Digital platforms connecting logistics service providers and their customers are booming. For some years now, internet platforms such as Teleroute and TimoCom have connected road hauliers with shippers. Today, a wide range of digital logistics platforms are used, such as Quicargo, Synple, Twill and Cogoport. Some of these also offer a platform via a mobile application. Recently, for example, Uber reported that it is launching the digital platform 'Uber Freight' in the Netherlands, having first launched the app in the US two years ago.
A digital platform connects suppliers of logistics services such as carriers, freight forwarders, shipbrokers and NVOCCs with business customers such as sellers or buyers of goods, but also with the likes of other carriers and freight forwarders. Via the platform, customers can book transportation and/or related services such as customs clearance, packing or re-packing and warehousing.
We recommend that platforms carefully consider their legal position and, consequently, their civil and public law exposure. A relevant question is whether the platform itself acts as a carrier or freight forwarder.
The civil law perspective
Many mandatory provisions of international conventions and national laws are applicable to the carriage of goods. For example, a carrier cannot, generally speaking, exclude its contractual liability for damage to goods sustained during carriage. Platforms do not usually present themselves as carriers, and indeed the likelihood of them being regarded as such from a legal perspective is slim. Platforms will not normally accept the obligation to carry goods from A to B. Most frequently, they will simply enable carriers and customers to conclude contracts of carriage with each other, without the platform itself being a party to such contracts.
It is, however, more likely for a platform to act as a freight forwarder. Pursuant to Dutch law, a freight forwarder concludes a contract of carriage with a carrier on behalf of its principal. It will depend on the business model of the particular platform whether or not this is the case. If the platform serves both the customer and the logistics service provider, and only connects them, the platform's activities match best with the concept of 'intermediary services' within the meaning of Article 7:425 of the Dutch Civil Code. The platform then serves two clients (customer and logistics service provider). Dutch law permits this as long as there are no conflicting interests.
A platform contracting as a freight forwarder or intermediary may not be mandatorily liable for damages incurred during carriage, but it can be liable if it fails to perform its obligations under the freight forwarding or intermediary contract - for example, if it connects a customer with a non-existent, fraudulent haulier. This civil law exposure can be minimized contractually.
The public law perspective
Platforms should also consider their position from a public law perspective. In some European countries, companies acting as carriers or freight forwarders need a licence/permit to perform their services. Generally speaking, however, this is not the case in the Netherlands.
A recent decision of the European Court of Justice relates to the Uber taxi application. The court held that Uber is not only a digital platform offering intermediation services, but also a platform offering 'services in the field of transport', as laid down in Regulation (EU) No 2006/123. The court took into account the fact that, without the Uber application, non-professional drivers would not have provided transport services and the users would not have used the services provided by those drivers. In addition, Uber exercises a certain control over the performance of transport services, such as maximum fare and quality of vehicles and drivers. It remains to be seen whether the services provided by other digital platforms will be characterized as 'services within the field of transport'. This will depend heavily on the exact nature of the services provided.
The European Commission recently proposed a regulation to promote fairness and transparency for business users of online intermediation services. The proposal aims to regulate the business-to-consumer commercial relations that are intermediated by an online platform by, amongst other things, outlining the requirements relating to terms and conditions. The proposed regulation would only apply to those providing services to consumers (private persons) via an online platform. We would expect that platforms such as Uber Freight will mostly be used by commercial customers, and therefore not consumers. However, platforms should keep up to speed with European initiatives as well.
From the public law perspective, we cannot rule out the possibility that platforms may be deemed to provide 'services in the field of transport' at some point. In that event, a licence or permit may be required in some European countries. We advise platforms to seek advice from a local lawyer in order to minimize legal risks.