Last May Advocate General Szpunar gave his first opinion about the right qualification of the service provided by Uber.
Uber is a peer-to-peer mobile ride-sharing platform which has received tremendous attention in recent years. Anyone having a smartphone equipped with the Uber application (i.e. the App) can get a ride in the cities where the App takes place.
Thanks to GPS technologies, the App recognises the location of the user, then finds available drivers who are nearby. It notifies the acceptance to the user and displays the driver’s profile.
It also estimates the price of the ride, according to the destination of the user, automatically charged to the bank card which the user is required to enter when signing up. In order to improve the service, the App has a ratings function too, both for drivers and passengers.
Uber has launched many services during the time, but the service going by the name UberPop is the one that has raised the most heated debates. This App allows nonprofessional private drivers to transport passengers using their own vehicles, arising concerns in many European countries where licenses or authorisation are required.
In 2014, indeed, a professional organisation representing taxi drivers in the city of Barcelona (i.e. Elite Taxi), brought an action before the Juzgado de lo Mercantil n° 3 de Barcelona against Uber Systems Spain SL (i.e. Uber Spain), because of its unfair competition towards Elite Taxi’s drivers. Namely, Elite Taxi argued that:
- The city of Barcelona requires licenses and authorisations under the regulations on taxi service;
- Neither Uber Spain nor its drivers owned them; for this reason, the company wasn’t entitled to provide the UberPop service and it was just engaged in an unfair competition.
Since several provisions of EU law were involved, the Spanish judge decided to refer some question to the Court of Justice, concerning whether platform services may be qualified as information society services (I.S.S.) or falls into the transport field.
The distinction has important legal consequences: if these services fell into the transport field, Uber wouldn’t benefit from Directive 2006/123/EC principles of the freedom to provide services, and the 2015 Digital Single Market Strategy for Europe ( Digital Strategy ); on the contrary, it would be regulated by the law of each Member State.
The Advocate General’s opinion represents the first legal solution about Uber, even if it doesn’t bind the Court.
The opinion is very interesting because it qualifies Uber as a composite service: it isn’t provided, over all, by electronic means. However, it could be included among I.S.S. if two conditions were satisfied:
- The economic indipendency of non-electronic supply from electronic services;
- The whole service should be supplied by the provider, who has to exercise, as an alternative, a strong influence over service delivery conditions.
On the contrary, the service offered by Uber doesn’t satisfy either of those two conditions. Moreover, the platform gives sense to the drivers activity, which couldn’t be considered as indipendent as required by the first condition stated above. Indeed, benefits are essentially provided by Uber itself.
Drivers aren’t free to fix prices per ride and other economical assets, because Uber:
- imposes them many conditions about the way of pursuing their activity;
- determines the price of the service and places where there could be a high volume of trips;
- exerts indirect control over the quality of their work, thanks to the rating and feedback of the users;
- rewards drivers who accumulate a large number of trips.
For this reason, the service offered by Uber could’t be simply classified as an information society one, but as an on – demand urban transport, because of the organisation and management of the whole comprehensive system.
Consequently, the platform’s activity is subject – according to Article 91 TFEU – to the conditions of each Member State, about the way non-resident carriers may operate transport services.
Recently the Advocate General Spuznar has again dealt with the development of the App in France. In this new opinion he has referred to his previous one, about Uber Spain as a transport service. This qualification would exclude the applicability of the Directive 98/34/EC too.
In conclusion, France might prohibit and punish the illegal exercise of a transport activity carried out by the App UberPop without having to notify the Commission of the draft law in advance. The exclusion of any obligation to notify the draft law would operate, in his opinion, even if the activity was considered as an I.S.S. by the Court of Justice.
These opinions are aligned with other initiatives of the EU institutions, aimed to both the encouragement of the collaborative economy and its development in a responsible manner. This was the belief of the Commission, published in a Communication on 2 June 2016. It underlined the importance of collaborative economy as a contribution to jobs and economic growth in the EU.
The European Court of Justice’s determination is considered crucial because it will greatly affect the growth and future of Europe’s sharing economy. Furthermore, it should be unrealistic the qualification of Uber as a simple I.S.S.: users who log onto the app seek to book a ride, nor merely to browse “the number of Uber drivers with red cars”.
Even if the Opinion does not bind the Court, which decides in full independence, it indicates a legal solution, which is necessary due to many legal concerns involved, such as competition, consumer protection, privacy, security, public services, labor and tax law.
 Z. Li, Y. Hong, Z. Zhang, Do Ride-sharing Services affect Transport Congestion? An Empirical Study of Uber Entry, available at http://dx.doi.org/10.2139/ssrn.2838043.
 A. Alexander De Masi, Uber: Europe’s Backseat Driver for the Sharing Economy, Creighton International and Comparative Law Journal 7/ 2016, at 73.
 R. Elaine Elliott, Sharing App or Regulation Hack(ney)?: Defining Uber Technologies, Inc., 41 Journal of Corporation Law 2016.
Il debutto dell’App UberPop nel contesto europeo ha permesso a chiunque di aspirare alla professione di autista. Proponendosi come un servizio dalle caratteristiche ibride, ha incontrato le resistenze dei tassisti, rendendosi oggetto di numerosi contenziosi in sede civile nonché di rinvii pregiudiziali alla Corte di Giustizia.