WT-shared – Riggwelter
(LUXEMBOURG) – Uber, the taxi app for smartphones, again found itself on the wrong side of the EU’s top Court Tuesday when its Advocate-General said France could ban it for “illegal exercise of transport activities”.
Two months ago, the electronic taxi platform was told it could not get out of obtaining necessary transport licences under Sapinish national law.
This time it was the French company Uber France that was in trouble, specifically the ‘UberPop’ service whereby non-professional private drivers transport passengers using their own vehicles.
France had brought criminal law proceedings against Uber France for having organised, by means of the UberPop service, a system for putting customers in touch with non-professional drivers who transport passengers for consideration using vehicles with fewer than ten seats.
Uber France maintained that the provision of French law on which those proceedings were based constitutes a technical regulation which directly concerns an information society service within the meaning of the directive on technical standards and regulations – a directive that requires EU Member States to notify the Commission of any draft law or rules laying down technical regulations relating to products and information society services.
As the French authorities had not notified the draft law to the Commission, Uber France inferred it could not be prosecuted.
However, in today’s Opinion, Advocate General Maciej Szpunar said that, irrespective of whether the UberPop service falls within the scope of the directive, EU Member States were justified in prohibiting and punishing the illegal exercise of a transport activity such as UberPop, without having to notify the Commission of the draft law in advance.
As to whether the UberPop service constituted ‘an information society service within the meaning of the directive’, the Advocate General concluded that prohibiting and punishing the activity of an intermediary, such as Uber, in the illegal exercise of a transport activity did not constitute a ‘technical regulation’ within the meaning of the directive, so EU notification was not necessary.
It was noted that if every national provision that prohibited or punished intermediation in illegal activities had to be regarded as a technical regulation merely because the intermediation most likely takes place by electronic means, a great number of internal rules in the Member States would have to be notified as technical regulations.
The Opinion is not the end of the matter. But while the Advocate General’s Opinion is not binding on the Court of Justice, it is rare for such an Opinion to be overturned by the full Court.
Advocate General’s Opinion in Case C-320/16 – Uber France SAS
