BETA

30 Amendments of Marisa MATIAS related to 2018/0112(COD)

Proposal for a regulation
Recital 2

(2) Online intermediation services can be crucial for the commercial success of undertakings who use such services to reach consumers. This worthwhile role must be carried out in a transparent and trustworthy manner, subject to clear rules laid down in advance for all actors and provided that a level playing field is established for all those involved in the operations. The growing intermediation of transactions through online intermediation services, fuelled by strong data-driven indirect network effects, lead to an increased dependence of such business users, including micro, small and medium- sized enterprises, 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 effectively 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.

2018/09/27
Committee: ITRE

Proposal for a regulation
Recital 3

(3) 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. For that reason, transparency, equal treatment and doing away with practices which make it difficult for companies to operate and are detrimental to consumers are important. Even in the absence of a contractual relationship with corporate website users, providers of online search engines can therefore effectively 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. Unwelcome practices of this kind which should be eradicated from online commercial activity include so-called ‘price parity clauses’ or ‘most favoured customer clauses’, which are clearly damaging to companies (particularly small companies) and consumers. These practices serve to entrench the monopolies and oligopolies enjoyed by some major e- platforms. These clauses force user companies to offer their lowest rate on a given online platform, whether this means a lower rate than those offered on any other platform or their lowest rate as stipulated on their website.

2018/09/27
Committee: ITRE

Proposal for a regulation
Recital 4

(4) The dependence of business users on online intermediation services also leads to a situation in which business users often have limited possibilities to seek redress where unilateral actions of the providers of those services lead to a dispute. This applies in particular to micro, small and medium-sized enterprises, which do not have the human, technical or financial resources needed to ensure that contracts are beneficial to and transparent for both parties. In many cases, those providers do not offer accessible and effective internal complaint- handling systems. It may also be that the systems at EU level are very different. 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.

2018/09/27
Committee: ITRE

Proposal for a regulation
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 Memb~~with the brunt of the problem being borne by micro, small and medium-sized enterprises. A cross-border regulatory framework should be established which lays down how issues including the following should be handled: tax payments, labour issues and issues concerning the transparent hiring of services, among others, with a view to ensuring the proper functioning of the market and fair and balanced competition. Lastly, a proper Sta~~tes are considering adopting such laws~~x system is needed for operations of this kind, one which makes for equality in tax treatment for companies and does not incentivise fiscal dumping.

2018/09/27
Committee: ITRE

Proposal for a regulation
Recital 6

(6) A uniform and targeted set of mandatory rules should therefore be established at Union level to ensure a fair, predictable, sustainable and trusted online business environment ~~within the internal market~~ by ensuring, in particular, that the business users of online intermediation services are afforded appropriate transparency as well as effective redress possibilities throughout the Union. Those rules should also provide for appropriate transparency as regards the ranking of corporate website users in the search results generated by online search engines. At the same, those rules should be such as to safeguard the important innovation potential of the wider online platform economy.

2018/09/27
Committee: ITRE

Proposal for a regulation
Recital 7 a (new)

(7a) It is also very important to foster proper training for consumers and companies in the fields covered by this Regulation, with a view to significantly improving opportunities for consumers and companies to get involved in regulating the sector. Similarly, workers and their representatives must be able to participate properly in the regulation of the sector, not only with regard to their working conditions, but also as a means of improving public scrutiny of the sector’s activities as a whole.

2018/09/27
Committee: ITRE

Proposal for a regulation
Recital 12

(12) 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 not individually negotiated by the parties to them. It should also apply in situations where, even though a contractual relationship has been individually negotiated, there is evidence that the negotiation was unfair or based on a failure to share information, or where it seems that a company has made use of its position as a monopoly or oligopoly. Whether or not terms and conditions were individually negotiated should be determined on the basis of an overall assessment, whereby the fact that certain provisions thereof may have been individually negotiated is, in itself, not decisive.

2018/09/27
Committee: ITRE

Proposal for a regulation
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 1530 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 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.

2018/09/27
Committee: ITRE

Proposal for a regulation
Recital 15

(15) In order to protect business users it should be possible for a competent court to establish that non-compliant terms and conditions are not binding on the business user concerned, with effects ex nunc. Any such finding by a court 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, provided that continued provision of the service does not cause irreparable harm to the company in question. Sudden modifications 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, modifications 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.

2018/09/27
Committee: ITRE

Proposal for a regulation
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 in advance. The statement of reasons should al~~low 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~~ways be presented in a clear and transparent manner and meet specific criteria. Business users should be allowed to challenge the decision and effective means of redress should be available to them for that purpose. 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 2018/3342222. 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. _________________ 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).

2018/09/27
Committee: ITRE

Proposal for a regulation
Recital 17

(17) 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. Providers of online intermediation services 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 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. 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 of the relative effects thereof. This description 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. Attempts to influence the ranking in exchange for monetary compensation should be banned.

2018/09/27
Committee: ITRE

Proposal for a regulation
Recital 20

(20) The ability to access and use data, including personal data, can enable important value creation in the online platform economy. 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, in order to enable business users to understand whether they can use the data to enhance value creation, including by possibly retaining third-party data services. Processing of personal data should comply with Regulation (EU) 2016/679 of the European Parliament and of the Council.24 At all events, businesses should be able to make use of data obtained through the provision of services for their own commercial purposes. _________________ 24 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) (Text with EEA relevant) (OJ L 119, 4.5.2016, p. 1).

2018/09/27
Committee: ITRE

Proposal for a regulation
Recital 21

(21) Providers of online intermediation services might in certain cases restrict in the 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 in accordance with Union law, including in the areas of competition and unfair commercial practices, and the application of such laws.deleted

2018/09/27
Committee: ITRE

Proposal for a regulation
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. This system should be clear and easy to access and should lay down the complaint-handling and resolution procedures. 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 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 resolution.

2018/09/27
Committee: ITRE

Proposal for a regulation
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. MUnder no circumstances may access be given to the mediators which provide ~~their~~a services from a location outside the Union ~~should only be identified where it is~~if the mediators do not guaranteed that the use of th~~ose~~eir 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.

2018/09/27
Committee: ITRE

Proposal for a regulation
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. That proportion should be larger when the other party is a micro, small or medium- sized enterprise. 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.

2018/09/27
Committee: ITRE

Proposal for a regulation
Recital 26 a (new)

(26a) The Commission should support the creation of a portal for complaints about online intermediation services, and that portal should include the code of conduct and rules on the functioning of those services, together with an explanation of complaining parties’ rights and the options available to them in disputes or if unfair or fraudulent activities have taken place.

2018/09/27
Committee: ITRE

Proposal for a regulation
Recital 29

(29) The Commission should periodically evaluate this Regulation, in particular with a view to determining the need for amendments in light of relevant technological or commercial developments. Within two years, it shall present an assessment of compliance with the Regulation.

2018/09/27
Committee: ITRE

Proposal for a regulation
Article 3.º – paragraph 1 – point a

(a) are drafted in clear and ~~unambiguous~~carefully chosen language;

2018/09/27
Committee: ITRE

Proposal for a regulation
Article 3.º – paragraph 1 – point c

(c) set out the objective, clear and transparent grounds for decisions to suspend or terminate, in whole or in part, the provision of their online intermediation services to business users.

2018/09/27
Committee: ITRE

Proposal for a regulation
Article 3.º – paragraph 3 – subparagraph 1

Providers of online intermediation services shall notify to the business users concerned any envisaged modification of their terms and conditions. Notification should be provided by the pre-established deadlines and in line with criteria laid down in the partnership agreements.

2018/09/27
Committee: ITRE

Proposal for a regulation
Article 3.º – 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 1530 days from the date on which the provider of online intermediation services notifies the business users concerned about the envisaged modifications.

2018/09/27
Committee: ITRE

Proposal for a regulation
Article 3.º – 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.~~deleted

2018/09/27
Committee: ITRE

Proposal for a regulation
Article 4.º – 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 statement of reasons for that decision and a clear indication of the date that the suspension or termination will take effect.

2018/09/27
Committee: ITRE

Proposal for a regulation
Article 4.º – 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 reference to the applicable objective ground or grounds for that decision referred to in Article 3(1)(c). The company shall also be able to change the situation or reasons which prompted the decision by the online platform.

2018/09/27
Committee: ITRE

Proposal for a regulation
Article 5.º – paragraph 1 – subparagraph 2

Where those main parameters include 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 and conditions a description of those possibilities and of the effects of such remuneration on ranking.deleted

2018/09/27
Committee: ITRE

Proposal for a regulation
Article 5.º – paragraph 1 – subparagraph 2 a (new)

Offering payment in return for a change in the ranking of a service should be possible only if the aim is to change the ranking of advertisements for the service, but not its actual ranking.

2018/09/27
Committee: ITRE

Proposal for a regulation
Article 5.º – 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.deleted

2018/09/27
Committee: ITRE

Proposal for a regulation
Article 6.º – paragraph 1

1. Providers of online intermediation services shall include in their terms and conditions a description of any differentiated treatment which they give, or may give, in relation to, on the one hand, goods or services offered to consumers through those online intermediation services by either that provider itself or any business users which that provider controls and, on the other hand, other business users. Practices known as ‘price parity clauses’ or ‘most favoured customer clauses’ which force business users to offer their lowest rate on a given online platform, whether a rate lower than that offered on any other platform or the lowest rate stipulated on their website. Those clauses distort competition and unfairly give companies a monopoly or oligopoly.

2018/09/27
Committee: ITRE

Proposal for a regulation
Article 10.º – paragraph 2 – point b

(b) their mediation services are ~~afforda~~financially and technically accessible for an average business user of the online intermediation services concerned;

2018/09/27
Committee: ITRE