On 10 April 2018 the Court of Justice of the European Union handed down its judgment in Case C-320/16, Uber France SAS, ruling that Member States may prohibit and punish the illegal exercise of a transport activity such as UberPopwithout having to notify the Commission in advance of the draft legislation laying down criminal penalties for the exercise of such an activity.

The French company Uber Franceprovides, by means of a smartphone application, a service called UberPop, through which it puts non-professional drivers using their own vehicle in contact with persons who wish to make urban journeys. In the context of the service provided by means of that application, Uber Francefixes the rates, collects the fare for each journey from the customer before paying part of it to the non-professional driver and prepares the invoices.

Criminal law proceedings have been brought before the Tribunal de grande instance de Lille(Regional Court, Lille) against Uber Francefor having organised this service. According to the company, the French legislation on which those criminal proceedings against it are based constitutes a technical regulation which concerns an information society service within the meaning of Directive 98/34/EC laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on Information Society services. Under that Directive, Member States are obliged to notify the Commission of any draft legislation or rules laying down technical regulations relating to products and information society services, failing which that legislation or those rules will be subsequently unenforceable against individuals. Since the French authorities had not notified the criminal legislation in question to the Commission prior to its promulgation, Uber Francebelieved that it could not be prosecuted on the charges against it.

The Tribunal de grande instance de Lille, however, was uncertain as to whether the relevant French legislation should be regarded as establishing a ‘rule on Information Society services’ within the meaning of Directive 98/34/EC or as a rule on ‘services in the field of transport’ within the meaning of Directive 2006/123/EC on services in the internal market. Therefore, the Regional Court of Lille has decided to suspend the proceeding and ask the Court of Justice if the legislation at issue must be classified as a rule on information society services, subject to the obligation of prior notification to the Commission as provided for by Directive 98/34/EC or, on the contrary, if such provision concerns a service in the field of transport.

Recalling its judgment of December 2017 in the Asociación Profesional Elite Taxicase, the Court has observed that the intermediation service provided by the company was inherently linked to the offer by that company of non-public urban transport services, since without the application provided the drivers would not have been led to provide transport services, and the persons who wished to make an urban journey would not have used the services provided by those drivers. Moreover, the company exercised a decisive influence over the conditions under which services were provided by those drivers. Therefore, according to the Court, the main component of the intermediation service is a transport service and, accordingly, the intermediation service has to be classified, not as an ‘information society service’ within the meaning of Directive 98/34/EC, but as a ‘service in the field of transport’ within the meaning of Directive 2006/123/EC. As a consequence, the obligation to notify the Commission in advance, provided for in Directive 98/34/EC, cannot apply.

Sara Capruzzi