Recent twists in the „Uber saga” – the Spanish and French affair
The embattled firm has navigated through a number of legal challenges and regulatory disputes in various countries.
In December 2017, for instance – as we wrote here – the European Court of Justice (ECJ) ruled in the Uber Spain case (C‑434/15) that the firm should be considered a transport company instead of a technology service that connects drivers and riders, meaning that it should be subject to the bloc’s transport regulations. Just a few months after the Luxembourg court ruled that the ride-hailing app should be regulated like a traditional taxi company, it has dealt another legal blow to Uber.
Since then, Spanish taxi drivers has been complain that rival drivers from ride-hailing apps – such as Uber or Cabify, also known as VTCs (Tourism Vehicles with Chauffeur) – compete unfairly since they do not face the same regulations and costs. The drivers Madrid started an indefinite strike on Monday to protest competition from VTCs, following their colleagues in Barcelona who began striking on Friday.
In September, Spain’s government gave the the companies four years to comply with regulations granting them just one new license for every 30 taxi licenses. „It is not right that after working so many years like we have been, they now just want to sweep us out of the way,” said taxi driver Francisco Sanchez. „They (politicians and ride-hailing services) are all in it together.” Barcelona taxi drivers have been on an open-ended strike since Friday, when the Catalan government unveiled its regulatory plans for VTC (vehicle for hire) licenses, which ride-hailing apps in Spain use to operate. Authorities had been proposing a 15-minute early-booking rule. On Wednesday, Barcelona taxi drivers will vote on the new deal and decide whether to end the strike. On Tuesday night the companies Uber and Cabify said they would consider leaving Barcelona if the early-booking rule is imposed.
In Madrid, taxi representatives and regional authorities walked away from the negotiating table late last night after failing to reach an agreement. The former want a similar deal to what their Barcelona colleagues have secured from Catalan officials. Under those terms, users of ride-sharing apps will have to book the service one hour in advance. Unauto VTC, the association representing the sector, said 80 VTCs had been damaged in Barcelona and 50 in Madrid during the strike.
The ECJ in April 2018 ruled in the Uber France SAS case (C‑320/16) that the French government was within its rights to pass a criminal law in 2014 banning some illegal transport services without first notifying the European Commission of its plans. Tech companies are granted an additional layer of protection from national legislation in the EU with draft laws affecting them needing to be approved by Brussels – national legislation affecting digital services needs to be pre-notified to Brussels to ensure it is not distorting the single market. Uber had challenged France’s bypassing of the notification system after it was taken to court by a taxi driver in Lille for running its UberPop service that used unlicensed drivers. Uber was fined €800,000 under the law in 2016 after two of its executives were found to have run an illegal service. The ECJ said that since Uber was offering a transport service under EU law, the obligation to notify the Commission in advance did not apply; the EU’s 28 member states are allowed to „prohibit and punish the illegal exercise of a transport activity such as UberPop without having to notify the commission in advance of the draft legislation laying down criminal penalties for the exercise of such an activity”.
At national level, on 10 January 2019, Uber lost an appeal in France brought by a former driver who wanted to be recognised as a full employee. The ruling overturns one from last year (on February 2018) when a French court decided in favour of Uber, saying its drivers could refuse customers if they wanted to and were not told how many hours to work by the firm. The present judgement was hailed as a „landmark decision” by the plaintiff's attorney, Fabien Masson and follows a similar court decision last month in Britain that Uber should give its drivers workers' rights, including the national minimum wage and holiday time. The Uber driver’s victory is also similar to a recent case in November 2018 which saw the Cour de Cassation rule that a delivery rider using the services of an online food delivery platform Take Eat Easy, may be considered to be an employee of the platform provider despite being labelled self-employed.
The former driver sued the company in June 2017, two months after Uber had deactivated his account, to have his „commercial accord” re-evaluated as an employment contract. He was seeking reimbursement for holidays and expenses as well as contract termination and „undeclared work” indemnities. The Paris court ruling specifies that the contract between Uber and its former driver was „an employment contract” – for the first time in France! – because the driver was dependent for his work on the app. The court also noted that the driver had signed a „registration partnership" with Uber which did not allow him to choose his own clients or set his own rates. Uber in effect exercised „control” over the driver by actively discouraging him from turning would-be clients away. In response, Uber announced that it will reappeal the ruling in La Cour De Cassation, France's highest appeal court. A Uber spokeswoman said that the reappeal was to „preserve flexibility” where „drivers can decide to connect in real time and without any requirement of exclusivity.” „Drivers choose to use the Uber application for the freedom to connect to it when they want” she added. Uber has long maintained it is simply a service provider, connecting people needing a ride with drivers – either amateurs or professionals, depending on the country – in about 630 cities worldwide.
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Author: Petra Ágnes Kanyuk, PhD student, University of Debrecen, Faculty of Law
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