notice period stems from a legal obligation incumbent on the service provider under Union or national law. A business users should be seen as taking an affirmative action accepting a modification and waiving this notice period by continuing to actively use the online intermediation services after notification, either by changing or adding additional goods, content or services, or by a statement of acceptance. The continued offering of goods, content and services placed on the online intermediation services before the modification notice, without the interaction of the business user, should not be deemed as an affirmative action accepting a modification.
Amendment 151 #
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. 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. In order to avoid an unjustified burden by online intermediation services due the potential number of cases, the statement of reasons should take place in two parts. The online intermediation services immediately inform the business user of the general reasons for the decision on the grounds that the provider had set out in advance in its terms and condition. Upon the request of the business users, an additional statement of specific 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. _________________ 22 2018/334 of 1 March 2018 on measures to effectively tackle illegal content online (OJ L 63, 6.3.2018, p. 50). should be provided without delay to the business user. Commission Recommendation (EU) No
Amendment 199 #
Proposal for a regulation
Recital 21 a (new)
Recital 21 a (new)
(21a) Providers of online intermediation services may not prevent business users from offering goods or services to consumers through other means under the same conditions, nor prevent business users from advertising through other means.
Amendment 202 #
Proposal for a regulation
Recital 22
Recital 22
(22) In order to enable business users, including those whose use of the relevant online intermediation services might have been suspended or terminated, to have access to immediate, suitable and effective redress possibilities, providers of online intermediation services should provide for an internal complaint-handling system. That internal complaint-handling system should be aimed at ensuring that a significant proportion of complaints can be solved bilaterally by the provider of the online intermediation services and the relevant business user in a reasonable period of time. In addition, ensuring that providers of online intermediation services publish information on the functioning and effectiveness of their internal complaint- handling system should help business users to understand the types of issues that can arise in the context of the provision of different online intermediation services and the possibility of reaching a quick and effective bilateral resolutionshould regularly review their internal complaint- handling system.
Amendment 207 #
Proposal for a regulation
Recital 23 a (new)
Recital 23 a (new)
(23a) The use of the word ‘internal’ should not be understood as a prevention to delegate an internal complaint- handling systems to an external service provider or other corporate structure as long as the operator have the full authority and ability to handle complaints without seeking additional permissions from the providers of online intermediation services.
Amendment 208 #
Proposal for a regulation
Recital 24
Recital 24
(24) Mediation can offer providers of online intermediation services and their business users a means to resolve disputes in a satisfactory manner, without having to use judicial proceedings which can be lengthy and costly. Therefore, providers of online intermediation services should facilitate mediation by, in particular, identifying mediators with which they are willing to engage. Mediators which provide their services from a location outside the Union should only be identified where it is guaranteed that the use of those services does not in any way deprive the business users concerned of any legal protection offered to them under Union law or the law of the Member States, including the requirements of this Regulation and the applicable law regarding protection of personal data and trade secrets. 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 order to be accessible, fair, and as swift, efficient and effective as possible, thoseall identified mediators should meet certain set criteria.
Amendment 211 #
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. 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 220 #
Proposal for a regulation
Recital 27
Recital 27
(27) Various factors, such as limited financial means, a fear of retaliation and exclusive choice of law and forum provisions in terms and conditions, can limit the effectiveness of existing judicial redress possibilities, particularly those which require business users or corporate website users to act individually and identifiably. To ensure the effective application of this Regulation, organisations, associations representing business users or corporate website users, as well as certain public bodies set-up in Member States, should be granted the possibility to take action before national courts. Such action before national courts should aim to stop or prohibit infringements of the rules set out in this Regulation and to prevent future damage that could undermine sustainable business relationships in the online platform economy. In order to ensure that such organisations or associations exercise that right effectively and in an appropriate manner, they should meet certain criteria. Considering the particular status of the relevant public bodies in Member States where such bodies have been set up, it should only be required that those have been specifically charged, in accordance with the relevant 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. Member States should also communicate to the Commission which organisations, associations and public bodies which are qualified to bring an action according to the provisions of this Regulation. This additional possibility 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. The Commission should ensure the publication of a list of these organisations, associations and public bodies in the Official Journal of the European Union, whereby this list should serve as refutable proof of the legal capacity of the organisation, association or public body bringing the action. 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.
Amendment 221 #
Proposal for a regulation
Recital 28
Recital 28
(28) Codes of conduct, drawn up either by the service providers concerned or by qualified organisations or associations representing them, can contribute to the proper application of this Regulation and should therefore be encouraged. When drawing up such codes of conduct, in consultation with all relevant stakeholders, account should be taken of the specific features of the sectors concerned as well as of the specific characteristics of micro, small and medium-sized enterprises.
Amendment 236 #
Proposal for a regulation
Article 1 – paragraph 2 a (new)
Article 1 – paragraph 2 a (new)
2a. This Regulation shall not apply to: - online advertising serving tools or online advertising exchanges; - online payment services; and - online intermediation services who solely direct or target offers of goods and services from businesses to other businesses
Amendment 252 #
Proposal for a regulation
Article 2 – paragraph 1 – point 2 – point b
Article 2 – paragraph 1 – point 2 – point b
(b) they allowone of their primary purpose is to enable business users to target or direct offers of goods or services to consumers, with a view to facilitating the initiating ofreceiving direct or indirect remuneration from direct transactions between those business users and consumers, irrespective of where those transactions are ultimately concluded;
Amendment 290 #
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 304 #
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 319 #
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 any envisaged modification of their terms and conditions.
Amendment 327 #
Proposal for a regulation
Article 3 – paragraph 3 – subparagraph 2
Article 3 – paragraph 3 – subparagraph 2
The envisaged modifications shall not be implemented before the expiry of a notice period which is reasonable and proportionate to the nature and extent of the envisaged modifications and to their consequences for the business user concerned. That notice period shall be at least 150 days from the date on which the provider of online intermediation services notifies the business users concerned about the envisaged modifications.
Amendment 333 #
Proposal for a regulation
Article 3 – paragraph 3 – subparagraph 3
Article 3 – paragraph 3 – subparagraph 3
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. The continued active use of an online intermediation services shall be deemed an affirmative action.
Amendment 348 #
Proposal for a regulation
Article 3 – paragraph 5
Article 3 – paragraph 5
5. Paragraph 3 shall not apply where a provider of online intermediation services is: (a) subject to a legal obligation which requires it to modify its terms and conditions in a manner which does not allow it to respect the notice period referred to in the second subparagraph of paragraph 3; (b) addressing a security or other imminent danger related to the defend of the online intermediation services from fraud, malware, spam, data breaches or other cybersecurity risks; (c) in order to prevent unforeseen and imminent harm to other users of the online intermediation service. (d) a purely administrative nature and have no clear negative effect on a business user or corporate website user.
Amendment 357 #
Proposal for a regulation
Article 4 – paragraph 1
Article 4 – paragraph 1
1. Where a provider of online intermediation services decides to suspend or terminate, in whole or in part, the provision of its online intermediation services to a given business user, it shall provide the business user concerned, without undue delay, with a general statement of reasons for that decision with reference to the term or condition infringed and provide information as to the complaint handling system under Article 9.
Amendment 363 #
Proposal for a regulation
Article 4 – paragraph 2
Article 4 – paragraph 2
2. TheUpon request from the business user, an additional statement of reasons referred to in paragraph 1 shall containing a reference to the specific facts or circumstances that led to the decision of the provider of online intermediation services, as well as a reference to the applicable objective ground or grounds for that decision referred to in Article 3(1)(c) shall be immediately be provided. The provider in the statement according to paragraph 1 shall state, in a clear and prominent manner, that this additional statement is available, free of charge, and shall ensure that it can be requested in a quick and easy way.
Amendment 374 #
Proposal for a regulation
Article 4 – paragraph 2 a (new)
Article 4 – paragraph 2 a (new)
2a. Where a suspension or termination are based on a correctable infringement of the terms and conditions and not committed in bad faith, provider of online intermediation services shall seek to reinstate the business user as soon as the non-compliance is corrected. Where a suspension or termination is found to be in error, the business user shall be reinstalled without delay and under the same conditions as before the suspension or termination.
Amendment 384 #
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 conditions the main parameters determining ranking and the reasons for the relative importance of those main parameters as opposed to otherir use as parameters.
Amendment 407 #
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 unambiguousplain and intelligible language on the online search engines of those providers. They shall keep that description up to date.
Amendment 414 #
Proposal for a regulation
Article 5 – paragraph 2 a (new)
Article 5 – paragraph 2 a (new)
2a. 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.
Amendment 420 #
Proposal for a regulation
Article 5 – paragraph 3 – introductory part
Article 5 – paragraph 3 – introductory part
3. The descriptions referred to in paragraphs 1 and 2 shall be sufficient to enable the business users or corporate website users to obtain an adequate understanding of whether, and if so how and to what extent, the ranking mechanism takes account of the following:
Amendment 428 #
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 how different parameters and characteristics of goods and services are weighed within rankings.
Amendment 438 #
Proposal for a regulation
Article 5 – paragraph 4 a (new)
Article 5 – paragraph 4 a (new)
4a. Providers of online intermediation services may include clear attempts to manipulate ranking results by business users as grounds for suspension or termination under article 3.
Amendment 479 #
Proposal for a regulation
Article 6 – paragraph 2 a (new)
Article 6 – paragraph 2 a (new)
2a. Paragraph 1 shall not apply where differentiated treatment is required in order to prevent harmful on-line practices, including, among other, frauds, spam and phishing attempts, scams, and malware.
Amendment 551 #
Proposal for a regulation
Article 9 – paragraph 1 – subparagraph 1
Article 9 – paragraph 1 – subparagraph 1
Providers of online intermediation services shall provide for an internal system for handling the complaints of registered business users of an online intermediation service.
Amendment 556 #
Proposal for a regulation
Article 9 – paragraph 1 – subparagraph 2 – introductory part
Article 9 – paragraph 1 – subparagraph 2 – introductory part
That internal complaint-handling system shall be easily accessible for business users and ensure handling within a reasonable timeframe. It shall allow them to lodge complaints directly with the provider concerned regarding any of the following issues:
Amendment 569 #
Proposal for a regulation
Article 9 – paragraph 2 – point c
Article 9 – paragraph 2 – point c
(c) communicate to the complainant the outcome of the internal complaint- handling process, in an individualised manner and drafted in clear and unambiguousplain and intelligible language.
Amendment 579 #
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 ofregularly review their internal complaint-handling system.
Amendment 585 #
Proposal for a regulation
Article 9 – paragraph 4 – subparagraph 2
Article 9 – paragraph 4 – subparagraph 2
Amendment 604 #
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 626 #
Proposal for a regulation
Article 10 – paragraph 3
Article 10 – paragraph 3
3. 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 627 #
Proposal for a regulation
Article 10 – paragraph 3 a (new)
Article 10 – paragraph 3 a (new)
3a. Where an online intermediation services believes, based on evidence, that a business user is requesting mediation in bad faith, it may refuse to enter into mediator.
Amendment 628 #
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 638 #
Proposal for a regulation
Article 10 – paragraph 4 a (new)
Article 10 – paragraph 4 a (new)
4a. The obligation set out in paragraph 1 shall not apply to providers of online intermediation services that are small enterprises within the meaning of Article 2(2) of the Annex to Recommendation 2003/361/EC.
Amendment 697 #
Proposal for a regulation
Article 13 – paragraph 1
Article 13 – paragraph 1
1. The Commission shall encourage the drawing up of codes of conduct by providers of online intermediation services and by organisations and associations representing themorganisations and associations representing online intermediation services and business users, intended to contribute to the proper application of this Regulation, taking account of the specific features of the various sectors in which online intermediation services are provided, as well as of the specific characteristics of micro, small and medium-sized enterprises.
Amendment 724 #
Proposal for a regulation
Article 15 – paragraph 2
Article 15 – paragraph 2
2. It shall apply from [date: sixtwelve months following the day of its publication].