“One very compelling –and underappreciated– aspect of the internet is how it has greatly expanded the potential to build platforms not just in the technology business, but in any industry”. SCHMIDT, E. & ROSENBERG, J. (2014), How Google works, John Murray (Publishers), London, p. 81.

Number of active monthly users Facebook 2 billion YouTube 1.5 billion WhatsApp 1.3 billion Gmail 1 billion Amazon 300 million eBay 200 million Uber 40 million (oct. 2016) Airbnb 1 million per day

“The notion that Uber in London is a mosaic of 30,000 small businesses linked by a common “platform” is to our minds faintly ridiculous.” England Employment Tribunals, October 28, 2016

REGULATORS PROVIDER PLATFORM USER

Traditional regulation There is no doubt about the role of local authorities in the application of traditional regulation: Transport, accommodation etc. However, it might be positive to review the existing regulation to adapt it to technological evolution, new services, etc. There is the risk of making the existing regulation irrelevant.

The regulation of the new data layer The legal framework for the new data layer: Information Society Service (ISS): “any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services.” Article 1(1)(b) Directive 2015/1535 Directive 2000/31/EC: Applicable legislation: State of establishment. No authorization required. Freedom to provide services: closed list of restrictions by recipient Member State and specific procedure. In the USA, Communications Decency Act 1996.

The borderline… Platforms provide the underlying service, ISS… or both? Platforms sustain that they provide electronic intermediation services. Taxis sustain Uber provides a transport service. The Commission proposes some guidelines: “When these three criteria are all met, there are strong indications that the collaborative platform exercises significant influence or control over the provider of the underlying service, which may in turn indicate that it should be considered as also providing the underlying service (in addition to an information society service).” (1) Ownership of key assets; (2) Price (3) Other contractual terms (including the obligation to provide the service). In some cases other criteria: the platform incurs the costs and assumes all the risk, labour relation. Commission, A European Agenda for the collaborative economy, 2.6.2016

The borderline… Pending preliminary rulings of the CJEU in Uber Spain (C-434/15) and Uber France (C-320/16) cases. The Commission makes a new proposal: mixed nature/composite service: digital contracting and physical delivery, as in Ker-Optika (C-108/09). Advocate General Szpunar in both cases considers that Uber provides a transport service, not an ISS. But Vanderboght (C-339/15) declared a secondary/preparatory service to be ISS. Judgment in the following weeks…

The future New platform regulation is necessary. Even if it is an electronic intermediation, the scale poses new challenges. However… It is necessary to understand the new model of industrial organization. Regulation should strengthen the platform as a fair and safe environment. Protection for service providers. Protection for consumers. Risk of market dominance. Regulation should be flexible.