Advocate General: France may ban UberPop service under national law

Uber France has argued that the legal provision on which France's action is based is a 'technical regulation' relating to an 'information society service', and that the European Commission must be notified before the French government can act on it. The French government, like that of other European countries, is of the view that Uber France provides transport services rather than information society services.

According to advocate general Maciej Szpunar, the French government has the right to act in this case irrespective of whether the UberPop service is a transport service or an information society service. He said that the French law in question affected information society services "only in an incidental manner", as it was designed to ensure the effectiveness of the rules relating to transport services.

Szpunar has already suggested that Uber should be classed as a transport provider and not an information society service, in a separate opinion given in a Spanish case in May. Both cases will now be heard by the Court of Justice of the European Union (CJEU), which is not bound by the advocate general's opinions.

Uber customers use a smartphone app to order urban transport services. The app recognises the location of the user and alerts nearby drivers. Once the trip is complete, the fare is automatically charged to the user's pre-registered bank card. The UberPop service connects potential passengers with unlicensed, non-professional private drivers, using their own private vehicles.

French legislation makes it a criminal offence to organise a system for introducing customers to persons carrying passengers by road for money, using vehicles with fewer than 10 seats. Last year, the French authorities brought criminal proceedings against Uber France under that law, in relation to the UberPop service. The service was withdrawn in France in 2015.

Giving his opinion in the case, advocate general Szpunar expanded on his opinion in the Spanish case in May. Then, Szpunar said that Uber could not be classed solely as a provider of information society services since its drivers do not pursue an autonomous activity independent of the platform. This distinguishes it from other intermediary platforms, for example those for booking flights or hotels. Uber imposes conditions that drivers must fulfil in order to offer rides to users of the platform, and also exerts indirect control over the quality of drivers' work, he said.

Assuming that Uber provided a transport service rather than an information society service, Uber France's argument that the French government had breached 'technical regulation' notification requirements relating solely to information society services was irrelevant, the advocate general said. However, even if the CJEU did later rule that Uber provided information society services, the French government was still not obliged to notify the European Commission of the law in question, he said.

"Not every provision that concerns, in one way or another, information society services automatically falls within the category of technical regulations," he said.

"It must be observed that the purpose of the provision [at issue in this case] is not to prohibit or to regulate in some other way the activity of putting customers in touch with providers of transport services in general. The purpose of the provision is solely to prohibit and to punish the activity of intermediary in the illegal exercise of transport activities. The activity of intermediary in legal transport services remains entirely outside the scope of the provision," he said.

"The provision affects information society services only in an incidental manner. Indeed, the purpose of the provision is not to regulate such services specifically, but to ensure the effectiveness of the rules relating to transport services, which are not covered by [the technical standards directive]," he said.