Commercial practices

The main rights and obligations regarding transparency in business practices between an online brokerage service provider and businesses using such services are governed by Regulation (EU) 2019/1150 of the European Parliament and of the Council of 20 June 2019 on the promotion of fairness and transparency for businesses using online brokerage services.

The Competition Council is the authority responsible for the implementation of P2B Regulation (Regulation (EU) 2019/1150 of the European Parliament and of the Council of 20 June 2019 on promoting fairness and transparency for business users of online intermediation services). The Regulation applies to online intermediation service providers and search engines that supply or offer to supply services to business users of online intermediation services and corporate website users, who have their registered office in Romania and who, through online intermediation services or search engines, offer goods and services to consumers within Romania, irrespective of the place of establishment or residence of the service provider and the applicable law.

The following obligations and rights therefore do not apply to the final consumer, but rather are strictly intended for business users.

I. Terms and conditions:

Content of the terms and conditions

Providers of online intermediation services shall ensure that their terms and conditions:

• are drafted in plain and intelligible language;
• are easily available to business users at all stages of their commercial relationship with the provider of online intermediation services, including in the pre-contractual stage;
• set out the grounds for decisions to suspend or terminate or impose any other kind of restriction upon, in whole or in part, the provision of their online intermediation services to business users;
• include information on any additional distribution channels and potential affiliate programmes through which the provider of online intermediation services might market goods and services offered by business users;
• include general information regarding the effects of the terms and conditions on the ownership and control of intellectual property rights of business users;
• include a description of the main parameters on the basis of which ranking is established and the relative importance of those main parameters as opposed to other parameters (see details on ranking below).

Terms and conditions that do not fulfil these requirements shall be declared null and void.

Where the consumer is offered ancillary goods or services through the online intermediation services (either by the provider of online intermediation services itself or a third party), the provider shall include in their terms and conditions a description of the type of ancillary goods and services offered and shall specify under what conditions a business user is allowed to offer its own ancillary good or service through the online intermediation services.

The terms and conditions must include a description of any differentiated treatment which the provider gives, or might give, in relation to goods or services offered to consumers through those online intermediation services by, on the one hand, that provider itself or, on the other hand, other business users of the online intermediation services. The description must cover:

• the relevant economic considerations;
• the relevant commercial considerations;
• the relevant legal considerations.

The provider shall not impose any retroactive changes to the terms and conditions, except when they are required to respect a legal or regulatory obligation or when the retroactive changes are beneficial for the business users.

The provider shall ensure that the terms and conditions include information on the conditions under which business users can terminate the contractual relationship with the provider.

The terms and conditions shall include a description of the technical and contractual access, or absence thereof, to the information provided or generated by the business user, which they shall maintain after the expiry of the contract between the provider and business user.

The terms and conditions must include a description of the technical and contractual access, or absence thereof, of business users to any personal data or other data, or both, which business users or consumers provide for the use of the online intermediation services concerned or which are generated through the provision of those services.

The terms and conditions shall include all the relevant information relating to the access to and functioning of the provider's internal complaint-handling system (see details below). The provisions regarding the internal complaint-handling system only apply to small companies as defined in the annex to Recommendation 2003/361/EC.

The terms and conditions must identify two or more mediators with whom the provider is willing to engage to attempt to reach an agreement with business users on the settlement, out of court, of any disputes between the provider and the business user arising in relation to the provision of the online intermediation services concerned, including complaints that could not be resolved by means of the internal complaint-handling system (see details below).

Changes to the terms and conditions

Any changes proposed by the online intermediation service provider to the terms and conditions must be recorded on a durable medium and sent to the business user of the online intermediation services. The notice period after which the changes can be implemented shall be no less than 15 days from the date of notification, in proportion to the nature and scope of the changes. The notice period shall be extended in the event that the business user needs to make any technical or commercial adaptations in order to comply with the change.

The notice period shall not apply where the provider:

• is subject to a legal or regulatory obligation which requires it to change its terms and conditions in a manner which does not allow it to respect the notice period;
• must exceptionally change its terms and conditions to address an unforeseen and imminent danger related to defending the online intermediation services, consumers or business users from fraud, malware, spam, data breaches or other cybersecurity risks.

Any changes to the terms and conditions that do not comply with these requirements shall be declared null and void.

II. Restriction, suspension and termination

Where the provider decides to restrict or suspend the provision of its online intermediation services to a given business user in relation to the goods or services offered by that business user, it shall provide the business user concerned, prior to or at the time of the restriction or suspension taking effect, with a statement of reasons for that decision on a durable medium.

Where the provider decides to fully terminate the provision of its online intermediation services to a given business user, it shall provide the business user concerned, at least 30 days prior to the termination taking effect, with a statement of reasons for that decision on a durable medium.

The notice period shall not apply if the provider:

• is subject to a legal or regulatory obligation which requires it to terminate the provision of the whole of its online intermediation services to a given business user in a manner which does not allow it to respect that notice period;
• exercises a right of termination under an imperative reason pursuant to national law which is in compliance with EU law;
• can demonstrate that the business user concerned has repeatedly infringed the applicable terms and conditions.

The statement of reasons behind the decision to restrict, suspend or terminate the provision of the services must refer to:

• the specific facts and circumstances;
• the content of the notifications from third parties that resulted in the decision;
• the applicable grounds for the decision.

The provider shall be exempt from providing a statement of reasons where:

• it is subject to a legal or regulatory obligation not to provide the specific facts or circumstances or the reference to the applicable ground or grounds;
• can demonstrate that the business user concerned has repeatedly infringed the applicable terms and conditions.

The business user will be given the opportunity to clarify the facts and circumstances in the framework of the internal complaint-handling process (see details below).

III. Ranking

Where the main parameters include the possibility to influence ranking against any direct or indirect remuneration paid to the provider, the provider shall set out a description of those possibilities and of the effects of such remuneration on ranking.

Following the a change in ranking or the de-listing of a certain website following a third-party notification, the provider shall offer the corporate website user the opportunity to inspect the content of the notification.

A description of the parameters shall be sufficient to enable the business user to obtain an adequate understanding of whether, and if so how and to what extent, the ranking mechanism takes account of the following:

• the characteristics of the goods and services offered to consumers through the online intermediation services or the online search engine;
• the relevance of these characteristics for the consumer;
• as regards online search engines, the design characteristics of the website used by corporate website users.

IV. Internal complaint-handling system

The provider of online intermediation services shall provide for an internal system for handling the complaints of business users.

The system must:

• be easily accessible and free of charge;
• ensure that complaints are handled within a reasonable time frame;
• be based on the principles of transparency and equal treatment applied to equivalent situations;
• ensure that complaints are handled in a manner which is proportionate to their importance and complexity.

The system shall enable business users to lodge complaints directly with the provider concerned regarding any of the following issues:

• alleged non-compliance by that provider with any obligations laid down above which affects the business user lodging the complaint;
• technological issues which relate directly to the provision of online intermediation services, and which affect the complainant;
• measures taken by, or the behaviour of that provider which relate directly to the provision of the online intermediation services, and which affect the complainant.

As part of its internal complaint-handling system, the provider shall:

• duly consider complaints lodged and the follow-up which they may need to give to the complaint in order to adequately address the issue raised;
• process complaints swiftly and effectively, taking into account the importance and complexity of the issue raised;
• communicate to the complainant the outcome of the internal complaint-handling process, in an individualised manner and drafted in plain and intelligible language.

V. Mediation

Mediators shall meet the following requirements:

• they must be impartial and independent;
• their services must be affordable for the business user;
• they must be capable of providing mediation services in the language in which the terms and conditions are drafted;
• they must be contactable either physically or remotely;
• they must be capable of providing their mediation services without undue delay;
• they must have a sufficient understanding of general business-to-business commercial relations, allowing them to contribute effectively to the attempt to settle the disputes.

The online intermediation service provider shall bear a reasonable proportion of the total costs of mediation in each individual case. A reasonable proportion of those total costs shall be determined, on the basis of a suggestion by the mediator, by taking the following into account:

• all relevant elements of the case at hand;
• the relative merits of the claims of the parties to the dispute;
• the conduct of the parties;
• the size and financial strength of the parties relative to one another.