Services provided by Uber for connecting non-professional drivers with users who’ve subscribed to the Uber website for urban travel, must be seen as transport services within the meaning of European Union law rather than information society services.
Such services are excluded from the scope of the free provision of services and the services directive’ (2006/123/EC) and the e-commerce directive (2000/31/EC) and can therefore be regulated by the member states, which can subject them to rigor authorisation based on their national legal system.
This ruling was issued on Wednesday 20 December by the European Court of Justice in case C-434/15, and confirms all of the conclusions issued in this case by advocate-general Maciej Szpurnar (see EUROPE 11786).
The European justice was answering a question submitted by the third Barcelona trade court over a case of a local taxi drivers’ association, which accused the Spanish arm of the US company, Uber Systems Spain, of unfair and deceptive practices by its service Uberpop since it did not have the licences and accreditations required by the Barcelona agglomeration for providing taxicab services.
The Catalan court asked the Court of Justice whether the services provided by Uber Systems Spain should be seen as transport services subject to prior administrative authorisation under national legislation or as information society services which benefit from free provision of services, or a combination of the two types of service.
Like the advocate-general, the Court considers that the service provided by Uber is more than an intermediation service connecting non-professional drivers using their own vehicles with clients via a smartphone app.
The European judge says that through its activity, Uber is creating a full urban transport system, which it makes accessible through its smartphone app and for which it organises general operations (movement of drivers, arranging journeys, timings etc.) for users, while also having a decisive influence on the conditions of provision of drivers (setting maximum prices for journeys, collecting the fee from the client and transferring it to the driver, setting vehicle quality and driver behaviour requirements). The intermediation service in question should therefore be seen as being part of an overall service, the key element of which is a transport service.
Therefore, say the judges, the intermediation service should be seen as a service in the domain of transport and come under the common transport policy which is be subject under EU law to regulation by the EU member states. It cannot be an information society service benefitting from free provision of services under the EU service directive (2006/123/EC) and e-commerce directive (2000/31/EC).
In this situation, it is now for the member states to regulate the conditions for provision of Uber services by requiring, for example, prior authorisation and a taxicab licence.
The European Trade Union Confederation (ETUC) has welcomed the ruing. Its conferral secretary Thiébaut Weber said Uber must now recognise and respect national transport rules in each member state, which also means respecting the rights of workers across Europe. More generally, the ETUC invites the European Commission to unveil proposals providing greater security and strengthening the rights of all workers for small platforms in Europe.
In a press release, Uber says the ruling doesn’t change anything in most EU countries as it operates under transport legislation, but regretted that millions of Europeans were still being prevented from using its app (and similar apps).
This Court of Justice ruling may create case law for other electronic platforms using the same economic model as Uber in areas where the free provision of services does not apply. (Original version in French by Francesco Gariazzo)