Читать книгу Plataformas digitales: Aspectos jurídicos - Apol·lònia Martínez Nadal - Страница 29

Currently, collaborative economy can be considered an important sector of the economies of the States. In the report produced for the European Commission, mentioned above, collaborative economy is considered an opportunity for sustainable development for States, but also a reality that poses significant regulatory challenges18. For this reason, it is proposed a political and legislative regulation that takes into account, on the one hand, the rights and expectations of consumers and, on the other, the need for competitiveness, innovation and growth of to the sector19. This means that there is a difficult political and legislative balance between, on the one hand, the need to regulate the sector to protect consumers, workers, competition, healthy market functioning and, on the other hand, the need not to choke the activities that integrate the collaborative economy, which by definition is an open economy, and that do not hinder its development.

In this balance, it is also necessary to consider the interests of traditional activities, many of which are subject to market access requirements: such as professional licenses and authorizations dependent on certain requirements that vary according to the sector of activity. Competition is often established between the activities of the collaborative economy and traditional activities. For example, Uber competes with taxi drivers; Airbnb with hotels. Consequently, it is necessary to consider whether it is justified to apply to collaborative economy the requirements present in certain sectoral legislation, and which were thought for the traditional exercise of those same activities, taking into account the purposes of public interest: the protection of tourists; the guarantee of public security; combat tax evasion; protection of public health and food security imperatives; remedy the scarcity of affordable housing for citizens, among others20. If, on the one hand, it may be justifiable to apply to activities of collaborative economy the same requirements of access to the market to which traditional activities are subject, the truth is that the opposite can also happen. As a result of the emergence of new service delivery models, States can conduct a market analysis and, to promote healthier competition, lighten the market access requirements for traditional activities (maintaining the same requirements for both types of activities).

In the regulation of these activities of collaborative economy, another difficulty arises: the open and global nature of the collaborative economy, which is one of its central characteristics. In fact, this change of the traditional economy model, allows us to go beyond the borders of States and take advantage of goods and services from all the world. It is an economic model that uses globalization and that generates more globalization itself. One can list several examples of success in this sector, which develop their activity in several countries. One example is Airbnb, an online platform for local accommodation, created in 2008 in the United States and which, in 2016, operated in 191 countries worldwide, with around 2 million properties listed21. Another well-known example is Blablacar, an online long-distance car sharing platform, which was created in France in 2006, that in 2016 operated in 22 countries and, between 2011 and 2015, had an increase in users from 1 million to 25 million22. A third famous example is Uber which, in 2020, is present in 65 countries and 600 cities worldwide and was founded in the United States of America23.

Now, it is true that these transnational companies choose the countries in which they will operate taking into consideration those that have a more favourable regulation of their activities, in what is commonly called law shopping. As they are activities with a significantly positive economic impact for the States, and to which users join instantly, because they already know the activities of these platforms in other countries (since advertising is usually done online by the users themselves, through social networks, among others), there is often a certain phenomenon of legislative competition between States. In view of this reality, there are two legal options: or to segment activities between States, subjecting them to national legislative and regulatory options; or subject them to a uniform international legal framework, through multilateral conventions or bilateral agreements between States24 or through their regulation in integrated regional spaces, such as the European Union.

The option of subjecting collaborative platforms that operate in the international market to the national law of each of the States where they operate is the easiest option. However, the national regulation of these collaborative platforms that develop transnational activities in several States presents weaknesses. On the one hand, in face of collaborative platforms that operate in the international market and that have the trust and preference of a wide range of national users, national governments are subject to political pressure. They are economic and media giants that try to influence the legislative, regulatory and State options. There are reports that, sometimes, these collaborative platforms, using their economic influence and dimension, systematically violate national regulations to force the reduction of their legal obligations in certain States25. In addition, they get economic benefits from the violation of their legal obligations, sometimes invoking the difficulty of the legal framework of their activity in detriment of traditional operators, in relation to which there are more established inspection structures26. As a consequence, often, and under pressure from the users themselves, States respond by easing market access requirements and by legalizing certain procedures, which previously did not raised doubts27. In fact, “big platforms are too big and too resourceful, in terms of litigations, lobbying and public support, to be tackled by local regulators”28.

In addition, as mentioned, there is sometimes certain difficulties on the part of the States in framing the activities of these collaborative platforms in traditional market categories. One of the most debated examples around the world is the definition of Uber‘s activity: it is a mere collaborative platform that provides an information society service, serving as an intermediary; or, is it a company whose commercial activity is the transport of passengers? Even within the European Union, in which the States have closer legal realities, there were differences between the Member States as to the legislative framework for the Uber‘s activity. The Netherlands and Ireland, following Uber‘s position, considered it an intermediary platform that provided an information society service; other Member States, such as Spain, Italy, France, Belgium and Denmark, considered it a transport company29. Therefore, this difficulty in the legal framework of the activities of this specific company, and of collaborative platforms in general, multiplies around the world. For example, in Taiwan, Uber is registered as an information society company and not as a transport company30. The complexity of the legal framework increases the difficulties in regulating these activities and allows the collaborative platforms operating in the international market to get competitive benefits from the legal differences between States. They take advantage from the regulatory confusion that results from the lack of definition of their activities and from failures in the legal framework itself, taking into account the characteristics of the referred platforms. In face of these economic and media giants, which have a transnational activity, national responses are not always the most appropriate. An activity that develops in international trade, taking advantage of the benefits of globalization, must have a regulatory response that takes into account its transnational nature, through solutions of uniform international legal framework.

The example of Uber allows us to analyse the advantages of a uniform international regulatory regime, in the specific case, in an integrated regional area of the European Union. In the Asociación Profesional Elite Taxi ruling against Uber Systems Spain, SL, the Court of Justice of the European Union (CJEU) analysed the nature of the activities of that company, and concluded that an intermediary service, such as the one that characterizes Uber’s activity, “the purpose of which is to connect, by means of a smartphone application and for remuneration, non-professional drivers using their own vehicle with persons who wish to make urban journeys, must be regarded as being inherently linked to a transport service and, accordingly, must be classified as ‘a service in the field of transport’ within the meaning of Article 58(1) TFEU”31. One can say that the economic giant Uber found the right answer by the political, economic and legally integrated giant that is the European Union. This definition makes it possible to apply to Uber the regulation of transportation activities, with all the protection that results for consumers and users of the platform and with all the protection that results for the market and competitors of the traditional economy.

This is an example of how in the face of collaborative platforms operating in the international market, a uniform international regulatory regime is more effective in protecting the public interest, the interest of the contractual weakest party (such as consumers and workers), the interest of a healthy competitive market. It is true that this type of regulation is easier within the European Union, which is in an advanced stage of integration, and which has fundamental treaties of economic, political and legal organization that serve as a hat for uniform international regulation within the Union. In addition, the difficulties of wider negotiations to regulate these activities are recognized, and are the ones typical to any regulation of international trade. However, this seems to be the best solution and the more effective path for an effective regulatory path. The recent proposals of the European Union for a Regulation on a Single Market for Digital Services (Digital Services Act) and the Proposal for a Regulation on contestable and fair markets in the digital sector (Digital Markets Act) are examples of efficient regulatory path in the European Union. It would be interesting to work in a more global legal framework, for example, within the United Nations Commission On International Trade Law.