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Considerations regarding the European Commission's Agenda for the collaborative economy

At a time when the regulations applicable to businesses in the sharing economy (Airbnb, Uber, Blablacar...) are increasingly varied throughout the EU, the European Commission is examining the subject of harmonization. Its agenda defines the broad guidelines with a goal to inspiring future national regulations in Europe. The guidelines are fairly liberal, although it nonetheless makes certain points that could have a significant impact in the future. What we need to know.

The European Commission recently presented its agenda for the collaborative economy that is intended to provide guidance to understanding national regulations regarding the collaborative economy in countries in the European Union.

This legally non-binding document-guideline, which may act as a basis for future cases brought before the European Court of Justice (ECJ), appears within a context where limitations have already flourished throughout the countries, regions and even cities such as BerlinAmsterdam and Barcelona. As a result, the applicable regulations are currently extremely variable depending on the country and territory, in terms of both regulations (read our overview) and taxation (for more details, read our special dossier on the sharing economy).

Brussels plans to establish an outline for a new legal framework. But the philosophy of this new text nonetheless remains within the Commission’s traditional liberal inspiration, and addresses protection of consumers and free enterprise. Thus, market access requirements, consumer protection, (direct and intermediary) liability, labour law and tax need to be examined and commented on.

As a result, the Commission recommends setting limits at which regulation becomes stiffer in order to differentiate between individual citizens providing services on an occasional basis and suppliers acting in a professional capacity. This needs to be surveyed because recent French laws have created an obligation to declare income from this activity from the first euro (and not just over certain amounts as was previously the case), although this recommendation would appear to target additional obligations that are specific to professionals.

The free enterprise approach is also leading the European Commission to recommend, as a general rule, that licenses not be obligatory; this would be clearly favorable to chauffeurs and owners of “shared” accommodations, or else business authorizations or licenses “only where strictly necessary to meet relevant public interest objectives.” In short, those States or regions that have begun to make it obligatory to be entered in the public registers (tourism, commerce...) and/or obtain licenses, should, in the future "motivate" these regulatory choices by specifying the public interest involved (ex: not create or worsen a shortage of residential accommodations within the territory concerned).

In terms of legal responsibility, the Commission recommends that intermediation platforms be considered responsible for services they deliver themselves (ex.: payment, reservation...), but not for the services their “users” provide, meaning chauffeurs, owners... A collaborative accommodations platform should thus not be considered legally responsible for the experience "on site", but only pre- and post-stay and support functions handled by the platform. Distinguishing between the different actors bearing the responsibility should nonetheless lead to interesting battles before rulings are made in the different countries.

As for the status of "sharers", must they be salaried or independent? This is a burning subject since URSSAF informed the Uber platform that its chauffeurs should be reclassified as employees. In this regard the Commission masterfully avoids leaving it in the hands of the States for evaluation, seeing the need to look at the situation in light of different criteria: freedom to establish prices, subordination, nature of the job, level of remuneration... This opens the way to reclassifying professionals in the sharing economy as employees by different national authorities.

In the end, the text leaves a great deal of leeway for collaborative platforms as well as governments. The next stage for these guidelines: approval and implementation by the European Parliament and Council of Europe.

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