Uber offers a transport service, therefore individual countries can oblige it to acquire the licenses or authorizations required by national rules. The conclusions that this morning theAdvocate General of the Court of Justice of the European Union (Cgue) announced in the context of a lawsuit between an association of taxi drivers in Barcelona and the American multinational.
The lawsuit began in 2014 when the Asociación Profesional Elite Taxi appealed to the commercial court asking to fine the Spanish company Uber Systems Spain for unfair competition against Elite Taxi drivers. The reason? Simple: neither Uber Spain nor the owners or drivers of the vehicles had the licenses and authorizations required by the regulation on taxi services adopted by the Catalan city. In turn, the Spanish court referred a series of questions to the Court of Justice on the classification of Uber's business under EU law and on the consequences to be drawn from it.
In his conclusions – reads a statement from the Court – Advocate General Maciej Szpunar observes that Uber drivers “do not carry out their own activity which would exist independently of the aforementioned platform”. Furthermore, Uber "controls the economically relevant factors of the urban transport services offered within the platform by imposing preliminary conditions on drivers for access to the activity and for the related performance", rewarding "financially the drivers who cover a significant number of routes, indicating to them the places and periods in which they can count on a considerable number of journeys and/or on advantageous fares", exercising over them a "control, albeit indirect, over the quality of the drivers' work, which can also lead to 'exclusion of the same from the platform" and fixing, in practice, "the price of the service".
For all these reasons, according to the lawyer, it must be “excluded that Uber can be considered as a mere intermediary between drivers and passengers. Furthermore, within the context of the mixed service offered by the Uber platform, it is undoubtedly transport (and therefore the service provided not electronically) that represents the main service which gives the mixed service its economic significance".
The Advocate General concludes that the service of connecting the passenger with the driver, provided by electronic means, is not independent of the transport service. The service offered by Uber could not therefore be qualified as an "information society service". Rather, it is about the organization and management of a complete system of on-demand urban transport. Finally, Uber doesn't even offer a car-pooling service, as the destination is chosen by the passengers and the drivers receive a fee that far exceeds the simple reimbursement of the expenses incurred.
In the light of these considerations, the Advocate General proposes that the Court respond to the Spanish Court that the service offered by the platform Uber must qualify as a “transportation service”. This interpretation implies that Uber's business is not governed by the principle of freedom to provide services in the context of "information society services" and is therefore subject to the conditions for the admission of non-resident carriers to national transport in the Member states. In the particular case, the possession of the licenses and authorizations provided for by the regulations of the city of Barcelona.
The press release recalls that the conclusions of the Advocate General do not bind the Court of Justice but indicate a direction.
Uber's comment
“We have received the opinion and are now awaiting the final decision during the year – comments the company in a note – Being considered a transport company would not change the way in which many European countries already regulate our activities today. We hope, however, that this will not slow down the necessary updating processes of outdated laws that prevent millions of Europeans from accessing reliable rides at the click of a button."
