EU member states can ban ride-hailing pioneer Uber without informing the European Commission because at heart it is an ordinary transport company under their jurisdiction, a top EU lawyer said on Tuesday (4 July).
San Francisco-based Uber insists it is a service rather than a transport provider, connecting riders with freelance drivers directly through a digital platform.
Accordingly, the company has argued that it could benefit from an EU directive that requests member states to notify the Commission of any law affecting any product or digital service that could alter the internal market.
But several countries, led by France, have banned Uber’s low-cost UberPop without notifying the EU institutions as critics and competitors say the budget service avoids regulation.
Maciej Szpunar, an advocate general with the Luxembourg-based European Court of Justice (ECJ), said Uber was, in fact, an ordinary transport company, so member states could go ahead and regulate its activities without notifying the Commission in advance.
The ECJ’s advocate generals — its top lawyers — are regularly called on to provide initial guidance to the court which in most instances follows their advice in its final rulings.
“We have seen today’s statement and await the final ruling later this year,” an Uber spokeswoman told Reuters in an email.
“This case relates to a French law from 2014 and affects peer-to-peer services which we stopped in 2015. Uber today works only with professional licensed drivers in France,” she added.
Szpunar recalled its recent opinion on a related case concerning Uber Spain. He concluded that UberPop “does not constitute an information society service.”
He also argued that even if the ECJ, the EU’s highest court, should at some stage determine that UberPop was indeed an information service provider, a ban in response to “the illegal exercise of a transport activity does not constitute a technical regulation within the meaning of the directive.”
“Notification of the draft law to the Commission would not be necessary in that situation either,” Szpunar said.
He argued that member states only had a duty to notify the Commission if they took a specific, targeted action against information service providers.
“Rules which affect those services only in an implicit or incidental manner are excluded from the notification obligation,” he said.
The French authorities banned Uber after violent protests by traditional taxi drivers.
Uber in turn filed a complaint with the EU against France and other states, arguing that national policies hostile to its operations violate European law.
Uber argued that France breached the Single Market Transparency Directive (Directive 2015/1535). This EU law is a tool for assessing compliance of national draft technical regulations with EU Law before their adoption.
This is a preventive, technical mechanism to provide the Commission and Member States with the opportunity to react to ensure the smooth functioning of the Internal Market.
Starting from the date of the notification, a three-month period comes into place, during which the notifying Member State must refrain from adopting the technical regulation in question.
A detailed opinion is sent when it is considered that the draft technical regulation may create obstacles to the free movement of goods, the freedom to provide digital services (Information Society services) or the freedom of establishment of Information Society services operators within the internal market.