Annexes to COM(2016)356 - European agenda for the collaborative economy - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2016)356 - European agenda for the collaborative economy. |
|---|---|
| document | COM(2016)356  |
| date | June 2, 2016 |
An example of good cooperation between tax authorities and collaborative businesses comes from Estonia. In cooperation with ride-sharing platforms, the aim is to simplify the tax declaration process for drivers. Transactions between the driver and the customer are registered by the collaborative platform, which then only sends the data that is relevant for taxation purposes to the authorities, who will then pre-fill taxpayer tax forms. The main idea is to help taxpayers fulfil their tax obligations effectively and with minimum effort.
Reducing administrative burden
Economic growth is best supported by measures that aim to reduce the administrative burden on individuals and businesses without discriminating between business models. To this end, an efficient exchange of tax-related information amongst platforms, authorities and service providerscan help reducing costs. The creation of one-stop shops and the development of online feedback mechanisms can also create new possibilities for partnerships and compliance monitoring.
However, different approaches by national tax authorities toward the treatment of platforms can increase the administrative burden on collaborative activities. These may include different views on the business scope of platforms with respect to the services they provide; the criteria used to link their activities to a tax jurisdiction, the employment relationship between services providers and platforms, as well as general compliance requirements and auditing procedures.
The development of commonly agreed standards to tackle these issues in a coherent manner, taking into account the elements clarified in the previous sections of this Communication, as well as moving more administration online, could help in this respect.
Value added tax
Supplies of goods and services provided by collaborative platforms and through the platforms by their users are in principle VAT taxable transactions. Problems may arise in respect of the qualification of participants as taxable persons, particularly regarding the assessment of economic activities carried on, or the existence of a direct link between the supplies and the remuneration in kind (for instance in case of ‘bank’ type arrangements where participants contribute goods or services to a common pool in exchange for the right to benefit from that pool).
The Commission is preparing several initiatives to enhance the capacity of tax administrations within the framework of the Action Plan on VAT. 55 This includes extending to the supply of goods the VAT one-stop shop for electronic services, starting a pilot project to improve cooperation between tax administrations, and publishing a guide for cooperation between tax authorities and businesses in e-commerce.
Member States are encouraged to facilitate and improve tax collection by using the possibilities provided by collaborative platforms, as these already record economic activity.
Collaborative platforms should take a proactive stance in cooperating with national tax authorities to establish the parameters for an exchange of information about tax obligations, while ensuring compliance with legislation on the protection of personal data and without prejudice to the intermediary liability regime of the e-Commerce Directive.
Member States are invited to assess their tax rules to create a level playing field for businesses providing the same services. Member States should also continue their simplification efforts, increasing transparency and issuing online guidance on the application of tax rules to collaborative business models.
3. Monitoring
The collaborative economy spans across several sectors in a rapidly changing landscape. Given this dynamic and evolving nature, the Commission intends to establish a monitoring framework covering both the evolving regulatory environment and economic and business developments. The monitoring will aim to follow trends on prices and quality of services, and identify possible obstacles and problems encountered, in particular when they arise from divergent national regulations or regulatory gaps.
The monitoring tools will include:
1. Periodic surveys of consumers and businesses on the use of the collaborative economy. 56
2. Ongoing mapping of regulatory developments in Member States.
3. Stakeholder dialogue in the framework of the Single Market Forum, with twice yearly forums to assess sector development on the ground and to identify good practices.
4. The results of the monitoring of the collaborative economy will be summarised in the Single Market Scoreboard.
The monitoring activity 57 will also contribute to the Commission’s ongoing work 58 on the single market in view of facilitating innovation and entrepreneurship. Given the dynamic character of collaborative economy business models and the rapid development of data-driven digital technologies, further policy issues may emerge from ongoing or new data collection and research, and may need to be addressed. Collaborative platforms should cooperate closely with the authorities, including the Commission, to facilitate access to data and statistical information in compliance with data protection law.
The monitoring activity and its tools are, in any case, without prejudice to Commission's enforcement of existing EU legislation which will continue in line with the principles expressed in this Communication.
4. Conclusion
In view of the significant benefits that new collaborative economy business models can bring, Europe should be open to embracing these new opportunities. The EU should proactively support the innovation, competitiveness and growth opportunities offered by modernisation of the economy. At the same time, it is important to ensure fair working conditions and adequate and sustainable consumer and social protection. For this to happen, citizens and businesses should be aware of the rules and obligations applying to them, as clarified in this Communication. Member States are encouraged to clarify their national situation in a similar way. The Commission stands ready to work with Member States and relevant authorities to support them in this process.
The guidance provided in this Communication aims at supporting consumers, businesses and public authorities to engage confidently in the collaborative economy. It will also support Member States to consistently apply EU law across the single market. The Commission will continuously review developments in the European collaborative economy, collect statistical data and evidence and work with Member States and stakeholders also to exchange best practices. The Commission looks forward to engaging in a dialogue with the European Parliament, the Council and Member States to ensure the best possible environment for citizens and businesses in the collaborative economy.
(1) It is estimated that collaborative platforms operating in five key sectors of the collaborative economy generated revenues of EUR 3.6 bn in 2015 in the EU: accommodation (short-term letting); passenger transport; household services; professional and technical services, and collaborative finance. All figures are based on estimates of PwC Consulting as part of a study contracted by the European Commission.
(2) EPRS: The cost of non-Europe in the Sharing Economy. January 2016.
(3) A Eurobarometer opinion poll found that 52 % of EU citizens are aware of the services offered by the collaborative economy and 17 % have used such services at least once. A presentation of the results of the Eurobarometer poll and the public consultation carried out from September 2015 to January 2016 can be found in the accompanying Staff Working Document.
(4) Issues related to crowdfunding activities (addressed by the Commission’s Communication COM/2014/0172) and services provided by learning platforms are not covered by this Communication.
(5) COM(2015) 550.
(6) The guidance provided in this Communication focuses on economic activities. Collaborative economy services can be offered for free, on a cost-sharing basis or against remuneration. For many Member States, pure cost-sharing activities or transactions making services available as part of an exchange, do not involve remuneration. Only remunerated activities constitute an economic activity under EU law. See Case C-281/06 Jundt [2007] ECR I- I-12231 §32, 33. Importantly, even if the transaction between a service provider and a user does not constitute an economic activity, this may still be the case for their respective relationship with the collaborative economy platform. Each relationship (platform-user; platform-service provider; service provider-user) must be assessed separately.
(7) The term collaborative economy is often interchangeably used with the term ‘sharing economy’. Collaborative economy is a rapid evolving phenomenon and its definition may evolve accordingly.
(8) Collaborative economy services may involve some transfer of ownership of intellectual property.
(9) See Article 9 and 16 of Directive 2006/123/EC (‘the Services Directive’) and Articles 49 and 56 of the Treaty on the Functioning of the European Union (TFEU).
(10) For a list of overriding reasons relating to the public interest under the Services Directive see its Article 4 (8).
(11) See Recital 39 and Article 4 (6) of the Services Directive on the concept of ‘authorisation’.
(12) See Article 59 of the Professional Qualifications Directive 2005/36/EC. The proportionality and the necessity of national regulations on regulated professions will be further discussed in two forthcoming Commission initiatives (guidance on reforms needs on regulated professions and the proportionality test for regulated professions).
(13) COM(2015) 690 final, of 26.11.2015, Communication on the Annual Growth Survey 2016: Strengthening the recovery and fostering convergence
(14) See Articles 10 and 11 of the Services Directive.
(15) See Article 13 of the Services Directive.
(16) COM(2016) 179 final of 19.4.2016, Communication on EU eGovernment Action plan 2016-2020 – Accelerating the digital transformation of government
(17) The Services Directive for example defines service providers as any natural or legal person who offers any self-employed economic activity, normally provided for remuneration (see Article 4 (2)). This means that any economic activity could be captured by the rules of this Directive regardless of the frequency it is offered and without requiring that the provider necessarily acts as ‘professional’. In addition, EU consumer acquis defines 'trader' as any person acting for the purposes relating to his trade, business, craft or profession (see section 2.3).
(18) See Article 2(a) of Directive 2000/31/EC ('e-Commerce Directive') and Article 1(1)(b) of Directive 2015/1535. See also Annex I to that latter Directive for an indicate list of services not covered by this definition.
(19) See Article 4 of the e-Commerce Directive.
(20) See Articles 2 and 3 of the e-Commerce Directive. The country of origin principle for the freedom to provide information society services cross-border can only be derogated from when there is a threat or a serious and grave risk to undermine the following four objectives: public policy, protection of public health, public security, including the safeguarding of national security and defence and protection of consumers. In that case the national measures in question must still be proportionate and certain procedural conditions (including notification to the Commission) must also be respected.
(21) i.e. that they are non-discriminatory, necessary to attain a clearly identified public interest objective and proportionate to achieving this interest (i.e. imposing no more requirements than strictly needed)
(22) The actual rating/review is undertaken by the user, not the collaborative platform.
(23) Article 14 of the e-Commerce Directive.
(24) In the context of the collaborative economy hosting can broadly speaking be understood as the activity of dealing with the storage of customer data and providing the venue where users meet providers of the underlying services. The exemptions under Articles 12 and 13 of the e-Commerce Directive would usually not apply in this regard, as collaborative platforms normally do not provide ‘mere conduit’ or ‘caching’ services within the meaning of those provisions.
(25) As per section 4 of the e-Commerce Directive. In joined cases C-236/08 to C-238/08 Google France/Louis Vuitton, the CJEU underlined the key criterion when an online platform is deemed an ‘intermediary service provider,’ referring to recital 42 to Directive 2000/31/EC. According to this recital, information society services are meant to provide the technical process of operating and giving access to a communication network over which information made available by third parties is transmitted or temporarily stored, for the sole purpose of making the transmission more efficient; this activity is of a mere technical, automatic and passive nature.
(26) Case C324/09 L’Oréal/eBay. This is without prejudice for courts and national administrative authorities to require the collaborative platform to terminate or prevent an infringement. See Article 14(3) e-Commerce Directive. A comprehensive background on the intermediary liability regime is contained in the Commission's Staff Working Document "Online services, including e-commerce, in the Single Market", SEC(2011) 1641 final.
(27) As set out in Article 15 (1) of the e-Commerce Directive.
(28) COM(2016) 288/2 of 25 May 2015, Communication on online Platforms and the Digital Single Market Opportunities and Challenges for Europe
(29) In that respect, some courts exclude liability protection if the hosting-related aspects of a service are not the most important aspects of the service. See to this extent the decision of the Court of Paris in Louis Vuitton Malletier / Christian Dior Couture and Parfums Christian Dior, Kenzo, Givenchy et Guerlain v. eBay all issued by the Commercial Court of Paris, First Chamber, on 30 June 2008. An opposite view was taken by a Greek court in the Greek case No 44/2008 of Rodopi Court of First Instance, published in (2009) Armenopoulos, 406.
(30) Article 2(b) Directive 2005/29/EC ('Unfair Commercial Practices Directive').
(31) Article 2(a) Unfair Commercial Practices Directive.
(32) For business to consumer transactions in the collaborative economy, the Unfair Commercial Practices Directive, Directive 2011/83/EU ('Consumer Rights Directive') and Directive 93/13/EEC on Unfair Terms in Consumer Contracts would apply. For business to business transactions, Directive 2006/114/EC on Misleading and Comparative Advertising would apply.
(33) An ongoing Commission study on consumer issues in the collaborative economy will map relevant national legislation in the 28 Member States.
(34) SWD(2016) 163 final, of 25 May 2016, Guidance on the implementation/application of Directive 2005/29/EC on unfair commercial practices
(35) For example, pursuant to Article 6 of the Consumer Rights Directive, Article 22 of the Services Directive and Article 5 of the e-Commerce Directive.
(36) For example, pursuant to Article 5 of the e-Commerce Directive.
(37) Data protection rules, currently contained in Directive 95/46/EC, have been reviewed recently. The new General Data Protection Regulation (EU) 2016/679, OJ L 119, 4.5.2016, p. 1, shall apply from 25 May 2018.
(38) Based on statistics from Eurostat.
(39) COM(2016) 127 final. The public consultation on the European pillar of social rights was launched on 8 March 2016 and will run until 31 December 2016.
(40) In accordance with its competences as set in Article 153 of the Treaty on the Functioning of the Union
(41) EU labour law includes Directives regulating workers’ rights and obligations. They refer to limits to working time including the right to paid annual leave, to daily and weekly rest and protection in case of night work, as well as information on individual employment conditions, rights for posted workers, prohibition of discrimination against workers in non-standard forms of employment (e.g. part time, fixed term or workers employed under temporary agencies), protection in case of insolvency of employers, protection against discrimination on protected grounds as gender, ethnicity, sexual orientation. They also include protection in case of collective redundancies or in case of transfer of undertakings or in case of cross-border mergers. It provides for the involvement of workers — information and consultation, and board-level worker participation in some circumstances. In the area of health and safety at work, general principles concern the prevention of occupational risks and the protection of the safety and health of workers at the workplace.
(42) For the purpose of applying national labour law, Member States remain free to extend the EU concept of worker to situations that do not fall under the EU definition. If the assessment of the existence of an employment relationship is linked to the applicability of some specific instruments of EU law (Working Time Directive 2003/88/EC) and Collective Redundancies Directive 98/59/EC), then national definitions of workers are not relevant. In addition, the definitions given by national laws are always subject to the assessment by national or European courts.
(43) COM(2010) 373 Reaffirming the free movement of workers: rights and major developments. Point I.1.1 http://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1453133735571&uri=CELEX%3A52010DC0373 .
(44) Directives on working time (Isère (C-428/09)), on collective redundancies (Balkaya (C-229/14)) and employment equality ('O' (C-432/14)). Other labour law Directives expressly refer to the Member States understanding of who is a worker, as long as these respect the effectiveness of EU law, with reference to O’Brien case (C-393/10).
(45) See also COM(2010) 373 final, pages 4-6.
(46) Jany and Others v Staatssecretaris van Justitie (C-268/99).
(47) 'The rise of the 'just-in-time workforce': on-demand work, crowdwork and labour protection in the 'gig economy', Valerio De Stefano, ILO Conditions of Work and Employment Series No. 71 , 2016, p. 17
(48) Danosa (C-232/09); see also De Stefano, ibid, page 16
(49) For more details on the actual assessment of 'genuineness of work' by CJEU, as well as in the Member States (e.g. using earning or hour-based thresholds) in the context of free movement of workers, see 'Comparative Report 2015 - The concept of worker under Article 45 TFEU and certain non-standard forms of employment',, FreSsco network for the European Commission
(50) Ninni-Orasche (C-413/01)
(51) Kempf (C- 139/85)
(52) Raulin (C-357/89)
(53) Bettray (C-344/87)
(54) An overview of initiatives can be found in the Staff Working Document accompanying this Communication.
(55)
COM(2016) 148 final, of 7.04.2016, Communication on an action plan on VAT; Towards a single EU VAT area - Time to decide
(56) In addition, information will be drawn from official statistics and third party reports.
(57) The core elements will be complemented with data and insights from third party reports, possible data analytics and web scraping, and official statistics to the extent information is available..
(58) Existing or future REFIT exercises may also identify areas where further intervention is needed.