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. In the case of a service going by the name UberPop, non-professional private drivers transport passengers using their own vehicles.
The Court of Justice of the European Union (CJEU) has been asked to rule on whether Uber is a transport service provider, information society service provider, or a combination of both, as this is relevant to a claim brought by Spanish taxi drivers association Asociación Profesional Élite Taxi (APET) against Uber in the country.
APET has claimed that Uber is in breach of Spanish competition laws on the basis that it provides transport services in Spain without having the authorisations necessary under Spanish law to do so.
In particular, APET said that Uber Spain is not entitled to provide the UberPop service in the city of Barcelona. Neither Uber Spain nor the owners or drivers of the vehicles concerned have the licences and authorisations required under the city of Barcelona’s regulations on taxi services.
Uber, however, argued that it is not a transport service provider, but a provider of information society services.
In his non-binding opinion the advocate general said that, although it is for the national court to determine and assess the facts, the service in question is a composite service since part of it is provided by electronic means while the other part is not.
A composite service could fall within the concept of 'information society service' if the part of the service that is not made electronically is not economically dependent on the service that is provided. This is the case, for example, with intermediate platforms for booking flights or hotels, the advocate general said.
It could also fall within the concept if the provider supplies the whole service, or has "decisive influence" over how the non-electronic part of the service is provided. This would cover the online sale of goods, for example, the advocate general said.
Uber does not meet either of these conditions, he said. Drivers who work on the Uber platform do not pursue an autonomous activity independent of the platform, and in fact their activity exists only because of the platform.
Uber imposes conditions that drivers must fulfil in order to take up that activity, and financially rewards drivers who undertake a large number of trips by telling them where and when they can find a high number of customers or better fares, the advocate general said. It also exerts indirect control over the quality of drivers' work, which could exclude drivers from the platform, and effectively determines the price of the service, he said.
These features "prevent Uber being treated as a mere intermediary between drivers and passengers", and it is undoubtedly transport that gives the service meaning, the opinion said.
The advocate general also found that Uber does not provide a ride-sharing service, as the passenger chooses the destination and the driver is paid an amount that exceeds the mere reimbursement of costs.
Based on these finding, the advocate general proposed that the court's answer should be that Uber's service must be classified as a "service in the field of transport".
It follows, he said, that Uber's activity is not governed by the principle of the freedom to provide services in the context of 'information society services', and is therefore subject to the same conditions as other carriers operating transport services in EU countries, and in this case, the regulations of the City of Barcelona.