CHALLENGES OF PROVIDING SERVICES ON THE EU DIGITAL MARKET

INFORMATION SOCIETY SERVICES AND “UNDERLYING” SERVICES

Abstract

Online platform services in the sharing economy represent an important
segment of the digital market. New, emerging business models challenge the existing regulations which are primarily designed for ‘traditional’ or ‘analogue’ provision of services. This tension results in numerous practical issues in different legal areas, from labour law to competition. The business model of the sharing economy online platforms is based on a triangular relationship between the platform, the service provider and the service recipient. Online platforms provide specific forms of digital services which basically correspond to the definition of ‘information society service’ in accordance with the relevant secondary law instruments at EU level. However, the Court of Justice of the EU subjects these services to the legal regime applicable to the
‘underlying’ (material) service provided by the service provider to service recipient, if it is established that the platform has a ‘decisive infl uence’ over the underlying service provider and if there would be not digital service without the ‘underlying’ service. This paper aims to critically evaluate the existing regulatory framework and recent case law of the Court of Justice of the EU and propose potential alternative
solutions which might not hinder innovation and development of digital technology and services.