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The P2B Regulation – regulating the e-commerce gatekeepers

13 July 2020 – The EU Platform to Business Regulation (the ‘P2B Regulation’) came into effect on 12 July 2020.  The P2B Regulation applies to all online platforms and search engines which provide services to business users in the EU, where those business users offer goods or services to consumers in the EU.  The location of the platform is irrelevant if goods or services are being offered to business customers and consumers in the EU.  Examples of business that will be subject to the P2B Regulation include online marketplaces (e.g. Amazon), accommodation booking platforms (e.g. Airbnb), and app stores – the ‘gatekeepers’ for consumer e-commerce.

The P2B Regulation requires online platforms and search engines to have terms and conditions for its business users that are clearly and plainly drafted, and include the following:

  1. Minimum 15-day notice for any amendments to the Ts&Cs, with the right for the business user to terminate if it doesn’t agree with an amendment.
  2. Objective reasons for which the platform provider can suspend, terminate or restrict access to its services. Platform providers must give at least 30 days’ notice to a business user, unless as a result of the business user’s persistent breach
  3. Information about the criteria or parameters used by the platform provider when ranking business users, including (if applicable) the effect of payments by business users on rankings.
  4. Details of any different treatment or other advantages the platform provider gives to its own goods or services over those of business users.
  5. Details of any restrictions on the business user offering its goods or services on other platforms on more favourable terms, and the reasons for such restrictions.
  6. Whether any business user data is shared with third parties, and if so for what purposes, and whether the business user can opt out of such data sharing.

If a platform provider fails to comply with these requirements the relevant provisions will not be enforceable against a business user.

In addition, online platforms must set up an internal complaint-handling/mediation system to help business users, with limited exemptions for smaller platforms.  Also, business associations will be able to take platforms to court to stop any non-compliance with the rules.

The P2B Regulation will continue to apply after the Brexit transition period by virtue of The Online Intermediation Services for Business Users (Enforcement) Regulations 2020, although (as with all EU law that is retained by the UK) it can then be amended or revoked.

 

Marcus Andreen

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