Narrowed exemptions: the commercial agent, limited network and digital device exemptions

The EC has found that EU regulators are interpreting the commercial agent exemption differently and that some firms are pushing the boundaries further than originally contemplated. The EC focus in particular on online commerce platforms, described in a report commissioned by the EC as ‘operators of any communication tools [platforms] facilitating the exchange of goods or services with a complementary facilitation of corresponding payments’. This includes online platforms giving easy and consolidated access to any goods and services, from fast-food deliveries to taxis, theatre tickets or hotels.

The EC proposes a single change to the effect a commercial agent should only be able to act for one, but not both, of the payer and payee: ‘…a commercial agent authorised to negotiate or conclude the sale or purchase of goods or services on behalf of [either] the payer or payee’. It takes a read of the EC’s Explanatory Memorandum to be absolutely sure that this is meant to be read as ‘[either, but not both of]’.

The EC’s Impact Assessment indicates that the mischief the EC is getting at arises when the platform acts for both parties by providing escrow-type services whereby the consumer’s funds are taken, but only released when the merchant’s goods are released. Given this focus, the approach of adjusting the exemption to turn on whether or not there is a dual agency is somewhat arbitrary. If the EC is concerned about platforms receiving funds without the simultaneous discharge of a debt between payer and payee, so creating a credit risk on itself, it would be preferable to simply say this…

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