Volume 7
Issue 1
CREIGHTON INTERNATIONAL
AND COMPARATIVE LAW JOURNAL!
73
Uber: Europe’s Backseat Driver for the Sharing
Economy
A. ALEXANDER DEMASI
1
I.! INTRODUCTION
Since Uber’s European debut in 2011, the online taxi-hailing app has
encountered tremendous opposition from local taxi services which complain it
unfairly competes by bypassing local licensing and safety laws.
1
With opposition
growing across Europe, a Spanish case has been referred to the European Court of
Justice (“ECJ”), the European Union’s (“EU”) highest court, to determine whether
the United States startup is merely a “transport activity” or “an electronic
intermediation or information society service”.
2
This determination will be crucial
for Uber, as it already faces several court injunctions throughout the EU.
3
If Uber
is deemed an intermediary that acts as an information society service, it will become
tougher for national regulators to limit its operations under the EU’s 2006 Services
Directive (“Services Directive”) and the 2015 Digital Single Market Strategy for
Europe (“Digital Strategy”) initiated by the European Commission (“EC”), the
executive body of the EU.
4
However, if the ECJ determines Uber is a transport
service, it may be subject to local jurisdictional boundaries determined by the 28
member states of the EU, empowering them to determine the legality of Uber’s
practice.
5
This ECJ’s determination is crucial because it will greatly affect the
growth and future of Europe’s sharing economy.
This Article will proceed in three sections. First, the Background will
examine the history of Uber; its basic business structure; and Uber’s recent lawsuits
in France, Belgium, Germany, Italy, Netherlands, England, and Spain.
6
Next, this
Article will advance to the Argument that the ECJ should deem Uber a digital
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
1
Juris Doctor Candidate, 2017, Creighton University School of Law.
1
Julia Fioretti & Andrew Callus, Spanish Judge Asks EU Top Court for Key Uber
Ruling, REUTERS (Jul. 20, 2015), http://www.reuters.com/article/2015/07/20/us-
uber-eu-ecj-idUSKCN0PU1LP20150720.
2
Id.
3
Id.
4
William Louch, EU Commission Launces Study on Uber, PARLIAMENT MAG.
(Sept. 1, 2015), https://www.theparliamentmagazine.eu/articles/news/eu-
commission-launches-study-uber.
5
Id.
6
See infra notes 9-90 and accompanying text.
Volume 7
Issue 1
CREIGHTON INTERNATIONAL
AND COMPARATIVE LAW JOURNAL!
74
service and will expand on the Services Directive and the Digital Strategy.
7
Finally,
this Article will propose a regulatory solution should the ECJ deem Uber an online
intermediary of information society services.
8
II.! BACKGROUND
A.! UBER BASICS
Uber is an Android, iOS, and Windows Phone app that brings together
riders with drivers while utilizing a smartphone’s GPS capabilities.
9
The San
Francisco-based tech company was founded in 2009 in response to common issues
with local taxis.
10
Soon thereafter, the company rapidly expanded across the United
States.
11
By the end of 2011, Uber had entered into Paris, marking its first debut
into overseas markets.
12
In order to use Uber, a passenger must provide the company with his or her
credit card information.
13
From there, Uber takes a cut for itself and deposits the
remaining amount into the driver’s account.
14
The booking and billing process
includes the customer utilizing the “Customer App” and the driver utilizing the
“Driver App”; both licensed by Uber.
15
The trip’s fare “is not calculated and
displayed on a running basis”, as with a taxi service.
16
Uber’s fare is calculated
through the use of Uber’s fare calculation model, a software-based algorithm.
17
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
7
See infra note 101.
8
See infra note 113.
9
John Patrick Pullen, Everything You Need to Know About Uber, TIME (Nov. 4,
2014), http://time.com/3556741/uber/.
10
Travis Klanick, Uber’s Founding, UBER (Dec. 22, 2010),
https://newsroom.uber.com/2010/12/ubers-founding/.
11
Michael Sinan, On Heels of New Funding and Global Expansion, Car Service
Uber Launches in D.C. Today, VENTURE BEAT (Dec. 15, 2011),
http://venturebeat.com/2011/12/15/uber/.
12
Id.
13
Pullen, supra note 9.
14
Id.
15
Transport for London v. Uber London Limited, [2015] EWHC (Admin) 2918
CO/1449/2015, [11], (Eng.).
16
Pullen, supra note 9.
17
Transport for London v. Uber London Limited, [2015] EWHC (Admin) 2918
CO/1449/2015, [11], (Eng.).
Volume 7
Issue 1
CREIGHTON INTERNATIONAL
AND COMPARATIVE LAW JOURNAL!
75
The Uber driver is required to obtain a valid driver’s license and pass a
background check.
18
Additionally, he or she must be at least 21 years old and own
their vehicle with a model year of 2000 or newer.
19
For its most basic service, an
Uber driver does not need a professional taxi license.
20
B.! UBER DEVELOPMENT
Uber’s primary service in the United States is broken down into 5 distinct
offerings: UberX, Uber BLACK, Uber SELECT, UberXL, and UberLux
21
UberX,
is Uber’s low-cost private service option where local drivers respond and connect
with passengers at a low cost via the Uber app.
22
Next, the company launched Uber
BLACK, the luxury version of UberX.
23
Drivers of Uber BLACK are required to
own newer black vehicles which require the vehicle to have black leather interior.
24
Uber SELECT is offered in certain cities and is similar to Uber BLACK, except
each vehicle is not required to black exterior and interior features.
25
This service
costs more than UberX, but less than Uber BLACK.
26
UberXL is a step up from
UberX that offers rides for passengers who need to transport up to six people.
27
Finally, UberLUX is Uber’s most luxurious option, utilizing vehicles such as the
BMW 7-Series, Mercedes Benz S-Class, and the Tesla Model S.
28
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
18
Id.
19
Driving Jobs vs. Driving with Uber, UBER, https://www.uber.com/driver-jobs
(last visited Apr. 12, 2016).
20
Id.
21
What is UberX?, UBER EXPANSION, http://uberestimate.com/what-is-uberx/ (last
visited Apr. 12, 2016).
22
Id.
23
What is Uber Black?, UBER EXPANSION, http://uberestimate.com/what-is-uber-
black/ (last visited Apr. 12, 2016).
24
Id.
25
What is Uber Select?, UBER EXPANSION, http://uberestimate.com/what-is-uber-
select/ (last visited Apr. 12, 2016).
26
Id.
27
What is UberXL, UBER EXPANSION, http://uberestimate.com/what-is-uberxl/
(last visited Apr. 12, 2016).
28
Natalie Jarvey, Uber Launches Luxury Service in Los Angeles, HOLLYWOOD
REPORTER (Dec. 18, 2014), http://www.hollywoodreporter.com/news/uber-
launches-luxury-service-los-759338.
Volume 7
Issue 1
CREIGHTON INTERNATIONAL
AND COMPARATIVE LAW JOURNAL!
76
In 2013, the company expanded its offerings and introduced UberChopper, a one-
way helicopter service.
29
In 2014, the company launched UberPool, a carpool
sharing service where passengers are able to ride and divide the cost with another
passenger who happens to be on a similar route.
30
In 2015, Uber launched Uber
Eats, a service that connects customers with local food delivery.
31
These are only a
few of the innovations the Silicon Valley startup has released.
32
All of which, are
subject to limited availability in select cities.
33
C.! UBER’S EUROPEAN EXPANSION
1.! France
In 2011, Uber expanded into Paris with its low-cost service, UberPop.
34
Unlike the rest of Uber’s business in Europe, UberPop is Uber’s low-cost service
that connects riders with regular drivers—similar to UberX in the United States.
35
With UberPop, the driver is an unlicensed individual and is able to bypass typical
requirements for taxi drivers in Europe such as professional training, social security
contributions, taxes, and professional insurance.
36
In doing so, UberPop is able to
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
29
Dan Amira, Uber Will Ferry Hampton-Goers Via Helicopter This July 3
rd
, N.Y.
MAG. (July 1, 2013), http://nymag.com/daily/intelligencer/2013/07/uber-
helicopter-uberchopper-hamptons-july-3rd.html.
30
Announcing UberPool, UBER (Aug. 5, 2014),
http://newsroom.uber.com/announcing-uberpool/.
31
Fitz Tepper, Uber’s New Update Gives Food Delivery As Much Attention As
Transportation, TECHCRUNCH (Aug. 17, 2015),
http://techcrunch.com/2015/08/17/ubers-new-update-gives-food-delivery-as-
much-attention-as-transportation/#.krwatq:abIH.
32
See Sarah Buhr, UberRUSH Now Delivers The Same Day From Nordstrom, Rent
the Runway, Other Big Retail Stores, TECHCRUNCH (Jan. 28, 2016),
http://techcrunch.com/2016/01/28/uberrush-now-delivers-from-nordstrom-rent-
the-runway-other-big-retail-stores/; See also Sarah Buhr, Uber Delivered Puppies
On Demand to TechCrunch Ahead of Super Bowl Weekend, TECHCRUNCH (Feb. 3,
2016), http://techcrunch.com/2016/02/03/uber-delivered-puppies-on-demand-to-
techcrunch-ahead-of-super-bowl-weekend/.
33
Id.
34
Renee Kaplan, Why the French are Uber-Pissed at UberPop, FRENCH MORNING
(Dec. 17, 2014), http://frenchmorning.com/en/french-uber-pissed-uberpop/.
35
See Uber et UberPop: c'est quoi la difference?, LE FIGARO (Mar. 7, 2015),
http://www.lefigaro.fr/secteur/high-tech/2015/07/03/32001-
20150703ARTFIG00177-uber-et-uberpop-c-est-quoi-la-difference.php.
36
Id.
Volume 7
Issue 1
CREIGHTON INTERNATIONAL
AND COMPARATIVE LAW JOURNAL!
77
charge its user a much lower rate than its local competitors.
37
Additionally, Uber
offers alternate services provided by professional drivers, such as those found in
traditional taxi services.
38
In September 2014, France’s National Assembly passed the Thévenoud
Law, which imposed numerous regulations and restrictions on Uber, taxis, and
French chauffeured cars (“VTCs”).
39
The law provided a penalty of two years
imprisonment and a fine of €300,000 for any person or organization who engages
in providing consumers unlicensed transportation.
40
In November 2014, VTC
associations and taxi unions sought an injunction from the Paris Commercial Court
to ban UberPop.
41
On January 1, 2015, the Thévenoud Law went into effect,
prohibiting the use of UberPop.
42
Uber quickly appealed this decision and claimed
that the Thévenoud Law violated the French Constitution.
43
Uber circumvented the
ban by initiating legal proceedings and continued to operate while the court reached
a decision.
44
In July 2015, after months of complaints, riots, and the indictment of two
of Uber’s French executives, Uber suspended its UberPop service in France.
45
On
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
37
Id.
38
See Uber Moves, UBER, https://www.uber.com/cities/paris (last visited Apr. 12,
2016).
39
France’s new anti-Uber law gives Taxis an unfair advantage, RUDE BAGUETTE
(Sep. 19, 2014), http://www.rudebaguette.com/2014/09/19/frances-new-anti-uber-
law-gives-taxis-unfair-advantage/.
40
Conseil constitutionnel [CC] [Constitutional Court] decision No. 2015-484 QPC,
Sep. 25, 2015, (Fr.).
41
Kathie Claret, EU & Competition Law, BRYAN CAVE (Jan. 19, 2015), http://eu-
competitionlaw.com/the-paris-commercial-court-declines-to-ban-uberpop/.
42
Id.
43
Chine Labbé, Paris Court Delays Decision on Uber’s Unlicensed Taxi Service,
REUTERS (Mar. 31, 2015), http://www.reuters.com/article/2015/03/31/us-france-
uber-idUSKBN0MR0SQ20150331#QHQQuzKMDzIZcfyv.97.
44
Lucie Aubourg, Top French Court Upholds Ban on UberPop Ride-Sharing
Service, VICE NEWS (Sept. 2, 2015), https://news.vice.com/article/top-french-
court-upholds-ban-on-uberpop-ride-sharing-service.
45
James Cook, Uber is Suspending One of its Services in France After Taxi Drivers
Rioted in the Streets, BUS. INSIDER (July 3, 2015),
http://www.businessinsider.com/uber-suspends-uber-pop-in-france-2015-
7?r=UK&IR=T.
Volume 7
Issue 1
CREIGHTON INTERNATIONAL
AND COMPARATIVE LAW JOURNAL!
78
September 22, 2015, France’s Constitutional Council upheld the Thévenoud Law
and dismissed Uber’s appeal.
46
2.! Belgium
In February 2014, UberPop made its first appearance in Brussels.
47
Two
months later, the service was banned by the Commercial Court in Brussels because
UberPop drivers lacked taxi licenses.
48
Incumbent taxi services led the opposition
in Brussels, deeming that the company held an unfair market advantage.
49
Uber
continued its UberPop services in the Belgian city.
50
Despite the ban, the local
government allowed Uber to continue its UberPop service and worked on
legislation allowing the company to continue operating.
51
After months of violent
protests and demonstrations by local taxi providers, a Brussels court ruled that Uber
was to terminate its UberPop service on September 24, 2015.
52
Following the order,
Uber suspended UberPop in Brussels on October 13, 2015.
53
3.! Germany
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
46
Mark Scott, French Law That Banned UberPop Service Survives Legal
Challenge, N.Y. TIMES (Sept. 22, 2015),
http://www.nytimes.com/2015/09/23/technology/french-law-that-banned-
uberpop-service-survives-legal-challenge.html?_r=0.
47
Sylvain Andrieu, Uber Arrives in Burssels with uberPOP!, UBER (Feb. 24, 2014),
http://newsroom.uber.com/belgium/en/2014/02/uber-arrives-in-brussels-with-
uberpop/.
48
Robin Wauters, Brussels Court Bans Uber, Imposes 10,000 Euro Fine for Every
Violation of its Ridiculous Order, TECH.EU (Apr. 15, 2014),
http://tech.eu/news/brussels-court-bans-uber/.
49
Id.
50
AFP, Uber Driver Found Guilty in Belgium Crackdown, YAHOO NEWS (May 4,
2015), http://news.yahoo.com/uber-driver-found-guilty-belgium-crackdown-
180057329.html.
51
Id.
52
Natalia Drozdiak, Uber’s Low-Cost Service UberPop Banned in Brussels, WALL
STREET JOURNAL (Sept. 24, 2015), http://www.wsj.com/articles/ubers-low-cost-
service-uberpop-banned-in-brussels-1443106617.
53
Robert-Jan Barunek, Uber to Suspend Unlicensed UberPop Service in Brussels,
REUTERS (Oct. 13, 2015), http://www.reuters.com/article/2015/10/13/us-uber-tech-
belgium-idUSKCN0S71VQ20151013#eUXd2eIQm5ggrpsy.97.
Volume 7
Issue 1
CREIGHTON INTERNATIONAL
AND COMPARATIVE LAW JOURNAL!
79
In January 2013, Uber initiated services in Berlin.
54
The company expanded
into Munich, Hamburg, Frankfurt, and Dusseldorf before a Frankfurt court placed
its first nationwide ban on UberPop on September 2, 2014.
55
Uber appealed, and
two weeks later a district court in Frankfurt lifted the ban.
56
On March 18, 2015, a German court placed a second nationwide ban on
UberPop.
57
The court claimed the service violated Germany’s public transportation
act and ruled that drivers must hold the same permits as taxi drivers in order to
operate in Germany.
58
Uber continued to operate its UberX and UberBlack services
for several months before terminating all services in Hamburg, Frankfurt, and
Duesseldorf on October 30, 2015.
59
Uber still operates in Munich and Berlin,
however, it is struggling as it grapples with Germany’s pervasive regulatory
environment.
60
4.! Italy
In March 2013, Uber expanded into its first Italian city, Milan.
61
In April
2015, Italian taxi associations filed a complaint against UberPop, alleging that the
service created “unfair competition” for traditional taxi drivers.
62
On May 26, 2015
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
54
Catherine Shu, Uber Gets More Super as it Expands into Germany,
TECHCRUNCH (Jan. 16, 2013), http://techcrunch.com/2013/01/16/uber-gets-more-
super-as-it-expands-into-germany/.
55
Kevin Rawlinson, Uber Service ‘Banned’ in Germany by Frankfurt Court, BBC
NEWS (Sept. 2, 2014), http://www.bbc.com/news/technology-29027803.
56
Mark Scott, Uber Wins a Reprieve in Berlin, N.Y. TIMES (Sept. 2, 2014),
http://bits.blogs.nytimes.com/2014/08/18/uber-wins-a-reprieve-in-
berlin/?_php=true&_type=blogs&_r=0.
57
German Court Places Nationwide Ban on UberPOP, FORTUNE (Mar. 18, 2015,
9:30 AM), http://fortune.com/2015/03/18/german-court-ban-uber/.
58
Melissa Eddy, An Uber Service is Banned in Germany Again, N.Y. TIMES (Mar.
18, 2015), http://www.nytimes.com/2015/03/19/technology/germany-frankfurt-
uber-ruling-taxi.html.
59
Ludwig Burger, Uber Germany Retreats to Berlin, Munich, REUTERS (Oct. 30,
2015), http://www.reuters.com/article/2015/10/30/uber-germany-cities-
idUSL8N12U59Z20151030.
60
Id.
61
How UBER Charmed its 1
st
Italian City…, UBER (Mar. 8, 2013),
http://newsroom.uber.com/milan/2013/03/how-uber-charmed-its-1st-italian-city/.
62
‘Unfair Competition’: Italian Court Places Nationwide Ban on Lowcost Uber
Service, RT (May 26, 2015), https://www.rt.com/news/262217-italy-bans-uber-
competition/.
Volume 7
Issue 1
CREIGHTON INTERNATIONAL
AND COMPARATIVE LAW JOURNAL!
80
an Italian court held that the service violated administrative rules that regulate the
Italian taxi industry, and thus, it created unfair competition against traditional taxi
services.
63
Uber still operates its UberBlack service in Milan and Rome; however,
it already faces stringent regulation which requires all UberBlack vehicles to be
parked in specifically marked places.
64
5.! Netherlands
Uber expanded its business into Amsterdam in late 2012.
65
In December
2014 Dutch officials banned UberPop, claiming it fell afoul of licensing
requirements for commercial drivers.
66
A few months later Dutch prosecutors
raided Uber’s offices in Amsterdam after police caught dozens of drivers providing
illegal taxi services.
67
Following the raid, prosecutors launched a criminal
investigation against the company.
68
As of January 30, 2016, the company has
continued to provide an array of services, including UberPop, throughout the
Netherlands.
69
6.! England
Uber first appeared in London, England in June 2012.
70
Since its debut,
organizations such as the Rail and Maritime Transport Union, London Cab Drivers
Club, and Licensed Taxi Drivers Association have protested Uber claiming it
should follow the same regulations as local taxis.
71
A formal lawsuit was filed by
industry leaders and on July 3, 2014; and the Transport for London (“TfL”), the
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
63
Id.
64
Eric Sylvers, Uber Ordered to Discontinue Uberpop Service in Italy, WALL ST.
J. (May 26, 2015), http://www.wsj.com/articles/uber-ordered-to-discontinue-
uberpop-service-in-italy-1432654165.
65
Uber Houdt van Amsterdam, UBER (Dec. 28, 2012),
http://newsroom.uber.com/amsterdam/nl/2012/12/uber-houdt-van-amsterdam/.
66
Anthony Deutsch, Dutch Launch Criminal Investigation into Uber, REUTERS
(Apr. 17, 2015), http://www.reuters.com/article/2015/04/17/us-uber-netherlands-
investigation-idUSKBN0N81G620150417.
67
Id.
68
Id.
69
See Uber Webpage for Amsterdam, UBER,
https://www.uber.com/cities/amsterdam (last visited Apr. 20, 2016).
70
See Secret Ubers Spotted in London!, UBER (June 15, 2012),
http://newsroom.uber.com/2012/06/secret-ubers-spotted-in-london/.
71
London’s Anti-Uber Taxi Protest Brings Traffic to Standstill, BBC NEWS (June
11, 2014), http://www.bbc.com/news/uk-england-london-27799938.
Volume 7
Issue 1
CREIGHTON INTERNATIONAL
AND COMPARATIVE LAW JOURNAL!
81
government entity responsible for English transportation regulations, allowed Uber
to continue operating while the lawsuit was pending.
72
On October 16, 2015, the United Kingdom’s High Court ruled that Uber did
not have to adhere to local taxi regulations.
73
The Court ruled that Uber’s app does
not work as a taximeter and thus does not break local law.
74
Under Section 11 of
the Private Hire Vehicle Act of 1998 (“Act”), only black cabs are allowed to use
meters and private-hire vehicles (“PHVs”) are granted a different license.
75
The
Court concluded that, for the purposes of the Act, a meter “does not include a device
that receives GPS signals in the course of a journey, and forwards GPS data to a
server located outside of the vehicle. . . and sends the fare information back to the
device.”
76
Since Uber’s app does not constitute as a meter used in black cabs, it
does not have to follow local taxi regulations, but rather, only those imposed on
PHV drivers.
77
This decision marked Uber’s first major victory in Europe, as London is the
company’s largest European market for business.
78
TfL, however, has proposed
new regulations for the PVH industry that would severely restrict online car-sharing
services such as Uber.
79
The agency has proposed rules such as an English-language
requirement for drivers and a required five-minute wait time between initiating a
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
72
Mark Scott, London Transport Regulators Says Uber Can Legally Operate, N.Y.
TIMES (July 3, 2014), http://mobile.nytimes.com/blogs/bits/2014/07/03/london-
transport-regulator-says-uber-can-legally-
operate/?_php=true&_type=blogs&_r=0.
73
Transport for London v. Uber London Limited, [2015] EWHC (Admin) 2918
CO/1449/2015, [11], (Eng.); Geoffrey Smith, Uber Just Won a Big Lawsuit in
London, FORTUNE (Oct. 16, 2015), http://fortune.com/2015/10/16/uber-just-won-
a-big-lawsuit-in-london/.
74
Amir Mizroch, Uber App is Legal, U.K. Court Rules, WALL ST. J. (Oct. 16, 2015,
7:30 AM), http://www.wsj.com/articles/uber-scores-uk-legal-victory-1444990528.
75
Id.
76
Transport for London v. Uber London Limited, [2015] EWHC (Admin) 2918
CO/1449/2015, [11], (Eng.).
77
Id.
78
Uber Just Won a Big Lawsuit in London, FORTUNE (Oct. 16, 2015),
http://fortune.com/2015/10/16/uber-just-won-a-big-lawsuit-in-london/; Amir
Mizroch, Uber App Is Legal, U.K. Court Rules, WALL ST. J. (Oct. 16, 2015),
http://www.wsj.com/articles/uber-scores-uk-legal-victory-1444990528.
79
Amir Mizroch, Uber Faces New Threat in London, WALL ST. J. (Sept. 30, 2015),
http://www.wsj.com/articles/uber-faces-new-threat-in-london-1443614283.
Volume 7
Issue 1
CREIGHTON INTERNATIONAL
AND COMPARATIVE LAW JOURNAL!
82
ride and pick up.
80
If adopted, these measures will become just another obstacle to
company will have to overcome in its conquest for Europe.
81
7.! Spain
In April 2014, UberPop began operating in Barcelona, the company’s first
Spanish city.
82
Shortly after, the service expanded into Madrid, where it was subject
to strong opposition.
83
On December 9, 2014, a Spanish court placed a nationwide
ban on Uber after a complaint was filed by taxi drivers in Madrid.
84
The complaint
alleged that UberPop did not conform to Spanish law and potentially resulted in
unfair competition for taxi drivers.
85
A few weeks later, Uber suspended its
business in Spain and appealed the decision.
86
On appeal, Uber requested that the case be referred to the ECJ to determine
whether Spanish taxi regulations and court decisions violate EU treaties and laws.
87
On July 20, 2015, a judge in Barcelona granted Uber’s request and a decision
should be reached in late 2016.
88
The Court has been asked to rule on whether Uber
is a “mere transport activity” or “an electronic intermediation of information society
service.”
89
If deemed a transport service, the company will likely be subject to
stricter regulations regarding licensing, insurance, and safety.
90
As an intermediary
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
80
Id.
81
Id.
82
Maya Kosoff, In an Effort to Boot Uber from Spain Madrid Will Fine Drivers up
to $22,000, BUS. INSIDER (Oct. 6, 2014), http://www.businessinsider.com/in-an-
effort-to-kick-uber-out-of-spain-madrid-will-fine-drivers-up-to-22000-2014-10.
83
Id.
84
Al Goodman et al., Spanish Judge Imposes Temporary Ban on Uber Taxi Service,
CNN (Dec. 9, 2014), http://www.cnn.com/2014/12/09/world/europe/spain-uber-
court-ban/index.html.
85
Mark Scott, Uber Suspends Operations in Spain, N.Y. TIMES (Dec. 31, 2014),
http://bits.blogs.nytimes.com/2014/12/31/uber-suspends-operations-in-spain/.
86
Id.
87
Sam Schechner, Uber to Fight EU Rules in Europe’s Top Court, WALL ST. J.
(July 20, 2015), http://www.wsj.com/articles/case-against-uber-referred-to-
europes-top-court-1437402253.
88
See Julia Fioretti & Andrew Callus, Spanish Judge Asks EU Top Court for Key
Uber Ruling, REUTERS (July 20, 2015),
http://www.reuters.com/article/2015/07/20/us-uber-eu-ecj-
idUSKCN0PU1LP20150720.
89
Id.
90
Id.
Volume 7
Issue 1
CREIGHTON INTERNATIONAL
AND COMPARATIVE LAW JOURNAL!
83
service, Uber would be able to enjoy certain safeguards under the Services
Directive and Digital Strategy.
91
D.! THE SERVICES DIRECTIVE
The Services Directive was passed on December 12, 2006 and put into
effect to eliminate barriers against the development of services between Member
States, to strengthen European economy, and to promote sustainability.
92
It is
commonly referred to as the “Bolkestein Directive,” as it was drafted under the
direction of the former European Commissioner for the Internal Market, Frits
Bolkestein. Under this decree, Member States are called to determine whether their
legal systems make access to a particular “service activity or the exercise of it”
compatible with EU standards.
93
The Service Directive applies to services supplied
by providers within the European Union.
94
It does not, however, apply to services
“in the field of transport.”
95
Thus, Uber’s distinction as “digital service provider”,
instead of a “transportation service” by the ECJ will be crucial in determining
whether Uber’s service provided falls within the scope of the Services Directive.
96
E.! THE DIGITAL SINGLE MARKET STRATEGY FOR EUROPE
In 2010, the EU launched Europe 2020—the ten-year growth strategy for
Member States of the EU.
97
As part of its initiative to boost the growth of jobs, the
EU has established seven flagship initiatives for smart, sustainable, and inclusive
growth across Europe.
98
In efforts to foster “smart growth” across Europe, the EC
initiated the Digital Single Market Strategy on May 6, 2015.
99
The plan has
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
91
Id.
92
Directive 2006/123, of the European Parliament and of the Council of 12
December 2006 on the Services in the Internal Market, 2006 O.J. (L376) 36.
93
See id.; see also Q&A: Services Directive, BBC NEWS (NOV. 15, 2006),
http://news.bbc.co.uk/2/hi/europe/4698524.stm.
94
Directive 2006/123 at 51.
95
Id.
96
Louch, supra note 4.
97
Europe 2020, EUROPEAN COMMISSION (Mar. 8, 2016),
http://ec.europa.eu/europe2020/index_en.htm (hereinafter “Europe 2020 Index”).
98
Europe 2020, EUROPEAN COMMISSION (May 16, 2012),
http://ec.europa.eu/europe2020/europe-2020-in-a-nutshell/flagship-
initiatives/index_en.htm (hereinafter “Europe 2020”).
99
Communication from the Commission to the European Parliament, the Council,
the European Strategy for Europe, at 1,4, COM (2015) 100 final (May 6, 2015),
Volume 7
Issue 1
CREIGHTON INTERNATIONAL
AND COMPARATIVE LAW JOURNAL!
84
established that the “creation of a Digital Single Market” is a key priority of the EU
in its conquest for growth.
100
The Digital Strategy defines a Digital Single Market
as one where the free movement of goods, services, persons, and capital is
guaranteed through fair competition for online activities and personal data
protection.
101
III.! ARGUMENT
The ECJ should deem Uber as an intermediation of information society
service where it will be subject to the scope of the Services Directive and supported
by the Digital Strategy.
102
Rapid innovations in internet commerce have normalized
peer-to-peer (“P2P”) transactions, proving that the sharing economy is here to
stay.
103
One key innovation has been the rise of transportation network companies
(“TNCs”), such as Uber, that provide prearranged transportation services through
online-enabled platforms to connect riders and drivers for profit through their
personal vehicles.
104
These TNCs serve as intermediaries—acting as a third party
who connects passengers with available drivers.
105
An information society service is “any service normally provided for
remuneration, at a distance, by electronic means, and at the individual request of a
recipient of services.”
106
The words “at a distance” simply mean that the service is
provided without the parties being simultaneously present.
107
As such, Uber should
be protected by the safeguards of the Services Directive because it receives
compensation for the service it provides as an intermediary between riders and
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
http://eur-lex.europa.eu/legal-
content/EN/TXT/PDF/?uri=CELEX:52015DC0192&from=EN.
100
Id. at 3.
101
Id.
102
See Id.
103
Vanessa Katz, Regulating the Sharing Economy, 30 BERKELEY TECH. L.J. 1067
(2015), available at http://scholarship.law.berkeley.edu/btlj/vol30/iss4/18.
104
See Transportation Network Companies, Ca. Pub. Utilities Comm’n,
http://www.cpuc.ca.gov/General.aspx?id=787 (last visited April 21, 2016).
105
Katz, supra note 103, at 1080.
106
Directive 98/48, of the European Parliament and of the Council of 20 July 1998
Amending Directive 98/34/EC Laying Down a Procedure for the Provision of
Information in the Field of Technical Standards and Regulations, 1998 O.J. (L217)
18, 21.
107
Conference Report, Manuel David Maseeno, EU Regulation of Information
Society Services, With a Closer Regard to the Most Recent ECJ Cases, (Aug. 26,
2010) (on file with author).
Volume 7
Issue 1
CREIGHTON INTERNATIONAL
AND COMPARATIVE LAW JOURNAL!
85
drivers.
108
Under this definition, Uber’s service falls straight into the scope of what
the Services Directive intends to cover.
109
It is likely that those in opposition of Uber, specifically the UberPop service,
will contend that the service provided is a transport service; a service that is an
exception listed under the Services Directive.
110
However, this greatly overlooks
the social aspect of TNCs.
111
TNCs allow users to communicate with their drivers
before and after their trip.
112
A majority of the information shared through TNCs,
allows a user to connect with their driver through social media—linking the user to
information that is disclosed via these accounts.
113
This social aspect of TNCs
creates risks and benefits that regulators could not include in the traditional notion
of “transport” services, and as such, TNCs are unique from the transport services
described in the Services Directive.
114
IV.! PROPOSED SOLUTION
Should the ECJ deem Uber as an online intermediary of information society
services, the EU should establish a directive that specifically covers TNCs and other
P2P services. While TNCs and other P2P service providers provide services that
are closely analogous to traditional services, their P2P nature creates unique risks
for the users, providers, and intermediaries involved.
115
These issues concern areas
of liability, disclosure, information security, civil rights, and tax to name a few.
116
These risks do not pose an intolerable danger to users or third parties.
117
In fact,
many of these risks exist in the market for traditional services.
118
However, because
these P2P services are difficult to place into traditional schemes, they should not be
afforded the same legislation as their traditional counterparts.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
108
See Transport for London v. Uber London Limited, [2015] EWHC (Admin)
2918 CO/1449/2015, [11], (Eng.).
109
See Euro 2020 Index, supra note 97.
110
See Euro 2020, supra at 98.
111
See Katz, supra note 103, at 1114.
112
Id.
113
Id.
114
Id. at 1069.
115
Katz, supra note 103, at 1107.
116
Id. at 1092-1107, 1114.
117
Id. at 1125.
118
Id.
