La determinación de la jurisdicción y la ley aplicable en materia de competencia desleal en el marco de la economía de las plataformas virtuales

Résumé

In this study, we have focused on analysing international jurisdiction and the applicable law on unfair competition within the framework of platform economy (PE). To this end, the first part of this study is dedicated to an analysis of the platform economy, outlining the main agents that are involved in this disruptive reality and explaining why we understand the use of this concept to be preferable to the term “collaborative economy”. To understand which virtual platforms it encompasses, the exact scope of the platform economy must be defined. The second part is dedicated to an analysis of international jurisdiction within the Spanish legal system, especially taking into account the offences committed remotely through the Internet. It mainly focuses on a study of the forums contained in the Regulation 1215/2012 due to its general and preferential application, indicating how these forums should be applied according to the particularities of cyberspace, where most of the transactions in the virtual platform economy take place. The forum relating to tort, delict or quasi-delict first has a preponderant role in the present study for three reasons: it is the most commonly used by victims of unfair acts, is the most characteristic in the field of unfair competition and, finally, because it is the one which presents more practical difficulties. This forum has allowed us to study substantive law on unfair competition and, at the same time, to give examples in relation to other analysed forums and to build up a better understanding of unfair competition in general. This analysis of substantive law on unfair competition was necessary, since the application of this forum ultimately depends on the nature of the alleged infringed right. Otherwise, this second part concludes with an analysis of other jurisdictional criteria contained in Regulation 1215/2012, indicating in each case specific applications in the field of virtual platforms and analysing whether they are suitable for dealing with cyberspace offences. Lastly, the third part of the study focuses on establishing the applicable legislation in specific contexts. To this end, we analysed conflict of law rules in the field of unfair competition, with Article 6 of the Rome II Regulation -which replaces the internal legislation due to its universal nature- playing a predominant role. We also examine how this conflict of law rule should be applied within the framework of the PE, with special emphasis on the field of passenger transport and holiday accommodation, and we state our opinion on its suitability or on the need to update it when appropriate. More specifically, we wonder what legislation is applicable in the field of unfair competition when unlawful acts are committed through virtual platforms and also when these unfair acts are likely to produce competitive damages in several countries at the same time. Finally, we analyse how the country of origin principle should be interpreted and applied in the field of unfair competition with regard to providers of information society services. This issue is fundamental within the context of the PE, since the vast majority of these platforms provide information society services.