Application of the P2B and DSA Regulations to Relationships Between Intermediaries and Business Users

What you need to know: This note highlights the areas of overlap between the DSA and the P2B Regulation and the relevant obligations under each regulation. Due to this overlap, intermediaries covered by both regulations (see the “Scope” section below) should:

• Identify the documentation required to comply with the transparency obligations imposed by both laws;
• Assess the necessity to implement a unique process to comply with the transparency obligations in relation to restrictions/suspensions of users;
• Assess the necessity to implement a unique claims handling process covering both regulations; and
• Determine whether to implement a dedicated process and documentation for business users offering goods/services via the intermediary platform.

Both the P2B Regulation and the DSA impose obligations on intermediaries that make services available to business users, even if the respective definitions of “online intermediation service” (P2B Regulation) and “intermediary service” (DSA) differ slightly.

The P2B Regulation protects the interests of “business users” whereas the DSA protects the “recipient of the [intermediary] service” which includes any natural or legal person.

The P2B Regulation lays down rules to ensure that business users of online intermediation services and online search engines are granted appropriate transparency, fairness and effective redress possibilities (Article 1).

Scope: The P2B Regulation applies to online intermediation services and online search engines provided, or offered to be provided, to business users and corporate website users, that have their place of establishment or residence in the EU OR offer goods or services to consumers located in the EU (Article 1).

According to the P2B Regulation, intermediation services are services that, cumulatively (a) are provided for remuneration, at a distance, by electronic means and at the request of the service recipient ; (b) allow business users to offer goods or services to consumers, with a view to facilitating the initiating of direct transactions between those business users and consumers, irrespective of where those transactions are ultimately concluded and (c) are provided to business users on the basis of contractual relationships (Article 2).

The P2B Regulation defines business users as being private individuals or legal persons acting in a commercial or professional capacity who offer goods or services through online intermediation services consumers for purposes relating to its trade, business, craft or profession (Article 2).

Scope: The DSA also has a broad scope as it applies to intermediary services offered to recipients of the service that have their place of establishment or are located in the EU, regardless of the provider’s place of establishment (Article 2).

Intermediary services under the DSA are defined to include several categories of services, i.e., “mere conduit”, “caching”, “hosting services” (hosting services including online platforms). A set of obligations also apply to online search engines (Article 3).

According to the DSA, a recipient of the service means “any natural or legal person who uses an intermediary service, in particular for the purposes of seeking information or making it accessible”. It therefore refers to any users of their services whether B2B or B2C; (Article 3). 

Information to be provided in the T&Cs in relation to restrictive measures against users

Intermediaries must inform their business users of the reasons for suspension, termination or any other restriction to the use of the services (Article 3).

Intermediaries (including online platforms) must provide their users with information regarding the tools that enable the intermediary to suspend, terminate or impose other restrictions on recipients of services - (Article 14).

Online platforms must also inform their users of their policy regarding abusive use of their services and provide examples of facts and circumstances taken into consideration in assessing abusive use and in determining the duration of any suspension (Article 23). 

Restriction, termination, and suspension process

When applying a restriction measure, intermediaries (including online platforms) must act in a proportionate manner that respects the rights of its users (Article 14).

Hosting service providers (including online platforms) must provide a clear and specific statement of reasons for any restriction measure adopted in order to allow appeal (Article 17).

Rules applicable to recommender systems and ranking systems^[1]

Intermediaries must state in their T&Cs the parameters for determining the ranking of the business users’ goods and services together with the weight attached to each parameter. (Article 5).

Intermediaries must include in their T&Cs a description of any differentiated treatment granted, or potentially granted, in connection with goods or services offered to consumers through their services. (Article 7).

Online platforms must state in their T&Cs the main parameters used in their recommender systems and the weight of the criteria taken into consideration.

Platforms must provide a directly and easily accessible feature allowing users to change their preferred options (Article 27).

Very large online platforms and search engines must also offer at least one option for each of their recommender systems that does not rely on profiling (Article 38).

Internal complaint handling system

Intermediaries must provide business users with an effective, easy to access and free of charge internal complaint handling system

Transparency obligations apply in relation to the functioning and effectiveness of the complaints handling system.

Intermediaries must provide in their T&Cs relevant information regarding how to use the internal complaints handling system (Article 11).

Online platforms must provide all users with access to an effective internal complaint handling system although the system’s scope is more limited than the complaint handling system provided for under the P2B Regulation (Article 20). 

Dispute resolutions

Intermediaries must mention in their T&Cs two or more mediators they agree to work with to reach a settlement if the dispute cannot be settled under the internal complaints handling system. Upon request, intermediaries must provide information on the functioning and effectiveness of the mediation in relation to its activities (Article 12).

Concerning an internal complaint, online platforms must inform recipients of the service of their right to choose any certified alternative dispute resolution body to settle disputes relating to those decisions, (Article 21).

Available sanctions

Sanctions may include an injunction, an administrative fine of up to €15,000 (for legal entities) or, when liable to a civil fine, a daily penalty payment that may not exceed 0.1% of the amount of worldwide sales.

Publicity measures (Article L470-1 of the French Commerce Code).

Competent authorities

Will depend on the Member State.

Will depend on the Member State but may not be the same authority as for the P2B Regulation.