Online marketplaces: new requirements due to the P2B Regulation on the invalidity of general terms and conditions and other requirements
What are online brokerage services
All - in common parlance - internet marketplaces, or - according to the legal term - all online intermediary services are covered. Online intermediation services under the P2B Regulation are all platforms that meet the following requirements:
It is an internet service (whereby the exact definition is technology-neutral).
The platform enables business users to offer goods or services to consumers by facilitating the initiation of direct transactions between those business users and consumers via the platform, irrespective of where those transactions are ultimately concluded.
The platform is provided to business users on the basis of a contractual relationship between the platform provider and the business users.
The P2B Regulation therefore applies not only to typical internet marketplaces that are accessible via the internet browser, but also, for example, to software distribution platforms, such as a store for smartphone apps and corresponding online social media services. An internet marketplace may even exist if it is only accessed via voice assistance systems.
However, peer-to-peer online intermediation services that do not involve business users, pure business-to-business online intermediation services that are not offered to consumers, online advertising placement tools and online advertising exchanges that are not provided to facilitate the initiation of direct transactions and where there is no contractual relationship with consumers are explicitly excluded from the scope of the P2B Regulation. Online payment services are also excluded.
When are the GTC void?
According to the P2B Regulation, GTC provisions are void in particular if
the GTC are not clear and comprehensible
the T&Cs are not easily available to commercial users at all times
the T&Cs do not contain a provision on when the provision of services may be suspended, terminated or restricted
the T&Cs do not contain information on additional sales channels or partner programs through which the platform operator can also market the goods and services
the T&Cs do not contain any general information on the effects of the T&Cs on the ownership and control of intellectual property rights.
The P2B Regulation contains more detailed regulations and specifications on the various points.
Requirements for GTC amendments
Amendments to GTCs are invalid if they do not meet certain framework conditions specified in the P2B Regulation. In particular, amendments to the GTC must be proposed on a "durable medium". However, an email counts as such a "durable medium".
In addition, a transition period of at least 15 days must be provided for and the user must be granted a right of termination. An interesting provision of the P2B Regulation is that the user implicitly waives the period if he posts new offers on the platform during the period. However, there is an exception in the event that a period of more than 15 days is reasonable and the user has to make extensive technical changes.
In addition, changes to terms and conditions or other regulations may not have retroactive effect.
Requirements for the ranking
The P2B Regulation now provides clear guidelines on how the offers of the various commercial providers (and any own offers) on the platform may be "ranked" (i.e. arranged or sorted) in searches or other displays. Here, too, there is now an obligation to draft general terms and conditions. The main parameter "determining the ranking" must be regulated in the T&Cs.
This is extremely unfortunate because it restricts the freedom of the platform operator to adapt the - in practice usual - adjustments of the ranking to new circumstances over time during operation. Changes to the ranking algorithm, including with regard to the main parameter, are then still possible, but require an amendment to the GTC, whereby it must be examined whether an amendment to the GTC is even permissible in this area. This is because, in particular, the mutual main performance obligations may not be adjusted without further ado in the context of GTC amendments. On the other hand, it is questionable whether a change specifically to the main determining parameter occurs frequently. It could be more difficult to identify a specific parameter as the main determining parameter.
Ancillary goods and services
If consumers are offered other goods or services from third parties on the internet platform in addition to those offered by the respective commercial provider, the general conditions for this must be specified in the general terms and conditions. In particular, it is necessary to describe the type of ancillary goods and services and to clarify whether the business user is entitled to offer its own products and services as ancillary goods and services.
Transparency of differentiated treatment
If the operator of the online marketplace itself offers its own goods or services on the platform, any differentiated treatment to offers from commercial providers on the platform must be explained in the GTC. This may also include information on different access to personal data or other data. In particular, differences in ranking must also be explained and any fees and access, e.g. to technical interfaces that are available to the operator of the online marketplace but not to other commercial providers on the platform, must be clarified.
Provisions on the termination of the contract
The GTC must also contain information on which conditions apply with regard to the termination of the contract. In practice, this should mostly be done via the termination provisions.
Access to data
The T&Cs must contain information on the contractual and technical access of a commercial provider to personal data and other data. It must also be clarified, for example, whether the operator of the online marketplace has access to data that actually arises in the contractual relationship between the commercial user and the consumer. Furthermore, it must be clarified to what extent a business user on the platform has access to the data provided by himself. In addition, it must be stated whether such data is made available to third parties.
Knowledge of such data is also relevant for commercial users on the platform for legal purposes beyond the P2B Regulation. The information can be used, for example, to better formulate any necessary explanatory texts on consumer consent or to clarify more reliably whether there is joint responsibility under Art. 26 GDPR between the operator of the online marketplace and the commercial user.
Restriction of offers on other platforms
Another provision in the P2B Regulation also has an antitrust background. If the operator of the online marketplace contractually prohibits commercial providers on the platform from selling their goods and services on other platforms, the reasons for this must be stated in the GTC. The information on this must also be easily available to the public. However, whether such a prohibition of sales on other platforms is legally permissible in individual cases must be assessed separately.
Complaint management and mediation
The operator of the online marketplace must also set up an internal complaints management system for commercial users of the platform and also specify at least two mediators for the out-of-court settlement of disputes in the terms and conditions.
Legal consequences and conclusion
Violations of the P2B Regulation may result in the invalidity of individual provisions of the T&Cs or the T&Cs as a whole. In addition, competitors can issue warnings with costs, demand cease-and-desist declarations with penalties and demand injunctive relief for the future within a usually short period of time. The short deadline can be particularly unfortunate because it may also be necessary to amend the general terms and conditions for existing customers within the deadline. In addition, even the P2B Regulation expressly provides for the possibility that associations may bring actions for injunctive relief.
There is no threshold in terms of the number of users or turnover above which the P2B Regulation would only apply. The P2B Regulation therefore also applies to small companies and start-ups. The requirements of the P2B Regulation should therefore already be taken into account in the technical design of an online marketplace and even more so in the design of the general terms and conditions. An online marketplace can be established quickly. A closer examination should always be carried out if contracts between third parties (other businesses and consumers) are brokered online.