The focus of this blog is the European Regulation 2019/1150 to promote fairness and transparency for business users of online intermediary services, the so-called “Platform-to-business Regulation” (hereinafter: the P2B Regulation) . The P2B Regulation entered into force on July 12, 2020, and imposes obligations on online intermediary services and online search engines in the European Union (Article 1(2) P2B Regulation). The aim of the P2B Regulation is to improve the protection of business users of these platforms.
What are online intermediary services?
An online intermediary service is an online platform. This includes online marketplaces for e-commerce, but also app stores, social media and sharing platforms. Article 2 paragraph 2 P2B Regulation sets three requirements to meet the definition of online intermediary services:
They constitute information society services;
They allow business users to offer goods or services to consumers;
They are provided to business users on the basis of contractual relations between the provider of such services and business users who offer goods or services to consumers.
One example is platforms such as Amazon and eBay, on which businesses can offer their products online. Booking.com, Airbnb and the Apple App Store also fall within the scope of the P2B Regulation.
What rules does the P2B Regulation impose?
The P2B Regulation mainly contains rules on transparency. Thus, the general terms and conditions of online intermediary service providers must be formulated in clear and understandable language and must be easily available to business users (Article 3(1) P2B Regulation). Furthermore, the general terms and conditions must contain sufficient information on certain topics, such as the reasons for decisions to suspend, terminate or otherwise restrict the use of the platform by business users (Article 4 P2B Regulation). If the online intermediary decides to terminate the use, it must inform the seller 30 days before the termination becomes effective (Article 4(2) P2B Regulation).
If the general conditions are to be changed, the seller first has a 15-day period of notice in which to decide whether or not to accept the new conditions (Article 3(2) P2B Regulation). This period of notice does not apply if the change is due to a legal obligation on the part of the online intermediary.
Disputes between seller and platform
For disputes, platforms should have an internal complaint handling system. Sellers must be able to submit their complaints quickly and easily (Article 11 P2B Regulation). In addition, these platforms must appoint two or more mediators in order to reach an out-of-court settlement of disputes (Article 12 P2B Regulation). These mediators must, among other things, be impartial, independent and affordable. If legal proceedings are instituted, organisations and associations with a legitimate interest in representing business users have the right to sue on behalf of the sellers (Article 14 P2B Regulation).
Enforcement in the Netherlands
The Dutch government is currently working on a bill to implement the P2B Regulation. In this bill it is proposed to charge the ACM with the administrative supervision of compliance with the P2B-Regulation (Article 3 of the bill). In the exercise of its duties, the ACM is authorised to impose administrative fines of up to € 870.000,- or 1% of the turnover of the platform (Article 6 of the bill).
However, the ACM's enforcement powers are limited to infringements that may harm the collective interests of sellers. It therefore plays no role in individual disputes, but only plays a role if there is a violation of the collective sellers' interest (Article 5 of the bill).
Conclusion
The P2B Regulation offers legal protection to sellers on platforms of online intermediary service providers such as Amazon and eBay. This protection consists mainly of transparent and understandable general terms and conditions and a separate dispute resolution procedure. In the Netherlands, the ACM is expected to be charged with the administrative supervision of compliance with the P2B Regulation.
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