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EU: ECJ in Uber France - ‘UberPop’ App for putting non-professional drivers using their own vehicle in contact with persons who wish to make urban journeys is a transport service and not only an intermediate information service

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Case C-320/16, Uber France SAS v. Nabil Bensalem

On 10 April 2018, the ECJ decided that Uber's UberPop ridesharing service is a "service in the field of transport" within the meaning of Article 2(2)(d) of the Services Directive. Article 2(2)(d) of the Services Directive explicitly excludes transport services from the Directive's scope.

The underlying case at the Lille Regional Court dealt with a private prosecution and civil action brought against Uber France by a taxi driver based, inter alia, on a newly introduced provision of French criminal law which prohibits and penalises the organisation of a system for putting customers in touch with persons who engage in the carriage of passengers by road without authorisation.

Uber maintained that the French legislation constituted a technical regulation which concerns an information society service within the meaning of Directive on Information Society Services 98/34/EC of 22 June 1998. That Directive requires EU Member States to notify the EU Commission of any draft rules laying down technical regulations relating to products and information society services, failing which those rules will be unenforceable against individuals.

In the present case, the French authorities had not notified the legislation in question to the Commission prior to its promulgation.

In other words: the ECJ was requested to either establish whether the provision of French law must be classified as a rule on information society services (which are subject to the obligation of prior notification to the Commission), or whether, conversely, the provision of French law  concerns a transport service, to which the Directive on Information Society Services and the Services Directive does not apply.

The ECJ followed the reasoning which it had developed in the earlier case C-434/15, Uber Spain. In that case, the ECJ held that while in principle an intermediation service that enables the transfer, by means of a smartphone application, of information concerning the booking of a transport service between the passenger and the driver does meet the criteria for classification as an "information society service", Uber's commercial offering consists of more than an intermediary service and its service is "inherently linked" to the offer of transport services.

The ECJ argued that Uber is involved in the selection of the non-professional drivers and provides them with the application required to connect with service users. Moreover, Uber exercises a decisive influence over the conditions under which services are provided by the drivers, for instance by: (i) determining a maximum fare; (ii) receiving the fare from the passenger; (iii) subsequently forwarding the fare to the driver; and (iv) exercising a degree of control over the quality of the vehicle and the conduct of the driver.

Therefore, in Uber Spain, the ECJ reached the conclusion that Uber's intermediation service has to be regarded as forming an integral part of an overall service the main component of which is a transport service and that, accordingly, Uber offers a "service in the field of transport". In the present case, the ECJ was of the opinion that the UberPop service on offer in France is essentially identical to the service provided in Spain.

The ECJ concluded that the French legislation cannot be classified as a rule on information services and that, therefore, the obligation of prior notification to the Commission did not apply. The newly introduced provision of French criminal law which prohibits and penalises the organisation of a system for putting customers in touch with persons who engage in the carriage of passengers by road without authorisation is therefore applicable: Uber must comply with the relevant rules for taxis and other transport companies in France.