AG: Uber electronic platform, whilst innovative, falls within the field of transport

Maciej Szpunar, one of the ECJ’s advocates general has opined that Uber cannot claim the benefit of the principle of the freedom to provide services guaranteed by EU law for information society services.

In 2014 the Asociación Profesional Elite Taxi (‘Elite Taxi’) brought an action before the Juzgado de lo Mercantil n° 3 de Barcelona (Commercial Court No 3, Barcelona) asking for penalties to be imposed on the Spanish company Uber Systems Spain SL (‘Uber Spain’) for engaging in unfair competition towards Elite Taxi’s drivers.

Elite Taxi maintained that Uber Spain was 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.

Since it considered that an interpretation of several provisions of EU law was necessary to enable it to give a decision in the case before it, the Juzgado de lo Mercantil n° 3 de Barcelona decided to refer a number of questions to the Court of Justice concerning the classification of Uber’s activity in light of EU law.

Advocate General Maciej Szpunar has opined 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.

In the first case, the licences and authorisations required by the city of Barcelona’s regulations concerning the operation of Uber could be incompatible with the principle of the freedom to provide services, whilst, in the second case, the Member States would in principle be free to regulate Uber’s activity.

The Advocate General takes the view that, although it is for the national court to determine and assess the facts, 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 or the provider supplies the whole service 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 is supplied by electronic means.

In the context of the composite service offered by the Uber platform, it is undoubtedly transport which is the main supply and which gives the service meaning in economic terms.

Consequently, the service offered by Uber cannot be classified as an ‘information society service’.

Taking account of the fact that the supply of transport constitutes, from an economic perspective, the main component, whilst the service of connecting passengers and drivers with one another by means of the smartphone application is a secondary component, the Advocate General proposes that the Court’s answer should be that the service offered by the Uber platform must be classified as a ‘service in the field of transport’ and can thus be required to obtain the necessary licences and authorisations under national law.

Read the full text of AG Maciej Szpunar’s Opinion here.