For the European institutions, the collaborative economy is as much a challenge as an opportunity. The European Commission has published two communications which shed light on its position regarding these new areas of regulation. The first, dated 25 May 2016, presents its approach to online platforms. The second, dated 2 June, discusses a European agenda for the collaborative economy.
The collaborative economy : how is Europe approaching the issue ?
A number of factors must be considered when addressing these matters, including market regulation, intellectual property, taxation, user protection, personal and non-personal data management, financing, social protection and labour law.
At this stage, the European Commission has no intention of regulating the collaborative economy and has not, therefore, laid down any rules, arguing in particular that business models are changing too quickly. It maintains that online platforms are beneficial to consumers, business, society and innovation, and warns against focusing too much attention on the big American platforms. According to the Commission, legislation could also deal a fatal blow to the development of a myriad of promising startups in Europe.
There are four guiding principles underlying its approach: proportionality, the need to establish a level playing field, the responsibility of platforms and transparency. The Commission recommends a sector-by-sector analysis to assess the need for legislation depending on the level of professionalisation. The idea is that collaborative economy transactions that are not carried out for profit should be exempted from the strict rules and requirements applicable to profit-driven transactions. Its approach therefore seems to be to adjust requirements according to the nature of the actors involved. How should these actors be classified?
According to the European Institutions, the first step should be to distinguish between services provided in a professional capacity and those provided on an occasional basis. Thus the Commission commends Member States that have introduced thresholds, below which some services can be provided on an occasional basis without being hampered by regulation. Conversely, the European Commission condemns the radical decisions taken recently by some Member States to ban certain services (for example, Spain’s decision to ban Uber).
The second step should be to differentiate between providing a service (for which a legislative corpus already exists) and acting as an intermediary. For example: does Uber provide an information society service or a transport service, or both? To define a platform as a service provider, three factors must be considered: the level of control the platform exerts over prices; the terms and conditions under which the service is delivered; and the assets used.
Lastly, the Commission invites platforms to “act responsibly” by increasing transparency for users in particular, and also by cooperating with the tax authorities and complying with labour law obligations.
Finally, some of the European Commission’s programmes consider future scenarios for the Internet. For example, the “Collective Awareness Platforms for Sustainability and Social Innovation” initiative developed by DG Connect, which classifies platforms according to their data management procedures. The idea behind such an approach is clear: do we or do we not wish to help law-abiding platforms? A word to the wise!