Activities of Angelika MLINAR 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 (29)
Amendment 63 #
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 66 #
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 80 #
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.
Amendment 84 #
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 15 days before being implemented. 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.
Amendment 86 #
(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. 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, unless of a purely administrative nature and have no negative effect on the end-user or directly imposed by legislative or regulatory provisions.
Amendment 106 #
Proposal for a regulation
Recital 19
Recital 19
(19) Where a provider of online intermediation services itself offersor online search engine offers itself certain goods or services to consumers through its own online intermediation services or online search engine, or does so through a business user which it controls, that provider may compete directly with other business users of its online intermediation services which are not controlled by the provider. In such situations, in particular, it is important that the provider of online intermediation services or online search engine acts in a transparent manner and provides a description of any differentiated treatment, whether through legal, commercial or technical means, that it might give in respect of goods or services it offers itself compared to those offered by business users. To ensure proportionality, this obligation should apply at the level of the overall online intermediation services, rather than at the level of individual goods or services offered through those services.
Amendment 126 #
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 141 #
Proposal for a regulation
Article 1 – paragraph 2
Article 1 – paragraph 2
2. This Regulation shall apply to online intermediation services and online search engines provided, or offered to be provided, to business users and corporate website users, respectively, that have their place of establishment or residence in the Union and that, through online intermediation services or online search engines, offertarget or direct sales of goods or services to consumers located in the Union, irrespective of the place of establishment or residence of the providers of those services.
Amendment 147 #
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 purposes 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 171 #
Proposal for a regulation
Article 3 – paragraph 1 – introductory part
Article 3 – paragraph 1 – introductory part
1. Providers of online intermediation services and online search engines shall ensure that their terms and conditions:
Amendment 173 #
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 178 #
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, including but not restricting to, practices and online security threats that a can cause immediate harm to business users or consumers.
Amendment 182 #
Proposal for a regulation
Article 3 – paragraph 1 – point c a (new)
Article 3 – paragraph 1 – point c a (new)
Amendment 200 #
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 isor online search engine 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 defence of the online intermediation services from fraud, malware, spam, data breaches or other cybersecurity risks.
Amendment 208 #
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 notify its intention to the business user concerned at least 15 days before implementation and provide the business user concerned, without undue delay, with a statement of reasons for that decision.
Amendment 224 #
Proposal for a regulation
Article 5 – paragraph 1 – subparagraph 1
Article 5 – paragraph 1 – subparagraph 1
Providers of online intermediation services and online search engines 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 other parametersir use.
Amendment 238 #
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 271 #
Proposal for a regulation
Article 7 – paragraph 1
Article 7 – paragraph 1
1. Providers of online intermediation services or online search engines shall include in their terms and conditions a 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 or the online search engine concerned or which are generated through the provision of those services.
Amendment 272 #
Proposal for a regulation
Article 7 – paragraph 1
Article 7 – paragraph 1
1. Providers of online intermediation services shall include in their terms and conditions a 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 275 #
Proposal for a regulation
Article 7 – paragraph 2 – introductory part
Article 7 – paragraph 2 – introductory part
2. Through the description referred to in paragraph 1, providers of online intermediation services or online search engine shall adequately inform business users at least of the following:
Amendment 280 #
Proposal for a regulation
Article 7 – paragraph 2 – point a
Article 7 – paragraph 2 – point a
(a) whether the provider of online intermediation services or online search engine has access to personal data or other data, or both, which business users or consumers provide for the use of those services or which are generated through the provision of those services, and if so, to which categories of such data and under what conditions;
Amendment 284 #
Proposal for a regulation
Article 7 – paragraph 2 – point b
Article 7 – paragraph 2 – point b
(b) whether a business user has access to personal data or other data, or both, provided by that business user in connection to his or her use of the online intermediation services or online search engine concerned or generated through the provision of those services to that business user and the consumers of his or her goods or services, and if so, to which categories of such data and under what conditions;
Amendment 286 #
Proposal for a regulation
Article 7 – paragraph 2 – point c
Article 7 – paragraph 2 – point c
(c) whether, in addition to point (b), a business user has access to personal data or other data, or both, including in aggregated form, provided by or generated through the provision of the online intermediation services or the online search engine to all of the business users and consumers thereof, and if so, to which categories of such data and under what conditions.
Amendment 290 #
Proposal for a regulation
Article 7 – paragraph 2 a (new)
Article 7 – paragraph 2 a (new)
2 a. Business users shall have access to all the data acquired by the provider of online intermediation services or online search engines as a result of their commercial activity of those business users, in line with the relevant Union law applicable to the protection of personal data and privacy.
Amendment 303 #
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 323 #
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 330 #
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 346 #
Proposal for a regulation
Article 12 – paragraph 3
Article 12 – paragraph 3
3. The right referred to in paragraph 1 shall be without prejudice to the rights of business users and corporate website users to individually take action before competent national courts, in accordance with the rules of the law of the Member State where the action is brought, to address any non-compliance by providers of online intermediation services or online search engines with the relevant requirements laid down in this Regulation.
Amendment 350 #
Proposal for a regulation
Article 14 – paragraph 1
Article 14 – paragraph 1
1. By [date: threewo years after the date of entry into force], and subsequently every three years, the Commission shall evaluate this Regulation and report to the European Parliament, the Council and the European Economic and Social Committee.