sou · H5B326 · 2017-04-03 00:00:00 — Thus it should be stressed that the hire by private individuals of objects such as cars and machinery is taxed as capital gains at a thirty per cent rate. In contrast, income from services that does not constitute business income is taxed as income from a hobby or individual assignment and benefits from a tax deduction of every year. Income derived from for instance providing services in the sharing economy, which exceeds this tax deduction, is added to other income from services, such as a salary or pension, and is taxed diffe- rently in each case depending on the amount of the marginal tax. The sharing economy internationally There has so far been no binding EU legislation pertaining directly to activities in the sharing economy. However, the growth of this economy has been noted by the Commission in a number of policy documents within the work aiming to achieve a more effective single market, and in particular its digital sector. The notifications by the Commission relating to aspects such as the sharing economy and online platforms highlight both the opportunities and concerns regarding the question of the rights and obligations of users and platforms. The aim is to achieve a balanced and sustainable development of the sharing economy. An international perspective shows that few countries have so far applied systematic national measures to promote or, if required, regulate the sharing economy. Among those European countries that have come furthest in analysing the function and effects of the sharing economy and applied measures are , and . The French measures include new legislation in force from October 2016.2 This stipulates e.g. that sharing platforms must apply clear and easily accessible general conditions. Summary: Sharing economy – on the terms of the users data shall be made available via the Internet “in a format that can be easily reused”. This includes source code from software and algo- rithms that are used to handle data within the sphere of public administration, such as for calculating income tax. Moreover, the platforms must send an annual summary of their generated income to their users. Finally, it should be noted that private individuals should also pay social fees and register as traders if their income exceeds certain levels. Thus for hiring accommodation via a plat- form such as Airbnb, an annual sum of €23,000 applies, correspon- ding to about ,000. For hiring cars, boats, lawnmowers and similar items, the figure is €7,720 annually, corresponding to about ,000. The national measures taken in do not primarily concern new legislation. However, an exception is the new tax de- duction which was introduced in order to promote transactions within the sharing economy. In the first place, the measures concern in- formation services, quality certification of the sharing economy platforms and, in the absence of specifically adapted constitutional rules, standardised rental contracts for the short-term rental of private . These are examples of measures which in practice presuppose the existence of functioning trade association bringing together sharing economy platforms. That is the case in , where the trade association SharingEconomyUK plays an important role, not least as regards the quality certification of these platforms. In , a legal proposal is currently being prepared for the regulation and registration of these platforms. It also requires them to deduct the users’ preliminary tax on income from all sharing economy transactions. This tax is accounted on the basis of a new income law, and at 10 per cent up to a limit of €10,000 annually, lower than the tax on other service incomes in . The enquiry has not found any examples of legislation being introduced or considered with the aim of regulating the legal rela- tionship between the users in the sharing economy. In contrast, there are examples, as we have seen, of legislation which regulates the acti- vity of platforms and certain user-related aspects such as monito- ring records and tax deductions. It seems to be the case that the reviewed countries are still looking into whether the existing rules Summary: Sharing economy – on the terms of the users of market law can be applied to companies that run sharing eco- nomy platforms. The Nordic countries have not got quite that far. Here, the sharing economy and its various user aspects are currently under study. In , the governmental presented several proposals in February 2017 aiming to strengthen and clarify the position of the users, like extending the mediating function of in consumer disputes to cover disputes be- tween private individuals. also calls upon public authorities and companies to initiate a dialogue on the develop- ment of industry standards for sharing economy platforms.3 The term “the so-called sharing economy” is found in the first line of the government’s directive (Dir 2015:136). This expression indicates that the term and its meaning are not completely clear or generally known. In contrast, the phenomenon of a sharing economy is better known, especially if operators with broad media exposure such as Airbnb or Uber are named as examples. One reason for this is that the sharing economy is highly diver- sified, with its operators extending over a broad range of different goods and service areas, and may be non-profit, commercial, multi- national or geographically limited to an urban centre, suburb or district. The sharing economy is quite simply a phenomenon that is hard to pin down. It has been the object of significant media interest in recent years. It has and continues to evoke considerable debate and many questions. Many new studies and reports deal with the sharing economy. From a historical perspective, it is often the case that the signi- ficance of new phenomena can be vaguely felt while their character, extent, meaning and effects remain unknown, diffuse, hopeful or scary depending on who is observing them. It has always been easy to overestimate or underestimate the significance, advantages and dangers of new phenomena in our epoch such as railways, cars, electricity, home videos, satellite TV, the 3 NOU 2017:4, page 22. Summary: Sharing economy – on the terms of the users Internet, e-commerce or the sharing economy. In , the memo- rable phrase “the Internet is merely a passing fad!” has come to illustrate how, in the light of history, a new phenomenon can be completely re-evaluated within a short time. E-commerce, which began to be introduced in the late 1990s, produced fast and dramatic effects, such as a stock market bubble which burst, major business failures in the wake of overly optimistic investments () and, like the sharing economy, an intensive debate and similarly intensive studies by interested organisations, governments and public authorities in many countries. The “so- called” e-commerce has over time improved market transparency and produced a wider range and lower prices thanks to increased competition to the benefit of the consumers. Both regulations and consumer information were important components in this develop- ment. The enquiry is tasked, among other things, to determine to what extent existing legislation is fit for purpose in the sharing economy or whether there is a need for constitutional changes or other measures. In practice, there is a lack of regulations, adapted to sharing economy transactions between mutual users. It is unusual for this legal relationship to be regulated in contracts, apart from the price, time and place of the transaction. This means that the legislation for this relationship cannot be considered as fit for purpose. In fact, it is nearly absent. The same applies to contracts between companies such as hiring and service agreements. In this context, however, con- ditions are often regulated by more or less standardised contractual conditions which are issued by one of the parties or developed by a trade association. A central question in the relationship between users is if the supplying party should be considered as a trader. The above con- siderations have shown that the threshold to trader status is low. A private individual who offers a certain type of service in the sharing economy on more than a few occasions and in a professional may be considered as a trader after legal examination. This applies irrespective of whether there is a profit motive or whether the operations constitute a business from a fiscal perspective. This may constitute an obstacle to the sharing economy and the question then arises as to whether special regulations should be in- troduced which create some kind of free zone for transactions in Summary: Sharing economy – on the terms of the users the sharing economy. This would then mean that the threshold to a status as a trader would be raised specifically for the transactions of the sharing economy but not in other similar cases. However, from the viewpoint of the enquiry, such an arrange- ment would be problematic for several reasons. Consumer law has been applied since the early 1970s when the first consumer sales law and the first law on the contractual conditions in consumer relation- ships came into force. Subsequently, several laws were introduced in the sector of consumer law. With time, extensive practical ex- perience has also been gained, not least by (), as regards the interpretation of the terms consumer and trader. The question of when a private indivi- dual should be considered to act as a consumer or as a trader occurs frequently in the Board’s practical experience. The enquiry deems that it is problematic to introduce special rules in this respect, basing rules on the way in which, and via which media, two private individuals contact each other prior to a trans- action. This would mean that a low threshold should be applied if the parties contacted each other via a second hand digital market place like Blocket, an analogue notice board, a newspaper advert or via acquaintances, but that a higher threshold should apply if the contact was mediated by some type of platform within the sharing economy. The enquiry cannot find convincing reasons as to why the need for protection, rights and obligations should be valued in different ways depending on the way in which the parties had con- tacted each other. It should also be noted that consumer law does not make unreasonable demands, and its judgments take into con- sideration whether a trader is a large company or a single physical person. Special rules as described above would probably also lead to major demarcation problems. In its overall assessment, and against the background of the very limited experience of problems and disputes relating to sharing eco- nomy transactions, the enquiry does not yet see any reason to con- sider constitutional changes in those parts relating to the relationship between the users of the sharing economy. The enquiry further notes that the use of previously drawn up standardised contract forms stipulating general conditions would likely fulfil an important func- tion. This applies especially to the types of contract commonly found Summary: Sharing economy – on the terms of the users in the sharing economy, such as for the hire of cars, machinery and accommodation as well as for small services. The relationship between users and platforms typically constitutes a consumer relationship in those parts relating to services by the platforms for which the users pay in one way or another, such as via a commission, membership fee or by providing data. This relation- ship is subject to the consumer law. Market law may also be applied. This means for example that the marketing and information content of the platforms can be examined against the background of the rules set out in the marketing law, while the suitability of the con- tractual conditions can be judged on the basis of the law relating to contractual conditions. The law on price information can be applied to the information about prices for services, etc. offered by the platform. Against the background of the survey of platforms, the enquiry deems that it is the time to examine the platforms from the per- spective of the market law. The information content on the plat- forms varies, but in general information deemed to be essential for users is lacking. In many cases no guidance is offered about the roles assumed by the platforms and users, for example under what con- ditions a user shall be considered to be a trader. Moreover, informa- tion is rarely given about the fiscal consequences of sharing economy transactions and what is incumbent upon a user according to various kinds of special legislation, such as food legislation or transport regulations. Information on prices and contact information to the platforms are also deficient in many cases. The user survey carried out by the enquiry showed that significantly more users stated that such information is important than those who stated that it was easy to find. Finally it should be noted that the enquiry found user conditions whose reasonableness can be questioned against the back- ground of the rules set out in the law on contractual conditions in consumer relationships. The enquiry deems that the market law, which in various respects regulates the way that the platforms act on the market, appears to be fit for purpose. However, as far as the enquiry was able to deter- mine, they have not yet been applied to sharing economy platform companies. The results of the enquiry show that those who have so far taken part in the sharing economy are characterised by curiosity Summary: Sharing economy – on the terms of the users and openness to new phenomena, have strong social driving forces and a certain willingness to take risks. These early adopters who are the most frequent users of sharing economy services tend to be young people in large urban areas. They are tolerant towards de- fective functions and frictions in their relationships with other users and with the platforms. They therefore differ in some key respects from the population at large. A clear majority, more than four fifths of those who made no use of sharing services state that they did so because they did not need these services, irrespective of the service sector. This is a striking result in the eyes of the enquiry, as there are now sharing economy services for a long series of everyday or rarer needs, such as over- night accommodation, car and cycle use, holiday accommodation, garden maintenance, snow clearance, cleaning, childcare, dog care, hand tools, homework help, etc. This indicates a lower degree of curiosity and willingness to experi- ment compared to the group that uses sharing economy services. Other reasons given for not using sharing economy services relate to the uncertainty about what it means to hire from or negotiate with private individuals and that professional counterparties are preferred. About a fifth of those who know about sharing services but choose not to use them give this reason. A similar number state in a survey recently carried out by Nordea that they do not use sharing services because “... it is unclear how to proceed if something goes wrong. I don’t feel entirely safe”.4 The enquiry has, in the user chain, nevertheless identified obstacles to the growth of the sharing economy in . These can in the first instance be related to uncertainties among a large part of the population about the applicable legal rules, relationships between the parties, access to dispute settlement services and the status of the platforms. In the view of the enquiry, this leads to the conclusion that there is a need for some type of additional security-promoting measures and functions if the sharing economy is to grow and become established outside the circles of curious, socially engaged and some- what risk-inclined early adopters. 4 Nordea’s study may be accessed by using a combination of the search terms Nordea and Summary: Sharing economy – on the terms of the users These measures should be of various kinds. The enquiry con- siders that, in the first instance, this situation presents a challenge to those companies and organisations that offer sharing economy platforms. In its contacts with representatives of the platform com- panies, the enquiry noted a growing insight into the importance of information and functions that create security and trust, not least as a strategic success factor for the players themselves. It is also, to a certain degree, up to the insurance industry to inform people about the applicability of various (e.g. car and home) insurance policies to the transactions of the sharing economy and to develop a suitable range of insurance products. If the state wants a positive development of the sharing economy, this would also mean that a certain selection of carefully balanced statutory measures should be considered in order to clarify the posi- tion of the users in the sharing economy. This also involves following developments and gathering more information. Moreover, the state should assume responsibility for ensuring that current and pro- spective users of the sharing economy have access to independent information and guidance. The enquiry also considered the need for a simple and inexpen- sive form of dispute settlement for sharing economy transactions and found that such a need does indeed exist. Such a function may possibly be established by extending the assignment of . However, this solution involves certain difficulties of practice and principle. In the first place, it would require constitutional backing. Furthermore, the main volume of disputes between private individuals cannot be expected to occur in the transactions of the sharing economy, but rather in connection with purchases between private individuals via digital market places as Blocket andTradera. It would appear odd to the general public if a new form of dispute resolution were to be introduced in an area where it can be expected to be least in demand. is the compo- sition of the Board with representatives of consumers and traders, who are generally not lawyers, well adapted to examining disputes between private individuals where consumer law does not apply. Furthermore, the enquiry noted that own actions from an in- dustry or trade associations have in many cases proved a suitable way of improving market activities. This can be seen, for example, within e-commerice, where a system of quality certification of e-commerce Summary: Sharing economy – on the terms of the users companies is applied by the trade association Svensk digital handel. This certification means that the certified company must meet 14 requirements on its activities. A similar quality certification has been set up in for platforms in the sharing economy. However, such an arrangement presupposes the existence of a an interest or trade association within the area of the sharing eco- nomy. This is still absent in . Proposal for a sharing economy on the terms of the users The enquiry proposes that the be tasked with providing information about what sharing economy trans- actions imply, the risks and opportunities, as well as giving indivi- dual guidance to users in conjunction with such transactions. This should be done within the scope of Hallå konsument and Konsu- ment , in consultation with relevant public bodies such as the , sector authorities and the insurance industry. There is also good reason to provide information to companies that run sharing economy platforms on their statutory rights and obli- gations. Such information should be mediated via the Agency’s website. The enquiry has shown that the sharing economy is still at an early stage in and that experience of its use among the popula- tion is still very limited. This applies particularly to difficulties and problems which may be countered by legislation. Against this background, the enquiry suggests that the in cooperation with the Competition Authority and in consultation with other relevant authorities be tasked over a period of three years to follow up the development of the sharing economy from a user perspective, consider efforts designed to clarify the status of the users of this economy, and report the results to the government. 1.1Uppdraget och dess bakgrund Regeringen beslutade att ge en särskild ut- redare i uppdrag att på ett beskrivande sätt kartlägga olika modeller som möjliggör eller underlättar transaktioner där privatpersoner säljer, hyr ut, lånar ut eller ger bort materiella eller finansiella tillgång- ar, samäger eller samnyttjar sådana tillgångar eller erbjuder tjänster. Utöver kartläggningsuppgiften omfattar uppdraget tre mer ana- lytiskt inriktade delar. Utredningen ska analysera olika användares roller och rättsliga ställning vid delningsekonomiska transaktioner. Utredningens ska också resonera om huruvida befintlig lagstiftning, i och EU, är ändamålsenlig i delningsekonomin eller om det finns eventuella behov av författningsändringar. I det sammanhanget ska utredningen främst fokusera på förmögenhetsrätt, konsument- rättsliga delar av marknadsrätten samt på regler om produktsäker- het, tillsyn och tvistlösning. Slutligen ska utredningen bedöma om det finns behov av andra åtgärder än lagstiftning för att främja en positiv utveckling av delningsekonomin, exempelvis när det gäller information eller samarbete mellan olika samhällsaktörer. Utredningen ska inte resonera om behov av författningsändringar i den arbetsrättsliga regleringen. Utredningen ska inte heller lämna författningsförslag eller föreslå någon ny myndighet. Informationstekniken kännetecknas av stora och snabba teknik- språng. Nya webbaserade tjänster med nya möjligheter, som leder till förändrade konsumtionsmönster, tillkommer i snabb takt. Det förändrar även branschstrukturer. Framväxten av en delningseko- nomi är en del i denna utveckling. Den möjliggörs främst av teknisk innovation inom IT, men den drivs av mänskliga sociala, ekonomiska och miljömässiga strävanden. Mycket tyder på att företeelsen där privatpersoner erbjuder nyttigheter genom att bl.a. dela på ägande av en tillgång, eller utföra tjänster åt varandra, är i stark framväxt. Det är dock oklart hur stor delningsekonomin är i i kvantitativa, ekonomiska termer och hur stor tillväxten är. Klart är dock att antalet webb- baserade plattformar i delningsekonomin har ökat . Bland de utmaningar som kan vara förenade med den fram- växande delningsekonomin finns bl.a. frågor som rör användarnas rättigheter och skyldigheter, förutsättningarna för tillsyn och till- gången till tvistlösning. En annan fråga som lyfts fram rör skatte- systemet och risken för framväxt av en svart eller grå sektor, men delningsekonomin kan också generera skatteintäkter. Även frågan om under vilka förutsättningar, och på vilket sätt, utvecklingen leder till en mer miljömässigt hållbar konsumtion diskuteras. Eftersom företeelsen delningsekonomi är förhållandevis ny saknas i stora delar kunskap om dess utveckling, liksom om dess möjlig- heter och konsekvenser i övrigt. Det är exempelvis inte tydligt om dagens system för att tillvarata konsumenters och enskildas rättig- heter är tillräckligt i ljuset av de förändringar som sker. Ett över- gripande syfte med utredningsuppdraget är därför att få ett bättre kunskapsunderlag när det gäller delningsekonomiska modeller och användarnas situation ifråga om t.ex. partsförhållanden och tillämp- liga rättsregler. Det finns bl.a. skäl att analysera och värdera använ- dares inbördes rättigheter och skyldigheter i avtals-, marknadsförings- och produktsäkerhetshänseende. Mot den bakgrunden har utredningens uppdrag tolkats så att det avser en explorativ studie av delningsekonomin med ett tydligt användarperspektiv och inom de restriktioner som följer av direk- tiven.