Unfair activities of online platforms – P2B regulation and draft amendments to the Act on combating unfair competition
What is regulated by the EU 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, in short “P2B” (platform to business) has been in force in the European Union since 12 July 2020.
The P2B regulation imposes specific obligation on providers of online intermediation services such as sales platforms “marketplace”, online search engines, application stores, online social media services, price comparison websites, booking websites used by other entrepreneurs known as business users in order to establish relationship with the consumer as an end recipient.
The provisions of the regulation are guided by the idea of far-reaching transparency in the provision of intermediation services which concerns the way in which conditions for their provision are formulated and the fulfilment of specific information requirements. Business users are also to be provided with an effective possibility to pursue their claims against intermediaries.
The European Commission accused Poland of failing to fulfil the obligation specified in Art. 15 of that Regulation which is to ensure proper and effective enforcement of the Regulation, including the introduction of effective, proportionate and dissuasive measures applicable to infringements of its provisions.
Draft changes to the Polish Act on combating unfair competition
The Ministry for Development and Technology published a draft Act of 17 April 2024, which aims to adapt Polish regulations to applicable EU regulations and ensure their enforceability, including the P2B regulation.
Business user as an entrepreneur
The planned changes to the Act on combating unfair competition concern, among others, the definition of an entrepreneur.
Entrepreneurs within the meaning of the Act are natural persons, legal persons and organisational units without legal personality who participate in business activities, even ancillary, as a gainful or professional activity.
In the new version, the definition specifies that business users and users using the website for business purposes within the meaning of 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 (OJ L 186, 11.7.2019, p. 57) (Regulation 2019/1150) are also entrepreneurs.
New acts of unfair competition
Acts of unfair competition listed in Art. 3(2) of the Act on combating unfair competition are to include also activities in the scope of online intermediation services and online search engines within the meaning of the Regulation 2019/1150 violating the provisions of this Regulation.
In the Art. 17h of the Act on combating unfair competition is to introduce new act of unfair competition covering the activities in the scope of online intermediation services and online search engines, within the meaning of the Regulation 2019/1150, violating the provision of this Regulation, in particular in relation to the obligations resulting from it and concerning:
1) terms and conditions for using the services;
2) terms and conditions for restricting, suspending or terminating the provision of services;
3) definition and description of ranking parameters;
4) descriptions of differential treatments;
5) ensuring and internal complaint handling system.
Information on pursuing claims
An entrepreneur is to be able to request information from the minister competent for economy in connection with a breach of the provisions of Regulation 2019/1150 by a provider of online intermediation services or an online search engine provider.
The Minister should provide the entrepreneur with information about his rights under Regulation 2019/1150 and the proceedings before the court in the event of an act of unfair competition committed by the provider of intermediation services or the provider of an online search engine.
Summary
The Regulation P2B and obligations as well as rights arising from it are directly in force in EU Member States from the date of entry into force in July 2020. Changes to national regulations are intended to ensure their enforceability. Classifying violations of the P2B regulation in the relationship between an online platform operator and an entrepreneur using the intermediation service as acts of unfair competition established a clear and legal basis for pursuing claims before national courts. If it is found that the actions of the platform operator consist in violating the provisions of Regulation 2019/1160 in a way that threatens or violates the interest of the business user, it will be possible to bring claims specified in Art. 18 of the Act on combating Unfair Competition.
The draft Act is currently at the stage of public consultations, and the planned date of putting it to a vote to Sejm (the lower house of the Polish Parliament) is the second half of 2024.