Platforms as contract partners: Uber and beyond
| Date | 01 October 2018 |
| DOI | 10.1177/1023263X18806485 |
| Author | Irina Domurath |
| Published date | 01 October 2018 |
| Subject Matter | Articles |
Article
Platforms as contract partners:
Uber and beyond
Irina Domurath*
Abstract
This article analyses the recent case law concerning Uber and other platforms. Its main objective is
to examine the question of whether and under what conditions platforms can be considered the
contract partners of the individuals who seek goods and services through the platform’s infra-
structure. In a first step, the criteria employed by the courts, both the Court of Justice of the
European Union and national courts, are identified that characterise the role of platforms in
relation to the underlying service provision. In a second step, the article looks at the approach to
intermediaries in more traditional consumer contract law. A differentiated image emerges, which
underlines the need for legislative clarification.
Keywords
Platform economy, Uber, consumer law, EU policy, CJEU
1. Introduction: the platform economy
There is hardly another topic that has prompted regulatory debate as much as the platform econ-
omy.
1
Mark Zuckerberg’s appearances before the United States’ Congress in April and the Eur-
opean Parliament in May 2018 mark the latest highlights in the focus of controversies concerning
platforms. The discussions are complex, ranging from privacy policies in the case of Facebook to
* University of Amsterdam, the Netherlands
Corresponding author:
Irina Domurath, Department of Private Law, University of Amsterdam, Roeterseilandcampus, Building A, Nieuwe
Achtergracht 166, 1018 WV Amsterdam, the Netherlands.
E-mail: irina.domurath@posteo.de
1. Parts of this article have been published as I. Domurath, ‘Probleme bei der Einordnung von Plattformen als
Vertragspartner’, in P. Rott (ed.), Das Recht der Vermittlerplatformen (Nomos, 2017). I wish to thank Peter Rott for
helpful comments on previous drafts. All responsibility lies with the author.
Maastricht Journal of European and
Comparative Law
2018, Vol. 25(5) 565–581
ªThe Author(s) 2018
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/1023263X18806485
maastrichtjournal.sagepub.com
MJ
MJ
impacts on the social fabric of neighbourhoods through AirBnB enabling short-term accommoda-
tion with private people.
Uber is probably the most famous platform subject to several court cases. Uber is a company
that offers peer-to-peer transportation services on demand. What started as a company that offered
black luxury car rides developed into one of the most powerful platforms in the platform economy.
By now, it offers UberPop or UberX for private rides on demand, UberTaxi for professional taxi
drivers, UberBoat for water taxis over the Bosporus in Istanbul, UberHelicopter for helicopter
flights in Sao Paolo, UberEats for food deliveries from participating restaurants, and, most
recently, also UberHealth for anonymous transportation from and to medical services.
In general, Uber works in the following way: Passengers can book a trip with a private driver by
downloading the App, logging on and requesting a ride. From the pool of registered drivers, Uber
then locates available drivers closest to the passenger and informs them of the request. The driver
has 10 seconds to accept the trip before another driver is located. Drivers are discouraged from
asking passengers for the destination before pick-up. After arrival at the destination, the passengers
swipes the ‘Complete Trip’ button in the App and the fare is calculated by the Uber servers, based
on the Global Positioning System data from the driver. If the passenger decides to cancel a trip
more than 5 min after it has been accepted by the driver, a cancellation fee is payable, of which
Uber again takes a percentage.
Uber does not consider itself to be the employer of its drivers or the provider of the transpor-
tation service itself. Problems are bound to arise, when there is a possible discrepancy between the
terms supplied by Uber and how it sees itself on the one hand, and its appearance on the market on
the other. Hence, the legal issues arose precisely because of a discrepancy between Uber’s
description of its services in its Terms and Conditions and complaints of taxi companies for unfair
competition and complaints of Uber drivers concerning their de facto employee status. This article
explores further the question to what extent Uber case law can be used to regard platforms also as
the contractual partners of consumers.
In a first step, we will describe the European Union policy agenda and a proposal for a EU legal
framework on the platform economy. Then we will examine the platform-specific case law, both in
national and EU law and identify the parameters that are decisive in determining the status of the
platform as a service provider or employer. We will then do the same with regard to cases
regarding other intermediaries in the field of consumer law, clarifying the issues that arise and
the decisive criteria for their solutio n. Last but not least, we will analyse to what extent th e
identified criteria can help to us to construct the contractual partnership between the platform and
the demander of the goods and services in question. The ultimate aim is to identify the parameters
that can be used for determining this contractual relationship as well as the ensuing problems.
2. Platform economy on the EU agenda
The rise of the platform economy has prompted considerable policy activity in the EU. The Digital
Single Market Strategy and its mid-term review,
2
the Commission’s Communication on Online
Platforms,
3
which is a proposal for a Regulation concerning business users of online intermediation
2. Communication from the Commission to the European Parliament, the Council, the European Economic and Social
Committee and the Committee of the Regions on the Mid-Term Review on the implementation of the Digital Single
Market Strategy A Connected Digital Single Market for All, COM(2017) 0228 final.
3. Ibid.
566 Maastricht Journal of European and Comparative Law 25(5)
To continue reading
Request your trial