In a preliminary opinion, the legal advisor took the view that “member states may prohibit and punish the illegal exercise of a transport activity such as Uberpop without having to notify the Commission of the draft law in advance,” according to a court press release. This would mean France would have the right to bring charges against the company for criminal activity as a transport company. 

Although the opinion is not binding, the advocate general’s role is to give his or her proposal to the court, and in the majority of cases, judges reach the same decision.

The reasoning provided by the top ECJ advisor is that the UberPop service, an application which connects non-professional Uber drivers and users looking for those drivers, does not fall under the scope of the directive laying out regulations on information society services. In other words: UberPop does not constitute an information society service, rather, it is a transport service.

Furthermore, Szpunar refers to his 11 May opinion in the Uber Spain case, also in which the UberPop service was in the realm of transport, not considered an information society service.

Uber, the US company which expanded into Europe five years ago, previously informed the European Court of Justice it was a digital service--not a transport service--and therefore should not be subjected to the tighter set of rules.

Case C 320/16 will now be considered by a panel of ECJ judges.