Platform Services and Duties under Directives 2000/31/EC, 2006/123/EC and 2011/83/EU Christiane Wendehorst Osnabrück, 19 November 2015

E-Commerce Directive 2000/31/EC

3 Article 2. Definitions For the purpose of this Directive, the following terms shall bear the following meanings: a)"information society services": services within the meaning of Article 1(2) of Directive 98/34/EC* …; b)"service provider": any natural or legal person providing an information society service; … * Codified by Directive (EU) 2015/1535 of 9 September 2015, Article 1(1) of which reads: … (b) ‘service’ means any Information Society service, that is to say, any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services. For the purposes of this definition: (i)‘at a distance’ means that the service is provided without the parties being simultaneously present; (ii)‘by electronic means’ means that the service is sent initially and received at its destination by means of electronic equipment for the processing (including digital compression) and storage of data, and entirely transmitted, conveyed and received by wire, by radio, by optical means or by other electromagnetic means; (iii)‘at the individual request of a recipient of services’ means that the service is provided through the transmission of data on individual request. An indicative list of services not covered by this definition is set out in Annex.

4 Recitals: (18) Information society services span a wide range of economic activities which take place on-line; these activities can, in particular, consist of selling goods on-line; activities such as the delivery of goods as such or the provision of services off-line are not covered; information society services are not solely restricted to services giving rise to on-line contracting but also, in so far as they represent an economic activity, extend to services which are not remunerated by those who receive them, such as those offering on-line information or commercial communications, or those providing tools allowing for search, access and retrieval of data; information society services also include services consisting of the transmission of information via a communication network, in providing access to a communication network or in hosting information provided by a recipient of the service; ….

5 CJEU, 11 September 2014, Case C ‑ 291/13 (Sotiris Papasavvas): Article 2(a) of Directive 2000/31/EC … must be interpreted as meaning that the concept of ‘information society services’, within the meaning of that provision, covers the provision of online information services for which the service provider is remunerated, not by the recipient, but by income generated by advertisements posted on a website. CJEU, 12 July 2011, Case C ‑ 324/09 (L’Oréal SA): Article 14(1) of Directive 2000/31/EC … must be interpreted as applying to the operator of an online marketplace where that operator has not played an active role allowing it to have knowledge or control of the data stored. The operator plays such a role when it provides assistance which entails, in particular, optimising the presentation of the offers for sale in question or promoting them. …

6  Article 5: Making accessible general information on the service provider (name, address, etc.)  Article 6: Fairness in commercial communications (identifiability of person on whose behalf communication is made, of promotional offers, etc.)  Article 10: Provision of information related to the conclusion of a contract by electronic means (technical steps, languages, etc.)  Article 11: Requirements related to the infrastructure used (correction of input errors, acknowledgment of receipt, etc.)  Article 14: Taking action against illegal content upon obtaining knowledge or awareness of circumstances  …. Duties of service providers under the E-Commerce Directive

7 Customer E-shop operator =Supplier Service of the Information Society ‘Selling goods online’ as a ‘service of the Information Society’ Sales/services contract

8 Article 10. Information to be provided 1.… Member States shall ensure, except when otherwise agreed by parties who are not consumers, that at least the following information is given by the service provider clearly, comprehensibly and unambiguously and prior to the order being placed by the recipient of the service: a)the different technical steps to follow to conclude the contract; b)whether or not the concluded contract will be filed by the service provider and whether it will be accessible; c)the technical means for identifying and correcting input errors prior to the placing of the order; d)the languages offered for the conclusion of the contract. 2.Member States shall ensure that, except when otherwise agreed by parties who are not consumers, the service provider indicates any relevant codes of conduct to which he subscribes and information on how those codes can be consulted electronically. 3.Contract terms and general conditions provided to the recipient must be made available in a way that allows him to store and reproduce them. 4.Paragraphs 1 and 2 shall not apply to contracts concluded exclusively by exchange of electronic mail or by equivalent individual communications.

9 Article 11. Placing of the order 1.Member States shall ensure, except when otherwise agreed by parties who are not consumers, that in cases where the recipient of the service places his order through technological means, the following principles apply:  the service provider has to acknowledge the receipt of the recipient's order without undue delay and by electronic means,  the order and the acknowledgement of receipt are deemed to be received when the parties to whom they are addressed are able to access them. 2.Member States shall ensure that, except when otherwise agreed by parties who are not consumers, the service provider makes available to the recipient of the service appropriate, effective and accessible technical means allowing him to identify and correct input errors, prior to the placing of the order. 3.Paragraph 1, first indent, and paragraph 2 shall not apply to contracts concluded exclusively by exchange of electronic mail or by equivalent individual communications.

10 Customer Supplier Platform Provider Platform services contract Who is the ‘service provider’ and what is the ‘contract’ ?

11 Model A:  ‘Selling goods online’ etc. (cf. Recital 18), by the supplier, as the only ECD service provided to the customer  Customer has a contract only with the supplier

12 Customer Supplier Platform Provider Sales/services contract Platform services contract Service of the Information Society  Suggested by, e.g., German law (§ 312i BGB)  ECD generally applicable to PPs (cf. CJEU in C ‑ 324/09, L’Oréal)  Possibly not in line with the ECD A Who is the ‘service provider’ and what is the ‘contract’ ?

13 Model B:  Both ‘selling goods online’ etc. (cf. Recital 18) and the operation of a platform as ECD services provided to the customer  Customer has a contract only with the supplier

14 Customer Supplier Platform Provider Sales/services contract Platform services contract Service of the Information Society B Who is the ‘service provider’ and what is the ‘contract’ ?

15 Model C:  Both ‘selling goods online’ etc. (cf. Recital 18) and the operation of a platform as ECD services provided to the customer  Customer has a (sales/services) contract with the supplier, but also a contractual (or quasi- contractual) relationship with the PP

16 Customer Supplier Platform Provider Sales/services contract Platform contract Service of the Information Society Service contract or similar relationship C Who is the ‘service provider’ and what is the ‘contract’ ?

17 Model D:  Under the applicable contract law, the PP is to be considered as ‘selling goods online’ (despite declarations to the contrary in the fine print)  Accordingly, only the PP is providing an ECD service to the customer

18 Customer Supplier Platform Provider Platform & supply contract Sales/services contract Service of the Information Society Delivery D Who is the ‘service provider’ and what is the ‘contract’ ?

19 Request for a preliminary ruling from the Korkein oikeus (Finland) lodged on 25 June 2015 — TrustBuddy AB v Lauri Pihjalaniemi (Case C-311/15) Question referred Is Article 3(b) of Directive 2008/48/EC … on credit agreements for consumers … to be interpreted as meaning that that a trader is to be regarded as a creditor if it markets credit to consumers via the internet in the form of so-called peer-to-peer lending and exercises, as regards the consumers, the decision-making power generally appertaining to creditors with respect to the terms and conditions, the granting of credit and debt recovery, even though the funds for credits come from anonymous private individuals and are kept separate from the trader’s own funds?

20  Model A: Supplier as only ECD service provider; all duties on supplier  Model B: PP and supplier both ECD service providers with regard to the main contract; duties under ECD shared  Model C: PP and supplier both ECD service providers, but PP with relation to the platform service as such and supplier with relation to the main contract; however, PP may have a contractual/quasi-contractual duty vis-à-vis the customer that duties are fulfilled also with relation to the main contract  Model D: PP to be considered as the customer’s only contracting partner under the relevant contract law (despite declarations to the contrary in the fine print); all duties under the ECD on PP Duties of Platform Providers (PP) and Suppliers under the ECD Classification largely depends on the concrete division of tasks between PP and supplier and the impression created on the part of the customer.

Services Directive 2006/123/EC

22 Article 2. Scope 1. This Directive shall apply to services supplied by providers established in a Member State. 2. This Directive shall not apply to the following activities: … (c) electronic communications services and networks, and associated facilities and services, with respect to matters covered by Directives 2002/19/EC, 2002/20/EC, 2002/21/EC, 2002/22/EC and 2002/58/EC; (d) services in the field of transport, including port services, …. Article 4. Definitions For the purposes of this Directive, the following definitions shall apply: 1)‘service’ means any self-employed economic activity, normally provided for remuneration, as referred to in Article 50 of the Treaty; 2)‘provider’ means any … person … who offers or provides a service; 3) ‘recipient’ means any … person … who, for professional or non-professional purposes, uses, or wishes to use, a service;

23 Article 22 Information on providers and their services 1. Member States shall ensure that providers make the following information available to the recipient: a)the name of the provider, his legal status and form, the geographic address at which he is established and details enabling him to be contacted rapidly and communicated with directly and, as the case may be, by electronic means; b)where the provider is registered in a trade or other similar public register, the name of that register and the provider's registration number, or equivalent means of identification in that register; c)where the activity is subject to an authorisation scheme, the particulars of the relevant competent authority or the single point of contact; d)….

24 In the light of the broad definitions of the SD the platform service will normally be a service within the meaning of the SD, but the scope of the exclusion in Article 2(2)(c) may need some clarification. However, the question arises whether a PP is also, or even primarily, considered to ‘provide’ within the meaning of the SD any service provided by the supplier (cf. Asociación Profesional Élite Taxi v Uber Systems Spain, S.L., Case C-434/15)

25 Request for a preliminary ruling from the Juzgado Mercantil No 3 de Barcelona (Spain) lodged on 7 August 2015 — Asociación Profesional Élite Taxi v Uber Systems Spain, S.L. (Case C-434/15) Questions referred …. must the activity carried out for profit by the defendant, consisting of acting as an intermediary between the owner of a vehicle and a person who needs to make a journey within a city, by managing the IT resources — in the words of the defendant, ‘intelligent telephone and technological platform ’ interface and software application — which enable them to connect with one another, be considered to be merely a transport service or must it be considered to be an electronic intermediary service or an information society service … ? …

Consumer Rights Directive 2011/83/EU

27 Article 2. Definitions For the purpose of this Directive, the following definitions shall apply: … (2) ‘trader’ means any … person … who is acting, including through any other person acting in his name or on his behalf, for purposes relating to his trade, business, craft or profession in relation to contracts covered by this Directive; …. (6) ‘service contract’ means any contract other than a sales contract under which the trader supplies or undertakes to supply a service to the consumer and the consumer pays or undertakes to pay the price thereof; … Article 3. Scope 1. This Directive shall apply, under the conditions and to the extent set out in its provisions, to any contract concluded between a trader and a consumer. …

28 Recitals: … (16) This Directive should not affect national laws on legal representation such as the rules relating to the person who is acting in the name of the trader or on his behalf (such as an agent or a trustee). … … (22) … The business premises of a person acting in the name or on behalf of the trader as defined in this Directive should be considered as business premises within the meaning of this Directive.

29 Article 6. Information requirements for distance and off-premises contracts 1. Before the consumer is bound by a distance or off- premises contract, or any corresponding offer, the trader shall provide the consumer with the following information in a clear and comprehensible manner: a)the main characteristics of the goods or services, to the extent appropriate to the medium and to the goods or services; b)the identity of the trader, such as his trading name; c)the geographical address at which the trader is established and the trader’s telephone number, fax number and address, where available, to enable the consumer to contact the trader quickly and communicate with him efficiently and, where applicable, the geographical address and identity of the trader on whose behalf he is acting; d)if different from the address provided in accordance with point (c), the geographical address of the place of business of the trader, and, where applicable, that of the trader on whose behalf he is acting, where the consumer can address any complaints; e)the total price of the goods or services inclusive of taxes, … as well as... all additional freight, delivery or postal charges …

30 DG Justice guidance document on the CRD (June 2014), p. 24: Identity and address of the principal In off-premises / distance contracts the Directive requires the trader, who acts on behalf of another trader, to indicate also the identity and geographical address of the principal.  In particular, where the trader provides an on-line trading platform for other traders to market their products, for example, an app store for selling digital content offered by different developers, the platform provider should make sure, through appropriate arrangements with the developers, that information about them as content providers is duly displayed.

31 The concept of ‘a trader acting on behalf of another trader’ in the CRD is unclear, in particular in the light of remarks in the DG Justice guidance document. Guidance document raises many questions:  We do not need the concept of ‘on behalf of’ where only the PP is ‘the trader’ (Model D). Or is there a general duty to disclose one’s suppliers?  In Model C the PP is ‘the trader’ concerning the platform (intermediary) service as such. Does the CRD imply an unwritten rule on intermediaries despite the fact that there are explicit rules on intermediaries in many other Directives?  If also a PP who is a non-contracting party (Models A/B) were to be considered to be ‘the trader’ within the meaning of (particular provisions of) the CRD – would that not be overstretching the wording? Where are the limits?

Some conclusions:  With regard to a PP’s duties under the relevant Directives there are arguably four basic models (see Models A, B, C and D supra)  Classification largely depends on the concrete division of tasks and the impression created on the part of the consumer.  Classification is currently mainly a matter for the applicable national contract law, but some issues may be dealt with at the level of the Directives themselves (e.g. Model A, which would mean only the supplier has duties under ECD Articles 10, 11, may be incompatible with the ECD)  The ECD, SD and CRD are unclear as to the exact role of PPs, and clarification, preferably by the European legislator, would be required.