Maciej Szpunar, an advocate general at the European Court of Justice, has stated that the Uber electronic platform, whilst innovative, falls within the field of transport.
That means Uber can be required to obtain the necessary licences and authorisations under national law in EU member states, Szpunar said in a preliminary opinion.
Uber cannot claim the benefit of the principle of the freedom to provide services guaranteed by EU law for information society services.
The advocate general issued his opinion on 11 May on the complaint by Elite Taxi Barcelona and referred by the Juzgado de lo Mercantil n°3 de Barcelona, a commercial court in the Spanish city, to the ECJ in Kirchberg.
A composite service
He took 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.
Szpunar observed that the drivers who work on the Uber platform do not pursue an autonomous activity that is independent of the platform. On the contrary, that activity exists solely because of the platform, without which it would have no sense.
The advocate general also pointed out that Uber controls the economically important aspects of the urban transport service offered through its platform.
Indeed, he said that Uber (i) imposes conditions which drivers must fulfill in order to take up and pursue the activity; (ii) financially rewards drivers who accumulate a large number of trips and informs them of where and when they can rely on there being a high volume of trips and/or advantageous fares (which thus enables Uber to tailor its supply to fluctuations in demand without exerting any formal constraints over drivers); (iii) exerts control, albeit indirect, over the quality of drivers’ work, which may even result in the exclusion of drivers from the platform; and (iv) effectively determines the price of the service.
Uber needs licenses
Because 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 gdvocate general proposes that the court should rule that the service offered by the Uber platform must be classified as a ‘service in the field of transport’.
Uber would thus be subject to the conditions under which non-resident carriers may operate transport services within EU member states (in this case, possession of the licences and authorisations required by the city of Barcelona’s regulations).
The advocate general’s opinion is not binding. It is the role of the advocates general to propose to the court, in complete independence, a legal solution to the cases for which they are responsible. A panel of judges will now begin their deliberations in this case. That judgment will be given at a later date.
The European Court of Justice does not decide legal disputes itself. It is for the national court or tribunal to dispose of the case in accordance with the court’s decision, which is similarly binding on other national courts or tribunals before which a similar issue is raised.