The dispute in the main proceeding and the question referred for a preliminary ruling
Asociación Profesional Elite Taxi (“Elite Taxi”), a professional taxi drivers’ association in Barcelona, brought an action before the Commercial Court No 3 of Barcelona, against Uber Systems Spain SL (“Uber”), a subsidiary of Uber Technologies Inc, seeking a declaration from that court that the activities of Uber infringe the legislation in force and amount to a misleading practices anf unfair competition within the meaning of the Unfair Competition Act No 3/1991.
Briefly, the claim relates to the provision of a service, by means of a smartphone application, by which Uber connected non-professional drivers without holding any administrative licence, and which used their own vehicle, with persons who wished to make urban journeys.
Within the framework of these proceedings, the Court of Barcelona sought a preliminary ruling of the Court of Justice of the European Union to ascertain whether Uber required a prior administrative authorisation. In that regard, the Court of Barcelona considered that it was necessary to determine in first instance whether the services provided by Uber were to be regarded as transport services, information services, or a combination of both. According to the Court, it was necessary to answer that questions first in order to determine thereafter whether a prior administrative authorisation would be required.
The Court of Justice’s decision on the preliminary ruling
The European Court has concluded that an intermediation service such as that at issue in the main proceedings, the purpose of which is to connect, by means of a smartphone application and for remuneration, non-professional drivers using their own vehicle with persons who wish to make urban journeys, must be regarded as being inherently linked to a transport service and, accordingly, must be classified as a service in the field of transport within the meaning of Article 58(1) TFUE. Consequently, the service was excluded from the scope of Article 56 TFUE, Directive 2006/123 and Directive 2000/31.
Justification for the judgement
This decision was based on the following considerations.
Firstly, the Court of Barcelona queried whether the services provided by Uber were to be considered as transport services and therefore, Article 58 TFEU would apply, or if they were to be considered as an intermediation service, Article 56 TFUE would apply.
In that regard, it should be noted that an intermediation service consisting of connecting a non-professional driver using his or her own vehicle with a person who wishes to make an urban journey is, in principle, a separate service from a transport service consisting on the physical act of moving persons or goods from one place to another by means of a vehicle. It should be added that each of those services, taken separately, can be linked to different directives or provisions of the TFEU on the freedom to provide services, as contemplated by the Court of Barcelona.
In a situation such as that with which the Court of Barcelona was concerned with, where passengers are transported by non-professional drivers using their own vehicle, the provider of that intermediation service simultaneously offers urban transport services, which it renders accessible, in particular, through software tools such as the application at issue in the main proceedings and whose general operation it organises for the benefit of persons who wish to accept that offer in order to make an urban journey.
Thirdly, Uber exercises decisive influence over the conditions under which that service is provided by those drivers. In this sense, it appears that Uber determines at least the maximum fare; the company receives that amount from the client before paying part of it to the non-professional driver of the vehicle; and that it exercises a certain control over the quality of the vehicles, the drivers and their conduct, which can, in some circumstances, result in their exclusion.
In this regard, that intermediation service must be regarded as forming an integral part of an overall service the main aim of which is to provide transport services and, accordingly, cannot be classified ‘an information service’.
However, it should be noted that non-public urban transport services and services that are inherently linked to those services, such as the intermediation service at issue in the main proceedings, have not given rise to the adoption by the European Parliament and the Council of the European Union of common rules or other measures based on Article 91(1) TFEU.
It follows that, as EU law currently stands, it is for the Member States to regulate the conditions under which intermediation services such as the service at issue in the main proceedings are to be provided in conformity with the general rules of the FEU Treaty.
On these grounds, the answer of the Court of Justice to the preliminary ruling is that the services provided by Uber must be classified as a service in the field of transport and therefore, within the meaning of Article 58(1) TFUE.
In the following link the Judgement of the Court of Justice of the European Union can be consulted.