Brussels, 02/06/2016 (Agence Europe) - The European Commission is advising member states not to introduce over stringent rules that could constrain the potential of the collaborative economy. On Thursday 2 June, it published non-binding guidelines that are supposed to set the tone for member states and the national courts.
As previously announced (see EUROPE 11561), the communication is not proposing any new measures. It is simply clarifying the way in which existing European rules are applied in five key areas: market access, responsibility, user protection, the status of workers and the tax rules applicable. Overall, the Commission is proposing to make a distinction between intermediation platforms (which are limited to the relationship between service providers and users) and service platforms (payment, identity control, cleaning, et cetera). It is suggesting that a limited body of rules is applied to the former and that a "case-by-case" assessment is introduced for the latter.
There is a justifiable fear behind this initiative that an entire sector could develop outside of European borders. According to the Commission, collaborative platforms and providers generated €28 billion in gross revenues in the EU last year and this contribution could rise to €572 billion in the future.
Some of the most important guidelines involve licences. Although several countries such as France and Belgium have banned the UberPop service on their territory, the European Commission is recommending a case-by-case evaluation. It points out that the "services" directive prohibits any authorisation regime unless it is, "necessary, justified and proportionate for attaining the identified and legitimate goals pertaining to the general interest". In this perspective, the intermediation platforms should not have to obtain authorisation or licences. The others should be subject to a case-by-case evaluation based on factors such as the economic model in question. There is also the possibility of exempting individuals from proposing their services on an occasional and peer basis by, for example, setting out thresholds (possibly sectoral). Finland, for example, presented a draft law for licence exemptions for individuals whose income is less than €10,000 a year. The Commission also indicated that the authorisation regimes governing access to the collaborative platforms in the market are not expected except as a "last resort".
With regard to the work relationship, the Commission points out that this will be covered by the national remit. Nonetheless, it also indicated that several decisions by the European Court of Justice would help to establish whether a person should be considered as a worker or not (and therefore, protected by a certain number of social standards). In this connection, three cumulative criteria have to be evaluated: the subordinate relationship to the platform, the nature of work - its regularity - and its remuneration. In the field of taxation, the Commission points out that all operators in the collaborative economy must pay taxes (income tax, corporation tax and value-added tax). It recommends, however, to member states to "simplify and clarify the application of tax rules in the collaborative economy". It highlights, for example, the case of Estonia, where it claims there is "effective cooperation between the tax authorities and businesses in the collaborative economy".
Finally, with regard to the regime for liability and consumer protection, the Commission again makes a distinction between the intermediation platforms and the others. It indicates that the former, as opposed to the latter, are exempt from responsibility for the information they store in the name of those who are proposing a service. Similarly, with regard to the consumer protection, the Commission recommends clarification on whether the service provider is acting in a professional capacity or as an individual, the frequency of the services provided, the profit motive and turnover. If it involves a professional capacity, the person will be obliged to respect European consumer law (such as unfair trade practices and data protection).
Asked about the overall impact of these guidelines on services such as Uber, Commissioner El¿bieta Bienkowska replied "These guidelines have not been created to solve the problem of an individual business" and in response to the question of member states interpreting these guidelines differently, she said that "We now have tools to establish who is right and we would, in this case, launch infringement procedures".
The reactions to this communication have been relatively positive. The EPP, ALDE and Greens/EFA groups published a press release that gave the Commission's guidelines a warm welcome. The European Consumers Organisation (BEUC) also supported the Commission approach. (Original version in French by Sophie Petitjean)