Do occasional private car drivers who use Uber’s software and get paid to take people on journeys but who do not receive remuneration or a wage, provide a taxi service requiring a license?
TRB is a company in Brussels running a taxi call-centre. That is to say, people wanting a taxi can telephone TRB, who will then contact taxi drivers that are on its books.
Officially, TRB is not actually providing a taxi service and is therefore not subject to Brussels’ taxi laws. Instead, it is the taxi drivers on TRB’s books who are registered, licensed taxi drivers.
A dispute has arisen between the Belgian company TRB on the one hand, and a group of companies related to the Dutch branch of Uber on the other. Basically, TRB objects to Uber providing private car drivers in Brussels with a piece of software that allows them to pick up people and take them on journeys akin to a ‘taxi service’.
TRB takes particular objection to the fact that those drivers do not possess the relevant taxi license and are not subject to the relevant laws for providing a taxi service. This, TRB claims, results in Uber trading contrary to Belgium’s laws of unfair competition both towards taxi call-centres in Belgium, and taxi drivers who are licensed in Brussels.
Uber denies being in competition with TRB, which it sees as abusing a monopoly. Rather, Uber sees itself as an intermediary. Its software facilitates the social sharing of taxi costs among a community of private drivers and private travellers. This community is also policed with the aid of its software because if anything untoward happens, then the software alerts the members of the community of this event. For this, Uber reckons that it does not need taxi permits because, like TRB, it is merely supplying a ‘dispatch service’.
More importantly, Uber claims that a 1995 Brussels Ordinance concerning taxi services and the hiring of vehicles with drivers, does not apply to Uber. This is because the money which a driver receives constitutes neither remuneration nor a wage. Rather, the money is simply compensation that helps private individuals with the costs associated with running their own car, and who chose to do so by sharing their car with others.
This argument perplexed the judge hearing the dispute. While it seemed clear that a driver in receipt of an amount above that which was necessary to cover the costs of a trip would then constitute a remunerated taxi service and thus need a licence, could the same be said for an amount that merely covered the cost of the trip?
If those drivers too would be obliged to obtain a taxi licence, then would that be proportionate and thus compatible with the EU rules on freedom to provide a service?
My unofficial translation of the question asked by the Brussels District Commercial Court reads:
Is the principle of proportionality – enshrined in Articles 5 and 52(1) of the EU Charter, and read together with Articles 15, 16, and 17 of the EU Charter plus Articles 28 and 56 TFEU – to be interpreted as precluding a measure such as that set out in the Brussels Conurbation Ordinance of 27 April 1995 concerning taxi services and the hiring of vehicles with drivers, whereby the concept of “taxi services” would apply equally to unremunerated occasional private carriers who engage in ride-sharing (shared transport) as a result of accepting journey requests that are offered to them via Uber BV et al.’s software application program, namely from companies which are established in another Member State?
The freedom to conduct a business, enshrined in Article 16 of the EU Charter, is also at stake in a number of other references currently pending before the CJEU: Case C-547/14, Philip Morris Brands – the Second Tobacco Products Directive is invalid; Case C-484/14, McFadden – a mere conduit?
Readers interested in how technology can destroy an old order of labour are referred to another preliminary reference which is also pending before the CJEU and involves Uber; see further, Case C-434/15, Asociación Profesional Élite Taxi – Uber’s new software destroys the old order of labour.
Readers interested in Uber’s software might also want to find a copy of the judgment of the High Court of England and Wales handed down on 16 October 2015 for it discusses whether Uber’s app. constitutes a ‘taximeter’.
Update – 7 November 2015
Yesterday, the BBC website indicated that 100 Uber drivers have lodged proceedings in the English courts in which they claim to be employees rather than self-employed.
Update – 9 June 2016
The Curia website indicates that Uber is involved in a preliminary reference that has recently been made to the CJEU from the TGI Lille. The reference is docketed as Case C-320/16, Uber France.
Update – 16 August 2016
Volume C296 of the EU’s Official Journal indicates that the questions in Case C-320/16, Uber France are:
1. Does Article L.3124-13 of the Code des transports, inserted by Law No 2014-1104 of 1 October 2014 on taxis and private hire vehicles, constitute a new technical regulation that is not implicit and that relates to one or more information society services, within the meaning of Directive 98/34/EC […] such that, pursuant to Article 8 of that directive, it had to be notified in advance to the European Commission, or does it fall within the scope of Directive 2006/123/EC […] on services, Article 2(d) of which excludes transport?
2. In the event that that question is answered in the affirmative, does a failure to satisfy the notification requirement laid down in Article 8 of the directive mean that Article L.3124-133 of the Code des transports is unenforceable against individuals?
On the ‘transport exception’, readers are reminded of the case law mentioned in the earlier Uber preliminary reference from the Spanish courts; see earlier, Case C-434/15, Asociación Profesional Élite Taxi – Uber’s new software destroys the old order of labour.
The ability of a regulatory decision that denies access to a piece of technology but then goes on to affect the supply of services in the internal market, is also at stake in the ‘Lahorgue’ preliminary reference to the CJEU.
Update – 13 September 2016
There has been another preliminary reference to the CJEU about taxis in Brussels. According to the Curia website, the Cour d’appel de Bruxelles in Case C-253/16, Flibtravel has asked:
1. Must Article 96(1) TFEU be interpreted as being capable of application to rates and conditions imposed by a Member State on taxi service operators where:
(a) the taxi journeys concerned are only exceptionally made across national borders;
(b) a significant proportion of the customers of those taxis consists of EU nationals or residents who are not nationals or residents of the Member State in question; and
(c) in the specific circumstances of the case, the taxi journeys at issue are, for the passenger, very often no more than one stage in a longer trip the final destination or point of departure of which is in an EU country other than the Member State in question?
2. Must Article 96(1) TFEU be interpreted as being applicable to operating conditions other than fare conditions and the criteria for obtaining authorisation to carry on the transport activity in question, such as, in this case, a prohibition preventing taxi operators from making available individual seats rather than the vehicle in its entirety, and a prohibition on those operators determining themselves the final destination of the journey that they are offering to customers, which has the effect of preventing those operators from grouping together customers who are travelling to the same final destination?
3. Must Article 96(1) TFEU be interpreted as prohibiting, unless authorised by the Commission, measures such as those referred to in the second question (a) the general aim of which, among other objectives, is to protect taxi operators from competition from private hire vehicle companies and (b) the specific effect of which, in the particular circumstances of the case, is to protect coach service operators from competition from taxi operators?
4. Must Article 96(1) TFEU be interpreted as prohibiting, unless authorised by the Commission, a measure which prohibits taxi operators from soliciting customers where the effect of that measure in the particular circumstances of the case is to reduce their capacity to attract customers away from a competing coach service?
Readers of EU Law Radar might recall that protecting taxi drivers from private hire vehicles was at stake in Case C-518/13, Eventech – driving a minicab through the rules governing bus lanes.