Background
Platform-based business models spread, among other things due to network effects (i.e., the effect that the utility of a platform increases disproportionately as the number of users increases; or that the value for a provider increases because complementary products are available on the platform; or that the platform is improved by learning effects – i.e., data evaluations).
Providers can abuse this power. The European legislator has therefore introduced the new Platform-To-Business Regulation (P2B-VO), which aims to redress the imbalance between platforms and their commercial users, among other things by specifying the content of GTCs. The P2B Regulation will enter into force on July 12, 2020.
Scope
The P2B-VO applies to Online mediation services and Online search enginesThese include traditional marketplaces (e.g., eBay) and app stores, as well as social networks (e.g., Facebook) and booking and price comparison portals, but not, for example, pure B2B platforms without consumer relevance and peer-to-peer intermediaries in which no commercial providers are involved, or pure payment services or online advertising exchanges.
Operators of covered services are covered by the P2B-VP even if they are based in outside the EU provided that two conditions are met. In order to understand these conditions, it is important to keep in mind that the P2B Regulation is not aimed at the relationship between platforms and consumers, but at that between platforms and the commercial users on the platform.
See recital 6:
Since online intermediary services and online search engines usually have a global dimension, this Regulation should apply to providers of these services apply independentlywhether they are located in a Member State or Outside the Union are established, provided that two cumulative conditions are met.
Firstly, the commercial users or the users with corporate website established in the Union be
Secondly, the commercial users or the users with business website should provide their goods or services with the help of these services Offer consumers who are in the Union with respect to at least a portion of the transaction.
For the second requirement, the offer to consumers in the EU, the targeting criterion applies, i.e. only the obvious targeting of consumers in a Member State is sufficient.
Platform provider with Headquarters in Switzerland therefore fall under the P2B regulation if their commercial users target end users in the EU.
Requirements
The P2B Regulation initially sets certain requirements for General terms and conditions of the platform providerswhich, among other things, must be formulated in a clear and understandable manner, be readily available and include a larger number of specific Specify points explicitly have to (among others, product ranking criteria, access of commercial users to usage data, further use of data by the platform provider after the commercial user has left, preferential treatment of the platform operator’s own offers).
There are also specifications to the communication about Changes to the GTC and its enactment, and the platform must ensure that the Identity of commercial users clearly recognizable is. In addition, when a ranking or delisting is changed due to a third-party communication, this communication must be disclosed (anonymously), and the P2B Regulation contains requirements on Dispute resolution mechanisms between platform and commercial users.
Consequences of an injury
General terms and conditions of the platform operator that do not comply with the requirements of the P2B Regulation may be null and void, and violations may be subject to a warning. In addition, the member states must ensure enforcement at the national level, for which “effective, proportionate and dissuasive” measures must be taken.