On 14 April 2023, the Netherlands Authority for Consumers and Markets (ACM) issued a press release accompanying new guidelines on the promotion of a transparent and fair online platform economy for businesses (the Guidelines). The Guidelines build on the ACM’s experience with online consumer law and with its other guidelines in this space, including those on greenwashing, misleading online consumers, and paid rankings. They set out the ACM’s views on the EU Platform-to-Business (P2B) Regulation and how it will enforce these new rules, and covers six main topics (see below).
It is currently proposed that the ACM will be the national regulator to monitor and enforce the P2B Regulation and the Digital Markets Act (DMA). The ACM is gearing up for various additional tasks that it will have as a result of this.
Chairman of the ACM, Martijn Snoep, has commented: “It is a good thing that new rules are entering into force that will make the digital economy fair, open and transparent. Companies active in the digital economy will have to get used to stricter rules. Digital markets also need to work well for people and businesses. At the moment, that is not always the case.”
In the Guidelines, the ACM provides guidance for companies on the level of transparency required and how to comply with the various legal obligations and standards.
The Guidelines in more detail
The Guidelines set out the ACM’s (preliminary) position in relation to six main topics set out below; they reflect the obligations arising from the P2B Regulation and the ACM’s interpretation and views on them.
- Terms and conditions: these must be (i) readily available and accessible; and (ii) clear, intelligible and understandable. According to the ACM, this means that companies need to be specific, detailed and clear in respect of (important) commercial aspects such that users have a certain degree of predictability regarding the most important aspects of their contractual relationship with the company. An example is provided of what would not be allowed: a company informs its users via e-mail that it will implement a number of changes to the terms and conditions in 30 days’ time, all of which will be available on its website. According to the ACM this is vague and does not clearly specify or provide the various changes to the terms and conditions.
- Limitations and termination: the P2B Regulation introduces a number of rules to which online platforms must adhere when limiting or terminating contracts, including providing detailed reasoning. The ACM provides a checklist of the four main elements of such reasoning. It must be (i) readily available; (ii) clear and understandable; (iii) specific and detailed; and (iv) complete. If a company were to inform a user that its products are not in line with the general terms and conditions of the platform, and that the platform would therefore limit or terminate the contract with that user, according to the ACM that would not be sufficiently clear and understandable as no detailed reasoning is provided.
- Rankings: the ACM notes that rankings have an important impact on consumers’ choices and therefore the (ultimate) success of the company providing those products and services. It is therefore important that online platforms are transparent about their (paid) rankings. The ACM refers to the Commission’s Guidelines on ranking transparency pursuant to Regulation 2019/1150 for further detail.
- Unequal treatment: online platforms are required to provide a description of any form of unequal treatment by way of legal, commercial or technical instruments. Similar to the reasoning required for termination, the ACM notes the same four key elements any description of unequal treatment must contain.
- Different terms and conditions outside the online platform: as an example, the ACM refers to most favoured nation (MFN) or parity clauses, which restrict users from offering the same products or services at better conditions on their own or other platforms. When using such clauses, online platforms must ensure that users understand which and why different terms and conditions apply. A simple reference to different terms and conditions applying to e.g. a restaurant selling take-out via its own website or via an online platform, is not sufficient. There needs to be a sufficiently clear and precise description of the reasons and specifics of the different terms and conditions.
- Internal complaints system: online platforms must operate an internal complaints system which handles complaints from its users. It must also report on the number, types, duration and outcomes of the (average) complaints. Again, the ACM refers to the same four main elements that any reporting must contain. For instance, stating that complaints can be lodged via the website is insufficiently clear and precise.
While the Guidelines do provide (potentially) helpful guidance to online platforms, they mostly provide high level recommendations that any information must be easily accessible, clearly described and reasoned, and specific and precise.
It is expected that the ACM will be designated as the national regulator to monitor and enforce the P2B Regulation and DMA, and we expect it to use the additional resources allocated to it to take a proactive role and approach, and to conduct investigations and closely monitor compliance. In a recent press release, the ACM has said as much: “The ACM will proactively use its role in monitoring compliance with the DMA and the powers that [the Minister] has granted it. The ACM will proactively conduct investigations into non-compliance with the DMA, as well as conduct market investigations in, for example, new gatekeepers or certain behaviours. The ACM will also conduct investigations together with other regulators and the European Commission, for instance by way of joint teams. The ACM will use the experience and knowledge it has gained in recent years through other investigations and market studies, such as on app stores and cloud services.”
Time will tell which specific issues in the digital sphere the ACM will prioritise, and how it will apply the general principles enshrined in these Guidelines to specific fact patterns.