The legal anatomy of electronic platforms:a prior study to assess the need of a law of platforms in the EU

Digital economy is nowadays a Platform economy. This pervading expansion of platforms has been triggered by their value-creating ability and trust-generation potential. The emergence and increasing popularity of disruptive models, such as sharing-based economy, crowdfunding or fintech variants, have been greatly accelerated by platformbased solutions. Platforms have also transformed social, political, public and educational contexts by providing participative and collaborative environments, creating new opportunities, facilitating the creation of communities, mobilizing resources and capital, and promoting innovation. Along with these visible social and economic disruptions, platforms are also legally disruptive. Their self-regulating power, the internal relational complexity, and the potential role of platform operators for infringement prevention and civil enforcement in a possible policy shift towards an increasing intermediaries’ responsibility have triggered regulatory interest. The aim of this Paper is to examine the platform model in order to explore the legal anatomy of electronic platforms and identify the key issues to consider for possible legislative actions in respect of the same within the context of the European Union (EU) Digital Single Market. First, the analysis concludes that existing transaction-oriented rules are insufficient to fully cover all legal angles of platforms and do not capture its ‘institutional dimension’. Regulations would have to define operators’ obligations in relation to users’ protection, transparency, prevention or private enforcement. Then, the first key regulatory issue to consider is the role that platform operator may or should play. Second, the analysis reveals that the binominal division of information society service providers is not entirely consistent with the actual role of platform operators for the purposes of the application of the specific intermediary liability rules. Thus, the adoption of a set of uniform criteria under which the platform operator might be deemed as an intermediary, and the devising of a common liability regime for platforms would be critical areas to focus regulatory attention on. Third, as the community-based architecture of platforms enables the articulation of decentralized trust-generating mechanisms (reputational feedback systems, recommender systems, rating and listing), it would be pertinent to consider the elaboration of uniform concepts regarding those decentralized reputational systems, speculate on possible common criteria in design and operation (good practices, standards), and ultimately clarify liability scenarios

Work stream on differentiated treatment:Final report

This report analyses practices of differentiated treatment, whereby a platform applies dissimilar conditions to business users in equivalent situations, and explores the extent to which such practices constitute a potential source of “unfairness” in the relationship between platforms and businesses in the online platform economy. A distinction is made between practices of self-favouring, whereby a platform gives preferential treatment to its own vertically integrated activities over those of rivals, and more general practices of differentiated treatment where one or more business users are treated more favourably than one or more others. The report aims to provide guidance on how to assess the impact of differentiated treatment by online platforms from a technical, economic and legal perspective, and identifies areas requiring further scrutiny because of the especially problematic nature of certain practices implemented by platforms. Special scrutiny seems particularly needed for practices of differentiated treatment by vertically integrated platforms that are dominant or whose consumers single-home and have high switching costs. In these circumstances, the relevant harms can outweigh the efficiencies of differentiated treatment. Another area of attention is differentiated treatment that significantly harms business users and for which the platform does not have a legitimate justification. The extent to which legitimate reasons invoked by a platform can justify harm to businesses is a key issue for future consideration. Significant harm to business users may translate into consumer detriment through less choice and diversity of offerings. Specific future prohibitions of certain problematic practices of differentiated treatment to promote diversity, fairness or equality of opportunities for businesses should be coupled with effective monitoring and enforcement mechanisms. Two areas are of particular concern: 1) the observability of differentiated treatment by platforms arising from techniques such as personalisation and localisation; (2) the availability of effective redress for businesses against the restriction, suspension or termination of service by platforms

How, if at all, Should Credit Rating Agencies (CRAs) be Regulated?

The role of credit ratings agencies (CRAs) is to forecast the probability that the issuer of a debt liability will default on the due repayment (its probability of default, PD). In this respect, CRAs are one of a large set of institutions and people who seek to forecast certain aspects of the future. As a generality, the only, or at any rate the most important, requisite of a forecast is its accuracy. So long as the forecast is accurate, it is largely beside the point how the forecaster behaves otherwise, whether they lead a blameless life, or alternatively are rude to their parents, beat their children or cheat on their spouses, etc. Moreover, in the case of CRAs, (unlike the Delphic oracle), the forecast is not only relatively clear in content, (though we shall consider later how it could, and should, be made even clearer), but also the status of the event being forecast, i.e. whether the issuer defaults, or not, on due repayment, is also relatively clear – and any remaining fuzziness often becomes subject to a legal decision. So the forecasting activities of CRAs should be susceptible to ex post accountability. Compare forecast with out-turn; assess and publish the comparative accuracy of the various CRAs' and leave competition to do the rest. We shall review what extra steps need to be taken to enhance such ex post accountability, comparing forecast with outcome, and comment briefly on how, perhaps, to enhance competition

The evolution from sector-specific regulation towards competition law in EU telecom markets from 1997 to 2011: Different effects in practical implementation

The telecommunications markets in the European Union have gone through a period of rapid technological as well as economic change. After the market opening in the late 1990s, the approach to regulate these markets has likewise changed over time. Whereas a sectorspecific framework dominated the phase from 1998-2002, a more prominent role of competition law regulating telecommunications markets has become visible within the last years. The two reviews of the regulatory framework (2002 and 2010) have seen sector-specific measures being scaled back and competition law measures gaining a more prominent role. This paper tries to analyse the development from sector-specific regulation towards competition law in its application to telecommunications markets in the EU. It draws conclusions from the changes in the different reviews and demonstrates how these modifications of the framework have taken place. Additionally, the practical implementations are analysed with respect to two countries. Despite the fact, that EU member states are following a joint approach (EU framework), there are still differences on the national level as regards the application of regulatory instruments and the regulation of specific markets. This can be demonstrated by looking at how national regulatory authorities conduct the process of for example market definition, market analysis, SMP designation and levying of remedies. In the paper Germany and Austria are analysed, two neighbouring countries, with similar principles in the transposition of EU frameworks into national legislation, but with strongly different outcomes as regards specific regulatory measures in terms of e.g. market analysis, price regulation, organisation of the regulatory authorities etc. Thereby we demonstrate that although the EU framework tends to achieve harmonisation, there are still a number of differences between member states in practical implementation. The paper is organised as follows: after the introduction in section 1, section 2 draws the picture of the development of the most important elements of the EU regulatory framework over time. Thereby. we specifically look at the issues of market definition, analysis and dominance designation but also issues of access and interconnection are analyzed. This encompasses conclusions regarding the overall trends of development in the design of the EU regulatory framework. Section 3 analyses the corresponding developments in the Austrian and the German telecommunications act, especially with respect to the balance between the role of sector-specific regulation and competition law in national legislation. This is done be looking at some specific topics such as, market definition and analysis, organization of the regulatory authority, potential conflicts between regulatory authority and competition authority regarding competences and responsibilities, possibilities of enforcement, and the treatment of margin squeeze. Section 4 contains our conclusions with respect to the practical implementation in member states against the overall goal of harmonisation and demonstrates differences in the way EU legislation has been transposed to national legislation in a comparison between Germany and Austria. --