Brussels, 30/05/2016 (Agence Europe) - On Wednesday 1 June, the European Commission will unveil guidelines for application of European law to online platforms, including social and liability mechanisms, with a view to encouraging the collaborative economy.
In this 20-page draft document that this newsletter has seen, the Commission starts from the position that the “considerable” number of complaints received from operators about unjustified national regulations means that a clarification of the rules and basic principles of EU law applying to this rapidly expanding area of the economy is required. Based on external studies, it highlights the wealth creation potential of the collaborative economy, valuing it at between €160 billion and €572 billion, the best-known companies being online platforms Uber, BlaBlaCar and Airbnb.
The Commission is not suggesting launching any initiatives to regulate at European level the innovative supply of services via the collaborative economy. Its aim is rather to ask the member states to ensure that measures taken at national and local levels, for example to ensure access to the market, are justified and proportionate.
Three criteria determine the level of control or influence that holders of an online platform can exercise over the services offered by an online collaborative economy platform, viz: setting the end price for the consumer or user, ownership of assets used for supplying services, and the type of professional relationship between the service supplier and the holder of the platform.
In order to decide whether a driver is employed by a platform, the Commission says that the driver must regularly work in this way, be subject to a subordinate relationship and, in exchange, receive remuneration from the platform. “Given today's business models in the collaborative economy, only very few providers of subsequent underlying services may be considered employees of collaborative platforms”, says the Commission, adding that “Self-employed providers perform tasks under their own responsibility and may thus be liable for damages caused as they bear the economic risk of the business”.
Liability exemption schemes? As long as it is only providing an electronic intermediary service, a platform should not be held responsible for bad provision of a service or illegal online content. Such an exemption is possible as long as the electronic intermediary service remains “technical, automatic and passive”, says the Commission, based on European Court of Justice case law (rulings C-236/08 and 238/08 Google France/Louis Vuitton) and the e-commerce directive (2000/31). On the other hand, if the online platform offers other, connected, services (payment, identity checks, cleaning, etc.) or advice to underlying service providers, then a case-by-case analysis of the platform's liability scheme will be needed. This scheme applies when it is decided that the platform itself provides the underlying service.
According to the Commission: “Member states should avoid that collaborative platforms operating in a responsible manner by taking action to ensuring the quality of the services offered by providers of subsequent underlying services on their platform are automatically and generally considered 'active' and therefore no longer benefit from the liability exemption offered under EU law”. (Original version in French by Mathieu Bion)