TOURIST RENTALS MEDIATED BY PLATFORMS AND COMPETITION LAW 641 guarantee the development of platform capitalism (Cfr. Scholz, 2014). At the same time, they illustrate that: 1) questions about the scope of property rights are limited; 2) the right to housing plays a secondary role in relation to property rights, the right to freedom of enterprise and the right to freely choose the profession or trade; and 3) short term rentals made by private individuals and mediated by platforms, require a legal regime with certain similarities to that of real estate professionals. II. CONTROVERSIAL ISSUES IN REGULATION Much of the literature coincides with the difficulty involved in accurately delimiting the nature of the actors involved in the activities of the sharing economy. At the same time, a relevant part of the literature highlights the complexities of framing these activities in the most appropriate legal figure (Fernández, 2018; Alfonso, et al., 2017; Aznar, 2017; Raso, 2017; Interian, 2016). These, among other issues, have been the object of technical-legal controversies in which there are ideological disputes. In relation to the classification of platforms according to the type of activity they carry out, the fact as to whether they are information society service providers (ISSPs) or subjects involved in a rental contract (Cfr. Fernández, 2018) has been discussed. The first option, according to European regulations, implies that Airbnb and other similar platforms would be governed by the legislation of the State where they are established. In this case, the principle of freedom to provide services prevails, so that States may not require prior authorisation or other equivalent requirements, and the powers of States to restrict and/or cease the services they provide are limited by exhaustive reasons. The second option excludes the legal regime of ISSPs and implies greater responsibility, towards the final customer, for the product/service provided. Apart from the theoretical debate, the European Commission (2016) established three criteria to determine whether a platform has gone beyond mere intermediation, and therefore could not be considered as an ISSP. They are: 1) price fixing; 2) setting essential contract conditions; and 3) assets’ ownership. These budgets encourage platforms such as Airbnb to be considered as ISSPs, and thus to be under the legal regime discussed above, throughout the European Union. This situation, along with the fact that there are no specific regulations at a European level, raises questions as to the extent to which other European
RkJQdWJsaXNoZXIy MTE4NzM5Nw==