La influencia predominante de las plataformas en línea y la responsabilidad contractual por los bienes y servicios subyacentes

The contractual responsibility of online platform operators has been subject to an intensive debate. Operators usually act as mere intermediaries and thus they usually disclose it pursuant to art. 97 bis (1)(d) TRLGDCU, while an opinion seeks to make them liable for the underlying goods and services based on the predominant influence they exercised on suppliers. The criterion has its origins in the case law developed by the CJEU regarding information society service providers. Lacking specific regulation in the European Union, art. 20 of the Model Rules on Online Intermediation published by the European Law Institute (ELI) constitute an important milestone in the debate. This paper is in favor of resorting to Contract Law. In this regard, it first addresses the principle of relativity of contracts and considers whether it is possible to include the contract concluded between the two groups of users, suppliers and clients, among the exceptions to the rule of art. 1257 I CC carried out by the jurisprudential doctrine of the Spanish Supreme Court with respect to other contracts and economic activities. It then contrasts a responsibility for goods and services based on the predominant influence of platforms over suppliers with the possibility of «piercing the veil» based on a contractual distribution of opportunities and risks.