Tesi etd-11292024-230807
Link copiato negli appunti
Tipo di tesi
Dottorato
Autore
SPOSINI, LUDOVICA
URN
etd-11292024-230807
Titolo
The (under)estimated figure of business users between protection needs and remedies in the context of the European Digital Strategy for P2B relations
Settore scientifico disciplinare
IUS/01
Corso di studi
Istituto di Diritto, Politica e Sviluppo - PhD in Diritto - PON
Commissione
relatore Prof. BERTOLINI, ANDREA
Parole chiave
- Nessuna parola chiave trovata
Data inizio appello
29/09/2025;
Disponibilità
completa
Riassunto analitico
This research work is concerned with analysing the dynamics surrounding the contractual relations that take place between digital intermediation service providers and online business users in the so-called 'platform economy'. Specifically, it first provides an analysis of the main regulations that apply to platform-to-business (henceforth P2B) relations and, subsequently, it attempts to demonstrate, also through an economic analysis, their substantial inadequacy. Finally, it proposes some possible solutions that, in the author's opinion, may represent a further way to respond more adequately to the protection needs of professional online operators.
If, on the one hand, the EU has shown itself to be full aware of the undoubted advantages deriving from the new technologies and from this new economic model, on the other hand, it has been concerned about the economic-social power that the large providers have acquired in a very short time and, above all, about the abuses perpetrated by them against consumers as well as, precisely, against professional operators. The latter, traditionally considered in consumer discipline as strong contractors, in P2B relations are, on the contrary, in need of ad hoc protection that seeks to rebalance the situation of asymmetry and economic dependence in which they find themselves.
In other words, although these are contracts between companies, they do not respond to the principle of equal bargaining power between the parties, since the professional is forced to accept the contractual terms and conditions unilaterally prepared by the provider. In other words, they have no contractual power, being only able to decide whether to accept the terms and conditions of use as they are (and thus avail themselves of the platform's intermediation) or to reject them tout court and not access the service. It is evident that, in reality, the latter choice is not viable, since it would mean losing an exponential number of customers. Because of this asymmetrical position, the European legislator has recently decided to adopt a set of regulations aimed, for the first time, at directly protecting these 'new' weaker parties.
Having said this, Part I of this discussion describes the phenomenon of the platform economy to be able to better circumscribe, given its extent, the object of the analysis from both an objective and subjective point of view. Moreover, to avoid the risk of remaining a mere doctrinal exercise, this research has adopted a bottom-up approach, thanks to which it was possible to select three case studies.
More specifically, after outlining in Chapter I the functioning and main characteristics of the digital economy and P2B relations, the main characters of these legal interactions are outlined, namely the 'digital platforms', on the one hand, and the 'commercial users', on the other hand. With respect to the former, since there is still no agreed solution on the meaning to be attributed to this concept, this section gives an account of the various attempts made at both legislative and doctrinal level. With respect to this definitional problem, it is intended to show how it seems appropriate to adhere to those authors who have strongly criticised the suitability of an aprioristic and rigid definition, accepting instead a functional approach to the subject. In other words, they argue that the best way to guarantee, on the one hand, the need for legal certainty and, on the other hand, a category that is sufficiently elastic to easily adapt to new technologies is to classify platforms on the basis of a series of criteria such as, specifically, the type of service offered.
In application of this approach, Chapter II focuses, therefore, on the study of providers offering an e-commerce service (known as 'marketplaces') with the further clarification that, within this category, we then further select those that have been designated 'gatekeepers' by the European Commission, as required by Regulation (EU) 2022/1925 known as the 'Digital Markets Act'. Therefore, the case studies examined here are: Amazon Marketplace, Google Shopping and, finally, Zalando.
After delineating the object of analysis, Part II is devoted to an in-depth examination of the three different avenues that the EU has chosen to ensure greater fairness and transparency in digital markets: the private, public and collective protection. More specifically, Chapter III deals with the instruments that provide privatistic safeguard to commercial users as provided, first of all, by Regulation (EU) 2019/1150 also known as the "P2B Regulation" as well as the more recent Regulation (EU) 2022/2065 called the "Digital Services Act". Among these, particular attention is paid to the information and transparency obligations imposed on the operator of the intermediation service; to the remedies of partial nullity and the right to withdraw from the contract in the case of breaches or subsequent, unilateral modifications adopted in violation of the procedural rules; finally, in the case of disputes arising during the execution of the contract, it was also looked at the internal complaint resolution and mediation mechanisms.
At the end of this section, thanks also to an economic analysis approach, emerged, on the one hand, how the P2B Regulation provides substantially procedural and formalistic protection, insufficient to ensure the highest possible level of defense for commercial users; on the other hand, it shown that the Digital Services Act, although undoubtedly a step forward compared to its predecessor, still has room for improvement, as it does not manage to concretely ensure adequate protection for commercial users.
The following Chapter IV is dedicated, instead, to remedies of a public and collective nature. With regard to the former, after a brief but necessary introduction on the historical evolution and theoretical foundations of the European antitrust discipline, it analysed the legislation (including the recent Digital Markets Act) designed to counter the abusive commercial conduct of platforms. It clearly emerged that the traditional figures of European antitrust law such as 'price', 'relevant market' and 'abuse of dominant position' are not adequate with respect to the dynamics of online environment.
Entirely similar considerations can then be made with respect to the instruments of a collective nature granted to business users, which are the subject of study in the last part of this chapter. In particular, as will be detailed below, this type of remedy is totally inadequate for several factors. These include, for example, the fact that many Member States have chosen not to implement any form of collective protection. However, even in cases where the latter has actually been provided for, very often there are no associations specifically set up to protect the interests of business users but rather rely on those of consumers.
Finally, Part III carries out some final reflections and tries to offer future suggestions with the aim of achieving a higher level of protection for online professionals.
From this perspective, then, Chapter V proposes to use advanced technology, specifically Artificial Intelligence, as a tool to ensure a safer and fairer digital environment. This prospect is, moreover, also confirmed by the same application practice in which some of the most important intermediaries - including Amazon, Google and Zalando - already make extensive use of algorithms and AI systems in their services.
Therefore, after briefly recalling the milestones that led to the adoption of Regulation (EU) 2024/1689, i.e. the "IA Regulation", this chapter examines, in general terms, the structure of this regulation. In particular, the focus is on the most relevant norms on the subject, such as, for instance, those imposing information, transparency and explainability obligations and requirements. This is because platforms regularly use AI systems and algorithms such as, for instance, to resolve online disputes; to collect and process user data; to analyse market trends and adapt their offerings accordingly in almost real time; and to personalise the user experience.
Therefore, if it could be ensured that the technology sustaining the digital infrastructure complied with the rules contained in the AI Regulation, the entire ecosystem would then be safer, more transparent and fairer for business users as well.
If, on the one hand, the EU has shown itself to be full aware of the undoubted advantages deriving from the new technologies and from this new economic model, on the other hand, it has been concerned about the economic-social power that the large providers have acquired in a very short time and, above all, about the abuses perpetrated by them against consumers as well as, precisely, against professional operators. The latter, traditionally considered in consumer discipline as strong contractors, in P2B relations are, on the contrary, in need of ad hoc protection that seeks to rebalance the situation of asymmetry and economic dependence in which they find themselves.
In other words, although these are contracts between companies, they do not respond to the principle of equal bargaining power between the parties, since the professional is forced to accept the contractual terms and conditions unilaterally prepared by the provider. In other words, they have no contractual power, being only able to decide whether to accept the terms and conditions of use as they are (and thus avail themselves of the platform's intermediation) or to reject them tout court and not access the service. It is evident that, in reality, the latter choice is not viable, since it would mean losing an exponential number of customers. Because of this asymmetrical position, the European legislator has recently decided to adopt a set of regulations aimed, for the first time, at directly protecting these 'new' weaker parties.
Having said this, Part I of this discussion describes the phenomenon of the platform economy to be able to better circumscribe, given its extent, the object of the analysis from both an objective and subjective point of view. Moreover, to avoid the risk of remaining a mere doctrinal exercise, this research has adopted a bottom-up approach, thanks to which it was possible to select three case studies.
More specifically, after outlining in Chapter I the functioning and main characteristics of the digital economy and P2B relations, the main characters of these legal interactions are outlined, namely the 'digital platforms', on the one hand, and the 'commercial users', on the other hand. With respect to the former, since there is still no agreed solution on the meaning to be attributed to this concept, this section gives an account of the various attempts made at both legislative and doctrinal level. With respect to this definitional problem, it is intended to show how it seems appropriate to adhere to those authors who have strongly criticised the suitability of an aprioristic and rigid definition, accepting instead a functional approach to the subject. In other words, they argue that the best way to guarantee, on the one hand, the need for legal certainty and, on the other hand, a category that is sufficiently elastic to easily adapt to new technologies is to classify platforms on the basis of a series of criteria such as, specifically, the type of service offered.
In application of this approach, Chapter II focuses, therefore, on the study of providers offering an e-commerce service (known as 'marketplaces') with the further clarification that, within this category, we then further select those that have been designated 'gatekeepers' by the European Commission, as required by Regulation (EU) 2022/1925 known as the 'Digital Markets Act'. Therefore, the case studies examined here are: Amazon Marketplace, Google Shopping and, finally, Zalando.
After delineating the object of analysis, Part II is devoted to an in-depth examination of the three different avenues that the EU has chosen to ensure greater fairness and transparency in digital markets: the private, public and collective protection. More specifically, Chapter III deals with the instruments that provide privatistic safeguard to commercial users as provided, first of all, by Regulation (EU) 2019/1150 also known as the "P2B Regulation" as well as the more recent Regulation (EU) 2022/2065 called the "Digital Services Act". Among these, particular attention is paid to the information and transparency obligations imposed on the operator of the intermediation service; to the remedies of partial nullity and the right to withdraw from the contract in the case of breaches or subsequent, unilateral modifications adopted in violation of the procedural rules; finally, in the case of disputes arising during the execution of the contract, it was also looked at the internal complaint resolution and mediation mechanisms.
At the end of this section, thanks also to an economic analysis approach, emerged, on the one hand, how the P2B Regulation provides substantially procedural and formalistic protection, insufficient to ensure the highest possible level of defense for commercial users; on the other hand, it shown that the Digital Services Act, although undoubtedly a step forward compared to its predecessor, still has room for improvement, as it does not manage to concretely ensure adequate protection for commercial users.
The following Chapter IV is dedicated, instead, to remedies of a public and collective nature. With regard to the former, after a brief but necessary introduction on the historical evolution and theoretical foundations of the European antitrust discipline, it analysed the legislation (including the recent Digital Markets Act) designed to counter the abusive commercial conduct of platforms. It clearly emerged that the traditional figures of European antitrust law such as 'price', 'relevant market' and 'abuse of dominant position' are not adequate with respect to the dynamics of online environment.
Entirely similar considerations can then be made with respect to the instruments of a collective nature granted to business users, which are the subject of study in the last part of this chapter. In particular, as will be detailed below, this type of remedy is totally inadequate for several factors. These include, for example, the fact that many Member States have chosen not to implement any form of collective protection. However, even in cases where the latter has actually been provided for, very often there are no associations specifically set up to protect the interests of business users but rather rely on those of consumers.
Finally, Part III carries out some final reflections and tries to offer future suggestions with the aim of achieving a higher level of protection for online professionals.
From this perspective, then, Chapter V proposes to use advanced technology, specifically Artificial Intelligence, as a tool to ensure a safer and fairer digital environment. This prospect is, moreover, also confirmed by the same application practice in which some of the most important intermediaries - including Amazon, Google and Zalando - already make extensive use of algorithms and AI systems in their services.
Therefore, after briefly recalling the milestones that led to the adoption of Regulation (EU) 2024/1689, i.e. the "IA Regulation", this chapter examines, in general terms, the structure of this regulation. In particular, the focus is on the most relevant norms on the subject, such as, for instance, those imposing information, transparency and explainability obligations and requirements. This is because platforms regularly use AI systems and algorithms such as, for instance, to resolve online disputes; to collect and process user data; to analyse market trends and adapt their offerings accordingly in almost real time; and to personalise the user experience.
Therefore, if it could be ensured that the technology sustaining the digital infrastructure complied with the rules contained in the AI Regulation, the entire ecosystem would then be safer, more transparent and fairer for business users as well.
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