SAU, Alm.del - 2017-18 - Endeligt svar på spørgsmål 69: Spm. om kort at redegøre for konklusionerne i Strategi for Vækst gennem deleøkonomi og oversende studierne til Skatteudvalget, til erhvervsministeren

Skatteudvalget 2017-18
SAU Alm.del
Offentligt

EUROPEAN

COMMISSION

Brussels, 2.6.2016

COM(2016) 356 final

COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN

PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL

COMMITTEE AND THE COMMITTEE OF THE REGIONS

A European agenda for the collaborative economy

{SWD(2016) 184 final}

SAU, Alm.del - 2017-18 - Endeligt svar på spørgsmål 69: Spm. om kort at redegøre for konklusionerne i Strategi for Vækst gennem deleøkonomi og oversende studierne til Skatteudvalget, til erhvervsministeren

1. Introduction

The collaborative economy creates new opportunities for consumers and entrepreneurs. The

Commission considers that it can therefore make an important contribution to jobs and growth

in the European Union, if encouraged and developed in a responsible manner. Driven by

innovation, new business models have a significant potential to contribute to competitiveness

and growth. The success of collaborative platforms are at times challenging for existing

market operators and practices, but by enabling individual citizens to offer services, they also

promote new employment opportunities, flexible working arrangements and new sources of

income. For consumers, the collaborative economy can provide benefits through new

services, an extended supply, and lower prices. It can also encourage more asset-sharing and

more efficient use of resources, which can contribute to the EU’s sustainability agenda and to

the transition to the circular economy.

At the same time, the collaborative economy often raises issues with regard to the application

of existing legal frameworks, blurring established lines between consumer and provider,

employee and self-employed, or the professional and non-professional provision of services.

This can result in uncertainty over applicable rules, especially when combined with regulatory

fragmentation stemming from divergent regulatory approaches at national or local level. This

hampers the development of the collaborative economy in Europe and prevents its benefits to

materialise fully. At the same time, there is a risk that regulatory grey zones are exploited to

circumvent rules designed to preserve the public interest.

The collaborative economy is small but growing rapidly, gaining important market shares in

some sectors. Gross revenue in the EU from collaborative platforms and providers was

estimated to be EUR 28 billion in 2015. Revenues in the EU in five key sectors almost

doubled compared with the previous year and are set to continue expanding robustly.

Growth

has been strong since 2013 and accelerated in 2015 as large platforms invested significantly in

expanding their European operations. Going forward, some experts estimate that the

collaborative economy could add EUR 160-572 billion to the EU economy. Therefore there is

a high potential for new businesses to capture these fast growing markets.

Consumer interest

is indeed strong, as confirmed by a public consultation and a Eurobarometer poll.

This Communication aims at helping to reap these benefits and to address concerns over the

uncertainty about rights and obligations of those taking part in the collaborative economy. It

provides legal guidance and policy orientation

to public authorities, market operators and

interested citizens for the balanced and sustainable development of the collaborative

economy, as announced in the single market strategy.

This non-binding guidance on how

existing EU law should be applied to the collaborative economy covers key issues faced by

market operators and public authorities alike.

It is without prejudice to initiatives that the

It is estimated that collaborative platforms operating in five key sectors of the collaborative economy generated revenues

of EUR 3.6 bn in 2015 in the EU: accommodation (short-term letting); passenger transport; household services;

professional and technical services, and collaborative finance. All figures are based on estimates of PwC Consulting as

part of a study contracted by the European Commission.

EPRS: The cost of non-Europe in the Sharing Economy. January 2016.

A Eurobarometer opinion poll found that 52 % of EU citizens are aware of the services offered by the collaborative

economy and 17 % have used such services at least once. A presentation of the results of the Eurobarometer poll and the

public consultation carried out from September 2015 to January 2016 can be found in the accompanying Staff Working

Document.

Issues related to crowdfunding activities (addressed by the Commission’s Communication COM/2014/0172)

and

services provided by learning platforms are not covered by this Communication.

COM(2015) 550.

The guidance provided in this Communication focuses on economic activities. Collaborative economy services can be

offered for free, on a cost-sharing basis or against remuneration. For many Member States, pure cost-sharing activities

Commission may take in this area in the future and to the prerogatives of the Court of Justice

as regards the interpretation of EU law.

What is the collaborative economy?

For the purposes of this Communication, the term "collaborative economy"

refers to

business models where activities are facilitated by collaborative platforms that create an open

marketplace for the temporary usage of goods or services often provided by private

individuals. The collaborative economy involves three categories of actors: (i) service

providers who share assets, resources, time and/or skills

—

these can be private individuals

offering services on an occasional basis (‘peers’) or service providers acting in the

professional capacity ("professional services providers"); (ii) users of these; and (iii)

intermediaries that connect

—

via an online platform

—

providers with users and that

facilitate transactions between them (‘collaborative platforms’). Collaborativ

e economy

transactions generally do not involve a change of ownership and can be carried out for profit

or not-for-profit.

2. Key issues

2.1. Market access requirements

As well as creating new markets and expanding existing ones, collaborative economy

businesses enter markets so far served by traditional service providers. A key question for

authorities and market operators alike is whether and if so to what extent, under existing EU

law, collaborative platforms and service providers can be subject to market access

requirements. These can include business authorisations, licensing obligations, or minimum

quality standard requirements (e.g. the size of rooms or the type of cars, insurance or deposit

obligations etc.). Under EU law, such requirements need to be justified and proportionate,

taking account of the specificities of the business model and innovative services concerned,

while not favouring one business model over the other.

Professional provision of services

National regulatory approaches differ in various sectors, some being more restrictive than

others. Depending on the type of service, regulatory intervention is usually motivated by

reference to varying public interest objectives: protection of tourists; ensuring public safety;

combating tax evasion; maintaining a level playing field; safeguarding public health and food

safety; remedying scarcity of affordable housing for citizens, etc. In some Member States, in

addition to existing sector-specific regulation, there have been targeted regulatory

interventions, spurred by the entry into the market of collaborative economy operators.

Under EU law, in particular the fundamental freedoms of the Treaty and the Services

Directive,

service providers are not to be subject to market access or other requirements, such

or transactions making services available as part of an exchange, do not involve remuneration. Only remunerated

activities constitute an economic activity under EU law. See Case C-281/06 Jundt [2007] ECR I- I-12231 §32, 33.

Importantly, even if the transaction between a service provider and a user does not constitute an economic activity, this

may still be the case for their respective relationship with the collaborative economy platform. Each relationship

(platform-user; platform-service provider; service provider-user) must be assessed separately.

The term collaborative

economy is often interchangeably used with the term ‘sharing economy’. Collaborative economy

is a rapid evolving phenomenon and its definition may evolve accordingly.

Collaborative economy services may involve some transfer of ownership of intellectual property.

See Article 9 and 16 of Directive 2006/123/EC (‘the Services Directive’) and Articles 49 and 56 of the Treaty on the

Functioning of the European Union (TFEU).

as authorisation schemes and licensing requirements, unless they are non-discriminatory,

necessary to attain a clearly identified public interest objective

and proportionate to

achieving this interest (i.e. imposing no more requirements than strictly needed).

This also

applies to the regulation of professions.

The Services Directive requires national authorities to review existing national legislation to

ensure that market access requirements continue to be justified by a legitimate objective. They

must also be necessary and proportionate. As the Commission emphasised in its Annual

Growth Survey 2016

, a more flexible regulation of services markets would lead to higher

productivity and could ease the market entry of new players, reduce the price for services, and

ensure wider choices for consumers.

The emergence of the collaborative economy and the entry into the market of new business

models provide an opportunity to policymakers and legislators in Member States. They can

consider whether the objectives pursued in existing legislation remain valid, both in relation

to the collaborative economy and to traditionally operating service providers.

When reassessing the justification and proportionality of legislation applicable to the

collaborative economy, national authorities should generally take into consideration the

specific features of collaborative economy business models and the tools they may put in

place to address public policy concerns, for instance in relation to access, quality or safety.

For example, rating and reputational systems or other mechanisms to discourage harmful

behaviour by market participants may in some cases reduce risks for consumers stemming

from information asymmetries. This can contribute to higher quality services and potentially

reduce the need for certain elements of regulation, provided adequate trust can be placed in

the quality of the reviews and ratings.

Absolute bans and quantitative restrictions of an activity normally constitute a measure of last

resort. They should in general only be applied if and where no less restrictive requirements to

attain a legitimate public interest objective can be used. For example, banning short-term

letting of apartments appears generally difficult to justify when the short-term rental use of

properties can for example be limited to a maximum number of days per year. This would

allow citizens to share their properties on an occasional basis without withdrawing the

property from the long-term rental market.

In addition, where service providers are legitimately required to obtain authorisations on the

basis of national law, Member States are to ensure that the conditions to obtain them are,

among other things, clear, proportionate and objective and that the authorisations are in

principle granted for an unlimited period of time.

Moreover, the relevant administrative

procedures and formalities must also be clear, transparent and not unduly complicated,

whereas their costs for the providers must be reasonable and proportionate to the cost of the

procedure in question and the procedures must be as speedy as possible and subject to tacit

For a list of overriding reasons relating to the public interest under the Services Directive see its Article 4 (8).

See Recital 39 and Article 4 (6) of the Services Directive on the concept of ‘authorisation’.

See Article 59 of the Professional Qualifications Directive 2005/36/EC. The proportionality and the necessity of national

regulations on regulated professions will be further discussed in two forthcoming Commission initiatives (guidance on

reforms needs on regulated professions and the proportionality test for regulated professions).

COM(2015) 690 final, of 26.11.2015, Communication on the Annual Growth Survey 2016: Strengthening the recovery

and fostering convergence

See Articles 10 and 11 of the Services Directive.

approval.

Employing e-government best practices and principles can significantly lower the

cost and burden of compliance for service providers.

Peer-to-peer provision of services

In the collaborative economy context, an important element to assess whether a market access

requirement is necessary, justified and proportionate, can be whether the services are offered

by professional providers or rather by private individuals on an occasional basis. In fact, a

specific feature of the collaborative economy is that service providers are often private

individuals offering assets or services on an occasional peer-to-peer basis. At the same time,

increasingly micro entrepreneurs and small businesses are using collaborative platforms.

EU legislation does not establish expressly at what point a peer becomes a professional

services provider in the collaborative economy.

Member States use different criteria to

differentiate between professional services and peer-to-peer services. Some Member States

define professional services as services provided against remuneration compared to peer-to-

peer services that aim at compensating costs incurred by the services provider. Other Member

States have introduced a differentiation using thresholds. These thresholds are often

developed on a sector-specific basis taking into account the level of income generated or the

regularity with which the service is provided. Below these thresholds, service providers are

usually subject to less restrictive requirements. Thresholds, established in a reasonable way,

can be a useful proxy and can help create a clear regulatory framework to the benefit of non-

professional providers.

For example, in the transport sector, some Member States are preparing to exempt small-scale

passenger transport services

—

falling below a specific threshold of annual turnover

—

from

licensing requirements. In the short-term accommodation sector, some cities permit short-

term rentals and home-sharing services without prior authorisation or registration

requirements. This would be the case when the services are provided on an occasional basis,

i.e. up to specific thresholds such as less than 90 days per year. Other cities apply different

rules depending on whether the property is a primary or secondary residence, on the

assumption that a citizen’s primary residence can only be rented out on an occasional

basis.

Collaborative platforms

Whether or not

–

and the extent to which

–

collaborative platforms can be subject to market

access requirements depends on the nature of their activities. As long as collaborative

platforms provide a

service normally provided for remuneration, at a distance, by electronic

means and at the individual request of a recipient of services,

they provide an information

society service. Therefore, they cannot be subjected to prior authorisations or any equivalent

requirements that are specifically and exclusively targeting those services.

Also, Member

States can only impose regulatory requirements on collaborative platforms providing such

See Article 13 of the Services Directive.

COM(2016) 179 final of 19.4.2016, Communication on EU eGovernment Action plan 2016-2020

–

Accelerating the

digital transformation of government

The Services Directive for example defines service providers as any natural or legal person who offers any self-

employed economic activity, normally provided for remuneration (see Article 4 (2)). This means that any economic

activity could be captured by the rules of this Directive regardless of the frequency it is offered and without requiring

that the provider necessarily acts as ‘professional’. In addition,

EU consumer acquis defines 'trader' as any person acting

for the purposes relating to his trade, business, craft or profession (see section 2.3).

See Article 2(a) of Directive 2000/31/EC ('e-Commerce Directive') and Article 1(1)(b) of Directive 2015/1535. See also

Annex I to that latter Directive for an indicate list of services not covered by this definition.

See Article 4 of the e-Commerce Directive.

services across borders from another Member State under limited circumstances and subject

to a specific procedure.

However, there may be cases in which collaborative platforms can be considered as offering

other services in addition to the information society services that they offer to intermediate

between the providers of underlying services and their users. In particular, in certain

circumstances, a platform may also be a provider of the underlying service (e.g. transport or

short-term rental service). In such a case, collaborative platforms could be subject to the

relevant sector-specific regulation, including business authorisation and licensing

requirements generally applied to service providers, under the conditions as set out in the

preceding sections

Whether a collaborative platform also provides the underlying service will normally have to

be established on a case-by-case basis. Several factual and legal criteria can play a role in this

regard. The level of control or influence that the collaborative platform exerts over the

provider of such services will generally be of significant importance. It can in particular be

established in light of the following key criteria:



Price: does the collaborative platform set the final price to be paid by the user, as

the recipient of the underlying service. Where the collaborative platform is only

recommending a price or where the underlying services provider is otherwise free

to adapt the price set by a collaborative platform, this indicates that this criterion

may not be met.

Other key contractual terms: does the collaborative platform set terms and

conditions, other than price, which determine the contractual relationship between

the underlying services provider and the user (such as for example setting

mandatory instructions for the provision of the underlying service, including any

obligation to provide the service).

Ownership of key assets: does the collaborative platform own the key assets used

to provide the underlying service.



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).

Depending on the case at hand, other criteria may also play a role. For instance, if the

collaborative platform incurs the costs and assumes all the risks related to the provision of the

underlying service. Or if an employment relationship exists between the collaborative

platform and the person providing the underlying service in question (see section 2.4). These

elements could indicate that the collaborative platform exerts a high level of control and

influence over the provision of the underlying service.

Conversely, collaborative platforms may merely assist the provider of the underlying services

by offering the possibility to carry out certain activities that are ancillary to the core

information society services offered by the platform to intermediate between the provider of

See Articles 2 and 3 of the e-Commerce Directive. The country of origin principle for the freedom to provide

information society services cross-border can only be derogated from when there is a threat or a serious and grave risk to

undermine the following four objectives: public policy, protection of public health, public security, including the

safeguarding of national security and defence and protection of consumers. In that case the national measures in

question must still be proportionate and certain procedural conditions (including notification to the Commission) must

also be respected.

i.e. that they are non-discriminatory, necessary to attain a clearly identified public interest objective and proportionate to

achieving this interest (i.e. imposing no more requirements than strictly needed)

the underlying services and their users (e.g. by providing payment facilities, insurance

coverage, aftersales services etc.) This, in itself, does not constitute proof of influence and

control as regards the underlying service. Similarly, offering user rating or review

mechanisms is not in itself proof of significant influence or control.

Yet, generally speaking,

the more collaborative platforms manage and organise the selection of the providers of the

underlying services and the manner in which those underlying services are carried out

—

for

example, by directly verifying and managing the quality of such services

—

the more

apparent it becomes that the collaborative platform may have to be considered as also

providing the underlying services itself.

Therefore, a collaborative platform providing services in the short-term rental sector may only

provide information society services and not also the accommodation service itself if, for

example, the provider of the accommodation service sets its own prices and the platform does

not own any of the assets used for that service provision. The fact that the collaborative

platform may also offer insurance and rating services to their users need not alter that

conclusion.

When assessing whether market access requirements applied to the collaborative economy

are necessary, justified and proportionate to meet identified and legitimate public interest

objectives, Member States should take into account the specific features of collaborative

economy business models.

For the purposes of regulating the activities in question, private individuals offering services

via collaborative platforms on a peer-to-peer and occasional basis should not be

automatically treated as professional service providers. Establishing (possibly sector-

specific) thresholds under which an economic activity would be considered a non-

professional peer-to-peer activity may be a suitable way forward.

Member States are advised to take the opportunity to review, simplify and modernise market

access requirements that are generally applicable to market operators. They should aim to

relieve operators from unnecessary regulatory burden, regardless of the business model

adopted, and to avoid fragmentation of the Single Market.

2.2 Liability regimes

Most relevant rules on contractual and extra-contractual liability are laid down in national

laws of Member States. However, under EU law, online platforms, as providers of

information society intermediary services, are under certain conditions exempted from

liability for the information they store.

The applicability of this exemption from liability will depend on the legal and factual

elements relating to the activity performed by the collaborative platform and applies where

the activities in question qualify as hosting services under the terms of the e-Commerce

Directive.

To do so, their conduct must be merely technical, automatic and passive.

The

The actual rating/review is undertaken by the user, not the collaborative platform.

Article 14 of the e-Commerce Directive.

In the context of the collaborative economy hosting can broadly speaking be understood as the activity of dealing with

the storage of customer data and providing the venue where users meet providers of the underlying services. The

exemptions under Articles 12 and 13 of the e-Commerce Directive would usually not apply in this regard, as

collaborative platforms normally do not provide ‘mere conduit’ or ‘caching’ services within

the meaning of those

provisions.

As per section 4 of the e-Commerce Directive. In joined cases C-236/08 to C-238/08 Google France/Louis Vuitton, the

CJEU underlined the key criterion when an online platform is deemed an ‘intermediary service provider,’ referring to

recital 42 to Directive 2000/31/EC. According to this recital, information society services are meant to provide the

exemption from liability applies on the condition that the collaborative platform does not play

an active role which would give it knowledge of, control over, or awareness of the illegal

information - and, where it nonetheless obtains such knowledge or awareness, acts

expeditiously to remove it or to disable access thereto.

Whether or not collaborative platforms can benefit from such liability exemption will need to

be established on a case-by-case basis, depending on the level of knowledge and control of

the online platform in respect of the information it hosts.

Importantly, under EU law, Member States cannot impose on collaborative platforms, to the

extent that they provide hosting services, a general obligation to monitor or to actively seek

facts or circumstances indicating illegal activity.

The Communication on Online Platforms and the Digital Single Market

explains that

maintaining the existing intermediary liability regime is crucial for the further development of

the digital economy in the EU. This includes the collaborative economy, as online platforms

act as key drivers for its growth. The Commission, at the same time, encourages responsible

behavior by all types of online platforms in the form of voluntary action, for example to help

tackle the important issue of fake or misleading reviews. Such voluntary action taken to

increase trust and to offer a more competitive service should not automatically be taken to

mean that the conduct of the collaborative platform is no longer merely technical, automatic

and passive.

In addition to hosting services, a collaborative platform may also offer a number of other

connected or ancillary activities. These can include review or ratings facilities, payment

facilities, insurance, ID verification (often carried out by third-party providers) or the platform

may even provide the underlying service that is being offered to the users.

The aforementioned liability exemption set out in EU law remains limited to the provision of

hosting services and does not extend to other services or activities performed by a

collaborative economy platform. The aforementioned liability exemption also does not

exclude the collaborative economy platform's liability arising under the applicable personal

data protection legislation, in as far as the platform's own activities are concerned.

Conversely, the mere fact that a platform also carries out certain other activities - besides

providing hosting services - does not necessarily mean that that platform can no longer rely on

the liability exemption in respect of its hosting services.

In any case, the way in which

collaborative platforms design their information society service and implement voluntary

measures to tackle illegal content online remains in principle a business decision and the

question of whether they benefit from the exemption from intermediary liability should

always be assessed on a case-by-case basis.

technical process of operating and giving access to a communication network over which information made available by

third parties is transmitted or temporarily stored, for the sole purpose of making the transmission more efficient; this

activity is of a mere technical, automatic and passive nature.

Case C-324/09

L’Oréal/eBay. This is without prejudice for courts and national administrative authorities to require

the

collaborative platform to terminate or prevent an infringement

See Article 14(3) e-Commerce Directive. A

comprehensive background on the intermediary liability regime is contained in the Commission's Staff Working

Document "Online services, including e-commerce, in the Single Market", SEC(2011) 1641 final.

As set out in Article 15 (1) of the e-Commerce Directive.

COM(2016) 288/2 of 25 May 2015, Communication on online Platforms and the Digital Single Market Opportunities

and Challenges for Europe

In that respect, some courts exclude liability protection if the hosting-related aspects of a service are not the most

important aspects of the service. See to this extent the decision of the Court of Paris in Louis Vuitton Malletier /

Christian Dior Couture and Parfums Christian Dior, Kenzo, Givenchy et Guerlain v. eBay all issued by the Commercial

Court of Paris, First Chamber, on 30 June 2008. An opposite view was taken by a Greek court in the Greek case No

44/2008 of Rodopi Court of First Instance, published in (2009) Armenopoulos, 406.

Collaborative platforms are encouraged to continue taking voluntary action to fight illegal

content online and to increase trust (for example by helping to ensure the quality of the

services offered by providers of underlying services on their platform). Such voluntary

measures should not automatically be taken to mean that collaborative platforms that benefit

from the exemption from intermediary liability no longer do so.

2.3 Protection of users

Traditionally, EU consumer and marketing legislation has been designed to address

transactions, in which there is a weaker party that needs to be protected (typically the

consumer). However, the collaborative economy blurs the lines between consumers and

business since there is a multisided relationship that may involve business-to-business,

business-to-consumer, consumer-to-business, and consumer-to-consumer transactions. In

these relationships, it is not always clear who the weaker party requiring protection may be.

Currently, EU consumer and marketing legislation is based on the distinction between a

‘trader’ and a ‘consumer’. A trader is a person

'acting for purposes relating to his trade,

business, craft or profession

a ‘consumer’ is a person acting

'outside his trade, business,

craft or profession'

. These criteria applied to the participant categories in the collaborative

economy, determine the respective rights and obligations of the parties under existing EU

consumer and marketing legislation.

In particular, EU consumer law applies to any collaborative platform that qualifies as a

‘trader’ and engages in ‘commercial practices’ vis-à-vis

consumers. Providers of the

underlying services also qualify as traders if they act 'for

purposes relating to their trade,

business, craft or profession'.

Conversely, EU consumer and marketing legislation does not

apply to consumer-to-consumer transactions. Therefore, if neither the collaborative service

provider nor the user qualifies as a trader, the transactions between them will fall outside the

scope of this legislation.

This raises the central question under which conditions in a peer-to-peer provision of services,

the provider of the underlying service qualifies as trader. Member States currently approach

this issue differently.

Under current EU law, this question must be answered on a case-by-

case basis. To this end, the Commission offers some general orientations in the revised

Guidance on the Unfair Commercial Practices Directive

. Within the specific context of the

collaborative economy the following factors are important. While none of them in itself

would be sufficient to qualify a provider as trader, depending on the circumstances of the

case, their combination may point into that direction:



Frequency of the services:

providers who offer their services merely on an occasional

basis (i.e. on a purely marginal and accessory basis as opposed to regularly) will be

less likely to qualify as a trader. The greater the frequency of the service provision, the

more apparent it is that the provider may qualify as a trader, because this could

indicate that he is acting for purposes related to his business, craft or trade.

Article 2(b) Directive 2005/29/EC ('Unfair Commercial Practices Directive').

Article 2(a) Unfair Commercial Practices Directive.

For business to consumer transactions in the collaborative economy, the Unfair Commercial Practices Directive,

Directive 2011/83/EU ('Consumer Rights Directive') and Directive 93/13/EEC on Unfair Terms in Consumer Contracts

would apply. For business to business transactions, Directive 2006/114/EC on Misleading and Comparative Advertising

would apply.

An ongoing Commission study on consumer issues in the collaborative economy will map relevant national legislation

in the 28 Member States.

SWD(2016) 163 final, of 25 May 2016, Guidance on the implementation/application of Directive 2005/29/EC on unfair

commercial practices



Profit-seeking motive:

a profit-seeking motive may be an indication that the provider

may qualify as a trader for a given transaction. Providers aiming at exchanging assets

or skills (for example, in the case of home swapping or time banks) will in principle

not qualify as traders. Providers who simply obtain cost compensation for a given

transaction may not be seeking a profit. Conversely, those providers that obtain

remuneration beyond cost compensation likely have a profit-seeking motive.

Level of turnover:

the higher the turnover generated by the service provider (be it from

one or several collaborative platforms), the greater the indication that the provider may

qualify as a trader. In this regard, it is important to assess whether the level of turnover

generated by the provider stems from the same activity (e.g. ride sharing) or from

various type of activities (ride sharing, gardening, etc.). In the second scenario, a

higher turnover may not necessarily imply that the provider qualifies as a trader, since

it may not have necessarily been obtained in relation to the provider’s other (main)

business.

A person regularly offering gardening services

—

facilitated by collaborative platforms

—

and seeking to obtain substantial remuneration could fall within the definition of trader.

However, a professional babysitter who occasionally provides gardening services

—

facilitated by collaborative platforms

—

would in principle not qualify as a trader insofar as

the occasional gardening services are concerned. In line with the Unfair Commercial Practices

Directive, all traders must comply with professional diligence duties and not mislead

consumers. This also applies to collaborative platforms qualifying as traders as far as their

own commercial practices are concerned (e.g. intermediation services, payment services,

rating services etc.). Collaborative platforms should also enable underlying service providers

that qualify as traders to comply with EU consumer and marketing law, for example by

designing their web structures to make it possible for third party traders to identify themselves

as such to platforms users. In addition, they could also clearly indicate to all users that they

will only benefit from protection under EU consumer and marketing laws in their relation

with traders. If the collaborative platform applies criteria to select underlying service

providers operating through it and if it performs checks in relation to their reliability, it should

inform users accordingly.

In addition, collaborative platforms and providers of underlying services may be required to

comply with other applicable information obligations under EU law,

including with regard

to transparency requirements of the relevant sector-specific legislation.

In any event, like any other controllers collecting and further processing personal data in the

EU, collaborative platforms must comply with the applicable legal framework on the

protection of personal data.

Ensuring adherence to the rules for processing personal data will

help increase the trust of individuals, whether providers or consumers (including peer to peer)

using the collaborative economy, so they know that when it comes to their personal data they

will have the protection they are due.

A way to increase consumer confidence is to increase trust in peer-to-peer services. Trust-

building mechanisms such as online rating and review systems and quality labels can be an

essential tool to overcome the lack of information about individual service providers. Such

mechanisms for establishing trust in the collaborative economy have been created either by

For example, pursuant to Article 6 of the Consumer Rights Directive, Article 22 of the Services Directive and Article 5

of the e-Commerce Directive.

For example, pursuant to Article 5 of the e-Commerce Directive.

Data protection rules, currently contained in Directive 95/46/EC, have been reviewed recently. The new General Data

Protection Regulation (EU) 2016/679, OJ L 119, 4.5.2016, p. 1, shall apply from 25 May 2018.

the collaborative platforms themselves or by specialised third parties and can be particularly

important where existing consumer legislation does not apply, as explained below.

In line with EU consumer and marketing rules, Member States are encouraged to seek a

balanced approach to ensure that consumers enjoy a high level of protection in particular

from unfair commercial practices, while not imposing disproportionate information

obligations and other administrative burdens on private individuals who are not traders but

who provide services on an occasional basis.

The effectiveness and use of online trust mechanisms (e.g. quality labels) to increase trust

and credibility should be improved to encourage a more confident participation in the

collaborative economy.

2.4 Self-employed and workers in the collaborative economy

The collaborative economy generates new employment opportunities, generating revenues

beyond traditional linear employment relationships, and it enables people to work according

to flexible arrangements. This makes it possible for them to become economically active

where more traditional forms of employment are not suitable or available to them. At the

same time, the more flexible work arrangements may not be as regular or stable as traditional

employment relations. This may create uncertainty as to applicable rights and the level of

social protection. Working arrangements in the context of the collaborative economy are often

based on individual tasks performed on an ad hoc basis rather than tasks regularly performed

in a pre-defined environment and timeframe.

In fact, this is part of a more structural shift. There are increasingly blurred boundaries

between the self-employed and workers, there is an increase in temporary and part-time work

and multiple job-holding.

Under the European pillar of social rights

, the Commission has

launched a public consultation as to how best to address the need for increased participation in

the labour market, ensuring fair working conditions and adequate and sustainable social

protection. This initiative is currently subject to a consultation process, by which the

Commission seeks to gather stakeholders’ views on the

current EU social

acquis,

the future of

work and the coverage of social protection schemes.

While most labour law falls under national competence, the European Union has nonetheless

developed certain minimum standards in the field of social policy.

To provide some

orientation on how the traditional distinction between the self-employed and workers applies

in the context of the collaborative economy, this section examines the conditions under which

an employment relationship exists in line with EU labour law

and jurisprudence.

Based on statistics from Eurostat.

COM(2016) 127 final. The

public consultation on the European pillar of social rights

was launched on 8 March 2016

and will run until 31 December 2016.

In accordance with its competences as set in Article 153 of the Treaty on the Functioning of the Union

EU labour law includes Directives regulating workers’ rights and obligations. They refer to limits to working time

including the right to paid annual leave, to daily and weekly rest and protection in case of night work, as well as

information on individual employment conditions, rights for posted workers, prohibition of discrimination against

workers in non-standard forms of employment (e.g. part time, fixed term or workers employed under temporary

agencies), protection in case of insolvency of employers, protection against discrimination on protected grounds as

gender, ethnicity, sexual orientation. They also include protection in case of collective redundancies or in case of

transfer of undertakings or in case of cross-border mergers. It provides for the involvement of workers

—

information

and consultation, and board-level worker participation in some circumstances. In the area of health and safety at work,

general principles concern the prevention of occupational risks and the protection of the safety and health of workers at

the workplace.

Since, in general, EU labour law only sets minimum standards and does not cover all aspects

of social legislation applicable to work relationships, which implies that Member States may

in principle set higher ones in their national legislation, collaborative economy actors are

advised to refer to national labour legislation applicable in the country where the service is

provided.

The EU definition of ‘worker’

EU law guaranteeing rights to workers is only applicable to people who are in an employment

relationship, i.e. who are considered ‘workers’.

While EU Member States are responsible for

deciding who is to be considered a worker in their national legal order, at EU level the Court

of Justice (CJEU) has defined the concept of worker for the purpose of applying EU law.

This definition has primarily been developed within the framework of the free movement of

workers. The CJEU

stated that ‘

the essential feature of an employment relationship is that for

a certain period of time a person performs services for and under the direction of another

person in return for which he receives remuneration

’.

The CJEU notably confirmed that this

definition shall also be used to determine who is to be considered as a worker when applying

certain EU Directives in the social field.

Whether an employment relationship exists or not has to be established on the basis of a case-

by-case assessment, considering the facts characterising the relationship between the platform

and the underlying service provider, and the performance of the related tasks, looking

cumulatively in particular at the following three essential criteria:

the existence of a subordination link;

the nature of work; and

the presence of a remuneration.

For the criterion of

subordination

to be met, the service provider must act under the direction

of the collaborative platform, the latter determining the choice of the activity, remuneration

and working conditions.

In other words, the provider of the underlying service is not free to

choose which services it will provide and how, e.g. as per the contractual relationship it

entered with the collaborative platform.

Where the collaborative platform is merely

processing the payment deposited by a user and passes it on to the provider of the underlying

service, this does not imply that the collaborative platform is determining the remuneration.

The existence of subordination is not necessarily dependent on the actual exercise of

management or supervision on a continuous basis.

For the

nature of the work

criterion to be met, the provider of the underlying service must

pursue an activity of economic value that is effective and genuine, excluding services on such

For the purpose of applying national labour law, Member States remain free to extend the EU concept of worker to

situations that do not fall under the EU definition. If the assessment of the existence of an employment relationship is

linked to the applicability of some specific instruments of EU law (Working Time Directive 2003/88/EC) and Collective

Redundancies Directive 98/59/EC), then national definitions of workers are not relevant. In addition, the definitions

given by national laws are always subject to the assessment by national or European courts.

COM(2010) 373 Reaffirming the free movement of workers: rights and major developments. Point I.1.1

http://eur-

lex.europa.eu/legal-content/EN/TXT/?qid=1453133735571&uri=CELEX%3A52010DC0373.

Directives on working time (Isère (C-428/09)), on collective redundancies (Balkaya (C-229/14)) and employment

equality ('O' (C-432/14)). Other labour law Directives expressly refer to the Member States understanding of who is a

worker, as long as these respect the effectiveness of EU law, with reference to

O’Brien case (C-393/10).

See also COM(2010) 373 final, pages 4-6.

Jany and Others v Staatssecretaris van Justitie (C-268/99).

The rise of the 'just-in-time workforce': on-demand work, crowdwork and labour protection in the 'gig economy'

Valerio De Stefano, ILO Conditions of Work and Employment Series No. 71 , 2016, p. 17

Danosa (C-232/09); see also De Stefano, ibid, page 16

a small scale as to be regarded as purely marginal and accessory.

National courts have

adopted divergent approaches in identifying what is marginal and accessory even within the

context of more traditional employment relationships. There is a mix of use of thresholds

(hour or wage-based) and ad hoc assessments of the features of a given relationship. In the

context of the collaborative economy, where persons actually provide purely marginal and

accessory services through collaborative platforms, this is an indication that such persons

would not qualify as workers, although short duration

, limited working hours

discontinuous work

or low productivity

cannot in themselves exclude an employment

relation. At the same time, persons providing services on more than an occasional basis may

be either workers or self-employed, as the actual qualification of their status results from a

comprehensive test of all three criteria.

The

remuneration

criterion is primarily used for distinguishing a volunteer from a worker.

Thus, where the provider does not receive any remuneration or receives merely a

compensation of costs incurred for his activities, the remuneration criterion would not be met.

While the above criteria are referred to when applying the EU definition of workers, courts in

the Member States tend to use a similar set of criteria when they undertake their global

assessment of a given employment relationship in the national remit.

In order to help people make full use of their potential, increase participation in the labour

market and boost competitiveness, while ensuring fair working conditions and adequate and

sustainable social protection, Member States should:

- assess the adequacy of their national employment rules considering the different needs of

workers and self-employed people in the digital world as well as the innovative nature of

collaborative business models;

- provide guidance on the applicability of their national employment rules in light of labour

patterns in the collaborative economy.

2.5 Taxation

Adapting to new business models

Like all economic operators, those in the collaborative economy are also subject to taxation

rules. These include personal income, corporate income and value added tax rules. However,

issues have emerged in relation to tax compliance and enforcement: difficulties in identifying

the taxpayers and the taxable income, lack of information on service providers, aggressive

corporate tax planning exacerbated in the digital sector, differences in tax practices across the

EU and insufficient exchange of information.

In this regard, Member States should aim at proportionate obligations and a level playing

field. They should apply functionally similar tax obligations to businesses providing

comparable services. Raising awareness on tax obligations, making tax administrators aware

of collaborative business models, issuing guidance, and increasing transparency through

online information can all be tools for unlocking the potential of the collaborative economy.

For more details on the actual assessment of 'genuineness of work' by CJEU, as well as in the Member States (e.g. using

earning or hour-based thresholds) in the context of free movement of workers, see 'Comparative

Report 2015 - The

concept of worker under Article 45 TFEU and certain non-standard forms of employment'

FreSsco network for the

European Commission

Ninni-Orasche (C-413/01)

Kempf (C- 139/85)

Raulin (C-357/89)

Bettray (C-344/87)

Information about national tax obligations, including those linked to employment status,

should be clearly communicated to stakeholders.

To increase clarity and transparency, some Member States have issued guidance on the

application of the national tax regime to collaborative business models, and a few have

considered changes to their legislation.

Concerning corporate tax, the Commission is

working on a general approach to tax avoidance.

At the same time, the collaborative economy has created new opportunities to help tax

authorities and taxpayers with their tax obligations. This is, in particular, thanks to the

increased traceability allowed by the intermediation of online platforms. It is already an

ongoing practice in some Member States to have agreements with platforms for the collection

of taxes. For example, in the accommodation sector, platforms facilitate the payment of

tourist taxes on behalf of service providers. There are also cases where tax authorities use the

traceability allowed by online platforms to collect taxes from the individual providers.

An example of good cooperation between tax authorities and collaborative businesses comes

from Estonia. In cooperation with ride-sharing platforms, the aim is to simplify the tax

declaration process for drivers. Transactions between the driver and the customer are

registered by the collaborative platform, which then only sends the data that is relevant for

taxation purposes to the authorities, who will then pre-fill taxpayer tax forms. The main idea

is to help taxpayers fulfil their tax obligations effectively and with minimum effort.

Reducing administrative burden

Economic growth is best supported by measures that aim to reduce the administrative burden

on individuals and businesses without discriminating between business models. To this end,

an efficient exchange of tax-related information amongst platforms, authorities and service

providerscan help reducing costs. The creation of one-stop shops and the development of

online feedback mechanisms can also create new possibilities for partnerships and compliance

monitoring.

However, different approaches by national tax authorities toward the treatment of platforms

can increase the administrative burden on collaborative activities. These may include different

views on the business scope of platforms with respect to the services they provide; the criteria

used to link their activities to a tax jurisdiction, the employment relationship between services

providers and platforms, as well as general compliance requirements and auditing procedures.

The development of commonly agreed standards to tackle these issues in a coherent manner,

taking into account the elements clarified in the previous sections of this Communication, as

well as moving more administration online, could help in this respect.

Value added tax

Supplies of goods and services provided by collaborative platforms and through the platforms

by their users are in principle VAT taxable transactions. Problems may arise in respect of the

qualification of participants as taxable persons, particularly regarding the assessment of

economic activities carried on, or the existence of a direct link between the supplies and the

remuneration in kind (for instance

in case of ‘bank’ type arrangements where participants

contribute goods or services to a common pool in exchange for the right to benefit from that

pool).

An overview of initiatives can be found in the Staff Working Document accompanying this Communication.

The Commission is preparing several initiatives to enhance the capacity of tax administrations

within the framework of the Action Plan on VAT.

This includes extending to the supply of

goods the VAT one-stop shop for electronic services, starting a pilot project to improve

cooperation between tax administrations, and publishing a guide for cooperation between tax

authorities and businesses in e-commerce.

Member States are encouraged to facilitate and improve tax collection by using the

possibilities provided by collaborative platforms, as these already record economic activity.

Collaborative platforms should take a proactive stance in cooperating with national tax

authorities to establish the parameters for an exchange of information about tax obligations,

while ensuring compliance with legislation on the protection of personal data and without

prejudice to the intermediary liability regime of the e-Commerce Directive.

Member States are invited to assess their tax rules to create a level playing field for

businesses providing the same services. Member States should also continue their

simplification efforts, increasing transparency and issuing online guidance on the application

of tax rules to collaborative business models.

3. Monitoring

The collaborative economy spans across several sectors in a rapidly changing landscape.

Given this dynamic and evolving nature, the Commission intends to establish a monitoring

framework covering both the evolving regulatory environment and economic and business

developments. The monitoring will aim to follow trends on prices and quality of services, and

identify possible obstacles and problems encountered, in particular when they arise from

divergent national regulations or regulatory gaps.

The monitoring tools will include:

Periodic surveys of consumers and businesses on the use of the collaborative

economy.

Ongoing mapping of regulatory developments in Member States.

Stakeholder dialogue in the framework of the Single Market Forum, with twice

yearly forums to assess sector development on the ground and to identify good

practices.

The results of the monitoring of the collaborative economy will be summarised in

the Single Market Scoreboard.

The monitoring activity

will also contribute to the Commission’s

ongoing work

on the

single market in view of facilitating innovation and entrepreneurship. Given the dynamic

character of collaborative economy business models and the rapid development of data-driven

digital technologies, further policy issues may emerge from ongoing or new data collection

and research, and may need to be addressed. Collaborative platforms should cooperate closely

with the authorities, including the Commission, to facilitate access to data and statistical

information in compliance with data protection law.

COM(2016) 148 final, of 7.04.2016, Communication on an action plan on VAT; Towards a single EU VAT area - Time

to decide

In addition, information will be drawn from official statistics and third party reports.

The core elements will be complemented with data and insights from third party reports, possible data analytics and web

scraping, and official statistics to the extent information is available..

Existing or future REFIT exercises may also identify areas where further intervention is needed.

The monitoring activity and its tools are, in any case, without prejudice to Commission's

enforcement of existing EU legislation which will continue in line with the principles

expressed in this Communication.

4. Conclusion

In view of the significant benefits that new collaborative economy business models can bring,

Europe should be open to embracing these new opportunities. The EU should proactively

support the innovation, competitiveness and growth opportunities offered by modernisation of

the economy. At the same time, it is important to ensure fair working conditions and adequate

and sustainable consumer and social protection. For this to happen, citizens and businesses

should be aware of the rules and obligations applying to them, as clarified in this

Communication. Member States are encouraged to clarify their national situation in a similar

way. The Commission stands ready to work with Member States and relevant authorities to

support them in this process.

The guidance provided in this Communication aims at supporting consumers, businesses and

public authorities to engage confidently in the collaborative economy. It will also support

Member States to consistently apply EU law across the single market. The Commission will

continuously review developments in the European collaborative economy, collect statistical

data and evidence and work with Member States and stakeholders also to exchange best

practices. The Commission looks forward to engaging in a dialogue with the European

Parliament, the Council and Member States to ensure the best possible environment for

citizens and businesses in the collaborative economy.