Advocate General’s Opinion – Uber provides a transport service not an information society service

In the case of APET v Uber Spain (Case C-434/15), the Spanish court ordered that Uber cease its services in Spain as Uber did not have the correct and appropriate national licences for a taxi operator.

This decision was challenged by Uber on the basis that Uber was an electronic intermediary and it provided an information society service, specifically an “intelligent telephone and technological platform”. An information society service is one where the service is provided electronically, at a distance, for the processing of data at the request of an individual recipient.

The Spanish court referred the matter to the Court of Justice of European Union (“CJEU”) for a determination as to whether the service Uber provided an information society service or a transport service. This distinction is extremely important, if Uber is providing an information society service it benefits from the principle of being able to freely provide those services across the EU, if on the other hand, Uber is providing a transport service, then it is subject to national laws regarding the licensing of transport services. In effect, if Uber was held to be providing a transport service then ban on its service would be lawful.

Decision

The Advocate General (“AG”) determined that Uber was providing a composite service, as part of the service was electronic and part (the carriage of passengers) was not. In order for a composite serve to qualify as an information society service it must (i) have economically independent supplies of the electronic and non-electronic services and the example given was in intermediation platforms for hotel or flight bookings or (ii) all of the services are supplied by the same supplier and both elements of the composite service are indivisible, for example the online sale of goods.

The AG’s opinion was that Uber did not meet either of the above criteria to be classified as an information society service. He noted that Uber’s drivers did not pursue an activity that was economically independent of the electronic platform – indeed the passenger carriage service only exists because of the platform. Also, Uber controls all economically important aspects of service and how it is delivered and therefore cannot be viewed as an intermediary.

In conclusion, the AG’s opinion was that Uber was not providing an information society service. Uber is offering a transport service for the organisation and management of a comprehensive system for on-demand urban transport. Therefore Uber should be subject to the same requirements as other taxi providers in member states.

Comment

The final decision of the CJEU will be eagerly awaited. It should be noted that the AG’s opinion is not binding on the CJEU. If the CJEU follows the legal opinion of the AG then Uber’s business model, as it stands will effectively be deemed unlawful. Uber will have to comply with national taxi licensing laws which at the very least will severely reduce the number of available drivers for the service. It should also be noted that Uber has also filed complaints against some member states based on EU competition law and if the CJEU’s decision follows the AG’s opinion then these complaints by Uber will also almost certainly be dismissed.

Here is a link to the opinion, which has just become available here.