As we previously indicated, two legal acts have been adopted within the European Union which address the regulation of so-called on-line platforms. The first of these acts is Regulation (EU) 2019/1150 of the European Parliament and of the Council on promoting fairness and transparency for business users of online intermediation services, which will enter into force on 12 July 2020. This regulates in particular the legal relations between operators of on-line platforms and traders, and we examined it in more detail in Legal Circular No. 12/2019.

However, new regulation in the area of on-line platforms is also brought by the so-called modernisation directive, which primarily regulates the legal relations between operators of these platforms and customers (in the Czech version of the directive, the term online tržiště is used for these platforms). Nevertheless, given that the impacts of these new obligations on operators may also be reflected in the position of traders, we address them in more detail in this legal circular. For the avoidance of doubt, we note that both of the above-mentioned acts should apply concurrently, whilst in the case of the modernisation directive (unlike the regulation), it must first be transposed into Czech law.

For the purposes of the modernisation directive, an online tržiště means “a service using software, including a website, part of a website or an application, which is operated by a trader or on behalf of a trader, and which allows consumers to conclude distance contracts with other traders or consumers.” This means that it will also depend on the overall concept of the specific on-line platform whether the new regulation will have an impact on it. This will be the case primarily in respect of those marketplaces which operate on the principle of intermediation, including where intermediation in the B2B area is concerned.

The focus of the new obligations for operators of online tržiště lies in the area of information, that is, in the area of transparent information about how the platform actually operates. Specifically, within the pre-contractual information provided to the consumer, the operator of an online tržiště should inform the consumer in advance “about the main parameters determining the ranking of offers presented to the consumer.” This obligation is then elaborated further in the Directive on Unfair Commercial Practices: “Where consumers are enabled to search products offered by different traders or consumers on the basis of a query submitted by means of a keyword, phrase or other input, irrespective of where transactions are ultimately concluded, general information … on the main parameters determining the ranking of the products presented to the consumer as a result of the search query and the relative importance of those parameters as opposed to other parameters shall be considered material.” It thus appears that this obligation should also affect relations in the C2C area, whilst the operator of an online tržiště should also inform the consumer of the legal status of the seller in a particular transaction. That is, whether the seller is a trader or not, and if not, that consumer protection law does not apply to the consumer in such a case.

The consumer (buyer) is also to be informed about any fact as to how the obligations relating to the contract are divided between the trader and the operator of the online tržiště. This provision thus reflects certain concepts from practice, where the operator of an online tržiště provides customers with certain guarantees or fulfils certain obligations on behalf of the trader. However, the directive adds that the provision of information to the consumer about this division of obligations obviously “does not affect any liability which the provider of the online tržiště or the external trader has in connection with the contract under other Union or national legislation.”

In conclusion, we note that individual Member States may adopt stricter legal regulation for operators of online tržiště. It will therefore be interesting to monitor the development of Czech legislation in this area.

Josef Aujezdský

This text was originally prepared by the law firm Mašek, Kočí, Aujezdský in cooperation with the Association for Electronic Commerce (APEK) as Legal Circular No. 4/2020 intended for members of that association.

This text was translated from Czech to English using an AI translator.