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7 J. Eur. Consumer & Mkt. L. 1 (2018)

handle is hein.kluwer/jeucml0007 and id is 1 raw text is: Journal of European Consumer and Market Law EuCML 1/2018 Volume 7 15 February 2018 Pages 1 -48 Editors: Prof. Dr. Christoph Busch, Universitat Osnabruck Dr. Alberto De Franceschi, Universiti degli Studi di Ferrara Dr. Mateja Durovic, King's College London Dr. Joasia Luzak, University of Exeter Prof. Dr. Vanessa Mak, Tilburg University Prof. Dr. Jorge Morais Carvalho, Universidade Nova de Lisboa Dr. Kristin Nemeth, Universitdt Innsbruck Prof. Dr. Rupprecht Podszun, Heinrich-Heine- Universitdt Duisseldorf Dr. Christine Riefa, Brunel University London EMail: editors@ eucml.eu Editorial Uber Spain and the Identity Crisis of Online Platforms Business models like Uber, Amazon and Airbnb have struggled since their inception with a question that impacts on the equilibrium of the EU digital market: should they be qualified as mere intermedi- aries or rather as providers of goods and services? Most platforms present themselves as mere passive facilitators rather than as sellers or suppliers.' This is, for instance, the case of Uber2 and Airbnb,3 which repeatedly point out in their terms and conditions that they act as mere intermediaries between the service provider and the recipient. Never- theless, such platforms are often much more than mere facilitators between the supplier and the user of goods, digital content or services, as many of them determine the terms and conditions, the price, manage the payment service, often taking a percentage as a processing fee. Other platforms play an even more active role, such as platforms dealing with 3D printing. They allow designers to publish their works (i. e. their CAD files) on the platform, where interested recipients can order the physical item. The online platform will then process the order, 3D print the item and dispatch it directly to the recipient.4 Already in its Communication on a European agenda for the collaborative economy of June 2016,5 the EU Commission underlined that whether an online platform also provides the underlying service has to be established on a case-by-case basis. In this regard, several factual and legal criteria play a role, indicating the level of control or influence that the collaborative platform exerts over the provider of such services. According to the Commission's reasoning, the key criteria to be considered are: (i) the circumstance that the collaborative platform sets the final price to be paid by the user; (ii) the fact that the platform sets other key contractual terms; and (iii) the fact that the platform owns the key assets used to provide the underlying service.6 1 C. Busch, H. Schulte-N61ke, A. Wiewi6rowska-Domagalska and F. Zoll, The rise of the platform economy: A new challenge for EU consumer law?, EuCML 2016, 3 ff. 2 M.J. Sorensen, Private law perspectives on platform services: Uber - a business model in search of a new contractual legal frame?, EuCML 2016, 15 ff. Cf. the reports from 13 EU-Member States published in EuCML issues 1-2/2015, 3/2015 and 4/2015. 3 V. Mak, Private law perspectives on platform services: Airbnb - Home rentals between AYOR and NIMBY, EuCML 2016, 19 ff. 4 C. Twigg-Flesner, Disruptive Technology - Disrupted Law? How the Digital Revolution Affects (Contract) Law, in A. De Franceschi (ed.), European Contract Law and the Digital Single Market - The Implications of the Digital Revolution, Intersentia 2016, 30. 5 COM(2016) 356 final. See C. Cauffman, The Commission's European Agenda for the Collaborative Economy - (Too) Platform and Service Provider Friendly?, EuCML 2016, 238; G. Smorto, Critical Assessment of European Agenda for the Collaborative Economy - In-Depth Analysis for the IMCO Committee, 2017, 5, 18; K. Tonner, Verbraucherschutz in der Plattform-Okonomie, VuR 2017, 162. 6 COM(2016) 356 final, 6. See K. Tonner, supra note 5, 162, who makes an interesting reference to Directive 2015/2302 of the European Parliament and of the Council of 25 November 2015 on package travel and linked travel arrangements.

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