The example of Uber and other transport service platforms
The concept of “uberization” still refers to complex and poorly defined realities today. In fact, it encompasses all intermediary platforms that connect individuals for the provision of goods or services via a third-party digital platform. In this context, Uber’s activity is comparable to that of Deliveroo, Airbnb, or Amazon.
However, it is the ride-hailing platform launched in 2011 that has triggered a legal and social upheaval due to the new nature of the professional relationships between the parties and the intermediary offering the platform.
From its launch in France, the platform has been subject to very strict legal regulation—including legislation, priority preliminary rulings on constitutionality (QPC), and court decisions.
- The Thévenoud Law of October 1, 2014, and the Grandguillaume Law of December 29, 2016;
- Priority Preliminary Rulings on Constitutionality Nos. 2015-468/468/472 of May 22, 2015, and No. 2015-484 QPC of September 22, 2015;
- A double decision of the Council of State of December 17, 2014, Sas Allocab’ Nos. 374525 and 374553;
- A legislative rider in the Law of August 8, 2016, relating to the Charter, allowing for the prevention of a relationship of subordination, struck down by the Constitutional Council on September 4, 2018.
Intermediation: The refusal of a unified and binding community position
In two decisions in recent years, the CJEU has clarified the legal framework for these platforms, ultimately leaving Member States free to choose the regulations to apply to these services.
In the Uber Spain judgment of 20 December 2017 – C-434/15 Asociacion Profesional Elite Taxi v. Uber Systems Spain SL – the Court of Justice of the European Union ruled that UberPop falls within the scope of transport and does not constitute an information society service within the meaning of the Directive. It based its decision, in particular, on the company’s activity of offering transport services, as opposed to the matching service, which is ancillary to and dependent on the main service.
On 10 April 2018 – C-320/16, Uber France SAS – the CJEU ruled that Member States can prohibit and criminalize the illegal operation of a transport activity such as “UberPop” without having to first notify the Commission of the draft legislation criminalizing such activity.
Find a summary of subsequent decisions in our publication and intervention – Update on Intermediation Platforms
Intermediation platforms: Recent developments in Belgian legal systems
On January 16, Belgian courts dismissed the lawsuits filed against Uber. The judge based his decision, in particular, on the fact that “Uber does not provide a transportation service; it does not own any vehicles; it holds neither a taxi license nor a private hire vehicle (PHV) license.” This decision was immediately appealed by the Belgian taxi federation (Febet).
The Belgian courts’ position reveals the precarious status of intermediary platforms, which have been the subject of several rulings in recent months, notably in France concerning the Take Eat Easy platform and Uber, in which employee status was repeatedly applied to service providers using these platforms.
In this context, the upcoming “Mobility” bill will aim, in particular, to prepare a third status, somewhere between employee and entrepreneur, similar to the British “worker” status.
The complex future of online platform law
The variety of online services offered through platforms and/or marketplaces has led to a strict distinction by jurisdictions between information society services and those associated with a specific service – such as passenger or freight transport, hospitality, or the purchase of goods and services.
Faced with their considerable growth, public authorities are gradually adapting their legislation to better regulate these new uses and practices. New provisions include the French Mobility Orientation Law and the European “P2B” regulation on referenced marketplaces.
This is also reflected in tax matters through strengthened obligations and increased oversight by the relevant authorities, notably the Competition Authority and the DGCCRF (French Directorate General for Competition Policy, Consumer Affairs and Fraud Control).
Find our presentation at the Bar Training School on the legal framework for online marketplaces.
