International Journal of Tourism, Travel and Hospitality Law 2023

MODERNISATION OF INFORMATION REQUIREMENTS FOR CONSUMERS party status by passing to the consumer the third party’s declaration.75 The prerequisites, and the way in which the provider obtains a declaration from the third party, are not provided for in the UCDP. Legal relations between the provider of the online marketplace and the third party regarding the provision of the declaration are determined by their mutual contractual relationship and the law applicable to it.76 Information on the legal status of the third party offering a product or a service is of extreme importance for the consumers for two reasons. By specifying the data on the legal status of the third party, the consumer’s misapprehension that the contract is entered into directly with the platform is removed.77 In addition, the consumer is indirectly informed about whether he is entitled to protection under the EU rules on consumer protection. If the third party is not a trader78, the EU material and procedural rules on the protection of consumers in consumer contracts do or whether such service is actually an integral part of another service such as accommodation or transportation service. Exemption of liability is possible only if intermediary service is really involved, not forming an integral part of services offered via platforms whose main component is an offline service. In addition, it will also depend on this distinction whether Directive on Electronic Commerce applies to the service offered via online marketplace or other rules on the provision of a particular type of services (e.g. Services Directive). See, for example, the judgment of 20 December 2017, Asociación Professional Elite Taxi, C-434/17, ECLI:EU:C:2017:981; judgment of 10 April 2018, Uber France, C-320/16, ECLI:EU:C:2018:221; judgment of 19 December 2019, Airbnb Ireland, C-390/18, ECLI:EU:C:2019:1112; judgment of 22 September 2020, Cali Apartment, C-724/18, ECLI:EU:C:2020:743, See Busch, Ch., Mak, V. (2021, p. 110; Duinvenvoorde, B. (2022), pp. 49,50; 75 In this regard also recital 28, Omnibus Directive. 76 However, another question is how to treat the acting of the provider of an online marketplace who did not do anything in terms of engaging in checking the statement of a third party (e.g. if the third party is really a trader), particularly in the cases of reasonable doubt in the accuracy of the third party’s statement or any knowledge of its inaccuracy. Whether the provider’s acting may be considered as unfair commercial practice because of being contrary to the requirements of professional diligence can then be assessed on the basis of general rule on unfair commercial practices referred to in Art. 5/2 UCPD. In such cases, general rules of the national tort law on duty to care could also be applied. See Loos (2020), p. 418; Busch, Ch., Mak, V. (2021), p.113; Duinvenvoorde, B. (2022), pp. 49, 50. 77 Information on whether a third party offers the product or service is important also for the provider of online marketplaces. This information is also important for the exclusion of the liability of online marketplace for third party’s obligations which may be activated if the consumer is not aware of entering into a contract with a third party and not with the platform. In literature, we find information on the possibility applying accordingly case law of the CJEU: C-149/15, Wathelet, although in this case the offline market was involved. See Narciso, M. (2022b), p. 149. 78 According to case law of the CJEU, the classification of a natural person as a ‘trader’ requires a ‘case-by-case approach’. See Duivenvoorde, B. (2019), p. 224. On the criteria for determination of the status of a natural person as ‘a trader’ see the judgment of 4 October 2018, Kamenova, C-105/17, ECLI:EU:C:2018:808, para. 38. In the Kamenova case, C-105/17, the CJEU also found that “the mere fact that the sale is intended to generate profit or that a person publishes, simultaneously, on an online platform a number of advertisements offering new and second-hand goods for sale is not sufficient, by itself, to classify that person as a ‘trader’, within the meaning of Article 2(b) of Directive 2005/29 and Article 2(2) of Directive 2011/83” (judgment of 4 October 2018, Kamenova, C-105/17, para. 40).