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France entitled to ban UberPop service

France is entitled to prosecute Uber for operating its 'UberPop' carpooling service in breach of French law without first notifying the European Commission, the EU's highest court has ruled.11 Apr 2018

Uber France had argued that the French law banning the service is caught by an EU law which requires member states to notify the Commission before they can enforce "technical regulations relating to products and information society services".

In December, in a separate case originating in Spain, the Court of Justice of the EU (CJEU) ruled that Uber did not provide information society services, but rather transport services.

"The same holds true, for the same reasons, with regard to the intermediation service at issue in [the present case], as the information available to the court shows that the service is not essentially different from the service described in [the Spanish case], that, however, being a matter for the referring court to verify," the CJEU said.

"Accordingly, subject to that verification, legislation such as that in the main proceedings, relied on in the criminal proceedings against the company providing that intermediation service, cannot come within the scope of [the EU law]," it said.

The UberPop service uses the Uber smartphone app to connect potential passengers with unlicensed, non-professional private drivers using their own private vehicles. This differentiates it from many of the other services provided by Uber, which connect potential passengers with professional drivers licensed under local laws.

A French law which came into force on 1 January 2015 made 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. The French authorities have brought criminal proceedings against Uber France under that law in relation to the UberPop service, which was withdrawn in France in 2015.

However, under EU legislation, a member state must notify the Commission of any draft law or draft regulation laying down technical regulations relating to information society products or services before that law or regulation is finally adopted. The French authorities did not do so, leading Uber to argue that the law was unenforceable.

The CJEU, in its judgment in the Spanish case, ruled that Uber could not be classed solely as a provider of information society services, as claimed by the company, since its drivers do not pursue an autonomous activity independent of the platform. Rather, the intermediation was an "integral part of an overall service the main component of which was a transport service". In this way, it could be distinguished it from other intermediary platforms which fall within the definition of information society services, such as those for booking flights or hotels.

Applying the same reasoning to the French case, the CJEU ruled that the French authorities were not required to notify their transportation law to the Commission, as the provisions regarding information society services did not apply.

In an opinion published in July, before the CJEU gave its decision in the Spanish case, CJEU advocate general Maciej Szpunar went on to say that the French government had the right to act regardless of whether UberPop was ultimately a transport service or an information society service as the law in question affected the service "only in an incidental manner". The CJEU did not consider this point, given its findings in the Spanish case.