Liability of Online Intermediaries

Questioner

I have a question about the liability of an online intermediary in commercial transactions between consumers and individual professional chefs, who may or may not work under a VAR declaration and pay VAT for commercial services. 1. To what extent is the online intermediary liable for any irregularities on the part of the chefs, and what role does the course of consumer payments play in this? Does it make a difference whether the intermediary receives the payments and is invoiced by the chefs on a weekly basis, or whether the intermediary only receives the legitimate commission on its services and the rest of the payment is immediately passed on to the chefs? Which option leads to which liability? 2. To what extent can chefs who work under a VAR declaration have the intermediary as their sole client?

Lawyer

Dear questioner, As an intermediary, you can only be held liable in the event of your own unlawful actions or omissions. The intermediary must adhere to social due care and must reasonably take into account the legitimate interests of others. In order to answer the question of whether an intermediary has exceeded his duty of care, the circumstances of the case must be specifically examined. The intermediary is therefore in principle not liable for unlawful acts on the part of the cook. Even if the intermediary does not take measures to prevent the unlawful acts of the cook, he cannot in principle be held liable. It is important here that he has no knowledge of the unlawful acts. Furthermore, if the intermediary acts as a 'conduit' and meets the conditions stated in article 6:196c BW, he cannot be held liable. It therefore certainly matters how the intermediary operates. If you do not fall under the category of article 6:196c BW, the normal private law rules apply, see article 3:66 BW. You are then liable according to the share that each of the parties has had in the formation of the agreement and in the determination of its content. With regard to your second question, it is wise for chefs to have multiple clients. Authority relationship and dependency on client are important factors that are taken into account when granting a VAR declaration. However, it is not mandatory and chefs could demonstrate in other ways that there is no question of disguised employment. Incidentally, a VAR is not mandatory, so chefs can always work with one client.