But are online platforms commercial agents?
In theprevious article tried to go
outlining the legal nature of platforms online, retracing
the reasoning path taken by the Court of Justice in the recent
Uber sentences Spain[1], Uber France[2] and Airbnb Ireland[3].
From the study of this
decisions it is impossible to classify platforms online
all within the same legal category, each time having to
evaluate each individual reality, based on the services it offers: the Court
recognised that the Uberpop service, provided by the platform of the same name, should
be qualified as a transport service, while it excluded that the
intermediary service provided by Airbnb could be framed as a
real estate agency relationship, but rather as a 'service
of information societies".[4]
The Court arrived at these
conclusions by analysing in great detail the services of
intermediation that the two platforms concretely provide, starting from the
assumption that, in order to delineate the legal nature of such entities, it is
it is necessary to identify the''main element" that characterises them
through a detailed study of the services provided. In the Uber ruling
reads in fact that:
"the brokering service under discussion [must] be considered as an integral part of an overall service of which the main element was a transport service, and therefore did not qualify as an 'information society service'.[5]
It follows that,
regardless of the qualification given to the relationship by the parties, is
necessary to go from time to time to verify what is the actual
characterising factor of collaboration.
It can reasonably be said that the maxim enunciated by the Court (after all) does not depart too much from national principles on the interpretation of contracts under Art. 1362 et seq. of the Civil Code, according to which a legal transaction must be framed by taking into account what is the actual will of the contracting parties, giving greater weight to the concrete manner in which the relationship is conducted: the nomen juriswhile remaining an element of necessary evaluation,[6] does not constitute a constraint on the judge called upon to decide the concrete case, who remains free to reclassify the relationship by conferring on it the legal character that he considers to be the most correct.[7]
(Cf. on this point: difference between agent and employee, difference between agent and business intermediary, difference between agent and distribution contract).
It is clear, therefore, that if
it is to be understood whether the brokering activity performed by
a platform online can be framed as an agency relationship,
one must not only verify whether the parties have attributed to the relationship
aforementioned qualification, but also to investigate what their common intention was, going
to identify the main element characterising the activity of
brokerage.
The starting point for this interpretation is to determine what an agency contract is; the definition of agent given in Art. 1742 of the Civil Code certainly comes to our aid:
"With the agency contract, one party assumes the task on a permanent basis
to promote, on behalf of the other, against remuneration, the conclusion of
contracts in a given area."
To simplify, the basic elements of such a contract are:
- the promotion of contracts (both goods and services);[8]
- the stability of the assignment;
- the onerousness of the contract;
- autonomy.
In any event, one may go so far as to state that the most typical activity of all those listed above is certainly that of business promotion, to be understood as the work of (steadily) searching for and convincing the potential client, destined to lead in the event of success to the conclusion of a contract between client and principal.[9]
That being said, if agency activity were to be limited to sales promotion, understand whether the intermediation of a platform online can be brought under this contractual scheme would be almost straightforward. In any case, the issue becomes more complicated if one takes into account the fact that the promotion of the deal does not exhaust the tasks exercised by the agent, which normally include a number of preliminary or collateral activities, very often ancillary to the agency contract and functional to it.
The agent must first identify the potential customer, contact him/her and explain the typical characteristics of the products; he/she may be required to hold the principal's products in stock and subsequently deliver them to the buyer, participate in the advertising campaign, as well as be entrusted with the post-sales; he may also carry out technical product support, or be asked to organise and lead an underlying sales network.[10]
(Cf. Agent and/or Area Manager? A brief overview)
As if this were not enough, ancillary activities to the agency contract may also include verifying the correct display and presentation of products at the point of sale, as well as controlling the flow of purchases made there (so-called "sales"). sell out e sell in).[11] In line with this guideline, the Supreme Court has even found it compatible with the agency relationship to perform anancillary activity of "merchandising"namely
"a contract having as its object
object [the choice of modalities for] displaying products in spaces and
on the sales counters of a department store or shopping centre,
in order to make the products themselves more attractive to consumers. "[12]
In summary, case law considers compatible with the agency contract a whole series of complementary activities to the principal one of business promotion, provided (and with the limitation) that such services are not predominant and thus not such as to change the typical cause of the relationship.[13]
Applying the above principles to the electronic marketplace and more specifically to the world of platforms online, it may reasonably be argued that the intermediation activity carried out through such an intermediary may potentially fall within the contractual scheme of the agency contractnot only if the platform performs only a sales promotion activity, but also if it offers further ancillary services, provided that they do not prevail over the main activity.
This
approach, in the writer's opinion, would also be in line with the
case law of the Court of Justice referred to above, taking into account that
this, in ascertaining whether or not the Airbnb platform could be
framed as a 'real estate agent' explicitly took into account the fact
that the main element characterising brokering activities were
related additional services[14] which, although they constituted
"an integral part of a global service"[15]were not such as to
distort the characterising activity provided by Airbnb.
While it is considered that in principle a platform online can work as a commercial agent, it is certainly a very complex task to try to adapt legal principles and jurisprudential guidelines that have been developed over the years solely on 'traditional' agency relationships to this type of market. An attempt will be made below to give the reader some hints that may help in carrying out this interpretative process, going back to the typical and accessory activities of the agency contract referred to above and attempting to understand whether and how they may be adapted to the market onlinealbeit in the knowledge that this is only food for thought on a new and very complex subject.
a) Sales promotion, customer identification and product illustration.
There is no doubt that the identification of a customer within an area can be done through the use of electronic tools such as the SEO[16]product illustration can be rendered through the use of photos, films, descriptions, as well as of live chat prepared directly by the platform, either by personnel assigned to this task (internal or external to the platform), or by automatic response programmes that use algorithms to detect the most frequent questions from customers.
b) Participation in the advertising campaign.
Again, the advertising campaign can be utilised through the use of very accurate digital tools integrated with the platform: think of the best known tool, namely Google Adwordswhich makes it possible to identify in a very precise and detailed manner not only the type of user (and therefore potential customer) towards which an advertising campaign should be directed, but also delimiting the territorial area where to direct such promotions (a means to comply with any zone limits that may be imposed on the platform/agent by the principal)
(Cf. Area exclusivity in the agency contract).
c) Merchandising and sell in and sell out activities of online platforms.
It is certainly not unusual for a platform online can take maximum care of the correct display and presentation of products on its site, automatically suggesting certain products to customers who have already made purchases, or to potential customers on the basis of searches made by them on Google. In addition, the activity of controlling incoming and outgoing sales is very often used as an default from different platforms, which indicate to the user the availability of the products offered on the platform.
d) Storage activities.
This service is also often rendered by many platforms onlineplatform, as it allows companies using the platform to relieve themselves of managing a logistical activity that (particularly with regard to retail) requires a know-how highly developed, which they often do not possess, i.e. they do not have sufficient resources to manage it.
e) Remuneration or commission: commercial agents?
It is very common for a platform to be remunerated by the payment of a percentage of the amount of the completed transaction; this element may also be considered as an indication of a relationship within the scheme of agency, since such remuneration may be framed as a commission on the conclusion of the transaction (pursuant to Art. 1748 of the Civil Code).
(Cf. The agent's right to commission).
It is clear that only a few elements characterising the agency relationship have been briefly developed above, and other equally (if not even more) important points of this type of contract have not been analysed (e.g. the relationship of interdependence between platform and producer, representation, possible social security repercussions, etc.), since this would certainly require a more in-depth analysis. It should be noted, however, that the purpose of this article was certainly not to conduct a comprehensive analysis of this issue, but merely to draw attention to a subject that is as important as it is topical.
In light of the above, not only can it not be excluded that platforms online can carry out the activity of commercial agents, but it is likely that already some platform online is in fact carrying out this activity, without having been classified as such.
In any case, considering the potential of the network and the services that can be rendered through this medium, perhaps we should start thinking that the electronic marketplace should not a priori be considered an 'enemy' tool to the agency relationshipbut rather a means of expanding and enhancing the commercial capabilities of agents and companies. In all likelihood, this model should be increasingly encouraged and possibly integrated within the sales brokerage strategies of the distribution networks of national companies.
[1] Judgment of 20 December 2017, Associación Profesional Elite Taxi vs. Uber Systems
SpainSL.
[2] Judgment of 10 April 2018, Uber France
s.a.s.
[3] Judgment of 19.12.2019 Airbnb
Ireland UC vs. Association pour un hébergemen et un tourisme professionnels.
[4] if you search
within European legislation, the only definition we are given is
that of "online brokerage"referred to in Article 2 of Regulation 2019/1150[6]This standard qualifies
such activity as that performed by the "company services
information', pursuant to Article 1(1)(b) of the directive 2015/1535[7]in turn taken up
by Article 2(a) of the Directive 2000/31[8] on trade
electronic.
[5] Uber Judgment No. 40.
[6] Cass. civ. Sec.
Labour Ord., 2018, no. 18262.
[7] Among many, cf.
Milan Labour Court, 26 October 2017.
[8] Interesting
consider that the directive
86/653 on the coordination of Member States concerning the
agency, only covers agents promoting sales contracts
of goods, whereas our law covers the brokering of any
contract, including the provision of services. The Court of Justice Poseidon
Chartering,Judgment 16.3.2006However, it recognised the
possibility for member states to include the
agency contracts also the provision of services. On this point cf.
Bortolotti, Contracts
of distribution, p. 106, 2016, Wolters Kluwer.
[9] Bortolotti, p. 106,
op. cit.
[10] On the subject of activities
ancillary to the agency contract, cf. Venezia, Il contratto di agenzia, p.
600, 2015, Giuffrè Editore.
[11] Bortolotti,
p. 106, op. cit.
[12] Cass. civ. Sec.
labour, 2004, no. 6896.
[13] On this point Cass. Civ.
2006, no. 1308, Bortolotti, op. cit., p. 118 et seq.
[14] I
services taken into account are those referred to in paragraph 19 of the judgment
i.e. 'In addition to the service of putting landlords and
lessees via its electronic platform of centralised
offers, Airbnb Ireland offers hosts a number of other
services, such as a scheme defining the content of their offer, in
option, a photography service, likewise as an option, insurance for
liability as well as a guarantee for damages up to an amount of
to EUR 800 000. In addition, it provides them with a service
optional to estimate the price of their rental in the light of the averages of
market derived from said platform. [...] Airbnb Payments UK holds the
funds on behalf of the lessor after which, 24 hours after the lessee's entry
in the accommodation, it transmits them to the landlord by bank transfer, thus enabling the
lessee to have the certainty of the existence of the asset and to the lessor the
payment guarantee. Finally, Airbnb Ireland has set up a system
by which the lessor and the lessee can make a judgement
by means of a vote ranging from zero to five stars, a vote that can be consulted on the
electronic platform in question.'
[15]
Airbnb Ireland Judgment, No. 54.
[16] SEO stands for Search
Engine Optimisationor "search engine optimisation".
This term is used to refer to all work and
implementations necessary for a website to have the structure and
content that is easy for search engines to index.
