In Case C-434/15 Asociación Profesional Elite Taxi v Uber
Systems Spain SL the CJEU had to consider a claim against Uber Systems
Spain from taxi drivers in which it was alleged that Uber engaged in misleading
practices and acts of unfair competition. The Spanish court had referred the
question of whether the services provided by Uber are to be regarded as
transport services, information society services or a combination of both. The
extent to which Uber’s drivers had to meet licensing and related requirements
turned on that question. The Court held that the intermediation system of Uber
is not a game-changer and the activities of the non-professional drivers using
Uber to connect with potential passengers amount to a service in the field of
transport.
Facts
The service provided by Uber connecting individuals with
non-professional drivers is covered by services in the field of transport Member
States can therefore regulate the conditions for providing that service The
electronic platform Uber provides, by means of a smartphone application, a paid
service consisting of connecting non-professional drivers using their own
vehicle with persons who wish to make urban journeys. In 2014, a professional
taxi drivers’ association in Barcelona (Spain) brought an action before the
Juzgado de lo Mercantil No 3 de Barcelona (Commercial Court No 3, Barcelona,
Spain) seeking a declaration from that court that the activities of Uber
Systems Spain, a company related to Uber Technologies (together ‘Uber’), amount
to misleading practices and acts of unfair competition. Neither Uber Systems
Spain nor the non-professional drivers of the vehicles concerned hold the
licences and authorisations required under the Regulation on taxi services in
the metropolitan area of Barcelona. In order to determine whether the practices
of Uber can be classified as unfair practices that infringe the Spanish rules
on competition, the Juzgado de lo Mercantil No 3 de Barcelona considers it
necessary to ascertain whether or not Uber requires prior administrative
authorisation. To that end, the court considers that it should be determined
whether the services provided by Uber are to be regarded as transport services,
information society services or a combination of both. Indeed, whether or not
prior administrative authorisation may be required depends on the
classification adopted. In particular, if the service at issue were covered by
the directive on services in the internal market or the directive on electronic
commerce , Uber’s practices could not be regarded as unfair practices.
Judgement
The CJEU declares that an intermediation service such as
that at issue in the main proceedings, the purpose of which is to connect, by
means of a smartphone application and for remuneration, non-professional
drivers using their own vehicle with persons who wish to make urban journeys,
must be regarded as being inherently linked to a transport service and,
accordingly, must be classified as ‘a service in the field of transport’ within
the meaning of EU law. Consequently, such a service must be excluded from the
scope of the freedom to provide services in general as well as the directive on
services in the internal market and the directive on electronic commerce. It
follows that, as EU law currently stands, it is for the Member States to
regulate the conditions under which such services are to be provided in
conformity with the general rules of the Treaty on the Functioning of the EU.
The Court takes the view, first of all, that the service
provided by Uber is more than an intermediation service consisting of
connecting, by means of a smartphone application, a non-professional driver
using his or her own vehicle with a person who wishes to make an urban journey.
Indeed, in this situation, the provider of that intermediation service
simultaneously offers urban transport services, which it renders accessible, in
particular, through software tools and whose general operation it organises for
the benefit of persons who wish to accept that offer in order to make an urban
journey. The Court notes in that regard that the application provided by Uber
is indispensable for both the drivers and the persons who wish to make an urban
journey. It also points out that Uber exercises decisive influence over the
conditions under which the drivers provide their service.
Therefore, the Court finds that that intermediation service
must be regarded as forming an integral part of an overall service whose main
component is a transport service and, accordingly, must be classified not as
‘an information society service’ but as ‘a service in the field of transport’.
The Court states that, consequently, the directive on
electronic commerce does not apply to that service, which is also excluded from
the scope of the directive on services in the internal market. For the same
reason, the service in question is covered not by the freedom to provide
services in general but by the common transport policy. However, non-public
urban transport services and services that are inherently linked to those
services, such as the intermediation service provided by Uber, has not given
rise to the adoption of measures based on that policy.
