684 COMPETITION LAW IN TOURISM intermediated accommodation, on an on-demand basis, is not an exclusive activity of Airbnb; many other companies operate other online platforms with similar activities8 and others are operating online platforms on a sharing economy basis9. This activity has developed to a highly profitable business, which has attracted not only other hotel and resort specialised online platforms10, but also big hotel and resort chains. The dimension of this market makes it one of the major touristic activities, with a powerful economic, social and legal impact on the destinations. The key to this business is the existence of an online platform, which intermediates the relation between the service provider and the customer. This platform also has other fundamental roles in this triangular relationship: it shapes the contract and imposes many of the contractual clauses, which must be followed both by service providers and customers. On the other hand, the platform’s activity converts the old activity of touristic house rental, with traditional and limited distribution, into an activity with a worldwide dimension and reach. In this context, there are many issues that need closer legal analysis. The doctrine11 identifies some of the main questions about platform-based accommodation, for the EU Member States, which are: • Lack and clear regulation on the Member States about the specific questions raised by sharing economy tourist accommodation. There is no regulation about the nature and activity of online platforms, and each Member State has its own regulation about touristic house rental, forgetting that the central novelty of this activity is the existence of these powerful platforms, which shape all the business and create new and important effects and externalities. These legal provisions are often unclear and provide internal and individual solutions on a transnational activity12. • Also, the protection of housing rights and the control of the negative impacts on the inhabitants of a touristic territory is an essential issue 8 i.e HomeAway, Only-apartments, Wimdu, 9flats, etc. 9 CouchSurfing, HomeExchange, Behomm, Workaway, etc. 10 For instance. Expedia, Booking. There are interesting competition issues related to the platforms and specifically to these mixed platforms, which we will not analyse here. 11 FELIU S. (2018). “Modelos colaborativos en plataformas digitales: Nuevos retos para los Negocios internacionales y para el Derecho Internacional Privado”, Anuario Español de Derecho Internacional Privado, t. XVIII, 2018, pp. 399–424. 12 Authors refer to this question as alegality or paralegality, Vd. HERRERO SUÁREZ, C. (2017). “Las viviendas de uso turístico: ¿el enemigo a abatir? reflexiones sobre la normativa autonómica en materia de alojamientos turísticos”, Revista de Estudios Europeos, n.º 70, julio-diciembre p. 149.
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