P2B - Business users of online platforms

The obligations under the P2B Regulation apply to:

• providers of 'intermediation services' – i.e. online platforms that offer services:
  • normally provided on a paying, remotely, by electronic means and at the individual request of a recipient of services (point (b) of Article 1(1) of Directive (EU) 2015/1535);
  • enabling business users to offer goods or services to consumers, to facilitate the initiation of direct transactions between businesses and consumers (whether or not they end up being concluded, and whether they are online or offline); and
  • based on contractual relations between the service provider and the business users;
• providers of online search engines (with regard to certain obligations indicated below).

Providers of online platforms or search engines must fulfil the obligations of the P2B Directive with regard to:

• any business user (legal entity or individual in the context of their commercial or professional activity) established in the EU that:
  • offers goods or services to consumers based in the EU;
  • through online intermediation services (online platforms).

Providers of online platforms ('intermediation services') must ensure that the terms and conditions they set unilaterally satisfy certain criteria relating to form, accessibility and content. The concept of transparency plays a vital role in the drafting of terms and conditions to ensure the predictability of the commercial relations between the business user and the provider.

Form and accessibility of the terms and conditions

Providers of online platforms shall ensure that their terms and conditions:

• are drafted in plain and intelligible language, and
• are easily available to business users (or anyone hoping to become one) at all stages of their commercial relationship.

To meet these requirements, the provider can, for example, present the terms and conditions:

• by indicating each subject covered on a main page;
• by publishing them in full, without fragmentation; and
• by detailing and specifying the key commercial questions.

Content of the terms and conditions

Providers of online platforms and search engines must ensure that their terms and conditions include:

• information on any additional distribution channels and potential affiliate programmes through which providers of online intermediation services might market goods and services offered (Art. 3);
• information regarding the effects of the terms and conditions on the ownership and control of intellectual property rights of business users (Art. 3);
• information on the conditions under which business users can terminate the contractual relationship with the provider of online intermediation services (Art. 8);
• a description of the technical and contractual access, or absence thereof, to the information provided or generated by the business user, which they maintain after the expiry of the contract between the provider of the platform and the business user (Art. 8);
• a description of the type of ancillary goods and services that can be offered to the consumer on the platform, by the provider or by third parties, before completion of a transaction, and the conditions under which the business user is also allowed to offer its own ancillary goods and services;
  Example of ancillary goods and services: other related items, repair services, instalment payment services, extended warranty, etc.;
• a description of any differential treatment which might be given to goods or services offered on the platform or the search engine by the provider itself or by the business users controlled by it in relation to other business users (Art. 7). In particular, these descriptions indicate:
  • the access of each party to the personal or other data provided by the businesses, users or consumers;
  • the ranking parameters on the platform;
  • any remuneration charged for the use of the platform or search engine;
  • access to services, functions or technical interfaces ancillary to or connected with the platform or search engine (e.g. online payment application) with their conditions of use and remuneration (Art. 7);
• a description of the technical and contractual access of business users to any personal data or other data:
  • provided by the business users or consumers;
  • or generated by the platform through the provision of the services.

This information on access must be easily available to both (potential) business users and the general public (Art. 9);

• if necessary, the grounds (legal, economic or commercial) justifying any restriction of the capacity of business users to offer their goods or services under different conditions through other channels. Such clauses are also known as 'parity clauses', 'Most-favoured-nation clauses' or 'MFN clauses' (Art. 10);
• information relating to access and the functioning of the internal complaint-handling system and two or more mediators whom business users can contact to attempt to resolve any disputes with the online platform provider in question. (Art. 12).

Changes to terms and conditions

If a provider wishes to make changes to its terms and conditions, it must give business users reasonable notice of at least 15 days before applying these changes, unless:

• it has a specific legal obligation; or
• there is an unforeseen and imminent danger related to fraud, malware, spam, data breaches or other cybersecurity risks.

Any change for which this obligation is not met shall be considered null and void.

The provider shall grant a longer notice period when necessary to allow enterprises to make the required technical or commercial adaptations (Art. 3 (2)).

Providers must not impose retroactive changes to their terms and conditions, except:

• when they are required to respect a legal or regulatory obligation; or
• when the retroactive changes are beneficial for the business users.

The provider must grant its business users the right of termination and indicate whether or not it maintains access to business users' data once their contract has been terminated (Art. 8).

Visibility of the business user

The identity of the business user providing the goods or services must be visible (Art. 3 (5)).

Ranking of goods and services

The provider shall ensure the predictability of and describe the ranking parameters according to the characteristics of the goods and services offered to consumers, the relevance of the characteristics for consumers and, where applicable, the design features of the website used by corporate website users.

Providers shall therefore set out:

• the main ranking parameters and the relative importance of those main parameters as opposed to others:
  • with regard to providers of online platforms: in their terms and conditions, specifying the reasons for the relative importance of those parameters;
  • with regard to providers of online search engines: on their search engines, with an easily and publicly available, up-to-date description, in plain and intelligible language;
• a detailed description of the possibilities and effects on ranking when it is possible to influence ranking for any direct or indirect remuneration;
• information concerning any differential treatment that gives or might give privileges or advantages to the service provider over other users of the services;
• the terms for inspecting the contents of any third-party notification following which a search engine has altered the ranking or delisted a particular website.

The European Commission guidelines on ranking transparency provide further details on the corresponding requirements.

Inspection of notifications

If a provider of online search engines has altered the ranking order or delisted a website following notifications, it must allow the corporate website users concerned to inspect the contents of those notifications (Art. 5).

Restriction, suspension and termination

If it decides to restrict or suspend the provision of its services to a business user, the provider must:

• send the enterprise the reasons for this decision on a durable medium;
• either before, or at the time the restriction or suspension takes effect.

If it decides to completely terminate the services, the provider must:

• to safeguard the proportionality of the measure, delist only the goods or services in question (if this is technically reasonable and feasible);
• send the undertaking the reasons for this decision on a durable medium, subject to a notice period of 30 days (save in exceptional cases).
  This notice period does not apply when (Article 4, recital 23):
  • provided for by a legal or regulatory obligation;
  • the termination is for an essential reason provided for by national or EU law (e.g. risks related to the safety of a good or service, counterfeiting, fraud, malware, spam, data breaches, etc.); or
  • the business user has repeatedly infringed the applicable terms and conditions.

Within the internal complaint-handling system, the provider must offer the business user the opportunity to clarify the facts and circumstances that led to that decision.

If the decision is revoked, the business user must be reinstated without undue delay and be given access to personal or other data that resulted from its use of the services before the decision was implemented.

Internal complaint-handling system

Providers of online platforms that employ more than 50 people or whose annual turnover is more than EUR 10 million have an obligation to implement and manage an internal system for handling complaints from business users. This system must be free of charge, be easily accessible and ensure complaints are handled within a reasonable timeframe.

Providers of online platforms have an obligation to provide business users who ask for it with information on the functioning and effectiveness of their internal complaint-handling systems (Art. 11).