The article focuses on investigating into the current stage of the European private law development under the influence of the digital revolution. The authors analyze the prerequisites for the need to adopt a new legislative instrument of contract law of the European Union (EU) with regard to intermediation through online platforms. The article specifically highlights the draft EU Directive on online intermediary platforms which is developed by the academic community for the first time in the history of EU law-making.

The aim of the article is to analyze the current stage of the European private law development under the influence of the digital revolution and the prerequisites for the need to adopt a new legislative instrument of the EU contract law with regard to intermediation through online platforms, and to identify the specific aspects of the academic draft of the EU Directive on online intermediary platforms (draft Directive) developed by the academic community for the first time in the history of EU law-making.

The growth of the online platforms market has evoked scientific discussions about the need to regulate this new form of economic relations. According to the conclusions made by the European Commission, differences present in national legislation of the EU Member States and the fragmented nature of the regulation process hinder sustainable development and expansion of the scope within which online platforms can operate (both for regular market players and for new entrants).

The current stage of the European private law development is a multifaceted phenomenon which gives due consideration to the impacts of the digital revolution and predetermines the need to develop a new legislative instrument with regard to contractual relations which involve online intermediary platforms.

The draft Directive developed by leading scholars of the EU Member States is an appropriate response to the controversial issues evoked by the revolution of the digital market. Today, there is still controversy between researches with regard to such issues as justification of any regulatory actions by modern changes in the single digital market, and also maintenance of the balance between consumer rights protection, market freedom and innovation, and the forms of the future regulatory instrument.

The method used to work on the draft Directive was partially borrowed from the methodology of the Research Group on the Existing EU Private Law (Acquis Group) and included a comparative study of modern legislation and case law of the EU Member States, soft law instruments developed by national standardization bodies, service standards and recommendations issued by national consumer rights protection authorities.

The draft Directive consists of seven chapters and 29 articles covering the following issues: application scope and definitions; requirements to information provided for in this Directive; transparency of the listing; communication through the platform; reputational feedback systems; commitment to protect users; mandatory nature; obligations of the platform’s operator with regard to the client and the provider; liability of the platform’s operator; regression; final provisions.

As noted by the drafters of the draft Directive, a number of issues still remain in the focus of controversial discussions in the working group. Particularly, these are the issues relating to the application scope of the draft Directive, the selected approach for joint regulation of the reputational feedback system, determination of the limits of the platform operator’s liability, expansion of the scope of protected rights so that it covers not only the consumers but all clients of online platforms, including suppliers.

Thus, over the past two decades, online platforms have radically changed the digital economy and continue providing many benefits in today’s digital society. Currently, it is crucial to develop and accumulate an efficient legal framework capable of ensuring the future economic growth and the functioning of the EU’s common digital market. We believe that the draft Directive developed by the academic community for the first time in the EU law-making history will become a new legislative instrument for the EU digital market.

List of legal documents

Legislation

1. A New Deal for Consumers: Commission strengthens EU consumer rights and enforcement <http://europa.eu/rapid/press-release_IP-18-3041_en.htm> (accessed: 18.11.2018) (in English).

2. Communication from the Commission to the European Parliament, the Council, the European economic and social committee and the Committee of the regions “Online Platforms and the Digital Single Market Opportunities and Challenges for Europe” COM (2016) 288, 25 May 2016 <http://eur-lex.europa.eu/legal-content/EN/ TXT/?uri=CELEX:52016DC0288> (accessed: 18.11.2018) (in English).

3. Proposal for a Regulation of the European Parliament and of the Council on promoting fairness and transparency for business users of online intermediation services COM (2018) 238 final 2018/0112(COD) from 26.4.2018 <https://eur-lex.europa.eu/legalcontent/ EN/TXT/?uri=CELEX%3A52018PC0238> (accessed: 18.11.2018) (in English).

4. Proekt Dyrektyvy pro poserednytski on-lain platformy [Draft Directive on Interference Online Platform] <https://www.elsi.uni-osnabrueck.de/projekte/model_ rules_on_online_intermediary_platforms/translations.html> (accessed: 18.11.2018) (in Ukrainian).

Bibliography

Authored books

5. Franceschi A. European contract law and the digital single market: the implications of the digital revolution (Intersentia 2016) (in English).

6. Sénéchal J and Stalla-Bourdillon S, Rôle et responsabilité des opérateurs de plateforme en ligne: approche(s) transversale(s) ou approches sectorielles? (Paperback 2018) (in French).

Journal articles

7. Cauffman C, ‘The Commission’s European Agenda for the Collaborative Economy – (Too) Platform and Service Provider Friendly?’ (2017) 6 European Consumer and Market Law 235-43 (in English).

8. Janczuk-Gorywoda A, ‘Online platforms as providers of transnational payments law’ [2016] 2(24) European review of private law 223-52 (in English).

9. Pertot T and D’Onofrio M, ‘Platforms – Business Models and Contracts’ (2018) 4 European Consumer and Market Law 170-2 (in English).

10. Research group on the Law of Digital Services. ‘Discussion draft of a Directive on online intermediary platforms’ [2016] 4(5) Journal of European Consumer and Market Law 164-9 (in English).

11. Rodriguez de las Heras Ballell T, ‘Refusal to deal, abuse of right and competition law in electronic markets and digital communities’ [2014] 5(22) European review of private law 685-702 (in English).

12. Schmidt-Kessel M, ‘Privatrecht für die digital Welt’ (2015) 4 Zeitschrify für Gemeinschaftsprivatrecht. European Community Private Law Review. Revue de droit privé communautaire 157 (in German).

Websites

13. Makiyama H and Legrain Ph, ‘How to fix the flaws in the EU’s Digital Single Market’ (Open Political Economy Network LTD, 8 January 2017) <http://g8fip1kplyr33r3krz5b97d1. wpengine.netdna-cdn.com/wp-content/uploads/2017/01/OPEN_Report_DRAFT_ DSM_analysis.pdf> (accessed: 18.11.2018) (in English).

14. ‘Online Platforms. Digital Economy and Society’ (Digital Single Market, 12 February 2019) <https://ec.europa.eu/digital-single-market/en/online-platforms-digital-singlemarket> (accessed: 14.02.2019) (in English).