Consumers contracting with other consumers in the sharing economy: fill in the gaps in the legal framework or switch to the blockchain model?

Hervé Jacquemin

doi:10.7238/idp.v0i28.3179

Abstract

Numerous legal provisions were enacted at an EU level in order to protect consumers contracting with professionals, especially in a digital environment (see, in particular, the protection measures provided by directive 2011/83/EU on consumer rights; directive 2005/29/EC on unfair commercial practices; directive 2000/31/EC on electronic commerce, etc.). With the development of the web 2.0 and the so-called “sharing economy”, consumers are now entitled to easily conclude agreements with other consumers through intermediation platforms. EU Consumer Acquis shall normally be applicable to the relationship between the platform and each of the peers (the seller or the provider on one hand, and the buyer or the recipient on the other hand), with the exclusion of C2C relationships. The objective of this paper is to highlight the potential issues and gaps in the context of consumer protection (lack of information, warranty issues, no right of withdrawal, etc.), resulting from the fact that C2C agreements are normally out of scope of the EU Consumer Acquis (and only governed by the traditional contract law). Some propositions de lege ferenda will also be made, in order to ensure a higher level of consumer protection (with additional legal duties prescribed for the intermediaries, for instance). Blockchain technology and smart contracts shall also be taken into account, since they should normally give rise to a “disintermediation” process. It should however be assessed whether or not consumer protection will benefit from this disintermediation.

Highlights

Numerous legal provisions were enacted at an EU level in order to protect consumers contracting with professionals, especially in a digital environment
La tecnología de cadena de bloques y los contratos inteligentes también deben tenerse en cuenta, puesto que en condiciones normales deberían generar un proceso de «desintermediación»
Some propositions de lege ferenda will be made, in order to ensure a higher level of consumer protection, with additional legal duties prescribed for the intermediaries, for instance

Summary

Overview and scope of the legal framework protecting consumers

Several EU directives or regulations aim at ensuring a high level of consumer protection. They prescribe either. With regard to the concept of “service” (to be understood as a “service” as defined in Art. 57 of the TFEU), it may be argued that the European legislator has not considered that the service provider could be a consumer Those articles of the directive on electronic commerce only apply in B2C and B2B relationships. Issues will mainly arise with regard to the relationship between the consumers In this context, consumers cannot benefit from the EU protection rules: right of withdrawal, information duties, formal requirements, prohibition of unfair contract terms or unfair commercial practices and conformity requirements and guarantees, prohibition of additional payments, passing of risks, etc. Please see ECJ, April 10, 2018, case C-320/16, Uber France SAS

Gaps and main issues to be addressed from a consumer Law perspective

Prescribe additional duties for the platforms