International Journal of Tourism, Travel and Hospitality Law 2023

INTERNATIONAL JOURNAL OF TOURISM, TRAVEL AND HOSPITALITY LAW rent on its platform. For that reason, the CJEU decided that Article 2 letter a) of the E- commerce Directive should be interpreted in the sense that an intermediation service which, by means of an electronic platform, is intended to connect, for remuneration, potential guests with professional or non-professional hosts offering short-term accommodation, while also providing a certain number of services ancillary to that intermediation service, must be classified as an ‘information society service’ under the E- commerce Directive. Following the Court’s reasoning, the classification as an ‘information society service’ depended on the degree of control that the platform had over the service provided. The lesser the degree of control, the greater the likelihood of being classified as an information society service.34 The assessment of the nature of the performance of the platform does not influence only liability of the platform operator but it substiantially influences the conditions under which the operator is authorized to operate the platform at all. In contrast to the guaranteed freedom to provide information society services, platform-mediated services may be subject to national or EU regulation, including special permit, concession or reporting systems as a prerequisite for authorized business in this area. Relevant decision of the CJEU based the assessment of these issues on the criteria later adopted and further developed by ELI Model Rules for online platforms.35 Under its article 20 Liability of the Platform Operator with Predominant Influence: ‘If the customer can reasonably rely on the platform operator having a predominant influence over the supplier, the customer can exercise the rights and remedies for the non-performance available against the supplier under the supplier-customer contract also against the platform operator’. When assessing whether the customer can reasonably rely on the platform operator ‘s predominant influence over the supplier, the following criteria may be considered in particular according to ELI model rules: a) The supplier-customer contract is concluded exclusively through facilities provided on the platform; b) The platform operator withholds the identity of the supplier or contact details until after the conclusion of the supplier-customer contract. c) The platform operator exclusively uses payment systems which enable the platform operator to withhold payments made by the customer to the supplier; 34 Madiega, T. and Members‘ Research Service, 2020, 5. 35 ELI Model rules on online platforms.