Collaborative law and business – Equal Day 31 May 2018

Equal is organizing a study day in Brussels on “Collaborative law and business”, which mixes panels on digital platforms, social economy, democratic participation and the future of work.

 

The full program is accessible at equalday.eu/en/. Inscription is compulsory.

 

Behavioural study on transparency in online platforms

The EU Commission has just published the results of the study on transparency in online platforms.

The research has confirmed with empirical evidences that transparency is a precious value in today’s online transactions: 

 

“70% said that the information about criteria for presenting search results was important in their decision and made them more confident and trusting;

67.9% and 69.9% respectively agreed that the information about contractual identity and its implications was important in their decision and made them more confident and trusting;

83.9% and 85.9% respectively reported that the information about who is included in user reviews was important in their decision and made them more confident and trusting” 

 

Transparency is a key factor not only to consumers, but to platforms as well: to provide information users need in a clear way increases the trust in the platform and, as a consequence, attracts more potential clients.

The empirical study underlined the importance of raising consumers’ awareness about the identity of the counterparty and its legal implications in terms of available remedies. The study called for the need of a “design-based regulation to build regulatory standards into the design of the system being regulated”.

April 18, 2018 – Conference in Brussels on crowdwork

The Labour Law Research Group of the Université catholique de Louvain will organize a conference (in French) on the future of Labour Law for Platform workers on April 18, 2018.

The full program is accessible here

ECJ, Case C-434/15, Asociación Profesional Elite Taxi: preliminary notes

Transport or information society service? That is the question

 

This post offers a preliminary analysis of the decision of the European Court of Justice (ECJ) in the case C-434/15 (Asociación Profesional Elite Taxi), which has ruled on the legal qualification of the activity performed by Uber.

by Rossana Ducato and Enguerrand Marique

 

The facts of the case

The reference for a preliminary ruling was brought to the ECJ by the Commercial Court No 3, Barcelona (Juzgado de lo Mercantil No 3 de Barcelona, Spain) in the context of proceedings between Asociación Profesional Elite Taxi (‘Elite Taxi’), a Spanish professional taxi drivers’ association based in Barcelona and Uber Systems Spain SL. It concerns the legal classification of Uber Pop, a service provided through an app that allows the match of drivers and individuals who request a ride.

In the national proceedings, Elite Taxi alleged that Uber was committing acts of unfair competition, since the platform and its drivers operate without the necessary authorisations and licences required for the transport sector.

To rule on the unfair competition claim, the Commercial Court of Barcelona has first to qualify the type of service offered by Uber. Indeed, if the platform is not a transport service it will not need to comply with the applicable national administrative rules.

Since the issue required an interpretation of the EU law provisions and precisely, Article 56 TFEU, Article 1 of Directive 98/34/EC (which contains the definition of information society services), Article 3 of Directive 2000/31/EC (E-commerce Directive) and Articles 2 and 9 of Directive 2006/123/EC (Services or Bolkestein Directive), the Spanish court referred four questions to the ECJ for a preliminary ruling, which essentially aim at ascertaining whether Uber has to be considered as a transport service or rather as an electronic intermediary service or an information society service.

 

The reasoning of the Court

First of all, the ECJ recognized that the intermediation service of the platform that allows the online match of supply and demand of rides is, in principle, something different from a traditional urban transport service and may be subsumed under the notion of information society service, since Uber is a service provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services (§ 35). However, the Court observes that the activity of the platform is not limited to a mere electronic intermediation: Uber has created a supply of urban transport services itself and has organised it, by selecting the drivers, making available the app (indispensable to provide and make the service accessible) and regulating some crucial aspects of the offer (see in particular, § 39).

Therefore, despite its importance in Uber’s activities, the intermediation role is a piece of a more complex framework, whose principal component is the transport activity.

In other words, the ECJ adjusts a seductive synecdoche, by stating that the e-intermediation is only an (indispensable but ancillary) part of the whole.

With a quite succinct motivation, the ECJ confirmed the opinion of the Advocate General Szpunar and established that the intermediation service provided by Uber has to be considered 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”. As a consequence, such an activity falls under one of the exceptions listed in the Bolkestein directive (see Article 2(2)(d) of Directive 2006/123/EC), which thus excludes Uber activity from the benefit of the freedom to provide services. Therefore, national sectoral legislation may apply.

 

Preliminary discussion of the case

This decision is interesting because it deals with a laden debated topic that has been at the centre of controversies in several European countries[1].

  1. The “Uber test”

In the classification of Uber’s activity, the ECJ seems to adopt a functional/holistic approach that look at the economic significance of the service. For the Court, the activity performed by Uber is more than just a mere intermediation (“consisting of connecting, by means of a smartphone application, a non-professional driver using his or her own vehicle with a person who wishes to make an urban journey”[2]) because:

  1. through the app, it creates a market for urban transport services, and
  2. Uber organises the services’ main aspects (§ 38).

Specifying such elements at § 39, the ECJ noted that:

  • Uber selects non-professional drivers using their own vehicles, to whom it provides an app indispensable to both perform the service and make it accessible;
  • Uber exercises a decisive influence over the conditions of the service, by
    • determining the maximum fare via the app
    • regulating the payment process
    • being empowered to exclude the drivers from the platform due to the “quality of the vehicles, the drivers and their conduct”.

In the light of this premise, the Court assumes that the Uber service is formed by a single supply, where the intermediation activity is “inherently linked” to a transport service. Even if not expressly mentioned, the ECJ implicitly refers to the legal reasoning followed by the Advocate General on the interpretation of composite services under the e-Commerce directive. According to the latter:

“in the case of composite services, consisting of a component provided by electronic means and another component not provided by such means, the first component must be either economically independent of the second or the main component of the two in order to be classified as an ‘information society service’. Uber’s activity must be viewed as a whole encompassing both the service of connecting passengers and drivers with one another by means of the smartphone application and the supply of transport itself, which constitutes, from an economic perspective, the main component. This activity cannot therefore be split into two, for the purpose of classifying a part of the service as an information society service. Consequently, the service must be classified as a ‘service in the field of transport’” (Opinion, § 71)[3].

Therefore, the concrete modalities of the service (namely, the two elements of the creation of the market and the decisive control of the platform) imply the two segments of activity – the connection of providers and end-users through the app and the transport service – must be considered as a single service. The latter will be then classified taking into consideration the core of the obligation (the transport service, in this case).

 

  1. The role of the platform

The ‘Uber test’ proves right in the context of Uber but lacks some conceptual background. We propose here some food for conceptual insights for future cases involving digital platforms belonging to the ‘sharing economy’.

  • The first prong of the ‘Uber test’ provides for the examination of the “indispensable” role of the platform. This concept implicitly emerges in the judgment (see §39: “an application without which”) and explicitly appears from the press release. Such a notion is quite important as there are two separate activities, an upstream market involving an information society (intermediation) service, and a downstream market consisting of a transport service. In such circumstance, the existence of the downstream market is conditioned by the organization of the upstream market[4]. This argument is not new. The CJEU had already affirmed in The Pirate Bay (TPB) judgment, that an indispensable market intervention could lead to certain duties[5], despite not falling stricto sensu under the scope of the relevant provisions[6]. The CJEU found indeed that TPB administration and indexation of illegal torrents was an indispensable (upstream) activity to access the (downstream) content, which is hosted on decentralized servers. Subsequently, while copyright protection was initially meant to prevent the communication of illegal content (downstream), the CJEU held that TPB’s (upstream) activities also constituted a communication of the (downstream) content of such torrents themselves[7]. Therefore, TPB is liable for copyrights infringement.

Figure 1. Mere intermediary (i.e. Platforms for the purchase of flights or hotel bookings). The mere intermediary does not have an essential role in creating the relationship between hotels and clients, as this market is readily accessible.

All icons used for this picture are licensed under CC0. Source: Pixabay

 

  • The second part assesses the influence of the platform on the downstream market. The Court of Justice considers that Uber has a decisive influence on the service provision. To support such claim, the Court examines the business model and considers the risks taken by the providers and the platform, as well as the (inter)dependence of each of the parties.       
    Noteworthy there is the language difference between the Spanish version of the text and other versions (see for instance Dutch, English, French, German, Italian). In assessing the control exercised by the platform, the Spanish version makes use of the term “idoneidad” (which can be translated as “competency/ adequacy” to perform a certain task or job) referred to the drivers, where other versions use “a control over the quality (…) of drivers”. The Spanish version seems to imply a more penetrating control over the service providers, not only ex post (through the rating systems) but also ex ante (by verifying the “idoneidad”). However, we know that this might not be true in the case of Uber, since the company mostly checks a minimum set of formal requisites to be regarded by future driver. Lost in translation, from Spanish, the original language of the case, to other languages, and despite French being the working language of the Court, is the idea of control on the aptitude of the drivers.

Figure 2. Uber platform as a transport service. Uber’s services are necessary to access the market of “private hire drivers (potentially distinguishable from taxis in some countries) able to accept instant bookings”. It therefore does not only convey a message but also has a say on the downstream market of transportation. In the present case, the CJEU found that Uber has taken proactive steps to regulate such transportation market.

All icons used for this picture are licensed under CC0. Source: Pixabay

 

Conceptually, the substance of the “control trigger” remains unclear and will require additional precisions in future cases of the CJEU. Are those factors cumulative, or even exhaustive? However, by characterizing Uber as a “global service”, in which the characteristic element is transport (§40), the Court of Justice favors a “form over substance approach”.

 

  1. A door opener?

This decision closes a tough year for Uber[8], which faced a change at the top of the company, the rejection of the license in London,  the unsuccessful appeal over drivers’ employment rights in the UK and a huge data breach scandal.

Despite the judgment being favorable to traditional taxi companies, the decision will not compromise Uber’s business in each European country if it is compliant with national transport law. In addition, the ECJ leaves a door open to the development of services like Uber by referring to art 91 TFEU. According to the Court, the “inherently linked” activity to non-public urban transport service can be regulated at the European level by implementing the common transport policy. We might assume that the reference here is to art. 91(c) or, more probably, to the general clause provided by art. 91(d) TFUE.

Besides, in the assessment of the two markets distinguished above, the “selection of non-professional drivers” is noteworthy. Indeed, if Uber proceeds to the selection of drivers, does this mean that a purely passive platform might have avoided the qualification of transport service? Or does this open the floodgates for further regulation by considering a legal fiction? The enrolment of drivers could indeed constitute an active involvement of the platform, using a discretionary power to positively designate who will be the provider, and therefore establishing the grounds for an intuitu personae contracts, i.e. a contract in which the parties have considered the identity of their counterpart as being essential. From a contractual perspective, such definition creates specific duties and rights, such as the impossibility to transfer the contract.

Therefore, there is room for discussion on employment regulation. Unlike some editorialists, we believe the ECJ carefully avoided to take any stance on the characterization of the contractual relationship – agency, employment, subcontractor – leaving such effort to domestic legislation. The case was indeed referred to the ECJ to characterize the service, not the relationship with the users. However, had the ECJ qualified Uber as an information society service, an employment relation between the platform and the provider of the driver would not have been legally possible. Indeed, the last part of recital 18 of the ecommerce directive excludes that employees-employers relationships fall within the scope of an “information society services”.  

Finally, the decision anticipates the probable outcome of a second “Uber case”, which is currently pending before the European Court of Justice. In the case C-320/16, a specific provision of the French Transport Code (Art. L. 3124-13), introduced in 2014 and that basically banned the activity of Uber, is contested[9]. According to Uber France such a provision could not be enforced because it was not notified according to the specific procedure set out at Article 8(1) of Directive 98/34/EC for technical rules. However, if Uber has not been classified as an information society service in Asociación Profesional Elite Taxi, we might reasonably expect that Directive 98/34/EC will have no bearing on the French Transport Code provision.

 

Conclusion

The Uber case brought the light on the rising tensions at national and EU level on the regulation of innovative companies, competing digitally with more traditional businesses. An activity carried out through an app, or under the umbrella term of the “sharing economy” does not justify any particular discount on legal protection. Such innovative activities do not occur in a normative vacuum and many of them can fit in the already existing categories of law. However, regulation suffers undeniably a certain degree of obsolescence when confronted with new technologies. Therefore, it should be updated as the solutions provided by the existing regime do not satisfy the political, economic and social needs.

The form of this regulation is currently under discussion at the international and European level. State regulation, co-regulation, sectorial self-regulation, liberalization are some of the institutional options to reframe the current regime. Since Uber offers a mixed service, consisting mainly of a transportation service, it requires at least a sectoral regulation. In this sense, the Uber decision may support the scholars arguing that a “one-size-fits-all-approach” is not desiderable (a transport service, like Uber, has to be regulated differently from an accommodation service, like Airbnb)[10].

Finally, what we have called the ‘Uber test’ (i.e. the criteria set up in this decision to verify whether an intermediary can be considered as an information society service or something else), is likely to affect other digital platforms and their business models. Almost all terms and conditions of platforms state that the latter are mere intermediaries and, as a consequence, they waive any responsibility regarding the contractual relationship among their members. However, if we look at the organization of the service as such (defined in their Terms of Use and other online documents), it is worthy noting that they have a deep policing authority on their community (e.g. they provide the contract for their members’ relationship, they can issue private sanctions against misbehaving members, etc.). 

 

Please tell us what do you think about this case!  What will be the other possible implications for the platforms of the sharing economy?

 

 

 

[1] In Belgium see: Brussels Commercial Court, 23/09/2015; in Spain: Juzgado de lo Mercantil n. 2 Madrid, Asociación madrilena del Taxi v. Uber Technologies Inc., 9/12/2014; in Denmark: Eastern High Court, 17/11/2016; in France: Conseil constitutionnel, Decision No. 2015-468/469/472 QPC of May 22, 2015, Corporation UBER France SAS et al.; in Germany: Frankfurt Regional Court, 18/03/2015; in Italy: Trib. Milano Sez. spec. in materia di imprese Ordinanza, 25/05/2015, Soc. coop. Taxiblu e altri c. Uber International BV e altri; Trib. Milano Sez. spec. in materia di imprese Ordinanza, 09/07/2015, Uber International BV e altri c. Soc. coop. Taxiblu e altri; Trib. Torino Sez. spec. in materia di imprese, 01/03/2017, Uber Italy s.r.l. e altri c. Società Cooperativa Pronto Taxi S.C. a r.l. e altri; Trib. Roma, sez. IX civile Ordinanza, 07/04/2017, AppTaxi s.r.l. e altri c. Uber BV e altri; in the Netherlands: Dutch Trade and Industry Appeals Tribunal, 21/09/2017.

[2] ECJ, C-434/15, Asociación Profesional Elite Taxi, 20/12/2017, § 37.

[3] This conclusion has been reported also in the Opinion of the Advocate General Szpunar, delivered on 4 July 2017, in the Case C‑320/16, Uber France SAS. See, in particular, § 15-22.

[4] Cf. for instance ECJ, C-418/01, IMS Health, 29/04/2004, §42.

[5] ECJ, C-610/15, Stichting Brein v Ziggo BV, 14/06/2017, §37.

[6] E. Rosati, The CJEU Pirate Bay judgment and its impact on the liability of online platforms, EIPR, forthcoming. Available at SSRN: https://ssrn.com/abstract=3006591. See, in particular, p.15.

[7] ECJ, C-610/15, Stichting Brein v Ziggo BV, 14/06/2017, §26.

[8] For an overview of Uber in 2017 see here.

[9] Article L. 3124-13 of the Transport Code provides: “The organisation of a system for putting customers in touch with persons carrying on the activities mentioned in Article L.3120-1 where such persons are neither road transport undertakings entitled to provide occasional services as mentioned in Chapter II of Title 1 of this Book, nor taxi drivers, two or three-wheeled motorised vehicles or private hire vehicles within the meaning of this title shall be punishable by a two-year term of imprisonment and a fine of EUR 300 000.

Legal persons who incur criminal liability for the offence laid down in this article shall, in addition to a fine in accordance with Article 131-38 of the Criminal Code, incur the penalties laid down in paragraphs 2 to 9 of Article 131-39 of the Criminal Code. The prohibition referred to in paragraph 2 of Article 131-39 of the Criminal Code shall extend to the activity in the exercise of which or at the time of the exercise of which the offence was committed. The penalties laid down in paragraphs 2 to 7 of Article 131-39 of the Criminal Code shall not exceed five years in duration”.

[10] European Parliament resolution of 15 June 2017 on online platforms and the digital single market, Synopsis report on The Public Consultation on the Regulatory Environment for Platforms and Online Intermediaries.  

 

Short-term furnished rental: the importance of local French regulation.

In the area of short-term furnished rental, in particular passing by Air BNB, France has adopted a complete regulation. The rules focus on owners who offer short-term rental of dwellings they do not occupy, i.e. secondary residences. It is then necessary, before any announcement online, to make an administrative pre-rental declaration, and to address it to the mayor of the municipality where the housing is located. The platforms are also responsible and have an obligation to inform the owners about their obligations, and must ask them for a declaration on the honour attesting the respect of the rules. The municipal declaration number must appear in the ad on the site. The platform must also ensure that an owner who rents his own accommodation does not exceed 120 nights per year, beyond which the dwelling can no longer be considered as his main residence (he must therefore comply with the rules for secondary residences).

These national rules in fact provide only general information on the regulation of the short-term rental of furnished dwelling. French cities and metropolises exceeding 200,000 inhabitants may adopt specific rules and have a much stricter policy. This is the case of Paris, Lyon, Marseille, Toulouse, Nice, Nantes, Lille for example (The full list of cities according to the number of inhabitants is available here). But the rules established in the metropolises apply as well in the main city as in all the other cities composing the metropolis. Thus, in Nice, the rules apply in the centre of Nice but also in villages such as Utelle or Isola, which have fewer than 1000 inhabitants. Also, it is essential to learn about local regulations if the housing is located in a large city or in a metropolis.

Let us take the example of Paris. The municipality regularly communicates its desire to limit the development of short-term rental platforms and its willingness to act to avoid the transformation of the central districts of Paris into neighbourhoods without inhabitants, and mostly composed of furnished apartments for rent. The Ile Saint-Louis or the boroughs around the Louvre are particularly targeted. In these places, it may be more profitable for the owner of a dwelling, to rent it to tourists rather than rent it year-round to a person who will make it his main residence.

In Paris, a person wishing to start a short-term rental activity in a furnished dwelling must not simply make an administrative declaration. He must obtain a municipal authorisation. The procedure obliges to furnish several documents but also the respect of the urban planning rules. To avoid a shortage of housing, the municipality of Paris has set up a compensation system. The main rule is that, an area which will be used for economic activity, such as short-term furnished accommodation, it should not be classified as a dwelling. It this is the case, an administrative transformation is necessary.

This transformation cannot take place if the owner does not, at the same time, transform an equivalent surface into a dwelling. Compensation in fact presupposes communicating vessels. The conversion of premises used for economic activity cannot take place unless an inverse transformation takes place at the same time by the same owner. The owner must therefore be an owner of at least two properties, one being a dwelling and the other serving an economic activity, such as a shop. The shop must also be at least the same surface area as the dwelling. The compensation mechanism will make it possible to transform housing on an economic surface, authorising the short-term rental activity, but also the shop, which will become compulsory a classic housing, to rent to a person who will make it his main residence. This stage of the procedure is mandatory and the municipality does not issue the authorisation to a furnished apartment owner who does not justify having made the compensation. Failure to comply with this rule is punishable by a civil fine of € 50 000 and an obligation to rehabilitate the dwelling with a penalty of € 1 000 per day and per square meter. The penalty pay therefore be very high.

Other cities in France have set up prior authorisation, even if this is not always accompanied by compulsory compensation. This is the case, for example, in Lyon (compensation in certain districts) or in Marseille, where authorisation does not presuppose compensation.

Actually, it is advisable to inquire about the local rules as soon as the housing belongs to a large city or metropolis. Also, housing located in the metropolitan area of Nice does not require compensation, but is subject to an authorisation, which can be issued of the same owner only up three dwellings, and for a maximum period of three years, renewable two times. These limits may also exist in other municipalities, such as Strasbourg, where compensation is only required for owners who apply for a change in use for a maximum of two units and for a period of 9 years. These cities do not hesitate to set limits to limit the development of the furnished tourist rental. Local regulation is therefore of fundamental importance and the margins of freedom left by national regulation are primarily for municipalities and not for homeowners.

To conclude, local regulation is particularly important for short-term rental in France. Although the national rules provide for a broad outline of the legal framework and taxation, cities and metropolises may have major limitations, which may vary from one city to another.

France: First sanction of a short-term accommodation platform in application of the Digital Republic Law… and first extensions.

Judgment: Tribunal d’instance, 6ème arrondissement de Paris, 06 feb. 2018, n°RG11-17-000190.

Context: The Digital Republic law (Law n°2016-1321, 6 October 2016) has created rules concerning platforms. Some of these rules are general, such as the obligation to provide loyal information to users (Consumption Code, art. L. 111-7), and others are more specific, such as the rules which apply to platforms that offer short-term rentals of furnished housings. These rules impose obligations on both persons who offer furnished housing on these platforms (declaration obligation, administrative authorisation in certain cases, written contracts…), but also on the platforms themselves, targeting in particular Air BnB (Tourism Code, art. L. 324-2-1).

The platforms must thus inform the lessor of the obligations of declaration or authorisation, and must obtain from him a declaration on the honour of the respect of these obligations, specifying whether the dwelling is his principle residence or not. They must also have the declaration number, which will have to be mentioned in the advertisement. They must also count the number of nights rented through the platform, and monitor that the number does not exceed 120 nights per year for a principle residence. This number can be communicated to the housing city. The platform cannot offer housing once the 120 night are exceeded.

These obligations of the platform must be the subject of an application decree, which must specify the methods of control and the sanctions. This decree is pending, while the decree relating to the obligation of the lessors was published in April 2017, and those, more general, relating to the obligations of loyalty had been published in September 2017 (on those decree, view the legifrance website).

This does not preclude justice from ensuring compliance with the new obligations since they came into force. This is what was done in a judgment of the Court of Instance of Paris, on 6 February 2018, in which Air BnB platform was condemned for the non-compliance with its obligations under the Digital Republic law.

Solution: The tenant of a Parisian apartment has published an announcement on the Air BnB platform offering accommodation for short stays. The sublease authorisation, requested one year after having started this activity, was refused by the owner. It was therefore forbidden for the tenant to offer this accommodation on the platform. The housing has often been rented, exceeding the number of 120 days per year, beyond which it can no longer be considered as a principal residence, and must, in Paris, to be rented as furnished accommodation for short stays, to be the object of an administrative authorisation. The owner of the housing has assigned the Air BnB platform, considering that it has committed errors incurring its liability, and that it must be condemned to the refund of the sums received at the occasion of the illicit leases carried out on its site.

The Tribunal notes that the platform has committed mistakes within the meaning of the Article . 324-2-1 of the tourism Code. Thus, it should have checked the authorisation of the lessor, obtain the certificate on honour, inform the lessor of its obligation of authorisation, check that the threshold of 120 nights was not exceeded, even for the period before 9 of October 2016 (enter into force of th Digital Republic Law). For 2017, the threshold was exceeded on June, 20, but his account was not suspended. The Tribunal deduces from the non-respect of those obligations negligence and abstentions of Air BnB that allow the lessor not to comply with the law. 

In defence, Air BnB assures that it is only a “support” platform, and that it has not committed any fault, since nothing oblige it to ask for an authorisation or to verify it. It therefore considers itself to be a networking platform and not responsible for non-respect of a residential lease. It also states that the Digital Republic lax cannot be applied to it for facts took place before it came into force.

The Tribunal recalls the obligations provided for the platform by the Tourism Code. Although it is not essential to verify the existence of the authorisation, the platform must obtain a declaration on honour, and ensure compliance with the rule about 120 days of rental per year. Air BnB has not informed its user of these obligations, it cannot prove to have given this information, and has not received the declaration on honour. Similarly, housing was offered beyond the 120 days allowed for a principal residence. The standby obligation imposed on Air BnB since October, 9, 2016 must force the platform to make a count for 2016 and 2017. Finally, Air BnB was alerted as of May, the 2nd, 2017, but the account continued to operate.

The Tribunal therefore considers that the platform failed to comply with the means to not respect its contractual obligations. If the latter remains responsible, the platform is also responsible.

Air BnB is thus ordered to pay the owner of the dwelling the sum she has collected for unlawfully renting the housing. The Tribunal finds that this is an unlawful exploitation of the property belonging to the owner, and that the fruits derived from it must be returned to the owner. It must also compensate the owner for moral damage, and reimburse the expenses incurred.

Comments: Although it is likely that Air BnB is appealing this judgment, it has significant interests and goes further than the Digital Republic law in the obligations of the platforms.

Beyond the application of a sanction to the obligations of the platform resulting from the Digital Republic law, the judgment interprets these obligations extensively, by creating an additional one in the case of the short-term lease. The judgment is also surprising by the transfer of the burden of proof of the information obligation of the platform: this proof is requested from the platform itself even though it is her user who claimed to have not been informed. The jurisprudential interpretation makes it possible to go beyond the vision of the role of the platform as limited to linking. Its role goes further and includes special obligations. 

Extensive interpretation of the legal obligations of the platform. The first interest of the judgment lies in the assertion of the platform’s obligations in the particular sector of seasonal rental. The judgment make a list of the obligations stemming from the law of 2016. It is possible to underline an extensive application of those obligations, expressly seen as applicable since October 2016. This is interesting as regards the counting of the days of rent, which was to be realised for the year 2016, and should lead to the suspension of the user account if the 120 days were exceeded. One of the contributions of this judgment is therefore the temporal application of the law, and invites to consider the obligations to be applied for the period from January to October 2016 in the same way as for October to December 2016. Moreover, despite the lack of details concerning the penalties for these obligations, the court also indicates the possibility of sanctioning them on the basis of civil liability, applying a classic rule of French law which allows, in the absence of specific text, the sanction of any legal obligation on the basis of this civil liability.

Creation of an obligation not provided for by the law: the obligation to verify that the user who offers accommodation on the platform does not do so in contradiction with his own rental contract. In addition to the legal obligations, the judgment could also apply an obligation not provided for by the 2016 law, but sometimes encountered in case law: that of verifying the contract binding the debtor. Here, it is necessary to return to the structure of the contractual relationships to explain how the owner of a house proposed on Air BnB by his tenant can act against the platform. The platform is third party to this lease, and is in contractile relationship only with the tenant. The Tribunal admits the action of the owner against the platform on the basis of civil liability, because the platforms allowed the breach of contractual obligations of the tenant. That is for sure interesting for all the short-term rental platforms, or even for all platforms, yet the judgment is silent on the basis that allows it to achieve this solution.

The user of Air BnB is in this case the tenant of his dwelling and not the owner. The lease contract prohibits subletting (law n°89-462, 07/06/1989, art. 8) which can only be possible with the express permission of the owner. The platform is not party to the lease but must, according to article 1200 of the civil Code, respect this contract and not compromise the proper execution. This principle of opposability of the contract to third parties gives rise in general case to any obligation for them. Sometimes, however, the case law has admitted the existence of a verification obligation to the third party. This obligation exists in specific situations, and most often concerns non-competition clauses. In that domain, is responsible for negligence the company which does not check the non-competition clause binding one of its employees with a former competing employer (Cour de cassation, Chambre commerciale, 7/02/1995, n°93-14.569; 11/07/2000, n°95-21.888). Undoubtedly, one of the contribution of the judgment is the extension of this solution in lease contracts, concerning the subletting: it tends to impose on the platform an obligation of verification concerning the contract under which its user holds the dwelling, and in the case of a tenant, the obligation of verification extends to the authorisation of the lessor, only possibility to can sublease the housing. Such an obligation does not seem to have already been imposed by case-law in an equivalent situation. It could also make any appeal against the decision very interesting. The breach of this obligation allows in this case the owner to act against the platform, while there is no contractual relationships between them due to the fact that the actions of the platform which admitted an advertisement on its website and was paid for rentals carried out infringe the owner’s rights. The consequence will be very concrete and will require the platforms to request a copy of the authorisation of the lessor to practice subletting in a rented housing, and thus to have questioned their members on their quality of tenant or owner of the housing concerned. In this case, the court considers that this has allowed the tenant to violate its contractual obligations, and will condemn the platform to return the fruits it has collected on the apartment, since these fruits must, according to the law about property, return to the owner.

Inversion of the burden of proof of the good information of the users of a platform. Another interesting aspect of this judgment is the reversal of the burden of proof of the information obligation of the platform (Tourism Code, art. L. 324-2-1, I). This text provides that the platform must inform its users who provide housing of declaration or prior authorisation obligation. But, it does not provide that the platform must prove the proper performance of this obligation. The reversal of the burden of proof is common in consumer law, where the professional must be able to prove that he has provided the legal information to the consumer. However, the dispute did not concern a consumer and such an obligation is not expressly provided for by the Tourism Code. In the absence of any provision, the general rule should have applied: the person who allege a fact must prove it in justice (Civil Procedure Code, art. 9). This text is even quoted in the decision. The Tribunal, finding that the user claimed not to have received the information in fact specifies that the platform has failed to fulfil its obligation because of the fact that it cannot justify having correctly respected. The solution may surprise, and even if this obligation of information dates from before the Digital Republic law, and was therefore applicable when registering the user on the platform in early 2016, will encourage the platform to keep track of the transmission of information to each user.

As a result of the application of the obligation to the platform: the impossibility for it to consider itself as simple intermediary for connecting people. Another interesting aspect of this judgement, which comes as one of the first done one the basis of the Digital Republic law for an online platform is the rejection of a limitation of the role of the platform to a simple intermediation. In its claims, the platforms insists on this point which must, according to der, dispense with any control over the ads. Although it might have been interesting, the Tribunal does not describe the role of the platform, but not seems to limit it to simply connecting short-term tenants with owners of dwellings, since it states that the platform has obligations that apply both when placing an ad online, but also over rentals. The argument of minimising its liability is not admitted by the tribunal, which reminds it of its legal obligations. The platform must therefore have an active role and ensure compliance with the rules, even if their non-compliance is not yet penalised.

Conclusion: extensive interpretation of the platform’s obligations by the Tribunal. The judgment applies the requirements of the law of 2016, and imposes their compliance as soon as the law is promulgated, requesting a booking of rentals for the year 2016, despite the fact that the law was passed in October. In the same way, this judgment passed to impose on platform an obligation of verification of the authorisation of subletting of its members, when they are tenant of their houses, under penalty of having refund the commission perceived to the owner. Finally, the judgment reverses the burden of proof of the obligation of information provided by the Tourism Code, and asks the platform to prove that this obligation is respected. On these three points, the judgment could have made extensions to the legal rules concerning online platforms. Therefore, the analysis of possible appeal against this decision will appear interesting.

Compte-rendu : Ubérisation et économie collaborative (Paris, 17.1.2018)

L’Institut de droit comparé de l’Université Paris II Panthéon-Assas accueillait le 17 janvier 2018 une conférence sur le thème : « Ubérisation et économie collaborative : évolutions récentes dans l’Union européenne et ses Etats Membres ». A. Turmo (Université de Nantes) et M. Baumgart (Université de Cologne et Université de Bâle) ont organisé cette conférence et l’ont placée sous la bienveillante présidence de Professeur F. Picod.

Le présent blog post se propose de réaliser un compte-rendu des discussions de la matinée. Le compte-rendu de l’après-midi de cette journée d’étude sera publié ultérieurement. Le programme complet est accessible ici.

Lors de cette journée ensoleillée, le Professeur Fabrice Picod a introduit la quarantaine d’intéressés à la thématique de l’ubérisation en insistant sur la nécessité de comprendre le contexte de ce phénomène. En effet, les libertés européennes et le marché intérieur doit être confronté aux évolutions technologiques. Le défi de l’ubérisation est, ainsi, d’organiser la liberté de circulation de capitaux, de prestations, de protéger les acteurs et en particulier les bénéficiaires des activités des plateformes (par le droit de la consommation ou la directive sur les pratiques déloyales) ainsi que de mettre en œuvre les règles du droit de la concurrence. Le Professeur Picod voit dans ce phénomène un magma normatif, qu’il convient d’organiser, d’éclaircir et cède la parole aux intervenants à cet effet.

Après ces propos introductifs, la première table ronde « définition et gouvernance des phénomènes associés à l’économie collaborative » est ouverte sous la présidence de A. Turmo.

Madame Primavera De Filippi (CERSA/Berkman Center) développe les enjeux d’Internet à travers des mécanismes de gouvernance décentralisés, dont en particulier la blockchain. Elle explique qu’il est possible d’envisager une régulation des usages ou de l’architecture d’Internet. A cet égard, la blockchain constitue une rupture des modèles de valeurs existant en met en place des mécanismes d’échanges sans intermédiaires (ou, du moins, sans autorité de confiance) de façon similaire à ce que l’Internet a fait en ce qui concerne l’accès à l’information. Ainsi, la blockchain est l’internet de la confiance : la blockchain permet d’enregistrer des données, de les certifier et lorsqu’un individu souhaite y accéder, il peut vérifier lui-même leur authenticité. Il s’agit donc d’un registre certifié et incorruptible, car les données inscrites sur la ‘chaine’ ne peuvent plus être manipulées.

Ainsi, la blockchain permet structurellement d’organiser les individus de manière très efficace par la mise en place de jetons (tokens). Les personnes qui participent aux activités du réseau sont ainsi récompensées par des tokens et peuvent valoriser leurs efforts, soit en utilisant eux-mêmes les jetons, soit en les revendant sur des marchés secondaires, à un prix déterminé par les mécanismes économique de l’offre et de la demande.

En conclusion, les plateformes de blockchain se sont inspirées du modèle ouvert d’internet et ont réussi à capter les valeurs. La blockchain permet d’échanger de la valeur, et de certifier, mais également de créer des applications sans serveur centralisé.

Monsieur David Massé (MCF, Paris Tech) expose ensuite les difficultés de définition et les enjeux pour la régulation de l’économie collaborative. Il existe une pluralité de pratiques (trocs, mutualisation, dons, achats groupés, réparation) et de secteurs impliqués qu’il est difficile d’appréhender en une seule fois bien qu’il s’agisse d’anciennes pratiques. Toutefois, celles-ci n’avaient pas lieu à la même échelle. Les plateformes forment alors un écosystème, ou les plateformes s’adossent les unes aux autres. Par exemple, une plateforme peut proposer des services de bagagerie à des utilisateurs d’Airbnb. Nous assistons toutefois aujourd’hui à une réintégration de ces services accessoires à la chaine de valeur par les plateformes principales concernées.

En analysant les nombreuses définitions dans la littérature, il existe plusieurs sources de tensions principales pour la régulation des plateformes. Celles-ci proviennent des promesses des acteurs (ex : ceux qui sont portés par les logiques sociales) et de la place des ressources utilisées par les acteurs (ex : mécanismes de pooling vs ressources décentralisées à travers des pairs mis en réseau par des plateformes d’intermédiation). En guise de conclusion, D. Massé estime que la conjonction de ces deux éléments permet de dégager quatre catégories de plateformes, qui répondent de logiques de régulation différente par les pouvoirs publics.  

Sous la présidence d’Edouard Dubout, la deuxième table ronde réunit trois intervenants sur le thème « développement de régimes spécifiques qualifiant et encadrant l’économie collaborative » et cherche à identifier si un nouveau régime juridique est nécessaire ou s’il est suffisant d’adapter les régimes existants.

Tout d’abord, Madame Julie Charpenet (Université de Nice) tente de qualifier les plateformes collaboratives au regard du droit français. A cette fin, il faut percevoir les deux voies d’accès au phénomène de l’économie collaborative : par le secteur (ex : financement participatif, mobilité des personnes) ou par les acteurs (prestataire, plateforme, bénéficiaire). Le législateur français a, quant à lui, choisi de réglementer « le recours à une plateforme » (loi travail, loi Macron, loi pour une république numérique), utilisant dès lors une qualification sui generis. Cette approche démontre deux visages contraires, tels ceux de Janus : la plateforme est à la foi tierce et cocontractante. En fait, l’article L111-7 du code de la consommation français procède à une métaqualification tellement son spectre est large (le législateur n’a, par exemple, pas souhaité trancher la question de la rémunération).

En réalité, J. Charpenet estime que la plateforme, en tant que tiers, exerce un pouvoir normatif (qui édicte des règles de qualité pour son marché) et un pouvoir juridictionnel complet (la plateforme établit les responsabilité, évalue le dommage et exécute directement la décision). Au contraire, dans ses relations contractuelles, la plateforme ressemble à un mandataire, voire à un courtier, sans complètement y être assimilée. Il est alors nécessaire de faire une application distributive des règles selon les aspects des plateformes que l’on cherche à réglementer.

Ensuite, Madame Harmonie Sala (Université Paris II) insiste sur le manque de définition juridique de l’économie collaborative bien qu’il s’agisse d’une pratique répandue. Cette économie n’est pas nouvelle mais son échelle a récemment explosé, ce qui en a modifié la structure : des conflits entre les nouveaux entrants et anciens participants ont éclaté, les règles fiscales ont besoin d’évoluer. Construisant sur les commentaires législatifs de J. Charpenet, M. H. Sala regrette le manque de réflexions sur les relations entre particuliers dans les réformes récentes. Toutefois, elle plaide pour examiner plus en avant le concept fiscal de ‘coconsommation’, qui constituerait le symbole d’une nouvelle ère.

Enfin, Monsieur Ljupco Grozdanvoski discute de l’opportunité d’un régime spécifique en droit de l’Union européenne. Dans l’agenda européen pour une économie collaborative, la Commission qualifie, par principe, ces services comme des services de la société d’information. Toutefois, dans l’affaire Elite Taxi, la Cour de Justice démontre que ce n’est pas toujours le cas. Les positions sont divergentes et la question de l’harmonisation est alors ouverte.

Quant au niveau d’harmonisation, les positions divergent. Ainsi, la proposition de directive sur certains aspects de la fourniture de contrats de service numérique montre que certains états visent l’harmonisation intégrale, intégrale ciblée ou simplement un meilleur contrôle de la législation existante.

S’agissant de compétences non exclusives, l’harmonisation semble politiquement inopportune aujourd’hui : il faudra sans doute épuiser le potentiel caché de la législation en vigueur avant d’adopter de nouvelles règles, ce qui laissera un important rôle pour la Cour de Justice qui devra interpréter les législations actuelles.