The Adequacy of Italian Law for the Platform Economy

In recent years the case law and the legislative activity concerning electronic platforms have taken off considerably in Italy. Relevant problems and questions continue to arise not only concerning private law issues, but also regarding competition and public law, as well as several aspects of administrative law and tax regulation. In particular, if on the one hand in recent years Italian courts have been dealing with electronic platforms prevalently in a business-to-business perspective – mainly by analysing competition, administrative and tax law issues – on the other hand the Italian Competition Authority (hereinafter: AGCM) and administrative judges set a specific focus on business-to-consumer relationships. They carry out a fairness control of the behaviour of platforms that convey misleading information to consumers, created by other individuals or entities. In this context, an analysis of the activity of the AGCM as well as of the administrative courts concerning the liability of rating websites, with specific regard to Tripadvisor, reveals several interesting aspects. Particularly remarkable in a systematic perspective is the circumstance that both the AGCM and the Tribunale Amministrativo Regionale per il Lazio (hereinafter: TAR) qualified Tripadvisor as a ‘trader’ according to Art 18, Para 1, lett b), Codice del consumo, which implements Art 2, Para 1, lett b) of the Unfair Commercial Practices Directive (hereinafter: UCP Directive), rather than as a service provider acting as a host in the sense of Directive 2000/31/EC (hereinafter: E-Commerce Directive), as was alleged by the online platform. Most recently, in 2015 a debate arose concerning the platform Uber and in particular UberPop, services which also gave rise to a number of court claims in Italy. Uber has actually been the subject matter of significant case law, as well as legislative activity. Concerning these issues, in particular the AGCM as well as – most recently – the Consiglio di Stato showed to be strongly in favour of the introduction of a comprehensive regulation dealing with the platform service provided by Uber. It is therefore interesting to examine the Italian experience with this topic. An examination of relevant issues could also be useful in order to better understand the elements of the preliminary ruling proceedings pending before the European Court of Justice (CJEU). In the context of the cases here described, Italian courts dealt also with contract law issues, trying to answer to the question if Uber should be considered an intermediary, one of the contractual parties in a multilateral contract, or the counterparty (respectively of the driver and of the customer) of two distinct contracts. In this regard, in a position paper published on 29th September 2015, the Italian competition authority AGCM—also taking into consideration the request for a preliminary ruling recently submitted to the European Court of Justice in the case of Uber System Spain—classified an agreement concluded by means of the app UberPop as an electronic intermediary service or an information society service, as defined by Art 1, para 2 of Directive 98/34/EC on Information Society services, rather than as a ‘transport contract’. Most recently, in an opinion of the 23rd December 2015, the Consiglio di Stato tried to properly qualify the ‘new’ contractual relationships arising from the Uber platform and other, similar platforms offering taxi services. In the opinion of the highest Italian administrative court, these ‘new’ contractual relationships are fundamentally different from those currently regulated under existing law. Indeed, Uber and similar platforms do not merely offer a transport service but also further ‘innovative complementary services’, which sensibly modify the contractual scheme. This contribution discusses therefore the Italian case law concerning online platforms, the legislative activities in this area and the further debate on this topic. It concludes with some thoughts on whether the existing Italian law is able to provide adequate solutions to the current challenges concerning online platforms.