236 LEGAL IMPACTS OF COVID-19 IN THE TOURISM INDUSTRY that improve its provision. The Court believes that, despite what has been said in the proceedings, “the severable nature of the intermediary service provided by this company and, consequently, its classification as an “information society service” cannot be called into question, since it does not substantially alter the specific characteristics of that service”. It adds that it would be paradoxical if these additional services, whose purpose is to provide added value to those offered by the platform, to differentiate it from its competitors, were to be turned against it, to change the legal nature of the platform and the legal classification of the activity it carries out (64). The Court’s response is also in line with the position already adopted years ago by the Commission, in A European agenda for the collaborative economy, when it states that “a collaborative platform offering services in the short-term rental sector can only provide Information Society services and not the hosting service itself as well if, for example, the hosting service provider sets its prices and the platform does not own any of the assets for the provision of the service”. It also adds that “the fact that the collaborative platform can also offer insurance and rating services to its users need not alter this conclusion”26. The judgment is consistent with the Commission’s recommendations to discriminate when the collaborative platform provides an Information Society service and when the underlying service, which will require attention to the following elements: (i) the level of control or influence that the platform can exercise over the specific service provider; (ii) who determines the price to be paid for the provision; (iii) who sets the contractual conditions; (iv) whether the platform has assets to provide the specific hosting service; (v) whether the platform bears the costs and bears all the risks related to the provision of the underlying service; or (vi) whether there is an employment relationship with the host27. These factors will all be evidence that will contribute to the discrimination of its status as a provider of the underlying service and consequently to its status as an ISS provider28. We see, therefore, that Airbnb does not seem to fit the 26 COM (2016) 356 final, p. 7. 27 COM (2016) 356 final, pp. 6 et seq. 28 Certainly, the Commission understands that, where these criteria are met, there are clear indications that the collaborative platform exercises significant influence or control over the provider of the underlying service, which may, in turn, indicate that, in addition to providing an Information Society service, it should be considered as providing the underlying service. According to MIRANDA SERRANO, L. M., “La determinación de la naturaleza jurídica de los servicios que prestan las plataformas digitales en la economía colaborativa”, La Ley Mercantil, no. 50, 2018, electronic edition, p. 11, two questions can be raised because of this situation: the first is whether the list of criteria offered by the Commission to specify whether the platform provides the underlying service is closed or exhaustive; and, the second is whether all the criteria must be met to be able to assert that the digital platform exercises significant control or influence over the service providers. In his opinion, the only decisive element or criterion which the lawyer must take into account is the existence of decisive control or influence on the part of the platform to determine whether it is the provider of the underlying service. This control will exist “when the platform has the necessary
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