The growth of e-commerce marketplaces has shown that the relationship between seller and platform cannot be fully addressed by the classic rules of commercial law. The comprehensive amendment made in 2022 to Law No. 6563 on the Regulation of Electronic Commerce regulated this relationship in detail for the first time. A significant part of the amendments has applied since 1 January 2023.

The parties

• Intermediary service provider: A natural or legal person that provides an electronic commerce environment for the economic and commercial activities of others; in practice, the marketplace.
• Electronic commerce service provider: A natural or legal person that sells goods or services in the electronic commerce environment; in practice, the seller.

Prohibition of unfair commercial practices

Intermediary service providers are prohibited from engaging in unfair commercial practices towards sellers. Conduct that may be considered within this scope includes interfering with the sale price against the seller’s will, making unilateral amendments to the contract to the seller’s detriment and preventing the seller from selling through other channels. The contract between the intermediary service provider and the seller must be in writing and contain certain minimum elements.

Obligations increasing with scale

The Law links obligations to the size of the platform. Intermediary service providers whose net transaction volume and number of transactions exceed certain thresholds:

• Must obtain a licence and pay certain licence fees in order to continue their activities.
• Are subject to limits on advertising and discount expenditure.
• Face restrictions on offering their own-brand products for sale and on using seller data for their own sales activities.

Since the threshold amounts are redetermined every year, which group a platform falls into should be checked annually.

Complaints of infringement of intellectual property rights

The Law grants intellectual property right holders a complaint mechanism for the removal of infringing products. Upon a duly filed complaint, the intermediary service provider removes the product and informs the seller. The seller may object; if the objection is found justified, the product is relisted. This process does not preclude recourse to the courts; however, it offers a quick and low-cost first step.

Relationship with the consumer

In marketplace sales, the party to the contract with the consumer is, as a rule, the seller. In distance contracts, the consumer’s fourteen-day right of withdrawal, the pre-contractual information obligation and delivery periods are governed by Law No. 6502 on Consumer Protection and the Regulation on Distance Contracts. The liability of the intermediary service provider in this relationship is assessed separately, according to the nature of the role it assumes.

Assessment

The regulation has introduced sector-specific rules in an area where competition law can be slow and general. For sellers, reviewing contract terms in the light of these rules is important; for platforms, regular monitoring of the scale thresholds is important.