Uber is transport service according to Court of Justice

(22-12-2017) Court of Justice, 20 December 2017, C-434/15, Uber Spain: is Uber a transport service or an information society service? Does this judgment also impact the qualification of the relationship between Uber and its drivers?

For the first time the Court of Justice of the European Union (CJEU) had to deal with Uber, more in particular Uber Spain. The judgment was delivered on 20 December 2017 (case C-434/15). National courts had already in a few cases passed judgment on this – in one or the other direction.

Lately, a lot of attention is paid to the use of electronic platforms and the impact on social law. Especially: are persons who work for these platforms employees or are they self-employed? After all, many of the traditional control measures linked to the employer are in this case implemented by an electronic platform. A more than well-known example is Uber.

However, the question which the CJEU had to answer: is Uber a transport service or an information society service?

Uber uses new technologies like geolocation and smartphones to organise urban transport. However, this innovation also relates to the organisation of the transport itself. The use of the app is thus not a separate economic activity; it allows drivers and users to come into contact, and therefore makes the transport possible. So both are inextricably linked.

What's more, Uber exercises control over several relevant aspects of an urban transport service (elements that are often linked to the status of employer): over the price, but also over

  • minimum safety requirements, by means of prior requirements for the drivers and the vehicles
  • the accessibility of the transport supply by encouraging the drivers to work at certain times and at certain locations with a high demand
  • the drivers' behaviour, by means of the assessment system
  • the possibility to be excluded from the platform.

By doing so, Uber exerts control over factors that are economically relevant for the transport service offered within the platform. That is why Uber cannot be considered a mere intermediary between the drivers and the passengers. The drivers who work within the Uber platform do not perform an activity of their own that would also exist independently from the platform.

The CJEU's standpoint: Uber is a transport service falling under the free movement of services applicable to the transport sector, as is stated in Article 58 (1) of the Treaty on the Functioning of the European Union. However, this judgment does not at all imply a judgment on the status of the drivers working for Uber. That is not what this case was about. It is therefore not excluded that service providers like this use self-employed persons. We should thus be careful about expecting too much from this judgment. Whether these persons are employees or self-employed persons depends on national law. We may therefore expect a number of cases to pop up before the national courts about the status of persons working for an electronic platform – it can be assumed that the CJEU's decision applies to other electronic platforms as well – and the different kinds of problems of legal qualification that go with it.

(Yves Jorens)