Regulating The Collaborative Economy In The European Union Digital Single Market 3030300390, 9783030300395, 9783030300401

Table of contents :
Preface......Page 5
Contents......Page 6
Chapter 1: Introduction......Page 10
2.1 Introduction......Page 15
2.2 The Collaborative Economy Triangle......Page 19
2.2.1 Online Platforms......Page 20
2.2.2 Service Providers......Page 23
2.2.3 Users, Prosumers, Peers, Consumers or What Else?......Page 26
2.3 The Essential Requirements of a Collaborative Economy Transaction......Page 27
2.3.1 Online Platforms: Facilitators or Real Service Providers......Page 28
2.3.2 The Economic Exchange......Page 30
2.3.3 Another Form of Economic Exchange: Personal Data......Page 32
2.4.1 The Applicability of the Information Society Services Directive to the Collaborative Economy......Page 34
2.4.2 A First Assessment of the Elite Taxi Case......Page 36
2.4.3 A First Assessment of the Uber France Case......Page 40
2.4.4 A First Assessment of the Airbnb Ireland Case......Page 41
References......Page 42
3.1 Introduction......Page 46
3.2 The Potential Applicability of Primary Law......Page 50
3.2.1 Free Movement of Workers......Page 51
3.2.2 Freedom of Establishment......Page 53
3.2.3 Freedom to Provide and to Receive Services......Page 54
3.2.4 Freedom to Choose an Occupation and the Right to Engage in Work......Page 55
3.2.5 Freedom to Conduct a Business......Page 57
3.3.1 The Services Directive......Page 59
3.3.2 The Recognition of Qualifications Directive......Page 60
3.3.3 The Information Society Services Directive and the e-Commerce Directive (Again)......Page 63
3.3.5 The General Data Protection Regulation......Page 64
3.4.1 Elite Taxi......Page 66
3.4.2 Uber France......Page 67
3.5 Airbnb Ireland......Page 68
3.6 Conclusion......Page 69
References......Page 70
4.1 Introduction......Page 73
4.2 The Conundrum of Consumer Protection in the Collaborative Economy......Page 76
4.2.1 The Notion of Consumers in the Collaborative Economy......Page 79
4.2.2 The Notion of Professional or Trader in the Collaborative Economy......Page 80
4.2.3 The Role of Online Platforms......Page 82
4.2.4 Protecting Who from Whom?......Page 83
4.3 Applying European Union Law to Online Transactions......Page 85
4.3.1 The Unfair Commercial Practice Directive......Page 86
4.3.3 The e-Commerce Directive......Page 88
4.3.4 The Unfair Terms Directive......Page 90
4.4 The Concept of Trust in an Online Environment: Selected Aspects......Page 91
4.4.1 Rate-and-Review Mechanisms and the Principle of Good Faith......Page 93
4.5 A New Deal for Consumers......Page 95
4.6 Conclusion......Page 96
References......Page 98
5.1 Introduction......Page 101
5.2 Disrupting Classical Labour Law......Page 104
5.2.1 Collaborative Economy Service Providers As Subordinate Workers......Page 106
5.2.2 Collaborative Economy Service Providers As  Self-employed and Professionals......Page 109
5.2.3 Online Platforms As Employers......Page 110
5.2.4 Rate-and-Review Mechanisms......Page 112
5.3 The Applicability of European Union Law......Page 113
5.3.1 The Charter of Fundamental Rights......Page 114
5.3.2 The Working Time Directive......Page 116
5.3.3 The Protection of Atypical Workers Directives......Page 117
5.4 Some National Experiences......Page 118
5.4.1 United Kingdom......Page 119
5.4.2 Italy......Page 120
5.4.3 France......Page 122
5.5 The European Social Pillar......Page 123
5.6 Conclusion......Page 125
References......Page 127
6.1 Introduction......Page 129
6.2 Sectors Mostly Potentially Affected by the Collaborative Economy......Page 131
6.2.1 Urban Transport......Page 133
6.2.2 Accommodation......Page 134
6.3 Collaborative Platforms As Undertakings......Page 136
6.3.2 Competition in the Underlying Services’ Market......Page 137
6.3.3 Competition Amongst Service Providers......Page 139
6.4 Collaborative Platforms and Data Protection......Page 140
6.4.1 From Data Protection to Big Data......Page 142
6.4.3 Anticompetitive Practices Through the Accumulation of Big Data......Page 144
6.5 The Right to Data Portability......Page 146
6.6 Conclusion......Page 148
References......Page 150
7.1 Introduction......Page 152
7.2 The Need for Regulating the Collaborative Economy......Page 154
7.3 The EU Competence to Regulate the Collaborative Economy......Page 158
7.3.1 The Impact of the Principle of Subsidiarity......Page 160
7.3.2 The Impact of the Principle of Proportionality......Page 162
7.3.3 The Choice of a Legal Basis......Page 163
7.4 The Suitability of a Directive......Page 165
7.4.1 The Content of a Directive......Page 166
References......Page 168
Chapter 8: Conclusion......Page 171
Directives (in Chronological Order)......Page 176
Communications (in Chronological Order)......Page 178
Other Sources (in Chronological Order)......Page 179
National Sources (in Chronological Order)......Page 180
Case Law of the Court of Justice of the European Union (in Chronological Order)......Page 181
List of Opinions of Advocates General (in Chronological Order)......Page 187
List of National Judgments (in Chronological Order)......Page 188
Articles......Page 189
Book Chapters......Page 196
Reports and Studies......Page 198

Citation preview

Marco Inglese

Regulating the Collaborative Economy in the European Union Digital Single Market

Regulating the Collaborative Economy in the European Union Digital Single Market

Marco Inglese

Regulating the Collaborative Economy in the European Union Digital Single Market

Marco Inglese Department of Law, Politics and International Studies University of Parma Parma, Italy

ISBN 978-3-030-30039-5    ISBN 978-3-030-30040-1 (eBook) https://doi.org/10.1007/978-3-030-30040-1 © Springer Nature Switzerland AG 2019 This work is subject to copyright. All rights are reserved by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Springer imprint is published by the registered company Springer Nature Switzerland AG. The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

Preface

The idea behind this book and the manuscript thereof have been accompanying me over the last 3 years and in the course of a number of different academic positions and States. It was pure coincidence that I came across the (then) sharing economy during my postdoctoral research stay at the University of Sarajevo between the autumn of 2015 and spring of 2016. While I was working at the China University of Political Science and Law, during the autumn of 2016, I transformed my embryonic notions into a comprehensive research project which I used to apply for an Excellence Grant of the Swiss Confederation to spend a year in Fribourg. Pending the evaluation of my project, I moved to University College Dublin and started to present some selected aspects of my research project at conferences, gathering the first, extremely useful, feedback. Finally, I obtained the Excellence Grant of the Swiss Confederation and enjoyed an entire year in Fribourg. Ultimately, I collected enough material to submit a meaningful book proposal to Springer which gladly agreed to publish my manuscript. I then started to write the first draft of the manuscript when I joined Freie Universität Berlin for a winter semester visiting professorship, finally submitting it once back in Italy as a research fellow at the University of Parma. I owe a debt of gratitude to Professor Giacomo Di Federico, who has been mentoring me since my graduation day. Without his steady encouragement, this book would have never been written. I thank Roberta for her strength and for all the support she is giving me. Our discussions have been great moments of personal enrichment. I thank my family for understanding what I do. Parma, Italy  Marco Inglese May 2019

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Contents

1 Introduction������������������������������������������������������������������������������������������������    1 2 Searching for a Definition of the Collaborative Economy in the European Union������������������������������������������������������������������������������    7 2.1 Introduction ����������������������������������������������������������������������������������������    7 2.2 The Collaborative Economy Triangle ������������������������������������������������   11 2.2.1 Online Platforms����������������������������������������������������������������������   12 2.2.2 Service Providers ��������������������������������������������������������������������   15 2.2.3 Users, Prosumers, Peers, Consumers or What Else? ��������������   18 2.3 The Essential Requirements of a Collaborative Economy Transaction������������������������������������������������������������������������������������������   19 2.3.1 Online Platforms: Facilitators or Real Service Providers��������   20 2.3.2 The Economic Exchange ��������������������������������������������������������   22 2.3.3 Another Form of Economic Exchange: Personal Data������������   24 2.4 The Information Society Services Directive ��������������������������������������   26 2.4.1 The Applicability of the Information Society Services Directive to the Collaborative Economy����������������������������������   26 2.4.2 A First Assessment of the Elite Taxi Case ������������������������������   28 2.4.3 A First Assessment of the Uber France Case��������������������������   32 2.4.4 A First Assessment of the Airbnb Ireland Case ����������������������   33 2.5 Conclusion������������������������������������������������������������������������������������������   34 References����������������������������������������������������������������������������������������������������   34 3 The Collaborative Economy Within the Framework of the European Union’s Digital Single Market��������������������������������������   39 3.1 Introduction ����������������������������������������������������������������������������������������   39 3.2 The Potential Applicability of Primary Law ��������������������������������������   43 3.2.1 Free Movement of Workers ����������������������������������������������������   44 3.2.2 Freedom of Establishment ������������������������������������������������������   46 3.2.3 Freedom to Provide and to Receive Services��������������������������   47 3.2.4 Freedom to Choose an Occupation and the Right to Engage in Work ������������������������������������������������������������������   48 vii

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3.2.5 Freedom to Conduct a Business����������������������������������������������   50 3.3 The Potential Applicability of (Some) Secondary Law����������������������   52 3.3.1 The Services Directive������������������������������������������������������������   52 3.3.2 The Recognition of Qualifications Directive ��������������������������   53 3.3.3 The Information Society Services Directive and the e-­Commerce Directive (Again)����������������������������������   56 3.3.4 The Database Directive������������������������������������������������������������   57 3.3.5 The General Data Protection Regulation ��������������������������������   57 3.4 The Uber Saga ������������������������������������������������������������������������������������   59 3.4.1 Elite Taxi����������������������������������������������������������������������������������   59 3.4.2 Uber France ����������������������������������������������������������������������������   60 3.5 Airbnb Ireland ������������������������������������������������������������������������������������   61 3.6 Conclusion������������������������������������������������������������������������������������������   62 References����������������������������������������������������������������������������������������������������   63

4 Consumer Protection ��������������������������������������������������������������������������������   67 4.1 Introduction ����������������������������������������������������������������������������������������   67 4.2 The Conundrum of Consumer Protection in the Collaborative Economy ����������������������������������������������������������������������   70 4.2.1 The Notion of Consumers in the Collaborative Economy������   73 4.2.2 The Notion of Professional or Trader in the Collaborative Economy����������������������������������������������������������������������������������   74 4.2.3 The Role of Online Platforms��������������������������������������������������   76 4.2.4 Protecting Who from Whom?��������������������������������������������������   77 4.3 Applying European Union Law to Online Transactions ��������������������   79 4.3.1 The Unfair Commercial Practice Directive ����������������������������   80 4.3.2 The Consumer Rights Directive����������������������������������������������   82 4.3.3 The e-Commerce Directive������������������������������������������������������   82 4.3.4 The Unfair Terms Directive ����������������������������������������������������   84 4.4 The Concept of Trust in an Online Environment: Selected Aspects����������������������������������������������������������������������������������   85 4.4.1 Rate-and-Review Mechanisms and the Principle of Good Faith ��������������������������������������������������������������������������   87 4.5 A New Deal for Consumers����������������������������������������������������������������   89 4.6 Conclusion������������������������������������������������������������������������������������������   90 References����������������������������������������������������������������������������������������������������   92 5 Labour Law������������������������������������������������������������������������������������������������   95 5.1 Introduction ����������������������������������������������������������������������������������������   95 5.2 Disrupting Classical Labour Law��������������������������������������������������������   98 5.2.1 Collaborative Economy Service Providers As Subordinate Workers������������������������������������������������������������������������������������  100 5.2.2 Collaborative Economy Service Providers As Self-­employed and Professionals��������������������������������������������  103 5.2.3 Online Platforms As Employers����������������������������������������������  104 5.2.4 Rate-and-Review Mechanisms������������������������������������������������  106

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5.3 The Applicability of European Union Law ����������������������������������������  107 5.3.1 The Charter of Fundamental Rights����������������������������������������  108 5.3.2 The Working Time Directive ��������������������������������������������������  110 5.3.3 The Protection of Atypical Workers Directives ����������������������  111 5.4 Some National Experiences����������������������������������������������������������������  112 5.4.1 United Kingdom����������������������������������������������������������������������  113 5.4.2 Italy������������������������������������������������������������������������������������������  114 5.4.3 France��������������������������������������������������������������������������������������  116 5.5 The European Social Pillar������������������������������������������������������������������  117 5.6 Conclusion������������������������������������������������������������������������������������������  119 References����������������������������������������������������������������������������������������������������  121

6 Competition Law and Data Protection����������������������������������������������������  123 6.1 Introduction ����������������������������������������������������������������������������������������  123 6.2 Sectors Mostly Potentially Affected by the Collaborative Economy����������������������������������������������������������������������������������������������  125 6.2.1 Urban Transport ����������������������������������������������������������������������  127 6.2.2 Accommodation����������������������������������������������������������������������  128 6.3 Collaborative Platforms As Undertakings ������������������������������������������  130 6.3.1 Competition Amongst Platforms ��������������������������������������������  131 6.3.2 Competition in the Underlying Services’ Market��������������������  131 6.3.3 Competition Amongst Service Providers��������������������������������  133 6.4 Collaborative Platforms and Data Protection��������������������������������������  134 6.4.1 From Data Protection to Big Data ������������������������������������������  136 6.4.2 Whose Big Data? Big Data and Barriers to Entry into the Market������������������������������������������������������������������������  138 6.4.3 Anticompetitive Practices Through the Accumulation of Big Data������������������������������������������������������������������������������  138 6.5 The Right to Data Portability��������������������������������������������������������������  140 6.6 Conclusion������������������������������������������������������������������������������������������  142 References����������������������������������������������������������������������������������������������������  144 7 Regulating the Collaborative Economy: A Way Forward����������������������  147 7.1 Introduction ����������������������������������������������������������������������������������������  147 7.2 The Need for Regulating the Collaborative Economy������������������������  149 7.3 The EU Competence to Regulate the Collaborative Economy ����������  153 7.3.1 The Impact of the Principle of Subsidiarity����������������������������  155 7.3.2 The Impact of the Principle of Proportionality������������������������  157 7.3.3 The Choice of a Legal Basis����������������������������������������������������  158 7.4 The Suitability of a Directive��������������������������������������������������������������  160 7.4.1 The Content of a Directive������������������������������������������������������  161 7.5 Conclusion������������������������������������������������������������������������������������������  163 References����������������������������������������������������������������������������������������������������  163 8 Conclusion��������������������������������������������������������������������������������������������������  167

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List of Acts��������������������������������������������������������������������������������������������������������  173 Case Law of the Court of Justice of the European Union (in Chronological Order)��������������������������������������������������������������������������  179 List of Opinions of Advocates General (in Chronological Order)��������������  185 List of National Judgments (in Chronological Order) ��������������������������������  187 References ��������������������������������������������������������������������������������������������������������  189

Chapter 1

Introduction

The collaborative economy is a new triangular business model enabling the exchange of services and the common usage of goods among users registered on an online platform. These activities can be carried out for free or for a fee, either by natural persons or by professionals. This phenomenon, also referred to as the sharing economy, the gig economy, the platform economy, the peer-to-peer economy and even the ‘Uberized’ economy, is radically modifying trade patterns and consumption habits. Whereas sharing something and collaborating with somebody to achieve a common goal are activities as ancient as human beings, they have always been practised among families, neighbours and colleagues, essentially in a very limited network of participants. Unsurprisingly, the steady development of the Internet has decisively contributed to the mushrooming of a massive variety of online platforms which match demand and supply in terms of the most heterogeneous services and objects: accommodation, car rides, house-swapping, household chores, professional advice, childcare, food delivery, technology assistance, investments, crowd-working, education—the list is almost endless. This has boosted the capacity and increased the willingness to share idle assets, as a recent Eurobarometer survey shows. The advent of the collaborative economy is nowadays challenging not only consolidated legal acquisitions but imposing unprecedentedly hard choices on policymakers and the judiciary, at the national, supranational and international level. Whether and how the collaborative economy and online platforms are or, rather, should be regulated by the European Union (EU) is the leading research question this monograph seeks to answer. To start with, throughout this book, the expression collaborative economy is preferred over others for two intertwined reasons: on the one hand, it is the official terminology adopted by the European Commission in the communication titled ‘A European Agenda for the Collaborative Economy’; on the other, it emphasizes how collaborating is more far-reaching than sharing, at least in the legal context. Indeed, the latter does not always entail an economic exchange while the former, by contrast, does: this difference is crucial for the application of EU internal market law. © Springer Nature Switzerland AG 2019 M. Inglese, Regulating the Collaborative Economy in the European Union Digital Single Market, https://doi.org/10.1007/978-3-030-30040-1_1

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2

1 Introduction

Online platforms operate in multisided markets, insofar as they provide a so-­ called underlying service—e.g., offering a ride, a translation, accommodation—for remuneration while simultaneously competing in the wider arena of online platforms as such. They adopt different attitudes towards their users to the extent that they can exert an overtly pervasive control over the latter—for instance, by setting prices, quality requirements and standard conditions—or, by contrast, not interfering at all in their transactions. Depending on those various degrees of influence, online platforms might also be assimilated to employers. Online platforms acquire personal data, using them both to customize their offers and as a means to maximize their competitive advantage in the (multisided) relevant product market. Users, in turn, can be at the same time providers and recipients of an underlying service, thereby blurring the dichotomy between traders/sellers and consumers. These situations clearly affect legal certainty. Despite these issues having a decisive impact over local communities, the fact that the Internet has such a strong influence in dematerializing and matching demand and supply points to the view that the collaborative economy has to be tackled in different ways on the national and supranational dimension. Therefore, not only does the challenge lie in the identification of the competent regulatory body, if any, at the most appropriate level, but also in how to absorb negative externalities. For instance, it is well known that taxi drivers’ unions in Barcelona and Brussels lobbied against Uber for alleged anticompetitive practices. Moreover, many drivers installed cameras in their cars to monitor aggressive behaviour while passengers reported sexual harassment. Airbnb hosts were accused of refuse bookings on a purely racial basis so the platform reacted by introducing an automatic, yet to be voluntarily adopted, system of reservations. Furthermore, as a strategy to prevent the exponential increase in rental prices in the most attractive zones, Berlin and Amsterdam imposed a predetermined number of nights per calendar year on Airbnb hosts wishing to rent their spare rooms. More recently, Airbnb itself entered into agreements with some municipalities—e.g. Milan, Lisbon and Strasbourg—to gather tourism tax on their behalf. Other examples pertain to the recent effort that took place in Bologna to persuade food delivery platforms to adopt a code of conduct in order to protect riders in case of adverse weather conditions and to extend to them basic health insurance. These forms of self-regulation and horizontal cooperation should be appreciated insofar as they develop the idea of a common effort to cope with negative externalities; yet, they tend to compartmentalize the market at a national or even regional level. This, in turn, runs counter to the idea of having, among the Member States of the EU, a Digital Single Market (DSM) where ‘the free movement of goods, persons, services and capital is ensured and where individuals and businesses can seamlessly access and exercise online activities under conditions of fair competition, and a high level of consumer and personal data protection, irrespective of their nationality of place of residence’ as affirmed in the Commission communication ‘A Digital Single Market for Europe’. This very same act, for the first time in 2015, acknowledged that ‘the rise of the sharing economy also offers opportunities for increased efficiency, growth and jobs, through improved consumer choice, but also

1 Introduction

3

potentially raises new regulatory questions’. Adhering to the idea that there are several EU internal markets but that the DSM does not necessarily follow different rules, being simply a part of a broader picture, it is nonetheless true that the collaborative economy is perhaps the most profitable aspect thereof. Back in 2015, it already amounted to 28 billion EUR, as reported in the Commission communication ‘A European Agenda for the Collaborative Economy’. The collaborative economy hence fits within the narrative of the completion of the EU internal market, a domain in which the EU has always been keen on exercising its shared competences through harmonization measures. Therefore, in order to respond to the research question identified above—i.e., whether the collaborative economy and online platforms should be regulated and at what level—this book argues that EU legislation, possibly in the form of a directive, is needed in order to regulate various aspects of the collaborative economy, in particular, consumer protection, labour relations, data protection and selected competition law issues. These aspects constitute the bulk of this book which, in turn, is structured in seven chapters, each one presenting some of the most controversial issues of the collaborative economy and seeking to respond to the challenges it is bringing in. In essence, each chapter constitutes an autonomous reason why the EU should step in to regulate the collaborative economy. Chapter 2 introduces the main actors involved in typical, triangular collaborative economy transactions: an online platform, a service provider and a user/consumer (otherwise known as a ‘prosumer’). It then focuses on the concept of remuneration, thereby stressing—congruently with the scope and aim of the book—that, in light of the consolidated case law of the Court of Justice of the European Union (CJEU) regarding internal market freedoms, only gainful economic activities are considered relevant for the purposes of the collaborative economy in the EU legal order. However, gathering and exploiting personal data, through so-called ‘freemium’ mechanisms, represent forms of sui generis remuneration, worthy of specific attention. The chapter concludes by exploring the applicability of the Information Society Services Directive and the Database Directive. Finally, this chapter presents a first appraisal of the most recent case law of the CJEU in the so-called Uber saga as well as initiates a discussion on the opinion of Advocate General (AG) Szpunar in the Airbnb Ireland case. Chapter 3 encapsulates the collaborative economy within the current development of the DSM. To do so, the collaborative economy is assessed against the bulk of EU law, primarily through the lenses of classical free movement rules. In addition, the Charter of Fundamental Rights of the European Union (the Charter) has a salient role to play in what concerns the freedom to choose an occupation and to conduct a business. Once the impact of primary law has been tested, secondary law is used to evaluate whether the collaborative economy fits within a well-designed framework comprising the Services Directive, the Information Society Services Directive, the Database Directive, the Recognition of Qualification Directive and the General Data Protection Regulation. The case law of the CJEU in the Uber saga as well as AG Szpunar opinion in Airbnb Irelandare further discussed in this specific context. Chapter Three hence concludes that, when a collaborative economy

4

1 Introduction

transaction is at stake, its legal qualification, as well as the consequences stemming from it, depends on the very nature of the underlying service. Chapter 4 investigates whether the EU consumer acquis is applicable in a collaborative economy triangular relation by exploring the possibilities offered by, among others, the Unfair Commercial Practice Directive, the Consumer Rights Directive and the e-Commerce Directive. Indeed, in a typical collaborative economy transaction, it is extremely difficult to correctly identify the intent and the personal characteristics of each party and, eventually, whether one of them is acting in a professional capacity or not. This, in turn, might affect the outcome of a transaction in terms of undermining legal protection as well as legal certainty for all the parties involved. These aspects are also linked to the concept of trust in a digital environment to the extent that rate-and-review mechanisms—as self-regulatory tools directly implemented by online platforms—could be useful instruments by which to distinguish between a consumer and a trader/professional, thereby providing more information on the personal characteristic of users. Finally, the chapter evaluates the brand-new Commission’s Consumer New Deal to verify whether it confers more thorough consumer protection in the collaborative economy. Chapter 5 assesses how the collaborative economy is transforming labour law and employment relations, blurring the distinction between an employer and an employee, hence rarefying even the protection of social rights. Indeed, working in one’s spare time, with no subordination whatsoever, lacking any form of social security and with no predetermined tasks, hardly fits within the pattern of classical labour law. In other words, depending on the underlying service, an online platform can decide to exert either a powerful command-and-control chain or a more flexible intermediary role. These issues are addressed through an analysis of the applicability of the Working Time Directive and the Protection of Atypical Workers Directives. In this respect, national judicial experiences in the UK, France and Italy are used to demonstrate that domestic courts have a different understanding of the factual circumstances leading to genuine employment relations. Nonetheless, should certain conditions be met—such as the imposition of tariffs, control of behaviour, exclusionary powers, prohibition of multihoming and mandatory qualitative ­requirements—an online platform can be assimilated to an employer. Ultimately, this chapter discusses whether the recently adopted European Social Pillar confers added value to the protection of workers in the collaborative economy. Chapter 6 intends to bridge a gap between competition law and data protection in order to explore, first, whether or not online platforms compete in the same market with incumbent operators and, second, whether the critical mass of consumers’ data gives them competitive advantage over new entrants. This is especially so, since online platforms operate in multisided markets. In this context, from a purely competition law perspective, the accumulation of big data might represent a sort of essential facility in the hands of a few platforms, thereby raising serious concerns regarding the protection of consumers’ data as well as the potential abuse of a dominant position. For this reason, the General Data Protection Regulation is used as a

1 Introduction

5

benchmark to evaluate the lawfulness of online platforms’ practices vis-à-vis individuals, especially against the backdrop of the new right to data portability. In light of the findings of the previous chapters, Chapter 7 puts forward the author’s proposal: the collaborative economy or, at least its most controversial aspects, should be regulated at the EU level through a legislative act in the form of a directive. Therefore, first, it is posited that the EU is competent to adopt a directive aimed at levelling the playing field of the collaborative economy in context of the EU’s shared—yet, extremely wide—competence in the internal market. Second, this directive would be in compliance with the principles of subsidiarity and proportionality. Third, such a directive could be based on the general approximation of law clause enshrined in Article 114 of the Treaty on the Functioning of the European Union (TFEU) while simultaneously taking into account other non-market values, especially consumer protection, transparency and fairness in labour law, and legal certainty for involved actors. Furthermore, the key elements of such a directive will be singled out, in particular, its material and personal scope of application. Specifically, regarding the former, distinguishing between professional and non-­ professional service providers according to the number of transactions, taking also into account their continuity, they perform in each calendar year is proposed. This would enhance trust in the online environment and also pave the way to understand whether platforms should be considered as marketmakers or matchmakers since, solely in the former scenario, they should be considered as employers. This would fill the gap in consumer protection as well as protect workers’ rights. The collaborative economy impinges upon many other sectors, such as the liability of online platforms and service providers as well as the fiscal regime applicable to both of them, the efficiency of alternative online dispute resolution and dedicated aspects of intellectual property. In addition, given that the collaborative economy is a worldwide phenomenon, several entrenchments can be found at the level of the World Trade Organization. Considering the specialities of these issues, they will only be incidentally touched upon to the extent that they are useful to corroborate our findings. Despite this book being entirely based on the EU legal order, with some references to the national legislation and case law of its Member States, a substantial part of the scholarly opinions to be commented upon come from the US for a contingent reason: the first forms of the sharing economy were born overseas, thus legal doctrine is highly developed and diversified in that context. By contrast, solely in the last 3–4 years, EU law specialists have started to deal with the collaborative economy: it is now time to fill this gap and to contribute to this enriching debate, addressing this book to EU lawyers, academics, practitioners, policymakers, students and, eventually, to online platforms. This book takes into account cases, legislation and legal literature up to 31 May 2019.

Chapter 2

Searching for a Definition of the Collaborative Economy in the European Union

Abstract  This chapter introduces the main actors involved in typical, triangular collaborative economy transactions: an online platform, a service provider and a user/consumer (otherwise known as a ‘prosumer’). It then focuses on the concept of remuneration, thereby stressing—congruently with the scope and aim of the book— that, in light of the consolidated case law of the Court of Justice of the European Union (CJEU) regarding internal market freedoms, only gainful economic activities are considered relevant for the purposes of the collaborative economy in the European Union (EU) legal order. However, gathering and exploiting personal data, through so-called ‘freemium’ mechanisms, represent forms of sui generis remuneration, worthy of specific attention. The chapter concludes by exploring the applicability of the Information Society Services Directive and the Database Directive. Finally, this chapter presents a first appraisal of the most recent case law of the CJEU in the so-called Uber saga as well as initiates a discussion on the opinion of Advocate General Szpunar in the Airbnb case. Keywords  Online platforms · Service providers · Users · Remuneration · Information society services directive and e-commerce directive

2.1  Introduction The collaborative economy is an economic activity that has evolved in the last decade whose disruptive effects over consolidated legal acquisitions is now more evident than ever. It is indeed blurring the notions of consumer, service provider, employer, self-employed, command and control, user, digital platforms, online trusts etc. Moreover, it has also been generating a plethora of different reactions, ranging from anger to enthusiasm, from a new business avenue for entrepreneurs to the fear of anticompetitive practices of established incumbents, from offering everybody a source of small income to undermining social rights. Therefore, new challenges have been posed to local, national and supranational policymakers. In this © Springer Nature Switzerland AG 2019 M. Inglese, Regulating the Collaborative Economy in the European Union Digital Single Market, https://doi.org/10.1007/978-3-030-30040-1_2

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jumble of uncertainties, the way of categorizing this phenomenon is also disputed; therefore, it is necessary to reach at a unified notion for the sake of clarity. The collaborative economy is known by different labels: the sharing economy, the gig economy, the platform economy, the on-demand economy, the peer-to-peer (P2P) economy and even the Uberized economy. Each of these expressions catches a different, prominent feature of the topic which this book aims to analyse.1 Commencing with the latter, the Uberized economy refers to the predominant role of Uber, perhaps the most well-known online platform, as well as to the worldwide success of its business model.2 Indeed, as The Wall Street Journal stated in May 2015, ‘there is an Uber for everything’.3 The P2P economy stresses that, despite transactions being facilitated through an online platform, the main actors still are peers,4 who are identified as natural persons not acting in their professional capacity but according to a consumer-to-consumer (C2C) pattern. The on-demand economy considers that access to a service or to a good is requested solely when necessary; hence, the remuneration or the price for it is only paid for limited usage, while being neither fixed nor predetermined. The platform economy recognizes that the mushrooming of online platforms as virtual marketplaces to match demand and supply amongst peers has been and will be the driving force of the platform economy itself.5 After all, while the P2P economy emphasizes the role of humans, the platform economy underlines the importance of algorithms and the Internet. The gig economy, in turn, draws attention to a model according to which companies tend to hire independent contractors or freelancers, limiting their assignments to ongoing projects or performing low-skilled tasks.6 A typical example in this respect is the activity of food delivery. The sharing economy, perhaps the most famous expression, indicates a system whereby the involved actors behave differently: an online platform performs the passive role of the matcher of demand and supply while a service provider and a user exploit their respective, often idle, expertise or resources,7 such as a car ride, babysitting, translation, legal advice and household chores.8 Often, the sharing economy

 Hatzopoulos (2018a), pp. 4–8.  Mostacci and Somma (2016) and Zou (2017), pp. 269–294. 3  There’s an uber for everything now, The Wall Street Journal, 5 May 2015, www.wsj.com/articles/ theres-an-uber-for-everything-now-1430845789 (accessed: 13 June 2019). 4  Aloni (2016), pp. 1397–1459. 5  Busch et al. (2016), pp. 3–10. 6  De Stefano (2016); Todolì-Signes (2017), pp. 241–268. 7  For a seminal study, see Botsman and Rogers (2011), pp. 67–93. For other criticisms, see also Eckhardt G M, Bardhi F (2015) The sharing economy isn’t about sharing at all. HBR, hbr. org/2015/01/the-sharing-economy-isnt-about-sharing-at-all (accessed: 17 June 2019). The archetypal concept of the sharing economy is thus spelled out in legal terms by Scott and Brown (2017), pp. 553–599. 8  In particular, see Exploratory Study of Consumer Issues in Peer-to-Peer Platform Markets. Task 4 Report—Cross Analysis of Case Studies of 10 Peer-to-Peer Platforms, ec.europa.eu/newsroom/ just/item-detail.cfm?item_id=77704 (accessed: 24 June 2019). 1 2

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9

as such does not imply an economic gain; rather, it solely ensures mutual benefit between the two parties, so much so that this notion basically refers to the ideal archetype of a consumer as well as ecological awareness developed in order to rediscover human relationships among neighbours9 and to put in place common idle goods and capacities, including time and even professional knowledge. The original idea behind it was not, thus, to earn additional income. Until a decade ago, therefore, in the golden age of couch-surfing and before the advent of the now-­symbolic Uber and Airbnb, online platforms simply helped out to match demand and supply in a passive manner while exchanges were essentially limited. This scenario has now radically changed10 to the extent that online platforms have moved away from this pioneering attitude and evolved toward a true business model11 aimed at profit-seeking. Even first-hour users were floored by this quick transformation, while online platforms became more and more commercially aggressive and competitive in relation to each other as well as market incumbents. Certain commentators even coined the expression share-washing to indicate those online platforms that attempted to reproduce the original sharing economy scheme to attract more users.12 Be that as it may, the Internet has decisively contributed to the rapid growth of the collaborative economy, not only by prompting the creation of dedicated website functioning as virtual marketplaces but, more recently, through the availability of apps on everybody’s mobile phones. These apps thus work as intermediaries between service providers and users. In legal jargon, the collaborative economy covers all the aforementioned aspects and nuances, while crucially adding the constituent factor of remuneration, in other words, the idea of doing something in exchange for a valuable economic gain.13 Further, this economic exchange, in its most sophisticated form, can also take place through so-called freemium mechanisms, whereby users agree to transfer their personal data to an online platform. This discards the naivety of the original sharing economy. This economic exchange, be it in a simple or in a sophisticated form, is often transnational and hence covered by the European Union (EU) internal market law.14 Thus, it is essential to ascertain how the EU reacted to the rise of the collaborative economy. In 2015 and 2016, the Commission stepped in the then-embryonic debate surrounding the sharing economy by delivering two remarkable communications: while the first stressed the need to complete the Digital Single Market (DSM Communication),15 the second put forward an agenda for the collaborative economy  Paulauskaite et al. (2017), pp. 619–628.  Arguably, the sharing economy does not fall within the wide domain of the so-called Internet of Things either. See Hojnik (2016), p. 1578. 11  Katz (2015), pp. 1067–1126; Ranchordas (2015), pp. 413–475. 12  Scott and Brown (2017), pp. 583–585. 13  For a more detailed account of the economic resources generated and involved, see Petropoulos (2016). 14  Hatzopoulos (2012), pp. 38–42. 15  Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of Regions. A Digital Single Market Strategy for Europe, COM(2015) 192 final. 9

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(the Agenda).16 Meanwhile, also the Committee of the Regions17 and the Parliament18 contributed to the idea that the collaborative economy is a widespread phenomenon affecting, on the one hand, the internal market and, on the other, the way in which individuals participate in the economic life of the EU. In this respect, it is interesting to note that the aforementioned DSM Communication acknowledged that ‘the rise of the sharing economy [emphasis added] also offers opportunities for increased efficiency, growth and jobs, through improved consumer choice, but also potentially raises new regulatory questions’.19 Evidently, dissatisfied with this hardly pertinent nomenclature, the Commission itself now uses the expression collaborative economy and has done so since the very beginning of the Agenda. The correctness of this choice is stressed in its critical assessment20 which, in turn, emphasizes the birth of what is called a ‘novel economic agent’,21 characterized by ‘decentralisation and de-professionalisation’,22 hence giving rise to the concept of peer and/or prosumer, as a person combining production and consumption. Neologisms dictate the agenda of policymakers. The Agenda adopts the following definition for the collaborative economy: Business models where activities are facilitated by collaborative platforms that create an open marketplace for the temporary usage of goods or services often provided by private individuals. The collaborative economy involves three categories of actors: (i) service providers who share assets, resources, time and/or skills  – these can be private individuals offering services on an occasional basis (‘peers’) or service providers acting in their professional capacity (‘professional services providers’); (ii) users of these; and (iii) intermediaries that connect – via an online platform – providers with users and that facilitate transactions between them (‘collaborative platforms’). Collaborative economy transactions generally do not involve a change of ownership and can be carried out for profit or not-for-profit.23

The expression collaborative economy is preferred over the others mentioned above for two intertwined reasons: first, it is the official name adopted by the

 Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of Regions. A European Agenda for the Collaborative Economy, COM(2016) 356 final. 17  Opinion, Committee of the Regions, 3–4 December 2015. The Local and Regional Dimension of the Sharing Economy, COR-2015-02698-00-00-AC-TRA (Rapporteur: B Brighenti); Draft Opinion, Committee of the Regions, 28 September 2016. Collaborative Economy and Online Platform: A Shared View of Cities and Regions, COR-2016-04163-00-00-PA-TRA (Rapporteur: B Brighenti). 18  See the two motions for a European Parliament resolution on the collaborative economy, 3 February 2016, B8-0249/2016 (Rapporteurs: S Monteal, F Philippot) and 22 February 2017, B8-0175/2017 (Rapporteurs: J Mélin, M Troszczynski), and the European Parliament Resolution of 15 June 2017 on a European agenda for the collaborative economy, 2017/2003(INI) (Rapporteur: N Danti). 19  A Digital Single Market Strategy for Europe, para. 3.3.1. 20  Smorto (2017). 21  Ibid., p. 12. 22  Ibid. 23  A European Agenda for the Collaborative Economy, para 1. 16

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Commission; second, it implies that exchanges effectuated among peers and ­intermediated by online platforms can be carried out for free or against remuneration. However, it is only when the latter condition is satisfied that EU fundamental economic freedoms come into play.24 Following these premises, this chapter is structured as follows. First, it identifies the actors of a typical collaborative economy transaction, making reference to a triangular scheme including an online platform, a service provider and a user. Second, it delves into the elements of a typical collaborative economy transaction by evaluating whether online platforms should be considered as mere facilitators or the real suppliers of the so-called underlying service. In doing so, a specific focus is placed on the concepts of economic exchange and gain and whether the transfer of data from users to platforms can be considered as a sui generis form of remuneration. Hence, the chapter explores the applicability of Directives 2015/1535 (Information Society Services Directive)25 and 2000/31 (e-Commerce Directive)26 as the EU acts arguably most capable of regulating a collaborative economy transaction: the former defines information society services as services provided upon a user’s request, supplied through an information society service, at a distance and for remuneration; the latter establishes that those services must move freely within the EU internal market. Bearing these elements in mind, the chapter concludes by offering a first assessment of the Uber saga, which recently came under the spotlight of the Court of Justice of the European Union (CJEU) and commencing a discussion on the Airbnb Ireland case.

2.2  The Collaborative Economy Triangle In the legal field, triangular commercial relations are not uncommon, nor is their widespread presence imputable solely to the advent of the Internet. Indeed, it suffices to recall the well-established figure of commercial agents, executing a business on behalf of a principal and concluding it with a third party. In the collaborative economy domain, this is depicted by the concurrent presence of an online platform, a service provider and a user. It might also be the case that the last two coincide, being simultaneously involved for the purposes of the same transaction, hence originating a now common neologism, ‘prosumer’. What distinguishes the collaborative  See para. 1.3.2 and 1.3.3.  Directive (EU) 2015/1535 of the European Parliament and of the Council of 9 September 2015 laying down a procedure for the provision of information in the field of technical regulations and of rules on Information Society services, OJ L 241, 17.9.2015, pp. 1–15. The Information Society Services Directive repealed Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations, OJ L 204, 21.7.1998, pp. 37–48. 26  Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market, OJ L 178, 17.7.2000, pp. 1–16. 24 25

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economy from any other sort of triangular legal relation is the diriment role of online platforms. Taking into account the asymmetric positions of those three parties, a collaborative economy triangle can be construed as follows. Online platforms are situated at the apex, on the intuitive ground that, lacking their intermediary role, the collaborative economy cannot exist.27 In contrast, providers and users represent the basis of, and maintain, a binary mutual relation between them, while, at the same time, addressing themselves to an online platform for different reasons: on the one hand, for issues concerning labour law; on the other, to seek redress in the case of wrongdoing perpetrated by providers. Some of these arguments will be analysed in the following chapters. The aforementioned three intertwined categories are spelled out in this section, making reference to the Agenda and its critical assessment.

2.2.1  Online Platforms Online platforms represent the main engine of the collaborative economy and, depending on their inherent features, are able to steer transactions as well as the relation between a provider and a user. It should be affirmed at the outset that there is no general understanding of what an online platform is, especially since it can cover a great variety of different and unrelated fields. The Communication on online platforms28 is instructive in this respect, insofar as it refrains from offering legally sound definitions. Instead, it lists some common features: (i) the ability to create, shape and challenge markets and incumbents; (ii) operating in multisided markets; (iii) benefiting from a network effect; (iv) reliance on information technology; (v) the creation of digital value. Considering those elements, at least two opposite schemes can be identified. On one side, digital platforms can embody an extremely passive attitude, thereby limiting themselves to behave in a non-interventionist manner and acting solely as a mere virtual (non-)marketplace for the match between demand and supply, as in the early days of couch-surfing or in the more modern car-pooling of BlaBlaCar. On the other, digital platforms can be highly engaged, thereby influencing not only the performances of their providers but also the relation they establish with users. For instance, through a complex algorithm, Uber is able to push drivers towards more profitable zones, e.g., shopping centres, railway stations, touristic areas, and to impose differentiated fares during peak time; this practice is known as surging.

 This calls into question their role in terms of private law. Sorensen (2016), pp. 15–19.  Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of Regions. Online Platforms and the Digital Single Market. Opportunities and Challenges for Europe, COM(2016) 0288 final. 27 28

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Needless to say, this scheme is fluid too. For instance, Airbnb adopts a mixed attitude: whereas, at the beginning, it was not involved in steering its hosts’ activities, recently, it has intervened by suggesting how to take pictures, how to equip a room, what additional services should be offered and the price thereof, how to behave with guests etc. Irrespective of the operative modalities adopted by online platforms, it is nonetheless evident that they retain considerable power in terms of direction and control over providers by means of rate-and-review mechanisms. As long as users leave comments and rate the experiences they had, online platforms process this information to adjust accordingly their providers’ performances, e.g., requesting them to install a more powerful Wi-Fi system, to include breakfast or to allow passengers choosing their favourite music. In the most negative cases, providers can be excluded from the platform if they are not able to meet users’ expectations.29 The opposite is also true since users can also be banned in the case of particularly serious misconduct, such as, damage to a property. These observations, meanwhile, leave open the definition of online platforms. An attempt to dispel the uncertainties related to that notion can be made by reference to existing EU legal instruments starting with the cognate definition for database. Article 1(2) of Directive 96/9 (Database Directive)30 defines a database as ‘a collection of independent work, data or other materials arranged in a systematic or methodical way and individually accessible by electronic or other means’. Recital 2 of the Database Directive affirms that regulatory differences in database protection among Member States jeopardize the freedom to provide ‘online [emphasis added] database goods and services’. Recital 9 acknowledges that databases are fundamental for the development of an information market. Article 3(1) explicitly establishes that the object of protection is the intellectual effort of the author of a database, while Articles 7–10 stresses her/his rights. For instance, it is without doubt that Airbnb arranges ‘other materials’,31 i.e., a list of available accommodation in a given urban area, in a systematic and/or methodical way, and that that data are electronically accessible. Now, a joint reading of these provisions arguably seems to point out that the protection afforded to online databases is not applicable to online platforms, despite the existence of some commonalities between the two. Let us now turn to the interpretation given by the CJEU. In Fixtures Marketing Ltd.,32 the CJEU was called to rule upon the notion of database, more precisely, whether it encompasses the fixture of football matches. After having recalled the decision-making process leading to the adoption of the Database Directive in order to stress the various fields it covers, the CJEU holds that, despite that act enshrining a wide definition of database—including even  See Chap. 5.  Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases, OJ L 77, 27.3.1996, pp. 20–28. 31  Article 1(2) Database Directive. 32  Case C-444/02, Fixtures Marketing Ltd. v Organismos prognostikon agonon podosfairou AE (OPAP), judgment of 9 November 2004. 29 30

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n­ on-­electronic forms, such as paper library catalogues or paper telephone number books and business directories—that notion should be functionally driven. Thus, it relies on ‘the existence of a collection of “independent” materials […] which are separable from one another without their informative, literary, artistic, musical or other value being affected’.33 In addition, it should include the technical means by which to retrieve the independent material contained therein. The CJEU goes onto clarify that this ‘distinguishes a database within the meaning of the directive, characterised by a means of retrieving each of its constituent materials, from a collection of materials providing information without any means of processing the individual materials which make it up’.34 Therefore, the concept of database ‘refers to any collection of works, data or other materials, separable from one another without the value of their contents being affected, including a method or system of some sort for the retrieval of each of its constituent materials’.35 This functionally oriented interpretation allowed the CJEU to include topographic maps into the concept of database.36 It is even more noteworthy that the CJEU ruled that, whereas public authorities run and manage a database, this cannot be considered an economic activity for the purposes of Article 102 of the Treaty on the Functioning of the European Union (TFEU).37 Conversely, whereas the management of a database is carried out for a profit-seeking motive, this could lead to apply the concept of undertaking, thus triggering EU internal market freedoms as well as EU competition law. The elements highlighted by the CJEU seem to confirm that an online platform cannot be assimilated to a database since the triangular element is lacking. A database, in essence, is not an intermediary, nor does it enjoy specific powers regarding its addressees. Ultimately, online databases and online platforms are both electronically accessible, but their inherent characteristics are totally different. Therefore, the path of the Database Directive is of no use for the applicability of existing secondary law to the collaborative economy. Recourse has to be consequently made to the Agenda and to its critical assessment. By reference to the aforementioned general definition of the collaborative economy, the Agenda describes collaborative platforms as virtual open marketplaces and, eventually, transaction facilitators. The Agenda does not indulge in defining the concept of online platforms as such. By contrast, it stipulates that, as long as they provide a service for remuneration, at a distance, by electronic means and upon individuals’ request, according to the definition contained in Article 1(1) (a) of the Information Society Services Directive, they fall within the scope of application of the e-Commerce Directive. Therefore, they benefit from the widest opportunities offered by the EU internal market and, according to Article 4(1) of the

 Fixtures Marketing Ltd. v Organismos prognostikon agonon podosfairou AE (OPAP), para. 29.  Fixtures Marketing Ltd. v Organismos prognostikon agonon podosfairou AE (OPAP), para. 31. 35  Fixtures Marketing Ltd. v Organismos prognostikon agonon podosfairou AE (OPAP), para. 32. 36  Case C-490/14, Freistaat Bayern v Verlag Esterbauer GmbH, judgment of 29 October 2015. 37  Case C-138/11, Compass-Datenbank GmbH v Republik Österreich, judgment of 12 July 2012. 33 34

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e-Commerce Directive, they cannot be subject to any restrictions or any other requirement having an equivalent effect on market access in a host Member State.38 This aspect is crucial and plays a key role in the decisions that the CJEU made in the Uber saga and, by extension, in the overall systematization of the collaborative economy. However, those prohibitions are not absolute and should be scrutinized in light of the activity performed by an online platform, that is, assessing the underlying service. That being said, it is perhaps more appropriate to define online platforms as ‘open infrastracture[s]’,39 exercising, depending on their mode of functioning, a mere facilitator role or exerting a high level of control and influence over providers and users. It thus seems that the first tier of a typical collaborative economy transaction is still rather undefined or, better still, it is scarcely determined solely by reference to its active (or passive) attitude vis-à-vis service providers, users and the underlying service. These elements pave the way for an evaluation of online platforms in light of Directive 2006/123 (Services Directive)40 regarding market access, as well as the principles of mutual recognition and home country control.41 Eventually, Articles 49 and 56 TFEU can also be of relevance in this respect, as will be shown in the following paragraphs, especially in light of the differences between Airbnb and Uber.

2.2.2  Service Providers The concept of service provider has been largely explored in the EU internal market narrative; there is an abundance of literature,42 while CJEU case law embraces the most diverse fields, such as cross-border healthcare,43 gambling44 and regulated

 Snell (2010), pp. 437–472.  Smorto (2017), p. 13. 40  Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market, OJ L 376, 27.12.2006, pp. 36–68. The importance of this act goes well beyond the object of this monograph and is likely to affect the development of the whole EU internal market. Barnard (2008), pp. 323–394; Hatzopoulos (2008), pp. 215–261. 41  Davies (2007), pp. 232–245. 42  To name but a few contributions having a general breadth: Barnard (2016), pp.  290–323; Enchelmaier (2011), pp. 615–650; Hatzopoulos (2013), pp. 459–501; Hatzopoulos and Do (2006), pp. 923–991. 43  See the most famous Case C-372/04, The Queen, on the application of Yvonne Watts v Bedford Primary Care Trust and Secretary of State for Health, judgment of 16 May 2006 and, amongst the most recent, Case C-268/13, Elena Petru v Casa Judeţeană de Asigurări de Sănătate Sibiu and Casa Naţională de Asigurări de Sănătate, judgment of 9 October 2014. 44  See the most famous Case C-360/04, Criminal proceedings against Massimiliano Placanica (C-338/04), Christian Palazzese (C-359/04) and Angelo Sorricchio (C-360/04), judgment of 6 March 2007 and, amongst the most recent, Case C-49/16, Unibet International Ltd. v Nemzeti Adó- és Vámhivatal Központi Hivatala, judgment of 22 June 2017. 38 39

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professions.45 Hence, for our purposes, it suffices to recall the interpretation of Articles 56–57 TFEU and to adapt it to the distinctive features of the collaborative economy. To start with, Article 2(1)(b) of the e-Commerce Directive stipulates that a service provider is ‘any natural or legal person providing an information society service’, while Article 2(1)(c) adds that an established service provider ‘pursues an economy activity using a fixed establishment for an indefinite period’. In this respect, three observations have to be made. The first is whether online platforms, as the real service providers established in a home Member State and operating in a host Member State via their own branches and their own workforce, are at the crossroad between Articles 49 and 56 TFEU; for our purposes, this will be discussed in relation to the Uber saga.46 Moreover, it remains to be ascertained whether the service at stake is an information society service or, rather, an underlying service, that is, the material performance a user obtains. Second, insofar as online platforms do not act as service providers, individuals can offer their services on a temporary basis, under retribution, in every Member State, personally but always through the cooperation of online platforms. Third, it might be possible that those individuals act in their professional capacity. The following section delves into the last two scenarios. Essentially, uncertainties pertain to the personal characteristics of service providers. The success of the collaborative economy model rests on the assumption that anybody can join, exploiting her/his own spare time and assets, thereby creating an additional source of income. However, different consequences stem from the circumstance that somebody can act in an individual or, rather, non-professional capacity, while others can in a professional manner. Some examples can better illustrate this scenario. It is clear that an Uber driver and an Airbnb host have much in common: they both participate in the collaborative economy to earn extra money on a sporadic basis without any form of stable establishment, in their spare time, with no subordination and no business organization whatsoever. Similar considerations can be put forward in respect of freelancers cooperating on the micro-tasks of a bigger project. However, the situation dramatically changes insofar as people start to collaborate on a permanent basis, equipping themselves with some sort of permanent organization and structure: in this scenario, they are engaged in the collaborative economy to make a living out of it. In this sense, an Uber driver or an Airbnb host or a professional translator might respond to different regulatory needs in respect of consumers47 as well as towards online platforms. Indeed, they might very well take on the

 See the most famous Case C-55/94, Reinhard Gebhard v Consiglio dell’Ordine degli Avvocati e Procuratori di Milano, judgment of 30 November 1995 and, amongst the most recent, Case C-1/12, Ordem dos Técnicos Oficiais de Contas v Autoridade da Concorrência, judgment of 28 February 2013. 46  See para. 2.4.2 and 2.4.3. 47  See Chap. 4. 45

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role of employers. This, in turn, can trigger the application of social security provisions and labour law rights, especially if one were able to demonstrate that the activity performed is not occasional but permanent, or at least organized through fixed shifts, respecting some obligations unilaterally imposed, e.g., working hours or assignments.48 By the same token, one might argue that the presence of a stable organization transforms a mere provider into a professional and a user into a consumer, thus upgrading the level of (regulatory pressure on the former and) protection to be afforded to the latter. The Agenda stresses the conditions of professional service providers who rely on EU internal market law and, basically, on the Services Directive, thereby affirming that authorization schemes have to be necessary and proportionate to protect an overriding reason of public interest; a high level of consumer protection is a typical example thereof. In this respect, a particular feature of the collaborative economy is the presence of harsh information asymmetries whereby users know nothing about service providers, nor whether they act in a professional capacity or their identity. The Agenda affirms that this inherent problem should be overcome through rateand-review and reputational systems, hence stressing the self-­regulatory stance of online platforms.49 Issues related to self-regulation, co-­regulation and, eventually, top-down regulation will be systematically addressed in Chap. 7. When it comes to the P2P provision of services, intricacies are even more difficult to grasp. Put simply, assuming that service providers offer the underlying service, what changes is observers’ standpoint. Providers can be professional or non-professional, and their precise identification importantly affects the development of the collaborative economy. Whereas an Uber driver, an Airbnb host or a crowd-working freelancer acts in a purely collaborative economy model, with an online platform limiting its role to matching demand and supply, the transaction between the two parties does not fall within the scope of consumer protection for the intuitive reasons that nobody is a professional. By contrast, in the second scenario, should a service provider act in her/his professional capacity, the bulk of EU consumer protection law is, in principle, applicable, that is, a liability regime, means of redress, right to specific information etc. However, demonstrating that a service provider is a professional or a subordinate worker under an online platform’s powers of direction and control is extremely difficult given the countless situations present in a collaborative economy environment. This is essentially the reason why the collaborative economy as such blurs consolidated legal categories. This also shows why the Agenda and its critical assessment emphasized the role of online platforms to the detriment of service providers and users.50 The Agenda proposes three different indicators to assess the identity of a service provider: the frequency of the service, the profit-seeking motive and the level of

 See Chap. 5.  Finck (2018), pp. 47–68. 50  Cauffman (2016), pp. 235–243. 48 49

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turnover. However, these three elements are difficult to evaluate since the frequency of the service greatly varies according to an operator’s place of establishment. Indeed, a touristic or a densely populated area catalyses more people and eventually increases the time invested in a collaborative economy activity and ultimately the turnover generated. In other words, although these indicators might be appealing and theoretically sound, their application is troublesome and will be essentially shouldered by national administrations and judiciaries involved in potential litigation. The critical assessment shares the same line of reasoning, specifying that the distinctive features of service providers should also be appraised in relation to the powers an online platform enjoys over its users. Again, as anticipated, this aspect is essential in order to ascertain whether service providers should be considered as independent contractors or self-employed—thereby falling within the scope of application of Articles 49 and 56 TFEU—or workers, who are hence protected by Article 45 TFEU.  All these uncertainties finally affect market access in a host Member State for online platforms as well as service providers, to the extent that regulatory requirements can be different, especially in connection to the underlying service. As long as online platforms are unregulated, even though service providers might respond to different sets of unfixed characteristics, they both live in a legal limbo. This also concerns their users. Despite the fact that the Agenda and the DSM Communication have sought to propose some basic criteria to categorize them and to impose some legal consequences stemming from them, there are still uncertainties. It is thus plausible that the CJEU will soon be called to rule upon the status of service providers, not in relation to the criteria set out in the Agenda but by reference to EU consumer law or to EU labour law in order to establish whether they should be considered as either traders, workers or professionals. This categorization will again be crucial for the entire development of the collaborative economy and deepened in Chaps. 3 and 4.

2.2.3  Users, Prosumers, Peers, Consumers or What Else? At the third angle of the collaborative economy system, there are individuals who are keen to pay for the underlying service. Their status is also ambiguous, as they are called users, consumers, service recipients, beneficiaries, peers or prosumers. The Agenda does not define this category either, but adds a further element of complexity by introducing the notion of prosumer, thereby affirming that everybody can be, at the same time, a consumer and a professional. To some extent though, the criteria discussed in the previous paragraph are still valid. In a collaborative economy environment, then, a clear definition of this third angle might be irrelevant; what is, by contrast, crucial concerns how an online

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p­ latform arranges its business model,51 since, depending on it, the legal relations between the three actors varies. The e-Commerce Directive distinguishes between service recipients and consumers: while the former, according to Article 2(1)(d), is a natural or legal person who, ‘for professional ends or otherwise [emphasis added] uses an information society service’ [emphasis added], the latter, according to Article 2(1)(e), is classically defined as a natural person acting outside a trade, business and profession. In fact, there is not much else to be said as long as users are situated in a weaker position in respect both to platforms and to service providers. Indeed, users’ rights, if any, as consumers depend on the relation between an online platform and its service providers. As has been anticipated, the more structured this relation, the more likely the latter will not be considered as peers but as workers or professionals. This also triggers specific aspects of the liability of service providers52 and, more generally, of shared products.53 It is therefore convenient to reaffirm that this uncertainty will be discharged by national administrations and judges if called to apply Directive 2011/83 (Consumer Rights Directive)54 as well as the e-Commerce Directive in a dispute regarding the collaborative economy. It thus seems that, despite the uncertainties related to the personal characteristics of service providers and users, a collaborative economy triangle is still based on dynamic relationships among its three actors, thereby creating a win-win-win situation. Service providers benefit from their own unregulated status to avoid legal restraints while, at the same time, online platforms bear no responsibility for the fitness of each transaction. Users, in turn, accept to be part of such a transaction, relinquishing their rights in exchange for a quicker and cheaper service. Looking carefully at the essential requirements of a collaborative economy transaction might put flesh on the bones of this overtly fluid scheme.

2.3  T  he Essential Requirements of a Collaborative Economy Transaction The discussion surrounding the collaborative economy triangle is permeated by the ambiguities regarding the nature of the transactions and the identities of the actors. These uncertainties are counterweighted by two certainties. First, online platforms  See para. 2.3.1.  Van Eecke (2011), pp. 1455–1502. 53  Berke (2016), pp. 603–653. 54  Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council, OJ L 304, 22.11.2011, pp. 64–88. For some provocative comments on this directive, see Micklitz and Reich (2009), pp. 471–519; Weatherill (2012), pp. 1279–1318. 51 52

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are in a predominant position, being placed at the apex of the collaborative economy triangle and, consequently, exercising decisive control over transactions, payment systems, rate-and-review mechanisms, etc. Second, moving away from the archetypal model of the sharing economy, it is now indisputable that online platforms operate by pursuing a profit-seeking motive, thereby creating the business conditions to best exploit the fluid characteristics of the collaborative economy either by exercising a somewhat pervasive top-down command-and-control model or by assuming a more passive attitude, geared towards a soft influence over transactions. This scenario relies on the condition that any transaction necessitates remuneration, usually (un)evenly split between an online platform and its service providers. Further, as already mentioned, the very concept of remuneration—be it in cash or in any other forms, including the transfer of personal data pursuant to a freemium mechanism—calls into question again the applicability of EU internal market law.

2.3.1  Online Platforms: Facilitators or Real Service Providers The contribution of the Agenda and of its critical assessment is essential when seeking to comprehend online platforms’ mode of functioning and, consequently, how they affect the development of the collaborative economy and the legal relations between service providers and users. A key distinction must be made in this respect. As anticipated, in the early days of the sharing economy, online platforms played an ancillary role, limited to matching demand and supply. Transactions were essentially gratuitous, with online platforms having no opportunity whatsoever to set prices, requirements, terms and conditions, etc. Moving to a more genuine business model, grounded upon a profit-­ seeking motive, implied a decisive change in the pace insofar as online platforms are now the main actors in the collaborative economy. However, it remains to be seen whether they are still facilitators or real service providers and, eventually, what consequences stem therefrom. To put it in EU internal market terms, do online platforms provide an information society service and do they also supply an underlying service in the end? The Agenda seeks to respond to those questions in terms of home country control and market access, tieing the Information Society Services Directive and the e-Commerce Directive. Therefore, to the extent that an online platform provides an information society service, there can be no prior authorization scheme whatsoever, according to Articles 4(1) and 3(1) of the e-Commerce Directive. Derogations to this free movement regime are allowed, in line with the provisions of the Treaty and case law of the CJEU, if necessary, to protect public policy, public health, public security and, most notably, consumers. National measures must be proportionate to those objectives and notified to the Commission. This simple pattern seems applicable to platforms having a passive role in a collaborative economy transaction.

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Regulatory uncertainties arise if and when online platforms are deemed to supply an underlying service. To facilitate such an evaluation, the Agenda sets forth three parameters to be cumulatively met. First, an online platform must impose the final price to be paid by users; conversely, this condition is not satisfied as long as it solely recommends a tariff. Distinguishing between these two hypotheses is uneasy, since online platforms do not disclose the algorithms used to calculate a price or a fee. Second, an online platform is able to unilaterally determine contractual terms other than price, thereby decisively steering the relationship55 between service providers and users. The Agenda leaves this condition vague. However, an express clause prohibiting multihoming—i.e., the possibility for a user to be registered on more than one platform and to offer her/his services simultaneously—would equally be considered as a solid indicator that an online platform is a marketmaker. Therefore, in turn, service providers should be considered as its employee. Ultimately, users could be deemed consumers. Crucially, these definitions are always linked to the actual powers that an online platform enjoys vis-à-vis the other two parties. The third criterion dictates that online platforms own the key assets with which to supply an underlying service. This criterion seems to be counterintuitive in light of the very characteristics of the collaborative economy, as it would require Airbnb to possess flats all over the world, Uber to distribute cars to its drivers and Task Rabbit to dispatch its own toolbox or its users to people who bought new furniture.56 These three indicators hence point in the same direction, that is, the more an online platform coordinates the activity of its service providers and users, imposing how and when the underlying service has to be supplied, the more it should be deemed to provide an underlying service by itself.57 The critical assessment acknowledges the importance of those three criteria while adding a further element of complexity. Indeed, when online platforms are truly a marketplace, they benefit from the free movement of information society services. This does not automatically hold true for service providers. As long as they are authorized in their home country to carry out a certain economic activity, they can rely on the principles of mutual recognition and home country control in order to execute that activity, on a temporary basis, in a host country. That said, the problem lies in the multiform substance of the collaborative economy, given that underlying services can indeed be the most disparate. In other words, it could happen that online platforms as suppliers of information society services can freely move, while service providers cannot, given that they might be compelled to respect some  Smorto (2015), pp. 221–237.  See money.cnn.com/2017/09/28/technology/business/ikea-taskrabbit/index.html (accessed: 22 June 2019). 57  The underlying service provided by an online platform is also a determinant of the purposes of consumer protection (Chap. 4), employment law (Chap. 5), competition law (Chap. 6) and finally the adoption of a regulatory act (Chap. 7). 55 56

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a­ dditional regulatory requirements. This would practically hinder Article 56 TFEU from the perspective of service providers and recipients. These theoretical speculations can have different implications. It is well known that the Commission’s communications are not binding,58 but they are, of course, highly influential. While disregarding them might not be a big deal, it confirms that uncertainties persist in the EU realm to the extent that, in the Uber saga, the Advocate General (AG) and the CJEU deliberately ignored the third element of the test designed by the Agenda. Put simply, it is undisputable that Uber owns no cars, yet it is nonetheless able to impose the final fare for a journey, to set rigid contractual terms and to exclude drivers from the platform should their performance fall below a certain undetermined threshold or if they harass passengers.59 Similarly, Airbnb can expel a host, should her/his behaviour breach internal guidelines.60 By the same token, platforms can intervene to guarantee the application of EU gender equality law.61 Thus, it appears that the EU judiciary has already acknowledged that the cumulative fulfilment of the three above-mentioned conditions is too burdensome and, ultimately, ineffective. This reading is surely commendable; however, there is a risk of fragmenting the DSM given that, as has already been anticipated, there are infinite underlying services. In essence, since online platforms pursue their business in different manners and in different fields, it might be futile to trace the boundaries of their intervention in each and every scenario. This, ultimately, also calls into question the applicability of EU competition law, as will be discussed in Chap. 6. Depending on its stance towards users and service recipients, the collaborative economy calls for differentiated regulatory responses. It is a difficult task to define whether those regulatory responses can be found in existing legislation,62 partly left to the interpretative mission of the CJEU.

2.3.2  The Economic Exchange It has been posited since the outset that the main distinction between the concepts of sharing and collaborating lies in the presence of a remuneration as an economic gain. In Jundt,63 the CJEU clarified that the profit-seeking motive is irrelevant, as  Whether they are challengeable is a different matter, see case T-561/14, European Citizens’ Initiative One of Us and others v European Commission, judgment of 23 April 2018. 59  See money.cnn.com/2018/04/30/technology/uber-driver-sexual-assault/index.html (accessed: 25 June 2019). 60  See bologna.repubblica.it/cronaca/2018/07/29/news/quadro_con_divisa_di_hitler_in_villa_cacciato_da_airbnb-202912967/ (accessed: 18 June 2019). Brown Hayat (2018), pp. 613–645; Leong and Belzer (2017), pp. 1271–1322. 61  Kullmann (2018), pp. 1–22. 62  Hatzopoulos and Roma (2017), pp. 81–128; Van Cleynenbreugel (2017), pp. 697–722. 63  Case C-281/06, Hans-Dieter Jundt and Hedwig Jundt v Finanzamt Offenburg, judgment of 18 December 2007. 58

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what really matters is the remuneration, even if modest. Lacking remuneration, EU internal market law cannot be triggered. This is even so when considering that, in Grogan,64 the CJEU ruled out the application of Article 56 TFEU, since there was no economic link between the students’ union and the abortion clinics based in the UK. Similar observations were put forward in the domain of sports associations.65 These arguments also hold true where a third party pays the remuneration and is a publicly funded body.66 The economic exchange is thus essential to properly understand the collaborative economy, given that online platforms are deemed to offer an underlying service when they are able to set the final price of a transaction. The economic exchange also makes relevant the problem concerning the taxation of individuals,67 an aspect so far mainly addressed by relying on existing national legal acts. Amongst the various forms of activities a special place is reserved for transnational payments. This adds a distinct element of complexity, given that another online platform manages the cash flow to be split between a service provider and the online platform arranging the underlying service. For instance, one uses PayPal to pay, which then directly shares the agreed amount between the two parties. This is also important because PayPal is not formally a part of the underlying transaction68; yet, it confirms that, in a now-typical collaborative economy scenario, there is always a form of direct remuneration. A less explored aspect of the collaborative economy is the possibility that online platforms will, one day, be engaged in providing services of general economic interest, hence limiting or even dropping the economic exchange in favour of a solidaristic approach, entrusted by a public body. Whereas, in this domain, the solidarity element supersedes the profit-seeking motive and an economic transfer, even in the form of State subsidies, is allowed according to the well-known Altmark doctrine69 and the relevant Commission communication,70 it remains to be seen whether the

 Case C-159/90, The Society for the Protection of Unborn Children Ireland Ltd. v Stephen Grogan and others, judgment of 4 October 1991. 65  Case 36/74, B.N.O.  Walrave and L.J.N.  Koch v Association Union Cycliste Internationale, Koninklijke Nederlandsche Wielren Unie and Federación Española Ciclismo, judgment of 12 December 1974. 66  The Queen, on the application of Yvonne Watts v Bedford Primary Care Trust and Secretary of State for Health, Footnote 43. 67  Beretta (2017), pp. 1–11. 68  Janczuk-Gorywoda (2016), p. 250. 69   Case C-280/00, Altmark Trans GmbH and Regierungspräsidium Magdeburg v Nahverkehrsgesellschaft Altmark GmbH, and Oberbundesanwalt beim Bundesverwaltungsgericht, judgment of 24 July 2003. 70  Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of Regions. The Application of the European Union State Aid Rules to Compensation Granted for the Provision of Services of General Economic Interest, COM(2012) 8 final. 64

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collaborative economy could also play a role in this field. This hypothesis is ‘akin to science fiction today,71 but it might be interesting in the near future.

2.3.3  Another Form of Economic Exchange: Personal Data There must therefore be an economic exchange in the form of remuneration to make a genuine collaborative economy transaction happen. A different question concerns whether the notion of remuneration can encompass also the transfer of personal data. Article 57 TFEU stipulates that services are ‘normally [emphasis added] provided for remuneration’. Although, presumably, that adverb might very well have an anachronistic significance,72 it could arguably have a crucial impact on the collaborative economy. In classical EU law internal market terms, who pays for the provision of a service is irrelevant: a consistent stream of judgements has confirmed that remuneration can be transferred to a third party,73 as proven in patient mobility cases where insurance or national health systems are used to pay for medical care in the host Member State on behalf of their recipients.74 However, what happens when the economic exchange is constituted by the spontaneous delivery of a user’s personal data to an online platform or to its service providers? This issue is partially addressed in a Commission legislative proposal for a directive concerning contracts for the supply of digital content.75 Recital 14 establishes that it covers those aspects where a consumer acquires digital content ‘not in exchange for a price but against a counter-performance other than money’, such as the transfer of her/his personal data. Therefore, the intent is decisive, given that the proposal requests that users actively and expressly cede them. This, in turn, stresses the importance of a voluntary behaviour which is hence detached from the common practice to gather cookies and other automatically generated information. The definitions contained in the proposal clarify its scope of application—wide but limited to digital contents—referring to data produced and supplied in digital form and, most notably, services allowing sharing and other forms of interaction.76

 Hatzopoulos (2018a), p. 223.  Hatzopoulos (2012), pp. 22–23. 73  Case 352/85, Bond van Adverteerders and others v The Netherlands State, judgement of 26 April 1988. 74  Case C-157/99, B.S.M. Geraets-Smits v Stichting Ziekenfonds VGZ and H.T.M. Peerbooms v Stichting CZ Groep Zorgverzekeringen, judgment of 12 July 2001. 75  Proposal for a directive of the European Parliament and of the Council on certain aspects concerning contracts for the supply of digital content, COM/2015/0634 final – 2015/0284 (COD). 76  Proposal for a directive of the European Parliament and of the Council on certain aspects concerning contracts for the supply of digital content, Article 2, para. 1. 71 72

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Article 3(1) establishes that, for the supply of digital content, ‘a price is to be paid or the consumer actively [emphasis added] provides counter-performance other than money in the form of personal data or any other data’. In other words, it is clear that the voluntary transmission of data is considered to be a form of remuneration for the supply of a service. This is what happens with platforms such as Spotify, where, upon registration, a user gets access to an almost infinite archive of music in exchange for her/his data, e.g., birthday, nationality or place of residence. This scheme happens with Dropbox too. These aspects have now to be linked to information society services and to case law of the CJEU. In Papasavvas,77 the CJEU recognized that the concept of information society service—as an electronic journal in the case at stake—encompasses the hypothesis in which a service provider is not paid by a recipient but by income generated through commercials present in the website. Moreover, in McFadden,78 the CJEU confirmed that an unrestricted Wi-Fi network, which was also made available to passers-by and neighbours free of charge, but with the clear purpose of advertising the activities carried out by the owner, can very well constitute an information society service. Whereas this scenario does not fit the collaborative economy, it is important to stress that there could exist the utmost variety forms of remuneration while personal data have an intrinsic economic value of their own. These aspects carry importance to the extent that their accumulation by online platforms can amount to a dominant position, possibly leading to abuses.79 In addition, those data must be protected and treated in accordance with the General Data Protection Regulation (GDPR).80 This is another plastic demonstration that encapsulating the multifaceted aspects of the collaborative economy in existing EU legal instruments is extremely troublesome, especially considering that, for instance, the scenario in which a service recipient trades her/his data seems more applicable to an old-fashioned sharing economy pattern. By contrast, as already pointed out, the collaborative economy as a part of the EU’s DSM expressly requires an economic gain in the form of remuneration.

 Case C-291/13, Sotiris Papasavvas v O Fileleftheros Dimosia Etaireia Ltd. and others, judgment of 11 September 2014. 78  Case C-484/14, Tobias Mc Fadden v Sony Music Entertainment Germany GmbH, judgment of 15 September 2016. 79  See Chap. 6. 80  Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation), OJ L 119, 4.5.2016, pp. 1–88. 77

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2.4  The Information Society Services Directive The typical collaborative economy triangle is composed of an online platform, a service provider and a user exchanging services for an economic remuneration on a temporary basis. This situation clearly fits within the scope of Articles 56–57 TFEU. This pattern benefits from the use of the Internet as a means to carry out online businesses,81 a domain in which the EU has deeply intervened since the end of the 1990s. This has given rise, on the one hand, to the Information Society Services Directive—in its current form, amended in 2015—and, on the other, to the e-Commerce Directive. Article 1 of the e-Commerce Directive enshrines the principle of the free movement of information society services in order to ensure the proper functioning of the internal market, while Article 3 expresses the principle of home country control and Article 4 excludes any system of prior authorization. It is thus essential to verify whether the notion of information society service can encompass the collaborative economy. As pointed out at the outset, the intersections of the e-Commerce Directive and the Information Society Services Directive82 constitute the starting point for an evaluation of the collaborative economy in light of the most recent case law of the CJEU and the Uber saga.

2.4.1  T  he Applicability of the Information Society Services Directive to the Collaborative Economy Article 1(1) of the Information Society Services Directive stipulates that ‘“service” means any information society service, that is to say, any service normally provided for remuneration, at a distance, by electronic means ad at the individual request of a recipient’. To trigger the applicability of the e-Commerce Directive, those three elements must be cumulatively present. Enacted affirming that ‘the development of information society services within the area without internal frontiers is vital to eliminating the barriers which divide the European peoples’,83 it planted the seeds for the forthcoming development of the EU’s DSM, allowing the free movement of information society services.84 Article 1 of the e-Commerce Directive states the principle of the free movement of information society services among Member States. Therefore, it defines the  Walden (2001), pp. 529–547.  Pearce and Platten (2000), pp. 363–378; Lopez-Tarruella (2001), pp. 1337–1384. 83  e-Commerce Directive, Recital 1. 84  The e-Commerce Directive has also been analysed in respect of electronic contracts: see Farah (2009), pp. 3–14; Hultmark Ramberg (2001), pp. 429–450; Kaufman Winn and Haubold (2002), pp. 567–588. 81 82

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notions of established service provider, recipient and consumer. To do so, it endorses two main principles: home country control and mutual recognition.85 The e-Commerce Directive excludes from its scope of application the supply of offline services, an aspect extremely relevant to any analysis of the collaborative economy. This is consistent with the Information Society Services Directive, whose Annex I exempts ‘services having material content even though provided via electronic devices’ as well as offline services and those not provided via electronic processing. In other words, if an activity relevant to the collaborative economy or, better still, an underlying service is caught by of those exceptions, it cannot benefit from the free movement principles established by the e-Commerce Directive. The entrenchment of the two acts is hence clear. Insofar as an information society service is at stake, its provider and recipient enjoy the widest range of opportunities offered by the bulk of EU internal market law. This, in turn, ensures an almost unhindered access to the market of every Member State and no mechanisms of prior authorization are required. In other words, the de-materialization of an information society service is the key aspect allowing it, not service providers nor recipients, to move across Member States. What is sufficient to trigger the applicability of EU law is that a service provider has a permanent establishment in a Member State and, from there, offers her/his services elsewhere. Host countries, in turn, cannot impose any restrictions unless necessary and proportionate to achieve either one of the derogations enshrined in the Treaty or to protect one of the overriding reasons of public interest ultimately identified by the CJEU. In this respect, the CJEU case law is illustrative. As best illustrated in the Uber saga, it can be difficult to severe the information society service itself from the product a consumer wishes to purchase electronically.86 Thus, in Ker-Optica87 and Deutscher Apothekerverband,88 the CJEU confirmed the applicability of the e-­Commerce Directive to the activity of selling, via the Internet, contact lenses and medicines. In Vanderborght,89 the CJEU held that the e-Commerce Directive is applicable to online advertisements for regulated professions, taking for granted the cross-border element, where a dentist’s patients came from other Member States, hence relying on Article 56 TFEU. Bearing in mind this framework, it is now possible to analyse the Uber saga and the new AG’s opinion in Airbnb Ireland by paying careful attention to the following caveats. First, in both cases, the CJEU has been called to analyse Uber’s and

 De Baere (2004), pp. 287–319.  In this respect, see also the controversial situation of e-books, case C-174/15, Vereniging Openbare Bibliotheken v Stichting Leenrecht, judgment of 10 November 2016; Case C-479/13, European Commission v French Republic, judgment of 5 March 2015. 87  Case C-108/09, Ker-Optika bt v ÀNTSZ Dél-dunántúli Regionális Intézete, judgment of 2 December 2010. 88  Case C-322/0, Deutscher Apothekerverband eV v 0800 DocMorris NV and Jacques Waterval, judgment of 11 December 2003. 89  Case C-339/15, Criminal proceedings against Luc Vanderborght, judgment of 4 May 2017. 85 86

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Airbnb’s alleged anticompetitive practice via Article 267 TFEU; therefore, its judgement is obviously linked to the questions posed by the referring court, while its answers must respond to the goal of being useful in resolving the case at stake. Second, at a more speculative level, at the time of writing, the CJEU has only delivered two judgements while the third is still pending. Nothing in the near future should prevent more cases focusing on other aspects, thereby broadening the spectrum of the Information Society Services Directive and the e-Commerce Directive. Third, the legal reasoning of the CJEU has largely been influenced by Uber’s mode of functioning as it is affirmed in comparison with Airbnb. All the elements of an information society service are hence singled out in the Uber cases. Should Uber supply a service based on an individual’s request, for remuneration, at a distance and by electronic means, it can consequently benefit from the e-Commerce Directive. Meanwhile, in Airbnb Ireland AG Szpunar opined that the online platform at stake does not possess the necessary powers to influence all the elements of a transaction; therefore, it falls within the scope of application of the Information Society Services Directive and should benefit from the liberalized regime of the e-Commerce Directive.

2.4.2  A First Assessment of the Elite Taxi Case ‘What is Uber? Is it a transport undertaking, a taxi business to be blunt? Or is it solely an electronic platform enabling users to locate, book and pay for a transport service provided by someone else?’.90 These questions, as posed by AG Szpunar, raise complex issues and a plethora of different reactions,91 from diffused enthusiasm to harsh criticism: on the one hand, consumer associations allege that taxis will be more affordable, more readily bookable and more present in a urban territory, and that payments are more transparent; on the other hand, taxi drivers unions claim that Uber’s activities amount to unfair competition practice since drivers do not hold any working licence whatsoever, nor are they obliged to undergo medical checks, while their vehicles are not subject to any mechanical control.92 Furthermore, Uber makes available collective transport (UberPool) to food delivery (UberEats), from private hire (UberBlack) to luxury vehicle (UberLux), from rental vans (UberVan) to the classic driver moving around and ready to collect passengers (UberPop). All these activities are available via an app. Arguably, none of them is regulated; therefore, Uber operates in a grey zone, devoid of legal certainty, while local

 Case C-434/15, Asociación Profesional Elite Taxi v Uber Systems Spain, SL, opinion of Advocate General Szpunar of 11 May 2017. 91  Mostacci and Somma (2016); Rogers (2015–2016), pp. 85–102. 92  Manzini (2017), pp. 79–92; Wyman (2017), pp. 1–100. 90

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policymakers—eventually supplemented by national judiciary—struggle to grasp the situation.93 Uber or, better still, some of its services, especially UberPop, has/have been banned in some Member States, mostly due to judicial decisions on unfair competition practices,94 while it is/they are still regularly functioning in others.95 The fact that a service or a good is allowed in some Member States and banned in others is not uncommon in EU law,96 and essentially reflects the idea that they are allowed to restrict free movement rules to preserve some overriding reasons of public interest rooted in CJEU case law,97 to uphold some Treaty-based derogations,98 or to defend values enshrined in their own constitution.99 Although this potentially undermines the creation of an internal market according to Article 26(2) TFEU as similar as possible to a national market,100 this scenario allows them to preserve their specificities. The Elite Taxi101 case hence offers an insight into the indeterminacy of Uber and, by extension, the collaborative economy in EU law. Those indeterminacies have already been detected by early commentators, creating a rich and diversified debate

 This also holds true in respect of Airbnb which, in turn, has been severely constrained in many touristic cities, to name but a few, Amsterdam and Berlin. Elsewhere, Airbnb entered into a specific agreement with municipal tax authorities to collect, on their behalf, touristic taxes as happened in Venice and Florence. For a general overview, see Santolli (2017), pp. 673–709; Smorto (2016). These observations are also valid in the US, where Airbnb was developed from the outset: see Wills (2017), pp. 821–843. 94  In Italy, Tribunale di Roma, Uber v Apptaxi, ordinanza no. 25857/2017 of 26 May 2017; Tribunale di Milano, Taxiblu v Uber, ordinanza no. 16612/2015 of 25 May 2015. In Belgium, Tribunal de commerce neerlandophone de Bruxelles SPRL Uber Belgium v Sa Taxi Radio judgment of 23 September 2015. In France, Cour d”appel de Paris, Uber France/DGCCRF et autres, decision no. PI4084000776 of 7 December 2015. 95  See www.uber.com, where it is possible to ascertain which services are provided in which cities (accessed: 30 June 2019). 96  See in particular case C-137/09, Marc Michel Josemans v Burgemeester van Maastricht, judgment of 16 December 2010; case C-268/99, Aldona Malgorzata Jany and Others v Staatssecretaris van Justitie, judgment of 20 November 2001. 97  See in particular case C-110/05, Commission of the European Communities v Italian Republic, judgment of 10 February 2009; case C-169/07, Hartlauer Handelsgesellschaft mbH v Wiener Landesregierung and Oberösterreichische Landesregierung, judgment of 10 March 2009. 98  See in particular case C-244/06, Dynamic Medien Vertriebs GmbH v Avides Media AG, judgment of 14 February 2008. 99  Case C-208/09, Ilonka Sayn-Wittgenstein v Landeshauptmann von Wien, judgment of 22 December 2010; case C-438/14, Nabiel Peter Bogendorff von Wolffersdorff v Standesamt der Stadt Karlsruhe and Zentraler Juristischer Dienst der Stadt Karlsruhe, judgment of 2 June 2016; case C-36/02, Omega Spielhallen- und Automatenaufstellungs-GmbH v Oberbürgermeisterin der Bundesstadt Bonn, judgment of 14 October 2004. 100  Mortelmans (1998), pp. 101–136. 101  Case C-434/15, Asociación Profesional Elite Taxi v Uber Systems Spain, SL, judgment of 20 December 2017. 93

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which seemingly leads to the common position that EU law, as it currently stands, fails to catch the reality of the collaborative economy.102 To begin with, the preliminary reference submitted to the CJEU by the Commercial Court of Barcelona was stimulated by an association of local taxi drivers claiming that Uber was performing paid-for activities, via an app, involving non-professional drivers using their own vehicles to carry passengers, without, of course, holding any authorization. That association claimed that such activities amounted to misleading practices which were acts of unfair competition, in turn requesting a court order to block them. AG Szpunar acknowledges that the issue at stake is ‘highly politicised’,103 but more prosaically affirms that either Uber’s business falls within the internal market or within the shared competence on transport (Article 4(2)(g) TFEU). Indeed, his analysis starts from the assumption that Uber might fall within the scope of application of the e-Commerce Directive or the Services Directive. Regarding the former, it should be recalled that it is applicable to information society services provided in return for remuneration, upon individual request, at a distance and transmitted by electronic means. It is crystal clear that the first two requirements are satisfied. Nonetheless, Uber is a composite service to the extent that it implies an electronic—i.e., requesting a ride through an app—and a non-electronic—i.e., going from Place A to Place B in a urban space—element, with the latter being non-­ independent from the former. In the interpretation given by AG Szpunar, only information society services, whose main component is provided electronically, benefit from the liberalized regime enshrined in the e-Commerce Directive. According to AG Szpunar, Uber is not a ride-sharing platform but ‘a traditional transport service. Whether or not it is regarded as forming part of a “collaborative economy” is irrelevant to its classification under the law in force’.104 To substantiate his argument, he engages in a detailed analysis of Uber’s mode of functioning, submitting that it determines the terms and conditions that drivers must respect, that it pushes them towards more profitable zones, that they work for Uber as their principal source of income, and that it can exclude them if they fall below a certain (nondisclosed) threshold of rates. In essence, Uber exerts an appreciable control over drivers and, basically, over the ‘economically significant aspects of the transport service’.105 Nevertheless, these elements do not mean that they should be considered

 De Franceschi (2018), pp. 1–4; Simon (2017), pp. 521–532; Hatzopoulos (2018b), pp. 273–285; Simon (2017), pp. 521–532; Schepisi (2017), pp. 1–17. 103  Asociación Profesional Elite Taxi v Uber Systems Spain, SL, opinion of Advocate General Szpunar, para. 1. 104  Asociación Profesional Elite Taxi v Uber Systems Spain, SL, opinion of Advocate General Szpunar, para. 42. 105  Asociación Profesional Elite Taxi v Uber Systems Spain, SL, opinion of Advocate General Szpunar, para. 51. 102

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as Uber’s employees106 while, by the same token, Uber’s lack of vehicles is irrelevant. In conclusion, ‘Uber is a genuine organiser and operator of urban transport services in the cities where it has a presence [and] that innovation nonetheless pertains to the field of urban transport’.107 As long as the online and the non-online parts of the service are inseparable, Uber cannot be considered as an information society service and, consequently, does not fall within the coordinated fields of the e-­Commerce Directive. Since Uber is a pure urban transport service, it cannot fall within the scope of application of the Services Directive either, whose Article 2(2) (d) expressly excludes urban transport services.108 Uber ultimately falls within the scope of application of Article 58(1) TFEU and, consequently, should be dealt with by reference to Title VI TFEU.109 However, the AG emphasizes that the EU has not yet exercised its shared competence on transport. Finally, in the last part of his opinion, he indulges the idea that Uber may be an information society service. In this remote hypothesis, nonetheless, Uber should be subject to the requirements imposed by the host Member State since it will always provide a transportation service. The CJEU follows the AG’s approach, while expressly stressing that ‘intermediation service must thus be regarded as forming an integral part of an overall service whose main component is a transport service’,110 thereby coming within the field of transport. Consequently, Uber does not enjoy the liberalized regime of the e-Commerce Directive nor that of the Services Directive. The CJEU rightly concludes holding that it is up to Member States to regulate such a service in conformity with the Treaty. The AG and the CJEU voluntarily ignored the problem of establishment,111 taking for granted that Uber Netherlands—as the main establishment in the EU—supplied its services in Spain through its branch located there. It was then easy to dismiss the argument raised by Uber Spain, invoking the lack of a cross-border element.112 As a first appraisal, it could be concluded that Elite Taxi depicted the inadequacy of existing EU legislation to face the challenges of the collaborative economy. Indeed, deeming that Uber is a pure transport undertaking, the CJEU allowed Member States to defer to their own legislation, provided that, in compliance with  This seems contradicted in case C-214/16, Conley King v The Sash Window Workshop Ltd. and Richard Dollar, judgment of 29 November 2017. 107  Asociación Profesional Elite Taxi v Uber Systems Spain, SL, opinion of Advocate General Szpunar, para. 61. 108  See also case C-168/14, Grupo Itevelesa SL and others v Oca Inspección Técnica de Vehículos SA and Generalidad de Cataluña, judgment of 15 October 2015. 109  See also case C-338/09, Yellow Cab Verkehrsbetriebs GmbH v Landeshauptmann von Wien, judgment of 22 December 2010. 110  Asociación Profesional Elite Taxi v Uber Systems Spain, SL, para. 40. 111  Catchpole (2001), pp. 1–20. 112  In a similar vein, see also joined cases C-570/07 and C-571/07, José Manuel Blanco Pérez and María del Pilar Chao Gómez v Consejería de Salud y Servicios Sanitarios (C-570/07) and Principado de Asturias (C-571/07), judgment of 1 June 2010. 106

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its settled case law, they respect EU law. The fragmentation of the EU internal market or, better still, of the EU’s DSM is now complete: some of Uber’s services are allowed in some parts and prohibited elsewhere.113

2.4.3  A First Assessment of the Uber France Case Uber France114 has much in common with Elite Taxi: Uber has been sued before the Regional Court of Lille for misleading commercial practices, for aiding the unlawful exercise of the profession of taxi drivers, and for unlawfully organizing a system whereby customers are put in contact with drivers carrying passengers for remuneration in vehicles having less than 10 seats. Regarding this last point, the referring court expresses doubts about its qualification as an information society service since, should this qualification apply, the rule at stake should have been notified to the Commission, according to Article 5 of the Information Society Services Directive. Had that rule not been notified, it is then non-enforceable against individuals. In essence, as AG Szpunar explains, this case is similar to Elite Taxi, while placing a decisive focus on the concept of the notification of rules on services and technical regulations. The body of case law for these two concepts is already significant,115 thus it is preferable to stress its implication for Uber’s activities. In other words, the referring court asked the CJEU to ascertain whether the rule prohibiting and fining cases where non-professional drivers are put in contact with customers should be deemed as a technical rule and, consequently, notified. Again, the issue at stake is the identification of Uber’s activities as information society services, for the AG maintains his reasoning in Elite Taxi. The CJEU confirms the argumentations previously maintained, thereby holding that, since Uber does not ­exercise an information society service, Member States do not need to notify technical regulations to the Commission. It is as simple as that.

 For instance, in Berlin, UberX, UberTaxi and UberTaximinivan; in Amsterdam, UberX, UberBlack and UberVan; in Dublin, UberTaxi and UberBlack; in Helsinki, UberX and UberBlack; in Milan, UberBlack, UberLux and UberVan. 114  Case C-320/16, Criminal proceedings against Uber France, judgment of 10 April 2018. 115  Case C-336/14, Criminal proceedings against Sebat Ince, judgment of 4 Februrary 2016; case C-303/15, Naczelnik Urzędu Celnego I w Ł. v G.M. and M.S, judgment of 13 October 2016; case C-144/16, Município de Palmela v Autoridade de Segurança Alimentar e Económica (ASAE) – Divisão de Gestão de Contraordenações, judgment of 1 February 2017; case C-303/04, Lidl Italia Srl v Comune di Stradella, judgment of 8 September 2005; case C-433/05, Criminal proceedings against Lars Sandström, judgment of 15 April 2010; joined cases C-213/11, C-214/11 and C-217/11, Fortuna sp. z o.o. and others v Dyrektor Izby Celnej w Gdyni, judgment of 19 July 2012; case C-26/11, Belgische Petroleum Unie VZW and others v Belgische Staat, judgment of 31 January 2013; case C-98/14, Berlington Hungary Tanácsadó és Szolgáltató kft and others v Magyar Állam, judgment of 11 June 2015. See also Tovo (2018), pp. 1187–1216. 113

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2.4.4  A First Assessment of the Airbnb Ireland Case The legal reasoning that AG Szpunar followed in Airbnb Ireland116 is similar to Elite Taxi and Uber France; notably, the conclusion is at the opposite end of the spectrum. Secondary EU law norms again refer to the Information Society Services Directive as well as the e-Commerce Directive, while, at the national level, French law imposes registration and a professional licence on natural and legal persons engaged in the business of real property; a requisite obviously lacking for any Airbnb host. The association of professional touristic agents sued Airbnb. Here, again, the contentious point concerns the nature of composite services and, ultimately, whether the material part thereof can be de-materialized. It has already been said that, in Uber, this is not possible. Indeed, ‘AIRBNB Ireland does not physically meet the recipients of its services: neither the hosts nor the guests’.117 The real question to be answered, then, concerns whether the service provided by Airbnb is entirely provided by the use of electronic equipment according to what the CJEU already decided in Elite Taxi and whether Airbnb is able to create an offer that is otherwise non-existent. In this respect, AG Szpunar plainly affirms that Airbnb does not create an offer, for the simple fact that the platform is open to professional and non-professional hosts. In addition, the level of control that Airbnb exercises over its hosts and guests has to be evaluated. According to AG Szpunar, Airbnb does not genuinely control all the economically relevant elements of the transactions; even ‘the price does not seem to play as significant a role in the context of accommodation services as in the context of on-demand urban transport services’.118 Essentially, since Airbnb does not meet the requirements identified by the case law of the CJEU in the two Uber judgements, it follows from the foregoing that it should be considered an information society service and, consequently, fall within the scope of application of the e-Commerce Directive. Now, should the CJEU endorse this conclusion, there are at least two problems to be highlighted. First, this piecemeal approach risks jeopardizing the smooth functioning and, ultimately, the harmonization of the DSM as a whole. Indeed, the differences between the two cases is crucially factual, and not related to the mode of functioning of the two platforms. Second, in a similar vein, since there are infinite underlying services in the collaborative economy, there is no room for legal certainty in the case of online platforms, service providers, users as well as incumbent operators who, to date, are the actors mostly affected by the collaborative economy. Furthermore, it cannot be ruled out at this stage that, in the near future, other referrals might reach the CJEU, especially in other controversial sectors such as food delivery.

 Case C-390/18, Airbnb Ireland, opinion of Advocate General Szpunar of 30 April 2019.  Case C-390/18, Airbnb Ireland, opinion of Advocate General Szpunar, para. 41. 118  Case C-390/18, Airbnb Ireland, opinion of Advocate General Szpunar, para. 71. 116 117

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2.5  Conclusion The collaborative economy is rapidly disrupting consolidated legal acquisitions while its precise encapsulation in EU legal acts which are currently in force is still problematic. From an original sharing goal—in the name of raising consumption awareness, environmentally friendly habits and exploiting idle assets—the most famous platforms have shifted to a more accentuated business model, aimed at increasing their own profit. This poses enormous challenges to policymakers and the judiciary, as well as consumers, employees and employers. In a domain affected by legal uncertainties, however, it seems safe to conclude that the typical elements of a collaborative economy transaction lie, first, in an online platform and its intermediary role in either steering or just matching demand and supply between a service provider and a user. Second, service providers can, at the same time, be professionals and consumers, thereby creating the hybrid category of prosumers. Third, users are basically service recipients. As inferred from CJEU settled case law, remuneration is the link tying the three segments of such a triangle. That being said, a distinctive feature is that remuneration can also be paid by the voluntary transfer of personal data. The Uber saga offered the first clarifications in a rapidly evolving field. The CJEU endorsed a rather restrictive approach to online platforms or, at this point, business platforms: indeed, the way in which they carry out their business is irrelevant insofar as the underlying service takes precedence over all other aspects. This interpretation essentially rules out the application of the e-Commerce Directive, the Information Society Services Directive, the Services Directive and even Article 56 TFEU, leaving the field open to the notion of transport, a shared competence which the EU has not exercised about yet. It is also interesting to note that a third referral has been recently cancelled from the CJEU registry because the national court was satisfied by the Taxi Elite and Uber France judgements.119 On the other hand, it does not shut the door on future streams of litigation rooted in other underlying services, such as accommodation or crowd-working and food delivery. However, the recently delivered opinion in Airbnb paves the way to a more piecemeal approach, essentially linked to the factual circumstances in which an online platform carries out its business. As the following chapters will demonstrate, such an approach might undermine the completion of the EU’s DSM.

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 Case C-371/17, Uber BV v Richard Leipold, Order of the President of the Court of 12 April 2018. 119

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Kaufman Winn J, Haubold J (2002) Electronic promises: contract law reform and ecommerce in a comparative perspective. Eur Law Rev 27(5):567–588 Kullmann M (2018) Platform work, algorithmic decision-making, and EU gender equality law. Int J Comp Labour Law Ind Relat 34(1):1–22 Leong N, Belzer A (2017) The new public accommodations: race discriminations in the platform economy. Geo Law J 105:1271–1322 Lopez-Tarruella A (2001) A European Community regulatory framework for electronic commerce. Common Mark Law Rev 38(6):1337–1384 Manzini P (2017) Uber: tra concorrenza e regolazione del mercato. DdT 30(1):79–92 Micklitz HW, Reich N (2009) Cronica de una muerte anunciada: the commission proposal for a “directive on consumer rights”. Common Mark Law Rev 46(2):471–519 Mortelmans K (1998) The common market, the internal market and the single market: what’s in a market? Common Mark Law Rev 35(1):101–136 Mostacci E, Somma A (eds) (2016) Il caso Uber. La sharing economy nel confronto tra common law e civil law. Egea, Milan Paulauskaite D, Powell R, Coca-Stefaniak JA, Morrison AM (2017) Living like a local: authentic tourism experiences and the sharing economy. Int J Tourism Res 19(6):619–628 Pearce G, Platten N (2000) Promoting the information society: the EU directive on electronic commerce. Eur Law J 6(4):363–378 Petropoulos G (2016) An economic review of the collaborative economy. In-depth analysis for the IMCO Committee IP/A/IMCO/2016-11, PE 595.358 Ranchordas S (2015) Does sharing mean caring? Regulating innovation in the sharing economy. Minn J Law Sci Technol 16(1):413–475 Rogers B (2015–2016) The social costs of Uber. Univ Chicago Law Rev Dialogue 82:85–102 Santolli BJ (2017) Winning the battle, losing the war: European cities fight Airbnb. George Wash Int Law Rev 49(3):673–709 Schepisi C (2017) Piattaforme digitali e caso Uber dinanzi alla Corte di giustizia: servizio di trasporto urbano o servizio della società dell’informazione? Osservatorio europeo Dir Un Eur, 1–17 Scott I, Brown E (2017) Redefining and regulating the new sharing economy. Univ Pa J Bus Law 19(3):553–599 Simon P (2017) Uber saisi par le droit du marché intérieur. Rev aff eur 28(3):521–532 Smorto G (2015) I contratti della sharing economy. Il Foro Italiano, 221–237 Smorto G (2016) Impulse paper no. 02 on the business authorisation/licensing requirements imposed on peer-providers and platforms in the accommodation/tourism sector in Paris, Rome, Milan and London. Ref. Ares 2558355 Smorto G (2017) Critical assessment of European agenda for the collaborative economy. In-depth analysis for the IMCO Committee IP/A/IMCO/2016-10, PE 595.361 Snell J (2010) The notion of market access: a concept or a slogan? Common Mark Law Rev 47(2):437–472 Sorensen MJ (2016) Private law perspectives on platform services. Eur Common Mark Law 5(1):15–19 Todolì-Signes A (2017) The end of the subordinate worker? The on-demand economy, the gig economy, and the need for protection for crowdworkers. Int J Comp Labour Law Ind Relat 33(2):241–2681 Tovo C (2018) Judicial review of harmonized standards: changing the paradigms of legality and legitimacy of private rulemaking under EU law. Common Mark Law Rev 55(4):1187–1216 Van Cleynenbreugel P (2017) Le droit de l’Union européenne face à l’économie collaborative. Rev trim droit eur 12(4):697–722 Van Eecke P (2011) Online service providers and liability: a plea for a balanced approach. Common Mark Law Rev 48(5):1455–1502 Walden I (2001) Regulating electronic commerce: Europe in the global e-conomy. Eur Law Rev 26(6):529–547

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Weatherill S (2012) The consumer right directive: how and why a quest for “coherence” has (largely) failed. Common Mark Law Rev 49(6):1279–1318 Wills G (2017) To be or not to Airbnb: regulation of short-term rentals in South Carolina. S C Law Rev 68(4):821–843 Wyman KM (2017) Taxi regulation in the age of Uber. N Y Univ J Legis Public Policy 20(1):1–100 Zou M (2017) The regulatory challenges of “uberization” in China: classifying ride-hailing drivers. Int J Comp Labour Law Ind Relat 33(2):269–294

Chapter 3

The Collaborative Economy Within the Framework of the European Union’s Digital Single Market

Abstract  This chapter encapsulates the collaborative economy within the current development of the Digital Single Market (DSM). To do so, the collaborative economy is assessed against the bulk of European Union (EU) law, primarily through the lenses of classical free movement rules. In addition, the Charter of Fundamental Rights of the European Union (the Charter) has a salient role to play in what concerns the freedom to choose an occupation and to conduct a business. Once the impact of primary law has been tested, secondary law is used to evaluate whether the collaborative economy fits within a well-designed framework comprising the Services Directive, the Information Society Services Directive, the Database Directive, the Recognition of Qualification Directive and the General Data Protection Regulation. Case law of the Court of Justice of the European Union (CJEU) in the Uber saga is further discussed in this specific respect. Chapter 2 hence concludes that, when a collaborative economy transaction is at stake, its legal qualification, as well as the consequences stemming from it, depends on the very nature of the underlying service. Keywords  Online platforms · European Union digital single market · Economic freedoms · Charter of fundamental rights · Harmonization

3.1  Introduction The smooth development of the Digital Single Market (DSM) has been one of the Commission’s key goals since 2015. Indeed, in his political priorities, President Juncker declared that he intended ‘to take ambitious legislative steps towards a connected digital single market’.1 Significantly, digital platforms and the collaborative economy are amongst the most controversial elements of the DSM.2 But what is it?  Extract from Political Guidelines for the Next European Commission – A New Start for Europe: My Agenda for Jobs, Growth, Fairness and Democratic Change (15 July 2014). 2  Adamski (2018), pp. 719–751. 1

© Springer Nature Switzerland AG 2019 M. Inglese, Regulating the Collaborative Economy in the European Union Digital Single Market, https://doi.org/10.1007/978-3-030-30040-1_3

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Offering a definition is far from straightforward for several reasons. First, it encompasses a great variety of sub-fields, spanning from parcel delivery to the supply of digital content, from off-premises online contracts to the protection of intellectual property rights,3 from telecommunication broadband to net neutrality: the list is still long. Second, given this variety, it requires tailor-made solutions to specific problems, for instance, the abolition of roaming fees when travelling across Member States cannot be assimilated to a reduction in parcel delivery costs. Third, not every aspect of the DSM presents the same complexity and, hence, requires the same solutions to the extent that, for instance, whereas online platforms are a novelty brought by the Internet, the protection and enforcement of intellectual property rights have always existed. Fourth, the idea of regulating the DSM or, better still, some of its components, and updating the existing legislative framework to make it more suited to the challenges posed by the new Internet economy, is a political rather than a legal decision, thereby expressing the current agenda of the present Commission.4 Nothing is stopping the next European Parliament elected in 2019 from abandoning the idea to regulate the DSM, however improbable. Be that as it may, it seems reasonable to argue that the DSM is a part—nowadays, a problematic and far-reaching part—of the internal market, as defined by Article 26(2) of Treaty on the Functioning of the European Union (TFEU), hence being ‘an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured’.5 However, for our purposes, it is noteworthy to point out that Article 26(1) prescribes that ‘the Union shall adopt measures with the aim of establishing or ensuring the functioning of the internal market’. This is exactly what the Commission is doing in respect of the DSM through a series of legislative actions aimed at updating existing legislation and promoting new instruments devoted to regulating what cannot be constrained within existing legal categories. In this respect, it seems safe to concur that, although there might be several internal markets, they all respond to the same logic.6 This is the case with the collaborative economy and, by extension, online platforms. Indeed, the smooth functioning of the DSM is the primary objective of the legislative agenda of the Commission. The development of the DSM has been planned via a detailed and well-reasoned stream of Commission’s communications7 accompanied, where necessary, by  For a seminal study regarding intellectual property rights in the digital market, see Bently and Burrell (1997), pp. 1197–1227. 4  Bartl (2015), pp. 572–598. 5  Weatherill (2017b). 6  Weatherill (2017a), pp. 125–178. 7  See Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of Regions. Digital Contracts for Europe, COM(2015) 633 final; Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of Regions; Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of Regions. Connectivity for a Competitive Digital Single Market—Towards a European Gigabit Society, COM(2016) 587 final; Communication from the Commission to the European Parliament, the Council, the European 3

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­legislative acts.8 This is a crucial aspect of the entire conception of the DSM. Indeed, in its very first communication (infra), the Commission tabled its priorities and the need to pursue them in a tailor-made fashion, that is, only where necessary and in compliance with the principles of subsidiarity and proportionality. In other words, not every aspect of the DSM needs to be regulated afresh or not every piece of legislation already in force needs to be amended, ameliorated and upgraded. Basically, not every event is disruptive enough to require the engagement of institutions in a lengthy legislative procedure, whose outcome needs to be negotiated between the Commission, the Parliament and the Council; only the most disruptive phenomena necessitate such an effort.9 All those communications gathered inputs from civil society, associations, trade unions and other interested parties, thereby making them accountable to economic operators. This is important insofar as an ambitious legislative agenda needs to be supported, at least theoretically, by its potential addressees. An analysis of all the instruments the Commission plans to adopt in the domain of the DSM is far beyond the scope of this Chapter which, instead, will be focused on the elements affecting the collaborative economy. The Communication on the DSM (DSM Communication)10 and its mid-term review (Mid-Term Review)11 explicitly foresees that the challenges brought about by the digital revolution needs to be, first and foremost, acknowledged and, second, properly addressed through legislative instruments. In doing so, the overarching principles to be taken into account are fair competition as well as a high level of consumer12 and personal data protection.13 The Mid-Term Review, in assessing the progresses made since the enactment of the DSM Communication, amongst others, focuses on platform-to-business (P2B) trading practices, thereby shifting the attention from consumer to business protection, hence, paving the way for a legislative act in this domain.14 Economic and Social Committee and the Committee of Regions. 5G for Europe: An Action Plan, COM(2016) 588 final. 8  See Proposal for a directive on certain aspects concerning contracts for the online and other distance sales of goods COM(2015) 635 final; Proposal for a directive on certain aspects concerning contracts for the supply of digital content, COM(2015) 634 final; Proposal for a regulation on cross-border parcel delivery COM(2016) 685 final. 9  Twigg-Flesner (2016), pp. 19–48. 10  Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of Regions. A Digital Single Market Strategy for Europe, COM(2015) 192 final. 11  Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of Regions on the Mid-Term Review on the Implementation of the Digital Single Market Strategy. A Connected Digital Single Market for All, COM(2017) 228 final. 12  Havu (2017), pp. 146–183. 13  Lynksey (2017), pp. 252–286. 14  For a seminal study, whose importance will be properly stressed in this chapter, see Busch et al. (2016), pp. 3–10; Sorensen (2016), pp. 15–19.

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A proposal for the regulation of online platforms (P2B Proposal)15 is aimed at offering a framework of legal certainty for those business operators using them. Obviously based on Article 114 TFEU, the P2B Proposal tackles the main issues highlighted by interested parties, namely, the disproportionate power enjoyed by platforms, the lack of transparency in contractual relations, and the negative consequences of harmful practices, such as banning an operator (so-called delisting), as well as the possibility to pay to upgrade one’s position in the ranking. Basically, the P2B Proposal seeks to level the playing field, guaranteeing certain minimum rights to business users while imposing a minimum degree of transparency on platforms. The Online Platform Communication16 discusses the role of online platforms in the development of the DSM, while failing to define them. Significantly though, the Online Platform Communication covers advertising, marketplaces, search engines, social media, communication services and collaborative economy platforms. In doing so, it describes their main features: (i) the ability to create and shape new markets while, at the same time, challenging old patterns; (ii) they operate in multisided markets; (iii) they benefit from network effects; (iv) they create digital values. Those characteristics indeed fit collaborative platforms while, at the same time, making it difficult to encapsulate them in existing legal instruments. Some of these elements are subsequently inscribed in the Communication on the collaborative economy (the Agenda).17 Against this background, this Chapter wishes to evaluate the collaborative economy in light of the bulk of EU law, as well as taking stock of the Commission’s current initiatives, in order to understand whether its characteristics are so disruptive to require an ad hoc instrument. This Chapter hence starts with an assessment of the collaborative economy as a possible specific manifestation of the free movement of workers (Article 45 TFEU), the freedom of establishment (Article 49 TFEU) and the freedom to provide and receive services (Article 56 TFEU). The analysis is then complemented by an evaluation of the freedom to choose an occupation (Article 15 of the Charter) and the freedom to conduct a business (Article 16 of the Charter), thereby reinforcing the idea that the collaborative economy presents unprecedented challenges from both the supply and demand side. Subsequently, this Chapter argues that the collaborative economy is unfit to be encapsulated in secondary law instruments, such as Directive 2006/123 (Services Directive),18 Directive

 Proposal for Regulation of the European Parliament and of the Council on promoting fairness and transparency for business users of online intermediation services, COM(2018) 238 final. 16  Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions. Online Platforms and the Digital Single Market. Opportunities and challenges for Europe, COM(2016) 288 final. 17  Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of Regions. A European Agenda for the Collaborative Economy, COM(2016) 356 final. 18  Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market OJ L 376, 27.12.2006, pp. 36–68. 15

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2005/36 (Recognition of Professional Qualifications Directive),19 Directive 2015/1535 (Information Society Services Directive)20 and Directive 96/9 (Database Directive).21 Nonetheless, it will be posited that the only piece of secondary law that is unquestionably applicable to the collaborative economy is Regulation 2016/679 (General Data Protection Regulation or GDPR).22 Finally, the analysis reverts back to the Elite Taxi and Uber France cases, linking them to the now-pending Airbnb Ireland case, and demonstrates that the proper qualification of the underlying service, coupled with the uncertainty to discover whether service providers acts in a professional or non-professional capacity, impedes the encapsulation of the collaborative economy in already-existing instruments of secondary law.

3.2  The Potential Applicability of Primary Law The key feature of every new phenomenon lies in the alleged difficulty to make it fit within a pre-existing legal landscape. When it comes to the collaborative economy, this difficulty is intensified by its very own characteristics which, as already discussed in Chap. 1, imply a triangular relationship between an online platform, a service provider and a recipient/user. However, while an online platform is placed at the apex of this triangle, providers and recipients are at the base, whereby, in turn, their relationship can be either business-to-consumer (B2C) or consumer-to-­ consumer (C2C). Furthermore, the relationship between an online platform and a service provider can be one of independence, hence rendering him/her as a mere external contractor or, on the contrary, one of top-down command and control, assimilating it to a worker/employee. Furthermore, a decisive role is attributed to the nature of the underlying service which, in a fast-changing environment, can have countless manifestations. These aspects make it particularly difficult to categorize the collaborative economy according to applicable legal regime with a negative

 Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications OJ L 255, 30.9.2005, pp. 22–142. 20  Directive (EU) 2015/1535 of the European Parliament and of the Council of 9 September 2015 laying down a procedure for the provision of information in the field of technical regulations and of rules on Information Society services, OJ L 241, 17.9.2015, pp. 1–15. The Information Society Service Directive repealed Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations, OJ L 204, 21.7.1998, pp. 37–48. 21  Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases, OJ L 77, 27.3.1996, pp. 20–28. 22  Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC OJ L 119, 4.5.2016, pp. 1–88. 19

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impact on legal certainty—which, in a triangular relationship, is conducive to a well-balanced set of obligations for online platforms, service providers and users. Searching for an ad hoc applicable legal regime for the collaborative economy in the EU’s DSM and, by extension, the widest domain of the internal market, requires answers to a set of questions related, on the one hand, to the characteristics of the actors involved in a collaborative economy transaction and, on the other hand, to the current development of the DSM. Thus, the collaborative economy has to be tested against the free movement of workers to ascertain whether or not—in light of the characteristics of a platform—providers should be qualified as workers. It can be anticipated that the answer might change according to the powers enjoyed by the platform. In turn, it needs to be ascertained whether a platform is a service provider in itself or, on the contrary, whether it solely matches demand and supply. The answer, of course, depends on the very nature of the underlying service. Finally, the impact of the freedom to choose an occupation (Article 15 of the Charter) and the freedom to conduct a business (Article 16 of the Charter) over the lack of an applicable regime serves as a parameter to evaluate whether a potential legislative intervention complies with the Charter.

3.2.1  Free Movement of Workers Searching for an applicable legal regime for the collaborative economy in the EU internal market leads to a previous assessment of the applicability of internal market freedoms, a difficult exercise considering that each of them has its own material and personal scope of application. Starting from Article 45 TFEU, the key question to be answered is the following: are service providers workers? If one looks at the settled case law of the Court, the answer is clearly negative. It is indeed assumed that, to be treated as a worker, one has to be subjected to the power of control and direction in a top-down fashion by his/her employer.23 This prerequisite is clearly lacking in the collaborative economy. Since collaborative platforms perceive and depict themselves as mere facilitators to match demand and supply, they seek to avoid any active role in the organization and supply of the underlying service. On the other hand, the collaborative economy, by definition, requires service providers to offer their services on an occasional, temporary basis with no subordinate link whatsoever. Yet, factual circumstances are divergent. As Advocate General (AG) Szpunar pointed out in his opinion in Elite Taxi,24 Uber is able to exercise decisive control over all the supply-side chain, starting from the imposition of fares up to pushing drivers towards more profitable zones and even, in the worst-case scenario, excluding them from the platform if their  Case 66/85, Deborah Lawrie-Blum v Land Baden-Württemberg, judgment of 3 July 1986; case C-188/00, Bülent Kurz, né Yüce v Land Baden-Württemberg, judgment of 19 November 2002. 24  Case C-434/15, Asociación Profesional Elite Taxi v Uber Systems Spain, SL, opinion of Advocate General Szpunar of 11 May 2017. 23

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p­ erformance is negatively evaluated by passengers. However, technically speaking, this is not a dismissal (considering that there is no employment relationship), so it could be more appropriate to consider it as a termination of the contract. What is striking is that this decision is directly taken by an algorithm, thus leading the concept of algocracy to the extreme.25 The criterion of direction and control has also been taken into account by the Commission’s Agenda and its critical assessment26 in order to evaluate whether a collaborative platform is also the provider of the underlying service. Both acts indicate that, should a collaborative platform own the assets necessary to provide the underlying service, there should exist another element indicating a potential employee/employer relationship. Notwithstanding that, it is intuitive that such a prerequisite is impossible to be fulfilled, given that, by definition, online platforms do not own anything. Following this pattern, the current assessment of EU law and settled case law of the Court of Justice of the European Union (CJEU) in respect of Article 45 TFEU prevents a categorization of this relationship in labour law terms. These aspects will be spelled out in greater detail in Chap. 5. The situation is more fluid at the level of Member States, to the extent that different jurisdictions have treated service providers in different ways. In a recent decision, the Tribunal of Turin unequivocally stated that individuals engaged in food delivery are not workers insofar as they are free to organize their working time, thereby escaping the powers of direction and control of collaborative platforms.27 This court deemed irrelevant the factual circumstances whereby, in case of sick leave or the refusal to accept a delivery, this could lead to expulsion from the platform. By contrast, the Central London Employment Tribunal concluded that drivers are the platform’s employees28; the same virdict was reached in Paris29 and Brussels.30 By the same token, in the US, some courts have also started to consider drivers as workers.31 The fragmentation of the status of service providers32 entails a chain of foreseeable consequences. To start with, lacking the status of worker, it is also impossible to claim social rights against an employer before a court of law. In other words, if there is no employment relationship, how would it be possible to claim the social  Hatzopoulos (2018a), pp. 154–155.  Smorto (2017). 27  Tribunale Ordinario di Torino, Sezione Lavoro, judgment no. 778/2018 published on 7 May 2018. See also Chap. 4. 28  Central London Employment Tribunal, case 2202551/2015 & others, Aslam, Farrar, judgment of 28 October 2016; Central London Employment Tribunal, case 2202512/2016, Ms. Dewhurst, judgment of 5 January 2017. See also Chap. 4. 29  Cour d’appel de Paris, Uber France/DGCCRF, decision no PI4084000776, 7 December 2015. 30  Bruxellois Commercial Tribunal, SPRL Uber Belgium v SA Taxi Radio, 23 September 2015. 31  California Labor Commissioner, Uber Technologies Inc. v Barbara Berwick, case no. 11-46739. A different conclusion was instead reached in Florida DC Appeal, Darrin McGilis v Department of Economic Opportunity and Rasier/Uber Florida, 3d N. 3D15-2758. See also Wyman (2017), pp. 1–100. 32  Codagnone et al. (2016). 25 26

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rights enshrined in Title IV of the Charter—the right to collective bargaining and action (Article 27), social security and assistance (Article 34) and paid annual leave (Article 31(2))33? These questions are doomed to be unanswered, even if one supported the view that some social rights specifically linked to the right to work or, better still, the rights at work enjoy a horizontal direct effect,34 while others do not.35 Lacking an employer/employee relation, legal certainty is missing too, since the same situation could in fact be differently treated in different Member States. This would also call into question the principle of equality. Naturally, collaborative platforms might tend to exploit this legal loophole. A possible clarification in this respect could probably come from a preliminary referral from a national court. To date, no such cases have been reported.

3.2.2  Freedom of Establishment Article 49 TFEU can be mostly appreciated by looking at collaborative platforms. Indeed, given that service providers tend to operate on a temporary basis, their situation lack a clear and stable link with the territory of a host Member State. On the other hand, it is also true that collaborative economy platforms often operate in a Member State other than the one where their branches are established. This situation has been addressed in Elite Taxi.36 Indeed, the intervening Polish government submitted that the case lacked a cross-border element—i.e., amounting to a purely internal situation—in order to fall faoul the scope of application of EU law. Both the CJEU and the AG disagreed, arguing that the mere fact that the principal branch of Uber is located in the Netherlands confirms that its effects are crossborder in nature.37 Apart from the arguments the CJEU used to affirm its jurisdiction, the fact that a collaborative platform is located in a Member State other than the one where it pro-

 This topic will be better tackled in Chap. 5; concerning the social rights of atypical workers, see Bell (2012), pp. 31–48; Peers (2013), pp. 30–56. 34  This is the classical hypothesis of the right to paid annual leave, case C-684/16, Max-PlanckGesellschaft zur Förderung der Wissenschaften eV v Tetsuji Shimizu, judgment of 6 November 2018; case C-619/16, Sebastian W.  Kreuziger v Land Berlin, judgment of 6 November 2018; joined cases C-569/16 and C-570/16, Stadt Wuppertal and Volker Willmeroth als Inhaber der TWI Technische Wartung und Instandsetzung Volker Willmeroth e. K. v Maria Elisabeth Bauer and Martina Broßonn, judgment of 6 November 2018; case C-282/10, Maribel Dominguez v Centre informatique du Centre Ouest Atlantique and Préfet de la région Centre, judgment of 24 January 2012. 35  Case C-176/12, Association de médiation sociale v Union locale des syndicats CGT and others, judgement of 15 January 2014. 36  Case C-434/15, Asociación Profesional Elite Taxi v Uber Systems Spain, SL, judgment of 20 December 2017. 37  Asociación Profesional Elite Taxi v Uber Systems Spain, SL, para. 31–32. 33

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vides its services does not diminish the capacity of the referring court to ask for a preliminary ruling. Moreover, the exclusion of the CJEU’s jurisdiction has been accepted in exceptional circumstances, where all the elements of the case at stake were unequivocally confined in a single Member State.38 A different pattern could be envisaged should a collaborative platform desire to establish a branch or a subsidiary in a host Member State. In this case, not only is it allowed to do so, but any restrictions hampering this operation are forbidden.39 When it comes to prohibited restrictions, for instance, one could imagine a legal requirement to have a certain amount of capital, impose certain economic guarantees or even oblige online platforms to adopt certain forms of employment contracts (if any) from the perspective of workers/employees. However, since we are dealing with online platforms, a possible branch or subsidiary in a host Member State would essentially amount to opening an office, given that, by definition, they do not own the assets through which their service providers operate in a given national market. Article 49 TFEU hence perfectly fits the pattern of collaborative platforms, enabling them to locate a branch or subsidiaries in a host Member State while maintaining their headquarters elsewhere.40

3.2.3  Freedom to Provide and to Receive Services The freedom to provide services is arguably the internal market freedom that is most appropriate for capturing the key features of the collaborative economy. Moreover, Article 56 TFEU is a residual clause which is solely applicable to the extent that Articles 34, 45 and 49 are not. In classical terms, the freedom to provide services is applicable both to providers and to recipients,41 as long as there exists an economic link in the form of some kind of remuneration.42 Who moves and who pays for the service at stake are irrelevant.43 In addition, it is important to stress again that we

 See, for instance, case C-393/08, Emanuela Sbarigia v Azienda USL RM/A and others, judgment of 1 July 2010; case C-497/12, Davide Gullotta and Farmacia di Gullotta Davide & C.  Sas v Ministero della Salute and Azienda Sanitaria Provinciale di Catania, judgment of 2 July 2015. 39  Catchpole (2001), pp. 1–20. 40  See case C-106/16, Proceedings brought by Polbud - Wykonawstwo sp. z o.o., judgment of 25 October 2017. 41  Joined cases 286/82 and 26/83, Graziana Luisi and Giuseppe Carbone v Ministero del Tesoro, judgment of 31 January 1984. 42  Case C-281/06, Hans-Dieter Jundt and Hedwig Jundt v Finanzamt Offenburg, judgment of 18 December 2007. In terms of lacking retribution, see case C-159/90, The Society for the Protection of Unborn Children Ireland Ltd. v Stephen Grogan and others, judgment of 4 October 1991. 43  Case C-157/99, B.S.M. Geraets-Smits v Stichting Ziekenfonds VGZ and H.T.M. Peerbooms v Stichting CZ Groep Zorgverzekeringen, judgment of 12 July 2001; case C-372/04, The Queen, on the application of Yvonne Watts v Bedford Primary Care Trust and Secretary of State for Health, judgment of 16 May 2006. 38

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start from the assumption that service providers are not workers, as their activity is temporary by definition and, as per Article 57 TFEU, of an industrial, commercial or professional character.44 The fluidity of this pattern, however, coupled with the residual scope of application of the freedom to provide and receive services, could pose another challenge for the collaborative economy, since not every activity is caught by Articles 56–57 TFEU.45 As Elite Taxi again shows, transport is excluded. Payments are also excluded, as they are caught by Article 63 TFEU.  This entails that collaborative platforms dedicated to the management of money and payments, to be then transferred to a third party,46 pertain to the free movement of payments and capital. This would clearly call into question the applicability of Article 63 TFEU or, hypothetically, some secondary law, if any. However, it has been highlighted that the collaborative economy has a multifaceted dimension which can encompass the most diverse economic activities.47 Nothing prevents in some cases—yet to be explored—Article 56 TFEU will be applicable. What is relevant, once again, is the subsistence of an economic retribution. This would, on the one hand, exclude the relevance of Article 56 TFEU in sectors such as ride-sharing activities where the amount of money exchanged is so little as to be essentially equal to small compensation, or, on the other hand, to activities such as home-swapping where the economic link is basically non-existent. Further, the genuine nature of the underlying service can also exclude the applicability of Article 56 TFEU as confirmed in Elite Taxi. This scheme is valid, irrespective of whether one looks at the demand or the supply side. To sum up, the freedom to provide services, taken from both the demand and the supply side, could be applicable on a case-by-case basis, after an evaluation of the specific characteristics of the activity at stake and of the underlying service. This, in turn, guarantees that providers and recipients are not discriminated against while enjoying the diverse opportunities of the DSM, and that collaborative platforms can offer their services in all EU Member States.

3.2.4  F  reedom to Choose an Occupation and the Right to Engage in Work The DSM Communication and the Agenda rightly underscore the idea that the harmonious growth of the DSM and the collaborative economy lead to an improvement in the occupation rate in the EU, favouring categories otherwise less engaged. This approach seems to uphold the idea that fostering new economic activities is an  Enchelmaier (2011), pp. 615–650; Hatzopoulos (2013), pp. 459–501.  Hatzopoulos (2012). 46  Janczuk-Gorywoda (2016), pp. 223–251. 47  Hatzopoulos and Roma (2017), pp. 81–128; Van Cleynenbreugel (2017), pp. 697–722. 44 45

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essential part of the development of the freedom to choose an occupation and the right to engage in work, as fundamental rights enshrined in Article 15 of the Charter. Although this right-discourse approach seems to be theoretically valid, it needs to be tested against the aforementioned provision and, where necessary, case law of the CJEU. For our purposes, it is interesting to note the tripartite structure of Article 15 of the Charter in respect of the collaborative economy. Paragraph 1 describes its field of application in the widest possible terms by reference to ‘everyone’. However, according to paragraph 2, only ‘every citizen of the Union’ enjoys the rights to seek employment, to work, to exercise the right of establishment and to provide services. Finally, paragraph 3 stipulates that third-country nationals authorized to work in a Member State are entitled to benefit from working conditions equivalent to those of citizens of that Member State. Thus, third-country nationals do not enjoy the right to free movement but remain subject to national provisions. This framework holds true for traditional economic activities, be they of a subordinate nature—hence being caught by Articles 45 TFEU—or otherwise, irrespective of their stability or impermanence—thus being caught by Articles 49 and 56 TFEU—but it could buckle under the challenging pressures exercised by the advent of the collaborative economy. Some additional observations need to be made in respect of the characteristics of the collaborative economy and whether it really fits the pattern designed by Article 15 of the Charter. Commentators have convincingly argued that this provision not only depicts the right to work, but also encompasses some rights at work to make it ‘dignified or decent’,48 while, at the same time, basically protecting the right to move and to seek employment.49 Furthermore, social rights are spelled out in other provisions of the Charter. Whether a collaborative economy operator is entitled to social protection as well as the nature of the relationship he/she establishes with an online platform will be discussed in Chap. 5; for now, it is enough to stress that any collaborative economy operator—whether acting in his/her professional capacity or as a peer—does fit the pattern laid down in Article 15 of the Charter. Hence, the question concerning the bulk of social rights conferred upon operators should be kept separate from the mere fact that they enjoy the right to work and to choose an occupation. There are two interesting points to note. First, there is no definition of work as such. This could be problematic for the collaborative economy since, as discussed in Chap. 2, the very concept of a collaborative working activity was firmly rejected back in the good, old days of the sharing economy.50 Now that it is commonly accepted that matching demand and supply, as carried out by a collaborative platform, and the services offered by providers, amount to paid activity, the applicability of the Charter is unquestionable. A second point concerns the dichotomy between

 Ashiagbor (2014), p. 426.  Dermine (2018), pp. 325–348. 50  Aloni (2016), pp. 1397–1459. 48 49

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the scope of application of Article 15 and the fact that literally everyone, including third-country nationals, is easily involved in the collaborative economy. The CJEU has recently interpreted Article 15  in the sense that it essentially embodies the full array of economic freedoms an individual is entitled to. As such, they can be restricted solely for overriding reasons of public interest according to the settled case law of the CJEU. In other words, and for our purposes, Article 15 can be interpreted as a norm giving autonomous standing to collaborative economy service providers, although, as will be discussed in Chap. 5, this leaves open the question of the justiciability of their social rights, if any.

3.2.5  Freedom to Conduct a Business The freedom to conduct a business is firmly rooted in the EU economic constitution and, over the years and coupled with internal market freedoms, has represented the compass of EU activities51 as a sort of herald of liberal economic principles.52 After all, the completion of the then common market, as foreseen by the Single European Act, is largely due to economic initiatives.53 The CJEU case law is consistent in this respect by placing economic integration at the epicentre of EU actions. In particular, Article 15 embodies a freedom for natural persons, while Article 16 seems more suited to catching activities carried out by legal persons or, better still, legal entities. Transplanting this division in collaborative economy terms, it can be argued that collaborative platforms are the addressees of Article 16. Consequently, following this structure, one should ascertain whether and potentially to what extent the activities of collaborative platforms can be curtailed to pursue a general interest. While it has been convincingly pointed out that the freedom to conduct a business according to Article 16 of the Charter enshrines the very idea of European integration, one cannot but acknowledge, first, that the freedom to conduct a business encounters the general limitations of Article 52 of the Charter, and, second, that those limitations essentially underpin the development of the EU legal order as testified by the case law of the CJEU. Compared to Article 15, Article 16 does not identify any addressee, but simply insists that the freedom to conduct a business must be in accordance with national laws and practices. This statement could be interpreted as a ‘closed-gate clause’ to safeguard national specificities and, eventually, labour law.54 Further, those national specificities essentially entail respect for the overriding reasons of public interest that the CJEU has been continuously developing, while it is clear that the restriction put in place by Member States must respect the principle of proportionality.

 Everson and Gonçalves (2014), pp. 437–463.  Leonard (2018), pp. 349–368. 53  Mortelmans (1998), pp. 101–136. 54  Giubboni (2018), pp. 172–190; Prassl (2015), pp. 189–209. 51 52

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Without engaging in a detailed analysis of the abundant and overtly consistent case law of the CJEU, it is—for the time being—more interesting to focus attention on the four cases that might be impactful for the collaborative economy, in chronological order: Scarlet,55 SABAM,56 Sky Österreich57 and Telefonica.58 As will be argued, these cases have in common the factual circumstances that the freedom to conduct a business over the Internet—exactly as it happens in the collaborative economy—can be hampered by national technical regulations or other reasons of public interest; whether those restrictions are justified is a different matter decided on a case-by-case basis by the CJEU. In Scarlet, making reference to L’Oréal,59 the CJEU held that, although digital intermediaries can be requested to filter, stop and monitor potential infringement, such ‘preventive monitoring’60 cannot disproportionately affect the freedom to conduct a business insofar as a fair balance must be reached between it and copyright protection, while also taking into account that IP addresses are personal data. While a similar conclusion was reached in SABAM and in Sky Österreich, the CJEU went further by balancing the freedom to conduct a business with the right to information and media pluralism. More recently, in Lubbe,61 the CJEU had to strike a balance between the protection of personal data according to Article 8 of the Charter and intellectual property. All these examples are of importance to the collaborative economy, not only because, in general terms, they entail an online element but also because they highlight how fundamental rights are at stake. Further, when it comes to balancing two fundamental rights, the CJEU has always been very cautious. As will be discussed infra and in Chap. 5, in a dispute between a collaborative platform and an incumbent economic operator, there is nothing to prevent the freedom to conduct a business and the right to choose an occupation from playing a pivotal role in steering the decision of the CJEU. The analysis of the case law of the CJEU suggests that the pervasive powers of collaborative platforms might plausibly be restrained by having recourse to the classical discourse of striking a balance between fundamental (economic) freedoms and overriding reasons of public interest. For instance, it may very well be the case that, in principle, a Member State imposes access to its domestic market, based on respect

 Case C-70/10, Scarlet Extended SA v Société belge des auteurs, compositeurs et éditeurs SCRL (SABAM), judgment of 24 November 2011. 56  Case C-360/10, Belgische Vereniging van Auteurs, Componisten en Uitgevers CVBA (SABAM) v Netlog NV, judgment of 16 February 2012. 57  Case C-283/11, Sky Österreich GmbH v Österreichischer Rundfunk, judgment of 22 January 2013. 58  Case C-295/12 P, Telefónica SA and Telefónica de España SAU v European Commission, judgment of 10 July 2014. 59  Case C-324/09, L’Oréal SA and others v eBay International AG and others, judgment of 12 July 2011. 60  Scarlet Extended SA v Société belge des auteurs, compositeurs et éditeurs SCRL (SABAM), paragraph 39. 61  Case C-149/17, Bastei Lübbe GmbH & Co. KG v Michael Strotzer, judgment of 18 October 2018. 55

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for some mandatory requirements—intuitively, these would be consumer protection or fairness of trade relations.62 Whether the CJEU is inclined to accept them and hence ‘save’ national domestic restrictive regimes essentially depends on the consolidated interpretation and application of the proportionality principle. Moreover, some pieces of secondary legislation already enshrine some of those reasons.

3.3  The Potential Applicability of (Some) Secondary Law It has been shown above that primary law could be applicable to the collaborative economy or, at least and better yet, to some of its components. The landscape changes, if one considers the potential applicability of some secondary law. Chapter 2 depicted the disruptive features of the collaborative economy, concluding that its peculiarities prevent, at least to date, the applicability of existing pieces of EU secondary legislation. Whereas this theoretical analysis cannot be conducted other than by relying on case law of the CJEU, it is important to stress that, so far, it has not yet been convincingly demontrated that the collaborative economy fits within an existent pattern. Certainly, this assumption can be challenged, but it would entail an endless analysis of all the existent bulk of EU law, and such an analysis would be even more difficult given that the collaborative economy or even an underlying service can be linked to any economic activity.

3.3.1  The Services Directive The genesis of the Services Directive and the debates accompanying the country of origin principle—which subsequently became the so-called home country control concept63—are well known.64 What is interesting to assess here is its potential applicability to the field of the collaborative economy. This exercise has to be performed by following two intertwined and overlapping variables. First, as has been previously discussed, the scope of application of Article 56 TFEU is residual, insofar as it catches activities not covered by Articles 45, 49 and 63 TFEU. By the same token, the Services Directive endorses the same limitations to the extent that many economic sectors are excluded from its scope of application. Second, whereas Article 56 TFEU has been used to strike down domestic legislation likely to hamper the freedom to provide services, the Services Directive imposes on Member States several obligations. For our purposes, it is worth recalling that Article 14(3) of the Services Directive forbids Member States from compelling a service provider to set its principal establishment in its own territory, a requirement which is of practical  Snell (2010), pp. 437–472.  Davies (2007), pp. 232–245; Schammo (2013), pp. 467–501. 64  Barnard (2008), pp. 323–394; Hatzopoulos (2008), pp. 215–261. 62 63

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relevance when assuming that collaborative platforms are often located in a State other than where their services are materially offered. Considering that a full analysis of the Services Directive is well beyond the scope of this Chapter, two remarks can be made here. First, as will be further discussed infra, its applicability has been excluded in the Elite Taxi and Uber France cases, since the underlying service consisting of transporting passengers is excluded from its scope. In the now-pending Airbnb Ireland case, it remains doubtful whether the Services Directive will play a role at all. However, its recital 33 includes, within its scope of application, real estate and consumer services in the field of tourism; the CJEU will have a final say in this. Second, the actual battlefield should be shifted from the diversity of economic activities included within underlying services to the legislation of Member States. In other words, one of the most classical EU law problems is at stake, given that a service could be legitimately supplied in a Member State and simultaneously banned in all others.65 It is true that each of them can protect its own specificities, relying on some overriding reasons of public interest codified in the Treaty or set forth in case law of the CJEU; however, it is also true that the Services Directive has the necessary merits for codifying that vast body of case law. Hence, the freedom of Member States to restrict a specific field has been inevitably curtailed. In this regard, it is also interesting to note that the general negative attitude towards Uber, albeit for different reasons, seem to point to the direction that it could pursue only some of its activities, namely, those not affecting regulated professions or those for which a special authorization regime is in force. Indeed, it is an empirical observation that only UberPop (the service provided by non-­professional drivers) has been harshly contested, while all the plethora of Uber’s activities—from food delivery (UberEats) to luxury cars (UberBlack) and helicopters (UberChopper)—has not. In other words, it is always the underlying services that steer the discourse in the collaborative economy domain. A further layer of complexity can be added when one considers that many underlying services can be provided by professionals, hence calling into question the role of the mutual recognition of qualification, an aspect also addressed by AG Szpunar in his opinion in Airbnb Ireland.

3.3.2  The Recognition of Qualifications Directive The principle of mutual recognition is one of the oldest and perhaps most debated principles of EU law which has shaped the case law of the CJEU and the enactment of legislative measures for decades, such that it now extends far beyond the internal

 Case C-268/99, Aldona Malgorzata Jany and Others v Staatssecretaris van Justitie, judgment of 20 November 2001; Case C-137/09, Marc Michel Josemans v Burgemeester van Maastricht, judgment of 16 December 2010. 65

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market66 and touches upon criminal law,67 which has repercussions for the digital market.68 The Recognition of Qualifications Directive has harmonized the regime of some regulated professions by either imposing automatic recognition or some specific compensatory measures. Several examples may arise, even in a collaborative economy environment. For instance, in the course of pursuing a determined profession, an individual has to pass a preliminary examination, before being registered with a professional body and acting solely in a geographically well-determined space—the very concept of the collaborative economy contrasts with those requirements. This may very well be the case for lawyers, professional drivers or real estate agents. Within the EU, the market for lawyers is regulated at the level of Member States, in the sense that each of them, alongside having to possess a relevant degree in law, prescribes different rules to be admitted to the bar. Certainly, there are also rules harmonized at the EU level to allow lawyers to use a title other than the one acquired in their state of origin, but this is subject to proof of a genuine legal activity in a host Member State.69 However, nothing has been said about those who are engaged in the activity of counselling without going before a court of law. Considering that there are collaborative platforms offering legal counselling, it is doubtful whether, first and foremost, they are allowed to match the demand and supply of legal services; second, it is uncertain whether individuals registered on such platforms can provide their services in a host country. This gives rise to a series of different problems linked to the collaborative economy as such and to the development of regulated professions. In the example of non-professional drivers, Uber has been criticized because it does not control their fitness for purpose, limiting itself to verifying the absence of a criminal record. For these reasons, it becomes difficult to ascertain whether a service provider is acting in a professional capacity or not. Whether this professional capacity is, in turn, linked to a professional qualification is even more difficult to assess insofar as there is neither transparency nor control over the personal or, rather, professional, characteristics of a service provider. At least in the legal domain, this could put in jeopardy the genuine outcome of a transaction, since a user tends to trust a service provider by solely relying on his/her level of positive/negative reviews, comments, feedback etc. In other words, in this case, the role of guarantor for a positive outcome of a transaction should be bestowed on online platforms. Indeed, an online platform cannot compel its providers to prove their professional qualifications; otherwise, it would be clear that it is no longer acting as a passive matcher of demand and supply but is, instead, engaged as a marketmaker, adopting a proactive attitude and imposing a severe degree of control.  Roth (2017), pp. 427–459.   For a detailed account of the principle of mutual recognition, see Weatherill (2018), pp. 224–233. 68  De Baere (2004), pp. 287–319. 69  Joined Cases C-58/13 and C-59/13, Angelo Alberto Torresi and Pierfrancesco Torresi v Consiglio dell’Ordine degli Avvocati di Macerata, judgment of 17 July 2014. 66 67

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Second, at a more general level, whether a professional registered in a Member State is allowed to use an online platform to expand his/her commercial network is a different question, which is difficult to answer. In this respect, two types of cases can be acknowledged. First, it remains doubtful whether certain regulated professions also benefiting from the mechanism of mutual recognition can use collaborative platforms as a means to increase their clientele. The CJEU, in this respect, has already held that a pharmacy cannot sell through its online website medicines that must be prescribed by a professional.70 By the same token, the e-Commerce Directive is not applicable when a prior medical assessment is needed to buy contact lenses.71 What seems problematic regarding regulated professions is that they must be inspired and guided by their own codes of conduct, whose rules are different from one Member State to another.72 Again, whereas certain jurisdictions might allow an online presence to increase business possibilities, others might impede it; and the very fact that a professional can offer advice to a client without formally engaging in any client-professional activity might constitute another different problem. For instance, a lawyer admitted to the bar in one Member State can, through an online platform, counsel a client without going before a judge located in his/her client’s jurisdiction. Moreover, the client might be in a jurisdiction other than that where the legal question arose. Crucially, AG Szpunar concluded that access to a regulated profession—in the Airbnb Ireland case, real estate agents in France—is covered by the e-Commerce Directive, hence facilitating a more generous free movement of professionals.73 It thus appears that the multitude of activities to be potentially carried out in the collaborative economy fall foul of the application of the Mutual Recognition Directive. This is naturally so, because it would be unrealistic to try and adapt a scheme conceived for the free movement of service providers and eventually the establishment of natural and legal persons to a multifaceted dimension, such as that of the collaborative economy. Again, the concrete problem lies in the identification of the underlying service.

 Case C-322/01, Deutscher Apothekerverband eV v 0800 DocMorris NV e Jacques Waterval, judgment of 11 December 2003. 71  Case C-108/09, Ker-Optika bt contro ÀNTSZ Dél-dunántúli Regionális Intézete, judgment of 2 December 2010. 72  Delimatsis (2010), pp. 1049–1087. 73  Case C-390/18, Airbnb Ireland, opinion of Advocate General Szpunar of 30 April 2019. 70

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3.3.3  T  he Information Society Services Directive and the e-Commerce Directive (Again) Chapter 2 examined the potential impact of the Information Society Services Directive on the collaborative economy in light of the fact that, for this instrument to be applicable, an economic activity must be provided against remuneration, at a distance, at the individual request of a recipient and by electronic means. Should these requirements be met, then the activity at stake will be covered by the liberalized regime of the e-Commerce Directive.74 Furthermore, Annex I of the Information Society Services Directives excludes from its material scope of application certain activities, namely, those not provided at a distance (e.g., medical examination, consultation via an electronic catalogue in a shop, plane ticket reservation, electronic games), those not provided by electronic means (basically, ‘services having material content even though provided via electronic devices’) and those not supplied at the individual request of a recipient (e.g., radio and television broadcasting). Annex II rules out financial services too. What is important to note here is that, when an activity is not covered by the  Information Society Services Directive, it will, in turn, not be caught by the e-Commerce Directive either. When it comes to financial services, it is clear that their specificities are subject to a different regime. Hence, collaborative platforms engaged in this sector are easily detected and therefore excluded. The entrenchment between the Information Society Services Directive and the e-­Commerce Directive serves the purpose of guaranteeing a liberalized regime for all online activities whose underlying service is not excluded from their field of application.75 This, in turn, implies a differentiated degree of liability according to Articles 12 (mere conduit), 13 (caching) and 14 (hosting).76 Again, their importance to the collaborative economy has yet to be tested since, in the two Uber cases, the applicability of the e-Commerce Directive has been ruled out. By contrast, in Airbnb Ireland, the AG contended that connecting professional and non-professional hosts with potential guests, lacking any form of pervasive control on the part of the platform, may very well fall within the scope of application of the Information Society Services Directive and, therefore, be caught by the e-Commerce Directive. The pattern is not easy to grasp: first, it is necessary that an underlying service falls within the scope of the Information Society Services Directive before the e-Commerce Directive can be deemed applicable. Once this joint requirement has been satisfied, a collaborative platform would benefit from the free movement rules enshrined in Article 3(2) of the e-Commerce Directive and, possibly, of the ­exclusion  Lopez-Tarruella (2001), pp. 1337–1384; Pearce and Platten (2000), pp. 363–378; Walden (2001), pp. 529–547. 75  Different questions arise when it comes to e-commerce contracts and consumer protection; see Brownsword (2017), pp.  165–204; Farah (2009), pp.  3–14; Hultmark Ramberg (2001), pp. 429–450. 76  Colangelo and Maggiolino (2018), pp. 142–159; Jackobsen (2010), pp. 29–52. 74

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of its liability. Once again, such an assessment takes account of the genuine nature of the underlying service77 as well as the degree of control exercised by a platform over all the elements of a typical collaborative economy transaction.

3.3.4  The Database Directive Whether a collaborative platform should be considered a database is a question that has already been analysed in Chap. 2. However, a different set of observations can still be put forward. Considering that the object of the Database Directive is the protection of the intellectual effort of a database creator, it is possible to argue that a collaborative platform should be protected, not as a database in itself, but for its content, provided that it bears an intellectual value. Now, this possibility must be discarded for two reasons. First, it seems clear that the intellectual effort does not pertain to the creation of the collaborative platform itself, nor is there any intellectual effort in its methodical organization. Second, possible forms of protection could be identified in trademarks, but this aspect has nothing to do with the services offered by a collaborative platform. In conclusion, all the attempts to reconcile collaborative platforms with an intellectual effort are futile, since those instruments are meant to cover a very specific field.

3.3.5  The General Data Protection Regulation When it comes to personal data relevant to the collaborative economy, one has to distinguish between providers’ data and users’ data while, at the same time, it is intuitive that collaborative platforms treat and stock them. Whether this accumulation can give rise to an abuse of dominant position is a different question that will be addressed in Chap. 6. The entry into force of the GDPR introduces the key concepts necessary to understand the right to control one’s own personal data. Article 1(1) and (2) establish that the protection laid down by the GDPR is afforded to natural persons and concerns their personal data as well as their movement. Article 2 stipulates that the GDPR ‘applies to the processing of personal data wholly or partly automated’ while paragraph 3 highlights that the GDPR does not prejudice the norms regarding the liability of intermediary service providers as per the e-Commerce Directive. The territorial scope of application of the GDPR is wide to the extent that it catches activities and processing taking place in the EU or elsewhere, thereby clearly encompassing the mere fact that a collaborative economy undertaking can be incor-

 These forms of liability are different from the liability attached to the product unfitness, Berke (2016), pp. 603–653. 77

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porated in a third country and operate in the EU; in particular, paragraph 2 e­ stablishes the GDPR application in the offering of goods and services. Article 1 offers a far-reaching definition of personal data: ‘any information relating to an identified or identifiable natural person (‘data subject’); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person’. What is more interesting is the notion of profiling to the extent that it means ‘any form of automated processing of personal data consisting of the use of personal data to evaluate certain personal aspects relating to a natural person, in particular to analyse or predict aspects concerning that natural person’s performance at work, economic situation, health, personal preferences, interests, reliability, behaviour, location or movements’ (Article 4(4)). Article 20 of the GDPR, on the right to portability, could have an interesting impact over the collaborative economy. Given its triangular nature a collaborative platform gathers personal data belonging to users and service providers. At the same time, they both contribute to profiling each other, leading to the acquisition of a well-known online reputation which can have an intrinsic value. This, in turn, value accrues its economic worth when it comes to professional service providers. In other words, the acquisition and elaboration of personal data through profiling have a decisive influence over the collaborative economy, for the simple fact that everybody is interested in reputational disclosure since it increases business opportunities. On the other hand, considering that such a reputation can take a considerable amount of time to be created, users and service providers are tied into collaborative platforms as long as they cannot export their personal data to another platform or, to put it simply, if they have to start from scratch. Clearly, nobody is interested in this, unless online platforms can guarantee the right to data portability from one platform to another, thus avoiding the phenomenon of tying and encouraging multihoming. It thus seems that the GDPR is the only piece of secondary legislation unquestionably and uncontroversially applicable to the collaborative economy. The farreaching scope of application of the GDPR permits professional and non-professional service providers as well as users to be caught, while placing the burden to manage their data on the shoulders of collaborative platforms. The CJEU has not yet heard cases on this topic, but it may very well happen in the near future should individuals decide to migrate their data from one platform to another. Another hypothesis could happen if a review comment is libellous, hence calling into question, on the one hand, the power of the platform to filter and remove such a comment and, on the other, tracing the individual who posted it. These aspects are important, not only for the identification of the legal regime applicable to the collaborative economy, but also to ascertain the powers a collaborative platform enjoys over its registered users. In addition, this element could also be taken into account in order to assess whether some forms of self-regulation should be left in the hands of online platforms,78 an aspect that will be dealt with in Chap. 7.

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 Finck (2018), pp. 47–68.

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3.4  The Uber Saga The importance of the Uber saga to an understanding of the collaborative economy resides in the inapplicability of the existent legal instruments. As discussed in Chap. 2, uncertainties concern the determination of whether an economic activity is to be considered as an information society service, thereby falling within the scope of application of the e-Commerce Directive. According to Article 1(b) of the Information Society Services Directive, to fall within its scope, a service has to be provided at a distance, with remuneration, at a recipient’s individual request and by electronic means. Whereas this test is useful when assessing whether a certain underlying service can benefit from the liberalized regime set forth by the e-­Commerce Directive, its satisfaction is difficult. Let us turn back to the two Uber judgments of the Court.

3.4.1  Elite Taxi Many commentators have expressed a plethora of different, yet converging, opinions on the concrete outcome of the Elite Taxi judgment79 and, in more general terms, on the impact of Uber over the collaborative economy.80 Those argumentations can be summed up by two concurring lines of reasoning. First, the CJEU blatantly ignored the content of the Agenda and the critical assessment thereof. In principle, this is legitimate since they both are non-binding. Second, in deciding to disregard the path endorsed by the Commission, the CJEU adopted its own way to tackle the collaborative economy. This, in turn, is legitimate, considering once more that the CJEU is bound to respond to the queries submitted by the referring judge in order to enable it to resolve the litigation at stake. Again, since the interpretation given by the CJEU is binding for every national judge, it is important to further stress the groundbreaking impact of Elite Taxi. In other words, the CJEU has meaningfully decided to consider some elements of the factual circumstances of the case while, at the same time, disregarding others. In particular, following the opinion of AG Szpunar, the CJEU ignored the requisite of control exercised by collaborative platforms over service providers. Furthermore, the prerequisite that a collaborative platform can possess the facility—in the case of Uber, vehicles—through which its providers operate has been ignored too.81 Finally, the imposition of prices has also been neglected: what was important was the nature of the underlying service as a way to assess in which market the collaborative  De Franceschi (2018), pp. 1–4; Hatzopoulos (2018b), pp. 273–285; Schepisi (2017), pp. 1–17; Simon (2017), pp. 521–532. 80  Geradin (2015), pp. 1–10; Grosheide and Barenberg (2016), pp. 193–236; Mostacci and Somma (2016), Rogers (2015–2016), pp. 85–102. 81  This element has also been criticized in legal doctrine: see Cauffman (2016), pp. 235–243. 79

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p­ latform was operating. But, is this sufficient to pertain to the systematization of the collaborative economy? The CJEU’s ruling is crystal clear in this respect and rather straightforward: as an underlying service offering urban transport is not caught by the Information Society Directive, it cannot benefit from the liberalized regime of the e-Commerce Directive. In addition, since this service falls within a domain in which the EU has not yet exercised its shared competence, the matter is still in Member States’ hands. The same reasoning has been reiterated in Uber France, but seems limited to the transport sector. It is hard to foresee its validity when tested against other sectors.

3.4.2  Uber France The approach put forward by AG Szpunar82 and endorsed by the CJEU has also been deemed valid when criminal penalties are at stake. The fact that, in Uber France,83 the referral concerned a criminal action did not prevent the CJEU from adopting the same line of reasoning in Elite Taxi. However, as anticipated, it remains to be seen whether such a restrictive approach, which does not take into account the essential features of the collaborative economy, will apply to other referrals. In Uber France, essentially, the fact that the legislation at stake was not deemed to be a technical regulation is inapplicable, per se, in that any other case reaching the attention of the CJEU will be treated accordingly. This is a risky exercise for a least two reasons. First, it could jeopardize the nomophylactic role of the CJEU. In particular, whereas the CJEU ensures a centralized interpretation of the law of the EU, one should not underestimate the fact that national judges are the first applicator and enforcer thereof according to Article 19 TFEU. Whereas, in addition, one could easily find the same line of reasoning in similar cases brought before the CJEU—it suffices to think here about the increasingly consistent approach with regard to citizenship or internal market freedoms—the real problem lies in the fact that an old arsenal of secondary legislation does not seem to have enough teeth to bite the collaborative economy. Second, let us assume that the CJEU decides to depart from the two Uber cases in light of the factual circumstances of a case. Would this guarantee consistency in its case law and, above all, ensure at least an acceptable level of legal certainty for economic operators, professional and non-professional service providers as well as users?

 Opinion of AG Szpunar in case C-320/16, Criminal proceedings against Uber France, delivered on 4 July 2017. 83  Case C-320/16, Criminal proceedings against Uber France, judgment of 10 April 2018. 82

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3.5  Airbnb Ireland The CJEU will be given huge opportunities to dispel all the doubts expressed above in the forthcoming Airbnb Ireland case.84 At the time of writing this book, the CJEU has not yet ruled in the case and the opinion of the AG has only been recently delivered. There are some elements to be taken into account to argue in favour of the adoption of the previous approach or, by contrast, in favour of a reconsideration of some elements. Similar to Elite Taxi, in Airbnb Ireland, an association of real estate brokers based in Paris challenged the fact that Airbnb advertises rental opportunities online without having been duly authorized to do so through a professional card. Its ­delivery is subject to the fact that an applicant has a demonstrable professional qualification, provide financial guarantees and have professional liability insurance. Of course, Airbnb and, above all, its hosts have none. Airbnb contests that these restrictions are not applicable to the extent that its activities fall within the scope of the e-Commerce Directive. The judicial pattern is clear while also fitting within the narrative adopted in Chaps. 2 and 3. Against this background, some preliminary observations can be advanced,85 also in light of the opinion of AG Szpunar. First, Airbnb operates in totally different markets with respect to Uber, while the factual circumstances of the case are essentially the same insofar as an incumbent laments that a newcomer does not comply with the nationally imposed conditions. Although those conditions are not discriminatory in nature, it is evident that they prevent, directly or indirectly, actually or potentially, the penetration of any newcomer in a given economic sector. Whether those requirements are necessary, suitable and, in essence, proportional to pursue some not-yet-better specified overriding reasons of public interest is yet to be ascertained. A lot depends on the judicial strategy used by the two litigants, but it seems plausible to infer that much will be made of the struggle to convince the CJEU that Airbnb is solely a virtual market place, matching demand and supply, thus having no control whatsoever over hosts and guests—or, ultimately, not enjoying a pervasive one—in order to dismiss the claim that Airbnb provides the underlying service, i.e., accommodating people in a urban space. In this respect, it has been convincingly argued that this is the weakest point in the CJEU’s argumentation and worthy of attack by litigants. In particular, Uber has been deemed to be a so-called marketmaker, to the extent that it creates a new market for urban transport and, in this respect, commentators agree that this is the real turning point in the judgement of the CJEU. In essence, the fact that collaborative platforms offer composite services tells us nothing about the underlying service  Case C-390/18: Request for a preliminary ruling from the Juge d’instruction du tribunal de grande instance de Paris (France) lodged on 13 June 2018—Criminal proceedings against YA and Airbnb Ireland UC. 85  For a legal evaluation of Airbnb, see, in particular, Mak (2017), pp. 87–102. 84

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itself, which, as explained in Chap. 2, can take on multiple forms. Thus, following—or departing—from the two Uber judgements, the CJEU will be required to rule on whether Airbnb is a marketmaker not limited to matching demand and supply, but engaged in offering the underlying service as well. Moreover, although the CJEU in the two Uber cases ignored the Commission’s indication, it seems at least unlikely that it will also disregard its own reasoning. But this presents the opportunity to speculate on the development of the collaborative economy in the EU legal order and in the future development of the DSM. Should the CJEU decide to reiterate its legal reasoning, hence ruling that the e-Commerce Directive is not applicable to Airbnb, and that, basically, it provides an underlying service as well, this would bestow the responsibility to regulate short-­ term rental accommodations on municipalities. It would then be difficult to identify any EU competence in this, although, in principle, the matter could be resolved by reference to the increasingly broad internal market shared competence (Article 4(2) (a) TFEU) or the tourism supporting competence (Article 6(1)(d) TFEU). In any case, the EU has never exercised competence in the specific field of short-term rentals, so Member States retain their powers. Second, should the CJEU deem to take into account the peculiarities of Airbnb, as suggested, perhaps it will be deemed to benefit from the e-Commerce Directive. Although this outcome could be useful given the factual circumstances of the case, it would crack the principle of legal certainty in the field of the collaborative economy by opening up a Pandora’s box (of cases). In other words, this would legitimize the belief that hardly any scheme is suitable for encapsulating the collaborative economy, given that its assessment depends on how collaborative platforms develop their own business model. This problem is even more acute for Airbnb, since it recently allowed for the possibility to also book traditional hotel rooms/apartments while, for instance, Uber does not allow its users to get in touch with traditional taxi drivers. This hybridization should be addressed when trying to strike a balance between incumbents and newcomers, between internal market freedoms and legitimate domestic policy choices.

3.6  Conclusion The completion of the EU’s DSM is among the Commission’s political priorities. Yet, a smooth development of the collaborative economy has been somewhat sidelined in favour of other exigencies, most notably, the regulation of online platforms providing intermediary services and the abolition of roaming charges. It seems that the collaborative economy is still too complex to be properly tackled. This gives rise to a set of diverse problems, whose solutions has been essentially devolved to national jurisdictions and, eventually, to the CJEU. Whether these interpretative issues will ever be solved is a different question. What seems plausible so far is that a crystal clear, univocal judicial interpretation of the applicability of both primary and secondary law to the collaborative economy is essentially lacking,

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because it presupposes a quasi-infinite plethora of underlying services. Indeed, the CJEU reached the conclusion that Uber pertains to the field of transport and has to be regulated or even left unregulated accordingly. AG Szpunar argued that Airbnb should benefit from the liberalized regime of the e-Commerce Directive. Following this piecemeal and factual approach, nothing prevents each and any activity falling within the scope of a different framework. In addition, the residual scope of application of Article 56 of the TFEU, coupled with the limited field of application of the Services Directive, prevents the achievement of legal certainty. The fact that a collaborative economy is triangular in nature and that, at the same time, different modes of control and functioning reflect a different business model and a different composite service makes the applicability of both primary and secondary law difficult. Indeed, this interpretative operation has not been accomplished to date. This is especially so when one also considers other aspects, such as consumer protection (if any), employment relations (if any) and the applicability of competition law.

References Adamski D (2018) Lost on the digital platforms: Europe’s legal travails with the digital single market. Common Mark Law Rev 55(3):719–751 Aloni E (2016) Pluralizing the sharing economy. Wash Law Rev 91(4):1397–1459 Ashiagbor D (2014) Article 15. Freedom to choose an occupation and right to engage in work. In: Peers S, Hervey T, Kenner J, Ward A (eds) The EU Charter of Fundamental Rights. A commentary. CH Bec, Hart, Nomos, Portland, pp 423–435 Barnard C (2008) Unravelling the Services Directive. Common Mark Law Rev 45(3):323–394 Bartl M (2015) Internal market rationality, private law and the direction of the Union: resuscitating the market as the object of the political. Eur Law J 21(5):572–598 Bell M (2012) Between flexicurity and fundamental social rights: the EU directives on atypical work. Eur Law Rev 37(1):31–48 Bently L, Burrell R (1997) Copyright and the information society in Europe: a matter of timing as well as content. Common Mark Law Rev 34(6):1197–1227 Berke D (2016) Products liability in the sharing economy. Yale J Regul 33(2):603–653 Brownsword R (2017) The e-Commerce Directive, consumer transactions, and the digital single market  – questions of regulatory fitness, regulatory disconnection and rule redirection. In: Grundmann S (ed) European contract law in the digital age. Intersentia, Cambridge, pp 165–204 Busch C, Schulte-Nölke H, Wiewiórowska-Domagalska A, Zoll F (2016) The rise of the platform economy: a new challenge for EU consumer law? J Eur Common Mark Law 5(1):3–10 Catchpole J (2001) The regulation of electronic commerce: a comparative analysis surrounding the principles of establishment. Int J Law Inform Technol 9(1):1–20 Cauffman C (2016) The Commission’s European agenda for the collaborative economy – (too) platform and service provider friendly? Eur Common Mark Law 5(6):235–243 Codagnone C, Abadie F, Biagi F (2016) The future of work in the sharing economy: market efficiency and equitable opportunities or unfair precarisation? EU Commission JRC Colangelo G, Maggiolino M (2018) ISPs’ copyright liability in the EU digital single market strategy. Int J Law Inform Technol 26(1):142–159 Davies G (2007) The services directive: extending the country of origin principle, and reforming public administration. Eur Law Rev 32(2):232–245

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De Baere G (2004) Is this a conflict of rule which I see before me? Looking for a hidden conflict rule in the principle of origin as implemented in primary European Community law and in the “Directive on Electronic Commerce”. Maastricht J Eur Comp Law 11(3):287–319 De Franceschi A (2018) Uber Spain and the “identity crisis” of online platforms. Eur Common Mark Law 7(1):1–4 Delimatsis P (2010) “Thou shall not… (dis)trust”: codes of conduct and harmonization of professional standards in the EU. Common Mark Law Rev 47(4):1049–1087 Dermine E (2018) Liberté professionnelle et droit de travailler. In: Picod F, Van Drooghenbroeck S (eds) Charte des droit fondamentaux de l’Union européenne. Commentaire article par article. Bruylant, Brussels, pp 325–348 Enchelmaier S (2011) Always at your service (within limits): the ECJ’s case law on Article 56 TFEU (2006–2011). Eur Law Rev 36(5):615–650 Everson M, Gonçalves RC (2014) Article 16. Freedom to conduct a business. In: Peers S, Hervey T, Kenner J, Ward A (eds) The EU Charter of Fundamental Rights. A commentary. CH Bec, Hart, Nomos, Portland, pp 437–463 Farah Y (2009) Electronic contracts and information society services under the e-Commerce Directive. J Internet Law 12(12):3–14 Finck M (2018) Digital co-regulation: designing a supranational legal framework for the platform economy. Eur Law Rev 43(1):47–68 Geradin G (2015) Online intermediation platforms and free trade principles – some reflections on the Uber preliminary ruling case. CPI 11(1):1–10 Giubboni S (2018) Freedom to conduct a business and labour law. Eur Const Law Rev 14(1):172–190 Grosheide E, Barenberg M (2016) Minimum fees for the self-employed: a European response to the “uber-ized” economy? Columbia J Eur Law 22(2):193–236 Hatzopoulos V (2008) Assessing the Services Directive (2006/123/EC). Cambridge Yearb Eur Legal Stud 10(1):215–261 Hatzopoulos V (2012) Regulating services in the European Union. Oxford University Press, Oxford Hatzopoulos V (2013) The Court’s approach to services (2006–2012): from case law to case load? Common Mark Law Rev 50(2):459–501 Hatzopoulos V (2018a) The collaborative economy and EU law. Hart, Oxford Hatzopoulos V (2018b) La première prise de position de la Cour en matière d’économie collaborative. Rev trim droit eur 13(1):273–285 Hatzopoulos V, Roma S (2017) Caring for sharing? The collaborative economy under EU law. Common Mark Law Rev 54(1):81–128 Havu K (2017) The EU digital single market from a consumer standpoint: how do promises meet means? Contemp Read Law Soc Justice 9(2):146–183 Hultmark Ramberg C (2001) The e-Commerce Directive and formation of contract in a comparative perspective. Eur Law Rev 26(5):429–450 Jackobsen SS (2010) Mobile commerce and ISP liability in the EU.  Int J Law Inform Technol 19(1):29–52 Janczuk-Gorywoda A (2016) Online platforms as providers of transnational payments law. Eur Rev Priv Law 24(2):223–251 Leonard T (2018) Article 16. Liberté d’entreprise. In: Picod F, Van Drooghenbroeck S (eds) Charte des droit fondamentaux de l’Union européenne. Commentaire article par article. Bruylant, Brussels, pp 349–368 Lopez-Tarruella A (2001) A European Community regulatory framework for electronic commerce. Common Mark Law Rev 38(6):1337–1384 Lynksey O (2017) The Europeanisation of data protection law. Cambridge Yearb Eur Legal Stud 19(1):252–286 Mak V (2017) Regulating online platforms – the case of Airbnb. In: Grundmann S (ed) European contract law in the digital age. Intersentia, Cambridge, pp 87–102

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Mortelmans K (1998) The common market, the internal market and the single market: what’s in a market? Common Mark Law Rev 35(1):101–136 Mostacci E, Somma A (eds) (2016) Il caso Uber. La sharing economy nel confronto tra common law e civil law Egea, Milan Pearce G, Platten N (2000) Promoting the information society: the EU directive on electronic commerce. Eur Law J 6(4):363–378 Peers S (2013) Equal treatment of atypical workers: a new frontier of EU law? Yearb Eur Law 32(1):30–56 Prassl J (2015) Business freedoms and employment rights in the European Union. Cambridge Yearb Eur Legal Stud 17(1):189–209 Rogers B (2015–2016) The social costs of Uber. Univ Chicago Law Rev Dialogue 82:85–102 Roth WH (2017) Mutual recognition. In: Koutrakos P, Snell J (eds) Research handbook on the law of the EU’s internal market. Edward Elgar, Cheltenham, pp 427–459 Schammo P (2013) Home country control with consent: a new paradigm for ensuring trust and cooperation in the internal market? Cambridge Yearb Eur Legal Stud 15(1):467–501 Schepisi C (2017) Piattaforme digitali e caso Uber dinanzi alla Corte di giustizia: servizio di trasporto urbano o servizio della società dell’informazione? Osservatorio europeo Dir Un Eur, 1–17 Simon P (2017) Uber saisi par le droit du marché intérieur. Rev aff eur 28(3):521–532 Smorto G (2017) Critical assessment of European agenda for the collaborative economy. In-depth analysis for the IMCO Committee IP/A/IMCO/2016-10, PE 595.361 Snell J (2010) The notion of market access: a concept or a slogan? Common Mark Law Rev 47(2):437–472 Sorensen MJ (2016) Private law perspectives on platform services. J Eur Common Mark Law 5(1):15–19 Twigg-Flesner C (2016) Disrupting technology-disrupted law? How the digital revolution affects (contract) law. In: De Franceschi A (ed) European contract law and the digital single market. The implications of the digital revolution. Intersentia, Cambridge, pp 19–48 Van Cleynenbreugel P (2017) Le droit de l’Union européenne face à l’économie collaborative. Rev trim droit eur 12(4):697–722 Walden I (2001) Regulating electronic commerce: Europe in the global economy. Eur Law Rev 26(6):529–547 Weatherill S (2017a) The several internal markets. YEL 36(1):125–178 Weatherill S (2017b) The internal market as legal concept. Oxford University Press, Oxford Weatherill S (2018) The principle of mutual recognition: it doesn’t work because it doesn’t exist. Eur Law Rev 43(2):224–233 Wyman KM (2017) Taxi regulation in the age of Uber. N Y Univ J Legis Public Policy 20(1):1–100

Chapter 4

Consumer Protection

Abstract  Consumer protection is one of the core areas in which the collaborative economy is posing unprecedented challenges to national and supranational regulators. In a typical collaborative economy transaction, it is extremely difficult to correctly identify the intent and the personal characteristics of each party and, eventually, whether one of them is acting in a professional capacity. This, in turn, could undermine legal protection as well as legal certainty for all the parties involved. Chapter 4, thus, investigates whether the European Union consumer acquis is applicable in a collaborative economy triangular relation by exploring the possibilities offered by the Unfair Terms Directive, the Unfair Commercial Practice Directive, the Consumer Rights Directive and the e-Commerce Directive. These aspects will be linked to the concept of trust in an online environment to the extent that rate and review mechanisms—as self-regulatory tools directly adopted by online platforms—could be useful instruments to distinguish between a consumer and a trader/professional. In conclusion, Chap. 4 evaluates the brand-new New Deal for Consumers adopted by the European Commission to verify whether it would actually confer a more thorough form of protection in the collaborative economy. Keywords  Online platforms · Consumer protection · Professional and Non-­ professional service providers · Users and consumers · Legal certainty

4.1  Introduction The protection of consumers has been one of the key areas to guarantee the smooth functioning of the internal market of the European Union (EU) since the dawn of the European Economic Community.1 Going back to basics, in Cassis de Dijon,2 the  Howells and Wilhemson (2003), pp.  370–388; Stuyck (2000), pp.  367–400; Unberath and Johnston (2007), pp. 1237–1284; Weatherill (2011), pp. 837–868. 2  Case 120/78, Rewe-Zentral AG v Bundesmonopolverwaltung für Branntwein, judgment of 20 February 1979. 1

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German authorities argued that the different legal regimes applicable to alcoholic beverages below and above a certain percentage were justified to protect consumers and, most notably, their health. The Court of Justice of the European Union (CJEU) readily accepted that consumers must be protected against certain risks; whether this degree of protection could legitimately hinder the free movement of goods is a different aspect to be resolved by reference to the principle of proportionality. Consumer protection, hence, unstoppably arose as a goal of EU legislature leading, over the course of time, to a large body of secondary legislation singling out unfair commercial practices, unfair terms and consumers’ rights, electronic commerce etc. This coherent body of secondary legislation, on the one hand, heralded consumer protection as a success story, while, on the other, instilled in consumers, day by day, the idea of safety, thereby favouring intra-community trade. The collaborative economy is shaking the foundations of this scheme.3 The bulk of consumer protection is grounded upon the simplistic and ontological dichotomy between a consumer and a professional/trader: intuitively, while the former participates in a transaction as the weaker party solely interested to satisfy his/her personal needs, the latter is in a stronger position and makes a living out of his/her economic activity. The juxtaposition between the two is definite and evidently entails a rigid, legal regime which empowers consumers to acquire and, eventually, enforce certain rights: cooling-off periods, off-premises guarantees, redress in cases of the unfitness for use of products etc. These elements, although remarkable, are totally irrelevant when the collaborative economy comes into play. It has been posited that the triangular nature of the collaborative economy prevents the correct identification of consumers and traders/professionals to the extent that, on the one hand, it might be unclear whether somebody is acting in a professional or in a non-professional capacity; on the other, it is still doubtful whether the counterparty to claim rights against is the service provider or the online platform. Put it simply, three different scenarios can be envisaged. First and foremost, a service provider and a user are both acting in a non-­ professional capacity, in turn creating a peer-to-peer (P2P) relation; therefore, assessing who should be protected against whom becomes uncertain. In this respect, it has been argued (infra) that collaborative platforms should be deemed liable of a vicarious liability, at least in the most serious cases. Secondly, a service provider can act in a professional capacity, thus empowering a user in relation to the full bulk of EU consumer protection. However, no collaborative economy service providers are required to disclose their personal characteristics; consequently, in reality, a user has no clue as to the intent, motive, professional nature—and even professional organizations—of his/her counterparty. Certainly, valid indicators can be obtained by rate-and-review (R&R) systems and other users’ comments, but this externalizes the responsibility to disclose personal characteristics. Moreover, those systems, although greatly influential, are no conducive at all. Thus, protection is afforded in theory, but is ineffective in practice.

 Busch et al. (2016), pp. 3–10.

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A third scenario, detached from the aforementioned two, pertains to the service provider and his/her relationship with a collaborative platform. Here again, whether he/she acts in a professional or non-professional capacity is unclear. However, the former situation has recently informed a legislative proposal from the Commission aimed at regulating relationships between platforms and professional providers4 (P2B Proposal). Chapter 4 intends to pave the way for a discussion on the role of consumer protection in the collaborative economy by indulging in the difficulties in relying on established legal categories and notions. In turn, the notions of consumers and service providers are discussed vis-à-vis collaborative platforms. In this fashion, it is posited that, at least in this specific domain, the rigidity of the aforementioned juxtaposition has to be relaxed, thereby endorsing the most innovative results of behavioural studies. On these premises, Directives 2011/835 (Consumer Rights Directive), 2005/296 (Unfair Commercial Practices [UCP] Directive), 2000/317 (e-Commerce Directive) and 1993/138 (Unfair Terms Directive) will be analysed and subsequently linked with Directive 2013/119 on alternative dispute resolutions (ADR Directive) and Regulation 524/201310 on consumer online dispute resolution mechanisms (ODR Regulation). The potential inapplicability of existing EU consumer protection law leaves collaborative economy transactions in a vacuum, frustrating the legitimate expectations about the legal certainty of service providers as well as users. This need is filled by the concept of trust. Its axiological bases are premised on the fact that, again, relying on the origin of the sharing economy,11 collaborative platforms trans Proposal for a Regulation of the European Parliament and of the Council on promoting fairness and transparency for business users of online intermediation services, COM(2018) 238 final. 5  Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council, OJ L 304, 22.11.2011, pp. 64–88. 6  Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’) OJ L 149, 11.6.2005, pp. 22–39. 7  Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’) OJ L 178, 17.7.2000, pp. 1–16. 8  Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts OJ L 95, 21.4.1993, pp. 29–34. 9  Directive 2013/11/EU of the European Parliament and of the Council of 21 May 2013 on alternative dispute resolution for consumer disputes and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC (Directive on consumer ADR) OJ L 165, 18.6.2013, pp. 63–79. 10  Regulation (EU) No 524/2013 of the European Parliament and of the Council of 21 May 2013 on online dispute resolution for consumer disputes and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC (Regulation on consumer ODR) OJ L 165, 18.6.2013, pp. 1–12 11  Berke (2016), pp.  603–653; Laughlin (2017), pp.  197–217; Scheiwe Kulp and Kool (2015), pp. 179–230; Ter Huurne et al. (2017), pp. 485–498. 4

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fer to their users the task of evaluating service providers and/or peers. Whereas, at the beginning, this exercise was essentially intended to recommend somebody else’s couch, driving style or drills, now, in a collaborative economy environment, R&R are essential features of every transaction. Users tend to trust service providers with numerous and, possibly, positive R&R. These aspects, in turn, confer an atypical market structure on collaborative platforms: on the one hand, service providers are jealous of their reputation and know it has distinct economic value; on the other, platforms are jealous too of their performance, somewhat hindering migration from one platform to another. So, what was born as non-commercial value now becomes an essential element, capable of making a difference in economic terms. Further, the accumulation of R&R makes it more and more difficult for newcomers to acquire their own reputation and competing against incumbents. A possible way out of this scheme is by relying on the principle of good faith, which is the only one unquestionably applicable to each and every type of transaction. Chapter 4 concludes by arguing that consumer protection in the collaborative economy has to be understood in a different light. Consumers no longer are the infamous individuals that must be protected as such: rather, they have to be protected through transparency, not through a massive flow of information they cannot decipher. Accepting terms and conditions upon registration on a given collaborative platform does not inform them about rights and obligations. By contrast, a decisive trust-building strategy would clearly and unequivocally disclose the identity and the nature of the counterparty. This could be enough to guarantee, as a matter of fact, a better level of consumer protection. Indeed, consumer rights are already there; in a collaborative economy environment, they are simply not visible. For this purpose, the recently adopted New Deal for Consumers12 can play an interesting role.

4.2  T  he Conundrum of Consumer Protection in the Collaborative Economy Consumer protection is a long-standing essential, even quasi-constitutional, element of the EU integration process.13 To start with, it belongs to the field of shared competences according to Article 4(2)(f) of the Treaty on the Functioning of the European Union (TFEU) while Article 12 TFEU expressly states that ‘consumer protection requirements shall be taken into account in defining and implementing other [emphasis added] Union policies and activities’. The overarching importance of consumers also emerges in respect of agricultural markets (Article 40 TFEU), as a possible derogation to competition rules applicable to undertakings (Articles 101(3) and 102(b) TFEU) and to State aid (Article 107(2)(a) TFEU). Of course, a high level of consumer protection has to be taken into account when the Commission  Communication from the Commission to the European Parliament, the Council and the European Economic and Social Committee. A New Deal for Consumers COM(2018) 0183 final. 13  Verheyen (2018), pp. 119–140. 12

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proposes harmonization measures according to Article 114 TFEU.  Article 169 TFEU refers back to Article 114 TFEU while guaranteeing, in turn, that Member States can maintain or introduce more stringent measures. Finally, Article 38 of the Charter of Fundamental Rights of the European Union (the Charter) repeats that ‘Union policies shall ensure a high level of consumer protection’,14 squaring the circle of the toolkit that the EU can use. This fully-fledged arsenal of primary law provisions has empowered the EU to legislate in an extremely broad manner, covering almost all aspects of consumer law and undisputedly achieving full harmonization in this field.15 So, nowadays, there is at least one instrument for any aspect of consumer protection, from electronic commerce to pre-contractual information, from alternative and online dispute resolutions16 to abusive clauses, from off-premises contracts to travel insurance, the list goes on.17 Consumer protection is based on the ontological assumption that consumers are weaker than sellers or traders. This stems, on the one hand, from information asymmetries and, on the other, from the fact that consumers allegedly are easily deceived by, for instance, aggressive (tele)marketing techniques, predatory prices, false discounts and a plethora of illegitimate behaviours. To restore equilibrium in the internal market and to rebalance a consumer-professional ill-based relationship, the EU legislature has been, is and will be heavily reliant on compulsory information and disclosure obligation. In this way, an average, circumspect and well-­informed consumer can fully benefit from the EU internal market.18 For our purposes, however, it is difficult to make the fluidity of the collaborative economy fitting within the granitic pattern of consumer protection. In other words, the fact that in a triangular collaborative relationship it is unclear whether a service provider is acting in a professional capacity makes it unpredictable to ascertain whether a user is to be deemed a consumer. Legal certainty dictates that such situations must be avoided. Consumers must be aware of their rights while, at the same time, businesses must be aware of their obligations. This scheme has been profoundly criticized by behavioural studies aimed at ascertaining whether newer forms of protection can be implemented in the EU.19 Amongst the major criticisms that behavioural studies have put forward against the approach taken by the EU legislature, there is the so-called no-read attitude. To put it simply, why should an average, reasonably circumspect consumer read tons of pages singling out rights and obligations? In fact, he/she is not able to grasp properly its content while, at the same time, being interested solely in obtaining the wished product or service. Moreover, the highly general, ideal type is questioned  Weatherill (2014), pp. 1005–1026.  Mak (2009), pp. 55–73. 16  Cortés and Lodder (2014), pp. 14–38. 17  For list focused on the Digital Single Market, see Havu (2017), pp. 146–183. 18  Dani (2011), pp. 362–384; Schüller (2012), pp. 123–142. 19  Nordhausen Scholes (2012), pp. 297–324; Sibony and Helleringer (2017), pp. 607–646; Sibony and Helleringer (2015), pp. 209–233. 14 15

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and questionable to the extent that it is posited that an average and fully circumspect consumer does not exist at all.20 Behavioural studies also criticize the time frame of information. It is a common experience that information is given at the end of a purchase process, such as, a cooling-off period and the right to withdraw. For instance, the process for reserving accommodation on Airbnb starts by searching for accommodation in a given place at a given date, but all the necessary information is provided at the time of paying. Moreover, there is a striking difference between purchasing a book on Amazon or reserving a hotel room on Booking.com and relying on Airbnb. In the first two cases, online platforms make it clear from the outset that the user is redirected to a professional trader or seller, responsible for the transaction and, ultimately, for the fitness of the good or service. By contrast, on a collaborative platform, this process is not crystal clear thus, as highlighted above, jeopardizing users and keeps transactions in a legal vacuum. A partial solution to this problem can be found in R&R mechanisms. However, this is not sufficient. For instance, although it is true that an Airbnb host having a high level of positive reviews or an Uber driver with dozens of stars is reliable, this is not telling the user anything about their professional capacity. Yet, this can be a potential indicator to consider. In other words, somebody having hundreds of reviews is perhaps no longer a peer but somebody who is exploiting a collaborative platform in a professional manner. Therefore, under such a hypothesis, users should know this, at least for the sake of legal certainty. The applicability of the consumer acquis in a collaborative economy environment necessarily entails the correct identification of the three parties involved, that is, a potential consumer/user against a potential professional disguised as a mere service provider acting as a peer. Whether collaborative platforms play an active role in this battle or whether they should stay aside, in turn, depends on how they set terms and conditions with the aforementioned two actors. Again, the situation is not easy to grasp but could respond to the following scenarios: (1) users are protected against platforms if service providers are not acting in a professional capacity; (2) users are protected against service providers if they are acting in a professional capacity; (3) non-professional service providers are protected against platforms. To understand correctly these three overlapping and intertwined dimensions, we now turn our attention again to the role and notion of service providers, users and online platforms.

 Different rules are applicable to particularly vulnerable consumers, see Waddington (2013), pp. 757–782. 20

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4.2.1  The Notion of Consumers in the Collaborative Economy For a long time, the CJEU has embraced the notion of an average, well circumspect and well-informed consumer21; one that is able to make rational choices and deserves protection. To facilitate one’s decision-making process, EU secondary law mandates professionals to disclose relevant information. As anticipated above, behavioural studies challenge this assumption, stressing that overwhelming information cannot simply be appropriately processed. Traditionally, a consumer is a natural person acting outside a business activity while, conversely, a professional is acting for the purposes of his/her business. This consolidated dichotomy, coupled with a rather paternalistic approach, is profoundly shaken by the advent of the collaborative economy and is no longer suited to depicting reality.22 Therefore, different observations have to be made. The fact that anybody can be at once a consumer and a professional basically jeopardizes legal certainty and negatively affects legal predictability. In other words, in a typical triangular collaborative transaction, it is impossible to know in advance whether a service provider is a professional. This, in turn, makes it impossible to know whether a user is entitled to be protected and, possibly, against whom and for which acts or omissions. This resembles a clear case of market failure due to information asymmetries, one that needs to be corrected or, better still, rebalanced through disclosure and, ultimately, through intelligible, clear and quick information. Hence, theoretically speaking, it would be sufficient to oblige online platforms to make their service providers disclose whether they are acting in a professional capacity. This solution is inefficient for several reasons. First, according to the principle of legality, to impose something on somebody, there is the need for a (legislative) act. At present, however, there are no such acts in EU law. Second, imposing a positive obligation on service providers via online platforms is difficult due to the position of the latter; as long as they deem themselves as pure matchers of demand and supply, they cannot impose such a burdensome obligation on their service providers, otherwise it would be clear that online platforms exercise penetrating powers of control over them. Third, to impose such a positive obligation would entail setting out clear-cut criteria to assess under which conditions a service provider is acting in a professional capacity. Essentially, as long as there is no professional, there are no consumers either. Their relation is a genuine P2P one; there is no consumer protection since the counterparty is not a professional. Alternatively, a user can claim protection against the collaborative platform which in turn could be considered responsible for vicarious liability.23 This solution is theoretically sound, yet difficult to put in place. It is  Case C-470/93, Verein gegen Unwesen in Handel und Gewerbe Köln e.V. v Mars GmbH, judgment of 6 July 1995; Case C-210/96, Gut Springenheide GmbH and Rudolf Tusky v Oberkreisdirektor des Kreises Steinfurt - Amt für Lebensmittelüberwachung, judgment of 16 July 1998. 22  Illescas Ortiz (2016), pp. 111–118; Quarta (2017), pp. 667–681; Smorto (2018), pp. 423–443. 23  Hatzopoulos (2018), p. 23. In terms of contractual liability, see Maultzsch (2018), pp. 209–240. 21

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hardly imaginable that a stand-alone consumer would start a lawsuit against a collaborative platform claiming its vicarious liability for the unfitness for purpose of a room rented out via Airbnb. In addition, collaborative platforms tend to exploit, at best, online and alternative dispute resolution mechanisms, thereby avoiding long and expensive judicial procedures before national judges, while, on the other hand, users are somewhat reluctant to challenge a giant corporation for a small amount of money. The notion of consumers is, therefore, neither telling or even useful, if there is no professional counterparty. Legal protection is thus entrusted to collaborative platforms.

4.2.2  T  he Notion of Professional or Trader in the Collaborative Economy The notion of professional presents several intricacies too. Whereas it could be simple to determine when and to what extent an individual is acting for the purposes of his/her business in a non-online environment, the situation radically changes in a collaborative transaction. Again, EU consumer protection law has been developing by taking into account the salient feature of a typical professional, somebody who gladly accepts to be labelled as such who accepts the risks (and the benefits) of his/ her own economic activity. Although professional traders and professional service providers are subject to strict legislative obligations—suffice it here to mention disclosure duties and the nullity of abusive and vexatious clauses—compliance is also an indicator of reliability. In a proper market economy, consumers have to trust businesses while, at the same time, the latters make trust a distinctive element of their reputation and attribute value to it. The collaborative economy does not function according to these parameters; furthermore, they have radically evolved since the inception of the (then) sharing economy. Whereas, at the beginning, it was out of community spirit to share an idle asset and capitalize it, nowadays, service providers are no longer in their infancy; ‘innocent “co-consumption” thus become a B2C transaction’.24 Many Airbnb hosts present themselves as ‘super hosts’, having hundreds of stars and positive reviews. It hence becomes difficult to support the assumption that they are sharing their idle room on an occasional basis. Yet, in legal terms, they are not professionals. Further, as discussed above, if they are not professionals, they cannot be the object of regulatory burdens. That does not entail that they are free from any constraints whatsoever since, to provide their services via a collaborative platform. They must agree to terms and conditions singling out their obligations. This opens up a different set of observations.

24

 Meller-Hannich (2016), pp. 119–134, 127.

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As highlighted above, collaborative platforms cannot legally compel service providers to declare themselves professionals on the basis of terms and conditions. But, on a different level, if a service provider is a non-professional, intuitively, he/she should be deemed a consumer vis-à-vis the collaborative platform. In other words, it may very well happen that a service provider can claim his/her rights, especially considering that collaborative platforms can impose vexatious and abusive clauses, for instance, an exclusion of liability or a choice of jurisdiction and/or of applicable law. What emerges is a striking contradiction: users cannot claim consumer protection against service providers given that they are not professionals; at the same time, they can claim to be consumers against collaborative platforms, thereby triggering the whole bulk of EU consumer protection law. Naturally, much depends on how collaborative platforms design their relationship vis-à-vis service providers and users. By contrast, a different situation takes place when a professional trader/service provider clearly exploits an online platform for the purposes of his/her business. This is exactly what the P2B Proposal seeks to solve. The P2B Proposal hence addresses this kind of legal relationship while Article 2(1) defines business user ‘any natural or legal person which through online intermediation services offers goods or services to consumers for purposes relating to its trade, business, craft or profession’. This definition reflects the consolidated approach to professionals. Article 2(2) refers to online intermediation services, such as those falling within the scope of Directive 2015/1535 (Information Society Services Directive)25 and allowing business users to offer goods or services to consumers, while those services are provided to business users on the basis of a contractual relationship. The P2B relation is thus undisputed. The goal to protect business users is singled out in the explanatory memorandum and in the preamble to the P2B Proposal. Starting from the assumption that the digital market is fragmented and dominated by a handful of platforms and thousands of small merchants, the P2B Proposal explicitly covers online e-commerce marketplaces, online software stores and online social media. Small merchants highlighted a lack of trust, unilateral changes of terms and conditions, a lack of transparency, the removal of goods and services with no reasons (so-called delisting) and unclear access to data. The Commission recalls that there is no EU legislation in this field and that an intervention would result in beneficial effects, both for online platforms and for business users. Based on Article 114 TFEU, the P2B Proposal essentially sets out rules for the contractual relationship between online platforms and business users protecting the latter. For instance, Article 3 stipulates that terms and condi Directive (EU) 2015/1535 of the European Parliament and of the Council of 9 September 2015 laying down a procedure for the provision of information in the field of technical regulations and of rules on Information Society services, OJ L 241, 17.9.2015, p. 1–15. The Information Society Services Directive repealed Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations, OJ L 204, 21.7.1998, pp. 37–48. 25

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tions should be drafted in a clear and unambiguous manner, be easily accessible and state the objective grounds on which an operator can be suspended.26 Therefore, Article 4 imposes the duty to state the reasons for such a suspension. Article 5 dictates that terms and conditions have to single out the parameters determining the ranking system, since users will find a business operator according to the ranking proposed by search engines. Article 9 also imposes the creation of an internal complaints system. The P2B Proposal shows how the EU legislature is keen on intervening in the completion of the Digital Single Market (DSM).27 However, it is perhaps striking to observe that one of the first attempts to regulate online platforms does not take into account consumers, but is addressed to business users. Although not explicitly stated, a possible reason is that it is naively believed that the EU consumer protection acquis is sufficient. The P2B Proposal essentially protects the weakest party in a business-to-business (B2B) relation. From this, two interim conclusions can be drawn. First, it is not unanimously accepted that, in an online environment, consumers are always the weakest party. Second, the need to protect business users also seems to be, at least indirectly, aimed at consumer welfare. Thus, it is obvious that, if somebody has paid to be the first in the ranking offered by a dedicated search engine, consumers should be aware of this too. This demonstrates the importance of the notion of well-­informed, diligent and circumspect consumers. The legislative technique adopted to ensure P2B fairness is thus important in a purely online environment but does not dispel criticisms if and when applied to collaborative platforms. Indeed, service providers are not always professionals; consequently, they cannot be protected against platforms. On the other hand, consumers cannot be protected since they are not professionals. The conundrum is still unsolved, but further elements can be traced in the role of online platforms.

4.2.3  The Role of Online Platforms The role of online platform constitutes the sole way to reach an acceptable balance amongst the different needs and means of protection of the weaker party. The collaborative triangle has to be redrawn, this time in terms of powers and influence. Thus, consumers should be protected against professionals (if any) according to the bulk of EU consumer law; otherwise, collaborative platforms would be held to be vicariously liable. In turn, non-professional service providers should be considered consumers vis-à-vis collaborative platforms; therefore, they would enjoy the same guarantees stemming from EU consumer protection. Finally, if service providers are professionals, they will be protected against collaborative platforms through the P2B Proposal.  It remains doubtful whether terms and conditions are to be interpreted as having contractual force, Jacek Palka (2017), pp. 135–161. 27  Adamski (2018). 26

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Collaborative platforms, once more, enjoy extensive powers to regulate all the aspects of a collaborative transaction, both in the demand and in the supply chain. Yet again, interpretative elements to achieve an acceptable degree of legal certainty are contained in a Commission’s communication on the collaborative economy (the Agenda)28 and in the critical assessment thereof.29 The Agenda indicates some criteria to ascertain whether an online platform’s user is acting in a professional capacity or as a consumer. In particular, the frequency of the service, the profit-seeking motive and the level of turnover must be taken into account. As will be seen in the following paragraphs, the case law of the CJEU has already tackled these concepts, endorsing a case-by-case approach. The critical assessment, in turn, distinguishes two subcategories: (1) when a collaborative platform is a service provider; (2) when a service provider is a professional. In other words, as stated in the previous chapters, the problem is always a correct understanding of the triangular relationship. As long as service providers are not acting in a professional capacity, consumer law is inapplicable; therefore, users will be deprived of the protections otherwise afforded by EU law. As discussed, this situation generates uncertainty; yet, this has not prevented the proliferation of collaborative platforms and the steady growth in transactions for the simple reason that, on the one hand, people tend to trust their peers and, on the other, online platforms have succeeded in exploiting this legal vacuum. In the same vein, the Organisation for Economic Co-operation and Development (OECD) acknowledges that the central role in guaranteeing consumer protection should be entrusted to online platforms to the extent that, since they usually exercise different degrees of control and influence over service providers and users, they are the best placed body to do so.30 The OECD calls for a shared responsibility of good practices in the collaborative triangle as a whole, thereby guaranteeing, amongst others, effective and reliable R&R mechanisms. Being at the apex of the triangle, much depends on how collaborative platforms discipline their own relations with service providers and with users. Again, depending on this, which, obviously, is a legitimate business strategy, it becomes necessary to distinguish between the various actors in consumer protection.

4.2.4  Protecting Who from Whom? In a collaborative economy environment, it is still problematic to determine who should be protected, and from whom. The fluid nature of the collaborative economy prevents the applicability of rigid schemes, such as that imposing a clear-cut definition of consumers and professionals. It seems that there are no possibilities by  Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of Regions. A European Agenda for the Collaborative Economy, COM(2016) 356 final. 29  Smorto (2017). 30  Organisation for Economic Cooperation and Development (OECD) (2016). 28

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which to overcome this impasse and fill this gap. Considering this fluidity and the inner characteristics of the collaborative economy, possible solutions can be identified in online dispute resolution mechanisms.31 The ODR Regulation is aimed at enhancing consumer confidence in the digital dimension of the internal market. This regulation creates a platform ‘facilitating the independent, impartial, transparent, effective, fast and fair ort-of-court resolution of disputes between consumers and traders online’ (Article 1 ODR Regulation). However, the scope of application is limited to business-to-consumer (B2C) contractual transactions, making it inapplicable to typical P2P collaborative economy ones. Further, the ADR Directive presents the same scheme, that is, it is applicable solely to B2C disputes.32 Furthermore, the P2B Proposal envisages out-of-court dispute resolution mechanisms in the form of mediation. It is then difficult to comprehend how to develop a sound scheme of protection. The EU legislature, correctly, put its best efforts into protecting consumers within a business relation, but it is still doubtful whether the same scheme could also be useful in P2P transactions; or, at least, it is accepted that there are no EU acts in this field, hence leaving the problem to national jurisdictions. National courts will have to confront EU law issues since it is plausible that at least one of the three parties is based in a Member State other from that where the jurisdiction has been located. In such a P2P dispute, therefore, private international law would be at stake, compelling judges to identify the applicable law and the correct jurisdiction.33 This might bring some inconsistencies due to the fact that, although there are no national acts implementing EU acts, EU law would always be at stake, therefore impinging on the right to an effective remedy according to Article 47 of the Charter. Furthermore, EU law could certainly play a role, given the presence of (at least) one cross-border element. Moreover, the CJEU has interpreted, in a broad way, the scope of application of the Charter, also in presence of national acts having a link with EU law.34

 Barral-Vinales (2012), pp. 82–98; Morais Carvalho and Campos Carvalho (2017), pp. 245–263.  Criticisms to the ADR Directive have been put forward by Davies and Szyszczak (2010), pp. 695–707; Luzak (2016), pp. 81–101; Storskrubb (2016), pp. 7–31. 33  Kindler (2016), pp. 173–186. 34  Joined cases C-411/10 and C-493/10, N.  S. (C-411/10) v Secretary of State for the Home Department and M. E. and Others (C-493/10) v Refugee Applications Commissioner and Minister for Justice, Equality and Law Reform, judgment of 21 December 2011; case C-607/10, Åklagaren v Hans Åkerberg Fransson, judgment of 7 May 2013; case C-206/13, Cruciano Siragusa v Regione Sicilia — Soprintendenza Beni Culturali e Ambientali di Palermo, judgment of 6 March 2014. 31 32

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4.3  Applying European Union Law to Online Transactions As a cornerstone of the smooth functioning of the internal market,35 consumer protection has been a central element in countless judgements of the CJEU, both directed at striking down non-discriminatory national barriers to the four economic freedoms36 or as a genuine measure to protect citizens, especially the most vulnerable.37 Consumer protection has so far acquired a place of such relevance in the architecture of the EU internal market that it has been invoked in regard to the most diverse economic activities, including recently in the field of the freedom to provide services with specific reference to health.38 Moreover, a reshuffle of Commission portfolios has dismantled the former Directorate General of Health and Consumers (now Directorate General for Health and Food Security), so that now consumer protection falls within the remit of the new Directorate General of Justice and Consumers. The vast majority of EU consumer law predates the Internet and has, consequently, been shaped by a business environment profoundly different from the current one.39 This does not mean that, for instance, unfair commercial practices were less aggressive or that unfair terms were less dangerous; it simply means that the image of the average, circumspect and well-informed consumer was different too. Therefore, the problem essentially pertains to the legal interpretations of new categories and new phenomena—a task requiring the intervention of the CJEU. In other words, would it be possible to apply old consumer protection rules to new phenomena starting from the assumption that legal categories are more and more blurred in a collaborative transaction? This section seeks to answer this question, offering an assessment of the Unfair Commercial Practice Directive, the Consumer Rights Directive, the e-Commerce Directive and the Unfair Terms Directive. Of course, all these acts have in common a rigid definition of consumers and traders/sellers, plausibly unfit to catch the specificities of the collaborative economy.

 Lastly, see Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of Regions. A European Consumer Agenda—Boosting Confidence and Growth, COM(2012) 225 final. 36  See, for instance, case 8/74, Procureur du Roi v Benoît and Gustave Dassonville, judgment of 11 July 1974; case C-315/92, Verband Sozialer Wettbewerb eV v Clinique Laboratoires SNC and Estée Lauder Cosmetics GmbH, judgment of 2 February 1994. 37  See case 382/87, R. Buet and Educational Business Services (EBS) v Ministère public, judgment of 16 May 1989. 38  For instance, case C-500/06, Corporación Dermoestética SA v To Me Group Advertising Media, judgment of 17 July 2008; case C-544/10, Deutsches Weintor eG v Land Rheinland-Pfalz, judgment of 6 September 2012; case C-157/14, Société Neptune Distribution v Ministre de l’Économie et des Finances, judgment of 17 December 2015. 39  Kilbey (2005). 35

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4.3.1  The Unfair Commercial Practice Directive The UCP Directive contributes to the proper functioning of the internal market and to achieving a high level of consumer protection.40 In doing so, it clearly distinguishes between a consumer and a trader: the former is ‘any natural person who, in commercial practices [...] is acting for purposes which are outside his trade, business, craft or profession’ (Article 2 (a) UCP Directive) while the latter being ‘any natural or legal person who [...] is acting for purposes relating to his trade, business, craft or profession and anyone acting in the name or on behalf of a trader’ (Article 2 (b) UCP Directive). This rigidity41 is unsuitable for catching the collaborative economy. Furthermore, as long as collaborative platforms claim to act as mere intermediaries, it cannot be counterargued that services providers are acting in their own name or on their behalf. However, there are some noteworthy elements to be taken further into account. First, the UCP Directive seeks to protect consumer economic interest by targeting commercial practices aimed at influencing transactional decisions which distort consumer economic behaviour. Amongst them, there are misleading omissions. Now, Article 2 (e) UCP Directive defines a distortion of consumer economic behaviour as ‘using a commercial practice to appreciably impair the consumer’s ability to make an informed decision’. Amongst the misleading actions under Article 6 of the same directive, letter l indicates the nature, identity, status and qualification of a trader. The same elements are listed in Article 7 UCP Directive regarding misleading omissions. Amongst the commercial practices which are in all circumstances considered unfair, Annex I, number 22, includes ‘falsely claiming or creating the impression that the trader is not acting for purposes relating to his trade, business, craft or profession, or falsely representing oneself as a consumer’. This may very well happen in a collaborative economy environment whereas a trader can act as a consumer shielded by a collaborative platform. A deeper perspective is taken in the guidance accompanying the UCP Directive42 (the Guidance). To start with, there are cases in which an online platform is a trader, which automatically triggers the applicability of the UCP Directive. Further, in this context, commercial practices must be informed by professional diligence and good faith in the specific field of activity. Regarding the collaborative economy, the Guidance clearly states that ‘with a view to avoid omitting material information, the collaborative economy platform should, under Articles 6(1)(f) and 7(1) and (2) of the UCPD, enable relevant third party traders to indicate to users that they are traders, and the platform should inform consumers whether and if so what criteria it  Garde (2012), pp. 118–146; Stuyck et al. (2006), pp. 107–152.  On the need to make this distinction more flexible, see Sibony (2014), pp. 901–941. 42  Commission staff working document SWD/2016/0163 final. Guidance on the implementation/ application of directive 2005/29/EC on unfair commercial practices accompanying the document Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of Regions. A comprehensive approach to stimulating cross-border e-commerce for Europe’s citizens and businesses. 40 41

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applies to select the suppliers operating through it and whether and if so what checks it performs in relation to their reliability’.43 Therefore, as long as service providers are traders and their counterparties are consumers, the UCP Directive will be applicable to commercial practices. However, the Guidance specifies that the mere fact that somebody offers goods or services through a collaborative platform is not sufficient to qualify him/her as a trader, but that this definition should be assessed on a case-by-case basis, by taking into account ‘whether an essential part of that person’s income stems from a given collaborative economy activity’.44 The UCP Directive has not yet been involved in collaborative economy litigation, so it is difficult to find cases that are analogically applicable to it. However, a useful precedent is the Kamenova case,45 where the nature of the resistant trader was at stake. In relation to the resale of watches over eight websites, Advocate General (AG) Szpunar argued that this is not sufficient to label somebody as a trader but that additional parameters have to be considered, namely, to establish whether the online platform sale was made in an organised manner and for profit; whether that sale occurs over a certain duration and with a certain frequency; whether the seller has a legal status which enables her to engage in commercial transactions, and to what extent the online sale is connected to the seller’s commercial activity; whether the seller is subject to VAT; whether the seller, acting in the name of a specific trader or on his behalf or through any other person acting in her name or on her behalf, received remuneration or an incentive; whether the seller purchases new or used goods with a view to selling them on, thus making that a regular, frequent and/or simultaneous activity in relation to her trade; whether the amount of profit generated on the sales confirms that the transaction made falls within the scope of a commercial activity, and/or whether the products for sale are all of the same type or value, in particular, whether the offer is focused on a limited number of products.46

The CJEU fully endorses this approach, adding that the list proposed by the AG is neither exhaustive nor exclusive. Therefore, arguably, to satisfy the notion of traders, national courts have to perform an overall assessment of all the conditions that generate allegedly unfair commercial practice. This evaluation is crucial for the collaborative economy. Although collaborative platforms can compel a service provider to declare himself/herself as a trader, this declaration is not sufficient per se to trigger the applicability of the UCP Directive. A final assessment will always be entrusted to national courts and possibly reach the CJEU via a preliminary reference according to Article 267 TFEU.

 Guidance, p. 119.  Guidance, p. 120. 45  Case C-105/17, Komisia za zashtita na potrebitelite v Evelina Kamenova, judgment of 4 October 2018. 46  Case C-105/17, Komisia za zashtita na potrebitelite v Evelina Kamenova, opinion of Advocate General Szpunar delivered on 31 May 2018, para. 51. 43 44

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4.3.2  The Consumer Rights Directive The Consumer Rights Directive lays down rules for distance and off-premises contracts, contributing to the creation of a high level of consumer protection in the internal market.47 Quite obviously, its scope of application concerns B2C transactions. In relation to the collaborative economy, only a couple of aspects need to evaluated. First, Article 3 (3) (k) excludes the applicability of the Consumer Rights Directive to passengers of transport services. Thus, in a classic Uber scenario, following the qualification given to it by the CJEU,48 neither the e-Commerce Directive nor the Consumer Rights Directive is applicable, thus leaving a passenger without any sort of protection. For what concerns, in general, collaborative economy platforms, the Consumer Right Directives prescribes to inform consumers about the identity of a trader. Apart from that, perhaps two provisions could be invoked in a collaborative economy environment. First, Article 19 compels Member States to prohibit traders from charging consumers additional costs in respect of a given means of payment. This situation can very well happen when a consumer, during the reservation procedure, is confronted with various payment options—which, in turn, often link to another platform—without him/her being aware of the differences between them. For the sake of transparency, it should be clear as to whether the second platform hides additional costs. Second, according to Article 21, a consumer has the right to contact the trader by phone without paying more.49 This aspect could be of certain relevance—albeit not yet explored—for collaborative platforms, especially in avoiding the risk that all decisions are made by an algorithm.

4.3.3  The e-Commerce Directive The e-Commerce Directive is the cornerstone of the judicial interpretation of disputes regarding the collaborative economy.50 As explained in the previous chapters, whereas the CJEU held that Uber’s functioning falls foul of the scope of application of the e-Commerce Directive, AG Szpunar opined that this scenario can be reversed in Airbnb Ireland.51 Essentially, much depends on the type of business a platform is engaged in. Hence, why is the e-Commerce Directive so important?  Regarding the appropriateness of this instrument to reach its goals, see Micklitz and Reich (2009), pp. 471–519; Weatherill (2012), pp. 1279–1318. 48  Case C-320/16, Criminal proceedings against Uber France, judgment of 10 April 2018; Case C-434/15, Asociación Profesional Elite Taxi v Uber Systems Spain, SL, judgment of 20 December 2017. 49  Case C-332/17, Starman Aktsiaselts v Tarbijakaitseamet, judgment of 13 September 2018; case C-568/15, Zentrale zur Bekämpfung unlauteren Wettbewerbs Frankfurt am Main eV v comtech GmbH, judgment of 2 March 2017. 50  Brownsword (2017), pp. 165–204. 51  Case C-390/18, Airbnb Ireland, opinion of Advocate General Szpunar of 30 April 2019. 47

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As the first commentators have pointed out,52 the e-Commerce Directive serves three main purposes: first, creating a level playing field for traders and sellers operating online; second, ensuring a high level of consumer protection; third, excluding a provider’s liability in the case of passive conduct, that is, when it cannot exercise any appreciable degree of control over the content and key elements of a transaction or of the elements stored.53 As a legal act aimed at completing the internal market, the e-Commerce Directive relies, for the identification of its coordinated fields, that is, domains in which the free movement of information society services has to be guaranteed, on the Information Society Services Directive. These elements have been taken into account in a stream of cases decided by the CJEU, coherently divided into two limbs. In the early Deutscher Apothekerverband eV54 case, which arose out of the context of restrictions on the free movement of goods, more specifically, medicinal products, the CJEU held that the protection of consumers’ health means that medicines subject to prescriptions cannot be sold online, despite the fact that they certainly fall within the coordinated scope of the e-Commerce Directive. On the contrary, medicines not subject to prescriptions do not encounter the same limitation. Seven years later, in Ker-Optica,55 the CJEU declared that selling contact lenses via a dedicated website does not fall within the coordinated field of the e-Commerce Directive, given that a medical, that is, a physical, assessment of a patient is required, thus making it lacking the requisite imposed by the Information Society Services Directive. This case law, focused on the interpretation of the two directives as well as of Articles 34-36 TFEU, confirms that the scope of application of the e-Commerce Directive is not unlimited and that not every online transaction is caught by it. Regarding the second limb, the CJEU has already had the chance to clarify the conditions according to which the e-Commerce Directive excludes the liability of a service provider. In Google France,56 the CJEU held that, in order to limit its liability, ‘it is necessary to examine whether the role played by that service provider is neutral, in the sense that its conduct is merely technical, automatic and passive, pointing to a lack of knowledge or control of the data which it stores’57; crucially,

 Hultmark Ramberg (2001), pp. 429–450; Lopez-Tarruella (2001), pp. 1337–1384; Pearce and Platten (2000), pp. 363–378. 53  Lahe and Turk (2012), pp. 447–472. 54  Case C-322/01, Deutscher Apothekerverband eV v 0800 DocMorris NV and Jacques Waterval, judgment of 11 December 2003. 55  Case C-108/09, Ker-Optika bt v ÀNTSZ Dél-dunántúli Regionális Intézete, judgment of 2 December 2010. 56  Joined cases C-236/08 to C-238/08, Google France SARL and Google Inc. v Louis Vuitton Malletier SA (C-236/08), Google France SARL v Viaticum SA and Luteciel SARL (C-237/08) and Google France SARL v Centre national de recherche en relations humaines (CNRRH) SARL and Others (C-238/08), judgment of 23 March 2010. 57  Google France, paragraph 114. 52

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this assessment is entrusted to national courts.58 In L’Oréal,59 the CJEU refined its reasoning by stating that, although it is again an assessment to be performed by a national court, ‘the operator has provided assistance which entails, in particular, optimising the presentation of the offers for sale in question or promoting those offers must be considered not to have taken a neutral position between the customer-­ seller concerned and potential buyers but to have played an active role of such a kind as to give it knowledge of, or control over, the data relating to those offers for sale’.60 It can thus be inferred that the exemption of liability depends on the fact that they must enjoy a certain degree of control over the processing of data while, by contrast, the mere fact that they offer a virtual marketplace against remuneration is not sufficient in itself. It remains to be seen whether (if there are any) and how the CJEU will use its precedents in the domain of the collaborative economy. As already pointed out in previous chapters, the CJEU has ruled out the applicability of the e-Commerce Directive since urban transportation performed by Uber cannot be considered as belonging to information society services. Conversely, AG Szpunar seems to leave this door open for the potential entrance of Airbnb. Therefore, the role that the e-Commerce Directive might play in the collaborative economy is still uncertain. Much depends on the underlying service and the parties’ ability, coupled with the willingness of the CJEU, to make it fit within the coordinated fields. A final word will be probably contained in the now-pending Airbnb case.

4.3.4  The Unfair Terms Directive Last but not least, the Unfair Terms Directive could be of some relevance to the collaborative economy too. Again, the CJEU case law61 could be used to infer some common elements, despite there being no collaborative economy cases involving this act at the moment. In particular, according to Article 3 of the Unfair Terms Directive, a term which has not been individually negotiated has to be regarded as unfair if it causes an imbalance in rights and obligations between the trader and the consumer. Such a term should be deemed to be not individually negotiated to the extent that a consumer had been unable to influence its content. This is the normal practice of every collaborative economy transaction: on the one hand, service providers cannot negotiate the terms of their listing in the platform; on the other, users cannot negotiate with service providers. The problem, again, lies in the scope of application of the Unfair Terms Directive, which, as every act devoted to consumer  For what concerns the problem of situations having an extra-EU dimension, see Jääskinen and Ward (2016). 59  Case C-324/09, L’Oréal SA and Others v eBay International AG and Others, judgment of 12 July 2011. 60  L’Oréal, paragraph 116. 61  Straetmans and Cauffman (2012), pp. 92–117. 58

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protection, catches B2C practices. Nevertheless, the CJEU case law could be of some relevance to grasp these intricacies. In Air Berlin,62 the CJEU held that the final price displayed to customers should include all its components, a specification useful, for instance, when a consumer reserves a room via Airbnb to the extent that it has to be immediately clear whether the final price encompasses, amongst others, cleaning services and touristic taxes directly levied by municipalities. In Birute Siba,63 the CJEU held that a lawyer needs to be considered as a seller/trader for the purposes of the Unfair Terms Directive; therefore, the fact that legal services can also be procured via a collaborative platform does not detract a professional from respecting the Unfair Terms Directive. In Costea,64 the CJEU stated that the same person can act, according to the various circumstances of an economic transaction, as a consumer and as a professional. In Oceano,65 the CJEU upheld the principle that legal actions against insolvent consumers cannot be brought before the jurisdiction of the place where the trader/seller has its own principal place of business. In Andriciucic,66 the CJEU stated that clauses are considered plain and intelligible in terms of not only grammar but also all the elements of a contract in a broad sense, so as to allow a consumer to evaluate the rights and obligations he/she is entering into. In this respect, case law of the CJEU seems inadequate to catch the typical elements of collaborative economy transactions since there are no fixed elements to be evaluated.

4.4  T  he Concept of Trust in an Online Environment: Selected Aspects Building trust, having confidence and relying on good faith in an online environment are among the key aspects in the development of the collaborative economy. Even before its inception, traditional online marketplaces started to design systems to ensure that their users would, indeed, trust unknown traders, often based in a Member States other than that of these users. This was considered as a cornerstone in the completion and smooth functioning of the internal market and, at the same  Case C-290/16, Air Berlin plc & Co. Luftverkehrs KG v Bundesverband der Verbraucherzentralen und Verbraucherverbände—Verbraucherzentrale Bundesverband e.V., judgment of 6 July 2017. 63  Case C-537/13, Birutė Šiba v Arūnas Devėnas, judgment of 15 January 2015. 64  Case C-110/14, Horaţiu Ovidiu Costea v SC Volksbank România SA, judgment of 3 September 2015. 65  Joined case C-240/98 to C-244/98, Océano Grupo Editorial SA v Roció Murciano Quintero (C-240/98) and Salvat Editores SA v José M. Sánchez Alcón Prades (C-241/98), José Luis Copano Badillo (C-242/98), Mohammed Berroane (C-243/98) and Emilio Viñas Feliú (C-244/98), judgment of 27 June 2000. 66  Case C-186/16, Ruxandra Paula Andriciuc and others v Banca Românească SA, judgment of 20 September 2017. 62

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time, as an essential means to increase cross-border trade. As discussed in the previous paragraphs, it was taken for granted that the only way to do so was through legislative harmonization. This idea has been challenged on the basis of empirical data showing that, although regulatory barriers to cross-border trade have been stricken down, users tend to underestimate the impact of consumer protection while the most difficult source of distrust is language.67 Comprehensive harmonization actions in the field of online services cannot but taken into account this finding; yet, differentiated sets of mechanisms need to be put in place. For instance, whereas it could require a professional trader or service provider to translate terms and conditions or leaflets into the language of the market they wish to penetrate, the same cannot be applied to a peer operating through an online platform. In the same vein, a peer who all of a sudden becomes a trader, due to his/her volume of transactions is perhaps not ready to embark with a full set of consumer protection obligations. Therefore, once again, the intervention of collaborative platforms is crucial to ensure that R&R mechanisms are reliable, deprived of manipulation and artificial alteration and, if possible, automatically translated. In doing so, the general principle of good faith is a bulwark of consumer protection. This assumption is corroborated by a Commission behavioural study on the transparency of online platforms.68 It stresses the importance of transparency in online transactions, suggesting that appropriate measures need to be taken to enable users to understand whom their counterparty is, be it a peer or a professional trader/ seller/service provider. This simple adjustment would certainly foster a general understanding of consumers’ rights in an online environment. However, such a solution is facilitated when a platform presents itself as a truly marketplace, enjoying decisive powers over the transaction. For instance, consumers tend to buy a good, for instance, on Amazon or to reserve a hotel room via Booking.com. In this scenario, they know, or better still, rely on the fact that the platform will make good any inconvenience. They trust the platform and ignore that the service/good is supplied by a professional, but this does not constitute a problem. In this way, there exists a chain of trustworthiness. This valuable chain perhaps ceases to have a beneficial effect on a collaborative economy transaction. Here, likewise, users do not know the identity of their counterparty. Nonetheless, they keep on trusting the platform which, by contrast, is no longer an established marketplace but a mere matcher of demand and supply. This is why the lack of transparency can seriously affect the growth of the collaborative economy, while the simple fact of having meaningful information on the seller/ trader/service provider enhances safety for all the interested parties. Although this solution seems to contradict the behavioural tendency to no-reading,69 a simple identification mark would be sufficient to make users aware of the identity of the counterparty. Related to the issue of transparency regarding identity Linked to this, there is the issue of transparency related to R&R.  Thommens et al. (2014), pp. 47–70.  Lupianez-Villanueva et al. (2018). 69  Seizov et al. (2018), pp. 1–25; Willet and Morgan-Taylor (2012), pp. 143–163. 67 68

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4.4.1  R  ate-and-Review Mechanisms and the Principle of Good Faith Enhancing trust in an online environment while, at the same time, ensuring the fairness of transactions—irrespective of a B2C or a C2C scheme—is an essential element in boosting the collaborative economy. In this respect, there are striking differences with offline business models. For instance, it is well known that, in small communities, word of mouth is a crucial factor to build up the reputation of a small retailer. By contrast, trademarks serve the purpose of distinguishing one good—fabricated and marketed by a certain undertaking—from another. Therefore, the average and well circumspect consumer expects a certain degree of quality, as well as a certain degree of social acceptance, when he/she purchases the top item available on the market. In this respect, again, the average and well circumspect consumer, although concerned with the quality, performances and fitness for use of a specific item, instinctively knows that he/she will be guaranteed by the notoriousness of the producer or by the legal obligation of a retailer. For instance, when a passenger reserves a taxi, it is known that the individual characteristics of the driver are irrelevant: he/she works for a local company, he/she is registered, he/she had to pass some tests and most likely his/her performance is evaluated on a rolling basis. When a potential customer reserves a hotel room, he/she knows that the hotel can offer a certain range of services and that he will be welcomed by trained personnel, directly under the power of direction and control of a hotelier. The scheme is overturned in the collaborative economy. Nobody knows whether the driver has accomplished one or 100 trips, and nobody knows whether the person who is renting out a room in his/her private apartment has a working Wi-Fi connection and is available to check out after 11 a.m. R&R exactly serve these purposes, that is, filling the information asymmetry gap between a service provider and a user, while guaranteeing a minimum degree of transparency aimed at increasing mutual trust. After all, this reflects the logic of applying the general principle of good faith in human relations. R&R function in a simple way: after a user has received the good ordered or the service booked, it is possible to evaluate the performance of the seller/trader/provider by jointly taking into account punctuality, reliability, speediness, cleanness, efficiency etc. For each of these entries, there is often a range from one to five stars and, at the end of the process, it is possible to leave an overall comment. In return, the seller/trader/provider does the same. Consequently, both parties are labelled as good or bad users, thereby increasing or decreasing their collaborative economy appeal. It is easily imaginable that trader/sellers/professionals are more interested in this given that, at the end of the day, their R&R represent their business card or their brand. Therefore, one’s R&R are susceptible of economic value: a top user has performed thousands of (successful) transactions. Moreover, the fact that, often, those who have the most positive R&R are placed in the top position of listings has a distinctive economic value. This may very well lead to a hypothesis of lock-in to the extent that a professional service provider is not interested in migrating to other

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platforms—perhaps offering better conditions—because he/she would risk losing his/her reputation. Furthermore, the accumulation of R&R might also constitute an entry barrier, as long as users tend to trust more providers who have an already-­ established high number of thus penalizing newcomers. Although R&R constitutes an innovative solution to overcome the lack of trust, recently, they have also highlighted a negative tendency. For instance, it is still doubtful—or even essentially depends on what the collaborative platform allows— whether anonymous reviews are beneficial. Secondly, the practice of mutual reviews might jeopardize transparency and fairness, since no one is interested in leaving a negative review that would undermine his/her outlook. Furthermore, paid reviews should be indicated in a clearly and comprehensible manner. Scholars tend to support the idea that, in a horizontal legislative act aimed at regulating the collaborative economy, be it at a national or at a supranational level, a key part has to be devoted to R&R.70 R&R instruments have been taken into account in various EU measures. The Guidance clarifies that the UCP Directive is not applicable to consumers who rate a trader’s service. The Guidance goes on by specifying that a collaborative platform has to be sure to post R&R stemming from humans. So, for instance, humans are required to be registered, have a verified IP address and supply real information about the service they received. Moreover, platforms are requested not to suppress negative reviews or not to incite overtly positive ones. The Agenda and the critical assessment do not indulge in exploring legal issues related to R&R. However, the e-Commerce Directive can be of certain importance to the extent that it excludes the liability of online intermediaries for mere passive conduct. Further, mere passive conduct is exactly what is at stake here. Building consumer confidence in any online environment is a key asset in the development of the collaborative economy. Considering that the bulk of EU consumer protection is simply inapplicable, due to the doubtful nature of service providers, relying on neutral, accurate and trustworthy R&R represent the sole means to guarantee, although indirectly, a minimum degree of control on the part of consumers over providers. Collaborative platforms may wish to monetize the reputation of their top users but, for that purpose, a simple mark declaring that a user is acting in a professional capacity would suffice. After all, who would doubt that a host who has hosted more than 100 people in a calendar year is not carrying out this business in a permanent and organized way? So, a genuine and unbiased R&R mechanism would be beneficial for all the three parties in a collaborative economy transaction. Collaborative platforms will police their online space from users falling below a certain threshold in a clearer and more transparent manner, while also labelling top providers with distinctive marks. Providers, in turn, would be keen to ensure a smooth outcome of their transactions, since that would increase their popularity and, ultimately, the possibility to enter into more and more transactions. From a user perspective, a mark indicating that providers have reached a certain high level of R&R is certainly a distinctive sign of reliability. However, this tells us nothing about 70

 Busch (2016), pp. 223–243.

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the profit-seeking motive and is not sufficient to trigger consumer protection. Moreover, as explained above, R&R can be artificially manipulated thus, in the most extreme cases, amounting to unfair commercial practices on the part of the collaborative platform. Hence, R&R are powerful tools to enhance trust and to indirectly reassure consumers about the identity of providers. Certainly, these mechanisms and their content must be used in compliance with the principle of good faith and help to protect users in an online environment.

4.5  A New Deal for Consumers The New Deal for Consumers is the last act in chronological order seeking to expand and modernize consumer protection. It starts from the positive (and positivist) assumption that the EU has put its best efforts into protecting consumers. But this success story now needs to be revisited in light of current technological developments. In other words, whereas at the beginning of the European Economic Community, the smooth functioning and the completion of the internal market were priorities to be achieved through a savvy combination of positive and negative integration, the marketplace in itself did not pose special challenges. Off-premises contracts, for instance, were still negotiated in person, probably by phone or at a client’s domicile after having been convinced by a door-to-door salesperson. Humans were still there. Different scenarios and technological complexities arose with the Internet by enhancing, on the one hand, business opportunities and, on the other, calling for differentiated forms of protection. Naturally, consumers’ needs also vary: if, up until 10 years ago, one was preoccupied about the safety of an Internet payment, nowadays, one is also concerned about the portability of his/her digital contents. The concept of trust is still a key aspect. In the pre-Internet economy, it was essential too, although in a different manner. Sellers built up their own reputation through word of mouth or through print publications whereas, nowadays, there are websites specialized in this kind of service. Again, whether they are unbiased is another sensible question. Many platforms are self-regulating their own R&R mechanisms by trying to avoid distortion and to combat illicit manipulation. In light of these elements, the New Deal for Consumers ‘builds on the existing consumer policy framework and takes it a step further by proposing modern rules fit for today changing markets and business practices’.71 For our purposes, it is important to stress that the New Deal for Consumers acknowledges the need for more transparency in online marketplaces. Consumers do not know whether the person from whom they are buying a second-hand good or from whom they are renting a room for a few nights is a professional trader or another consumer. Therefore, they do not know whether they will be protected. In 71

 New Deal for Consumers, paragraph 1.2.

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addition, it appears that consumers believe that their online activities are directed at an online platform but not effectively managed by somebody else. Most often, by contrast, online platforms or online marketplaces are solely matching demand and supply. But, if something goes wrong, if the second-hand item bought is unfit for purpose or if the room rented through Airbnb presents some problems, liability and redress perhaps rest upon the individual seller/provider. This is why, in the proposal to amend existing instruments, the Commission is pushing to make the identity of a user counterparty clear from the outset. Furthermore, platforms will need to specify whether the ranking of search results has been determined through payments from providers/sellers. This solution has already been retained in the P2B Proposal. The New Deal for Consumers also tackles the issue of free services and personal data. The very fact that some services are free upon registration implies a meaningful and voluntary cession of personal data. This can be problematic given the increasing value of personal data as such. Moreover, the accumulation of data might contribute to the creation of a dominant position for platforms while, at the same time, users experience a lock-in phenomenon. In other words, a user is discouraged to change platforms because he/she has to start from scratch in order to build up his/ her reputation, but also, more trivially, to restate his/her date of birth, favourite film etc. These aspects will be further analysed in Chap. 6. The New Deal for Consumers essentially emphasizes the need to take into account technological developments and to protect consumers, not only from unfair commercial practices or vexatious clauses, but also within a non-physical marketplace. New proposals are still in the pipeline; this is why the Commission calls the Parliament, the Council and the Member States to work together. Whether this joint effort to modernize the EU consumer acquis will be achieved is now just a matter of time.72

4.6  Conclusion Protecting consumers in collaborative economy transactions is different from protecting them in an online environment as such. It has been observed that a rigid notion of consumer, so far widely endorsed by EU legal acts, while openly criticized by legal scholars, is unfit to protect a weaker party. The problem essentially lies in the proper identification or even in the understanding of which party is weaker or which one is the weakest. Indeed, while a service provider can be considered to be weak vis-à-vis a collaborative platform, a user can be seen as the weakest in respect to both a service provider and a collaborative platform. After all, considering that the collaborative economy is triangular in nature, this outcome, although disappointing, is not totally unexpected. Several authors have argued in favour of a more flexible notion of consumers, linked/tied to the act of buying, trading etc., rather than to their personal character72

 For evolutionary tendencies see Heiderhoff and Kenny (2007), pp. 740–751.

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istics. This approach seems to be valid in a collaborative economy environment for some intertwined and overlapping reasons. First, it is often unclear whether a service provider is acting in a professional or non-professional capacity, thus making it impossible to ascertain in advance whether the bulk of consumer protection is applicable at all. Surely, R&R mechanisms are valid indicators of an acquired reputation: a service provider having hundreds of ratings and reviews should be deemed more accountable, more responsible and even more liable than somebody rarely engaged in any sort of activity. This argument, in turn, arguably confirms that, whereas the number of R&R is so high as to impinge on the nature of the service provider, it becomes a real market incumbent. In other words, although the collaborative economy empowers anybody to share a good or to offer a service, users will be more and more attracted to those service providers with a considerable range of (positive) R&R. To do so, they perhaps put in place an organization, albeit to a minimum extent, in which they invested some money. In strict legal terms, they are not professionals, yet users expect from them a certain minimum degree of professionalism. This is a question of trust. On the other hand, service providers are always in a weaker position when confronted with the power of the collaborative platform. Not only can the latter exclude them when their R&R are too low or below a certain threshold, it can also influence their performance by obliging them to fulfil certain obligations. The recently adopted P2B Proposal does not fill this gap because it is addressed to professional service providers who make indeed a professional use of collaborative platforms. Thus, on the one side, it excludes simple users; on the other, it does not include non-professional service providers. Although behavioural studies criticize the massive amount of information and its quality, which can overwhelm a consumer, in a collaborative economy environment, transparency and disclosure obligations seem still valid legislative solutions to ensuring consumer protection. As already stressed, the problem—or, depending on the standpoint, the solution—is just distinguishing whether or not a user is a consumer. Perhaps, a simple and less burdensome solution would be to compel service providers to disclose in advance whether they are acting in a professional capacity, so that the user immediately knows that they will be protected as a consumer and will thus have access to specific remedies. Consumer protection remains a delicate problem to overcome in the collaborative economy. As long as it is impossible to appreciate whether the counterparty is acting in a professional capacity or simply exploiting an idle asset, there will be no consumer protection at all. We will resume this argument in Chap. 7, where we will put forward the idea of regulating the collaborative economy and identifying service providers as professionals if, and only if, they fit within well-specified parameters.

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Chapter 5

Labour Law

Abstract  The collaborative economy not only blurs the distinction between a consumer and a professional but also the most classical dichotomy between an employer and an employee, hence rarefying the impact of labour law over workers’ protection. Indeed, if one works in his/her own spare time, with no subordination whatsoever, on a casual or an on-demand basis, how can this pattern possibly fit within the frame of genuine employment relations? Furthermore, can online platforms be assimilated to a classical employer exercising a typical command and control chain over their employees? This Chapter seeks to answer these questions, starting from the premise that non-standard work is more and more widespread, while, in a collaborative economy scenario, the problem of false self-employment is more and more acute. Thus, it is argued that, by using rate-and-review (R&R) mechanisms, collaborative platforms have succeeded in externalizing command and control to users. Looking at European Union (EU) labour law, the impact of the Charter of Fundamental Rights of the European Union (the Charter) is first discussed, then the potential applicability of the Working Time Directive and of the Atypical Workers Directives is tested. An overview of national experiences in the UK, France and Italy is presented to demonstrate that domestic courts have a different understanding of the conditions pointing to genuine employment relations. Finally, the recently adopted European Social Pillar (ESP) is discussed to ascertain whether it can bring clarity to the broad domain of employment in the collaborative economy. Keywords  EU labour law · Workers’ social rights · Self-employment · Charter of Fundamental Rights · European Social Pillar

5.1  Introduction The most efficient allocation of economic resources and the factors of production were key elements in the development of the European Economic Community. Historically, the importance of the free movement of subordinate workers predates © Springer Nature Switzerland AG 2019 M. Inglese, Regulating the Collaborative Economy in the European Union Digital Single Market, https://doi.org/10.1007/978-3-030-30040-1_5

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the rise of the freedom of establishment and the freedom to provide services. Indeed, it was believed that individuals had to move—and eventually to relocate—to find an appropriate place to carry out an economic activity in the then common market. A typical employment relation, implying an open-ended and full-time contract, under the direction and control of an employer for remuneration, took inspiration from the classical Fordist industrial organization. The free movement of workers, now embodied in Article 45 of the Treaty on the Functioning of the European Union (TFEU), has not been altered since then. Although this norm, in itself, has remained untouched, workers have changed. The first constitutional change is, of course, the introduction of the European citizenship. So, from the Treaty of Maastricht onwards, and thanks to the steady case law of the Court of Justice of the European Union (CJEU), individuals now move across the internal market as citizens. They are, therefore, entitled to a set of rights enshrined in the Treaty and in the Charter of Fundamental Rights of the European Union (the Charter). In this regard, the CJEU had declared that individuals can also move as jobseekers.1 Secondly, starting from the late 1990s, the free movement of workers and the free movement of goods have begun to lose their centrality in favour of the freedom to provide services (Article 56 TFEU) and the freedom of establishment (Article 49 TFEU).2 It is well known that the main difference between the three aforementioned economic liberties lies in the concrete organization of jobs, duties, risks and salary. Workers are deemed to be subordinate workers, dependent on and under the power of direction, control and sanction of somebody else, who supplies an organizational structure and pays salaries. Service providers, by contrast, are autonomous and bear the risks of their economic activities. This shift in importance is nothing more than a just reflection of the decline in industrial production and the mutation of economic productivity. Workers constitute the ideal types of people entitled to a set of social rights,3 now essentially codified in the Charter, but largely inspired by national constitutions and international instruments, namely, the European Social Charter (ESC Revised). In this respect, it is sufficient here to recall the recognition of the right to work (Article 1), the right to just conditions of work (Article 2), the right to fair remuneration (Article 4) and the right to bargain collectively (Article 6), among others. The steady rise of the Internet has radically altered this rigid pattern, while the collaborative economy is blurring the boundaries between an employer and an employee. Similarly, it is more difficult to ascertain whether somebody is acting in a self-employed capacity. A couple of examples can clarify these points. First, the power to hire and fire is no longer entrusted to an individual but to an online platform which, in turn, can exclude a service provider for not being able to obtain an aggregate rating above a certain (sometimes non-disclosed) threshold. At  Case C-292/89, The Queen v Immigration Appeal Tribunal, ex parte Gustaff Desiderius Antonissen, judgment of 26 February 1991. 2  Hatzopoulos (2013), pp. 459–501; Hatzopoulos and Do (2006), pp. 923–991. 3  Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems OJ L 166, 30.4.2004, pp. 1–123. 1

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the same time, individuals no longer work by being physically present—and fit for a specific task—but in their spare time; yet, it has been reported that many of them offer their services on a non-occasional but still non-permanent basis. The second key element is the transfer of risk. As long as collaborative platforms seek to behave as mere demand-and-supply matchers, they externalize the entrepreneurial risk over service providers. However, it is evident that they are not equipped to do so since they lack any industrial or entrepreneurial organization. This state of affairs suggests that there is a legal limbo where collaborative platforms are formally not involved in the employment relationship and service providers are deprived of the fundamental guarantees traditionally associated with workers. Further, in general terms, legal certainty for both parties is, at best, unsatisfactory. The collaborative economy has thus brought about a plethora of different situations that do not fit into the classical narrative of labour and industrial relations. In particular, the rise of a so-called casual labour force—substituting the reserve army of labour—has prompted the multiplication of on-demand, crowdsourcing and gig workers.4 Although, for the purposes of this book, the term ‘collaborative economy’ has been chosen instead of others, it is important to stress that the labour law literature prefers using the expressions ‘gig economy’, ‘on-demand economy’ and ‘crowdsourcing’. Indeed, they plausibly reflect the nuances in the significance of the collaborative economy in this sub-domain. For instance, on-demand refers to the fact that an individual is always available and ready to respond to the queries of somebody else while crowdsourcing entails dividing a bigger project or assignment into a multiplicity of micro tasks. In both cases, gig workers are simply and always connected through a platform that matches demand and supply concerning a certain service. For the reasons highlighted above, the disruptive impact of the collaborative economy is undoubtedly similar to what has been illustrated in Chap. 4 with regard to consumer protection. Thus, it is almost impossible to distinguish between a genuine consumer and a service provider while, at the same time, existing legal instruments are unfit in terms of properly regulating this scenario; similarly, it is almost impossible to ascertain whether a service provider should be considered a worker or self-employed. There is, however, another layer to take into account. Whereas in consumer protection, the work-life balance of a service provider is not an issue, the same cannot be true where working for a collaborative platform is at stake. This Chapter seeks to grasp these legal uncertainties using the Charter as a yardstick and as a tool to protect—and potentially enforce—gig workers’ rights. This right-based approach is needed for two overlapping reasons. First, as in the domain of consumer protection, it is difficult to correctly apply EU legislation for the simple fact that the grey, perhaps informal,5 area created by the collaborative economy cannot be constrained according to rigid categories. Nevertheless, the most recent case law of the CJEU shows that some rights can be invoked in horizontal disputes. This can be a welcome development—which needs to be closely monitored—to guaran Sundarajan (2016).  La Hovary (2014), pp. 391–412.

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tee the justiciability and the applicability of some minimum rights to gig workers. The problem is then identifying the relevant counterparty. At the national level, however, the situation is more fluid. Domestic courts consider that, in some specific sectors, service providers should be identified as workers, while, in others, they should continue to be deemed as self-employed or independent contractors. This piecemeal approach, based on the factual circumstances of each and every case and strongly driven by national employment law, risks jeopardizing the protection of collaborative economy workers. In conclusion, Chap. 5 argues that, given that the collaborative economy blurs the consolidated categories of labour law, the protection of gig workers should not be rigidly attached to their ‘independence’ or ‘subordination’, but rather to their performance and, possibly, the turnover they generate and the amount of time they work. Further, in this specific domain, since a regulatory top-down approach might be insufficient, some forms of participative—if not collaborative—bottom-up regulation can have an interesting impact as happened through the experience of Bologna City Council in Italy and a recently registered European Citizens’ Initiative (ECI), as will be further discussed in Chap. 7.

5.2  Disrupting Classical Labour Law The main assumption of classical Fordist labour law is the concept of standard work, whereby an employer hires an employee to accomplish a certain number of (repetitive) tasks. An employer, thus, exercises a certain degree of power vis-à-vis employees: they are selected through a hiring procedure, have to demonstrate their fitness to work and possess some specific skills and/or expertise. This employment relationship is essentially full-time and open-ended and follows the entire life cycle of an entrepreneurial activity. Employees earn a salary and are entitled to a certain range of benefits such as sickness leave, paid annual leave, maternal (or paternal) leave, unemployment allowance, and protection against unlawful or unjustified dismissal. Once they reach a seniority age, they are entitled to retire and receive a pension. In addition, they typically enjoy the right to collective bargaining and the right to strike. In this respect, it is worth adding that these rights are also enshrined in the Charter. The aforementioned pattern is increasingly disappearing. In the last decade, the impact of non-standard work (NSW) has constantly boomed. The Organisation for Economic Co-Operation and Development (OECD)6 defines NSW in a residual way: as everything not included in the pattern of standard work as described above. Thus, NSW basically encompasses part-time jobs, on-demand jobs and any other job forms, however designed. On this vast canvas, the collaborative economy has a prominent role and contributed to the fragmentation of the status of worker.7  Organisation for Economic Co-Operation and Development (OECD) (2016).  Schoukens and Barrio (2017), pp. 306–332.

6 7

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In this regard, authors tend to use the expression ‘gig economy’, ‘on-demand economy’ or ‘crowd work’ to highlight the fact that the work intermediated through collaborative platforms can take different forms.8 Whereas gig and on-demand economies refer to the fact that people work on an occasional basis and for a determined task, often a low-skilled one, crowd work implies the idea that a project is split into countless micro fractions. In both situations, however, a digital platform matches demand and supply. Therefore, in principle, the platform is a mere passive intermediary since the relationship takes place and, more importantly, is shaped by the requests of a third party. This third party is disguised as an old-fashioned employer while, as will be seen, gig workers may simulate a false self-employment. Labour law, so far, has been unable to reach a definite theoretical layout for employment relationships in the collaborative economy. Commentators9 tend to agree that it is rather impossible to pertain to the systematization of all forms of work that can take place online. At the national level, judiciaries have achieved different solutions by essentially taking into account the factual circumstances of the dispute at stake, concluding in the sense that the classification of workers vitally depends on the underlying service that a collaborative platform is engaged in. However, it has also been reported that some disputes were solved through out-of-­ court mechanisms,10 thereby making it even more difficult to obtain an acceptable degree of legal certainty. The impact of EU law has been limited to date. Although there are some instruments that are (infra) potentially applicable to triangular labour relations in the collaborative economy, it is doubtful whether the rigidity of the employer-employee dichotomy can be overcome.11 This is the crucial point of the whole discussion. If somebody cannot be considered as a worker, which set of rights can he/she invoke and, eventually, against whom? The Commission’s communication on the collaborative economy (the Agenda)12 and the OECD report stress that the collaborative economy can benefit low-income and low-skilled people, marginalized workers etc. Yet, it remains the case that those categories risk being more and more left behind. The traditional understanding of the employment relationship, which posits workers in opposition to employers, cannot be applied to today’s reality. It is hard to pierce the veil of a genuine employer who hides him/herself behind being a mere matcher of demand and supply performed by a collaborative platform. Therefore, by the same token, it is difficult to  Aloisi (2016), pp. 653–690; De Stefano (2016a), pp. 461–470; De Stefano (2016b), pp. 471–503; Donini (2016), pp. 164–177; Donini (2015), pp. 433–458; Lobel (2017), pp. 51–73; Todolì-Signes (2017), pp. 241–268. 9  See Sundarajan (2016). 10  Hatzopoulos (2018), pp. 182–183. 11  For a detailed overview, see Barnard (2012). 12  Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of Regions. A European Agenda for the Collaborative Economy, COM(2016) 356 final. 8

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determine whether a collaborative economy service provider is genuinely acting as a self-employed or as a subordinate worker. Moreover, it is hard to unionize, since workers do not know each other, do not share the same efforts and are dispersed everywhere.13 In addition, the mission of the undertaking is obscure to the extent that collaborative platforms do not present themselves as entrepreneurs but solely as matchers of demand and supply. This is in stark contrast with the profound impact of rate-and-reviews mechanisms (R&R) over service providers to the extent that these might amount to disguised forms of pervasive control. It is hence common that one can be excluded from a platform when his/her R&R aggregate drops below a certain threshold. Is this a form of unjust dismissal? Consequently, is there any judicial remedy against it? Problems also arise in respect of data protection, considering that collaborative platforms always monitor the exact location of their service providers.14 The jigsaw of labour law in the collaborative economy environment presents even more criticalities than the one affecting consumer protection. Indeed, the lack of consumer protection arguably jeopardizes the economic growth of the collaborative economy; but, at the end of the day, this does not impact individuals’ lives. While consumers seem to be unaware that they are entitled to protection, the same cannot hold true as long as labour law is at stake. Collaborative economy agents are fully aware of their rights. The problem thus becomes which rights can be invoked and eventually against whom. In other words, can a service provider sue a collaborative platform for the violation of his/her rights? Having unpacked how the collaborative economy disrupts classical labour law, it is now possible to discuss three scenarios: (1) service providers as subordinate workers; (2) service providers as self-employed and professionals; (3) online platforms as employers.

5.2.1  C  ollaborative Economy Service Providers As Subordinate Workers What is a subordinate worker? The CJEU has given an autonomous notion thereof in its early Lawrie-Blum15 judgment where one can read that ‘the essential feature of an employment relationship, however, is that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration’.16 This definition implies an individual working under the direction and control of somebody else, for a definite or open-ended period of time for remuneration which usually takes the form of a salary. Typically, there is a  Ewing (2013), pp. 145–166.  Topo (2018), pp. 453–475. 15  Case 66/85, Deborah Lawrie-Blum and Land Baden-Württemberg, judgment of 3 July 1986. 16  Case 66/85, Deborah Lawrie-Blum and Land Baden-Württemberg, paragraph 16. 13 14

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certain number of tasks to be performed according to some standards of quality and/ or to a predetermined schedule in light of an individual’s skills and/or expertise. Although this pattern still has its own validity, the collaborative economy is now underscoring a different kind of industrial organization. Therefore, service providers cannot be immediately subsumed in this scheme due to various factors. First and foremost, collaborative platforms present themselves as mere matchers of demand and supply while users evaluate the quality of a service. The former, meanwhile, reserve for themselves the right to exclude the latter, should his/her external evaluation drop below a certain threshold. Obligations imposed on service providers are often lax to the extent that they can autonomously arrange their working. They are hence usually labelled as independent contractors or self-employed. It derives from this framework that collaborative platforms bear no obligation at all, neither vis-à-vis users nor vis-à-vis service providers. By contrast, a different categorization of the latter would open the gates to judicial claims, mainly related to the fulfilment by collaborative platforms of some labour law obligations, e.g., the duty to confer paid leave, unemployment allowances and protection against unjustified dismissal. What changes, then, is the perception of work. If, on the one hand, service providers perform their tasks, maintaining a certain degree of independence, while, on the other hand, depending on the underlying service and the multisided market that a collaborative platform is active in, the situation can radically change. For instance, an Airbnb host has to respect some indications to make his/her apartment fit for rent, e.g., cleanliness, functioning Wi-Fi, towels, and responsiveness to messages. However, such a host cannot be associated with Uber drivers: as has been highlighted on several occasions, Uber governs the major aspect of the transportation, especially fares, times, directions and conditions. Similarly, riders working in the food delivery sector are requested to perform their duties in the shortest possible time frame, displaying the brand of the platform they work for, etc. Is it possible to contend that drivers or riders are not independent contractors but, rather, subordinate workers? In other words, is it possible to pierce the veil of false self-employment17? The CJEU has yet to rule on this topic; nonetheless, three judgments—read jointly—can be used as a benchmark by which to assess the characteristics of work in the collaborative economy. In Allonby,18 the dispute at stake arose because several lecturers working for a college were dismissed by non-renewal of their contracts of employment. The college decided to hire new lecturers through ELS, an agency managing a database of available lecturers. In this respect, female workers registered with ELS earned less than their male colleagues directly hired by the college. The CJEU had to rule

 Thornquist (2015), pp. 411–430.  Case C-256/01, Debra Allonby v Accrington & Rossendale College, Education Lecturing Services, trading as Protocol Professional and Secretary of State for Education and Employment, judgment of 13 January 2004. 17 18

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whether Article 157 TFEU—embodying the principle of equal pay for equal work— was applicable in a situation where male and female workers had the same tasks, but was hired through different mechanisms. The CJEU affirms that ‘the authors of the Treaty did not intend that the term worker […] should include independent providers of services who are not in a relationship of subordination with the person who receives the services’.19 Therefore, the existence of such a relationship has to be ascertained on a case-by-case basis. The CJEU went onto uphold that this assessment is not precluded by the formal classification under domestic law since it could disguise an employment relationship. Hence, a first criterion of self-employment is to be identified in the lecturers’ freedom to choose their timetable and the content of their course. This scenario has been further clarified in FNV Kunsten,20 where the Netherlands Musicians’ Association concluded an agreement with the Association of Foundations for Substitutes in Dutch Orchestras regarding the matter of minimum fees to be paid both to substitute orchestra musicians and to substitutes who carry out their performances under a contract for professional services. This agreement could have been caught by Article 101 TFEU if substitute musicians were considered as undertakings. Apart from the validity of the collective agreement under EU competition law, the CJEU interestingly added that there may very well exist ‘“false self-employed”, that is to say, service providers in a situation comparable to that of employees’.21 Therefore, although indirectly, the CJEU established some additional criteria to pierce the veil of false self-employment, such as determining autonomously the conduct on the market, bearing financial and organizational risks and ‘for the duration of that relationship, form[ing] an integral part of that employer’s undertaking, so forming an economic unit with that undertaking’.22 Finally, in Danosa,23 the CJEU expanded this line of reasoning holding that ‘formal categorisation as a self-­ employed person under national law does not exclude the possibility that a person may have to be treated as a worker […] if that person’s independence is merely notional, thereby disguising an employment relationship’.24 Although developed in contexts other than the collaborative economy, the case law of the CJEU seems indicative in ascertaining whether a service provider is a genuine independent contractor or a false self-employed, that is, subordinate, worker. Nonetheless, much depends on the underlying service; thus, it becomes extremely hard to infer a general rule from these precedents. In particular, whereas a collaborative platform is merely a matcher of demand and supply, it could be easier to affirm that independent contractors are genuinely independent and per Debra Allonby v Accrington & Rossendale College, Education Lecturing Services, trading as Protocol Professional and Secretary of State for Education and Employment., paragraph 68. 20  Case C-413/13, FNV Kunsten Informatie en Media v Staat der Nederlanden, judgment of 4 December 2014. 21  Case C-413/13, FNV Kunsten Informatie en Media v Staat der Nederlanden, paragraph 31. 22  Case C-413/13, FNV Kunsten Informatie en Media v Staat der Nederlanden, paragraph 36. 23  Case C-232/09, Dita Danosa v LKB Līzings SIA, judgment of 11 November 2010. 24  Case C-232/09, Dita Danosa v LKB Līzings SIA, paragraph 40. 19

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forms tasks as service providers. By contrast, insofar as a collaborative platform is truly a marketmaker, it could be more difficult to conclude that service providers are independent. Furthermore, a genuine self-employed should be at liberty to determine his/her own tariffs and fees,25 as happens in the case of some regulated professions, although it is evident that this is not the case. In other words, as will be further discussed in respect of food delivery, factual circumstances seem more telling than legal categorization and require a case-by-case evaluation. This evaluation, while taking into account the specificities of each underlying service, risks jeopardizing legal certainty for operators and collaborative platforms alike. In this respect, national experiences are already setting the scene while EU law lags behind.

5.2.2  C  ollaborative Economy Service Providers As  Self-­employed and Professionals As service providers can, of course, act in a professional manner, it is possible to consider them as genuinely self-employed. They no longer share an idle asset; rather, they accomplish a job with a certain, perhaps minimum, but somewhat relevant, degree of organization. Perhaps they have also invested some money to advertise their skills or their assets through the ranking of a collaborative platform or through a search engine. In this way, they should not be considered as peers, working on an occasional and non-permanent basis—albeit for a non-full-time schedule—but as professional service providers. The relationship they establish with users is then a business-to-consumer (B2C) one. Consequently, their relationship vis-à-vis an online platform should be reclassified as being of a business-to-business (B2B) type. In this specific hypothesis, the Commission has recently enacted a legislative proposal aimed at regulating relationships between online platforms and professional service providers (P2B Proposal).26 The P2B Proposal’s scope of application is limited solely to business operators. Its preparatory works and preamble highlight the existence of an evident imbalance in powers between business operators and collaborative platforms, with the latter being able to exploit their situation of predominance. Some of these situations have already been discussed in Chap. 4, but here the focus has to be shifted. Article 1(1) of the P2B Proposal defines business users as ‘any natural or legal person which through online intermediation services offer foods or services to consumers for purposes relating to its trade, business, craft or profession’; the same definition is applicable to corporate website users (Article 1(9) P2B Proposal). In this sense, the P2B Proposal sets a clear divide between the numerous categories of users populating the digital space. On the one hand, there are business users who  Daskalova (2018), pp. 461–508; Grosheide and Barenberg (2016), pp. 193–236.  Proposal for a Regulation of the European Parliament and of the Council on promoting fairness and transparency for business users of online intermediation services, COM(2018) 238 final. 25 26

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should be protected against unfair practices plausibly perpetrated by online ­platforms in order to make their business more solid and generate more revenue, to safeguard their investment, and to guarantee legal certainty. It is thus clear that, in light of what has been discussed in the previous paragraphs, these individuals can be deemed to be genuinely self-employed. On the other hand, those who perform activities through collaborative platforms are once again left in legal limbo, which leaves domestic jurisdictions—in cases of dispute—with the task of determining the nature of the relationship with a platform. Once again, the legislative technique is clear, since the P2B Proposal seeks to defend the economic interest of self-employed people who have decided to make an investment and to pursue an economic activity, rather than protecting the weak false self-employed who engage in the collaborative economy to top up their main income, probably on the basis that is insufficient to live with dignity. In other words, it is apparent that the Commission chose to protect the whole business dimension of the wider platform economy, thus avoiding addressing the problems related to false self-employment. Therefore, it needs to be verified under which conditions an online platform can be an employer.

5.2.3  Online Platforms As Employers Collaborative platforms enjoy extensive powers vis-à-vis service providers. But can these powers be compared with the traditional powers of direction and control typical of an employer?.27 This question has a salient role in determining the development of the collaborative economy for two overlapping reasons. First, correctly ascertaining whether an online platform is an employer opens up the gates to claims put forward by employees, given that they will be able to argue successfully that they are entitled to a set of rights such as, but not limited to, paid annual leave, maternity leave, unemployment, and protection against unjust dismissal. Second, determining the correct position of collaborative platforms in this labour relation enhances par ricochet the level of legal certainty for economic operators. In this respect, for the collaborative economy, the Agenda lays down three conditions to be cumulatively met: (1) the existence of a subordination link; (2) the nature of the work; (3) the presence of remuneration. The first requires that a service provider has to act under the direction of a collaborative platform. The second dictates that the activity performed needs to have a genuine economic value, thereby excluding merely accessory activities. This, in general terms, might also explain the terminological choice of using ‘collaborative economy’ instead of ‘sharing economy’. The third criterion indicates that a service provider has to receive real remuneration and not mere compensation of costs. Overall, the Agenda explains that a collaborative platform also provides the underlying service in the presence of the imposition of a price, key contractual terms and whether it owns the key assets necessary to

27

 Das Acevedo (2015).

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perform the activity at stake. If a collaborative platform supplies the underlying service, it is plausibly easy to demonstrate that service providers are its employees. It is intuitive that this amounts to a sort of probatio diabolica insofar as it is almost impossible to demonstrate that a collaborative platform, similar to any classical employer, has the assets to perform an economic activity, while those assets contribute to the work of a service provider.28 In essence, a strict interpretation of this parameter would require, for instance, that Airbnb own the apartments—or even the rooms—rented out by its hosts or that Uber possesses its own fleet of cars. Collaborative platforms, by definition, do not own any single asset but the algorithm for matching demand and supply. In other words, according to the employer test proposed by the Commission in the Agenda, it is highly unlikely that a collaborative platform will ever be considered an employer. Yet, there could be another path to argue that collaborative platforms own the essential asset to perform the underlying service, if one were able to demonstrate that the essential asset is immaterial, that is, it is constituted by the collaborative platform itself and/or its algorithm. Stretching the concept of asset too far could be problematic, not because an immaterial asset fails to be seen as such—software and know-how are distinctive features of entrepreneurial activity—but because its relevance can be questioned. After all, there would be no collaborative economy without an online platform which, as has been posited throughout this work, represents the apex of the collaborative economy triangle. Nonetheless, collaborative platforms can always claim that they are solely matching demand and supply, taking into account the underlying service while not enjoying any concrete powers. Although it has already been demonstrated that they do enjoy some powers— albeit expressed in rather atypical forms—the key point is the capacity to shape and create new markets. This is what Advocate General (AG) Szpunar put forward in his opinion in Elite Taxi.29 By saying that ‘Uber actually does much more than match supply to demand: it created the supply itself. It also lays down rules concerning the essential characteristics of the supply and organises how it works’.30 In other words, by creating new markets, it is directly competing against incumbents; similarly, competition takes place in a multisided market. This is also the crucial point for what concerns the fact that Uber has been deemed an urban transport undertaking.31 At the time of writing, the CJEU’s judgment in the Airbnb Ireland case32 is much awaited, since the judges will have to decide whether Airbnb is a real estate service or not. Following the opinion of AG Szpunar, this hypothesis seems at least controversial.33

 Cauffman (2016), pp. 235–243; Smorto (2015), pp. 245–277.  Case C-434/15, Asociación Profesional Elite Taxi v Uber Systems Spain, SL, opinion of Advocate General Szpunar of 11 May 2017. 30  Case C-434/15, Asociación Profesional Elite Taxi v Uber Systems Spain, SL, opinion of Advocate General Szpunar, paragraph 43. 31  De Franceschi (2018), pp. 1–4; Schepisi (2017), pp. 1–17; Simon (2017), pp. 521–532. 32  Case C-390/18, AIRBNB Ireland. 33  Case C-390/18, Airbnb Ireland, opinion of Advocate General Szpunar of 30 April 2019. 28 29

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Be that as it may, it is still without doubt that collaborative platforms enjoy some powers of direction and control. In Elite Taxi, the CJEU expressly recalls that ‘Uber determines at least the maximum fare by means of the eponymous application, that the company receives that amount from the client before paying part of it to the non-­ professional driver of the vehicle, and that it exercises a certain control over the quality of the vehicles, the drivers and their conduct, which can, in some circumstances, result in their exclusion’.34 AG Szpunar conducts an analysis deeper than the CJEU, yet he concludes that Uber should not be regarded as an employer and that drivers may very well be considered independent contractors,35 thus expressly refusing to acknowledge any working relation. This fluid situation leads collaborative platforms to exploit the flaws of classical labour law, while allowing individuals to work on-demand and in their spare time, with both parties seemingly having no rigid obligations. What apparently seems a win-win situation is a race to the bottom, to the extent that this alleged total independence should not entail outsourcing to service providers the costs and risks of an entrepreneurial activity and working without any legal protection. Even the employer’s power to dismiss somebody has been externalized to users, whereby an excessively negative amount of reviews can lead to exclusion from the platform. Against the backdrop of such an automatic, algorithm-based dismissal, there is no judge to go before, since a potential claim will be settled through the platform itself thanks to mediation systems.

5.2.4  Rate-and-Review Mechanisms R&R mechanisms are typical features of the collaborative economy as a whole. They offer to users a basic idea of their counterparty, of the level of reliability, and of points of strength and weakness. Typically, they are bilateral and can be ideally split into two phases. First, a user rates and reviews the service received, describing, for instance, the attractiveness of the location and the cleanliness of the apartment or car. Moreover, the personal characteristics of the provider are evaluated, such as, but not limited to, reliability, response rapidity and means of payment. Second, the same criteria are applied when the service provider subsequently rates and reviews the user. The two actors essentially build their online reputation together, presenting themselves in a more or less accurate way. Even in this respect, collaborative platforms enjoy pervasive powers. The parameters to be taken into account and assessed against are unilaterally set by the platform. The intermediation takes place in a bilateral fashion, to the extent that it is possible to control the exact moment when R&R are displayed in order to guarantee

 Case C-434/15, Asociación Profesional Elite Taxi v Uber Systems Spain, SL, judgment of 20 December 2017, paragraph 39. 35  For an analysis devoted to labour law in the Elite Taxi case, see Delfino (2018), pp. 346–353. 34

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a minimum level of transparency and avoid, to the maximum possible extent, libellous, injurious or fake ones. These are the two main issues to tackle. The first concerns fake or bogus reviews, artificially ‘beefed up’ to increase a user’s or a service provider’s reputation. A collaborative platform has the duty to ensure that R&R content is as truthful as possible. A potential means to do this is by guaranteeing the right to reply to an interested party. However, it seems that reviews tend to be overtly positive, thereby, in a certain way, altering their original purpose. By contrast, again, those reviews that are excessively negative are in the absolute minority; apparently, the reason lies in the fear not to ruin one’s online reputation. Thus, there is a vicious circle effect: R&R are levelling upwards and low ones are in the minority; at the same time, users and service providers increase their own reputation. Collaborative platforms, in this respect, are passive since this situation does not constitute any problem for them. The second and more acute question arises when a collaborative platform has the right to exclude users and service providers, should their R&R drop below a certain threshold. Now, as long as a user is excluded, this does not give rise to particular issues, to the extent that he/she is always free to elsewhere. The problem instead concerns service providers. Once an account is expelled and locked out, the service provider loses business opportunities as well as his/her online reputation, as well as a relevant source of income. While such a decision solely pertains to a collaborative platform, it is difficult to tell whether it could amount to a sort of (un)justified dismissal, to the extent that, as shown above, it is difficult to ascertain whether an employment relation is present. The problem with R&R is also addressed in the P2B Proposal, given that business users need to know in advance the criteria contributing to the construction of ranking and online reputation. In particular, according to Article 5 of the P2P Proposal, digital platforms have to disclose in their terms and conditions whether it is possible to influence ranking in relation to direct or indirect remuneration. R&R are thus the main elements in building up one’s own online reputation, whose effect is increasing the likelihood to be hired and to perform an underlying service. By the same token, negative R&R and a low-ranking status can disguise a form of dismissal. It remains to be seen whether EU law can play a role in this, either through the applicability of primary law or through the applicability of the bulk of EU labour law.36

5.3  The Applicability of European Union Law Considering that the then European Economic Community put at the centre of its actions the pursuit of economic liberties, the free movement of workers has always been of paramount importance. The CJEU has developed consistent case law aimed, on the one hand, at striking down national barriers often based on discriminatory 36

 See, in general, Giubboni (2018b), pp. 7–20.

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practices and, on the other, at interpreting the growing bulk of secondary law. So, whereas Article 45 TFEU entitles workers to free movement, the CJEU has progressively expanded this right to encompass, amongst others, the principle of equal pay for equal work and the prohibition of discrimination on the basis of nationality. Further, the legislature has laid down rules for workers’ family members. More recently, however, the CJEU has been actively engaged in dispelling interpretative doubts surrounding some provisions of the Charter with regard to the horizontal direct effect of some provisions addressed to workers. In essence, there exists ample space for an EU intervention, both through primary and secondary law. In this respect, this section paves the way, first, for a general overview of the Charter and of some of its relevant provisions for workers in the collaborative economy and, second, for the applicability of secondary law in NSW.

5.3.1  The Charter of Fundamental Rights The history, the binding value and the scope of application of the Charter are too well known to be discussed in full here. However, the theoretical distinction between rights and principles and the position of the latter in Title IV (devoted to Solidarity) deserve some attention in the collaborative economy domain. Indeed, the Charter may very well represent a minimum standard of protection, considering that the CJEU has recently opened up the possibility that some norms can have, in the presence of well-determined conditions, a horizontal direct effect. This is extremely relevant since it cannot be ruled out that individuals will use them against collaborative platforms. Article 52(5) of the Charter distinguishes between rights and principles, making the latter ‘judicially cognisable only in the interpretation of such acts and in the ruling on their legality’. Whereas the Charter is applicable to Member States when they are implementing EU law, it is also true that the notion of implementation has been given a broad interpretation, so as to catch many activities performed by a State. Many of those principles pertain to the domain of social rights and are also enshrined in secondary law, especially in directives. In this sense, it is interesting to observe that a recent jurisprudential trend is timidly—but consistently—conferring a horizontal direct effect on some of those provisions. This is extremely important for our purposes for two reasons. First, although there is a massive bulk of EU labour law, given the novelty of the collaborative economy, many factual situations can fall foul of the scope of application of secondary law. Thus, the Charter would constitute a sort of safety net to catch these kinds of situations. Second, it has been posited that collaborative economy employment relations can quite often disguise a false self-employment relation between two private parties. In these instances, the new vigour of the Charter can be of some relevance in protecting otherwise vulnerable workers and entitling them to some rights of which they were unaware.

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At first, in Association de mediation sociale,37 the CJEU excluded the horizontal direct effect of Article 27 of the Charter. Subsequently, however, in a stream of cases regarding the principle of non-discrimination on religious grounds, the CJEU admitted that Article 21 of the Charter can have a horizontal direct effect so as to compel a national judge not to apply domestic provisions.38 But the turning point is represented by the Shimizu39 and Bauer40 cases. Both judgments concerned the interpretation of Article 31(2) of the Charter, embodying the right to a limitation on the maximum working hours, daily and weekly rest, and paid annual leave. The CJEU recalls that being entitled to paid annual leave ‘constitutes an essential principle of EU social law’,41 whose implementation does not require additional national or EU measures. Therefore, the norm is self-sufficient and can be invoked within the scope of application of the Charter. In this respect, the CJEU goes onto affirm that ‘it must be noted that the right of every worker to paid annual leave entails, by its very nature, a corresponding obligation on the employer, which is to grant such periods of paid leave’.42 Briefly, the right to paid annual leave can be invoked against a private employer. Although crucial for the steady development of EU social law, these judgments still need to be tested against the peculiar factual circumstances of the collaborative economy. Indeed, it is often difficult to prove that a collaborative platform is an employer and that a service provider is an employee. Nonetheless, individuals can now fully rely on the Charter, while national courts will be called to disapply domestic legislation in contrast with Article 31(2) of the Charter. It seems that, without even knowing it, collaborative economy workers have incidentally been granted a right otherwise unknown to them. In other words, old forms of protection are still valid against new forms of exploitation. Apart from these recent and welcome developments, the EU has been enacting several pieces of secondary legislation in the field of NSW. Some of them are also valid in respect of the collaborative economy.

 Case C-176/12, Association de médiation sociale v Union locale des syndicats CGT and Others, judgment of 15 January 2014. 38  Case C-414/16, Vera Egenberger v Evangelisches Werk für Diakonie und Entwicklung e.V., judgment of 17 April 2018; Case C-68/17, IR v JQ, judgment of 11 September 2018; Case C-193/17, Cresco Investigation GmbH v Markus Achatzi, judgment of 22 January 2019. 39  Case C-684/16, Max-Planck-Gesellschaft zur Förderung der Wissenschaften eV v Tetsuji Shimizu, judgment of 6 November 2018. 40  Joined cases C-569/16 and C-570/16, Stadt Wuppertal v Maria Elisabeth Bauer and Volker Willmeroth v Martina Broßonn, judgment of 6 November 2018. 41  Max-Planck-Gesellschaft zur Förderung der Wissenschaften eV v Tetsuji Shimizu, paragraph 69; Stadt Wuppertal v Maria Elisabeth Bauer and Volker Willmeroth v Martina Broßonn, paragraph 80. 42  Max-Planck-Gesellschaft zur Förderung der Wissenschaften eV v Tetsuji Shimizu, paragraph 79; Stadt Wuppertal v Maria Elisabeth Bauer and Volker Willmeroth v Martina Broßonn, paragraph 90. 37

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5.3.2  The Working Time Directive Directive 2003/8843 (Working Time Directive) is the first piece of legislation to analyse in order to understand whether EU labour law is applicable in a collaborative economy scenario.44 Indeed, as the fourth recital of the Working Time Directive indicates, ‘the improvement of workers’ safety, hygiene and health at work is an objective which should not be subordinated to purely economic considerations’. Article 1(3) dictates that the Working Time Directive is applicable to both the public and the private sectors, while Article 2(1) defines working time as ‘any period during which the worker is working, at the employer’s disposal and carrying out his activity or duties, in accordance with national laws and/or practice’. The notion of shift work may carry a certain importance for the collaborative economy, since it is defined as an activity ‘whereby workers succeed each other at the same work station according to a certain pattern’. The Working Time Directive is interesting with regard to the concept of working time itself, given the mode of functioning of collaborative platforms and the fact that service providers tend to work without a predetermined schedule but in a total hectic way. Therefore, two earlier judgments of the Court can still be useful for our purposes. In Federación de Servicios Privados del sindicato Comisiones obreras,45 the CJEU was asked to rule on the concept of working time and, more precisely, whether it also encompasses the time spent travelling between one’s residence and the place of work. The CJEU responded in the affirmative and added that, during the journey, workers are already at the disposal of their employers. In Worten—Equipamentos para o Lar SA,46 the CJEU had to interpret the notion of the record of working time, which, once electronically processed by the employer, was available solely to the employer and not his/her employees. In this respect, the Court pointed out that the time schedule has to be considered personal data to be processed in compliance with the relevant legal framework. These cases, simple in their structure, firstly confirm that the notion of working time is not fixed but varies according to the factual circumstances of each dispute and, second, that controlling an employee schedule is a delicate operation to be undertaken while respecting his/her fundamental rights. Although predating the advent of the collaborative economy, these two judgments can still contain some useful indications. For instance, it could be said that the time spent waiting for an order to be placed and then delivered, or the time spent riding a car without a passenger, falls within the working time, which in turn cor Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time OJ L 299, 18.11.2003, pp. 9–19. 44  Nowak (2018), pp. 118–129. 45  Case C-266/14, Federación de Servicios Privados del sindicato Comisiones obreras (CC.OO.) v Tyco Integrated Security SL, Tyco Integrated Fire & Security Corporation Servicios SA, judgment of 10 September 2015. 46  Case C-342/12, Worten  – Equipamentos para o Lar SA v Autoridade para as Condições de Trabalho (ACT), judgment of 30 May 2013. 43

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responds to the calculation of an hourly salary for gig workers. Furthermore, although they can autonomously check their working time, the fact that is deemed to be personal data implies additional obligations on the part of online platforms: obligations to be fulfilled and, in cases of breach, to be judged by a court of law. Hence, although new categories of employees and employers are setting the scene, the same old problems remain. Although the scenario has been dramatically altered, it is worth exploring whether some solutions can be found in the bulk of EU labour law. The more recent interpretative communication of the Working Time Directive47 validates this interim conclusion. Indeed, it is confirmed that the Working Time Directive is applicable to all sectors of activity and that the notion of workers has to be broadly construed, so as to encompass, if necessary, self-employed individuals. However, it is interesting to note that the clause contained in Article 17—allowing Member States to derogate the provisions concerning daily rest periods, breaks, weekly rest periods, maximum weekly working time and the length of night work— is addressed to workers who autonomously set their working time or whose working time is not predetermined. The interpretative communication acknowledges that it is up to the CJEU to identify the personal scope of application of Article 17; yet, this derogation could also be applicable to ‘new forms of employment such as the digital platform economy’.48 In other words, the Commission recognizes that new forms of work in the platform economy could, in principle, be caught by the Working Time Directive. However, to date, the CJEU has not been called upon to interpret the Working Time Directive in a collaborative economy scenario.

5.3.3  The Protection of Atypical Workers Directives Atypical workers engaged in NSW activities are protected from being discriminated against49 by means of three different directives: 97/8150 (Part-time Work), 1999/7051 (Fixed-Term Work) and 2008/10452 (Temporary Agency Work). In María Begoña Espadas Recio,53 the CJEU had to rule on the calculation of unemployment benefit in part-time contracts, that is, whether non-worked hours can contribute to the  Interpretative communication on Directive 2033/88/CE of the European Parliament and of the Council concerning certain aspects of the organisation of working time, C(2017) 2601. 48  Interpretative communication, p. 45. 49  For a comprehensive discussion on this topic, Peers (2013), pp. 30–56; Bell (2012), pp. 31–48. 50  Council Directive 97/81/EC of 15 December 1997 concerning the Framework Agreement on part-time work concluded by UNICE, CEEP and the ETUC - Annex: Framework agreement on part-time work OJ L 14, 20.1.1998, pp. 9–14. 51  Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixedterm work concluded by ETUC, UNICE and CEEP OJ L 175, 10.7.1999, pp. 43–48. 52  Directive 2008/104/EC of the European Parliament and of the Council of 19 November 2008 on temporary agency work OJ L 327, 5.12.2008, pp. 9–14. 53  Case C-98/15, María Begoña Espadas Recio v ServicioPúblico de Empleo Estatal (SPEE), judgment of 9 November 2017. 47

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calculation of unemployment benefit, where it is established that the majority of persons working under a vertical part-time scheme are women. While the CJEU considered that this is indirect discrimination against women, it also held that the Part-time Directive precluded the national legislation at stake from impeding the accumulation of unemployment benefits. Meanwhile, in Ruben Andersen,54 the CJEU clarified that the concept of temporary contract or employment relationship refers to contracts and employment relationships entered into for a short period. Yet, Member States retain the competence to determine the maximum duration of those contracts and relationships according to specific sectorial legislations. Of greater interest was that, in Gardenia Vernaza Ayovi,55 the CJEU was asked to determine whether discrimination exists in the dismissal of an indefinite and that of a temporary worker. In particular, in the case of unlawful dismissal, the former can be reinstated while the latter solely obtains compensation. The CJEU rules that such discrimination is justified on the objective grounds of difference between the two situations. Although the CJEU abides by its own strict definition of worker, employee and employment, this does not rule out that certain provisions could, in principle, be applicable to the collaborative economy domain. What needs to be done, firstly by national courts and then eventually by the CJEU, is to pierce the veil of subordination and false self-employment. Indeed, as long as gig workers are considered as self-employed, it is obvious that the most protective provisions are inapplicable to them, for the simple fact that they are not caught by the personal scope of applications of EU labour law. NSW—or, to use EU law terminology, atypical work—is more and more the rule, rather than the exception. Advanced forms of protection are already presents, especially under the principle of non-discrimination; they just need to be used and tailored to catch the new realities. Today, this task has to be performed primarily by national courts, which paves the way for an undesired outcome: the fragmentation of worker status and the undermining of a right-based approach, considering that each and every Member State will have its own understanding of service providers and gig workers.

5.4  Some National Experiences EU secondary law might be useful to determine some concepts of NSW in the collaborative economy, but it is generally unfit to catch the reality as it stands. After all, this is the same scenario presented in respect of consumer protection. However, the inadequacies of a system of social protection are more acute, to the extent that  Case C-306/27, Ruben Andersen v Kommunernes Landsforening, judgment of 18 December 2008. 55  Case C-96/17, Gardenia Vernaza Ayovi v Consorci Sanitari de Terrassa, judgment of 25 July 2018. 54

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labour is an essential feature of human life. Further, with the juxtaposition of employers and employees, the rise (or fall) of social rights is equally affected by the steady and uncontrolled development of the collaborative economy. It is unsurprising then that national jurisdictions have been at the forefront of disputes regarding workers and collaborative platforms. These disputes have been solved through domestic laws, with no preliminary referrals having been lodged before the CJEU. In this respect, two points need to be stressed. First, there is a steady increase in national cases. Given the complexity and salient features of each domestic system, and given that they have not been translated into other languages, it is extremely hard to present a full account of them all. Furthermore, mapping the national case law of all Member States is well beyond the scope of this research.56 Second, the few examples proposed here present commonalities as well as differences. The point of similarity intuitively concerns the fact that all these cases imply a dispute brought before a court by a service provider who wishes to be considered a worker— hence being entitled to some additional rights—and a collaborative platform which, in turn, counterargues that service providers are self employed. The point of difference concerns—intuitively again—the response delivered by the courts. It can be anticipated that judicial solutions unequivocally rely upon the underlying service performed, in turn heavily influenced by the factual circumstances of each dispute. This leads to a fragmentation of the status of collaborative economy service providers: in some places, they are independent contractors; in others, they are subordinate workers. Nonetheless, they always perform the same activities, in compliance with some instructions, which are rated and reviewed etc. These national discrepancies are among the reasons to advocate in favour of an EU act to level the playing field in the collaborative economy, as will be discussed at length in Chap. 7. Judicial solutions adopted in the UK, Italy and France give an indication of how the collaborative economy is disrupting labour law. Confronted with new problems, national courts have to adapt old lenses to understand them and to square the circle. This does not mean that this approach is flawed; rather, it indicates that the collaborative economy is here to stay and that the judiciary will have to cope with more and more disputes similar to those already heard. In this respect, having a brand-­ new legal instrument would be a more appropriate solution in order to enable collaborative platforms and service providers to have a reliable and clear set of rules.

5.4.1  United Kingdom In the UK, employment tribunals have been required to rule on the genuine nature of Uber drivers in order to assess whether they should be categorized as self-­ employed/independent contractors or subordinate workers. This doubt has been

56

 Cases from the US have been reported in Hatzopoulos (2018), pp. 159–161.

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efficiently summarized by the question, ‘when the drivers are working, who are they working for?’57 In first instance, as confirmed on appeal, the employment tribunal took account of the real and actual circumstances of the relations between Uber and its drivers, namely, the control over information, the imposition of fares, and the control over R&R between drivers and passengers. All these factual elements took precedence over the contractual qualification, leading to the conclusion that drivers are workers. This is how the Employment Appeal Tribunal upheld the London Employment Tribunal decision. Indeed, ‘the notion that Uber in London is a mosaic of 30,000 small businesses linked by a common “platform” is faintly ridiculous’.58 Indeed, drivers are not principals of a transport contract signed with passengers; rather, they are integrated into Uber’s structure. In addition, they are explicitly prevented from establishing a relationship with passengers. Other factual elements concerned the circumstance that, although they are, in principle, allowed to switch off their device and eventually refuse a ride, the status of driver is withdrawn once a refusal threshold of 80% has been reached. Furthermore, once a driver switches on his/her device, he/she is already working, meaning he/she is operating in the frame of working time. In essence, the London Employment Tribunal and the Employment Appeal Tribunal held that the powers exercised by Uber over its drivers are so profound that it would be a fiction to consider their relation on an equal footing. Drivers are not self-employed or agents, they are simply workers. This conclusion predates the judgment in Elite Taxi, where the CJEU refrained to consider drivers as employers. However, the pervasive powers of Uber have been acknowledged. What happens when a collaborative platform powers are probably less strong is a different scenario, already dispelled in Italy and France.

5.4.2  Italy In Italy, the judicial landscape has been shaped by the judgments of the Tribunale59 and the Corte d’appello60 of Turin. The facts of the case can be summarized as follows. Three applicants sued Foodora—an online platform specializing in food delivery—claiming that the tasks they were performing on behalf of Foodora were not linked to the concept of collaborazione coordinata continuativa (co.co.co.), i.e.,  Employment Appeal Tribunal (England and Wales), n. UKEAT/0056/17/DA—Eady QC Est— Uber B.V., Uber London LTD, Uber Britannia LTD c. Aslam Y., Farrar J., Dawson R. et al., judgment of 10 November 2017, paragraph 100. This judgment upholds Central London Employment Tribunal 2202551/2015 Aslam, Farrar et  al., judgment of 28 October 2016. See also Donini (2018b), pp. 63–71. 58  Employment Appeal Tribunal (England and Wales), n. UKEAT/0056/17/DA—Eady QC Est— Uber B.V., Uber London LTD, Uber Britannia LTD c. Aslam Y., Farrar J., Dawson R. et al., judgment of 10 november 2017, paragraph 107. 59  Case n. 4764/2017, judgment n. 778/2018, published on 7 may 2018. 60  Case n. 438/2018, judgment n. 26/2019, published on 4 February 2019. 57

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they were not independent contractors. The applicants put forward that they were subordinate workers; hence, they should have been entitled to a different level of salary and to be rehired after being punitively dismissed. Finally, they claimed an unlawful violation of their right to privacy by means of the GPS app installed on their mobile phones. In the first instance, the national court asserts that it does not take into account the adequacy of the salary nor the general aspects of what is called the ‘gig economy’.61 Therefore, the Tribunale indulges in a rigorous assessment of the distinction between a co.co.co and a subordinate worker, focusing on the specific characteristics of the tasks to be performed and the power of direction, control and sanction enjoyed by Foodora. First, the formal qualification of the contract signed by the applicants and Foodora is irrelevant. For what concerns the tasks to be performed, through the audition of witnesses, the court highlights the following elements: (a) riders were contacted though an app installed on their mobile phones; (b) they needed to utilize their own bike and pay a deposit of €50 for the use of a helmet and a Foodora-­ branded box to carry (and keep warm) food; (c) both parties were allowed to withdraw from the contract with prior notice of 30  days; (d) once a ride had been accepted, in the case of a delay beyond 30 min, the rider had to pay €15 as a sanction. More importantly, each rider could change and rearrange his/her own schedule through the button ‘swap’ installed on the app or simply not work by clicking on the button ‘no show’. In other words, as the Tribunale pointed out, the applicants were not obliged to perform their tasks and Foodora was not empowered to compel them to do so. Therefore, if an employer cannot compel its employees to fulfil their duties, the powers of direction and control are totally lacking. The sanctioning power is also lacking since, in the case of ‘no show’, which excludes them from the internal chat group or from the weekly schedule—as heard during the hearing—cannot be comparable to sanctions. Finally, there has been no intrusion into the private sphere of the applicants through the GPS. In conclusion, the Tribunale dismissed all the arguments of the applicants. The Corte d’appello partially overruled the judgment of the Tribunale on points of law in two main respects. First, considering the possibility of ‘swap’ and ‘no show’, it held that the nomen juris, or, rather, the voluntary act of constituting a co.co.co, and not subordination employment has to prevail. Second, the recently enacted decreto legislativo 81/201562 is able to include a co.co.co contract in the sphere of subordinate work for what concerns health and hygiene in the workplace,63 salary, paid leave and social security. Therefore, the Corte d’appello grants to the applicants the extension of protection that has to be given—solely in terms of the aforementioned aspects—to subordinate workers.

 Case n. 4764/2017, judgment n. 778/2018, p. 3.  Decreto legislativo 81/2015, Disciplina organica dei contratti di lavoro e revisione della normativa in tema di mansioni, GU n. 144 24 June 2015. 63  Lazzari (2018), pp. 455–487. 61 62

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At the time of writing, it is still unknown whether this dispute will be brought before the Supreme Court (Corte di Cassazione). However, it remains possible to draw some interim conclusions. Both judges had to rely heavily upon the factual circumstances of the case and, consequently, apply a strict interpretation of Italian labour law. Commentators have criticized this approach, although it has to be admitted that there were presumably no other possibilities to subsume the employment relationship of the applicants into the more rigid scheme of subordination.64 On this point, it has been convincingly argued65 that the judicial strategy to claim the applicability of the parameters of subordination might be ineffective and inefficient because, at first glance, these parameters are simply lacking. Perhaps a better strategy would be to find remedies as happened in the case of US jurisprudence; but it is still uncertain whether this transplantation would have any effect in Italy. It remains to be seen whether other courts will endorse the same approach or even depart from it. That being said, it should be noted that the Italian situation is rapidly evolving. Despite a legislative proposal having been abandoned,66 an interesting non-judicial and bottom-up experience has been instead endorsed by Bologna City Council. There, in a day of hard snow, riders went on strike. The City Council endorsed riders’ positions and summoned food delivery platforms to negotiate a so-called carta dei servizi in order to grant riders more decent conditions, a minimum hourly salary, health insurance and, more importantly, the right to be paid in the case of adverse meteorological conditions. Needless to say that only a few food delivery platforms agreed to sign the carta dei servizi. This is a rather innovative strategy by which to regulate the collaborative economy from the bottom up, but requires the cooperation of both online platforms and customers (i.e., they should seek to boycott those platforms unwilling to sign as a sort of moral sanction). Again, whether these forms of regulation are effective is hard to say, but it has to be admitted that at least the closest body to citizens, according to the principle of proximity, has stepped in. These initiatives should therefore be welcomed.67

5.4.3  France Similarly, in France, the question concerned whether individuals engaged in food delivery should be considered workers or self-employed (prestataire de services indépendant). The case has been heard before the Cour d’appel de Paris.68 It  Biasi (2018), pp. 1–16; Donini (2018a), pp. 823–841; Tullini (2018), pp. 1–9.  Treu (2017), pp. 367–405. 66  Legislative proposal 3564/2016, Disciplina delle piattaforme digitali per la condivisione di beni e servizi e disposizioni per la promozione dell’economia della condivisione. 67  See https://bologna.repubblica.it/cronaca/2018/05/25/news/bologna_carta_rider-197310179/ (accessed 29 June 2019). 68  Cour d’appel de Paris, Pôle 6  – Chambre 22 novembre 2017, n. 16/12875. Donini (2018b), pp. 63–71. 64 65

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examined the factual circumstances of the relations between Deliveroo and its riders, stating that they both determined a weekly schedule, that there existed some obligations—notably, courtesy and speed—on the part of riders, that Deliveroo could control the exact fulfilment of a rider’s obligation, that he/she had to use his/ her own bike, that remuneration was determined in advance etc. The Cour d’appel— following the Italian Corte d’appello—has explicitly declared that ‘ces stipulations ne sont pas en soi révélatrices du lien de subordination allégué’.69 In essence, the Cour d’appel values the fact that refusing to perform a ride, choosing a zone and/or a neighbourhood of action, and one’s own schedule are all elements pointing to the lack of subordination in favour of a truly autonomous organization. In other words, Deliveroo does not unilaterally determine the conditions of work or how to fulfil a rider’s duties, since they are mutually agreed between the two parties. As an obiter dictum, the fact that the platform through the GPS installed on the app is able to suggest a preferred itinerary is not sufficient to infer a link of subordination. In conclusion, the Cour d’appel has struck a balance between the contractual conditions giving liberty to a rider with those imposing on him/her some obligations, making the former more salient. In this sense, the Cour d’appel has concluded that riders are truly self-employed.

5.5  The European Social Pillar Building a more social Europe is a key priority of the current Commission and the enactment of the European Social Pillar70 (ESP) is a clear blueprint in this direction; how to do so is a different political and legal issue. Starting from the former, under the auspices of President Juncker, the ESP has been conceived and enacted as a communication. More difficulties, instead, concern the ESP as a legal instrument, which can be useful in boosting social rights. The ESP is ‘primarily conceived for the euro area but open to all EU Member States’71 and respects the specificities of each of them. Indeed, it is accompanied by a number of specific measures concerning, most notably, access to social protection and working time. In particular, the broad consultations leading to the enactment of

 Cour d’appel de Paris, Pôle 6 – Chambre 22 novembre 2017, n. 16/12875, motifs du litige, no paragraph. 70  Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of Regions. Establishing a European Pillar of Social Rights, COM(2017) 250 final. 71  Establishing a European Pillar of Social Rights, p. 1. 69

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the ESP stressed the importance of ‘the future of work and the emerging digital labour market’.72 For what concerns the real content of the ESP, it is striking to read that, ‘given the nature of the Pillar, these principles and rights are not directly enforceable: they require a translation into dedicated action and/or separate legislation, at the appropriate level’.73 Evidently, according to the principles of subsidiarity, the more appropriate level has to be identified, on a case-by-case basis, at the EU or Member State level, although it should primarily be shouldered by the latter. Furthermore, the freedom to conduct a business has to be balanced against the protection of social rights, also at the national level.74 As far as the collaborative economy is concerned, the ESP makes explicit reference to the Agenda and to the interpretative communication of the Working Time Directive as already discussed above. So, it is taken for granted that workers employed through collaborative platforms are already covered by a piece of secondary legislation. This, in turn, seems to point to the idea that the legislation already in force is sufficient to cope with the challenges that the collaborative economy is bringing in. The impact of the ESP on the collaborative economy is yet to be seen and perhaps it is too early to make an informed evaluation. What is important to note is that the ESP correctly focuses the legislative efforts of the Commission on taking social rights into greater consideration; however, in doing so, the general constraints of EU law are still present. Therefore, it is not a coincidence that the ESP refers to the fact that social rights, per se, are not directly enforceable and that much is left to the Member States.75 The political visibility of social rights is thus assured, but their practical viability is a different question to be resolved at the national level. Therefore, while Article 3 of the Treaty on the European Union (TEU) recalls the importance of a ‘highly competitive social market economy’, Article 4(2)(b) TFEU stresses that social policy is a matter of shared competence. The protection of workers operating in the collaborative economy is thus entirely left to the courts of Member States, enforcing their national law and purporting their understanding of the collaborative economy. In this way, the fragmentation of the status of workers is more acute as are the risks creating different levels of protection across the EU. What seems to be lacking is a strong EU intervention, giving some clarity to factual circumstances that are cross-border by definition.76 These aspects will be discussed again in Chap. 7. The ESP, in this respect, seems a sound political initiative but it has remained a void to be filled in: how to do so and with which instruments is a challenge for the next Commission.

 Establishing a European Pillar of Social Rights, p. 4.  Establishing a European Pillar of Social Rights, p. 7. 74  Giubboni (2018a), pp. 172–190; Prassl (2015), pp. 189–209. 75  Laagland (2018), pp. 50–72. 76  Van Cleynenbreugel (2017), pp. 697–722. 72 73

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5.6  Conclusion Similar to consumer protection, the collaborative economy is deeply affecting labour law and the protection of service providers’ social rights. The constant rise in the casual labour force, coupled with the increasing economic dependence on on-­ demand and crowdsource workers, has led to a reconfiguration of the worker-­ employer paradigm. EU secondary law, enacted around the classical categories of labour law is no longer fit for purpose, for the very simple reason that the purpose has changed. Whereas, until less than a decade ago, workers needed to be protected from unjustified dismissal, now they need to be protected from a collaborative platform whose powers are so pervasive as to exclude somebody for simply falling below a threshold of R&R. Previously, workers needed to be protected from being controlled and from a violation in their right to private life; nowadays, they are constantly under surveillance of an app, which is the necessary compromise to find the shortest route in order to reach the destination requested by a passenger. Although the paradigm has changed rapidly, this should not mean that social rights, acquired through centuries of social battles, should be diminished. One could obviously question the validity of the idea of the right to strike or how trade unions should be allowed to have their say vis-à-vis platforms. Perhaps, as industrial relations and organizations have changed, allowing an app to hire and fire, social rights should be understood in a different light.77 The problem, again, lies in the fact that collaborative platforms also disrupt the idea of fair competition: it is not a coincidence that the preliminary references that reached the CJEU were initiated by trade unions and associations of taxi drivers and hoteliers. Similarly, at the national level, litigation has been triggered by spontaneous actions by gig workers while, in this respect, trade unions and associations remained silent. It has been convincingly pointed out, using the example of overseas disputes, that a smarter judicial strategy could be to request a court not to rule that a gig worker is a subordinate one, while persuading judges that he/she is entitled to a determined set of rights.78 In this way, the Charter can constitute a formidable arsenal in private disputes. Indeed, considering the current development of case law of the CJEU, it seems possible to argue that at least the right to paid annual leave has a horizontal direct effect. In this sense, the principle of non-discrimination could also have a specific impact since it has been reported that female collaborative workers earn less than their male counterparts.79 This is despicable, but interesting insofar as Article 157 TFEU embodies the general principle of equal pay for equal work, which has a direct effect vis-à-vis employers. But, what happens when discrimination is put in place by an algorithm and where there is no employment relation? In other words, against whom should the right to

 Aranguiz and Bednarowicz (2018), pp. 329–345; Codagnone et al. (2016), pp. 1–96; Forde et al. (2017), pp. 1–125; Voza (2018), pp. 657–685. 78  Treu (2017), pp. 367–405. 79  Kullmann (2018), pp. 1–22. 77

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non-discrimination be claimed80? Furthermore, can collaborative platforms be considered as contract parties81? By the same token, it remains to be seen whether other rights enshrined in Title IV of the Charter could also be invoked in a private dispute. In this sense, the right to strike and the right to collective bargaining can have a decisive impact. National experiences highlight the struggle to make gig workers fit into the old patterns of labour law by trying to square the circle between subordination and self-­ employment. This domestic judicial approach is doomed to stay piecemeal and, until supreme courts take the lead, it is also possible that courts in the same jurisdiction will reach different conclusions. Similarly, bottom-up forms of self-­organization, with the aim of involving all social partners, are laudable but too embryonic, and above all non-compulsory. Thus, it can be stated that the most aggressive collaborative platforms have not been persuaded to introduce a minimum degree of safeguards, such as, compulsory health insurance and a minimum wage per hour. An incentive would be to mark out those in compliance with a distinctive indicator, in the hope of raising civic awareness. In this sense, the Commission has recently registered an ECI aimed at proposing a legal act, obliging collaborative platforms to pay a minimum salary to those gig workers who have a certain annual turnover.82 It remains to be seen whether, firstly, the organizing committee will succeed in gathering at least one million statements of support and, secondly, whether the Commission will propose a legal act in the sense wished for by that committee. Be that as it may, this is another sign that civic awareness is intensifying and that labour conditions, more than any other aspects, represent the most worrisome aspect of the downward spiral of collaborative work. What is missing is a forward-looking European strategy. Although promising, the ESP leaves initiatives to the Member States as so much depends on national sensibilities about the destiny of service providers. It is thus unavoidable that regulatory solutions should be found at the EU level, in order to prevent the proliferation of unregulated forms of grey work and the exploitation of the most marginalized stratum in society. After all, the collaborative economy is no longer in its sharing infancy but an adult, and needs to be treated as such.83 Top-down regulatory solutions to be adopted at the EU level will hence be discussed in Chap. 7.

 It has also been stressed that collaborative platforms or, rather, service providers are discriminating against some specific groups, see Leong and Belzer (2017), pp. 1271–1322. 81  Domurath (2018), pp. 565–581. 82   NewRightsNow—Renforcer les droits des travailleurs “ubérisés”. Commission decision (2019)2312 final. 83  Smorto (2017), pp. 119–168.

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References Aloisi A (2016) Commoditized workers: case study research on labor law issues arising from a set of ‘on-demand/gig economy’ platforms. Comp Labor Law Policy J 37(3):653–690 Aranguiz A, Bednarowicz B (2018) Adapt or perish: recent developments on social protection in the EU under a gig deal of pressure. Eur Labour Law J 9(4):329–345 Barnard C (2012) EU employment law, 4th edn. Oxford University Press, Oxford Bell M (2012) Between flexicurity and fundamental social rights: the EU directives on atypical work. Eur Law Rev 37(1):31–48 Biasi M (2018) L’inquadramento giuridico dei riders alla prova della giurisprudenza. Lavoro, diritti, Europa 2(2):1–16 Cauffman C (2016) The Commission’s European agenda for the collaborative economy – (too) platform and service provider friendly? J Eur Consum Market Law 5(6):235–243 Codagnone C, Abadie F, Biagi F (2016) The future of work in the ‘sharing economy’. Market efficiency and equitable opportunities or unfair precarisation? JRC Science for Policy Report EUR27913, pp 1–96 Das Acevedo D (2015) Regulating employment relations in the sharing economy. Empl Rights Employ Policy J 20(1):1–36 Daskalova V (2018) Regulating the new self-employed in the Uber economy: what role for EU competition law? German Law J 19(3):461–508 De Franceschi A (2018) Uber Spain and the ‘identity crisis’ of online platforms. J Eur Consum Market Law 7(1):1–4 De Stefano V (2016a) Crowdsourcing, the gig economy and the law. Comp Labor Law Policy J 37(2):461–470 De Stefano V (2016b) The rise of the ‘just-in-time workforce’: on-demand work, crowdwork, and labor protection in the ‘gig economy. Comp Labor Law Policy J 36(2):471–503 Delfino M (2018) Work in the age of collaborative platforms between innovation and tradition. Eur Labour Law J 9(4):346–353 Domurath I (2018) Platforms as contract parties: Uber and beyond. Maastricht J Eur Comp Law 25(5):565–581 Donini A (2015) Mercato del lavoro sul web: regole e opportunità. Diritto delle relazioni industriali 25(2):433–458 Donini A (2016) Il lavoro su piattaforma digitale “prende forma” tra autonomia e subordinazione. Nuove regole per nuovi lavori? Diritto delle relazioni industriali 36(1):164–177 Donini A (2018a) Lavoro agile e su piattaforma digitale tra autonomia e subordinazione. Variazioni su temi di diritto del lavoro 3(3):823–841 Donini A (2018b) La libertà del lavoro sulle piattaforme digitali. Rivista italiana di diritto del lavoro 36(2):63–71 Ewing KD (2013) Myth and reality of the right to strike as a ‘fundamental labour right’. Int J Comp Labour Law Indus Relat 2013(2):145–166 Forde C, Stuart M, Joice S, Oliver L, Valizade D, Alberti G, Hardy K, Trappmann V, Umney C, Carson C (2017) The social protection of workers in the platform economy. IP/A/ EMPL/2016-­11 PE614.184, pp 1–125 Giubboni S (2018a) Freedom to conduct a business and labour law. Eur Constit Law Rev 14(1):172–190 Giubboni S (2018b) The rise and fall of EU labour law. Eur Law J 24(1):7–20 Grosheide E, Barenberg M (2016) Minimum fees for the self-employed: a European response to the ‘uber-ized’ economy? Columbia J Eur Law 22(2):193–236 Hatzopoulos V (2013) The Court’s approach to services (2006–2012): from case law to case load? Common Market Law Rev 50(2):459–501 Hatzopoulos V (2018) The collaborative economy and EU law. Hart Publishing, Oxford Hatzopoulos V, Do TH (2006) The case law of the ECJ concerning the free provision of services: 2000-2005. Common Market Law Rev 43(4):923–991

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Kullmann M (2018) Platform work, algorithmic decision-making and EU gender equality law. Int J Comp Labour Indus Relat 34(1):1–22 La Hovary C (2014) The informal economy and the ILO: a legal perspective. Int J Comp Labour Indus Relat 30(4):391–412 Laagland F (2018) Member States’ sovereignty in the socio-economic field: fact or fiction? The clash between the European business freedoms and the national level of workers’ protection. Eur Labour Law J 9(1):50–72 Lazzari C (2018) Gig economy e tutela della salute e sicurezza sul lavoro. Prime considerazioni a partire dal caso Foodora. Rivista del diritto della sicurezza sociale 18(3):455–487 Leong N, Belzer A (2017) The new public accommodations: race discrimination in the platform economy. Georgetown Law J 105:1271–1322 Lobel O (2017) The gig economy & the future of employment and labor law. Univ San Francisco Law Rev. 5(1):51–73 Nowak T (2018) The turbulent life of the working time directive. Maastricht J Eur Comp Law 25(1):118–129 Organizsation for Economic Co-Operation and Development (OECD) (2016) New forms of work in the digital economy. OECD digital economy papers no. 260 Peers S (2013) Equal treatment of atypical workers: a new frontier of EU law? Yearb Eur Law 32(1):30–56 Prassl J (2015) Business freedoms and employment rights in the European Union. Camb Yearb Eur Legal Stud 17(1):189–209 Schepisi C (2017) Piattaforme digitali e caso Uber dinanzi alla Corte di giustizia: servizio di trasporto urbano o servizio della società dell’informazione? Osservatorio europeo  – Diritto dell’Unione europea, pp 1–17 Schoukens P, Barrio A (2017) The changing concept of work: when does typical work became atypical? Eur Labour Law J 8(4):306–332 Simon P (2017) Uber saisi par le droit du marché intérieur. Revue des affaires europeennes 28(3):521–532 Smorto G (2015) Verso la disciplina giuridica della sharing economy. Mercato Concorrenza Regole 16(2):245–277 Smorto G (2017) Economia della condivisione e antropologia dello scambio. Diritto pubblico comparato ed europeo 18(1):119–168 Sundarajan A (2016) The sharing economy: the end of employment and the rise of crowd-based capitalism. MIT Press, Boston Thornquist A (2015) False self-employment and other precarious forms of employment in the ‘grey area’ of the labour market. Int J Comp Labour Law Indus Relat 31(4):411–430 Todolì-Signes A (2017) The end of the subordinate worker? The on-demand economy, the gig economy, and the need for protection for crowdworkers. Int J Comp Labour Law Indus Relat 33(2):241–268 Topo A (2018) Automatic management’, reputazione del lavoratore e tutela della riservatezza. Lavoro e diritto 32(3):453–475 Treu T (2017) Rimedi, tutele e fattispecie: riflessioni a partire dai lavori della gig economy. Lavoro e diritto 31(3–4):367–405 Tullini P (2018) Prime riflessioni dopo la sentenza di Torino sul caso Foodora. Lavoro, diritti, Europa 2(1):1–9 Van Cleynenbreugel P (2017) Le droit de l’Union européenne face à l’économie collaborative. Revue Trimestrielle de Droit Européen 12(4):697–722 Voza R (2018) Nuove sfide per il welfare: la tutela del lavoro nella gig economy. Rivista del diritto della sicurezza sociale 18(4):657–685

Chapter 6

Competition Law and Data Protection

Abstract  This Chapter intends to bridge a gap between competition law and data protection in order to explore, first, whether collaborative platforms compete in the same market with established operators and, second, whether the critical mass of data collected can be exploited as a competitive advantage, potentially leading to an abuse of dominant position. This is an extremely difficult assessment since collaborative platforms operate in multisided markets; in other words, they compete both against themselves and in the underlying service market. In this context, it is to be verified whether the accumulation of data by first entrants might represent a sort of sui generis essential facility in the hands of a few platforms; moreover, this phenomenon may create lock-in practices, whereby users and service providers alike do not seek to migrate from one platform to another in order to avoid dispersion of their online reputation. For this reason, the General Data Protection Regulation (GDPR), coupled with the fundamental right to data protection, is used as a yardstick to evaluate the lawfulness of collaborative platforms’ practices vis-à-vis individuals, especially in light of the new right to data portability. Keywords  Two-sided market · Data protection · Big data · Right to data portability · Relevant market

6.1  Introduction The collaborative economy functions as a triangle: a service provider offers a certain service to users while a platform intermediates between the two. It has been seen that the advent of the collaborative economy is systematically blurring consolidated legal acquisitions, such as the distinction between a trader and a consumer, and the relation between an employer and an employee, while, crucially, impacting on a plethora of different markets. These markets are essentially related to the performed underlying service which varies according to the different modes of function of each collaborative platform. For instance, it is now clear from the famous © Springer Nature Switzerland AG 2019 M. Inglese, Regulating the Collaborative Economy in the European Union Digital Single Market, https://doi.org/10.1007/978-3-030-30040-1_6

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Elite Taxi1 judgment that, according to the Court of Justice of the European Union (CJEU), Uber operates in the underlying market of urban transport, whereas, more recently, Advocate General (AG) Szpunar opined that Airbnb is not engaged in property rental.2 These two cases have in common the fact that both applicants were trade unions and associations claiming, before a national court, that Airbnb and Uber were indulging in anticompetitive behaviour. This, in turn, is represented by the fact that these collaborative platforms, allegedly limiting themselves to matching demand and supply, did not comply with regulatory requirements, such as administrative authorizations, mechanical controls, and enrolment on the public registry of real estate agents. If one considers that collaborative platforms are countless, it follows that, at least conceivably, they can operate in any economic sector; consequently, they can potentially affect any incumbent. The success of the collaborative economy is not only due to aggressive behaviours but, probably, also to the perception of being user-friendly. Indeed, the first step of the registration process is simply the submission of one’s personal data and only afterwards, in the case of service providers, will additional documents need to be uploaded. Further, it should be mentioned that many services are basically supplied free of charge, yet it is necessary to sign up to the disclosure of personal data. The submission of personal data in exchange for a service can be deemed as sort of consideration, having an intrinsic economic value.3 Personal data, thus, are the key to access online services, informing on a person’s consumption habit, age, gender, health, sex, religious and political beliefs etc. Aggregating, treating and anonymizing these data permit the extraction of so-called big data which, once available, can be explored, for instance, to customize advertising and to target specific groups of people. Moreover, online reputation is included in personal data, constituting one of the main strengths of incumbent platforms. In this respect, it should be acknowledged from the outset that data protection, as a fundamental right of every individual, and competition law, as a tool to ensure the smooth functioning of the European Union (EU) Digital Single Market (DSM) cannot be treated in isolation but should be jointly analysed. This Chapter intends to bridge a gap between EU competition law and data protection in the collaborative economy domain. To do so, the specific sectors of urban transport and real estate are considered as key examples of underlying markets mostly affected by the collaborative economy. Then, starting from the assumption that, for the purposes of EU competition law, collaborative platforms are deemed to be undertakings—consequently, they can be caught by Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU)—the focus will be on how competition takes place amongst platforms4 and amongst service providers. In  Case C-434/15, Asociación Profesional Elite Taxi v Uber Systems Spain, SL, judgment of 20 December 2017. 2  Case C-390/18, AIRBNB Ireland, opinion of Advocate General Szpunar of 30 April 2019. 3  Langhanke and Schmidt-Kessel (2015), pp. 218–223. 4  For a recent use of Article 102 TFEU regarding social network as a specific kind of platform, see Colangelo and Maggiolino (2018), pp. 224–239; Schneider (2018), pp. 213–225. 1

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doing so, data are essential and represent the business card of any online identity which nobody wishes to lose. In this respect, this may very well constitute a typical lock-in situation, whereby, although it is possible to migrate from one platform to another, nobody is really willing to start over. So, accumulating data can represent a solid advantage for those platforms which have reached the status of an incumbent player in a given market. Consequently, it has to be ascertained whether the accumulation of personal data can lead to a position of dominance and, eventually, to potential abuses, bearing in mind that the fundamental right to data protection is at stake. The multiple overlapping dimensions of EU competition law and personal data require, as in the case of labour law discussed in Chap. 5, a right-based approach, thus the General Data Protection Regulation5 (GDPR) and the Charter of Fundamental Rights of the European Union (the Charter) play a pivotal role in showcasing the multisided relationship between collaborative platforms, data protection and competition law. This Chapter, in conclusion, advocates that personal data can actually play an important role in EU competition law, considering their intrinsic economic value as well as their nature of fundamental right.

6.2  S  ectors Mostly Potentially Affected by the Collaborative Economy The analysis carried out so far has shown that the collaborative economy is disrupting consolidated legal acquisitions which are inherently linked, first and foremost, to consumer protection and labour law. In doing so, incumbents have to cope with technological and human novelties they were—or, rather, still are—not equipped to face. For centuries, hoteliers relied on the fact that people, either travelling for leisure or for business, needed a place to stay; therefore, their business structure was meant to find optimal solutions to a basic need. Nobody ever imagined that, at a certain point, people would have preferred to be accommodated in somebody else’s room or apartment. By the same token, urban transport is a key factor of mobility and, as such, is regulated by municipalities, while essentially reflecting the idea of being universal and of general economic interest; however, to a certain extent, subject to the rules of Article 106TFEU, implying the possibility to have competition. Nonetheless, this does not automatically mean that an individual can pick up passengers as he/she wishes. Those drivers now claim fairer treatment, wishing to be comparable to workers. These observations, linked to what has been discussed in the previous chapters, all point in the same direction: incumbent market operators denounce unfair and/or  Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (Text with EEA relevance) OJ L 119, 4.5.2016, pp. 1–88. 5

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anticompetitive behaviour in the underlying market, that is, to date, especially in the sectors of transport and accommodation. This is exactly how the Elite Taxi referral reached the attention of the CJEU, due to a complaint lodged by the association of Barcelona taxi drivers. In the same vein, the association of real estate agents in Paris filed a complaint against Airbnb. These examples are related to the current situation in the underlying market; nevertheless, two additional layers of elaboration need to be added to have a clearer picture. First, collaborative platforms operate in two-sided markets. Essentially, collaborative platforms are active, on the one hand, in the market of an underlying service—e.g., accommodation, transport and food delivery; on the other hand, they do compete against themselves in a different market. The latter perhaps pertains to the market for intermediation services; nevertheless, it is still doubtful whether collaborative platforms are genuinely intermediation service suppliers. These elements, as will be seen, are important for the potential application of EU competition law, namely, Articles 101-102 TFEU.6 Moreover, the importance of Article 107 TFEU cannot, in principle, be ruled out, but ‘for the time being, the risk of public money being directly transferred to a collaborative platform is quite low’.7 Second, collaborative platforms operate through the accumulation of personal data. Personal data belong both to service providers and to users, while it is still discussed whether online reputation is, first, a personal data as such, and, second, whom the data subject is: the collaborative platform, the service provider or the user. Anyway, personal data represent the catalyst of the collaborative economy: it is impossible to benefit from them without sharing something. Further, the most gratuitous, yet oxymoronic, asset to share is information about oneself. When one signs up to an online platform, the first requirement is to submit personal data; whether, how and eventually how much the platform uses them are different questions. Although this is necessary to allow the viability of the collaborative economy as a system of triangular relations—after all, who would be willing to stay at a stranger’s home without even knowing some basic information about him/her, such as age, name etc.?—this creates a pattern of entrenched issues. First, personal data have to be protected; at the same time, they have to flow freely in order to boost the completion of the DSM, according to three Commission communications.8 Second, the massive accumulation of personal data, which must be in gigantic proportion to be labelled as big data, can create problems of fair competition. Third, once users  Lougher and Kalmanowicz (2016), pp. 87–102; Dunne (2018), pp. 91–107.  Hatzopoulos (2018), p. 145. 8  Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of Regions. Towards a Thriving Data-Driven Economy, COM(2014) 442 final; Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of Regions. Building a European data economy, COM(2017) 9 final; Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of Regions. Towards a Common European Data Space, COM(2018) 232 final. 6 7

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and service providers become active members of a given collaborative platform, it is more and more difficult to export his/her data—including one’s reputation— thereby creating a typical lock-in phenomenon. This scheme is increasingly relevant in the sectors of transport and accommodation. Before delving into their analysis, it is worth briefly underlining the key features of these domains. They are often regulated by regions, municipalities or whatever local entity exists in proximity to citizens; the upper regulatory level— usually the central government—limits itself to setting out general guidelines. Whereas public transport falls within the scope of application of Article 56 TFEU9 and is characterized by heavy entry barriers—municipal authorisations, fixed fees, compliance with technical rules, criminal record check etc.—the accommodation sector is purely privately driven and, hence, left in the hands of market forces. They both produce negative and positive externalities, for instance, generating excess noise in a neighbourhood and complementing the transport offer in a given urban space. To date, it is commonly accepted that the collaborative economy has majorly impacted these two sectors.

6.2.1  Urban Transport Uber is nowadays a world-renowned tech giant offering a diverse set of transport services; some of them are allowed in certain countries, others have been blocked. Uber itself inextricably linked its name to the collaborative economy, appearing in newspaper headlines as well as in national and European courts. In this respect, in order to understand the underlying market Uber as a collaborative platform is engaged in, reference is made to undertaken on behalf of the Commission and published in 2017.10 Amongst the diversity of services, UberPop still is under the spotlight since it enables drivers to pick up passengers upon request through an app. The study confirms that UberPop is suspended in many Member States. In terms of its business model, amongst others, Uber responds to the following characteristics: active matching of demand and supply, user information check, prescreening of drivers, management of online reputation, unilateral setting of terms and conditions, imposition of minimum and maximum prices, allocation of payment. The study asserts that the company denies liability for issues stemming from interactions between drivers and passengers, but is deeply involved in setting the quality threshold of its rides, so  Case C-338/09, Yellow Cab Verkehrsbetriebs GmbH v Landeshauptmann von Wien, judgment of 22 December 2010; case C-168/14, Grupo Itevelesa SL and Others v Oca Inspección Técnica de Vehículos SA and Generalidad de Cataluña, judgment of 15 October 2015. 10  Exploratory Study of Consumer Issues in Online Peer-to-Peer Platform Markets. Task 4 – Uber – Case study report. European Commission produced by Consumers, Health, Agriculture and Food Agency (CHAFEA) on behalf of Directorate General for Justice and Consumers. February 2017. 9

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as to avoid lawsuits. As already discussed in Chap. 4, it is almost impossible to discern whether a driver is driving as a peer or in his/her professional capacity. Looking ahead, ‘it is likely that over time Uber will develop into a broader service which uses the significant amount of user data that it collects to offer a wide range of services going well beyond ride-sharing. It will be important to monitor the extent to which the platform’s data use and re-use policies reflect this development. For instance, the new app contains new algorithms allowing to access peer consumers’ and their friends’ location data’.11 This assessment fits within the current judicial understanding of Uber, whereby the CJEU held that it is an urban transport service, a marketmaker and not merely a matchmaker of demand and supply. Therefore, it operates in the same market of traditional transport undertakings; this conclusion seems valid, irrespective of the public or private nature of those operators. An element that has been unsurprisingly neglected by legal commentators who have preferred to focus on the lack of regulatory aspects—is the importance of data that Uber is excessively collecting. Despite UberPop being banned in certain States, it remains the case that, once personal data have been transferred, Uber manages them to customize its services and to evolve into something different. Therefore, Uber is a chameleon-like undertaking, profiting at best from the collaborative economy: this is perfectly lawful. If regulation is not intended to stifle innovation, Uber shows that its underlying service is more fluid that one would have thought at first glance. However, regulation is not lacking as such, nor is it missed in certain zones. For instance, as with every undertaking, Uber has to comply with the GDPR when collecting and treating personal data. If anything, a different question would be about identifying a set of rules applicable in general to the collaborative economy and, in particular, to Uber when it operates in the underlying service context of urban transport.

6.2.2  Accommodation Started in a student apartment, Airbnb has radically changed how people travel. Until less than a decade ago, the intermediation offered by a website was limited to booking and paying for a hotel room. Now, it is possible to be accommodated in the spare room of a stranger. Similar to Uber, Airbnb is shaping the way the collaborative economy is interpreted by national and European courts and by economic operators. Therefore, it is crucial to make reference again to a study prepared on behalf

 Exploratory Study of Consumer Issues in Online Peer-to-Peer Platform Markets. Task 4 – Uber – Case study report. European Commission produced by Consumers, Health, Agriculture and Food Agency (CHAFEA) on behalf of Directorate General for Justice and Consumers. February 2017, p. 42. 11

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the European Commission and published in 2017 to comprehend the underlying market that Airbnb, as a collaborative platform, is engaged in.12 The study confirms that Airbnb has features comparable to Uber, namely, price suggestions, guidance on how to list an apartment, supervision of online reputation, imposition of fees for cancellation, and management of a complaints system. Again, like Uber, ‘AirBnB does not distinguish clearly between real homesharing and professionally managed rentals, and does not require private and professional providers to indicate their legal status’.13 On reaching 10 bookings within a calendar year, cumulatively with other conditions, one becomes a so-called super host. However, the duration of those 10 bookings is not determined, since they could range from a minimum of 10 to a maximum of 365 nights. Therefore, perhaps it would be appropriate to identify super hosts as professional service providers, whereby they should comply with additional requirements such as insurance, legal guarantees and a certain degree of professionalism. The fact that Airbnb allows listings from professional and non-professional service providers is of great concern for consumers. Indeed, as shown in Chap. 4, this is a typical situation in which the rights and obligations of both parties are difficult to ascertain, hence leading to legal uncertainty. Data management is also unclear since data are sold to third parties to customize offers, addressed both to hosts and to guests. Airbnb has been in the spotlight for reasons other than Uber. Although hoteliers and their associations complained about lower turnover in the most touristic areas, Airbnb is critical in small neighbourhoods. It produces negative externalities, ranging from noise, commodification of places, increases in monthly rent and a shortage of available apartments, since proprietors prefer to rent out their property on a short-­ term basis, instead of opting for longer leases. As will be further discussed, AG Szpunar has suggested to the CJEU to rule that Airbnb can benefit from the free movement principle enshrined in Directive 2000/3114 (E-Commerce Directive). Thus, should the CJEU endorse his opinion, Airbnb will definitely be considered as service falling within the scope of application of Article 56 TFEU. However, some uncertainties remain since, similar to urban transport, accommodation is often dealt with, at a proximity level, by municipalities, especially in touristic zones where, of course, the majority of Airbnb listings are found.  Exploratory Study of Consumer Issues in Online Peer-to-Peer Platform Markets. Task 4  – Airbnb – Case study report. European Commission produced by Consumers, Health, Agriculture and Food Agency (CHAFEA) on behalf of Directorate General for Justice and Consumers. February 2017. 13  Exploratory Study of Consumer Issues in Online Peer-to-Peer Platform Markets. Task 4  – Airbnb – Case study report. European Commission produced by Consumers, Health, Agriculture and Food Agency (CHAFEA) on behalf of Directorate General for Justice and Consumers. February 2017, p. 50. 14  Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market, OJ L 178, 17.7.2000, pp. 1–16. 12

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To sum up, each collaborative platform operates in a different underlying service market, be it accommodation or transport, while it remains difficult to determine the market in which collaborative platforms compete. This is crucial to verify the applicability of EU competition law as per Articles 101-102 TFEU.

6.3  Collaborative Platforms As Undertakings EU competition law, notably Articles 101-102 TFEU, is applicable to undertakings defined as ‘any entity engaged in an economic activity, irrespective of its legal status and the way in which it is financed’.15 By contrast, it is well known that EU competition law is not applicable to (some) services of general economic interest. Now, the chance that collaborative platforms can supply a service of general economic interest is to be ruled out, at least for the time being. What is important, therefore, is to assess whether collaborative platforms can be subsumed into the notion of an undertaking according to the settled case law of the CJEU. At first glance, nothing prevents such an inclusion: inclusion which, in turn, already encompasses online search engines.16 Following the definition of the CJEU, as collaborative platforms are arguably undertakings, they have to be subjected to EU competition law. In this respect, additional insights are offered by the agenda on the collaborative economy17 (the Agenda)18 and the critical assessment19 thereof. Now, neither the Agenda nor the critical assessment engages in a discussion about whether collaborative platforms are undertakings. Nevertheless, both acts pay attention to the fact that collaborative platforms may be subject to some market access requirements, according to the underlying service provided. Further, to evaluate whether they are engaged in the provision thereof, the Agenda sets out three cumulative criteria: (1) the imposition of prices; (2) the imposition of contractual terms and conditions; (3) the ownership of key assets. In the previous chapters, it has been highlighted that, despite the first two conditions essentially being easy to meet, the third is almost impossible to be satisfied as long as the collaborative economy as a whole is based on the factual circumstances that collaborative platforms own nothing. These elements have been ignored in both the Elite Taxi and Uber France as well as in AG Szpunar opinion in Airbnb Ireland. In the former, it should be recalled that Uber has been deemed a marketmaker; in the latter, the AG suggested that Airbnb is

 Lastly, see case C-724/17, Skanska Industrial Solutions and Others, judgment of 14 March 2019.  Hoppner (2015), pp. 349–366. 17  Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of Regions. A European Agenda for the Collaborative Economy, COM(2016) 356 final. 18  Cauffman (2016), pp. 235–243. 19  Smorto G (2017). 15 16

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simply a marketmatcher. Consequently, the underlying service market is to be determined on a case-by-case basis, whereas it might follow from the foregoing that collaborative platforms are undertakings. Indeed, the consolidated definition endorsed by EU competition law is so ample as to catch any economic activity; indeed, by and large, it is clear that collaborative platforms are engaged in this, either as marketmakers or marketmatchers.

6.3.1  Competition Amongst Platforms Commentators have already explored issues of EU competition law generically related to digital activities.20 By the same token, the Commission has already approved some mergers and acquisitions taking place in the online environment. What is missing, however, is the hypothesis of competition amongst platforms for a simple reason: it is extremely difficult to define the relevant product market.21 Indeed, it is not enough to claim, for instance, that two platforms operate in the same sector (following our examples, accommodation or transport). Airbnb and Booking.com cannot be considered as parts of the same market because they fundamentally offer two entirely different services: the former matches the demand and supply of people interested in renting and leasing a room; the latter is used by professional hoteliers to advertise their facilities. Uber is not in competition with BlaBlaCar, as the latter is simply a ride-sharing aggregator. Thus, there is an absence of competitors, not competition as such. Established economic operators, indeed, lament unfair competition practices in the underlying market but, considering the granularity of service providers, there is essentially no means to attack them on a single basis. In other words, a taxi drivers’ trade union will not sue an Uber driver but Uber as such. An association of real estate agents will attack Airbnb, not the single host renting a room (or an apartment). Therefore, attention has to be diverted in order to investigate what happens in the underlying market so as to comprehend whether anticompetitive practices are present.

6.3.2  Competition in the Underlying Services’ Market It has been noted that collaborative platforms operate in multisided markets. Therefore, questions regard not only how they compete against and amongst themselves, but also whether some form of competition—irrespective of fairness—can be identified in the underlying market. This aspect is crucial, on the one hand, for the completion and smooth functioning of the EU’s DSM; on the other hand, from 20 21

 Capobianco and Nyeso (2017), pp. 19–27.  Russo and Stasi (2016), pp. 1–13.

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the perspective—if any—of the regulation of the collaborative economy. In this sense, lacking any jurisprudential and legislative hints, some theoretical consideration can be useful. At the outset, it should be noted that all the cases to date heard by the CJEU and decided by national courts were brought by trade unions and/or associations of undertakings seeking to ban activities which had an alleged anticompetitive effect within the underlying market. This essentially corresponds to the service offered by providers, irrespective of whether they are acting in a professional capacity. So, in plainer words, for Uber, the underlying service is urban transport, and for Airbnb, it is accommodation. Therefore, the underlying market varies or, rather, follows the kind of service being intermediated and/or matched by the collaborative platform at stake. Consequently, it is not possible to subsume into a single category competition in the underlying services’ market, since there are countless underlying markets. Moreover, each and every platform distinguishes itself from its competitor—assuming that it is possible to consider this diversity of platforms a sort of competition—in terms of the match of a specific demand and supply. Furthermore, as specified in Chap. 2, this book deals with collaborative platforms offering services for remuneration, and not those aimed at swapping a room or sharing an idle asset without any economic gain. This is important when seeking to ascertain the underlying service. An example from the real estate sector can clarify this point. If one considers the three most common platforms on which to look for short term accommodation, it is easy to note that old actors such as CouchSurfing are not of concern, since crashing for one night on somebody’s else couch is for free, rectius, in exchange for your personal data and for participation in a wider community. Airbnb, by contrast, allows professional as well as non-professional service providers to rent spare rooms or even apartments, flats and studios. HomeAway, instead, matches the demand and supply of luxury villas, allowing users to swap their properties. But are those three platforms competing in the same underlying market? In EU competition law terms, would it be possible to apply the SSNIP (small but significant and non-transitory increase in price) test to distinguish between Airbnb and HomeAway? These questions, for the time being, remain unanswered. Surely, there is a sense that both collaborative platforms operate in the same underlying market; yet it seems unlikely that an average user would start using HomeAway when Airbnb rises prices or tightens terms and conditions. In the sector of urban transport, the assessment could be easier. In certain countries, Uber and Lyft are directly competing in the same segment, while other operators are rapidly arriving on the scene, such as DiDi. But, essentially, they all perform the same service and should be considered, in the words of the CJEU, marketmakers. In this respect, it seems useful to refer to the conclusion of AG Szpunar in the recent Airbnb Ireland case. He basically creates a parameter to distinguish between collaborative platforms using the notion of marketmakers. In other words, if a collaborative platform is deemed to create a market while supplying and controlling the service provision, it operates in the underlying market; consequently, it cannot

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rely on Directive 2000/3122 (e-Commerce Directive) because the service provided is not an information society service within the meaning of Directive 2015/153523 (Information Society Services Directive). Therefore, should the CJEU endorse this reasoning, Airbnb would be shielded from EU competition law in the underlying market for the simple fact that it is not a marketmaker. This, in a longer period, would affect the applicability of EU competition law in the collaborative economy domain and fragment the DSM. Indeed, if it were confirmed that only digital platforms behaving as marketmakers are operators, there would exist a larger grey area untouched by EU competition law and left to national legislation (if any) or to national antitrust authorities.

6.3.3  Competition Amongst Service Providers In Chap. 5, it has been seen that the London Employment Tribunal persuasively ruled that Uber drivers are not micro-entrepreneurs but, rather, they should be treated as Uber’s employees.24 Conversely, in Paris25 and Turin,26 the courts held that food delivery riders are independent, autonomous contractors or, to use EU internal market jargon, they are self-employed.27 Therefore, at least theoretically, they should be considered as undertakings, following the early judgment in Cipolla.28 Recently, in Airbnb Ireland, AG Szpunar stressed that it offers the same possibilities to professionals and non-professionals. Thus, the possibility that even service providers compete amongst themselves cannot be determined. In this respect, it has to be anticipated that there are no available data, nor does a single case exist. Consequently, only a few speculations can be put forward, to be

 Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market, OJ L 178, 17.7.2000, pp. 1–16. 23  Directive (EU) 2015/1535 of the European Parliament and of the Council of 9 September 2015 laying down a procedure for the provision of information in the field of technical regulations and of rules on Information Society services, OJ L 241, 17.9.2015, pp. 1–15. The Information Society Services Directive repealed Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations, OJ L 204, 21.7.1998, pp. 37–48. 24  Employment Appeal Tribunal (England and Wales), n. UKEAT/0056/17/DA – Eady QC Est – Uber B.V., Uber London LTD, Uber Britannia LTD c. Aslam Y., Farrar J., Dawson R. et al., judgment of 10 November 2017. 25  Cour d’appel de Paris, Pôle 6 – Chambre 22 November 2017, n. 16/12875. 26  Case n. 438/2018, judgment n. 26/2019, published on 4 February 2019. 27  Daskalova (2018), pp. 461–508. 28  Joined cases C-94/04 and C-202/04, Federico Cipolla v Rosaria Fazari, née Portolese (C-94/04) and Stefano Macrino and Claudia Capoparte v Roberto Meloni (C-202/04), judgment of 5 December 2006. 22

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tested in the future against the development of the collaborative economy in the DSM. The reasoning has to be split into two parts, respectively, when a collaborative platform is a marketmaker and when it is not. In the first scenario, it is difficult to imagine a genuine form of competition amongst service providers since all the major elements of the underlying service are unilaterally dictated by the relevant collaborative platform. In other words, to the extent that a collaborative platform imposes prices, terms and conditions, as well as other general obligations, such as courtesy and responsiveness, little, if nothing, is left to the autonomy of service providers. Therefore, competition will be steered by their physical presence: the more they are in the market, the more they acquire ratings and reviews (R&R), the more they increase their digital reputation, and the more they have access to business opportunities. But this is not competition about quality, nor any other virtuous element. In the second scenario, if a collaborative platform is a marketmatcher, this would entail that service providers are freer to determine the level of quality of their services, with the collaborative platform limiting its control over some basic elements. In this sense, an Airbnb host—whether acting in a professional or non-professional capacity—is free, for instance, to offer breakfast, touristic maps and any other amenities. This would essentially raise their online reputation and, to do so, they would be keen on giving something more. In addition, the very fact that some collaborative platforms allow the registration of professional service providers points in the direction that some form of competition amongst them already exists. In conclusion, what makes the difference and what can foster or stifle competition amongst service providers is the mode of functioning or, rather, the business model adopted by a collaborative platform. Essentially, whereas the key elements of a transaction pertaining to the underlying service are confined to the powers of a collaborative platform, competition amongst service providers is hard to imagine. Conversely, if they are freer, it is possible to conceive of forms of competition. Further, it has to be stressed that this would not lead to a downward spiral towards lesser quality but, by contrast, an upwards spiral towards higher quality. Self-­ employed service providers who probably do not yet have a brand heavily rely on reputational systems. What distinguishes them from others, to be precise, is quality.

6.4  Collaborative Platforms and Data Protection It is a common experience, nowadays, that, when signing up or registering an account in order to use a collaborative platform, personal data must be communicated. Those data comprise, but are not limited to, name and surname, email address, and date of birth. In addition, service providers also have to disclose any criminal record, driving licence, data related to their real estate etc. Thus, it is undisputable

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that the treatment of personal data is an essential element of the business model developed by collaborative platforms. In this respect, for the sake of completeness, it is necessary to distinguish between platforms that accept data for consideration and platforms that do not. The formers are essentially social media networks, where the transfer of personal data is a necessary step for the registration of a user account, such as Twitter, Facebook and Instagram. The latter are platforms whose business is based on fees, a category which encompasses all the major digital players, such as Amazon, Spotify and Netflix, and, for our purposes, collaborative platforms. The further element of complexity lies in the fact that the legal persons managing digital platforms are not based in the EU, thereby creating a conflict of standards for what concerns data protection. The starting point is the horizontal clause enshrined in Article 16 TFEU, according to which the EU has to guarantee data protection, as also confirmed in Article 8 of the Charter. Considering that institutions are bound to respect the Charter, EU activities—in the internal as well as external sphere—need to be in compliance with the Charter. Should this requirement not be met, the CJEU declares the invalidity of the acts adopted by following a flawed fundamental rights respect. The case law of the CJEU regarding the protection of personal data is well settled and has guaranteed a high level of protection, perhaps higher than what has been imagined at first glance. Indeed, the CJEU delivered an opinion regarding the transfer of passengers’ personal data as part of an agreement between the EU and Canada, declaring that there is no certainty that personal rights are effectively protected.29 By the same token, in the now famous Schrems case,30 the CJEU held that the Commission’s decision, stating that the US offers a level of protection of personal data equivalent to that afforded in the EU, is invalid for the simple reason that the level is inappropriate. In Digital Rights Ireland,31 the key norms of a directive have been declared invalid, leading to the annulment of the entire directive. This case law, if applied to the collaborative economy, triggers the following considerations. First, if it is true that the EU guarantees a high level of data protection, this must also concern the collaborative economy domain. Second, in light of the extraterritorial reach of data protection, the transfer of data to undertakings established in a third country (but offering their services in the territory of the EU and to its citizens) must comply with EU rules. The system of protection is hence complete insofar as collaborative platforms need to respect the fundamental right to data protection as now enshrined in the GDPR.

 Case opinion 1/15 of 26 July 2017.  Case C-362/14, Maximillian Schrems v Data Protection Commissioner, judgment of 6 October 2015. 31  Joined cases C-293/12 and C-564/12, Digital Rights Ireland Ltd v Minister for Communications, Marine and Natural Resources and Others and Kärntner Landesregierung and Others, judgment of 8 April 2014. 29 30

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6.4.1  From Data Protection to Big Data The fundamental right to data protection has been enucleated long ago by the case law of the European Court of Human Rights (ECtHR), interpreting Article 8 of the European Convention on Human Rights (ECHR). This has inspired the content and structure of Directive 95/46,32 now repealed by the GDPR. An overview of the new regime is beyond the remit of this Chapter33; for our current purposes, however, it is useful to briefly insist on anonymization and the large-scale treatment and accumulation of data—indeed, so-called big data34—as possible sources of concern in the collaborative economy and, eventually, as a potential proxy of anticompetitive practice.35 There is indeed a number of points that need to be made in this respect. First and foremost, according to Article 4(1) of the GDPR, ‘“personal data” means any information relating to an identified or identifiable natural person (‘data subject’); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person’. In other words, every individual can be associated with an online identifier; this, consequently, should be treated as a personal data. It is now a common experience that, based on one’s online identifier and thanks to geolocalization services, collaborative platforms offer not only customized advertisements but their full set of services. Hence, it would be impossible for a collaborative platform to run its business without the voluntary disclosure of both users’ and service providers’ data. This, in turn, according to Article 4(4) of the GDPR amounts to “profiling” which refers to ‘any form of automated processing of personal data consisting of the use of personal data to evaluate certain personal aspects relating to a natural person, in particular to analyse or predict aspects concerning that natural person’s performance at work, economic situation, health, personal preferences, interests, reliability, behaviour, location or movements’. Of course, the leading principle is the principle of consent, freely given by the data subject. This is linked to the concept of ‘“processing” which means ‘any operation or set of operations which is performed on personal data or on sets of personal data, whether or not by automated means, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction’. For what concerns the collaborative economy, these are the main elements to be taken into account, as summarized below.

 Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data OJ L 281, 23.11.1995, p. 31–50. 33  For an extensive and specialised analysis, see Lynksey (2015). 34  Stucke and Grunes (2016). 35  Davilla (2017), pp. 370–381; Sivinski et al. (2017), pp. 199–227. 32

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Throughout this book, it has been posited that there exists a triangular relationship between a collaborative platform, a service provider and a user. Moreover, irrespective of the mode of functioning and the underlying service supplied, the common linkage is represented by the fact that both users and service providers authorize the collaborative platform to manage their personal data. This is crucial given that the latter must be confident about the identity of registered people and, second, that personal data are also necessary in order to foster a digital environment informed by the principle of mutual trust. After all, although it has been explained in the previous chapters that it is difficult to grasp whether a service provider is acting in a personal or professional capacity, this does not entail that his/her personal data cannot be disclosed to the extent that they are needed for the conclusion of a given transaction. However, when discussing data protection, the perspective has to be shifted: who bears the obligation to protect personal data, and who manages them? The answer is intuitive: a collaborative platform is the processor—to use the terminology of the GDPR—while both users’ and service providers’ personal data need to be protected. That is to say, this is a right—and the corresponding obligations—stemming from multiple sources, as set out at the beginning. Amassing and processing data are not novel practices; it suffices to recall, simply to make a trivial example, loyalty cards issued by supermarkets, where spending a determined amount of money can lead to a prize or a discount. However, it is somewhat difficult to collect data related to the basket of items purchased and, in any event, a supermarket business is not grounded on loyalty cards and prizes, since, essentially, everybody goes to a supermarket. More recently, however, when a customer buys food or other essential goods from the website of a supermarket, his/her choices are collected, analysed and stocked, so that, next time, customized prices will be highlighted. But the previous assumption remains: everybody needs a supermarket; in other words, online supermarkets are linked to bricks and mortars ones. Basically, they are not marketmakers. They cannot prevent another competitor supermarket from setting up its own online marketplace. What happens in the collaborative economy is different. To the extent that a collaborative platform amasses users’ and service providers’ data, this could lead to a position of prominence—but perhaps not dominance—especially if it is a marketmaker. Given that an online platform occupied the field since the very beginning and that personal data can be (ex)ported from one to another but without R&R, first-­ entrant collaborative platforms have started to enjoy the position of classical incumbents. This position does not lie by the fact they offer an innovative service, for which they invested in research and development, but solely because personal data constitute their main asset. Therefore, processing and treating personal data must be in compliance with the overarching regime of the GDPR. In the examples supplied throughout this book, it can been seen that collaborative platforms are not databases, since there is no creative effort to be protected; otherwise, they would be caught by Directive 96/936 (Database Directive). In light of the above, it is now important to understand how the data must be treated and whether they can constitute a barrier to entry into the market.  Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases, OJ L 77, 27.3.1996, pp. 20–28. 36

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6.4.2  W  hose Big Data? Big Data and Barriers to Entry into the Market At a terminological level, the expression “big data” basically refer to a mass of stocked, anonymous data whose economic value is undisputed. Amassing big data gives unprecedented powers to any economic operator, be it a collaborative platform or otherwise.37 Therefore, a looming question in current times is concerned with seeking to understand, first, whether owning big data can amount to a non-­ physical barrier to entry into the market and, second, whether, controlling big data can be considered an indication of a dominant position, eventually leading to abuse, according to Article 102 TFEU. Data protection, in this respect, should not be taken in isolation but as a horizontal clause and, above all, as a fundamental right, whose boundaries in many respects must still be explored.38 For this reason, individuals are to be considered as the masters of their data, while data processors need to act to ensure protection. Commentators are now devoting much attention to this strand of research, basically seeking to understand whether big data can amount to a sort of immaterial, sui generis, essential facility.39 After discussing at length, the essential facility doctrine and entry barriers in digital markets, Colangelo and Maggiolino40 conclude that the real target of antitrust efforts should not be big data, but information. After all, big data are extracted from various sources and contain various forms of information; therefore, it is not automatically appropriate to infer that a new entrant needs those data. Furthermore, it would be difficult to set a price or issue a compulsory licence for big data. Rather, they point to the right to data portability—as will be discussed in the following paragraphs—as a possible tool to overcome the market power of firms holding big data.41

6.4.3  A  nticompetitive Practices Through the Accumulation of Big Data It is well known that it is not the dominant position per se that is unlawful but the abusive exploitation thereof. Various forms of abuses are known to competition lawyers, courts and, surely, undertakings: from impeding access to the so-called last mile of an essential facility, to practices such as tying, bundling and predatory pricing. Other forms relate to the exploitation of patents and/or the repeated registration  OECD (2016).  Brkan (2016), pp. 812–841; Celeste (2019), pp. 134–157. 39  Doherty (2001), pp. 397–436; Scheean (1999), pp. 67–89. 40  Colangelo and Maggiolino (2017), pp. 249–281. 41  Lucchini et al. (2018), pp. 563–568. 37 38

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thereof simply by changing an uninfluential element. However, to date, the possibility of abuse through the accumulation of big data has not been explored by the Commission. The Commission has had the chance to evaluate whether a merger can lead to an excessive accumulation of data in the merger decisions concerning Facebook/ WhatsApp42 and Google/DoubleClick.43 In both cases, the Commission simply ignored the issue at stake.44 In this sense, commentators already harshly censured those decisions, including by reference to an opinion delivered by the European Data Protection Supervisor (EDPS). The EDPS highlighted that the Commission’s practice needs to take into account issues of data protection in clearing mergers and acquisitions as a means to foster consumer welfare. While commentators praised this approach, nonetheless it has been criticized as untimely.45 At the other end of the spectrum, it is still doubtful whether EU competition law is ready to be engaged in subsuming data protection into the concept of consumer welfare. At the current stage of development, it is extremely difficult to come out with a crystal-clear conclusion. Nonetheless, some interim arguments can be put forward. First, it is now undisputed that collaborative platforms are acquiring market power, competing against each other and against incumbents. Thus, sooner or later, the Commission will have to start investigations and, hopefully, consider aspects linked to big data. Second, and more problematically, it is unknown which market the Commission will consider when assessing potential abuses, mergers or anticompetitive behaviour. Will it investigate the underlying market—e.g., urban transport, accommodation, food delivery—or the market for platforms? Depending on the answer, the outcome can vary greatly. However, big data solely represent one aspect of data protection in the collaborative economy. Indeed, although amassing them is problematic in many aspects, the interoperability of systems and the possibility of multihoming—i.e., registering more profiles on more platforms—represent good practical solutions. Further, the GDPR also allows data transfer from one platform to another. As will be discussed, this right can play a crucial role in developing a fairer digital environment. An interesting argument has been developed by Townley, Morrison and Yeung for assessing whether big data can lead to algorithmic consumer price discrimination (ACPD) and whether this practice is abusive.46 Basically, this entails that prices of final products are increased or decreased, depending on undefined circumstances; therefore, it is extremely difficult to predict prices, even for an average and well circumspect consumer. This approach might also be applicable in a collaborative economy domain, whereas consumers are equated to users, with the difference  Facebook/WhatsApp merger case COMP/M.7217.  Google/DoubleClick merger case COMP/M.4731. 44   For a detailed account, see Kadar and Bogdan (2017), pp.  479–491; Modrall (2018), pp. 569–578. 45  Costa-Cabral (2016), pp. 495–513; Pozzato (2014), pp. 468–470. 46  Townley et al. (2017), pp. 683–748. 42 43

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being that the power to manipulate prices is not in the hands of service providers but of collaborative platforms. After all, Uber is well known for its surging practice of increasing fares in certain zones. Meanwhile, if Airbnb limits itself to suggesting prices for a determined location, nothing prevents their artificial inflation when particularly appealing events are scheduled. In conclusion, the impact of big data on the collaborative economy is perhaps more visible at a practical rather than at a purely theoretical level. The willingness to tackle this aspect is still lacking.

6.5  The Right to Data Portability The right to data portability (RtDP) deserves special attention in the context of the multilayered relation between data protection and competition law in a data-­driven economy47 and, especially, for what concerns collaborative platforms. The RtDP, as enshrined in Article 20 of the GDPR, contains the following elements: (a) transmission of data belonging to the data subject from one controller to another; (b) the processing has to be based on consent and carried out through automated means; (c) there shall be no prejudice shown in relation to the right to erasure, i.e., the right to be forgotten as per Article 17 of the GDPR; (d) the RtDP shall not adversely affect the rights and freedoms of other. The basic idea, intuitively, is that a data subject not only controls his/her own data and can lawfully consent to their treatment and free flow, but the latter is facilitated through a precise norm. To give just one example, everybody is now accustomed to porting his/her mobile phone number from one operator to another, in the search for better offers. This is perfectly fine, insofar as it genuinely realizes the goal to ensure the smooth functioning of the DSM through the free flow of data. This phenomenon can be approached from three different angles. First, from a data protection standpoint, data subjects unequivocally express their consent to porting their data from one service provider to another. The principle underpinning this, and the general inspiration of the GDPR, is consent. Second, from a consumer standpoint, the RtDP enables data subjects as consumers to search in a competitive market for the best or, rather, better suited options to meet their needs, and to be informed about them and the contracts they are going to sign, again based on the principle of consent.48 Third, from a competition law standpoint, different observations need to be made. Since the RtDP encourages consumers to move, it steers competition amongst undertakings, aimed at offering more products and/or more quality. Furthermore, data portability might avoid the typical lock-in situation whereby a user refrains from switching in order to avoid losing his/her data or online reputation, or simply out of laziness. However, so as not to frustrate the RtDP, undertakings have to adapt 47 48

 Zanfir (2012), pp. 149–162.  Helberger et al. (2017), pp. 1427–1466.

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their technical structure in the sense that they have to develop systems, which allow users and service providers to move freely. In other words, what for data subjects is a right, is a corresponding obligation for undertakings. This could also be a particularly burdensome matter, since some of them might have invested a considerable amount of time and money in order to develop a particular software package and, perhaps understandably, do not want to share their technical acquisitions. Furthermore, this could be coupled with an effort to develop know-how, leading to a problem with intellectual property rights. This could be exactly the situation of the sui generis protection afforded to databases whose development has been possible through genuine efforts, according to Article 7 of the Database Directive. Commentators have already highlighted the most contentious issues of the RtDP. Graef, Husovec and Purtova recognized that, ‘once a particular standard is chosen, the development of technologies stagnates’,49 thus rebutting the presumption that the RtDP is the best possible option to avoid lock-in phenomena. Lynskey noted that, ‘as the GDPR right is limited to data “provided by” the data subject, it excludes data such as reputational data’.50 This is an extremely acute problem which, stretched to its most extreme consequences, might totally undermine the role of the RtDP in the collaborative economy. In other words, the RtDP as such—or, rather, as has been construed in the GDPR—is not conducive and perhaps even inapplicable to a typical collaborative economy environment, where R&R mechanisms are the business cards of service providers. Elaborating on this, honestly, who would benefit from the RtDP in the collaborative economy if it is not possible to import/export reputational feedback? To put it differently, which service provider would knowingly migrate from one collaborative platform to another if it is necessary to start over? The question is ostensibly more acute for professional service providers. Essentially, what was conceived as a means suitable to reduce lock-in phenomena, and to foster competition in online markets, is ineffective under certain factual circumstances. Furthermore, this is not a problem of unfair competition practices; this is rather a problem of a market structure which, as such, could lead to market failures. Again, putting it differently, the RtDP is an excellent tool when it comes to personal data which, in turn, paradoxically, are perhaps less personal, e.g., a telephone number, a bank account, an insurance code or a supermarket loyalty card. But, when personal data are elaborated by a third subject, as regularly happens when R&R is submitted, the RtDP risks becoming useless. An established market incumbent, e.g., a restaurant or a hotel, does not need to worry about the RtDP because reputation often derives from years of business, from a recognized trademark etc. Therefore, moving an account from a platform—not a collaborative one, of course—does not create economic losses. Alternatively, they can sign up to different platforms so they can reach more customers. The scenario is not so intelligible in the collaborative economy. Problems and solutions overlap: multihoming—i.e., operating through different platforms—is allowed, yet the RtDP 49 50

 Graef et al. (2018a), pp. 1359–1398, 1387.  Lynksey (2017), pp. 793–814, 802; Graef et al. (2018b), pp. 200–223.

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cannot be exploited. As long as online reputation is not portable, lock-in phenomena exist. This is also critical in relation to potential abuses of dominant position, because, in the collaborative economy, valuable data are not only personal data as such but online reputational feedback. Certainly, the relevant product market has to be determined with all the difficulties inherent in two-sided markets; however it does not seem that the Commission is willing to include data—or reputation feedback—in its assessment.51 ‘Data portability bears many of the trappings of a competition remedy [...] however the right to data portability fits coherently within the EU data protection framework’.52 The circle is difficult to square, but the doctrinal observation that competition law and data protection belong to the same family53 is to be endorsed, especially in order to adapt a rigid framework to a fluid digital phenomenon. Thus, if competition amongst online operators has to shift from mere price reduction to non-price parameters, nothing prevents, based on third-party consent, a collaborative economy service provider from being allowed to port his/her R&R elsewhere. This approach would be based, first and foremost, on the consent of the user who materially submitted R&R, thus safeguarding individual consent as the yardstick of the GDPR. Second, it would also avoid also lock-in problems, allowing service providers to enjoy the objective possibility of multihoming. Third, this would foster competition amongst collaborative platforms, whereby, since they allegedly do not offer the underlying service, they would essentially compete solely for the intermediation environment they offer. Whether this solution is technically, practically and legally feasible remains to be seen. Legally speaking, as the first and perhaps critical problem lies in the fact that some collaborative platforms also provide the underlying service, they are interested in keeping potential new entrants at bay. Technically speaking, feasibility also depends on the level of investment in technology that has been made. Practically speaking, much is left to national antitrust authorities and, eventually, to the Commission to verify whether the RtDP can constitute a viable instrument. To date, it seems that there are no signs in this direction, but it is also true that the wait-and-­ see approach of the Commission cannot last forever. Sooner or later, collaborative platforms should also be investigated.

6.6  Conclusion The collaborative economy is rapidly disrupting even the most consolidated acquisition of EU competition law and EU data protection law. Due to the fact that collaborative platforms operate and compete in two-sided markets, it is difficult to  Graef (2015), pp. 473–506.  Lynksey (2017), p. 814. 53  Costa-Cabral and Lynskey (2017), pp. 11–50; Kalimo and Majcher (2017), pp. 210–233. 51 52

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evaluate whether there are potential abuses of dominant position according to Article 102 TFEU. Furthermore, the uncertain status of service providers prevents us from categorizing them as self-employed—thereby they are subject to EU competition law—or workers. In addition, to date, potential infringements of Article 101 TFEU have not been reported. Collaborative platforms also bear the obligations stemming from the GDPR, in respect of both service providers and users, thus ensuring fairness of treatment,54 first and foremost, as well as all the other rights bestowed on individuals according to the GDPR. The massive accumulation of anonymized and mechanized data is not yet considered as a potential abuse of dominant position by the Commission. Conversely, national antitrust authorities are exploring this possibility in relation to social networks. The RtDP enshrined in Article 20 of the GDPR could, in principle, be useful to bridge the gap between competition law and data protection. In line with the boost in the data-driven economy, aimed at ensuring consumer welfare and industrial innovation, porting user data from one platform to another seems the best way to ensure strands of competition law and consumer protection. Nonetheless, it has been highlighted that this is not conducive to the achievement of the objectives of the GDPR and the DSM. Indeed, users and service providers can port their personal data but cannot port their online reputation. Throughout this book, it has been constantly highlighted that online reputation is the key enabling factor of a successful digital data economy. Thus, Article 20 of the GDPR is not a viable solution for the collaborative economy. Big data can also lead to anticompetitive practices, being at the turning point of personalized pricing and aggressive commercial behaviour. Again, despite much doctrinal attention, neither the Commission nor national antitrust authorities has/ have deeply investigated the phenomenon. In conclusion, bridging the gap between EU data protection and EU competition law is still in its infancy with regard to the collaborative economy. Further, the most recent practices are unfit to dispel doubts. The likely encounter between two of the most famous actors in the law of the EU is hence postponed. The GDPR can also fail before collaborative platforms. Despite great efforts, EU competition lawyers and academics have failed to reach definitive conclusions on how to apply competition law to collaborative platforms. Attention has been devoted to online platforms but collaborative platforms, as explained in Chap. 2, are of a different nature. A possible solution, yet to be explored and tested against the triple features of competition law, consumer protection and collaborative platforms would simply implicate an added level of cooperation and coordination between national antitrust and data protection authorities with the Commission and the EDPS. As the network effects of multisided markets show, what is apparently given away for free on one side is heavily subsidized on the other. For instance, considering the amount of personal data, a national data protection authority could ask its EU homologue 54

 Clifford and Ausloof (2018), pp. 130–187.

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whether this is legitimate. In turn, competition authorities can do the same by involving the Commission. This sort of network effect would bring clarity to the field of collaborative platforms, to the extent that it would at least (theoretically) be clear what they are allowed to do, and what they are prevented to do. Clarity and legal certainty are of the utmost importance in this rapidly changing scenario and the only tools to achieve the smooth functioning of the DSM.  That said, these aspects are also crucial, should the Commission decide to propose a legislative act in this field.

References Brkan M (2016) The unstoppable expansion of the EU fundamental right to data protection. Little shop of horrors? Maastricht J Eur Comp Law 23(5):812–841 Capobianco A, Nyeso A (2017) Challenges for competition law enforcement and policy in the digital economy. J Eur Compet Law Practice 9(1):19–27 Cauffman C (2016) The Commission’s European agenda for the collaborative economy – (too) platform and service provider friendly? J Eur Consum Market Law 5(6):235–243 Celeste E (2019) The Court of Justice and the ban on bulk data retention: expansive potential and future scenarios. Eur Const Law Rev 15(1):134–157 Clifford D, Ausloof F (2018) Data protection and the role of fairness. Yearb Eur Law 37(1):130–187 Colangelo G, Maggiolino M (2017) Big data as misleading facilities. Eur Compet J 13(2–3):249–281 Colangelo G, Maggiolino M (2018) Data accumulation and the privacy-antitrust interface: insights from the Facebook case. Int Data Privacy Law 8(3):224–239 Costa-Cabral F (2016) The preliminary opinion of the European Data Protection Supervisor and the discretion of the European Commission in enforcing competition law. Maastricht J Eur Comp Law 23(3):495–513 Costa-Cabral F, Lynskey O (2017) Family ties: the intersection between data protection and competition in EU law. Common Market Law Rev 54(1):11–50 Daskalova V (2018) Regulating the new self-employed in the Uber economy: what role for EU competition law? German Law J 19(3):461–508 Davilla M (2017) Is big data a different kind of animal? The treatment of big data under the EU competition rules. J Eur Compet Law Practice 8(6):370–381 Doherty B (2001) Just what are essential facilities? Common Market Law Rev 38(2):397–436 Dunne N (2018) Competition law and (its limits) in the sharing economy. In: Davidson NM, Finck M, Infranca JJ (eds) The Cambridge handbook of the law of the sharing economy. Cambridge University Press, Cambridge, pp 91–107 Exploratory study of consumer issues in online peer-to-peer platform markets. Task 4 – Airbnb – Case study report. European Commission produced by Consumers, Health, Agriculture and Food Agency (CHAFEA) on behalf of Directorate General for Justice and Consumers. February 2017 Exploratory study of consumer issues in online peer-to-peer platform markets. Task 4 – Uber – Case study report. European Commission produced by Consumers, Health, Agriculture and Food Agency (CHAFEA) on behalf of Directorate General for Justice and Consumers. February 2017 Graef I (2015) Market definition and market power in data: the case of online platforms. World Compet 38(4):473–506 Graef I, Husovic M, Purtova N (2018a) Data portability and data control: lessons from an emerging concept in EU law. German Law J 19(6):1359–1398

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Graef I, Clifford D, Valcke P (2018b) Fairness and enforcement: bridging competition, data protection and consumer law. Int Data Privacy Law 8(3):200–223 Hatzopoulos V (2018) The collaborative economy and EU law. Hart Publishing, Oxford Helberger N, Zuiderveen F, Reyna A (2017) The perfect match? A closer look at the relationship between EU consumer law and data protection law. Common Market Law Rev 54(5):1427–1466 Hoppner T (2015) Defining markets for multi-sided platforms: the case of search engines. World Compet 38(3):349–366 Kadar M, Bogdan M (2017) ‘Big data’ and EU merger control – a case review. J Eur Compet Law Practice 8(8):479–491 Kalimo H, Majcher K (2017) The concept of fairness: linking EU competition and data protection law in the digital marketplace. Eur Law Rev 42(2):210–233 Langhanke C, Schmidt-Kessel M (2015) Consumer data as consideration. J Eur Consum Market Law 5(6):218–223 Lougher G, Kalmanowicz S (2016) EU competition law in the sharing economy. J Eur Compet Law Practice 7(2):87–102 Lucchini S, Moscianese J, de Angelis I, Di Benedetto F (2018) Online digital services and competition law: why competition authorities should be more concerned about portability rather than about privacy. J Eur Compet Law Practice 9(9):563–568 Lynksey O (2015) The foundations of EU data protection law. Oxford University Press, Oxford Lynksey O (2017) Aligning data protection rights with competition law remedies? The GDPR right to data portability. Eur Law Rev 42(6):793–814 Modrall J (2018) Big data and merger control in the EU. J Eur Compet Law Practice 9(9):569–578 Organisation for Economic Co-Operation and Development (OECD) (2016) Big data: bringing competition policy to the digital era Pozzato V (2014) Opinion of the European Data Protection Supervisor: interplay between data protection and competition law. J Eur Compet Law Practice 5(7):468–470 Russo F, Stasi ML (2016) Defining the relevant market in the sharing economy. Internet Policy Rev 5(2):1–13 Scheean E (1999) Unilateral refusal to deal and the role of the essential facility doctrine. A US/EC comparative analysis. World Compet 22(4):67–89 Schneider G (2018) Testing Art. 102 TFEU in the digital marketplace: insights from the Bundeskartellhamt’s investigation against Facebook. J Eur Compet Law Practice 9(4):213–225 Sivinski G, Okuliar A, Kjolbye L (2017) Is big data a big deal? A competition law approach to big data. Eur Compet J 13(2–3):199–227 Stucke M, Grunes A (2016) Big data and competition policy. Oxford University Press, Oxford Townley C, Morrison E, Yeung K (2017) Big data and personalized price discrimination in EU competition law. Yearb Eur Law 36(1):683–748 Zanfir G (2012) The right to data portability in the context of the EU data protection reform. Int Data Privacy Law 2(3):149–162

Chapter 7

Regulating the Collaborative Economy: A Way Forward

Abstract  In light of the findings presented so far, Chap. 7 argues in favour of the regulation of the collaborative economy through the adoption of a directive targeting collaborative platforms. Indeed, not only does the European Union (EU) enjoy wide regulatory powers in the internal market domain, but it has also often made consistent use of them through Article 114 of the Treaty on the Functioning of the European Union (TFEU). Considering the scale, the disruptive effects as well as the fragmentation in and of the Digital Single Market (DSM), this directive would compatible with the principles of subsidiarity and proportionality. As for the content, taking into account a high level of consumer and personal data protection, together with tackling the phenomenon of false self-employment, some modest proposals are singled out in respect of such a directive’s potential material and personal scope of application. Keywords  Harmonization · Legal basis · Principle of subsidiarity · Principle of proportionality · Internal market rationality

7.1  Introduction The fil rouge of this book has been the idea that the collaborative economy is disrupting consolidated legal acquisitions—ranging from consumer protection, labour law, competition law and data protection—in such a deep manner that the European Union (EU) and national legislatures and jurisdictions have been, to date, unable to cope. Many examples testify to this inability. To start with, it is extremely difficult to ascertain whether a service provider is acting in a professional or non-­professional capacity, thereby making it virtually impossible to apply the bulk of EU consumer protection. It is often unclear whether a collaborative platform is so powerful as to exercise command and control over service providers, in turn creating a genuine employer-employee relation. Similarly, professional service providers struggle not to be tied by allegedly unfair terms and conditions unilaterally imposed by © Springer Nature Switzerland AG 2019 M. Inglese, Regulating the Collaborative Economy in the European Union Digital Single Market, https://doi.org/10.1007/978-3-030-30040-1_7

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collaborative platforms. Finally, in terms of competition law, they are accused of unfair practices in the underlying service market. These issues are, thus far, unsolved. National judges, as discussed in respect of labour law, continue to follow a case-by-case approach, based on the factual circumstances of each case and, of course, heavily influenced by the domestic normative framework. The Court of Justice of the European Union (CJEU) in the few disputes so far heard has taken a similar approach, being highly influenced by the structure of the underlying service. It is therefore unsurprising that the CJEU reached a comprehensive conclusion regarding Uber, but risks taking a diametrically opposite stance towards Airbnb. The collaborative economy is a magmatic phenomenon, whose granularity eludes any form of categorization whatsoever. It is unclear whether service providers should be deemed self-employed or employees. It is also unclear whether they provide services in a professional or non-professional manner. Consequently, for users, it is unclear whether they can rely on EU consumer law. Ultimately, it is unclear whether collaborative platforms compete in the underlying market against incumbents. Probably, the sole unquestionable aspect is the fact that collaborative platforms have to respect the rights of data subjects, whether service providers or users. Therefore, legal certainty is simply non-existent for all three parties involved in a typical transaction. This is, of course, untenable in a legal order based upon market integration and whose Digital Single Market (DSM) is now one of the core elements to be consistently harmonized and developed. In other words, how is it possible that such an unruly phenomenon can flourish without proper regulation? Above all, why is regulation lacking and why would it eventually be needed? In any case, does the political willingness to regulate the collaborative economy exist? This chapter seeks to respond to those questions which stem from Chaps. 2 to 6. To do so, it is recommended that the Commission steps in to regulate the collaborative economy as already endorsed by the Parliament and the Committee of the Regions. Such a regulatory effort, taking the form of a directive, would be based on Article 114 Treaty on the Functioning of the European Union (TFEU) as a means to harmonize a significant part of the internal market, an area in which the EU enjoys shared competence as per Article 4(2)(a) TFEU.1 Such a directive would have the beneficial effect of intervening in the greyest zones of the collaborative economy, without stifling the innovation platforms are bringing about the DSM. In this respect, not only would a clearer legislative framework enhance legal certainty but it would help to avoid fragmentation at the national level. After all, if the completion of the DSM is a necessary step, political decisions have to be taken. In this respect, a proposal for a regulation on promoting fairness and transparency for business users of online intermediation services (P2B Proposal) is undergoing a smooth legislative process.2 So, would it be possible to also extend this willingness to the collaborative economy?  Klamert (2015), pp. 360–379; Maletić (2013).  Proposal for a Regulation of the European Parliament and of the Council on promoting fairness and transparency for business users of online intermediation services, COM(2018) 238 final. After 1 2

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7.2  The Need for Regulating the Collaborative Economy The starting point is an evaluation of the necessity to regulate the collaborative economy as a whole phenomenon. This unequivocally stems from the need to ensure legal certainty to all the three parties involved, namely, a collaborative platform, a service provider and a user. Legal certainty is the only way to avoid, first and foremost, litigation before national jurisdictions—and, eventually, before the CJEU—as well as ensuring the smooth functioning of the DSM. Having said that, it must also be acknowledged that the political willingness to regulate a piece of the DSM is of crucial importance. In other sectors of the DSM, this political willingness has already been present, as already highlighted in respect of the P2B Proposal and of many other instruments so far adopted. Essentially, regulating an economic phenomenon seeks to achieve two coordinated goals: on the one hand, correcting negative externalities and market failures; on the other, achieving a level playing field for businesses. In the collaborative economy, the two aforementioned goals are inextricably linked and, by now, it should be clear that a legislative solution has to be found. Negative externalities and market failures are particularly evident; better still, they are present in press headlines and there is a growing concern about them. When one reads that the municipalities of Berlin, Amsterdam and Barcelona are struggling to regulate the maximum duration of short-term rentals, one should immediately conclude that Airbnb’s impact has been huge. Rental prices surge, proprietors are attracted by an easier opportunity to make money and seek to capitalize an asset which would otherwise be destined, for instance, to long-term and less profitable rent. Similarly, neighbourhoods are invaded by tourists creating the so-called Luna Park effect, whereby traditional activities are slowly forced out in favour of more attractive shops. Simply put, the collaborative economy is even disrupting consolidated human habits, and local legislators are still unable to face such a phenomenon.3 In respect of market failures, the main problems are related to the steady precarization of job opportunities and falling wages, the impossibility to unionize and claim social rights, and the fragmented status of workers. In Chap. 5, it was shown that national courts categorize as self-employed people engaged in the food delivery sector, while those who work for Uber have been deemed to be subordinate workers. In both cases, the fragmentation, or, better still, the incapacity to understand how legal categories should be applied and interpreted, is tremendously affecting the work-life balance of all individuals. Moreover, in this uncertainty, it is more and more difficult to claim social rights such as paid leave and unemployment allowance. If one works in his/her spare time, how would it be possible to argue in favour of a genuine employment relation? These problems are still unsolved. Further, when less than 13 months, the Parliament approved the final version of the proposal on 16 April 2019; now, only the final say of the Council is awaited. 3  Aloni (2016), pp. 1397–1459.

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one counterargues that these sorts of ‘student jobs’ should remain unregulated, it fails to recognize that the vast majority of those who participate in the collaborative economy are not students but individuals exploiting these opportunities as best they can. Therefore, the necessity to regulate the collaborative economy in order to obtain a level playing field is now stronger than ever. Chapter 4 showed that the collaborative economy is definitely undermining consumer protection for the simple reason that no one knows whether the counterparty in a typical, triangular, collaborative economy transaction is acting in a professional capacity or as peer. Consequences are different: in the former scenario, consumer law is surely applicable; in the latter, there would simply be no consumer protection at all. Besides, in any case, those who are keen on presenting themselves as professionals are exploiting, at best, business opportunities; therefore, they should be protected in respect of anticompetitive behaviour on the part of platforms or other competitors. Regulating the collaborative economy would thus imply a set of beneficial consequences for all actors involved. To start with, as the Commission acknowledges, the collaborative economy is growing more and more, such that it cannot be stopped, while also representing an opportunity for marginalized peoples. Service providers would be subjected to a set of rules capable of protecting them, either when they are self-employed4 or when they allege to be workers, thereby achieving a high level of legal certainty. Users would immediately be aware of the identity of their counterparty, enhancing the level of trust and reputational mechanisms and boosting the growth of transactions. Collaborative platforms, in turn, could be allowed to operate in the States from which they were excluded. Furthermore, they would witness an increase in their credibility to the extent that people would know that they are real market players and not intangible entities. Ultimately, their credibility would also combat new pernicious phenomena, such as algorithmic discrimination and rateand-reviews (R&R) mechanisms, as a disguised form of hire-and-fire power. All these arguments, taken together, strongly militate in favour of the regulation of the collaborative economy. This trend now seems consolidated, albeit with some differentiation, in the legal literature.5 In particular, authors who propose specifically advanced forms of self- and co-regulation perhaps fail to consider that this would be left in the hands of collaborative platforms, and it does not seem that they are willing to self-regulate themselves.6 In other words, self- and co-regulation is commendable, but it cannot correct all market failures and externalities that the collaborative economy is bringing in. For instance, algorithmic discrimination can be tackled more efficiently by collaborative platforms—and they have done so—without the need to regulate it. Furthermore, the same is true for fiscal purposes, whereby  Daskalova (2018), pp. 461–508; Grosheide and Barenberg (2016), pp. 193–236.  Chang (2015), pp. 1–15; Doménech-Pascual (2016), pp. 717–727; Katz (2015), pp. 1067–1126; Miller (2016), pp.  147–202; Ranchordas (2015), pp.  413–475; Scott and Brown (2017), pp. 553–599. 6  Cantero Gamito (2017), pp. 53–67; Cohen and Sundararajan (2015–2016), pp. 116–133; Finck (2018a), pp. 261–273; Finck (2018b), pp. 47–68. 4 5

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it is now common practice for collaborative platforms to simply return tourist levies to municipalities. Consumer protection can be achieved through more accurate reputational systems. But, what about labour law? What about professionalism and/or a lack thereof? Self- and co-regulation is a powerful tool, but it cannot solve all the problems linked to the collaborative economy. Furthermore, as Chaps. 2 and 3 showed, the collaborative economy is not the sharing economy: people do not share a room, people rent it for profit, meaning they are market operators. Further, this is not a question linked to the fact that regulation might stifling innovation, because collaborative platforms invented nothing. They do not enjoy any form of intellectual property protection. Self- and co-regulation would be useful and indeed be preferred in the case where an online platform matches demand and supply between two occasional users, when a small amount of money is transacted or where services are mutually exchanged. But self-regulation appears to be ineffective against tech giants. Altogether, self- and co-regulation would lack any sort of democratic accountability whatsoever by failing to address the aforementioned problems from a political perspective.7 This, in turn, is a key aspect by which to also ensure the involvement of stakeholders through the open consultations usually carried out by the Commission. So, if one endorses the assumption that the collaborative economy has to be regulated as an economic phenomenon, which is destined to stay and to be exploited at best, the next question concerns who should regulate it and, eventually, how.8 In this respect, an additional set of observations has to be made. First, to date, only a few States have legislation in place which is applicable to the online environment; in any case, this legislation falls foul the collaborative economy.9 Indeed, as shown in Chap. 5, litigation regarding the status of worker or self-­ employed in the collaborative economy has been resolved by resorting to the old categories of labour law and extending them to catch collaborative platforms. Second, if the Commission is really pushing for the completion of the DSM, it has to be acknowledged that, without legislation, this goal is unachievable. Certainly, some sectors might deserve more attention than others or are simply more under the spotlight and more visible; perhaps it is also easier to find a legislative and political compromise to ensure adoption by the first reading. However, that does not imply that more contentious areas are ‘children of a lesser god’—or, put another way, they should remain unregulated. This, in turn, calls into question the most appropriate regulatory level. It should be recalled that, often, all the micro parts of the underlying service of a collaborative economy transaction are regulated differently. So, urban transport and accommodation usually pertain to the municipal level, while food delivery is essentially linked to the (lack of) national understanding of the concept of digital workers. In the former sub-domain, some municipalities are encouraging collaborative  In this sense, see the seminal book: Scharpf (1999).  Hatzopoulos (2018b), pp. 211–227. 9  In France, see: Loi n. 2016-1321 du 7 octobre 2016 pour une République numérique; in Belgium, see: Loi programme n. 349 du 1 juillet 2016. 7 8

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platforms to adopt codes of good conduct to ensure a set of minimum rights for persons engaged in food delivery. Crucially, different layers overlap, and it is ­difficult to understand who should do what, not to mention how to avoid an encroachment of different competences. In addition to this fragmented picture, collaborative platforms operate in the territory of the EU through their branches. So, on the one hand, collaborative platforms cannot be prevented from establishing a branch or subsidiaries in a Member State, other from that of incorporation; on the other hand, service providers and users are caught by the scope of application of Article 56 TFEU, meaning that their freedom should not be restricted. Although some activities can be also caught by Directive 2006/12310 (Services Directive), others are not, most notably, transport. True, a strict home country control principle has been abandoned; it is also true that the principle of mutual recognition is still one of the EU internal market’s pillar.11 Hence, assuming that a collaborative platform is permitted to operate in the underlying service of urban transport in Member State A, would it be allowed to do so in Member State B? The latter could defend its allegedly restrictive legislation by invoking some overriding reasons of public interest; but, then again, a stricter proportionality test comes into play. This scenario would surely trigger a preliminary referral to the CJEU, whose outcome is uncertain and essentially depends on the factual and legal circumstances at stake.12 Ultimately, legal certainty for collaborative platforms, service providers and users would be totally undermined in a fully liberalized scenario as well.13 So, the regulation of a phenomenon that is transnational by nature would call into question the power to react on the part of the EU. In this respect, there is also growing institutional pressure to regulate the collaborative economy. At the very beginning, the Committee of the Regions stepped in,14 highlighting the salient features of the collaborative economy and how they affect local ­communities; subsequently, adopting a stronger stance, it invited the Commission to act.15 By contrast, two motions for resolutions of the Parliament opined that the regulation of the collaborative economy was not necessary.16 Later on, two resolu Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market OJ L 376, 27.12.2006, pp.  36–68. See also: Barnard (2008), pp. 323–394. 11  Davies (2007), pp. 232–245. 12  Horsley (2017), pp. 401–426. 13  Delimatsis (2018), pp. 188–250. 14  Opinion, Committee of the Regions, 3–4 December 2015, The Local and Regional Dimension of the Sharing Economy, COR-2015–02698-00–00-AC-TRA (Rapporteur: B Brighenti). 15  Draft Opinion, Committee of the Regions, 28 September 2016, Collaborative Economy and Online Platform: A Shared View of Cities and Regions, COR-2016–04163-00–00-PA-TRA (Rapporteur: B Brighenti). 16  See the two motions for a European Parliament resolution on the collaborative economy, 3 February 2016, B8-0249/2016 (Rapporteurs: S Monteal and F Philippot) and 22 February 2017, B8-0175/2017 (Rapporteurs: J Mélin and M Troszczynski). 10

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tions of the Parliament called for action; but it was only recently that it assumed a more decisive position towards the idea of regulating the collaborative economy.17 The content of this resolution is discussed in Sect. 7.4.1, which—as anticipated— puts forward some concrete proposals on how to regulate the collaborative economy. However, if one agrees that there is a growing consensus on the need to regulate the collaborative economy, it still remains to be seen whether the EU is competent and, if so, how it can intervene.

7.3  T  he EU Competence to Regulate the Collaborative Economy Much has been written and said about the EU competence to create and regulate the internal market18 or, rather, some specific markets.19 Similarly, this discussion is crucially tied to the power and limits of harmonization.20 Weatherill has already suggested that case law of the CJEU, as stemming from old tobacco litigation, is now a sort of drafting guide, both for the Commission and the CJEU when adjudicating new cases.21 Since the entry into force of the Treaty of Lisbon,22 the EU has been equipped with a vast arsenal of shared competences, many of which can prove to be useful to argue that the EU is sufficiently competent to regulate the collaborative economy. Article 4(2) TFEU lists the internal market, social policy, consumer protection and transport. As the previous chapters have shown, these areas are the most affected by the collaborative economy. In addition, Article 3 of the Treaty on the European Union (TEU) explicitly affirms that ‘the Union shall establish an internal market’. Meanwhile, at the beginning of the DSM Communication,23 President Juncker stated that he intends to take ‘ambitious legislative steps towards a connected digital single market’.24 So, identifying the presence of a specific competence is not a problem, since, basically, there exists more than one competence which can be used to bring the collaborative economy within the remit of the EU.

 European Parliament, Resolution of 15 June 2017 on a A European Agenda for the Collaborative Economy, 2017/2003(INI) (Rapporteur: N Danti). 18  Weatherill (2017a). 19  Weatherill (2017b), pp. 125–178. 20  Azoulai (2015), pp. 589–611; Davies (2017), pp. 74–89; Weatherill (2017c), pp. 82–101. 21  Weatherill (2011), pp. 827–864. 22  Claes and De Witte (2016), pp. 46–87; Rossi (2012), pp. 85–106. 23  Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions. A Digital Single Market Strategy for Europe, COM(2015) 192 final. 24  Political agenda of President Juncker—A New Start for Europe: My Agenda for Jobs, Growth, Fairness and Democratic Change, 15 July 2014. 17

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There is another element which testifies to the EU competence to intervene in the collaborative economy domain. The Commission has registered a European Citizens’ Initiative (ECI) aimed at persuading the Commission to propose a legislative act to guarantee a minimum income for self-employed people permanently working under the dependence of collaborative platforms.25 Under Article 4(2)(b) of Regulation 2011/211,26 the Commission registers an ECI if ‘the proposed citizens’ initiative does not manifestly fall outside the framework of the Commission’s powers to submit a proposal for a legal act of the Union for the purpose of implementing the Treaties’. In plainer terms, the Commission enjoys the power to submit a legal act for the purpose of implementing the Treaties in the domain of the collaborative economy. Linked to the EU competence, the issue of pre-emption should be carefully looked at from the perspective of the EU legislator. The principle of pre-emption has found its dedicated place in the legal literature but, surprisingly, has been somewhat neglected in legislative practice. Whereas commentators have discussed, at length, the effect of pre-emption over national legislation,27 the EU legislator and the CJEU have not described it independently, but as a side effect of legislation whereby, practically speaking, Member States can be prevented to act unless transposition and/or additional measures are required. Furthermore, once a directive or a regulation has been enacted, Member States are no longer at liberty to maintain their national standards, unless they are able to demonstrate that they are necessary and proportionate to pursue a public interest. This is nothing new for any EU lawyer. This issue is particularly acute for the collaborative economy, as Member States do not have any sort of regulation in force whatsoever. So, should the EU decide to act, this would entail occupying an entire field, leaving Member States with hardly any room for manoeuvre, limited to measures of transposition. In this legal vacuum, both at the European and the national level, what is at stake is, therefore, not what to regulate (the collaborative economy) nor when to regulate it (the sooner the better), but how to do so and, eventually, how to take into account the huge varieties in the underlying services’ market and the pre-existing—if any—laws in the Member States. In this sense, Arena succeeded in isolating different types of intervention, namely, full harmonization, minimum harmonization, partial harmonization and optional harmonization.28 This doctrinal effort is laudable insofar as it also recognizes the importance of the decision-making process and the acquired role of the Parliament as a co-legislator standing on an equal footing with the Council. However, it should be recalled that several different contingencies may prompt the Commission to legislate; and, amongst the most underestimated, there exists the political feasibility of  Commission decision (EU) 2019/540 of 26 March 2019 on the citizens’ initiative entitled #NewRightsNow—Strengthening the rights of ‘uberised’ workers. Commission registration number: ECI(2019)000004 Date of registration: 01/04/2019. 26  Regulation (EU) No 211/2011 of the European Parliament and of the Council of 16 February 2011 on the citizens’ initiative OJ L 65, 11.3.2011, pp. 1–22. 27  Arena (2010), pp. 477–556. 28  Arena (2010), pp. 501–511. 25

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an initiative. Data show that the average duration of an ordinary legislative procedure is about 17 months, whereas legislative acts are usually adopted at the first reading. This basically demonstrates that legislative practice is aimed at obtaining a political compromise in order to ensure smooth adoption, while harsh negotiations are somewhat reserved for extremely sensitive topics. Is the collaborative economy a topic so sensitive as to prevent the Commission to propose a legal act to harmonize it? Are the numerous sub-fields involved—transport, urban planning, housing etc.— so complex to justify a wait-and-see approach—at a national and a domestic level— thereby risking the total fragmentation of the DSM? Is the intervention of the CJEU in the debate so critical, despite the growing pressure of the Parliament? Ultimately, the Commission has not shied away from proposing legislation in the DSM as the P2B Proposal testifies. In conclusion, the EU is definitely competent enough to regulate the collaborative economy by making use of the general internal market clause or by relying on the legislative content, consumer protection, social policy or even transport. Surely, using a competence that is more strictly defined would imply a narrower content of the act, a risk to be avoided considering how granular the collaborative economy is. So, a general preference should be accorded to Article 4(2)(a) in order to ground the competence of the EU.  Now, it remains to be seen how it should be exercised29 through the impact of the principles of subsidiarity and proportionality and through the choice of a legal basis.

7.3.1  The Impact of the Principle of Subsidiarity The principle of the subsidiarity represents, alongside the principle of proportionality, the cornerstone of the EU’s shared competences exercise. The question here should be framed as follows: would EU legislative action ameliorate and enhance, in respect of the scale and the objectives to be achieved, Member States’ inertia? Multiple answers can be given, mostly varying according to the standpoint of an observer. For instance, one can perfectly argue that the EU has decisively enabled the deregulation of many economic sectors in order to increase competitiveness and foster business opportunities. After all, the principle of mutual recognition was introduced as a means to ensure free movement (of goods) in the absence of regulation whatsoever.30 On the opposite side, it is also undeniable that the EU has been entrusted with levelling the playing field in many economic sectors, in order to ensure the smooth functioning of the internal market, fair competition and all the other grounds listed in Article 12 TFEU, namely, consumer protection. By the same token, it is also true that the EU has often been accused of overregulating certain fields. In this respect, 29 30

 Schütze (2015), pp. 75–102.  Roth (2017), pp. 427–459.

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the cases on tobacco products are more instructive than ever.31 Crucially, on the one hand, the judicial review of the principle of subsidiarity is carried out solely in extreme circumstances, that is, when there are strong indicators that it could have been violated; on the other, subsidiarity can be considered as ‘an antidote to blind pursuit of “more Europe”’.32 Anyway, apart from the case of Germany v Parliament and Council,33 which annulled the first tobacco advertisement directive, the CJEU has not annulled any other pieces of legislation on the ground of a violation of the principle of subsidiarity.34 Last but not least, the involvement of national parliaments is an indirect guarantee of respect for the principle of subsidiarity.35 Indeed, to date, on a very few and controversial occasions, national parliaments sought to block a legislative proposal concerning a violation of the principle of subsidiarity.36 In this respect, it is instructive to look at the reports sent by national parliaments in the case of the P2B Proposal. The Czech, French and Dutch Senates as well as the Portuguese Parliament and the Czech Chamber of Deputies presented observations. Well, no one complained about the goals to be achieved, the means chosen to achieve those goals, the content of the acts, nor lamented the issues related to respecting the principles of subsidiarity and proportionality. This corroborates once again the assumption that, first, satisfying the principle of subsidiarity—although it should be sensitively managed—is not so complicated, especially in highly technical domains. Second, national parliaments express concern regarding what really touches upon the sovereign political choices of a Member State and, potentially, if domestic legislation is already in force. In essence, once the Commission decides to trigger an ordinary legislative procedure, albeit formally speaking, a thorough evaluation of the principle of subsidiarity is required, in practice, this is quite lenient to the extent that the respect of that principle is subsumed in re ipsa. In plainer terms, the respect of the principle of subsidiarity is tautological: if an act is proposed, then the principle of subsidiarity is automatically respected. Solely in the most controversial instances, there is a genuine assessment that, as is well known, has been externalized and entrusted with  In chronological order: case C-376/98, Federal Republic of Germany v. European Parliament and Council of the European Union, judgment of 5 October 2000; case C-491/01, The Queen v. Secretary of State for Health, ex parte British American Tobacco (Investments) Ltd and Imperial Tobacco Ltd., judgment of 10 December 2002; case C-380/03, Federal Republic of Germany v. European Parliament and Council of the European Union, judgment of 12 December 2006; case C-547/14, Philip Morris Brands SARL and Others v. Secretary of State for Health, judgment of 4 May 2016; case C-358/14, Republic of Poland v. European Parliament and Council of the European Union, judgment of 4 May 2016; case C-477/14, Pillbox 38 (UK) Limited, trading as Totally Wicked v Secretary of State for Health, judgment of 4 May 2016. 32  Weatherill (2011), p. 846. 33  Case C-376/98, Federal Republic of Germany v. European Parliament and Council of the European Union, judgment of 5 October 2000. 34  See also Biondi (2012), pp. 213–227. 35  Cygan (2016), pp. 114–138; Oberg (2018), pp. 695–731. 36  Fromage (2015), pp. 5–27. 31

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national parliaments. Certainly, given the sensitivity of some topics impinging upon the collaborative economy—essentially, urban transport—it cannot be completely ruled out that national parliaments would raise some doubts; yet, they can be ­dispelled, considering the extremely fragmented domestic landscape and national inertia.

7.3.2  The Impact of the Principle of Proportionality The principle of proportionality does not imply a detailed analysis, such as that carried in respect of the principle of subsidiarity. The reason is unsurprisingly straightforward, to the extent that, looking at the Commission’s practice as well as case law of the CJEU and the Protocol attached to the Treaty, both principles always go hand in hand. Henceforth, decoupling them into two different assessments is almost impossible. The CJEU, indeed, has consistently assessed them altogether, but always in the context of subsidiarity. So, proportionality, although formally separated from subsidiarity, is essentially a part of the same family. The adagio, according to which a measure is more proportionate to the goal to be achieved when it is less invasive of national prerogatives, is telling of the EU legislature approach. In particular, enacting a regulation would totally pre-empt Member States from acting whereas, by contrast, a directive would still leave them some room for manoeuvre. This, of course, pertains to the area of competence the EU is legislating within, and, in the case of the internal market, sharing competences is at stake. Yet, it would be erroneous to infer the use of a legislative instrument solely by reference to the area concerned. The example of the P2B Proposal is therefore extremely instructive. In an area of shared competence, the Commission proposed a regulation as the only possible means to regulate, in a top-down fashion, P2B relations. It could be speculated that the fear that collaborative platforms could acquire too much power persuaded the Commission not to leave space for Member States’ intervention. Be that as it may, choosing between a regulation and a directive is always a question of political and legal feasibility, as in the case of the P2B Proposal, but also in many other examples, e.g., the General Data Protection Regulation37 (GDPR) or the regulation on advanced medicinal product.38 In any case, the principle of proportionality does not seem to be an obstacle when deciding whether, and eventually how, to regulate the collaborative economy. Once  Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (Text with EEA relevance) OJ L 119, 4.5.2016, pp. 1–88. 38  Regulation (EC) No 1394/2007 of the European Parliament and of the Council of 13 November 2007 on advanced therapy medicinal products and amending Directive 2001/83/EC and Regulation (EC) No 726/2004 (Text with EEA relevance) OJ L 324, 10.12.2007, p. 121–137. See Varju and Sándor (2016), pp. 25–43. 37

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it has been established that the principle of subsidiarity has been complied with, proportionality merely becomes an accessory.

7.3.3  The Choice of a Legal Basis People accustomed to the study of EU law or with Brussels’ dynamics perfectly know that Article 114 TFEU has now become a sort of catch-all legal basis. In other words, what does not fall into a more specific category—for instance, data protection, considering that the GDPR is based on Article 16 TFEU—leads to Article 114 TFEU or to other functional legal bases—e.g., Article 168(4) TFEU—or even a cumulative list thereof. For instance, the proposal for a directive on the protection of persons reporting on breaches of Union law39 (Whistleblower Directive) is based on Articles 16, 33, 43, 50, 53(1), 62, 91, 100, 103, 109, 114, 168, 169, 192, 207 and 325(4) TFEU. Such a variety of legal bases, ranging from data protection to customs cooperation, from agricultural to transport policy, and from consumer to health protection, implies that choosing a legal basis or, rather, a long list thereof, is no longer a problem, as an act can be adopted through the ordinary legislative procedure. The procedural level seems to be a safe haven compared to what happened in the past, where it was necessary to determine the centre of gravity of an act. Be that as it may, how can it be possible to determine the centre of gravity of an act impinging upon several EU and Member State competences? The recent Whistleblower Directive indicates that the more an act entrenches various fields, the more it is possible to use a variety of legal bases. Furthermore, before the Treaty of Lisbon dismantled the pillar structure, the choice of legal basis was also important in order to ascertain whether a specific policy falls within the scope of the first, second and third pillars; nowadays, this problem no longer exists. Thus, choosing the most appropriate legal basis still remains a difficult exercise, but it has been deprived of its constitutional status; it essentially seems a mere procedural requirement, obviously challengeable under Article 263 TFEU. After all, if one rereads the Whistleblower Directive, it should be immediately noted that it is grounded on 16 (!) legal bases. To start with, the objective of pursuing market integration has to be real and genuine; therefore, it does not need to be used as leeway to harmonize sectors reserved for Member States, as happened in the tobacco litigation. Second, Article 114 TFEU basically seeks to remove internal market hindrances by way of positive integration in order to level the playing field for economic operators—and it is in this respect that some doubts can be cast. The so-called Tobacco Saga is too well known to be reported here but, for the sake of completeness, some observations can be made. In the last 20 years, the EU has been extremely active in seeking to regulate tobacco products and advertise39  Proposal for a directive of the European Parliament and of the Council on the protection of persons reporting on breaches of Union law, COM(2018) 218 final.

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ments as part of its public health agenda. Nonetheless, the EU enjoys a shared competence for what concerns common safety concerns in public health matters (Article 4(2)(k) TFEU), while it is competent in supporting, coordinating or supplementing Member States’ actions regarding the protection and improvement of human health. Furthermore, Article 168(5) TFEU stipulates that the EU can take actions to protect public health regarding tobacco, while ‘excluding any harmonisation of the laws and regulations of the Member States’. So, the directive40 enacted for this purpose was attacked and the CJEU ruled that it went beyond its purpose and that, at the end of the day, it harmonized national laws and regulation without creating a level playing field for business operators, thereby entailing a patent violation of the principle of subsidiarity. In other words, the internal market was not so fragmented as to require genuine EU intervention; therefore, the use of the current Article 114 TFEU was not supported by empirical evidence. Over the years, it has been cleverly analysed that the use of legal bases litigation was a means to achieve political objectives by Member States outvoted in Council41 while, nowadays, this hypothesis seems less probable, given that the ordinary legislative procedure requires a majority vote. Therefore, which legal bases can be used to enact a directive to harmonize the collaborative economy? Well, hopefully less than 16, but, to be abundantly clear, one can name at least the following from the TFEU: (1) Article 46; (2) Article 50; (3) Article 53; (4) Article 91; (5) Article 114; (6) Article 169. Essentially, those legal bases pursue a variety of goals all of which are relevant to the regulation of the collaborative economy: free movement of workers, establishment for self-employed workers, transport, consumer protection and harmonization. So, from a legal angle, there is ample opportunity to engage in a regulatory exercise by making use of several provisions enshrined in the Treaty. In this sense, it is interesting to note that the organizing committee who submitted the ECI, which requested the Commission to propose a legal act to guarantee a minimum income to self-employed workers in the collaborative economy, used Articles 151 and 153 TFEU as potential legal bases. Furthermore, the proposed legislative project generically refers to a threshold to be determined by each Member State and according to different sectors—i.e., in collaborative economy jargon, underlying services/markets—and, once overcome, a self-employed person would be entitled to a basic income. Thus, there exists a sensitivity that something has to be done, and the Commission seems inclined to respond to these needs. How and when are different problems, essentially linked to the features of an ECI as an instrument of participatory democracy. In conclusion, given the wide spectrum of activities covered by the collaborative economy and pertaining to the underlying service, it would be difficult to solely use Article 114 TFEU as a legal basis. Therefore, other opportunities can be explored, and the current legislative practice confirms that this option is safe and sound. What  Directive 98/43/EC of the European Parliament and of the Council of 6 July 1998 on the approximation of the laws, regulations and administrative provisions of the Member States relating to the advertising and sponsorship of tobacco products OJ L 213, 30.7.1998, pp. 9–12. 41  Cullen and Charlesworth (1999), pp. 1243–1270. 40

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is important, above and beyond the discourses surrounding the choice of a legal basis, as well as respect for the principles of subsidiarity and proportionality, is the goal to be achieved.

7.4  The Suitability of a Directive In light of the above observations, a directive as an act of minimum harmonization42 seems to be the best instrument to regulate the collaborative economy. Surely, it has to be cleverly drafted so as to achieve its objectives. In this sense, first and foremost, such a directive should not stifle innovation by imposing overly burdensome requirements; rather, it would offer a floor for the collaborative economy and steer national legislation to build a ceiling for those matters impacting at the urban level of each municipality. The point at stake is that the collaborative economy produces negative externalities, especially in some urban zones, and affects specifically services offered at an urban level. Therefore, the intervention of Member States is necessary to add substance to the provision of a directive. Of significance here is the fact that such a directive ought to impose upon Member States a differentiated set of obligations— singled out in the next paragraph—according to the capacity of service providers. By contrast, collaborative platforms should be the main target of such a directive. Of course, a directive aimed at harmonizing the collaborative economy would also have the merit of leaving Member States free to determine how to transpose it43 and, more importantly, how to achieve a decent level of harmonization, because this is the real contentious point. Indeed, if a lighter touch—if any—is needed in respect of occasional service providers, more stringent solutions are needed for those who use collaborative platforms in a professional way. Correspondingly, this would enhance the level of consumer protection. Moreover, the very fact that collaborative activities tend to impact local communities calls into question the territorial structure of each and every Member State, as well as the internal distribution of competences between the central and the territorial level.44 That said, a directive should take this variety of exigencies duly into account, being hence addressed to Member States, of course, but aimed at significantly hitting all those forms of business and professional use that are now intrinsically present in the collaborative economy. There is no need to impose administrative burdens on those who seldomly—although not gratuitously—make of use of collaborative platforms.  Dougan (2000), pp. 853–885.  Klàr (2016), pp. 220–242. 44  Case C-156/13, Digibet Ltd and Gert Albers v Westdeutsche Lotterie GmbH & Co. OHG, judgment of 12 June 2014; case C-51/15, Remondis GmbH & Co. KG Region Nord v Region Hannover, judgment of 21 December 2016; opinion of Advocate General Mengozzi, case C-115/14, RegioPost GmbH & Co. KG v Stadt Landau in der Pfalz, 9 September 2015. 42 43

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The suitability of a directive essentially lies in the possibility to differentiate through legislative means between different needs and, in turn, to stress the most disruptive.

7.4.1  The Content of a Directive Having put forward the proposal to regulate the collaborative economy through a directive, it is necessary to put flesh on the bones of this idea, at least in terms of its basic contents. At first, it is necessary to supply the notions of collaborative platform, service provider and user. Particular attention should be paid to the distinction between professional and non-professional service provider. In this sense, useful suggestions are already enshrined in the communication on online platforms45 and in the agenda on the collaborative economy (the Agenda).46 So, it would be possible to propose a functionalist definition of collaborative platform as a sub-category of online platform and stressing its constitutive elements. Thus, a collaborative platform would be an entity that is able either to act in an intermediate role in the context of demand and supply as a mere matchmaker or as a market creator, following the case law of the CJEU. In this sense, this distinction could also pave the way for a differentiation between a professional or non-professional service provider who can claim to be genuinely self-­employed and others who can claim to be subordinate workers. A professional service provider is, therefore, somebody who is acting in his/her professional capacity through the intermediation of a collaborative platform for the purpose of his/her business. In this respect, this qualification has to be easily and immediately understandable for users through appropriate symbols. This would enable them to be aware of their rights as a consumer. A professional service provider would be somebody who, per each calendar year, performs a certain number of transactions. The reference to the number of transactions seems to be the most neutral criterion with which to determine the level of professionalism. Indeed, it would be ineffective to impose a certain economic threshold or a determined annual turnover because, as has been shown, collaborative economy transactions are often concentrated in the most touristic areas. So, for an Airbnb host in Paris, it is perhaps easier to rent his/her spare apartment out for a determined number of nights per calendar year. By the same token, it would be hard to impose this requirement on drivers since, in a single day, multiple transactions can happen. Here, of course, much depends on the underlying service to be performed. Therefore, the number of  Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions—Online Platforms and the Digital Single Market Opportunities and Challenges for Europe, COM(2016) 288 final. 46  Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of Regions. A European agenda for the collaborative economy, COM(2016) 356 final. 45

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transactions coupled with their continuity and stability, cumulatively taken, could be an appropriate yardstick by which to determine both the professionalism and the genuine self-employment of a service provider. Conversely, those service providers who do not reach the number of minimum transactions per calendar year should be considered as non-professional service providers and, consequently, labelled as such through intelligible symbology. Ultimately, users are those non-professional individuals making use of the collaborative economy: it is as simple as that. The material and territorial scope of application has to be construed in a broad manner. In this sense, the ample scope pursued by the GDPR can be instructive. Indeed, it is applicable to individuals residing in the territory of the EU as well as to those undertakings supplying services in the territory thereof. In this sense, considering that many collaborative platforms are incorporated elsewhere but offer services to individuals located in the EU that would be appropriate. This directive should also envisage advanced forms of consumer protection, social entitlements and administrative cooperation, as well as coordinate them with other pieces of EU secondary law, especially the GDPR and consumer protection instruments. Of course, additional norms could be foreseen, for instance, a differentiated liability regime for platforms, professional and non-professional providers, the exclusion of specific fields—e.g., services of general economic interests, such as healthcare—or others entailing the possession of qualification—e.g., legal counselling, notaries—but these should not affect the light-touch regime necessary to bring clarity and legal certainty. For these reasons, the resolution of the Parliament is highly instructive. It is a well drafted text, setting out the state of the art of the collaborative economy and acknowledging what should be done. The Parliament, therefore ‘encourages Member States to provide legal clarity and not to view the collaborative economy as a threat to the traditional economy; stresses the importance of regulating the collaborative economy in a way that is facilitating and enabling rather than restrictive’47; moreover, it considers that ‘the development of a dynamic, clear and, where appropriate, harmonised legal environment and the establishment of a level playing field is an essential precondition for a flourishing collaborative economy in the EU’.48 Considering the growing political pressure and the decisive steps taken by the Parliament and the Committee of the Regions, the body of judgements already delivered by the CJEU, the civic pressure initiated through a dedicated ECI and the multifaceted consensus amongst scholars,49 it is hoped that the Commission will decide to propose a legislative act. As for its content, much depends on the political  European Parliament, Resolution of 15 June 2017 on a European agenda for the collaborative economy, 2017/2003(INI) (Rapporteur: N Danti), general consideration n. 4. 48  European Parliament, Resolution of 15 June 2017 on a European agenda for the collaborative economy, 2017/2003(INI) (Rapporteur: N Danti), general consideration n. 8. 49  Busch et al. (2016), pp. 3–10; Inglese (2018), pp. 375–396; Mak (2017), pp. 87–102; Smorto (2015), pp. 245–277; Van Cleynenbreugel (2017), pp. 697–722; Simon (2017), pp. 521–532. 47

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compromise to be achieved, especially considering the new composition of the Parliament for the period 2019–2024 and the new Commission’s agenda.

7.5  Conclusion Regulating the collaborative economy is a pressing need, now more than ever. For the time being, uncertainties are destined to increase, for the simple reason that the underlying service is always different. National courts have already delivered important judgements, but these are contributing to the fragmentation of the market on a national basis. Even the CJEU risks being trapped in the multiplicity of underlying services as the differences from the reasoning in Elite Taxi50 and Airbnb Ireland show.51 The European Parliament and the Committee of the Regions are pushing the Commission to propose a legislative act to regulate the collaborative economy. The ECI recently registered by the Commission is a further element pointing to an awareness to legislate. All these elements, taken together, show that there is a willingness to persuade the Commission to act. Whether the Commission will do so is a different question, essentially linked to its political willingness rather than legal dimension. Legally speaking, as has been shown, it seems there are no obstacles to act. By contrast, not to act would create hindrances to the smooth functioning of the DSM. In this respect, a study of the Parliament stresses that the economic costs of inaction can be greater than those of action52 and that, in any case, any response bears a regulatory cost of its own. Furthermore, a political decision to regulate the collaborative economy would also enhance the legitimacy of the EU in the eyes of its citizens. The Commission has legislated in several fields of the DSM, most of which were uncontroversial. Now, it is perhaps time to take the lead and dare to propose a more audacious act.

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Chapter 8

Conclusion

This book has sought to survey the main controversial aspects of the collaborative economy within the development of the European Union (EU) Digital Single Market (DSM). The DSM is a significant, fast-growing and technologically driven part of the internal market, encompassing various sub-fields, such as, but not limited to, broadband networks, parcel delivery, copyright, geo-blocking, roaming fees and mere online platforms. The Commission has put forward an ambitious legislative agenda that, in several of the aforementioned sectors, has led to the enactment of brand-new legislation or to the update of existing instruments. Both the collaborative economy and the DSM are new phenomena which have attracted a plethora of different reactions, ranging from anger and enthusiasm, as well as business-oriented opportunities, to concerns over social rights and consumer protection. The collaborative economy, which derived from sharing an idle asset, is no longer in its infancy. At the very beginning, online platforms were simply used to match demand and supply, hence substituting word of mouth or an announcement in the local press as the fastest method to reach a wider community, albeit often located in the same geographical space. Online platforms have since evolved into collaborative platforms and become tech giants operating all over the world and offering an infinite variety of underlying services, e.g. accommodation, transport, food delivery, crowd-work, legal counselling. Individuals previously shared idle assets for free or in the hope of reciprocation in kind sooner or later; the activity was not aimed at obtaining a gain: the spirit of sharing was strong and driven by ancillary exigencies, for instance consumption and environmental awareness as means to contrast consumerism. Individuals exchanged on a peer-to-peer basis; nowadays, service providers are often professionals who make a living out of collaborative economy transactions. In the most critical instances, service providers claimed to be considered workers, hence being entitled to the guarantees typical of subordination, e.g. retirement schemes, health insurance, unemployment allowance, maternal (or paternal) leave. Ultimately, users have not changed; they always seek something they do not have, be it a room, a car ride © Springer Nature Switzerland AG 2019 M. Inglese, Regulating the Collaborative Economy in the European Union Digital Single Market, https://doi.org/10.1007/978-3-030-30040-1_8

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or something else. But they are no longer simple users, localized in a small neighbourhood; rather, they are dispersed and assume the shape of consumers. To date, there is no fit for purpose legal framework able to encapsulate the collaborative economy and to guarantee legal certainty to the three actors of a transaction, that is, a platform, a service provider and a user. Bearing in mind these empirical observations, the six central chapters of this book present six different, albeit entrenched and overlapping, reasons why the EU should step in to propose an act to regulate the collaborative economy. Chapter 2 showed the constant rise of the collaborative economy as a new and probably permanent phenomenon, whose constitutive elements are still to be determined. Indeed, whereas the remuneration of a service provider is a common ground, much depends on the powers exercised by a collaborative platform over them and users alike. Furthermore, there could be countless underlying services, thereby making it difficult to ascertain the fitness for purpose of a predetermined legal regime. This element, to date, has led the Court of Justice of the European Union (CJEU) to distinguish between Uber and Airbnb on the basis that the former is a market-maker active in the sector of (urban) transport while the latter is a matchmaker enabling professionals and non-professionals to operate in the field of real estate. Chapter 3 sought to reconduct the collaborative economy within the domain of EU classical economic liberties, such as the free movement of workers, the freedom of establishment and the freedom to provide services enshrined into the Treaty on the Functioning of the European Union (TFEU) while, at the same time, arguing that the collaborative economy falls foul EU secondary legislation. This is so, it should be stressed again, due to the variety of potential underlying services. More precisely, if an underlying service is not caught by the Information Society Service Directive, it cannot benefit from the liberalised regime set out by the e-Commerce Directive. In addition, given that collaborative platforms do not assemble a creative effort, the Database Directive is not applicable either. Essentially, to date, the only instrument surely applicable to the collaborative economy is the General Data Protection Regulation (GDPR). Chapter 4 tackled the collaborative economy from the standpoint of consumer protection; however, even in this respect it is hard to find a proper systematization. Whereas consumer protection is based upon the rigid theoretical assumption that traders and/or professionals are opposed to consumers, and exploit their market force, in a collaborative economy domain it is almost impossible to distinguish between them since a service provider can operate on a totally random basis and for an extremely limited time span. In this sense, it has been showed that the general obligation of good faith could be a useful proxy to understand whether a service provider is acting in a professional capacity. Valid indicators to overcome this flaw can be found in rate-and-reviews (R&R) mechanisms, thereby enabling users to know in advance who their counterparty is. Furthermore, behavioural studies show that users do not read the mass of information they have been supplied by collaborative platforms. This overall analysis concluded that the bulk of EU consumer protection law is inapplicable.

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Chapter 5 delved into how the collaborative economy disrupts labour law which, in turn, is based on the dichotomy between an employer and an employee. Hence, it has been discussed whether service providers should be considered as subordinate workers or self-employed while, on the other hand, it is doubtful whether collaborative platforms meet the requirement of a classical employee. In this scenario too, a possible categorization depends on the powers a platform can exercise. A significant part thereof has been externalised to users who, through R&R, influence a service provider’s fate to the extent that he/she can be excluded from the platform if the R&R aggregate drops below a certain threshold. These uncertainties deeply jeopardise workers’ social rights, making them difficult to be claimed before a court of law. A possible way out can derive from the horizontal direct effect of some provisions of the Charter of Fundamental Rights of the European Union (the Charter), such as the right to paid annual leave. At the national level, dispute so far heard reached extremely different solutions, holding that Uber drivers are workers, but people engaged in food delivery activities are not, thereby increasingly fragmenting the status of worker and, ultimately, the DSM. Chapter 6 intended to bridge a gap between EU competition law and EU data protection, considering that the former is a fundamental right protected by the Charter and recently under the spotlight thanks to the enactment of the GDPR. In this respect, two different set of observations have been made. First, given that platforms operate in two-sided markets, it has to be ascertained how they compete against themselves and against established incumbents in the underlying market. Second, although platforms massively accumulate and treat personal data, therefore creating so-called big data, this does not seem to be, per se, an anticompetitive behaviour. Probably, stocking big data can be deemed a barrier to penetrate the relevant underlying market. To overcome this, the right to data portability, as enshrined in the GDPR, has been explored too, showing that it might be an inefficient solution. Indeed, R&R can be an important part of data but they cannot be ported from a platform to another. In light of the above observations, Chap. 7 advocated in favour of an EU legislative intervention able to level the playing field for business operators while simultaneously guaranteeing a high level of consumer protection, fairer working condition, protection of personal data and undistorted competition. The legal analysis carried out throughout this book has been accompanied by the study of several independent reports; they all point to the direction that, sooner or later, a regulatory intervention is needed. Regulating the collaborative economy would correct negative externalities—such as rental price surge as well as the so-called Luna Park effect—and market failures, namely, the precarization of job opportunities and the fragmented status of workers. To overcome these negative aspects, a top-down approach seems appropriate, to the extent that it would be legitimised by a political approval from the Council and the Parliament while imposing the same obligations to all Member States, platforms and service providers. Therefore, it has been argued that the EU is competent to intervene, since it possesses a shared competence in the broad internal market domain. Such a EU regulatory intervention would take the form a directive, so as to ensure the respect of national specificities as well as the principles of

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s­ ubsidiarity and proportionality. Such a directive should bring terminological clarity and, possibly, predetermined parameters useful to distinguish when a service provider is a professional, thereby fostering consumer protection. In addition, knowing if a platform behaves like an employer would also enhance the applicability of workers’ social rights. Nonetheless, the political willingness to regulate a phenomenon as complex as the collaborative economy has been, to date, inconsistent. While the Commission has put forward several proposals in many fields of the DSM, it has somewhat shied away from tabling a solution to the collaborative economy conundrum. More recently, the European Parliament has taken a more vigorous stance, following an early opinion of the Committee of the Regions. The CJEU, by contrast, has been trapped in the underlying services’ varieties. So, if in Elite Taxi and Uber France the CJEU held that Uber cannot benefit from free movement rules since it is active in the domain of urban transport, Advocate General Szpunar more recently opined that Airbnb can. In other words, the CJEU is applying a different legal regime to collaborative platforms operating in different underlying markets. Nothing wrong as such but this is risky to the extent that collaborative platforms can operate in countless underlying markets and it is increasingly difficult to draw a line. The impact of the collaborative economy over our daily lives is destined to boom, while a piecemeal, national, often case-by-case approach will likely generate more and more uncertainty. After all, deciding whether, and if so, how to regulate a phenomenon has a regulatory cost of its own. Similarly, deciding not to regulate is also a regulatory choice. If the EU is praised to be a social market economy, it must intervene to correct market failures and negative externalities. The collaborative economy as a purely market-driven phenomenon is no exception to this. If the law is always accused of lagging behind real life, this is the time to show that something more can and should be done. If this book seeks to present the collaborative economy as it is now, an additional effort is needed to foresee what it will be in the future and, eventually, how it will be affected by a regulatory intervention. First and foremost, for the time being, it seems plausible that other preliminary referrals will reach the CJEU, probably involving other sectors affected by the collaborative economy. This is an important aspect since underlying services are infinite so a litigation can always arise. In this respect, it could be possible to draw a parallelism with cross-border healthcare, a phenomenon that occupied the CJEU and EU institutions for almost twenty years, until the enactment of a specific directive. Thus, patients continue to move across Member States but benefit from a stable and clear regime. This is exactly what could happen to the collaborative economy should a directive be enacted. For the abovementioned reasons, it would be desirable to match a legislative and a research agenda. At the EU legislative level, much is now entrusted to the new Commission, starting from November 2019. At the domestic level, Member States do not have in force legislation apt to catch the collaborative economy, consequently they are intervening solely to tackle the most pressing needs; however, there is no coordinate strategy. Therefore, it would be essential to put in place a research agenda oriented to explore the several layers of the collaborative economy. In this sense,

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closer attention is to be dedicated to legislative, judicial and institutional novelties. For instance, should the Commission trigger an investigation for abuse of dominant position in the collaborative economy that would bring clarity to the notion of data as a potential essential facility. Moreover, should a litigation involve a food delivery worker and a platform, it would be interesting to see whether a national court would decide the case through the horizontal direct effect of the Charter. Similarly, cases could involve users against service providers, invoking the applicability of EU consumer law. Developments can be countless as well as promising. What is the future of the collaborative economy? This is the research question to be answered in the next future. If the collaborative economy is the evolution of the sharing economy, foreseeing other adaptations is hard. However, it seems unlikely that the collaborative economy will be dismantled by legislative interventions. Similarly, it does not seem probable that users will stop to use collaborative platforms because they now are part of our daily lives and habits. Perhaps they will change, implementing a different set of services and penetrating new markets, transforming themselves into something different without losing their original business model. The collaborative economy is, in conclusion, a human and economic phenomenon, driven by new technologies, data and human forces. It is something that adds another layer of complexity to relationship between human beings and technology, between regulation and innovation. Enormous business opportunities for tech giants, enormous potentiality in terms of innovation and enormous choice for the wider public should not undermine modern acquisitions such as consumer protection and workers’ social rights. A phenomenon needs to be regulated not to constrain innovation or to curtail new ideas but to ensure that everybody can have access to what is new and better. This is the regulatory challenge that law-makers at every level should accept and endorse without hesitation.

List of Acts

Regulations (in Chronological Order) • Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems OJ L 166, 30.4.2004, pp. 1–123 • Regulation (EU) No 211/2011 of the European Parliament and of the Council of 16 February 2011 on the citizens’ initiative OJ L 65, 11.3.2011, pp. 1–22 • Regulation (EU) No 524/2013 of the European Parliament and of the Council of 21 May 2013 on online dispute resolution for consumer disputes and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC (Regulation on consumer ODR) OJ L 165, 18.6.2013, pp. 1–12 • Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation), OJ L 119, 4.5.2016, pp. 1–88

Directives (in Chronological Order) • Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts OJ L 95, 21.4.1993, pp. 29–34 • Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases, OJ L 77, 27.3.1996, pp. 20–28 • Council Directive 97/81/EC of 15 December 1997 concerning the Framework Agreement on part-time work concluded by UNICE, CEEP and the ETUC  Annex: Framework agreement on part-time work OJ L 14, 20.1.1998, pp. 9–14

© Springer Nature Switzerland AG 2019 M. Inglese, Regulating the Collaborative Economy in the European Union Digital Single Market, https://doi.org/10.1007/978-3-030-30040-1

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• Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP OJ L 175, 10.7.1999, pp. 43–48. • Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market, OJ L 178, 17.7.2000, pp. 1–16. • Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time OJ L 299, 18.11.2003, pp. 9–19. • Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’) OJ L 149, 11.6.2005, pp. 22–39 • Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications OJ L 255, 30.9.2005, pp. 22–142 • Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market, OJ L 376, 27.12.2006, pp. 36–68 • Directive 2008/104/EC of the European Parliament and of the Council of 19 November 2008 on temporary agency work OJ L 327, 5.12.2008, pp. 9–14. • Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council, OJ L 304, 22.11.2011, pp. 64–88 • Directive 2013/11/EU of the European Parliament and of the Council of 21 May 2013 on alternative dispute resolution for consumer disputes and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC (Directive on consumer ADR) OJ L 165, 18.6.2013, pp. 63–79. • Directive (EU) 2015/1535 of the European Parliament and of the Council of 9 September 2015 laying down a procedure for the provision of information in the field of technical regulations and of rules on Information Society services, OJ L 241, 17.9.2015, pp. 1–15.

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175

Communications (in Chronological Order) • Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of Regions. The Application of the European Union State Aid Rules to Compensation Granted for the Provision of Services of General Economic Interest, COM(2012) 8 final • Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of Regions. A European Consumer Agenda – Boosting Confidence and Growth, COM(2012) 225 final • Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of Regions. Towards a Thriving Data-Driven Economy, COM(2014) 442 final • Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of Regions. A Digital Single Market Strategy for Europe, COM(2015) 192 final • Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of Regions. Digital Contracts for Europe, COM(2015) 633 final • Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions  - Online Platforms and the Digital Single Market Opportunities and Challenges for Europe, (COM(2016) 288 final • Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of Regions. A European Agenda for the Collaborative Economy, COM(2016) 356 final • Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of Regions. Connectivity for a Competitive Digital Single Market – Towards a European Gigabit Society, COM(2016) 587 final • Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of Regions. 5G for Europe: An Action Plan, COM(2016) 588 final • Interpretative communication on Directive 2033/88/CE of the European Parliament and of the Council Concerning Certain Aspects of the Organisation of Working Time, C(2017) 2601 • Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of Regions. Building a European Data Economy, COM(2017) 9 final • Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of Regions on the Mid-Term Review on the Implementation of the Digital Single Market Strategy. A Connected Digital Single Market for All, COM(2017) 228 final

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• Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of Regions. Establishing a European Pillar of Social Rights, COM (2017)250 final • Communication from the Commission to the European Parliament, the Council and the European Economic and Social Committee. A New Deal for Consumers, COM(2018) 183 final • Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of Regions. Towards a Common European Data Space, COM(2018) 232 final

Decisions (in Chronological Order) • Commission decision (EU) 2019/540 of 26 March 2019 on the citizens’ initiative entitled #NewRightsNow  - Strengthening the rights of ‘uberised’ workers. Commission registration number: ECI(2019)000004 Date of registration: 01/04/2019

Legislative Proposals (in Chronological Order) • Proposal for a directive of the European Parliament and of the Council on certain aspects concerning contracts for the supply of digital content, COM/2015/0634 final – 2015/0284 (COD) • Proposal for a directive on certain aspects concerning contracts for the online and other distance sales of goods COM(2015) 635 final • Proposal for a directive on certain aspects concerning contracts for the supply of digital content, COM(2015) 634 final. • Proposal for a regulation on cross-border parcel delivery COM(2016) 685 final. • Proposal for a directive of the European Parliament and of the Council on the protection of persons reporting on breaches of Union law, COM (2018) 218 final. • Proposal for Regulation of the European Parliament and of the Council on promoting fairness and transparency for business users of online intermediation services, COM(2018) 238 final.

Other Sources (in Chronological Order) • Opinion, Committee of the Regions, 3–4 December 2015, The Local and Regional Dimension of the Sharing Economy, COR-2015-02698-00-00-ACTRA (Rapporteur: B. Brighenti)

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• Draft Opinion, Committee of the Regions, 28 September 2016, Collaborative Economy and Online Platform: A Shared View of Cities and Regions, COR2016-­04163-00-00-PA-TRA (Rapporteur: B. Brighenti) • Commission staff working document SWD/2016/0163 final. Guidance on the Implementation/Application of Directive 2005/29/EC on Unfair Commercial Practices Accompanying the Document Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of Regions. A Comprehensive Approach to Stimulating Cross-Border E-Commerce for Europe’s Citizens and Businesses • Decreto legislativo 81/2015, Disciplina organica dei contratti di lavoro e revisione della normativa in tema di mansioni, GU n. 144 24 June 2015 • Motion for a for a European Parliament resolution on the collaborative economy, 3 February 2016, B8-0249/2016, (Rapporteurs: S. Monteal, F. Philippot) • European Parliament, Resolution of 15 June 2017 on a European agenda for the collaborative economy, 2017/2003(INI) (Rapporteur: N. Danti). • Motion for a European Parliament resolution on the collaborative economy, 22 February 2017, B8-0175/2017, (Rapporteurs: J. Mélin, M. Troszczynski)

National Sources (in Chronological Order) • Legislative proposal 3564/2016, Disciplina delle piattaforme digitali per la condivisione di beni e servizi e disposizioni per la promozione dell’economia della condivisione • Loi pour une République numérique, n. 1321 du 7 octobre 2016, France • Loi programme n. 349 du 1 juillet 2016, Belgium

Case Law of the Court of Justice of the European Union (in Chronological Order)

• Case 8/74, Procureur du Roi v Benoît and Gustave Dassonville, judgment of 11 July 1974 • Case 36/74, B.N.O. Walrave and L.J.N. Koch v Association Union cycliste internationale, Koninklijke Nederlandsche Wielren Unie and Federación Española Ciclismo, judgment of 12 December 1974 • Case 120/78, Rewe-Zentral AG v Bundesmonopolverwaltung für Branntwein, judgment of 20 February 1979 • Joined cases 286/82 and 26/83, Graziana Luisi and Giuseppe Carbone v Ministero del Tesoro, judgment of 31 January 1984 • Case 66/85, Deborah Lawrie-Blum and Land Baden-Württemberg, judgment of 3 July 1986 • Case 352/85, Bond van Adverteerders and others v The Netherlands State, judgment of 26 April 1988 • Case 382/87, R. Buet and Educational Business Services (EBS) v Ministère public, judgment of 16 May 1989 • Case C-292/89, The Queen v Immigration Appeal Tribunal, ex parte Gustaff Desiderius Antonissen, judgment of 26 February 1991 • Case C-159/90, The Society for the Protection of Unborn Children Ireland Ltd v Stephen Grogan and others, judgment of 4 October 1991 • Case C-315/92, Verband Sozialer Wettbewerb eV v Clinique Laboratoires SNC and Estée Lauder Cosmetics GmbH, judgment of 2 February 1994 • Case C-470/93, Verein gegen Unwesen in Handel und Gewerbe Köln e.V. v Mars GmbH, judgment of 6 July 1995 • Case C-55/94, Reinhard Gebhard v Consiglio dell'Ordine degli Avvocati e Procuratori di Milano, judgment of 30 November 1995 • Case C-210/96, Gut Springenheide GmbH and Rudolf Tusky v Oberkreisdirektor des Kreises Steinfurt - Amt für Lebensmittelüberwachung, judgment of 16 July 1998 • Joined case C-240/98 to C-244/98, Océano Grupo Editorial SA v Roció Murciano Quintero (C-240/98) and Salvat Editores SA v José M. Sánchez Alcón Prades © Springer Nature Switzerland AG 2019 M. Inglese, Regulating the Collaborative Economy in the European Union Digital Single Market, https://doi.org/10.1007/978-3-030-30040-1

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Case Law of the Court of Justice of the European Union (in Chronological Order)

(C-241/98), José Luis Copano Badillo (C-242/98), Mohammed Berroane (C-243/98) and Emilio Viñas Feliú (C-244/98), judgment of 27 June 2000 Case C-376/98, Federal Republic of Germany v. European Parliament and Council of the European Union, judgment of 5 October 2000 Case C-157/99, B.S.M.  Geraets-Smits v Stichting Ziekenfonds VGZ and H.T.M.  Peerbooms v Stichting CZ Groep Zorgverzekeringen, judgment of 12 July 2001 Case C-268/99, Aldona Malgorzata Jany and Others v Staatssecretaris van Justitie, judgment of 20 November 2001 Case C-188/00, Bülent Kurz, né Yüce v Land Baden-Württemberg, judgment of 19 November 2002 Case C-491/01, The Queen v. Secretary of State for Health, ex parte British American Tobacco (Investments) Ltd and Imperial Tobacco Ltd., judgment of 10 December 2002 Case C-280/00, Altmark Trans GmbH and Regierungspräsidium Magdeburg v Nahverkehrsgesellschaft Altmark GmbH, and Oberbundesanwalt beim Bundesverwaltungsgericht, judgment of 24 July 2003 Case C-322/01, Deutscher Apothekerverband eV v 0800 DocMorris NV and Jacques Waterval, judgment of 11 December 2003 Case C-256/01, Debra Allonby v Accrington & Rossendale College, Education Lecturing Services, trading as Protocol Professional and Secretary of State for Education and Employment, judgment of 13 January 2004 Case C-36/02, Omega Spielhallen- und Automatenaufstellungs-GmbH v Oberbürgermeisterin der Bundesstadt Bonn, judgment of 14 October 2004 Case C-444/02, Fixtures Marketing Ltd v Organismos prognostikon agonon podosfairou AE (OPAP), judgment of 9 November 2004 Case C-303/04, Lidl Italia Srl v Comune di Stradella, judgment of 8 September 2005 Case C-372/04, The Queen, on the application of Yvonne Watts v Bedford Primary Care Trust and Secretary of State for Health, judgment of 16 May 2006 Joined cases C-94/04 and C-202/04, Federico Cipolla v Rosaria Fazari, née Portolese (C-94/04) and Stefano Macrino and Claudia Capoparte v Roberto Meloni (C-202/04), judgment of 5 December 2006 Case C-380/03, Federal Republic of Germany v. European Parliament and Council of the European Union, judgment of 12 December 2006 Case C-360/04, Criminal proceedings against Massimiliano Placanica (C-338/04), Christian Palazzese (C-359/04) and Angelo Sorricchio (C-360/04), judgment of 6 March 2007 Case C-281/06, Hans-Dieter Jundt and Hedwig Jundt v Finanzamt Offenburg, judgment of 18 December 2007 Case C-244/06, Dynamic Medien Vertriebs GmbH v Avides Media AG, judgment of 14 February 2008 Case C-500/06, Corporación Dermoestética SA v To Me Group Advertising Media, judgment of 17 July 2008

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• Case C-306/27, Ruben Andersen v Kommunernes Landsforening, judgment of 18 December 2008 • Case C-110/05, Commission of the European Communities v Italian Republic, judgment of 10 February 2009 • Case C-169/07, Hartlauer Handelsgesellschaft mbH v Wiener Landesregierung and Oberösterreichische Landesregierung, judgment of 10 March 2009 • Joined cases C-236/08 to C-238/08, Google France SARL and Google Inc. v Louis Vuitton Malletier SA (C-236/08), Google France SARL v Viaticum SA and Luteciel SARL (C-237/08) and Google France SARL v Centre national de recherche en relations humaines (CNRRH) SARL and Others (C-238/08), judgment of 23 March 2010 • Case C-433/05, Criminal proceedings against Lars Sandström, judgment of 15 April 2010 • Joined cases C-570/07 and C-571/07, José Manuel Blanco Pérez and María del Pilar Chao Gómez v Consejería de Salud y Servicios Sanitarios (C-570/07) and Principado de Asturias (C-571/07), judgment of 1 June 2010 • Case C-393/08, Emanuela Sbarigia v Azienda USL RM/A and Others, judgment of 1 July 2010 • Case C-232/09, Dita Danosa v LKB Līzings SIA, judgment of 11 November 2010 • Case C-108/09, Ker-Optika bt v ÀNTSZ Dél-dunántúli Regionális Intézete, judgment of 2 December 2010 • Case C-137/09, Marc Michel Josemans contro Burgemeester van Maastricht, judgment of 16 December 2010 • Case C-338/09, Yellow Cab Verkehrsbetriebs GmbH v Landeshauptmann von Wien, judgment of 22 December 2010 • Case C-208/09, Ilonka Sayn-Wittgenstein v Landeshauptmann von Wien, judgment of 22 December 2010 • Case C-324/09, L’Oréal SA and Others v eBay International AG and Others, judgment of 12 July 2011 • Case C-70/10, Scarlet Extended SA v Société belge des auteurs, compositeurs et éditeurs SCRL (SABAM), judgment of 24 November 2011 • Joined cases C-411/10 and C-493/10, N. S. (C-411/10) v Secretary of State for the Home Department and M. E. and Others (C-493/10) v Refugee Applications Commissioner and Minister for Justice, Equality and Law Reform, judgment of 21 December 2011 • Case C-282/10, Maribel Dominguez v Centre informatique du Centre Ouest Atlantique and Préfet de la région Centre, judgment of 24 January 2012 • Case C-360/10, Belgische Vereniging van Auteurs, Componisten en Uitgevers CVBA (SABAM) v Netlog NV, judgment of 16 February 2012 • Case C-138/11, Compass-Datenbank GmbH v Republik Österreich, judgment of 12 July 2012 • Joined cases C-213/11, C-214/11 and C-217/11, Fortuna sp. z o.o. and Others v Dyrektor Izby Celnej w Gdyni, judgment of 19 July 2012

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• Case C-544/10, Deutsches Weintor eG v Land Rheinland-Pfalz, judgment of 6 September 2012 • Case C-283/11, Sky Österreich GmbH v Österreichischer Rundfunk, judgment of 22 January 2013 • Case C-26/11, Belgische Petroleum Unie VZW and Others v Belgische Staat, judgment of 31 January 2013 • Case C-1/12, Ordem dos Técnicos Oficiais de Contas v Autoridade da Concorrência, judgment of 28 February 2013 • Case C-607/10, Åklagaren v Hans Åkerberg Fransson, judgment of 7 May 2013 • Case C-342/12, Worten  – Equipamentos para o Lar SA v Autoridade para as Condições de Trabalho (ACT), judgment of 30 May 2013 • Case C-176/12, Association de médiation sociale v Union locale des syndicats CGT and Others, judgment of 15 January 2014 • Case C-206/13, Cruciano Siragusa v Regione Sicilia  — Soprintendenza Beni Culturali e Ambientali di Palermo, judgment of 6 March 2014 • Joined cases C-293/12 and C-564/12, Digital Rights Ireland Ltd v Minister for Communications, Marine and Natural Resources and Others and Kärntner Landesregierung and Others, judgment of 8 April 2014 • Case C-156/13, Digibet Ltd and Gert Albers v Westdeutsche Lotterie GmbH & Co. OHG, judgment of 12 June 2014 • Case C-295/12 P, Telefónica SA and Telefónica de España SAU v European Commission, judgment of 10 July 2014 • Joined Cases C-58/13 and C-59/13, Angelo Alberto Torresi and Pierfrancesco Torresi v Consiglio dell’Ordine degli Avvocati di Macerata, judgment of 17 July 2014 • Case C-291/13, Sotiris Papasavvas v O Fileleftheros Dimosia Etaireia Ltd and Others, judgment of 11 September 2014 • Case C-268/13, Elena Petru v Casa Judeţeană de Asigurări de Sănătate Sibiu and Casa Naţională de Asigurări de Sănătate, judgment of 9 October 2014 • Case C-413/13, FNV Kunsten Informatie en Media v Staat der Nederlanden, judgment of 4 December 2014 • Case C-537/13, Birutė Šiba v Arūnas Devėnas, judgment of 15 January 2015 • Case C-98/14, Berlington Hungary Tanácsadó és Szolgáltató kft and Others v Magyar Állam, judgment of 11 June 2015 • Case C-497/12, Davide Gullotta and Farmacia di Gullotta Davide & C. Sas v Ministero della Salute and Azienda Sanitaria Provinciale di Catania, judgment of 2 July 2015 • Case C-110/14, Horaţiu Ovidiu Costea v SC Volksbank România SA, judgment of 3 September 2015 • Case C-266/14, Federación de Servicios Privados del sindicato Comisiones obreras (CC.OO.) v Tyco Integrated Security SL, Tyco Integrated Fire & Security Corporation Servicios SA, judgment of 10 September 2015 • Case C-362/14, Maximillian Schrems v Data Protection Commissioner, judgment of 6 October 2015

Case Law of the Court of Justice of the European Union (in Chronological Order)

183

• Case C-168/14, Grupo Itevelesa SL and Others v Oca Inspección Técnica de Vehículos SA and Generalidad de Cataluña, judgment of 15 October 2015 • Case C-490/14, Freistaat Bayern v Verlag Esterbauer GmbH, judgment of 29 October 2015 • Case C-157/14, Société Neptune Distribution v Ministre de l'Économie et des Finances, judgment of 17 December 2015 • Case C-336/14, Criminal proceedings against Sebat Ince, judgment of 4 Februrary 2016 • Case C-547/14, Philip Morris Brands SARL and Others v. Secretary of State for Health, judgment of 4 May 2016 • Case C-358/14, Republic of Poland v. European Parliament and Council of the European Union, judgment of 4 May 2016 • Case C-477/14, Pillbox 38 (UK) Limited, trading as Totally Wicked v Secretary of State for Health, judgment of 4 May 2016 • Case C-438/14, Nabiel Peter Bogendorff von Wolffersdorff v Standesamt der Stadt Karlsruhe and Zentraler Juristischer Dienst der Stadt Karlsruhe, judgment of 2 June 2016 • Case C-484/14, Tobias Mc Fadden v Sony Music Entertainment Germany GmbH, judgment of 15 September 2016 • Case C-303/15, Naczelnik Urzędu Celnego I w Ł. v G.M. and M.S, judgment of 13 October 2016 • Case C-174/15, Vereniging Openbare Bibliotheken v Stichting Leenrecht, judgment of 10 November 2016 • Case C-51/15, Remondis GmbH & Co. KG Region Nord v Region Hannover, judgment of 21 December 2016 • Case C-144/16, Município de Palmela v Autoridade de Segurança Alimentar e Económica (ASAE) – Divisão de Gestão de Contraordenações, judgment of 1 February 2017 • Case C-568/15, Zentrale zur Bekämpfung unlauteren Wettbewerbs Frankfurt am Main eV v comtech GmbH, judgment of 2 March 2017 • Case C-339/15, Criminal proceedings against Luc Vanderborght, judgment of 4 May 2017 • Case C-49/16, Unibet International Ltd v Nemzeti Adó- és Vámhivatal Központi Hivatala, judgment of 22 June 2017 • Case C-290/16, Air Berlin plc & Co. Luftverkehrs KG v Bundesverband der Verbraucherzentralen und Verbraucherverbände  - Verbraucherzentrale Bundesverband e.V., judgment of 6 July 2017 • Opinion pursuant to Article 218(11) TFEU of 26 July 2017 • Case C-186/16, Ruxandra Paula Andriciuc e altri contro Banca Românească SA, judgment of 20 September 2017 • Case C-106/16, Proceedings brought by Polbud - Wykonawstwo sp. z o.o., judgment of 25 October 2017 • Case C-98/15, María Begoña Espadas Recio v ServicioPúblico de Empleo Estatal (SPEE), judgment of 9 November 2017

184

Case Law of the Court of Justice of the European Union (in Chronological Order)

• C-214/16, Conley King v The Sash Window Workshop Ltd and Richard Dollar, judgment of 29 November 2017 • Case C-434/15, Asociación Profesional Elite Taxi v Uber Systems Spain, SL, judgment of 20 December 2017 • Case C-320/16, Criminal proceedings against Uber France, judgment of 10 April 2018 • Case C-371/17, Uber BV v Richard Leipold, Order of the President of the Court of 12 April 2018 • Case C-414/16, Vera Egenberger v Evangelisches Werk für Diakonie und Entwicklung e.V., judgment of 17 April 2018 • Case C-96/17, Gardenia Vernaza Ayovi v Consorci Sanitari de Terrassa, judgment of 25 July 2018 • Case C-68/17, IR v JQ, judgment of 11 September 2018 • Case C-332/17, Starman Aktsiaselts v Tarbijakaitseamet, judgment of 13 September 2018 • Case C-105/17, Komisia za zashtita na potrebitelite v Evelina Kamenova, judgment of 4 October 2018 • Case C-149/17, Bastei Lübbe GmbH & Co. KG v Michael Strotzer, judgment of 18 October 2018 • Case C-684/16, Max-Planck-Gesellschaft zur Förderung der Wissenschaften eV v Tetsuji Shimizu, judgment of 6 November 2018 • Case C-619/16, Sebastian W. Kreuziger v Land Berlin, judgment of 6 November 2018 • Joined cases C-569/16 and C-570/16, Stadt Wuppertal v Maria Elisabeth Bauer and Volker Willmeroth v Martina Broßonn, judgment of 6 November 2018 • Case C-193/17, Cresco Investigation GmbH v Markus Achatzi, judgment of 22 January 2019 • Case C-724/17, Skanska Industrial Solutions and Others, judgment of 14 March 2019

List of Opinions of Advocates General (in Chronological Order)

• Case C-115/14, opinion of Advocate General Mengozzi, RegioPost GmbH & Co. KG v Stadt Landau in der Pfalz, delivered on 9 September 2015 • Case C-434/15, Asociación Profesional Elite Taxi v Uber Systems Spain, SL, opinion of Advocate General Szpunar of 11 May 2017 • Case C-320/16, opinion of Advocate General Szpunar, Criminal proceedings against Uber France, delivered on 4 July 2017 • Case C-105/17, Komisia za zashtita na potrebitelite v Evelina Kamenova, opinion of Advocate General Szpunar delivered on 31 May 2018 • Case C-390/18, AIRBNB Ireland, opinion of Advocate General Szpunar of 30 April 2019

© Springer Nature Switzerland AG 2019 M. Inglese, Regulating the Collaborative Economy in the European Union Digital Single Market, https://doi.org/10.1007/978-3-030-30040-1

185

List of National Judgments (in Chronological Order)

• Tribunale di Milano, Taxiblu v Uber, ordinanza no. 16612/2015 of 25 May 2015 • California Labor Commissioner, Uber technologies Inc v Barbara Berwick, Case No 11-46739, 16 June 2015 • Tribunal de commerce neerlandophone de Bruxelles SPRL Uber Belgium v Sa Taxi Radio judgment of 23 September 2015 • Bruxellois Commercial Tribunal, SPRL Uber Belgium v SA Taxi Radio, 23 September 2015 • Cour d’appel de Paris, Uber France/DGCCRF et autres, decision no. PI4084000776 of 7 December 2015 • Central London Employment Tribunal 2202551/2015 Aslam, Farrar et al., judgment of 28 october 2016 • Tribunale di Roma, Uber v Apptaxi, ordinanza no. 25857/2017 of 26 May 2017 • Employment Appeal Tribunal (England and Wales), n. UKEAT/0056/17/DA – Eady QC Est – Uber B.V., Uber London LTD, Uber Britannia LTD c. Aslam Y., Farrar J., Dawson R. et al., judgment of 10 November 2017 • Cour d’appel de Paris, Pôle 6 – Chambre 22 November 2017, n. 16/12875 • Case n. 4764/2017, Tribunal of Torino, judgment n. 778/2018, published on 7 May 2018 • Case n. 438/2018, Tribunal of Torino, judgment n. 26/2019, published on 4 February 2019

© Springer Nature Switzerland AG 2019 M. Inglese, Regulating the Collaborative Economy in the European Union Digital Single Market, https://doi.org/10.1007/978-3-030-30040-1

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Reports and Studies Arribas GV, Steible B, De Bondt A (2016) Cost of non-Europe in the sharing economy: legal aspects. European Institute of Public Administration Codagnone C, Abadie F, Biagi F (2016) The future of work in the ‘sharing economy’. Market efficiency and equitable opportunities or unfair precarisation? JRC Science for Policy Report EUR27913:1–96 De Stefano V (2016c) The rise of the “just-in-time” workforce: on demand work, crowdwork and labour protection in the “gig economy. ILO Conditions of work and employment series no 71 Exploratory study of consumer issues in online peer-to-peer platform markets. Task 4 – Airbnb – Case study report. European Commission produced by Consumers, Health, Agriculture and Food Agency (CHAFEA) on behalf of Directorate General for Justice and Consumers. February 2017 Exploratory study of consumer issues in online peer-to-peer platform markets. Task 4 – Uber – Case study report. European Commission produced by Consumers, Health, Agriculture and Food Agency (CHAFEA) on behalf of Directorate General for Justice and Consumers. February 2017 Exploratory Study of consumer issues in peer-to-peer platform markets. Task 4 Report  - Cross Analysis of case studies of 10 peer-to-peer platforms Forde C, Stuart M, Joice S, Oliver L, Valizade D, Alberti G, Hardy K, Trappmann V, Umney C, Carson C (2017) The social protection of worker in the platform economy. IP/A/EMPL/2016-­11 PE614.184:1-125 Goudin P (2016) The cost of non-Europe in the sharing economy. Economic, social and legal challenges and opportunities. European Parliament Research Service Organisation for Economic Co-Operation and Development (OECD) (2016a) Big data: bringing competition policy to the digital era Organisation for Economic Co-Operation and Development (OECD) (2016b) New forms of work in the digital economy. OECD digital economy papers no. 260 Organisation for Economic Co-Operation and Development (OECD) (2016c) Protecting consumers in peer platforms markets, exploring the issue. OECD Digital Economy Papers no. 253 Petropoulos G (2016) An economic review of the collaborative economy. In-depth analysis for the IMCO Committee IP/A/ IMCO/ 2016-11, PE 595.358 Smorto G (2016) Impulse paper n. 02 on the business authorisation/licensing requirements imposed on peer-providers and platforms in the accommodation/tourism sector in Paris, Rome, Milan and London. Ref. Ares 2558355 Smorto G (2017b) Critical assessment of European agenda for the collaborative economy. In-depth analysis for the IMCO Committee IP/A/IMCO/2016-10, PE 595.361