Tourism Law in Europe

18 The intermediary rule does not refer to known agency figures. 66 It consists of three cumulative criteria: 1) The intermediary must act within his trade or business; 67 2) The intermediary must play an active part in the transaction between the peer-customer and the peer-provider; 68 lastly, 3) the intermediary must not be the main contracting party or act in its own name. Of specific interest is the second criteria, which will be unfolded in the following section. We will not address the last criteria below, since we already discussed this issue in paragraph 5.2. 5.3.1. Active part According to the preparatory work, the intermediary has to do more than just connect the two contracting parties to be regarded as an active part under the Danish intermediary rule. 69 If the intermediary only provides space on its website, a billboard or other passive possibilities of exchange of contact information, this will not constitute as an active intermediary . On the other hand, if the platform praises the goods or services or in other ways takes part in the negotiations or transaction, it could be regarded as an active part and the intermediary rule will apply if the two other criteria are met. Defining the criterion of active participation has been the focal point in a couple of Danish cases. In SH2009.N.0001.07 (QXL) from June 18 2009, the Danish Court of Sea and Commercial Law found the online auction platform QXL to be an active intermediary. The argumentation can be divided into two: Firstly, the court found that QXL was acting as agent for the supplier (a peer) as QXL was authorised to act on behalf of the supplier based on the fact that a contract was automatically concluded as soon as the consumer won the bidding round. Secondly, the court found that QXL participated significantly in the entering into contract between the supplier and the consumer by making available a promoting and professional distance selling system. In addition, the contract was 66 See KARSTOFT, S., ’Retlig regulering af ’elektroniske loppemarkeder’’, Ugeskrift for Retsvæsen , U2006B.55. 67 L 39, 1977 om Forslag til Lov om visse forbrugeraftaler, comments on Para 1(4). and Betænkning no. 845/1978 om forbrugerkøb, 59. (both preparatory work of the Danish Consumer Contract Act). 68 L 39, 1977 om Forslag til Lov om visse forbrugeraftaler, comments on Para 1(4) and L 27, 1994 om Forslag til Lov om ændring af lov om aftaler og andre retshandler på formuerettens område og visse andre love, comments on Para 38a. 69 Betænkning nr. 845/1978 om forbrugerkøb, sp. 18 and L 27, 1994 Forslag til Lov om ændring af lov om aftaler og andre retshandler på formuerettens område og visse andre love, comments on Para 38a(3).