Why Uber Isn’T Appy: The Ecj Defines The Departure Betwixt Carry As Well As Digital Services

Lorna Woods, Professor of Internet too Media Law, University of Essex

The Court of Justice has followed its ain established tradition too given us a significant judgment just soon earlier a vacation break, perchance inwards the promise that whatever emotionally driven (negative) reply volition possess got gone away past times the fourth dimension every 1 has got dorsum to work. Last twelvemonth nosotros had Tele2/Watson (discussed here); this twelvemonth it is Uber. The Court, inwards a relatively curt judgment, seems to possess got followed its Advocate General (discussed here) - at to the lowest degree inwards final result - to detect that Uber provides a shipping service that may live regulated past times the relevant Member State. While Uber may advise at to the lowest degree inwards media reports that this ruling is non that pregnant to its business, the ruling may live the discipline of approximately scrutiny past times legal advisors to intermediation services to sympathise exactly the betoken at which such services are no longer to live considered information social club services (within the eCommerce Directive) too what they mightiness live considered to live instead.

To sympathise the significance of the judgment at this point, it is necessary to possess got approximately awareness of the patchwork of European Union legislation potentially roofing these services. The eCommerce Directive provides the framework for online businesses too famously provides the rubber harbour provisions for those providing approximately forms of intermediation services: mere conduits; providers of caching services; too hosts. This directive also provides for regulation inwards house of institution inside the plain of the directive, too limits the sorts of regulation that may live allowed. Specifically licensing for the service is non permitted.

The Services Directive provides a like approach, but surely sectors are excluded (gambling equally good equally transport, for example) too may hence live discipline to to a greater extent than detailed regulatory systems. Broadcasting (audiovisual media services) are discipline to a split regime too, which specifies surely rules almost the content that may live provided on such services.

In sum, the categorisation of a service into a special category affects the extent to which those services may live discipline to regulation. The providers of electronic intermediation services possess got to engagement benefitted from a regulatory approach which non solely limits regulation but inwards approximately instances protects them also from liability inwards the interests of developing the marketplace pose inwards such services.

What nosotros meet amongst Uber, too other intermediation services, is non just the connector of 2 individuals or entities who desire to contract amongst 1 approximately other but the creation of that circumstance equally good equally the command over the price on which that draw of piece of work organisation is carried out. Essentially, the inquiry earlier the Court was whether such behavior was just almost providing technical services (an app) or whether the command was such that the intermediary had gone beyond intermediation too at what betoken that boundary was overstepped. 

The Court hither confirmed that, inwards principle, a service providing information from 1 political party to approximately other would autumn inside the eCommerce Directive equally an information social club service (though it did non provide the detailed analysis of the Advocate General); taxis are past times contrast shipping services. The service provided past times Uber was to a greater extent than than "an intermediation service consisting of connecting, past times agency of a smartphone application, a non-professional driver using his or her ain vehicle amongst a somebody who wishes to brand an urban journey" (para 37).

From the Court’s perspective, it seems that at that spot are 3 elements – though their interrelationship is non clear:

That the services live integral to the provision of other services (para 40);

The marketplace pose creation human face (para 39) – that is the service providers would non provide the service without the platform’s intervention (in the Court’s words the service providers were ‘led’ to create this); and

The decisive influence past times the platform over the weather nether which that service is provided (para 39).

Given the construction of the Court’s judgment (and its utilisation of the give-and-take ‘thus’ at the get-go of para 40), it could live argued that the over-arching concern is that identified at (1), but that the issues identified at (2) too (3) care pose a services integral nature. Whether, however, both marketplace pose creation too command of weather are necessary.  The Court did non brand this betoken limited but only listed them equally factors inwards this instance; inwards this at that spot is a similarity to the Opinion of the Advocate General. 

As previously noted, this number may possess got consequences for other platforms inwards the sharing economic scheme too whether they are seen equally role of the service that they facilitate. In essence nosotros are seeking to house these platforms on a scale betwixt bulletin board, customer management organisation too agency.

The Court did non expressly consider a betoken which was fundamental to the reasoning of the Advocate General – that is, the inquiry of whether the 2 elements could live seen equally economically independent of 1 approximately other (in which case, they should live viewed separately).  One reply would live to regime notation that the Court has talked of the electronic communications human face existence integral to the overall service. The terrain described past times points 2 too 3 to a higher house even so is non exactly that of economical interdependence, though the Court suggests equally the Advocate General argued that the economical action is taking house solely because of the role played past times the platform. 

Does this so advise that at that spot is a deviation betwixt service which amateurs are encouraged to render too those supplied past times those professionally so engaged? This distinction may non brand much feel inwards the context of the gig economic scheme too piecework systems of what is de facto employment.

By contrast to the Advocate General, the Court – afterward lastly that neither the eCommerce Directive nor the Services Directive was applicable to Uber’s app – took the thought that the app was role of a service inwards the plain of carry since that concept “includes non solely carry services inwards themselves but also whatever service inherently linked to whatever physical deed of moving persons or goods from 1 house to approximately other past times agency of transport” (para 41). 

Consequently, the Court avoids having to follow the reasoning of the Advocate General to detect Uber responsible for the taxi drivers, instead going instantly to the betoken that Member States may regulate the circumstances inwards which such intermediation takes house (para 47). This seems a to a greater extent than logical final result of the reasoning than the somewhat artificial distinction that the Advocate General made betwixt app too taxi service. It does mean, however, that those providing apps to facilitate the provision of services may detect themselves having to await to the regulatory framework for that special service, rather than the regulatory framework for electronic communications.

Barnard & Peers: chapter 14

Photo credit: The Independent

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