Читать книгу Plataformas digitales: Aspectos jurídicos - Apol·lònia Martínez Nadal - Страница 28

The technological element is a strategic factor for the development of the various embodiments of the collaborative economy. Digital platforms, applications, mobile devices facilitate a stable contact between the players in the collaborative economy, allowing the exchange of goods and services through fast communication, the provision of instant information and the quick decision making. In addition, there are certain digital platforms that use the internet to aggregate and compare services, making information available to consumers in various areas, ranging from accommodation, catering, transportation, freelance labour, finance, among others. This comparison has also been evolving, and the consumer finds not only the price of services, but also other characteristics, such as, in the case of accommodation, cleanliness, security, the centrality of the place, comfort … Thus, the user can make the choice according to the characteristics he/she values.

Therefore, the digital platform, as a way of sharing goods and services, is an essential element of the collaborative economy, but its specific configuration varies depending on the activities in question. Depending on its configuration, its regulatory model also varies. For example, there can be collaborative platforms that “provide a service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services”14, playing a role of mere intermediary. In this case, Article 4 of 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) does not allow that the activity of an information society service provider is subject to prior authorization or other requirement having equivalent effect. However, the platform can be the service provider itself, or have significant influence or control over the service provider (being considered the underlying service provider). In this case and according to the European Commission, “collaborative platforms could be subject to the relevant sector-specific regulation, including business authorisation and licensing requirements generally applied to service providers”15.

The distinction of the situations depends on a case-by-case assessment, in which is recommended the assessment of: the influence of the platform on the final price (if the price is set or only a price recommendation is established); other essential contractual requirements (such as the conditions for providing the service, the selection of the service provider, the control of the service provided); ownership of the assets16. The distinction of this type of collaborative platforms will impose, as can be concluded from the EU legislation, different regulatory models and, in the case of the underlying collaborative platforms providing service, different legislative models in each Member State.

In addition, in the regulation of this activities is still necessary to make another distinction, which will justify different regulatory models: the activity through the collaborative platform can be regular and professional; or, on the contrary, it can be an occasional activity, with a non-professional nature. This distinction will require states to design criteria to distinguish between professional and casual activities17.