In Search of a Strategy for Regulating Digital Tourism Platforms: What Is the Role of Private Enforcement Mechanisms in Facing Critical Issues in The Short-Term Rental Market?

It is almost unanimously acknowledged that in the last decade, alongside the emergence of the so-called ‘app economy,’ digital tourism platforms have disrupted the traditional tourism industry. The present paper deals with the activities performed by this kind of intermediary, investigating, in particular, the short-term accommodation services offered through electronic platforms intended to connect, for remuneration, potential guests with professional or non-professional hosts. With the spread of this service, critical issues have been identified in terms of residents’ quality of life, working conditions, housing market, and urban structure. Due to the above-mentioned concerns, and also due to the need to preserve the competitiveness of the markets in which these platforms operate, the idea of introducing new regulations specific to them has emerged. In the light of the EU legislative framework, there is not much room for manoeuvre for national authorities if they aspire to regulate the phenomenon relying entirely on tools designed for services of the pre-digital era. Indeed, the CJEU held that the intermediation service for short-term accommodation must be classified as an ‘information society service’, since neither that intermediation service, nor the ancillary services offered by the provider, make it possible to establish the existence of a decisive influence exercised by that company over the accommodation services to which its activity relates, with regard both to determining the rental price and selecting the hosts or accommodation for rent. Notwithstanding the limits set forth in the relevant provisions of EU law, the major tourism European cities have adopted regulations aimed at mitigating the negative effects produced by the platform-mediated ‘overtourism.’ But these efforts would be ineffective in the absence of adequate private enforcement mechanisms which should not be regarded as simple add-ons to the public regulatory regime system. A special emphasis must be put on collective redress actions, which are likely to have strong deterrence effects.