publication date: January 04, 2023
Undoubtedly, “online intermediation services” is an increasingly popular key term in Polish and EU legislation, which has recently been enriched with the Regulation of the European Parliament and of the Council on the single market for digital services (Digital Services Act) and amending Directive 2000/31/EC, which in this issue is of significant importance within the framework of the so-called new “Internet Constitution” created in the European Union as part of the Digital Single Market policy.
The term “intermediary services” can be colloquially understood as Internet services, in the form of a website, used to mediate between the entrepreneur and the consumer.
An example of such services may be operations on the exchange platform with a unit of electronic credit or a derivative of a conventional insurance instrument on a conventional exchange platform using a brokerage platform, because the consumer using the brokerage platform’s website uses an intermediary since he does not directly contact the entity directly involved in the transaction.
Regulation 2019/1150 (hereinafter: the P2B Regulation) should also apply to such brokerage services of trading in quasi stock exchange instruments, in addition to the standard subject of trading, such as, for example, the sale of hotel services via electronic platforms. Intermediation services in the acquisition of investment instruments through brokerage platforms for trading conventional units of commercial, investment or insurance entities and derivatives do not seem to be covered by the exemption from the application of the P2B Regulation pursuant to Art. 1(3) according to which “the Regulation does not apply to online payment services or to online advertising tools or online advertising exchanges that are not provided to facilitate the initiation of direct transactions and that do not involve contractual relationships with consumers“. In the trade journalism, it is indicated that the fact that the final transaction can be concluded outside the network, or even does not have to be concluded at all, and that it does not have to be connected with a payment on the part of the consumer, “makes the catalogue of entities qualifying as a service provider considerably wide. It includes not only e-commerce platforms (e.g. Allegro, OLX), app stores (e.g. App Store, Google Play, Galaxy Store) or online social networking sites (e.g. Facebook, Instagram), but also e.g. price comparison websites (e.g. Ceneo), short-term rental platforms (e.g. Airbnb), airline ticket booking websites (e.g. eSky.pl), websites for booking visits with service providers (e.g. Booksy), search engines for booking products (e.g. gdziepolek.pl)“.
Therefore, in connection with the aforementioned increase in popularity of previously uncodified online intermediation services at the EU level, this term was regulated by the P2B Regulation. Pursuant to this legal act, “online intermediation services” should be considered to be services that jointly:
It is worth noting that in order to understand the terms “provider of online intermediation services” and “business user”, a linguistic interpretation can be used, as it is consistent with legal definitions.
Basics and objectives of the P2B Regulation
From the perspective of legislative purpose, the essence of the P2B Regulation is to protect the business user, i.e. an ENTITY offering its BROKERING OR HOTEL services via a website. As a rule, the “user” cannot be treated as a consumer in a way that is directly identical on the basis of national regulations, because, for example, according to the definition contained in the Polish Civil Code of April 23, 1964 (Polish Journal of Laws 2022.1360. consolidated text), a consumer is a person who performs activities not directly related to his business activity. However, in relation to the “business user” and the “Internet intermediary”, it is the business user that is the weaker party, because it is dependent on the other party (identical to the consumer). Therefore, the subject of the “online intermediation service” is de facto the relationship between the consumer and the entrepreneur, hence the protection granted over the strictly consumer entity seems to be also very justified on the basis of this Regulation.
What is more, the territorial scope of the P2B Regulation is not limited only to the Member States, but also applies to providers based outside the European Union, after meeting several enumerated conditions.
It is worth noting that the P2B Regulation should apply when the terms of the relationship being the subject of intermediation are unilaterally determined by the provider of online intermediation services, which somehow emphasizes the importance of the principle of freedom of contracts.
In accordance with the above, the most important purpose of the legal act is to protect the business user (and not only the user who is a consumer in the classic legal definition).
The most important provisions
Pursuant to the P2B Regulation, complaints are to be resolved within a reasonable time through the mediation process, carried out by 2 mediators, obligatorily indicated by the brokerage service provider. It is worth noting that business users, regardless of the voluntary nature of mediation, are obliged to cooperate with mediators in good faith. This principle puts pressure on the amicable process of settling the case, while depreciating the business user’s right to bring the case to the competent court, but does not deprive him of this possibility. Other entities, such as organizations and associations with a legitimate interest in representing business users, may also bring a case to court. It is a relatively interesting institution, as it creates a new catalogue of entities with the capacity to perform procedural acts, which results from a very broad legal legitimacy, which is precisely the interest in representation.
Other important provisions of the P2B Regulation include the obligation to notify the user (15 day notice period) in the event of changes in the use of the service and justifying a restriction in the provision of services, e.g. differentiated treatment, which may consist in ranking, i.e. displaying certain search results first (30 day notification period).
The subject covered is a very broad issue and it is practically impossible to regulate all the problems in one legal act. Therefore, the European Union has prepared another Regulation (EU) 2022/2065 of 19 October 2022 on the single market for digital services and amending Directive 2000/31/EC (Digital Services Act), (Journal of Laws of the European Union 2022.277. 1) . It is worth noting that the Regulation has already entered into force, however, most of the crucial provisions will come into force from February 2024, which is a repeatable practice of the community, as it allows entities to prepare for the changes.
The most important conditions that must be met by Internet brokerage service providers are:
Accordingly, the online intermediation industry requires constant regulation, as evidenced by the above-mentioned Regulation of 2022, the Digital Services Act, which, as well as the 2019 Act, emphasizes the protection of the business service provider, i.e. the weaker party. The most important goal of the European Union is to ensure easy and transparent contact with the Internet brokerage service provider, which in the case of such a large industry is undoubtedly a key element for its further functioning.