The emergence of Uber, as well as other service providers that use sharing economy, has created multidimensional problems resulting from the need to define their legal nature. Protests by traditional carriers against unfair competition in their opinion are one of the effects of the lack of balance between the level of regulation of taxi drivers and Uber. The platform, not limited by the need to obtain appropriate licenses or permits that traditional carriers must obtain, developed very quickly. However, Uber's entry into new markets has brought consequences in the form of court rulings from various countries, which define what Uber is from their legal perspective. Unfortunately, there is no ruling by the Court of Justice of the European Union on the nature of the services offered by Uber, but since 11 May 2017 we have had the opinion of the Advocate General of the CJEU on this subject, which provides a noteworthy direction for further legal reflections.
Joanna Mazur, Analyst DELab UW
In 2015, Uber was a party to over 170 court proceedings. Examples of the issues considered included: the question of whether drivers using the application to provide transport are Uber employees, the problem of the requirement to have a license and a cash register for drivers providing transport using the application, and tax issues. Although the questions asked in individual cases take different forms and concern different branches of law, their common denominator is the need to determine the relationship between the traditional passenger transport service and transport provided via the platform. Based on the judgments issued so far, it can be risked to say that new business models in the digital economy are not perceived as "new" by the courts.
The Opinion of the Advocate General of 11 May 2017 in Case C‑434/15 Asociación Profesional Elite Taxi v Uber Systems Spain SL also leads to such conclusions. The preliminary questions under consideration were primarily intended to obtain information on Uber’s activities: whether it is an information society service or a service in the field of transport. An analysis of the meaning of these terms, combined with an examination of the nature of the services offered by Uber, led to the conclusion that Uber cannot be regarded as a car-sharing platform.
According to the opinion:
Drivers on this platform offer passengers a transport service to a location chosen by the passenger and in return receive remuneration in an amount that significantly exceeds the usual reimbursement of costs incurred. It is therefore a classic transport service. Whether it should be considered a component of the "social economy" is irrelevant for the purposes of its qualification under applicable law.
The classification of Uber's activity into the category of transport services is primarily justified by its control over all the elements of the service offered by the platform that are significant from an economic point of view. A number of aspects are raised, such as control over the price of the service and the conditions that the driver and the car he uses must meet; the inability to provide the service without the intermediation of the platform; and the perception of application users, for whom Uber is the entity providing the service they use. According to the spokesperson, Uber's activity is "a single service covering both the search for an available driver and booking a trip, as well as the provision of transport in the strict sense" therefore: "can be considered a service in the field of transport" (point 67 of the opinion). The analysis conducted by the Ombudsman dispels the myth of Uber as a platform from the category of the so-called sharing economy. The arguments used in the justification allow us to look at the service from the perspective that the most important thing is the function performed by the platform and the economic nature of the business activity.
The dispute over the legal nature of Uber, however, involves not only the “platform”, traditional carriers and courts. An important player is the state or local authorities, whose decisions may lead to restrictions on the possibility of using the application or imposing specific requirements on platform-based services in terms of having licenses, cash registers or tax obligations. In the Polish reality, the impasse caused by the tension between the dominantly functional approach to innovative solutions presented by the courts (according to which Uber drivers are de facto taxi drivers) and the techno-optimistic approach presented by some state authorities, leads to a prolonged state of uncertainty as to the law applicable to innovative players creating competition for traditional service providers. It remains to be hoped that ultimately the CJEU ruling will at least lead to the legal status of transport services based on the internet platform model being sorted out at the EU level.
The content of the opinion is available here.
