CJEU Advocate General: Uber can be required to obtain the necessary licences under national law

Michael Wukoschitz's picture

In 2014 the Asociación Profesional Elite Taxi (‘Elite Taxi’), a professional organisation representing taxi drivers in the city of Barcelona, brought an action before Commercial Court No 3 in Barcelona asking the court, inter alia, to impose penalties on the Spanish company Uber Systems Spain SL (‘Uber Spain’), a company belonging to a group managing the Uber platform, for engaging in unfair competition towards Elite Taxi’s drivers. In particular, Elite Taxi maintained that Uber Spain is not entitled to provide the UberPop service in the city of Barcelona. Neither Uber Spain nor the owners or drivers of the vehicles concerned have the licences and authorisations required under the city of Barcelona’s regulations on taxi services.

The opinion delivered by Advocate General Maciej Szpunar on May 11, 2017 starts by explaining that it must essentially be determined whether the services offered by the Uber platform benefit, as ‘information society services’, from the principle of the freedom to provide services or whether its services fall within the field of transport, which is regulated by the law of the Member States.

The Advocate General takes the view that the service in question is a composite service, since part of it is provided by electronic means while the other part, by definition, is not. A composite service may fall within the concept of ‘information society service’ where

  • the supply which is not made by electronic means is economically independent of the service which is provided by that means (as is the case, for example, of intermediation platforms for purchasing flights or making hotel bookings) or
  • the provider supplies the whole service (that is, both the part provided by electronic means and the part provided by other means) or exercises decisive influence over the conditions under which the latter part is provided, so that the two services form an inseparable whole, a proviso being that the main component (or indeed all essential elements of the transaction) is supplied by electronic means (as is the case, for example, of the online sale of goods).

The opinion concludes that, in relation to the supply of transport, the supply whereby passengers and drivers are connected with one another by electronic means is neither self-standing nor the main supply. Consequently, the service offered by Uber cannot be classified as an ‘information society service’. Instead, the service amounts to the organisation and management of a comprehensive system for on-demand urban transport

Therefore, Uber’s activity is not governed by the principle of the freedom to provide services in the context of ‘information society services’ and that it is thus subject to the conditions under which non-resident carriers may operate transport services within the Member States ‑ in this case, possession of the licences and authorisations required by the city of Barcelona’s regulations.

Source: CJEU press release No 50/17 of May 11, 2017 regarding case C-434/15 - Asociación Profesional Elite Taxi

 

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