According to a Eurobarometer survey , 42% of small and medium-sized enterprises Europeans use online marketplaces to sell their products and services. The only purpose of the online service provider is to connect the sellers with the users of its platform, it is only supposed to have a passive role and is not supposed to guarantee the execution of the sale. In a Google judgment of 23 March 2010 , the European judges have considered that “ in order to verify whether the liability of the referral service provider could be limited under Article 14 of Directive 2000/31 < strong>  , it should be examined whether the role played by the said service provider is neutral, in that its behavior is purely technical, automatic and passive, implying the absence of knowledge or control of the data it stores . “. On the contrary, “ The said operator plays such an [active] role when he provides assistance which consists in particular of optimizing the presentation of the offers for the sale in question or of promoting them “, as stated in the Ebay judgment of 12 July 2011 . This means that a platform such as Google or Ebay, which only allows a seller to deliver their products will not be able to be held responsible. On the contrary, if it actively participates in the sale, for example by advertising acts, then it may be penalized.
Transparency for companies using intermediation services
And many marketplace platforms interfere in the commercial policies of their sellers, which they refer to to boost their platform. This situation created an imbalance between online platform and user company because while the platforms had the power to sanction (penalties, power to dereference published offers, etc.) making it possible to impose obligations on user companies, they do not. were subject to almost no obligations in most European countries. The question therefore arises of how to protect companies using online platforms.
On July 12, 2020, new rules relating to relations between platforms and companies entered into force within the European Union. The aim of Regulation (EU) 2019/1150 on promotion of fairness and transparency for companies using online intermediation services is to ensure the transparency of these actors and to guarantee respect for the principles of competition by online platforms, as affirmed by the vice-president executive Margrethe Vestager: “ There are over 10,000 online platforms in the EU; these are only one part of a larger ecosystem of digital services that drives innovation. ”There is no denying the essential role of these platforms in development, but“ Despite their role as an essential resource during the ongoing health crisis, major issues of equity and security need to be addressed. ”. It is for this reason that new regulations have been put in place, “ The new rules will prohibit certain unfair practices such as suspending accounts receivable for no reason or applying ambiguous terms of sale; “ They aim to guarantee fundamental commercial principles,” these new rules will guarantee greater transparency in terms of classification as well as a level playing field between online platforms and search engines, and will provide new possibilities for resolving disputes and complaints. ”. This regulation is part of the European digital strategy, which aims to make Europe a major player in the data economy by creating a genuine European data space and a single data market. The first step in achieving this goal is to create an incentive, but also protective regulatory framework.
“Shaping Europe’s digital future”
What are the means put in place to guarantee a transparent and fair environment? Three interim reports relating to the relations between platforms and companies were drawn up by the Observatory of the economy of online platforms in order to gather comments on this subject. The three interim reports demonstrate that the relationships between online platforms and user companies in terms of market power remain unbalanced: online platforms dominate the market and have the capacity to make decisions regarding access to their service, use of data, for example the manager of a platform can refuse to a seller the sale of his products on his platform. This unbalanced relationship is also illustrated by an attitude that can be discriminatory: some online platforms put more forward certain sellers than ‘others through SEO.
These reports were intended to be used for the Commission’s work on online platforms and in particular the next digital services package which aims to continue to strengthen the single market in digital services for more innovation and competitiveness in a fair and transparent environment. All of these measures are part of the Commission’s desire to “shape the digital future of Europe”.
Through these reports, the Observatory for the Economy of Online Platforms has highlighted various issues that market players have raised in the relationships between online platforms and user companies. The first being the lack of transparency: companies have no knowledge of the criteria that determine their ranking in the list of search results, this problem seems to be remedied by article 5 of the regulation which provides that “ Suppliers of online intermediation services define in their general conditions the main parameters determining the classification and the reasons for the relative importance of these main parameters compared to other parameters. ”. Greater transparency has been established on the conditions of referral, on the methods of access to data, in accordance with the principles of the GDPR. Likewise, the regulation offers increased protection to hotels that use reservation platforms. They will benefit from greater clarity and increased protection against unfair terms and conditions. An abusive clause could be one that allows the online platform to end the provision of all or part of its services, at any time and at its sole discretion without notice, notification or justification. In order to ensure compliance with these transparency obligations, “ The Commission encourages the development of codes of conduct ” between providers of online intermediation services and business users.
The second issue is that of loyalty. To compensate for the imbalance between business users and online platforms, the regulation requires that the general conditions be easily accessible and set out in clear and understandable language. In addition, it requires that “ The proposed changes shall not be applied before the expiration of a reasonable period of notice proportionate to the nature and extent of the changes envisaged and their consequences for the user company concerned. This notice period must not be less than fifteen days ”. This duty of loyalty arises from the contractual relationship between the online intermediation service provider and the seller: it is because they have entered into a contract that the 2 parties must act fairly. This is a principle that flows from the obligation to perform the contract in good faith. Articles 1134 of the Luxembourg and French Civil Codes provide that “ The legally formed agreements take the place of law for those who made them. […] They must be carried out in good faith . “. Good faith in contracts requires going beyond the absence of reprehensible behavior but rather taking into account the interests of the other party. The relationships between online sales platforms and sellers who use this platform are governed by a distribution contract, that is to say, a contract between a distributor and an intermediary reseller, to define the rules of their relationship as to the distribution of products or services to a given clientele.
“ relations between the commercial agent and the principal are governed by obligations of loyalty and a reciprocal duty of information “
Infirst, it is necessary to take into account the obligation of loyalty when the supplier chooses which distributor to turn to to deliver its products. The French Court of Cassation expressed itself in a judgment of 7 April 1998 on the way in which the seller must choose the distributor. It considered “ that the grantor has the right to deal with the co-contractor of his choice, that he is not required to justify his decision or to communicate the criteria according to which this choice is exercised ” . This therefore implies that it has discretion in the choice of its suppliers, therefore the duty of loyalty cannot be controlled.
Concerning the execution of the distribution contract itself, article L134-4 of the Commercial Code provides that “the relations between the commercial agent and the principal are governed by obligations of loyalty and a reciprocal duty. information ”: but can we consider that an online sales platform is a commercial agent? Article 1 of European directive n ° 86/653 / EEC of 18 December 1986 relating to the coordination of the rights of the Member States concerning independent commercial agents defines the commercial agent as an “ independent intermediary, permanently responsible either for negotiating the sale or purchase of goods for another person, hereinafter referred to as “principal”, or to negotiate and conclude these transactions in the name and on behalf of the principal “. Here we have the question of negotiation which poses a problem concerning the online sales platform. And this question of defining negotiation has been the subject of very divergent case law within the States of the Union: while France has adopted a restrictive interpretation of negotiation as consisting in being able to modify the conditions of sale at the time of the negotiation. conclusion of the contract ( Cass com, January 15, 2008 ), other jurisdictions such as German or Polish courts have considered that the negotiation referred to in the directive corresponds to the sole act of acting as an intermediary. The CJEU expressed itself in a judgment of December 19, 2018 by which it put an end to the discrepancies
The question referred for a preliminary ruling was as follows: ‘ Should Article 1 (2) of Directive [86/653] be interpreted as meaning … that an independent intermediary, acting as that agent in the name and on behalf of his principal, who does not have the power to modify the tariffs and contractual conditions of the sales contracts of his principal, is not responsible for negotiating said contracts within the meaning of this article and does not could consequently be qualified as a commercial agent and benefit from the status provided for by the directive? ”, finally the question arises as to whether: a person who is simply an intermediary, without exerting an influence on the conditions of sale, can be qualified as a commercial agent?
The European judges decided to follow the interpretation of the German and Polish judges by considering “ that a person does not necessarily have the power to modify the prices of the goods which he sells on behalf of the principal for be qualified as a commercial agent, within the meaning of this provision . “In view of this qualification, it seems that an online sales platform can be classified as a commercial agent within the meaning of Directive 86/653.
Consequently, online sales platforms and sellers are required to comply with the obligations arising from this directive: it is provided in its article 3 that “ The commercial agent must, in the exercise of his activities, look after the interests of the principal and act loyally and in good faith . “For example, a lack of loyalty can be characterized if the online sales platform is negligent in the delivery of products, leading to a degradation of the image of the distributor . As for the commercial agent, the directive establishes an obligation of loyalty which weighs on the one it calls “the principal”. It is therefore clear that the duty of loyalty does not apply only to suppliers but also to distributors. It follows from these provisions that the obligation toLoyalty is exercised as much during the negotiation as during the execution of the contract.
One of the issues behind regulation in general is being able to guarantee the rights it provides at all times. This is why the regulation on the promotion of fairness and transparency for companies using online intermediation services forced online platforms to put in place appeal procedures in its article 11: “ Providers of online intermediation services provide an internal system for handling complaints from business users . In particular, this allows app developers to challenge decisions made by app stores to remove their content. This remedy is ensured by the information obligation which weighs on the platforms provided for in article 4: “ When a provider of online intermediation services decides to restrict or suspend the provision of its services of ” online intermediation to a given user company in relation to individual goods or services offered by this user company, it provides to the user company concerned, before or at the time when the restriction or suspension takes effect , with a motivation for this decision on a durable medium. ”. This provision testifies to the desire to put an end to the discretionary power of online sales platforms, henceforth no restriction on the supply of services or products can take place without it being justified.
guidelines have been published by the Commission to support intermediaries in the implementation of the new rules, in particular with regard to classification. They aim to enable online platforms to deliver the correct information to businesses. This regulation grants companies new rights. They now have different means to solve the problems likely to arise in their commercial relations with online platforms. Online platforms and search engines are required to check a series of points.
What is the situation a year later? The Platform Economy Observatory has been responsible for market surveillance and the implementation of the new rules for a year. In February 2021, it released final reports on the economics of online platforms. Stakeholder views on the new rules are taken into account, but also the power of online platforms which influences European policy direction. This final report consists of 5 articles. The first article deals with economic measurement and indicators. It highlights the lack of data collection on various aspects such as the commerce mediated by the platforms or the turnover that the platforms generate. The independent institution highlights the issue of differentiated treatment: a platform applies different conditions to user companies in equivalent situations. This is a situation contrary to European competition rules but which Regulation 2019/1150 has failed to resolve.
Despite some shortcomings behind this regulation, it cannot be denied that it imposes new obligations on online platforms relating to respect for the principles of transparency and fairness.
Could we consider the possibility of engaging the responsibility of online platforms?
This regulation can be seen as a new means of combating counterfeiting.
In April 2020, the Coty v Amazon judgment was heavily commented on in the legal world. The CJEU had considered “ that a person who stores products infringing a trademark right for a third party without being aware of this infringement must be considered as not holding these products for the purposes of their offering or placing them. in commerce within the meaning of these provisions if this person does not pursue these purposes himself . “. The judges ruled that the fact that Amazon simply stocking products infringing Coty’s rights on behalf of the third-party seller does not constitute use as a trademark. Amazon’s online marketplace feature excludes it from any prosecution on the basis of trademark infringement.
While the Advocate General characterized an active role of the platform, incompatible with the status of host, the CJEU refused to rule on this point because it was not raised in the preliminary question. This judgment demonstrates the difficulty of regulating the relations betweene online platforms and companies using their services. However, the regulation which entered into force on July 12, 2020 seems to bring about an evolution. Indeed, companies will have more information on the operation of platforms and the management of intellectual property rights.
Therefore, we can consider questioning the passive role of online platforms, and more particularly of the host. In France, it is defined by the law of June 21, 2004 for confidence in the digital economy as “ all natural or legal persons who ensure, even free of charge, for making available to the public by online communication services to the public, the storage of signals, writings, images, sounds or messages of any kind provided by recipients of these services ”. They “ cannot have their civil liability incurred as a result of the activities or information stored at the request of a recipient of these services if they were not effectively aware of their manifestly unlawful nature or of facts and circumstances causing appear this character or if, from the moment they became aware of it, they acted promptly to withdraw this data or make it impossible to access it . “. Their liability regime is therefore lightened: the platform must be aware of illegal content to be held liable. The simple fact of demonstrating that the platform hosts illegal content is insufficient to engage its responsibility and to prove the knowledge of the illegality is complex, therefore it is difficult to engage the responsibility of the platforms.
By a judgment of 23 March 2010 , the CJEU considered that an online platform benefits from the status of host if it does not play an active role: the institution of new regulations on the promotion of fairness and transparency for companies using Internet services. Online intermediation imposing more transparency on online platforms, therefore allowing their actions to be known, will it make it easier to engage their responsibility?
Eternoscorp supports you to guarantee your rights, whether as an online platform or as a user company.
 Article 14 – Accommodation: “ 1. Member States shall ensure that, in the case of a provision of an information society service consisting of storing information provided by a recipient of the service, the provider is not responsible for the information stored at the request of a recipient of the service provided that:
- a) the service provider has no actual knowledge of the illegal activity or information and, with regard to a claim for damages, has no knowledge of facts or circumstances depending on which illicit activity or information is apparent
- b) the service provider, from the moment he has such knowledge, act promptly to remove the information or make access to it impossible.
- Paragraph 1 shall not apply where the recipient of the service is acting under the authority or the control of the provider.
- This article shall not affect the possibility for a court or administrative authority, in accordance with the legal systems of the Member States, to require the provider to put an end to a breach or to prevent a breach and shall not affect the possibility for Member States to establish procedures governing the withdrawal of such information or the actions to make it impossible to access it. “