Juan Francisco Rodríguez Ayuso

Ámbito de aplicación de los servicios básicos de plataforma como servicios de superintermediación de la sociedad de la información

 08/05/2024
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La aparición y consolidación de las plataformas en línea como ejes vertebradores de grandes mercados o, incluso, de enteros ecosistemas en el sector digital ha experimentado una gran evolución que lleva a su conformación en nuestros días. Dada su relevancia y la necesidad de ponderar adecuadamente el equilibrio entre las ventajas y los riesgos que trae consigo la actividad de intermediación (tanto más, de superintermediación) que prestan entre los usuarios profesionales y usuarios finales que se sitúan a ambos lados de este espacio, resulta fundamental regular su funcionamiento.

JUAN FRANCISCO RODRÍGUEZ AYUSO es Profesor Ayudante Doctor de Derecho Administrativo. Coordinador Académico del Grado en Ciencias Jurídicas de las Administraciones Públicas. Universidad Nacional de Educación a Distancia (UNED)

El artículo se publicó en el número 65 de la Revista General de Derecho Administrativo (Iustel, enero 2024)

RESUMEN: La aparición y consolidación de las plataformas en línea como ejes vertebradores de grandes mercados o, incluso, de enteros ecosistemas en el sector digital ha experimentado una gran evolución que lleva a su conformación en nuestros días. Dada su relevancia y la necesidad de ponderar adecuadamente el equilibrio entre las ventajas y los riesgos que trae consigo la actividad de intermediación (tanto más, de superintermediación) que prestan entre los usuarios profesionales y usuarios finales que se sitúan a ambos lados de este espacio, resulta fundamental regular su funcionamiento. Para ello, surge un nuevo paquete digital, integrado por la Digital Services Act y la Digital Markets Act, que instauran un régimen jurídico que viene a complementar el, ya insuficiente, previsto en la Directiva sobre comercial electrónico y en el Reglamento P2B. En este nuevo paquete, se homogeneiza la, hasta ahora, controvertida naturaleza jurídica de los servicios prestados por las plataformas digitales y se instaura un conglomerado de obligaciones asimétricas superpuestas que atenderán a circunstancias como el protagonismo que estos prestadores ostentan, la sensibilidad de la información de la que se sirven para alcanzar sus fines, la responsabilidad que asumen en el servicio subyacente o la condición de los usuarios intermediados. Sobre todo ello ahondaremos en el presente trabajo.

SCOPE OF APPLICATION OF CORE PLATFORM SERVICES AS SUPER INTERMEDIATION INFORMATION SOCIETY SERVICES

ABSTRACT: The emergence and consolidation of online platforms as the backbone of large markets or even entire ecosystems in the digital sector has developed considerably, resulting in their current form. Given their relevance and the need to properly balance the advantages and risks involved in the intermediation (or even super-intermediation) activity they provide between professional users and end users on both sides of this space, it is essential to regulate their operation. To this end, a new digital package has emerged, comprising the Digital Services Act and the Digital Markets Act, which establish a legal regime that complements the already insufficient one provided for in the e-commerce Directive and the P2B Regulation. This new package homogenises the hitherto controversial legal nature of the services provided by digital platforms and establishes a conglomerate of overlapping asymmetric obligations that will consider circumstances such as the prominence of these providers, the sensitivity of the information they use to achieve their purposes, the responsibility they assume for the underlying service or the status of the users they intermediate. All of these issues will be discussed in more detail in this paper.

I. INTRODUCTION

The world is changing. If we analyse our immediate past, and our most fervent present, we can see how digital platforms(1) have fostered the emergence and placed themselves at the centre of a whole space made up of several sides that, thanks to the possibilities offered by the creation, first, and consolidation, later, of the New Information and Communication Technologies (commonly known as ICTs), relate to each other in order to achieve very different types of objectives. As spaces that foster the aforementioned interaction between multiple groups in bilateral or multilateral markets(2), digital platforms seek to concentrate the bulk of the advantages that, in addition to progressively accentuating their relevance, make possible a gradual improvement of their activity and their function within the ecosystem, improving, of course, the conditions of all the sides that make up the market(3) and that make use of this platform; this implies a parallel increase, it is true, of the risks derived from increasing dependence on the activities provided by the intermediary, which undermines fair and real competition, innovation in the sector concerned as a whole, effective possibilities for choice, prices and, by extension, the sustainability of this space and the general interest of the population as a whole.

There is a dichotomy, not always easy to weigh and balance, between, on the one hand, the advantages and, on the other hand, the threats derived from the irruption of platforms and the central role they occupy.

It is common knowledge that, in the interests of perfecting their mission, these digital intermediaries aspire to high economies of scale in order to reduce the marginal costs arising from incorporating new and very numerous participants (in the form of final and professional users) to the different sides that make up the ecosystem in which they operate, compensating for the considerable expenditure of all kinds (in advertising actions or in the form of discounts) that are often necessary if they aspire to generate a relevant critical mass of participants that serve to consolidate the provision of the service. It is also true that this scale makes possible, at the same time, considerable network effects or externalities, motivating the dependence of the choice of a person on the quantity (quantitative element) of people who integrate or potentially integrate the same or another of the sides of which they are part of the platform(4), allowing a permanent improvement of the service provided (which will result in a reduction of expenses or costs, including transactional - including those transactional -, an increase in effectiveness, a reduction in the number of people who are or potentially will be part of the same or another of the sides of which they are part of the platform), and, consequently, a more notable development of the platform as the overall volume of parties involved gradually increases and increases.

If the above-desired goals are achieved, the digital platform will be able to reach its objective of assuming the power to enable the interaction of multiple companies (for commercial or professional purposes) with multiple consumers (for purposes more linked to the personal sphere). To ensure this level of success will require an intelligent, appropriate and proportional distribution of the benefits (economic or otherwise) derived from such involvement and resulting from the interaction of all the users that make up the market, including, of course, the structure itself, which plays the central role in the aforementioned intermediation. Only in this way will the benefits listed be permanent over time and likely to generate sustained satisfaction, sufficient to motivate new incorporations on all sides of the ecosystem(5).

However, despite the aforementioned advantages, the unstoppable advance of digital platforms is accompanied by inseparable risks that should also be taken into account and mitigated. More specifically, we can affirm that, parallel to the increase in power of these super-intermediaries, there is a greater power of disposal over the elements subject to intermediation (which they convert into standardised or homogenised goods or services in order to maximise network effects of all kinds), intensifying, in this way ( in a kind of vicious circle), the de facto subordination of those who access the services provided by the digital platform, who, as happens in most cases, renounce a large part of the freedom they used to enjoy when setting prices, lacking, in addition to the above, sufficient detail in relation to the transactions carried out and the identification data of the counterparty with whom they perfect their transactions. In other words, the so-called "lock-in effects" arise, which prevent or hinder the movement, variation or multihoming in favour of third-party competitors of the platform in relation to these information society services.

To the above, we must add the emergence of economies of scope when economies of scale encourage and motivate simultaneous participation in other diverse or similar but related services(6) or activities, or, of course, vertical integration, which allows these large intermediation structures to compete directly, but with a clear advantage over the underlying provider companies when producing and marketing the goods and/or services in question. In this respect, the pre-eminence obtained by digital platforms to achieve greater comparative efficiency thanks to the intense and indiscriminate use of huge volumes of information(7), (8) by means of techniques sponsored by the use of algorithms and Artificial Intelligence tools, to which must be added (the so-called "effects of the experience economy"(9) the experience gained in the ecosystems in which they have been operating for some time and, clearly, the always controversial practices of unfair competition, self-preferencing (prioritising their own product to the detriment of the competition's, also intermediated, through pre-eminence in searches or the limitation to third-party products), tying (making the sale of a product or the provision of a service conditional on the purchase of another product or subscription to another service), Most Favoured Nation (avoiding offering more advantageous conditions outside the platform), prohibition of multihoming (imposing the exclusivity of the platform's services) or, in short, lack of transparency, result in an exacerbated prominence of the platforms in the new digital economy (an economy which, for the same reason, has also come to be known as the "platform economy"(10) and in a clear inequality between the platform and those who depend on it (providers or professional users), compete with it (third party competitors or potential competitors) or use it (consumers or end users).

The risks described above, if they materialise, could have very detrimental effects on the two main principles that must prevail when the interconnection between these super-intermediaries and the users who compete with them or carry out their activity in them materialises, depending on the case. We refer to:

On the one hand, the principle of disputability or contestability, which, circumscribing, as far as we are concerned here, the scenario in which digital platforms operate, affects the real possibility that each of these providers has to overcome, in a specific ecosystem, any impediment that hinders or obstructs their access, in an initial phase, or their growth, a posteriori. In this way, it will be able to compete with others for market share on the sole basis of its ability and capacity and the quality of the interaction work provided, thereby enhancing the improvement in the market as a whole, the creation of a satisfactory professional environment, the quality of the activity of the platforms as a whole and the range of options from which consumers will be able to choose, all of which will have an impact on the population as a whole(11).

On the other hand, the principle of loyalty or fairness, which focuses, in this case, on the links that arise between the super-intermediaries and the subjects (mainly professionals). By means of which, the aim is to print higher doses of equality between the parties, reducing the imbalances between the rights and obligations of each of them and, at the same time, preventing actions that give rise to a more than criticisable advantage to those (the digital platforms) that have a greater capacity to achieve it.

In the event that, not only does this scenario take place due to the actions of these intermediation providers, but it also translates into an increase in the economic preponderance of specific platforms, capable of controlling entire ecosystems in the digital sector and of structurally preventing or hindering the ecosystem's stability, thanks to their enormous influence on the internal market and their established and lasting positioning, whether real, current or future; when this leads to pernicious imbalances in the parties' bargaining power and to a worsening of the interests of the community, this could lead to these super-intermediaries being designated as gatekeepers, taking into account (hence the term) their capacity to act as a barrier, that is, to impose obstacles to a high percentage of professional providers being able to connect with large numbers of end-users within the Community territory and in the most varied markets.

As a result of this concern and given the need to create a harmonised legal framework that avoids regulatory fragmentation within the European Union and ensures the proper functioning of the internal market, a regulatory package has recently emerged to regulate the activity of platforms in the digital sector. This package, which forms part of the Digital Services Act package, is made up of two instruments:

First, Regulation (EU) 2022/1925 of the European Parliament and of the Council of 14 September 2022 on contestable and fair markets in the digital sector and amending Directives (EU) 2019/1937 and (EU) 2020/1828 (hereinafter the Digital Markets Regulation or, as it is commonly known, DMA, an acronym that refers to its English name Digital Markets Act)(12), which joins, in the interests of protecting fairness, Regulation (EU) 2019/1150 of the European Parliament and of the Council of 20 June 2019 on promoting fairness and transparency for business users of online intermediation services (hereinafter the P2B -Platform to Business- Regulation)(13), which, unlike the DMA, incorporates more flexible rules for a larger number of platforms, rather than stricter rules for a smaller number of platforms.

Secondly, Regulation (EU) 2022/2065 of the European Parliament and of the Council of 19 October 2022 on a single market for digital services and amending Directive 2000/31/EC (hereinafter referred to as the Digital Services Regulation or, also, DSA, acronym for Digital Services Act)(14).

Both take the form of a regulation(15), which undoubtedly helps to generate greater legal certainty and broader regulatory harmonisation (to the detriment, therefore, of the fragmentation resulting from multiple and different regulations in the different Member States) in the European digital sector (Article 1. 5 DMA); however, this vocation, clearly tending towards unicity, is accompanied, immediately afterwards, by a provision that leaves open the possibility that Community countries may impose <<[] obligations on undertakings, including undertakings providing core platform services, for matters falling outside the scope of this Regulation, provided that those obligations are compatible with Union law and do not result from the fact that the relevant undertakings have the status of a gatekeeper within the meaning of this Regulation>>.

Of these two fundamental rules, the DMA and the DSA, and due to their strong socio-economic repercussions, we will focus primarily on the former, which will presumably be applicable to large technology companies (we are thinking of Amazon, Airbnb, Google, Facebook, YouTube, WhatsApp, Apple or Microsoft), capable, with their pre-eminent role in the market(s) in which they operate, of limiting the development of innovative digital companies in highly competitive conditions(16). This legal text disciplines issues not sufficiently covered by pre-existing national or supranational legislation and complements [but does not replace(17)] competition law, which, tending to be slower and with a reduced scope of application (limited to competition to ensure consumer welfare in economic terms), is applied ex post(18), introducing ex ante regulation able to generate certainty and legal security among all economic operators, as well as anticipating anti-competitive strategies in markets of general interest before they develop(19).

II. GATEKEEPERS AND THEIR CENTRAL ROLE IN THE DIGITAL SECTOR: DETERMINING ELEMENTS IN THE REALISATION OF THEIR SUPERINTERMEDIATION FUNCTION

A detailed analysis of the implications of the new Digital Markets Act necessarily involves investigating the vicissitudes of the objective and subjective elements of this regulation. The first of these concerns the services provided on the large digital platforms and their legal nature, which is recurrently controverted and not without debate in doctrine and jurisprudence. The second focuses the analysis on the figure of the gatekeeper as a provider of these intermediary services.

Let us look at each of them in detail.

1. The core platform services in the Digital Markets Act

The new Digital Markets Regulation provides a closed but expandable list of core platform services. Although the general category encompassing all of them is not defined [article 2.2) DMA only refers to the services that, at present and in the initial version of the text, are worthy of such consideration], those that are included, each one of them in their corresponding letter of the second precept, are.

All of them, we can anticipate (with the observations that will be indicated later, as a result of the evolution followed over the years), will be considered as information society services. Article 2.3) DMA refers us, in order to be able to specify what is understood as such, to Article 1.1.b) of Directive (EU) 2015/1535 of the European Parliament and of the Council of 9 September 2015 laying down a procedure for the provision of information in the field of technical regulations and rules on information society services(20).

According to the latter Directive, information society services are those that are provided: normally, for remuneration; at a distance; by electronic means; and at the request of the recipient of these services. It is therefore easy to conclude that potential providers of core platform services (where we could include those provided by platforms such as Amazon, Google or WhatsApp) will, in their activity, meet these four requirements, all of which are necessary.

In addition to the above, such digital structures will provide, as we shall see, intermediary information society services of intermediation. Despite the confusing nature of the name, these are services that have a clear purpose, consisting of intermediate or connecting users of the market in which they coordinate, and, at the same time, facilitate <<[...] the provision or use of other information society services or access to information>> [letter b) of the annex to the LSSICE].

Among these intermediary services, the following have been included, par excellence and since their origin, as follows: services relating to the provision of Internet access (Internet service providers); services that enable the transmission of data over telecommunications networks (mere conduit or routing); services relating to the temporary copying of Internet pages requested by users (proxy caching or "buffer memory"); services that allow data, applications or services provided by others to be hosted on their own servers (hosting) and services that provide tools for searching, accessing and compiling data or links to other Internet sites (searching and linking) (Rodríguez Ayuso, 2018). Later on, we will see that the modern digital platforms are currently linked to the general category of hosting services, which is endowed, for this specific case, with specific additional obligations and special singularities.

In addition to the above, and despite the denomination of the first of the core platform services that we will define below, they all have an intermediation vocation, in line with the central role that these digital platforms play in the markets in which they operate. This means that, despite the assumptions of vertical integration that may lead, in some cases, certain gatekeepers to provide certain goods or services in competition with the end-users operating under their services, digital platforms connect the sides that make up the multilateral market, facilitating interaction between professional users and end-users.

Having said this, the basic services (i.e. intermediary information society services of intermediation) provided by large digital platforms are listed below:

(a) Online intermediation services [Article 2(2)(a) DMA], where Article 2(5) DMA refers us, for its definition, to Regulation (EU) 2019/1150. Specifically, it does so in Article 2(2), which defines them as information society services that enable professional users to offer goods or services to end users, in order to facilitate the initiation of direct transactions between them, beyond the place where the transactions are ultimately concluded and always under the condition that they are provided on the basis of contractual relations between the digital platform and the professional users who offer the goods or services to the end users.

In addition to the DMA and the DSA, another rule will apply to these core platform services, which is of course linked to the more general and integrating Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (hereinafter Directive on electronic commerce or the DCE)(21). We are talking about the aforementioned P2B Regulation, whose content covers online intermediation services and online search engines, which will be mentioned below.

It should also remember that the services covered by Article 2(2)(a) of the Digital Markets Act include e-commerce marketplaces and software application shops. The latter are also defined in the DMA, specifically in article 2.14), as those <<[] focused on software applications as the intermediated product or service>> [Article 2.15 DMA].

a) Online search engines [Article 2.2.b) DMA], where, again, the text of the Regulation [Article 2(6) DMA] refers us to Regulation (EU) 2019/1150, this time to its Article 2(5), which defines a search engine as a service <<[] that allows users to input queries in order to perform searches of, in principle, all websites, or all websites in a particular language, on the basis of a query on any subject in the form of a keyword, voice request, phrase or other input, and returns results in any format in which information related to the requested content can be found>>. This same term is found, in very similar terms, in Article 3.j) DSA.

b) Online social networking services [Article 2(2)(c) DMA], defined, this time, directly, by Article 2(7) of the Digital Markets Act as one which <<[] enables end users to connect and communicate with each other, share content and discover other users and content across multiple devices and, in particular, via chats, posts, videos and recommendations>>.

c) Video-sharing platform services [Article 2(2)(d) DMA], in which, once again, we must refer to another regulation to understand what they consist of [Article 2(8) DMA], a regulation which, in this case, is contained in Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive)(22). According to this Directive (Article 1.1.a bis), video-sharing platform services shall be those services as defined in Articles 56 and 57 of the Treaty on the Functioning of the European Union(23) whose principal purpose or one of its severable parts or whose essential functionality consists in making available to the general public programmes, user-generated videos or both, for which the platform provider has no editorial responsibility, for the purpose of informing, entertaining or educating, over electronic communications networks as defined in Article 2(a) of Directive 2002/21/EC(24), the organisation of which is determined by the video-sharing platform provider, inter alia by means of automatic algorithms, in particular by means of presentation, tagging and sequencing.

d) Number-independent interpersonal communications services [Article 2(2)(e) DMA]. Article 2(9) of the same Regulation refers to Article 2(7) of Directive (EU) 2018/1972 of the European Parliament and of the Council of 11 December 2018 establishing the European Electronic Communications Code (hereinafter CECE)(25), which defines this service as one characterised because <<[] does not connect with publicly assigned numbering resources, namely, a number or numbers in national or international numbering plans, or which does not enable communication with a number or numbers in national or international numbering plans>>.

e) Operating systems [Article 2(2)(f) DMA], defined in Article 2(10) DMA as <<[] software that controls the basic functions of the hardware or software and enables software applications to run on it>>.

f) Web browsers [Article 2(2)(g) DMA], which allow <<[] end users to access and interact with web content hosted on servers that are connected to networks such as the Internet, including standalone web browsers as well as web browsers integrated or embedded in software or similar>> [Article 2(11) DMA].

g) Virtual assistants [Article 2(2)(h) DMA], which, in accordance with point 12) of the same precept, are <<a software that can process demands, tasks or questions, including those based on audio, visual, written input, gestures or motions, and that, based on those demands, tasks or questions, provides access to other services or controls connected physical devices>>.

h) Cloud computing services [Article 2(2)(i) DMA], which includes any information society service that enables <<[] access to a scalable and elastic pool of shareable computing resources>> [Articles 2(13) DMA and 4(19) of Directive (EU) 2016/1148 of the European Parliament and of the Council of 6 July 2016 concerning measures for a high common level of security of network and information systems across the Union(26)].

i) Online advertising services, including any advertising networks, advertising exchanges and any other advertising intermediation services, provided by an undertaking that provides any of the core platform services listed above [Article 2(2)(j) DMA], which are not defined, either directly or by reference to any other regulation, in the Digital Markets Act.

2. The nature of the provision of services by gatekeepers: evolution in favour of adaptation

Having delimited the scope of core platform services that, at least in an initial legislative estimation, may be affected by access limitations that undermine or may potentially undermine the market by undermining dependency, competition, innovation, prices or choice, it is appropriate to analyse the objective element, this is, the figure of the provider of this type of services. More specifically, it is important to pay attention to one of the main aspects that are relevant when analysing the legal vicissitudes of digital platforms that may come to act as gatekeepers, which is the legal nature of the provision (not always clear and always open to interpretation) provided for in the Digital Markets Act of the presumably few in number, but exorbitant in power, gatekeepers.

The actions of digital platforms, also known by the doctrine as the "new network industries"(27), have been subject, from the beginning, to a strong doctrinal and jurisprudential debate on the legal nature of the intermediary action they provide, especially in those cases in which the degree of intermediation is so high and the relevance of the role of the intermediary so intense that it has merited their classification as "super-intermediaries"(28). In essence, it has been discussed whether these structures provide information society services, in the terms already discussed, or whether, because of their influence on the relationships that converge in the market (even more so when talking about large digital platforms that act as gatekeepers), they provide the underlying service.

In general terms, digital platforms make available to their users an organised space, an intelligent structure, integrated by one or several services that tend to promote or even make possible the contracting of the main good or service offered by the professional user and demanded by the end user(29), both (companies and consumers), in principle, persons, natural or legal, independent of the platform(30). The problem arises when, on occasions, the influence and conditioning exercised by the intermediary on the actions or behaviour of the supplier is such that it could be concluded that it is the platform itself which, in a somewhat surreptitious manner, carries out the organisation and provision of the main service; if so, it could be said that the intermediation service is an integral part of an overall service whose main element is the underlying service, which ends up conditioning the nature of that service. Some argue, therefore, that there is no intermediation as such (in a bilateral, not a multilateral market), but merely a promotional activity aimed at attracting end-users by what is, in reality, a professional user(31), thus giving rise, in short, to a kind of disguised vertical integration.

In view of the above, we could make a distinction between two very different and differentiated scenarios, depending on the weight of the activity that defines digital platforms:

On the one hand, that of digital platforms [whether transactional, non-transactional or innovation platforms(32)] whose activity is limited to connecting the sides of the multilateral market, to the parties that are part of this space, providing one or some of the core platform services that, in no case, lose their status as information society services. As we can easily deduce, this legal nature alludes, as with any other institution that adapts to or arises under the protection of the New Information and Communication Technologies (such as electronic commerce, electronic contracting, electronic signatures, electronic evidence, etc.), to the way in which the service is provided(33).

Thus, the channel which, by overlapping, determines the way in which the main service, which has sufficient autonomy, is provided, will be a different service (among other things, because it is provided by different parties), which will respond to a specific legal nature (which we have already specified), and the underlying service, the intermediated service, another, different one (mediation or brokerage, mandate or commission, etc.)(34). In this way, we will be in the presence of two cumulatively cohesive legal regimes, in accordance with the principles of regulatory application that are appropriate in each case. This has been the case for most of the platforms providing both basic and intermediation services of the information society, whose providers have therefore always had the legal status of information society service providers(35).

On the other hand, that of digital platforms which, without renouncing to share (by defining the conditions of participation and the requirements for the functioning of the system) all the parties of the multilateral market, actively intensify the effects derived from the central role they occupy within the ecosystem. And they do so to the extent that they so strongly condition the way in which the underlying supplier's (highly standardised) goods or services are provided that the latter ends up becoming, according to those who argue(36), a mere executor, without decision-making capacity, of the platform's orders.

In the latter scenario, it has traditionally included the case of Uber, which provides an intermediation service that allows, by means of a smartphone application, to connect, in return for payment, non-professional drivers using their own vehicle with persons wishing to make urban journeys. According to the Court of Justice of the European Union(37), that digital platform <<[...] has a decisive influence(38) on the conditions of the services provided by those drivers>>(39). Therefore, and unlike in the previous case, this powerful impact would, in the Court's view, result in such an inequality between the digital platform and the professional users who are intermediaries so that the legal regimes applicable to one and the other service may end up being antithetical or incompatible, especially when one of these regimes, the one applicable to the professional user, ends up imposing restrictions on the provision of services which, by antonomasia, the other regime, the one applicable to the digital platform, do not have [as is the case with prior administrative authorisations to be able to provide the service, which are incompatible with the principle of freedom to provide services that inspires, par excellence, the actions of the providers of information society services(40), and it is necessary to renounce to harmonise them in order to determine which of them prevails (in the present case of the Uber platform, the transport service).

This led the Court to conclude that <<[...] this intermediation service must be considered to be an integral part of an overall service, whose main element is a transport service, and therefore does not qualify as an "information society service">>. Instead, he concludes, it would be considered as a "service in the field of transport", which covers, it should be emphasised, <<[...] not only transport services as such, but also any service inherently linked to the movement of persons or goods from one place to another by means of transport>>.

Despite the above, and in the opinion of part of the doctrine(41), with which I agree, the criterion of decisive influence would not determine, or should not determine, that we are not in the presence of an information society service (rather, we would be in the presence of a self-regulation that the platform imposes on itself to demand certain levels of quality of its service, that is, a control without which, most probably, the digital platforms would not be successful enough to enable the development of the market in which they operate) and we are in the presence of a transport service. Moreover, this does not imply, per se, that Uber provides a transport service, since, even accepting the above thesis, it could be a transport intermediation service, subsumed in the field of transport, on the basis of Article 58 TFEU, and which would not have to be subject to the same regulations that govern the transport activity itself(42).

Finally, it would not be negligible, from this critical point of view, to consider the possibility of combining a dual nature in the service provided: as an information society service, which makes electronic contracting possible, and at a distance from the underlying service (the transport service), with both regulatory frameworks being applicable independently and separately, but simultaneously. The key, we believe, would lie in determining, for each case and whenever possible, which rules should be applied (some even only for certain elements of the legal transaction, such as the electronic offer and contracting) and the way in which these, where appropriate, should be complemented(43), which would be to the benefit of consumers, who, if the accumulation of the double status prior to the platforms were denied, would not be able to enjoy the benefits that some of these rules attribute to them.

Taken to its ultimate consequences, this decisive influence could lead to the de facto disappearance of the digital platform as a space that facilitates the interaction of third parties, leading to the conclusion that those who execute the orders of the latter are, in reality, employees of the platform. The platform, under this conception, would ultimately be a professional user who, electronically, promotes the consummation of business relations with the counterparty (the consumer or end user), transforming the apparently multilateral market into one that is clearly bilateral. While, in the previous and usual cases, the platform is a different entity from the one providing the service intermediated by it, in the present case, this differentiation would not occur, which would mean that, as opposed to the platforms stricto sensu, which provide intermediation services of the information society, we are now in the presence of information society services that lack this intermediation vocation.

Thus, the services provided by the main digital platforms would be information society services in which the provider of the basic platform service and the provider of the underlying service are different, and where the rules governing the virtual channel that enables intermediation would be complementary to those governing the way in which the service is provided once the transaction between the professional user and the end user, if any, that make up the multilateral market has been completed. This would not be the case, on the other hand, with those other platforms which, on the understanding that they also provide the main service, would assume the status of providers of the global service, combining the applicable regulations in that one, particularly restrictive, which, as we have said, suppresses the principle of freedom to provide and, what is more, is subject to administrative authorisations that are certainly more restrictive.

The previous configuration, which embodies a distinction (clear, although, we repeat, debatable) that is consolidated with the ruling of the Court of Justice of the European Union, is blurred by the classification established by the Digital Services Act and the Digital Markets Act. The reason seems clear. The well-written but overly broad e-commerce Directive, which was elaborated more than twenty years ago, has been unable to fully adapt to the dizzying developments of the new digital reality; for this reason, the new Digital Services Act (linked, to a lesser extent, to the DMA), introduces greater clarity and adequacy with regard to the legal nature of the services provided by (all) digital platforms, completing the initial postulates of the DCE for a phenomenon that has reached a hitherto unknown and unimaginable dimension.

More specifically, it has been in the interval during which the debate and the shaping of this new digital package has been extended that the true legal nature of online platforms has been questioned. This has led to the confirmation that, instead of limiting themselves, as the first providers of intermediaries’ information society services did in the past, to storing information available to users, today's platforms have also become real super-intermediaries that actively select, order and recommend such information in order to maximise their intermediation and optimise the satisfaction of all users, carrying out a massive, intelligent and automated processing of data (personal and non-personal) through the use of algorithms and Artificial Intelligence systems.

In short, and as a result of the evolution experienced, digital platforms are no longer limited, following the terminology used by the DCE, to providing intermediaries’ information society services, but have come to provide intermediaries’ information society services of intermediation. This nuance is not irrelevant, because this intermediation, active and not simply instrumental (even more so, this super-intermediation, in the terms described above), which is also present, is what has given them the central role in these multilateral markets and has required them to perfect their coordination work in order not only to make the service truly useful, but also to ensure that user satisfaction is sufficient to allow for its viability, innovation and constant improvement over time and for the benefit of all.

On the basis of the above premise, we can conclude that online platforms (all of them, independently of the specific activity they carry out) provide, in this order and from the most general to the most specific category:

Firstly, information society services, because they normally do so for remuneration, at a distance, by electronic means and at the request of the recipient of these types of services.

Secondly, intermediaries’ information society services, since they facilitate the provision or use of other services of the information society or access to information (virtual commercial communications or electronic contracting, among others).

Thirdly, and within these services, hosting services, consisting of <<[...] storage of information provided by, and at the request of, a recipient of the service>> [Article 3(g)(iii), DSA].

Fourthly, data hosting services (again, intermediaries’ information society services) of intermediation. As we have already noted, the activity of online platforms is not limited to storing user data at the user's request, but goes beyond this and is explained by the intelligent processing of information to constantly improve the interconnection of the users who are part of the market in which they operate. This is a fundamental task of contemporary digital platforms and not, as has been claimed, an impediment to acquiring the status of digital platforms(44).

Moreover, the control that the platform may exercise over users does not preclude the same conclusion as above (recital 23 DSA). This goes beyond the possible liability that the digital platform may incur, it seems logical, as a result of this influence or of the additional obligations that may be imposed on it.

For this reason, fifthly, the definition given in Article 3(i) of the DSA is expressed in the following terms, by conceiving the online platform service as:

<<[] a hosting service that, at the request of a recipient of the service, stores and disseminates information to the public, unless that activity is a minor and purely ancillary feature of another service or a minor functionality of the principal service and, for objective and technical reasons, cannot be used without that other service, and the integration of the feature or functionality into the other service is not a means to circumvent the applicability of this Regulation(45)>>.

It is therefore dissemination to the public, defined subsequently by point (k) of the same precept as the making available of information <<[...] at the request of the recipient of the service who provided the information, to a potentially unlimited number of third parties>>, which distinguishes the activity of online platforms from other data hosting intermediaries services which, abundant at an early stage of the DCE, are limited to storing information but not to disseminating it to the public. Therefore, online platforms, whatever their type, will always, by definition, exercise an intermediation function, which consists of serving as a bridge between those who want to transmit information, previously stored (whether for commercial purposes or not), and those who are receptive to receive it.

Finally, for those online platforms that also act as gatekeepers (in accordance with the quantitative and qualitative criteria set out in Article 3 DMA), the Digital Markets Act introduces a new category: core platform services, as related and defined in the previous section. These core platform services would also be intermediaries’ information society services of intermediation and would coincide, with the differences that we will see below, with the category of online platform services, if the intermediation that they carry out between market users involves the prior storage of the information subsequently disseminated.

In this way, and although it is difficult to understand, any online platform service will be a basic platform service (on the understanding, although not legally defined, that the service that all digital platforms provide lies in the intermediation between the parties that form part of a specific market), but not every basic platform service will be an online platform service (specifically, as we said, only those core platform services that involve the storage of the information that makes subsequent, and basic, intermediation possible will be online platform services). More specifically, they will be, at the same time, online platform services and core platform services the online intermediation services, online social networking services, video-sharing platform services and online advertising services.

However, there will be other cases that are difficult to accommodate within the definition of Article 3(i) DSA. This is the case:

Firstly, with other intermediaries’ information society services of intermediation that do not have the note of storage (essential, it seems, when we are talking about digital platforms). This is the case, on the one hand, with number-independent interpersonal communications services, which seem to be more closely related to "mere conduit" intermediaries, consisting of <<[...] of the transmission in a communication network of information provided by a recipient of the service, or the provision of access to a communication network>> [Article 3. (g)(i) DSA]; on the other hand, web browsers and virtual assistants, which would be better accommodated in the "caching" intermediary service, which the DSA [Article 3. (g)(ii) DSA] defines as <<a service, consisting of the transmission in a communication network of information provided by a recipient of the service, involving the automatic, intermediate and temporary storage of that information, performed for the sole purpose of making more efficient the information's onward transmission to other recipients upon their request>>.

Secondly, although for different reasons, something similar occurs with operating systems and cloud computing services, where the storage, unlike in the preceding paragraph, does take place, but not, at least as a necessary element to make these services substantive, the subsequent dissemination of the information to the public.

Finally, and thirdly, there is the more controversial case of online search engines, where, in contrast to other core platform services, it is the user [following the definitions in Articles 2(5) of Regulation (EU) 2019/1150 and 3(j) DSA] who enters the query and therefore who requests the dissemination of information, but not the one who stores it. For this reason, it is considered appropriate to amend the Digital Services Act's definition of online platforms to also cover this scenario and to bring coherence to the entire online platform services regime; to this end, we could define this type of service, as a proposal de lege ferenda, as:

A data hosting service which, at the request of one of the users in the intermediation market, who may not be the same as the one subscribing to the service, stores and disseminates information to the public, unless that activity is a minor and purely ancillary feature of another service or a minor functionality of the principal service and, for objective and technical reasons, cannot be used without that other service, and the integration of the feature or functionality into the other service is not a means to circumvent the applicability of this Regulation.

In this way, the different applicable rules configure, as we move from the more general categories to the more specific ones, a gradual and progressive legal regime. In it, there will be obligations imposed, in this order:

- as information society services (DCE);

- as intermediaries’ information society services (DCE, DSA), which will be added to the previous one;

- as data hosting services (DCE, DSA), which will be added to the previous two;

- as data hosting services (that is, intermediaries’ information society services) of intermediation (that is, as online platform services) (DCE, DSA, P2B Regulation), to be added to the previous three, and

- as, where appropriate, core platform services (DCE, DSA, P2B Regulation, DMA), to be added to all of the above.

In addition, it should be included, of course, all other special and complementary legislation [for example, taking into account the consumer status of the end user, where the postulates of Directive (EU) 2019/2161 of the European Parliament and of the Council of 27 November 2019 amending Council Directive 93/13/EEC and Directives 98/6/EC, 2005/29/EC and 2011/83/EU of the European Parliament and of the Council as regards the better enforcement and modernisation of Union consumer protection rules; to the type of information processed, with the requirements of the GDPR, etc.].

III. CONCLUSIONS

There are several relevant conclusions that can be highlighted from all that has been presented throughout this study. These are listed below:

Firstly, the intermediation activity exercised by digital platforms must be regulated, because the obvious advantages that their existence entails are not free of risks that, to the same extent, must be controlled, predicted and, why not, anticipated. This has become particularly evident when their size and power is such that they can act as a gateway for third party competitors to enter and/or exit the market, as well as obstructing innovation and/or choice and preventing a proper balance in the relationship between the online platform and the users who make use of its services.

Secondly, and in response to the above demands, a new digital regulatory package has recently emerged, in addition to the existing one provided for in the DCE or in Regulation (EU) 2019/1150. We are talking about the DSA and the DMA, the latter provided for gatekeepers, in the interest of achieving greater contestability and fairness in the digital sector.

Thirdly, and in order to articulate the functioning of this Digital Markets Act, two fundamental elements are introduced with regard to its scope of application:

On the one hand, the target scope, focused on core platform services, which, in this initial version of the Norm, are limited to online intermediation services, online search engines, online social networking services, video sharing platform services, number-independent interpersonal communications services, operating systems, web browsers, virtual assistants, cloud computing services and online advertising services, including advertising networks, advertising exchanges and any other advertising intermediation service, provided by an undertaking that provides any of the core platform services listed above.

On the other hand, the subjective scope of application, which covers gatekeepers as providers of these core platform services.

Fourthly, in relation to the figure of gatekeepers, we have seen that the evolution of the considerations regarding the legal nature of the services they provide (extensible to all other platforms) has not been simple and, much less, peaceful, due, more than possibly, to the complex and heterogeneous multiplicity of digital platforms and activities implemented by each of them.

As a result of the above statement, and fifthly, the legal nature of the intermediation provided by these large structures has not always been clear or, at least, has not always been uniform, and the DCE has been unable to deal with phenomena that are certainly more complex than those existing at the time of its entry into force. For this reason, and depending on the degree of impact on the coordination of user goods or services offered by professional users to end users, a distinction was made between certain platform services that would be considered information society services, and others which, when it was understood that such impact was higher, would be identified with the underlying service itself, to the extent that, as stated in the doctrine and case law prior to the DSA and the DMA, they no longer have this status.

Sixth, the Digital Services Act provides clarity and homogeneity as to the legal nature of all online platforms, which, due to their status as such and the inherent and immanent characteristics they all share, will be, at the same time, information society services, intermediaries’ information society services, data hosting services and intermediaries’ information society services of intermediation.

In addition, seventhly, they may also assume the status of core platform services, which will merit the additional application of the DMA.

All this configures, eighth and lastly, a gradual and progressive legal regime, in which there will be platforms to which will be applied, cumulatively, the obligations foreseen in all the aforementioned regulations (in addition to the special one foreseen in complementary regulations) or only in some of them, depending on the prominence they have in the ecosystem as a whole, the sensitivity of the information they use to achieve their purposes, the responsibility they assume in the underlying service or the condition of the users, obviously, intermediated.

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NOTAS:

(1). Rochet, Jean-Charles and Tirole, Jean, <<Platform competition in two-sided markets>>, Journal of the European Economic Association, nums. 1-4, 2003, p. 990.

(2). Jiménez Serranía, Vanessa, <<Los “mercados” de las plataformas digitales de economía colaborativa: ¿Es realmente necesaria la redefinición del concepto de mercado de referencia?>>, in Martínez Nadal, Apol·lònia (dir.), Plataformas digitales: aspectos jurídicos, Thomson Reuters Aranzadi, Cizur Menor, 2021, p. 137. Understood as those spaces in which interact two sides integrated by at least two groups of users with their own needs and different from each other under the guiding role, in terms of pricing, design and / or other conditions of service, of a third party, the platform.

(3). Hovenkamp, Herbert, <<Antitrust and platform monopoly>>, The Yale Law Journal, num. 130, 2021, p. 1952.

(4). Vida Fernández, José, <<La articulación jurídica del entorno digital: insuficiencias y soluciones en la delimitación de los sectores de referencia ante el desafío de los servicios Over The Top (OTT)>>, Revista de Derecho Administrativo, num. 20, 2021, p. 290. The network effects that originate within digital platforms can be, besides positive or negative, (a) direct (typical of traditional network industries -telecommunications, transportation, energy-), which, occurring within each group, determine that the benefit or detriment of all its members is greater or lesser as the group increases or decreases in number; (b) indirect (requiring markets with two or more sides), which, in contrast to the previous ones, arise between groups on different sides of the market and lead to an increase in the value of a product or service in one group due to the entry of a new user from a different group; and (c) algorithmic (specific to digital platforms), so called because it is the algorithms used, supported by large amounts of data (personal and non-personal) at the disposal of these structures, which, gradually and with each action, are improved, making the intelligent interaction of the different sides of the market and of previously fragmented assets more predictive and identifying the most efficient complementarities. As we can see, digital platforms, standing above traditional network industries (platformizing or replacing them, depending on the case), generate a strong disruption by which they absorb and multiply traditional network effects and create new network effects.

(5). Montero Pascual, Juan José, <<La regulación de las plataformas digitales en la Propuesta de Ley de Mercados Digitales de la Unión Europea>>, in Ortega Burgos, Enrique (dir.), Nuevas Tecnologías 2022, Tirant lo Blanch, Valencia, 2022, p. 360.

(6). Baker, Jonatan, <<Market definition: an analytical overview>>, Antitrust Law Journal, num. 74, 2007, p. 157.

(7). Rodríguez Ayuso, Juan Francisco, Garantía administrativa de los derechos del interesado en materia de protección de datos personales, Bosch, Barcelona, 2021; Rodríguez Ayuso, Juan Francisco, <<Estado de alarma y protección de la privacidad en tiempos de pandemia: licitud del tratamiento de categorías especiales de datos>>, Revista de Derecho político, num. 110, 2021; Rodríguez Ayuso, Juan Francisco, <<La figura del data protection officer en la contratación pública en España>>, Revista digital de Derecho administrativo, num. 25, 2021; Rodríguez Ayuso, Juan Francisco, <<Sanciones relacionadas con la figura del delegado de protección de datos>>, in Davara Fernández de Marcos, Elena and Davara Fernández de Marcos, Laura (coords.), Análisis práctico de sanciones en materia de protección de datos -divididas por conceptos y sectores-, Thomson Reuters Aranzadi, Cizur Menor, 2021, pp. 663-686; Rodríguez Ayuso, Juan Francisco, Privacidad y Coronavirus: aspectos esenciales, Dykinson, Madrid, 2020; Rodríguez Ayuso, Juan Francisco, Ámbito contractual de la firma electrónica, Bosch, Barcelona, 2018.

(8). Data are defined by article 2.24) DMA as <<any digital representation of acts, facts or information and any compilation of such acts, facts or information, including in the form of sound, visual or audiovisual recording>>. Within them, we can distinguish personal data from non-personal data. The first ones are defined in the Digital Markets Act [Article 2(25)] by reference to Article 4.(1) of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC [hereinafter General Data Protection Regulation or GDPR (Official Journal of the European Union -OJEU- L 119/1 of 04 May 2016-], which conceives them as <<any information relating to an identified or identifiable natural person ('data subject'); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person>>. Finally, non-personal data, as opposed to the above, are simply those that are not personal data [article 2.26) DMA].

Within the Spanish legal system, the Organic Law 3/2018, of December 5, on Personal Data Protection and guarantee of digital rights (hereinafter, LOPDGDD, Official State Gazette -BOE- num. 294, of December 6, 2018) is responsible for completing and developing, in certain aspects, the GDPR. Together with the LOPDGDD, there is Royal Decree 1720/2007, of December 21, which approves the Regulations for the development of Organic Law 15/1999, of December 13, on the protection of personal data (BOE num. 17, of January 19, 2008), which, paradoxically, has not been repealed thanks to the new Law [as was the case with Organic Law 15/1999, of December 13, on the Protection of Personal Data (LOPD -BOE num. 298, of December 14, 1999), which transposed, in Spain, Directive 95/46/EC of the European Parliament and of the Council, of October 24, 1995, on the protection of individuals with regard to the processing of personal data and on the free movement of such data (Official Journal of the European Communities - hereinafter, OJEC - L 281/31 of November 23, 1995)], and will therefore be applicable provided that it is not contrary to it or, of course, to the General Data Protection Regulation.

(9). Blair, Roger and Sokol, Daniel, The Oxford handbook of international antitrust economics, Oxford University Press, Oxford, 2015, p. 234.

(10). Rodríguez de las Heras Ballell, Teresa, <<Las plataformas: nuevos actores (y reguladores) de la actividad económica>>, Anuario de la Facultad de Derecho de la Universidad Autónoma de Madrid, num. 2, 2021, p. 403; Rodríguez de las Heras Ballell, Teresa, <<Intermediación electrónica y generación de confianza en la Red: escenarios de riesgos y responsabilidad>>, Revista española de seguros: publicación doctrinal de Derecho y Economía de los seguros privados, núms. 153-154, 2013, p. 43.

(11). Baumol, William; Panzar, John and Willig, Robert, Contestable markets and the theory of industry structure, Harcourt College Pub, San Diego, 1982, p. 5. These authors conceive of a perfectly contestable market as one that allows accessibility to virtual competitors, so that they can, without possible limitation, satisfy the demands of the market and use, for this purpose, identical production techniques already in the possession of those already established. Along the same lines, the Spanish competition authority confirmed that contestability is <<[...] a quality of the market that refers to the ease of entry and exit in it. Thus, a market is said to be perfectly contestable when it meets the following conditions to the highest degree: 1) There are no barriers to entry or exit. 2) All companies have access to the same production technology, both incumbent companies and potential entrants. 3) Price information is complete and available to all consumers and all firms. 4) It is possible to enter and exit the market before the firms operating in it can adjust their prices. The stability of a market will be greater or lesser, depending on how close or less close to the aforementioned ideal conditions the respective real conditions in the market are>> [Tribunal de Defensa de la Competencia. Expediente de concentración económica 33/98, Havas/Grupo Anaya (NV-145 del Servicio de Defensa de la Competencia)].

(12). OJEU L 265/1, of October 12, 2022. The text reinforces the need to regulate digital platforms through supranational instruments, pointing out, among other issues, a relevant aspect, because, <<[] while gatekeepers tend to adopt global or at least pan-European business models and algorithmic structures, they can adopt, and in some cases have adopted, different business conditions and practices in different Member States, which is liable to create disparities between the competitive conditions for the users of core platform services provided by gatekeepers, to the detriment of integration of the internal market >>.

(13). OJEU L 186/57, of July 11, 2019.

(14). OJEU L 277/1, October 27, 2022.

(15). Sánchez Morón, Miguel, Derecho administrativo: parte general, Tecnos, Madrid, 2022, p. 149; Sarmiento Ramírez-Escudero, Daniel and Codina García-Andrade, Xavier, <<La europeización del Derecho administrativo>>, in Rodríguez de Santiago, José María; Doménech Pascual, Gabriel y Arroyo Jiménez, Luis (coords.), Tratado de Derecho administrativo. Volumen I. Introducción. Fundamentos, Marcial Pons, Madrid, 2021, p. 743.

(16). Martínez Nadal, Apol·lònia, <<La Propuesta de Reglamento de Mercados Digitales (“Digital Markets Act”): una aproximación jurídica>>, in Martínez Nadal, Apol·lònia (dir.), Plataformas digitales: aspectos jurídicos, Thomson Reuters Aranzadi, Cizur Menor, 2021, p. 116.

(17). Montero Pascual, Juan José and Finger, Matthias, La regulación de las nuevas industrias en red: plataformas digitales en las comunicaciones, transportes y energía, Tirant lo Blanch, Valencia, 2021, p. 387.

(18). Velasco San Pedro, Luis Antonio <<El papel del Derecho de la competencia en la era digital>>, Revista de estudios europeos, num. 78, 2021, p. 107.

(19). Comisión Nacional de los Mercados y la Competencia, Documento de posición de la CNMC sobre la consulta pública de la Comisión Europea sobre la Digital Services Act (DSA) y la New Competition Tool (NCT), ENLACE (fecha de consulta: 28 de agosto de 2023); Lamadrid de Pablo, Alfonso and Bayón Fernández, Nieves, Digital Markets Act: La Comisión Europea propone la creación de un nuevo régimen regulatorio dirigido a las grandes plataformas, ENLACE (fecha de consulta: 28 de agosto de 2023). Along the same lines, recital 10 and, above all, recital 11 DMA, which, in the same sense, underline that the DMA <<[] pursues an objective that is complementary to, but different from that of protecting undistorted competition on any given market, as defined in competition-law terms, which is to ensure that markets where gatekeepers are present are and remain contestable and fair, independently from the actual, potential or presumed effects of the conduct of a given gatekeeper covered by this Regulation on competition on a given market. This Regulation therefore aims to protect a different legal interest from that protected by those rules and it should apply without prejudice to their application>>.

(20). OJEU L 241/1, of September 17, 2015.

(21). OJEU L 178/1, of July 17, 2000. The transposition of this Directive, in our domestic legal system, takes place through Law 34/2002, of July 11, 2002, on information society services and electronic commerce (hereinafter, LSSICE, -BOE num. 166, of July 12, 2002-).

(22). OJEU L 95/1, of April 15, 2010.

(23). TFEU, hereinafter.

(24). Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive -OJEC L 108/33, of April 24, 2002-).

(25). OJEU L 321/36, of December 17, 2018.

(26). OJEU L 194/1, of July 19, 2016.

(27). Montero Pascual, Juan José and Finger, Matthias, <<La regulación de las plataformas digitales como industrias en red>>, Revista General de Derecho de los sectores regulados: RSR, num. 9, 2022, p. 2.

(28). This qualification could allude, it is true, to the strong role that certain digital platforms play in bringing large groups of users into contact with each other, so that they acquire the capacity to condition the terms under which the underlying goods or services are provided. However, it would also be possible to use this term to refer to the exacerbated size of certain platforms and the volume of members on each side of the market they intermediate. Normally, both circumstances concur, so that large platforms in size hold large shares of power (especially if we take into account the not inconsiderable outlay that they often have to make to gain access to high market shares), but this does not always have to be the case, and we cannot rule out platforms which, perhaps because of the novelty or competition of the market in which they originate, acquire this status even when their size, or that of their intermediaries, is not the imaginable one (foreseeing this rare possibility, see recital 24 DMA).

(29). Rodríguez Martínez, Isabel, <<El servicio de mediación electrónica y las obligaciones de las plataformas de economía colaborativa>>, in Montero Pascual, Juan José (dir.), La regulación de la economía colaborativa: Airbnb, BlaBlaCar, Uber y otras plataformas, Tirant lo Blanch, 2017, Valencia, p. 129.

(30). We do not refer, for the moment, to those cases of vertical integration of digital platforms, in which these, in addition to intermediating between users, professionals and final, provide, in competition with the former, the underlying good or service aimed at the latter, which may give rise to a whole series of anti-competitive practices, abuses of dominant position or actions contrary to fairness or transparency that are beyond the scope of the problem that now arises, circumscribed to the legal nature of the actions of digital platforms when they do not compete with one or some of the sides that intermediate, at least apparently.

(31). Zurimendi Isla, Aitor and Fernández García de la Yedra, Ainhoa, <<Naturaleza jurídica de las plataformas digitales>>, Revista General de Derecho de los sectores regulados: RSR, num. 6, 2020, p. 12.

(32). Cusumano, Michael; Gawer, Annabelle and Yoffie, David, The business of platforms: strategy in the age of digital competition, innovation, and power, Harper Collins, New York, 2019, p. 18; Filistrucchi, Lapo; Geradin, Damien; Van Damme, Eric and Affeldt, Pauline, <<Market definition in two-sided markets: theory and practice>>, Journal of Competition Law and Economics, num. 2, 2014, p. 37. All digital platforms constitute an economic activity in themselves, although it is necessary to distinguish the nature, whether onerous or not, of the relationships that take place between the users that intervene in them. For this reason, will be transactional those digital platforms in which all the users interact, transact, directly with each other, after formalizing the contractual link that covers the provision of the service (this is the case, among others, of credit card platforms, which put in contact establishments that allow payment for the goods or services they offer through this payment system and the users who, after enjoying the good or service previously demanded and formalized, pay the amount using a credit card). In non-transactional markets, on the other hand, the sides of the market do not interact directly, but only with the platform (this is usually the case in those markets where advertisers are involved, occupying one of the sides, as in the case of newspapers; In these markets, the advertiser formalizes its relationship only with the platform on which it wants to place its ads, just as the reader does with the intermediary when purchasing the newspaper, with no link whatsoever between advertisers and readers - at least not necessarily or immediately, although it is possible that, as a result of the promotion in the newspaper, the good is purchased or the service is enjoyed, in which case, and only in an optional and mediated manner, both parties would end up interacting directly). Finally, there are some who also speak of innovation platforms to allude to those core platform services (happens with operating systems) that provide the interoperable technological elements so that all ecosystem participants can use them in the creation of new products and complementary services.

(33). Bolás Alfonso, Juan, <<Firma electrónica, comercio electrónico y fe pública notarial>>, Revista jurídica del notariado, num. 36, 2000, p. 31.

(34). Jiménez Horwitz, Margarita, <<La situación jurídica de la plataforma Airbnb en el marco de la economía colaborativa>>, Revista Aranzadi Doctrinal, num. 3, 2019; Mayorga Toledano, María Cruz, <<La intermediación en línea de las plataformas: el caso de Airbnb>>, in González Cabrera, Inmaculada; Del Pino Rodríguez González, María; Fonticiella Hernández, Beatriz (dirs.), Las viviendas vacacionales: entre la economía colaborativa y la actividad mercantil, Dykinson, Madrid, 2019, p. 58.

(35). These information society service providers are defined by article 2.b) DCE [in practically identical terms, annex.c) LSSICE], in a somewhat tautological manner, as << any natural or legal person that provides an information society service>>.

(36). Boboc, Silvia, <<Uber: ¿transportista o intermediaria en el transporte? El caso español>>, Revista de estudios europeos, num. 70, 2017, p. 7.

(37). Judgment of the Court of Justice of the European Union (hereinafter JCJEU) of 20 December 2017, Élite Taxi/Uber, C-434/15, ECLI:EU:C:2017:981. This judgment was subsequently reaffirmed, delineating the contours of what is to be understood as "decisive influence", in JCJEU of 10 April 2018, Uber France, C-320/16, ECLI:EU:C:2018:221.

(38). In the Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committeé of the Regions of 02 June 2016 [COM(2016) 356 final], the Commission outlined guidance for determining when a platform exercises "significant importance". In it, it focuses on price (<<[t]he fact that the collaborative platform only recommends a price or that the provider of the underlying services is free to adapt the price set by a collaborative platform indicates that this criterion may not be met>>) and other relevant contractual terms, such as, for example, the <<[.... ] mandatory instructions on the provision of the underlying service, including any obligation to provide the service>>, as well as (and it is decisive if we analyze cases such as Uber) the ownership of those assets that are key or determinant to be able to provide the underlying service.

(39). Different, however, is the conclusion reached in the JCJEU of 19 December 2019, X/Airbnb, C-390/18, ECLI:EU:C:2019: 1112, where the CJEU holds that Airbnb, by providing its service consisting of putting potential tenants in contact via an electronic platform with landlords, whether professional or non-professional, who offer short-term accommodation services and which, in addition, offers other services, such as a template defining the content of its offer, a photography service, liability insurance and a damage guarantee, a rental price estimation tool or payment services relating to the accommodation services, does not exercise such a decisive influence on the conditions for the provision of the accommodation services to which its intermediation service is linked, since, in particular, Airbnb Ireland does not determine either directly or indirectly the price of the rentals, as stated in paragraphs 56 and 62 of this judgment, nor does it select the landlords or the accommodation offered by them on its platform.

(40). Hacker, Philipp, <<UberPop, UberBlack, and the regulation of digital platforms after the asociación profesional Elite Taxi judgment of the CJEU>>, European review of contract law, num. 14, 2018, p. 82.

(41). Pazos Castro, Ricardo, <<Uber, Airbnb y la llamada “influencia decisiva” de las plataformas digitales>>, Revista de Internet, Derecho y Política, num. 31, 2020, p. 7; Rodríguez Marín, Sara, <<Aspectos jurídicos de la economía colaborativa y bajo demanda en plataformas digitales>>, in Rodríguez Marín, Sara; Muñoz García, Alfredo; Rodríguez Martínez, Francisco (coords.), Aspectos legales de la economía colaborativa y bajo demanda en plataformas digitales, Wolters Kluwer, Madrid, 2018, p. 67.

(42). Judgment of the Commercial Court No. 3 of Barcelona, 929/2014D2, ECLI:ES:JMB:2018:38 ((Legal Basis Three, points 11 and 14).

(43). Schaub, Martien, <<Why Uber is an information society service. Case note to CJEU 20 December 2017 C-434/15 (Asociación profesional Élite Taxi)>>, Journal of European consumer and market law, num. 3, 2018, p. 109.

(44). This is confirmed by recital 70 DSA when it states that <<[a] core part of the online platform’s business is the manner in which information is prioritised and presented on its online interface to facilitate and optimise access to information for the recipients of the service. This is done, for example, by algorithmically suggesting, ranking and prioritising information, distinguishing through text or other visual representations, or otherwise curating information provided by recipients>>.

(45). These other minor and purely ancillary activities are referred to in recital 13 DSA when it states the following: <<[] in order to avoid imposing overly broad obligations, providers of hosting services should not be considered as online platforms where the dissemination to the public is merely a minor and purely ancillary feature that is intrinsically linked to another service, or a minor functionality of the principal service, and that feature or functionality cannot, for objective technical reasons, be used without that other or principal service, and the integration of that feature or functionality is not a means to circumvent the applicability of the rules of this Regulation applicable to online platforms. For example, the comments section in an online newspaper could constitute such a feature, where it is clear that it is ancillary to the main service represented by the publication of news under the editorial responsibility of the publisher. In contrast, the storage of comments in a social network should be considered an online platform service where it is clear that it is not a minor feature of the service offered, even if it is ancillary to publishing the posts of recipients of the service. For the purposes of this Regulation, cloud computing or web-hosting services should not be considered to be an online platform where dissemination of specific information to the public constitutes a minor and ancillary feature or a minor functionality of such services>>.

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