Uber is an electronic platform that makes it possible, using a smartphone equipped with the Uber mobile application to order urban transport services from non-professional drivers for users who have a subscription for these services. It is primarily covered by the transport domain and not information society services. In this respect, Uber drivers must have the required licenses and authorisation under the national law of the member states to exercise this profession.
This is the conclusion proposed on Thursday 11 May to judges at the European Court of Justice by the Advocate General Maciej Szpunar (C-434/15) in response to questions from the Commercial Court No 3, Barcelona regarding a complaint filed by Elite Taxi, a local professional organisation representing taxi drivers regarding unfair competition from Uber Systems Spain, the Spanish subsidiary of the US group. This local organisation considers that this subsidiary does not have the right to provide taxi services in Barcelona by way of the Uberpop service because the vehicle drivers and owners do not have the licenses and authorisation stipulated in the local rules on these services.
The Catalan court therefore asks the Court to interpret Uber’s activity under Union law and establish whether this activity is covered by information society services (directives 2015/1535/EU and 200/31/EU) and therefore benefits from the free provision of services (under the terms of the 2006/123/EC directive on services in the internal market) or whether it is covered by the transport domain, which is excluded from the scope of the services directive and subject to the law of the member states. On this basis, it is requesting an explanation of the consequences that this interpretation will produce
Passenger transport at centre of Uber’s business
In its conclusions, the Advocate General considers that the service provided by Uber must be categorised as a “service in the transport domain”. As such, the US company cannot benefit from the free provision of services as part of the information society and must be subject to the conditions for authorising non-resident transport providers in the member states (article 91 of the TFEU) and therefore must be in possession of the licenses and authorisation stipulated in this legislation by the states (in this case, those included in the regulation on taxis in the city Barcelona).
Uber’s business can be considered as a “composite service” of two separate parts – connecting drivers with passengers electronically and the transport service which is not done electronically – the Advocate General believes that “passenger transport” service is the main element in this business from an economic point of view.
According to the latter, Uber’s business is not restricted, as the latter claims, to simple intermediation between drivers and customers covered by the “Information society service” concept. This is for two reasons: the two services offered are not independent (the drivers do not have their own business but are dependent on the platform which also sets out the payments they receive); the main element of the business is not the intermediation service provided electronically because Uber largely controls the global process through which the transport service is provided (it imposes the conditions on drivers for accessing the business, decides how much they are paid through bonuses or penalties, indirectly controls the quality of their work and effectively decides the prices of the transport service).
It is therefore the transport service that prevails in its business, which leads the Advocate General to conclude that Uber subsequently provides, “the organisation and management of a comprehensive a pay-as-you-go transport system”. In these conditions, its business can be described as “a service in the transport domain” and cannot be governed by the free provision of services and must be subject to national regulation.
The European Transport Workers Federation (ETF) welcomed this opinion and said, “This opinion of the Advocate General and the criteria he uses to justify his reasoning is in line with ETF’s expectations on how the European institutions must ensure a fair transport sector with respect for workers and their conditions”.
This is a completely different tone from that of the ECR group at the European Parliament. In a press release, this group argued that the conclusions of the Advocate General could bring an end to Uber and Airbnb services in Europe and have “huge implications for innovative, consumer driven digital services all across Europe” and “only strangles innovation and entrenches privileged monopolies”.
The European Commission has taken note of some advocate general’s position and emphasises that at this stage it is a conclusion but not a definitive ruling. (Original version in French by Francesco Gariazzo)