Case law of the Court of Justice with regard to the gig economy: the case of Uber

La giurisprudenza della Corte di Giustizia sulla gig economy: il caso di Uber

22.12.2020

Yolanda Maneiro Vázquez

Lecturer in Labour Law and Social Security Law, Faculty of Law, University of Santiago de Compostela

 

La giurisprudenza della Corte di Giustizia sulla gig economy: il caso di Uber*

 

English title: Case law of the Court of Justice with regard to the gig economy: the case of Uber

DOI: 10.26350/18277942_000008

 

Summary: 1. The consideration of Uber as a transport service by the Court Of Justice. 1.1. Judgment of 20 December 2017, Asociación Profesional Elite Taxi and Uber Systems Spain, S.L. 1.2. Judgment of 10 April 2018, Uber France SAS. 2. The importance of the concept of “information society services” as opposed to that of “transport services.” 3. Information society services and their associated risks. 4. the consequences of these judgments on an internal level. 4.1. Working Time. 4.2. Remuneration. 5. References.

 

 

  1. The consideration of Uber as a transport service by the Court of Justice

 

The irruption of platforms and the new operating models they offer has shaken up the traditional rules of regulatory application that, with greater or lesser legal certainty, have governed until now. Similar to the nature of the business offered by the platforms, this phenomenon has expanded beyond national borders. From the moment in which these companies operate in a supranational area, the legislation of a single state reveals itself to be, on many occasions, insufficient to encompass and organize all aspects of this business. By way of a perfect storm, the platforms have not only been able to play with the internationalization of their services, but also, like a good sleight of hand, have managed to circumvent basic legal categories—such as working in the employ or under the direction of another, within the realm of labor relations—which thus far had served as essential pillars for the legal classification of various social and economic realities. The traditional battle between economic liberalization and regulatory restrictions in favour of guarantees and legal certainty has played another essential role in this matter. It is still ironic that modernity, at the hands of the latest technological advances, has obligated old concepts of labor law (taken for granted thus far) to be put on the table to analyse them under a new prism that allows their redefinition and, with it, their best accommodation to the new technological realities. Hyperconnectivity, commonly referred to as a typical feature of technology platforms, has also been reflected in the regulatory field: for the analysis and regulation of the platform economy, the reduced space offered by a single branch of the legal system (or even national regulation itself) is insufficient.

The two judgments of the Court of Justice related to the activity of the Uber platform, the focus of this paper, are demonstrative of the fact that this task far exceeds the scope of national rights. Interestingly, neither of the judgments has an origin in labor, but both have very important repercussions in this area. The first, from a chronological point of view, is of Spanish and commercial origin. The second, of French origin, comes from criminal proceedings. However, as will be seen, both open avenues towards important regulation of this issue at the national, supranational or community level, according to the desire of the States. The question referred for a preliminary ruling shows here all its power as an element to generate harmonization of European legislation.

The electronic component, so characteristic of the functioning of digital platforms, has threatened the legal nature of the service and the regulations that apply to it. The services Directive, which excludes transport services, shares its liberalizing objective with the platforms to the extent that it aims to guarantee providers the effective exercise of the freedom of establishment and the freedom to provide services between Member States, without the restrictions of national rights. On the contrary, European transport regulations oblige its providers to comply with quality and driving safety standards, such as licenses, authorized vehicles, the condition of the vehicle and corresponding insurance. The determination of the legal nature of the activity provided (in this case, by Uber, but extendible to activities carried out by other similar platforms) became the primordial element for being subjected to one regulation or another.

 

1.1.           Judgment of 20 December 2017, Asociación Profesional Elite Taxi and Uber Systems Spain, S.L.

 

In 2015, an action filed the previous year was brought before the Commercial Court No. 3 of Barcelona by an association of taxi drivers in the city of Barcelona called the Asociación Profesional Elite Taxi. The defendant was Uber Systems Spain, S.L, a company related to Uber Technologies Inc. In said action, Elite Taxi included a declarative claim and two convictions. For the first, it sought a declaration that the activities of Uber Systems Spain violated the legislation in force and amounted to “misleading practices and acts of unfair competition within the meaning of Ley 3/1991 de Competencia Desleal (Law No 3/1991 on Unfair Competition) of 10 January 1991.”For the taxi drivers’ association, these charges clearly resulted from the fact that neither Uber Systems Spain nor the non-professional drivers of the vehicles had the licences and authorisations required under the Regulation on taxi services in the metropolitan area of Barcelona of 22 July 2004.

Given this situation, Elite Taxi also requested a double conviction: that Uber Systems Spain ceaseits unfair conduct “consisting of supporting other companies in the group by providing on-demand booking services by means of mobile devices and the internet,” and secondly, the prohibition of engaging in such activity in the future.

In order to resolve these claims, the Commercial Court considered it first necessary to learn whether or not Uber required prior administrative authorisation to provide its activity. The answer required, however, a previous resolution of another main question: whether the services provided by Uber Systems Spain are to be regarded as transport services (and therefore subject to the prior authorisation requirement), or information society services (not subject to such authorisation); or, alternatively, if it was a combination of both types of services. The distinction between these three possibilities was not trivial from the moment that, if the service provided was included in Directive 2006/123/EC[1] or Directive 98/34/EC[2], Uber’s practices could not be considered unfair.

 

1.2.                     Judgment of 10 April 2018, Uber France SAS

 

A year later, in 2018, with the previous judgment not yet handed down, the Court of Justice, once again in the Grand Chamber, delved into the nature of the services provided by another Uber subsidiary, this time by Uber France SAS. The question referred for a preliminary ruling was of French origin and was presented in the context of a criminal proceeding initiated by Mr. Nabil Bensalem against Uber France SAS, which he accused of misleading commercial practices, the aiding and abetting of the unlawful exercise of the profession of taxi driver, and the unlawful organisation of a system for putting customers in contact with persons carrying passengers by road for remuneration using vehicles with fewer than 10 seats, punishable under Loi nº 214-1104 du 1er. Octubre 2014 relative aux taxis et aux voitures transport avec chauffeur with imprisonment and a fine.

The French jurisdiction[3] found Uber France guilty of misleading commercial practices, but not guilty of aiding and abetting the unlawful exercise of the profession of taxi driver. Regarding the third issue, it harboured doubts about the accusation of unlawful organisation of a system for putting customers in contact with non-professional drivers. Thus, it stayed the proceedings to refer the question for a preliminary ruling on whether the French Transport Code constitutes a “rule on Information Society services” [Article (Art.) 1.5 Directive 98/34], or a rule on “services in the field of transport” [Art. 2.2.d) Directive 2006/123].

 

  1. The importance of the concept of “information society services” as opposed to that of “transport services”

 

As a result of the two judicial issues raised, the Court of Justice handed down the judgments of December 20, 2017, Asociación Profesional Elite Taxi and Uber Systems Spain, S.L.[4], and of April 10, 2018, Uber France SAS[5]. The relevance of these rulings resides both in the answer they offer to the questions formulated by the national courts, as well as in the importance of those not formulated, but which derive from the prior ones. Regarding the latter, it is obvious that the civil and criminal origin of the litigations has impeded their analysis from the point of view of labor issues. Although neither the Spanish Commercial Court nor the Regional Court, Lille, France specifically raised any of these issues, the shadow of labor concerns remains present in both judgments. However, after the classification of the type of activity developed by Uber as a transport service, there is also the transcendence that said classification could achieve when assessing the nature of Uber as an employer, and the possible classification of the relationship between Uber and its drivers as employment.

Demonstrative of this is the opinion made by the Advocate General in the Elite Taxi case. His concluding observations pointed out that the indirect control Uber exerts over its drivers does not necessarily imply their classification as employed workers. However, he avoids speaking out on the classification that would proceed, given that this question, in the words of the Advocate General, “is wholly unrelated to the legal questions before the Court in this case.”[6] The wide doctrinal debate that these and other resolutions have given rise to has allowed the labor doctrine to study the employment nature (or not) of the relationship between Uber and its drivers[7]. However, the analysis of this matter far exceeds the scope of this work.

The essential objective of the two judgments mentioned here is to situate Uber on the level of EU law and determine whether its operating should be subject to said law, and to what extent[8]. For this purpose, its classification, either as an information society service or as a transport service, determines whether regulation of Uber’s operating conditions is subject to the requirements of the freedom to provide services, or if it has to be included in shared competences, although not yet exercised, of the European Union and of the Member States in the area of local transport.

Even though the operating method of Uber is well known, to adequately classify its activity it is necessary to highlight some of its main features. First, the Uber platform in the European Union is managed by Uber BV, a company governed by Netherlands law and a subsidiary of Uber Technologies Inc. What is of interest here is that this platform allows, through the corresponding Uber app installed in a smartphone, requesting an urban transport service in cities where Uber is present. The application recognizes the user’s location and, depending on where he or she is, locates drivers that are available in the vicinity. When a driver accepts the trip, the application informs the user, displaying the driver’s profile and an estimated fare to the destination. After the transport of the user, the fare is automatically charged to the bank card which the user is required to enter when signing up to the application. In addition, through this application, the user can rate the driver, in the same way that the driver can rate the passenger. The importance of the rating resides in its ability to determine exclusion from the platform those who obtain a score below a certain threshold.

The Court of Justice has wanted to highlight in both judgments, as a main element, the double nature of the services provided by Uber. A first activity is that which is provided within the framework of the relationship between the application and the client requesting the services. It consists of putting the latter in contact with a driver capable of making the requested trip in the required time. The second activity, on the other hand, is that which links Uber with its drivers, selected by the platform algorithm among the most suitable (by proximity and by the fulfilment of other conditions) to provide the final service.

In view of this dual activity, the difficulty of fitting all of the services provided by this company into the frame of information society services, regulated by Directives 98/34/EC[9] and 2000/31/EC[10] or, on the contrary, as a transport service, under Directive 2006/123/EC[11]. Its classification as an information society service would imply that Uber’s activity could benefit from the principle of freedom to provide services under the terms guaranteed by the community norms, including Art. 56 Treaty on the Functioning of the European Union (TFEU)[12]. On the contrary, a transport service may be restricted in its activity by national prior authorization requirements. Examples of these restrictions are, in the Spanish case, the Regulation on taxi services in the metropolitan area of Barcelona, or, in the French case, the aforementioned Loi nº 214-1104 du 1er. Octubre 2014 relative aux taxis et aux voitures transport avec chauffeur.

In this way, Art. 2(a) of Directive 2000/31, which refers to Art. 1(2) of Directive 98/34/EC, classifies services provided in exchange for remuneration, remotely, electronically and upon individual request of a recipient. This Directive aims to guarantee the effectiveness of the freedom to provide services of the information society. The distinctive and determining feature of this activity is that it is “entirely transmitted, conveyed and received by wire, by radio, by optical means or by other electromagnetic means” (Art. 1.2). The adverb “entirely” should not be understood literally. Along with services that are provided completely electronically, there are so-called composite services, in which a part of the service must be provided or delivered physically. A good example of this is online sales, where the physical delivery of the product to the buyer is essential so that the service can be understood as completed.

Directive 2000/31/EC does not provide for the application of coordinated field to services provided electronically. This exclusion has an important consequence: Member States are free, within the limits outlined by other provisions of Union law, to restrict the freedom of providers by means of rules relating to services not provided electronically.

 

In the case of composite services—provided in part electronically and in part through physical means—these could be limited, in the non-electronic part, by the coordinated field. However, the admission of these restrictions has been conditioned, logically, so that the non-electronic service on which the restriction operates constitutes an accessory part of the online service, which appears as the main one. What are called composite services constitutes a tertium genusthat, in no way, excludes the application of two rules simultaneously. Thus, the Directive on electronic commerce covers those activities that are genuine and exclusive to information society services, but does not imply that the classification of an activity as a service of the information society can, in itself and by itself, make other parts of the service meaningless. Consequently, the main criterion for determining the applicable legislation for a composite service must be the possibility or impossibility of separating the services that comprise it. In the second case, it would be necessary to determine to what extent the different services that make up the composite services are “intrinsically linked,” and, if it is not possible to provide them separately, the economically dominant one would have to be identified.

Regarding composite services, therefore, a legal fiction allows considering the service as having been completed electronically[13]and, in consequence, deserved to be classified as an information society service only and when the non-electronic service is economically independent of the main one, or when it constitutes the main provision of the composite service (Art. 1.2 Directive 98/34/EC). The service provided by Uber has been understood as a composite service, since it includes a provision to connect passengers with drivers through smart phone software and, in addition, another physical transport service, which cannot be dematerialised or, consequently, transmitted “entirely” electronically. However, the main issue was to determine whether said electronic component was sufficient to be considered “economically independent” and the main part of the complete service.

If this analysis were applied to the service offered by Uber, it would not have any autonomous economic value without the transport component, which, in turn, is regulated in other regulatory groups. Therefore, the answer must be that services of compound or composite provision depend on all relevant applicable legislation and not only on electronic commerce standards, since the fact that they are also electronic commerce services does not exclude them from the scope of application of transport laws. This is due to a simple reason: a service whose main non-electronic component is otherwise regulated should not be able to evade said regulation by introducing an aspect of electronic commerce. If not, it would mean that medical, financial or tourism services, for example, could circumvent legal regulation by introducing an innovative electronic component[14].

The cornerstone of this issue resides in the interpretation that the Court of Justice has offered of the “preponderant control” that Uber exerts over its transport provision, equating it almost to the direct provision of said service with its own means. Uber is described as “a classic transport service,” which does much more than intermediate between supply and demand, as it is the company itself that creates the offer, regulates its essential characteristics and organizes its operation. However, the fact that Uber is not the owner of the vehicles, which are essential to complete the transport operation, does not prevent the classification as a classic transport service. The reason is that Uber “controls all relevant aspects of an urban transport service”: the price, the minimum safety requirements for both vehicles and drivers,[15] the accessibility of the transport offer, especially at times and places of greater demand, the conduct of the drivers through the rating system and, finally, the possibility of expulsion from the platform. This implies, according to the Elite Taxi judgment, the control of “the economically significant aspects of the transport service offered through its platform.” And such control, although not exercised through classic subordination, is carried out through an indirect control[16] based on financial incentives and a performance ratings system that “makes it possible to manage in a way that is just as — if not more — effective than as management based on formal orders given by an employer to his employees and direct control over the carrying out of such orders.”[17]

This direct and indirect control over the entire service and the inability of drivers to carry out their own activity independently make the platform the true essential element of transport provision, without which this would be a mere application of booking taxis[18]. They also differentiate it from intermediary platforms, such as those that allow you to book a hotel or purchase airline tickets, from the moment when these booking platforms do not exert any prior control of access to the activity, as Uber does with its drivers, nor do they prevent the traveller from obtaining tickets or hotels through other providers, with rates, schedules or different conditions from those offered on their platforms.

Thus, from the moment in which the transport of the passenger from one point to another constitutes the essential objective of the service and the connection between the client and the application is only a preparatory and instrumental element of the main provision, said connection does not constitute the autonomous or main activity of transport provision. And this prevents, consequently, that Uber’s activity is classified as an information society service and benefits from the principle of liberalisation recognized by Directive 2001/31/EC.

On this point, the reasoning of the Opinions of the Elite Taxi and Uber France cases are enormously revealing. As indicated in the first, “it would be pointless only to liberalise a secondary aspect of a composite supply if that supply could not be freely made on account of rules falling outside the scope of the provisions of Directive 2000/31.” Such liberalisation would be only apparent and “not only would… [it] fail to attain its objective, it would also have adverse consequences, leading to legal uncertainty and diminished confidence in EU legislation.”[19]The application of the regulations on information society services regarding composite services for provisions that are neither independent nor main would be contrary to the literal wording of the provisions examined, and would breach its objective and generate legal uncertainty, in so far as other provisions could be regulated differently in national law, as is the case for a specific area such as transport[20]. Thus, the Advocate General indicates that if the connection activity were liberalised in the case of Uber, Member States would be free to make its exercise impossible through regulating transport activity. The only result of this liberalisation would be absurd: the State in which the service provider is established would benefit from its establishment through investments or the generation of employment, but at the same time prevent the provision of the service in its territory, by virtue of the regulations regarding provisions not included in Directive 2000/31/EC. This would imply a considerably unwanted effect if, in the case of Uber, the operation of the platform is not formally prohibited, but, due to the service model itself (based on non-professional drivers) the transport activity cannot be pursued in compliance with the law.

The place of Uber in the field of transport services, if not as a carrier itself, but as an organizer of transport services, in the sense indicated in Art. 2(2)(d) of Directive 2006/123/EC, excludes it from the scope of the Directive and includes it in the exception to the freedom to provide services contained in Art. 58(1) TFEU and is governed by Art. 90 and the ensuing articles.

European harmonisation has always had transport policy as one of its main objectives from the moment it became one of the oldest policies, and the Treaty of Rome pursued the removal of obstacles at the borders of the Member States with the objective of facilitating the free movement of people and goods[21]. From the first attempts to regulate the professional training of transport carriers in the directives of the 80s, to more specific regulation through the codecision procedure established by the Maastricht Treaty, under Art. 75 Treaty on European Union (TEU), common conditions were established in terms of access to the profession, recognition of qualifications and other aspects that tried to facilitate the free establishment of transport carriers in the national and international sector.

 

Directive 2002/15/EC of the European Parliament and of the Council of 11 March 2002, on the organisation of the working time of persons performing mobile road transport activities[22], is intended to establish minimum requirements in relation to the organisation of working time in order to improve the health and safety protection of persons performing mobile road transport activities and to improve road safety and align conditions of competition (Art. 1). However, as with the previous Directive 93/104/EC, self-employed workers are also excluded from the scope of Directive 2002/15/EC.

Urban transport has been and continues to be a heavily regulated sector, as it could not be otherwise under the justification of guaranteeing the safety of passengers or controlling the quality of service provision[23]. The new technologies used by the platforms and their innovative operating systems have tried to bypass this regulatory rigidity through new models of urban mobility that, as a smoke screen, have hindered the task of identifying the applicable regulations for its operation.

The main problem that Uber has faced, as a VTC platform, has been that of competition with the transport sector by taxi, which constitutes a mode of urban transport subject to extensive and restrictive regulation.[24] Those who operate through VTC licenses, on the other hand, enjoy more flexible regulation, while they are not subject to legal limits on price regulation, mandatory rest periods or schedule limitations that do apply to taxis[25].

The weak balance that maintained the relative peace between both transport models was based on the small number of VTC licenses, whose ratio, until 2009, remained at 1 for every 30 taxi licenses. The situation erupted with the liberalisation of the sector by what was called the Omnibus Law,[26] which abolished the quantitative limitations on VTC licenses and was in force from 2009 until its repeal by RD 1057/2015.[27] RD 1076/2017, of December 29, then established new restrictions in relation to the use of authorisation for leasing vehicles with drivers, preventing the transmission of licenses until two years had elapsed since the original issue and forcing the communication of roadmaps before the start of each service.[28]

These regulations include a set of limits and restrictions on passenger transport in vehicles with drivers that clearly affect the activity carried out by Uber and other platforms. Restrictions and limitations that, on the one hand, they would not be obliged to follow if they were to be considered information society services companies. On the other hand, they are territorial in nature, which contrasts openly with the vocation of international expansion that characterizes technological platforms.

 

  1. Information society services and their associated risks

 

The limited interest that the Uber France judgment seemingly presents for our internal legislation is more than compensated for by the suggestive conclusions drawn by the same Advocate General who dealt with the opinion of Elite Taxi. It is worth mentioning an important provisional detail: when Mr. Szpunar wrote the opinion of the Uber France judgment, the Elite Taxi judgment had not yet been handed down and, therefore, the Court of Justice had not yet classified Uber as a transport service. This is why this opinion attempts to address Uber’s activity from the other side, leaving the back door that would allow Uber to escape unpunished from this scenario tightly closed.

 

This contrary temporary circumstance justifies the fact that the Uber France judgment barely holds back in the detailed analysis of the preliminary question raised, from the moment in which, just a month before, the Elite Taxi judgment had been handed down, which resolved the substantial part of this issue.Very briefly, one should remember that the question referred for a preliminary ruling by the Regional Court, Lille, dealt with the possible consideration of a precept of the Gallic Transport Code as a technical regulation to the effect of Directive 98/34/EC, which establishes an information procedure regarding technical rules and regulations and those relating to information society services. The French precept sanctioned, with fines and jail sentences, “the organisation of a system for putting customers in contact with persons carrying on” the activities of the carriage of persons by road for remuneration using vehicles with fewer than 10 seats “where such persons are neither road transport undertakings entitled to provide occasional services (…) nor taxi drivers, or two or three-wheeled motorised vehicles or private hire vehicles.”

From the moment in which the Elite Taxi judgment classified Uber as a transport service and excluded its status as an information society service, the solution to this question referred for a preliminary ruling was a simple one. The Uber France judgment stated that, as a transport service, Directives 98/34/EC and 2006/123, intended for information society services, are unenforceable. Therefore, it did not go into analysing the classification of the articles of the French Transport Code[29] as a technical regulation or the notification requirement.

However, as already indicated, the true value of this judgment, in terms of its possible impact on national rights (including Spanish) resides in what is pointed out in the opinion offered by the Advocate General. It openly warns of the danger that may arise from an extensive interpretation of the concept of “information society service” and the possible consequences of the failure to notify of a national provision that constitutes a technical regulation.[30]

 

The indicated danger derives from the requirement contained in Art. 8 of Directive 98/34/EC. It mandates that any draft technical regulation that affects an information society service must be notified by the national government to the Commission. And more importantly: the failure to notify constitutes a procedural flaw in the adoption of technical regulations, which leads to its inapplicability to individuals. With notable acuity, the Advocate General points out the following: “an individual who wishes to escape the application of a rule [such as the French Transport Code, which prohibits and penalises the organization of a transport system without the appropriate licenses] may rely on the fact that it has not been notified, without there being any need to determine whether the rule is substantively contrary to the freedoms of the internal market.” This upper hand was, precisely, taken advantage of by Uber in this case, by opposing the enforceability of the prohibition of the French Transport Code by considering it a technical regulation and having proved that its processing had not been notified to the Commission, in breach of what was ordered by the Directive.

The opinion highlights and warns that “the resulting unenforceability may even benefit operators whose activities, while falling within the scope of the rule in question, do not amount to information society services, in particular, because their role is not limited to services provided by electronic means,” as is the case with Uber.This reasoning is what also allows the Advocate General’s approach to be explained in his opinion: avoiding addressing the classification of Uber’s activities in the light of Directive 2006/123 (remember that the Elite Taxi[31] judgment had not yet been issued), and focusing on question as to whether or not the provision of French law constituted a technical regulation and should have been notified, in accordance with what was ordered by Directive 2006/123/EC.

To resolve this issue, it was necessary to delve into the main element, which is none other than the definition of what is to be understood by technical regulation and, after that, the classification (or not) of the French prohibition as such regulation. According to the amended Directive 98/34/EC, a technical regulation is one that meets several conditions: it only refers to information society services; it contains a rule regarding access to service activities and their exercise; and it is necessary that such requirements have the specific aim and purpose of regulating said services explicitly and well.

The opposite operation is as important as defining what is to be understood by technical regulation. Thus, those that do not refer to information society services or that only refer to such services in an implicit or incidental manner are excluded from this condition.[32]

The prohibition contained in the French Transport Code was not intended to prohibit or completely regulate the provision of transport services. Far from it, it only tried to prohibit and punish the activity of intermediary in the illegal exercise of transport, so that the activity of intermediary carried out with respect to a legal transport service was outside its scope. Its regulation of services is therefore purely incidental.

Once the consideration of this rule as a technical regulation has been removed, any notification duty is also eliminated and, more importantly, with it any escape route based on the inapplicability of this rule for breach of the notification duty. The fact that the nature of the regulatory standard is, in this case, criminal, has no influence, but, as the opinion indicates, the fact that the provision “does not prohibit and does not penalise an activity which is in the nature of an information society service in a general fashion, but only in so far as the activity amounts to an act of complicity in the exercise of another activity, one that is illegal and, moreover, one that falls outside the scope of Directive 98/34, as amended.”

It is obvious that this reasoning was not part of the Uber France judgment from the moment that the Elite Taxi judgment had already configured Uber as a company that provides a transport service. However, these conclusions open the door to the admission of national rules that prohibit the provision of passenger transport services without the appropriate licenses established in the legislation of each Member State, and even, that punish their infringement with prison or substantial fines, exempting them from the requirement of notification and with it their non-application due to a lack of such registration.

 

  1. The consequences of these judgments on an internal level

 

In recent years there have been academic works that analysed the employed or autonomous nature of the relationship between Uber and its drivers, especially in light of the judgments of the Court of Justice mentioned here. From the point of view of the labor doctrine, there is an unanimous clamour towards the recognition of the nature of the labor relationship, even in spite of the notorious blurring of the notion of working under the direction of another with which the platforms have been known to play, and Uber has been no exception.

The admission of the nature of the labor relationship between Uber and its drivers would lead to formidable repercussions for both them and the company itself, from the moment when the rules and obligations of labor law and social security would inevitably fall on both. Even more so if these workers are considered to be lacking, until now, collective instruments that can qualify the application of these standards, given that in Spain no initiative for collective bargaining of working conditions has yet been implemented.

The characterization of Uber drivers as employed workers in the service of the platform would have numerous consequences from the point of view of the cited regulations. Among them, two matters are particularly important: remuneration and working time, since the particularities of both within the framework of the platform have been expressly used by Uber to justify the lack of an employment relationship with its drivers.

 

4.1.                     Working time

 

Spanish regulation on the transport of passengers with a driver does not contain limitations on working time or rest periods to which drivers must be subjected. But this does not imply that these limits do not exist, from the moment in which, in its enactment in Spain, the scheduled working day limitations would apply in general within Arts. 34 to 38 of the Workers’ Statute. The absence of covenants or collective agreements on the matter is a huge difficulty when managing a circumstance as particular as working time on a platform like Uber. This is because the company does not impose time restraints, but work on demand depending on the acceptance of trips by the driver, which may vary completely on each day of activity. This ability to choose, as is obvious, would be limited by the restrictions imposed by the link to the platform, which requires you to accept a minimum number of proposed trips and maintain a minimum connection time to avoid “disconnection” from the platform.

 

4.2.                   Remuneration

 

Another essential characteristic of Uber is, precisely, “piecework” remuneration, based exclusively on the trips actually made. This calculation does not take into account the time that the driver is available to the platform without receiving any commission.

On this issue, the legislative initiatives carried out in other countries around Spain, such as Portugal or Italy, which have tried to regulate and protect the conditions of platform workers dedicated to passenger transport, are encouraging. First, there is the presumption of employed status provided for in Portugal[33], through Law 45/2018, of August 10, on the legal regime of activity of individual and paid passenger transport in unidentified vehicles of digital platforms. Alternatively, in the Italian legislation (Decree-Law 3 September 2019, nº 101), there is the non-direct recognition of employment with respect to the relationship that unites the platform workers with the companies. While Portuguese legislation contains a specific section on labor law and contains labor obligations for digital platforms (training, civil liability insurance, daily workday limits...), the Italian legislation provides for a title dedicated to work services carried out through digital platforms by self-employed workers, which tries to extend to them a good part of the typical rights of employed persons; in particular, in terms of wages and working time limits.

 

  1. References

 

M. Barrio Andrés, Breve comentario a la sentencia Uber: cómo regular los servicios compuestos o mixtos en la economía digital, La Ley Digital (LALEY 115/2018).

I. Beltrán de Heredia Ruiz, Work in the Platform Economy: Arguments for an Employment Relationship, Huygens Editorial, 2019.

M.C. Escande-Varniol, Uber est un service de transport, mais quel statut pour les chauffeurs?, Semaine sociale Lamy, 2018, n. 1804, p. 5.

A. Ginès i Fabrellas, A.-S. Gálvez Durán., Sharing economy vs. uber economy y las fronteras del Derecho del Trabajo: la (des)protección de los trabajadores en el nuevo entorno digital, InDret 2016, n. 1, p. 17 ss.

J.M. Goerlich Peset, La prestación de servicios a través de plataformas ante el Tribunal de Justicia: el caso Uber y sus repercusiones laborales, La Ley Digital (LALEY 6292/2018).

J. Leal Amado–T. Coelho Moreira, A lei portuguesa sobre o transporte de passageiros a partir de plataforma electrónica: sujeitos, relações e presunções, Labour & Law Issues, 2019, vol. 5, n. 1, p. 71 ss.

J. Mercader Ugina, El mercado de trabajo y el empleo en un mundo digital, Revista de Información Laboral, 2018, n.11 (BIB 2018\13994).

J. Mercader Ugina, La prestación de servicios en plataformas profesionales: nuevos indicios para una nueva realidad, in Trabajo en Plataformas Digitales: innovación, Derecho y mercado, Aranzadi, 2018, p. 155 ss.

J.M. Miranda Boto, Las competencias de la Comunidad Europea en materia social, Thomson-Reuters Aranzadi, 2009, p. 254-255.

S. Rodríguez Marín, Aspectos jurídicos de la economía colaborativa y bajo demanda en plataformas digitales, in S. Rodríguez Marín-A. Muñoz García (Coords.), Aspectos legales de la economía colaborativa y bajo demanda en plataformas digitales, Wolters Kluwer, 2018, p. 55 y ss.

A. Todolí Signés, El trabajo en la era de la Economía Colaborativa, Tirant lo Blanch, Valencia, 2017, p. 223 ss.

 

Abstract: The irruption of digital platforms in multiple economic and social sectors has been especially intense in the on-demand transport sector and has generated questions regarding the adequacy of legal regulations created for other times and other social realities. The two judgments handed down by the Court of Justice in 2018 classified Uber as a transport company. The purpose of this paper is to analyse the important consequences that the application of a strongly interventionist, territorial regulation, based on passenger safety and quality control in the service provision, entails for the sector, regardless of the classification as employment, or not, of the relationship between Uber and its drivers.

 

Key Words: Uber, transport service, information society service, Court of Justice, employment.

 


*This paper, subjected to double blind peer review, is part of the research project RTI2018-097917-B-100, entitled Challenges of Spanish Labor Law in the Context of the Doctrine of the Court of Justice on Social Policy and Fundamental Rights, of the Ministry of Science, Innovation and Universities.

[1] Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market.

[2] Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations.

[3] Ruling of Lille First Instance Court of 17 March 2016.

[4] Case C‑434/15 (ECLI:EU:C:2017:981). 

[5] Case C-320/16 (ECLI:EU:C:2018:221).

[6]To that effect, in section 54 of the Opinion, different judicial resolutions that have addressed the controversy regarding the status of drivers with respect to Uber were highlighted, including the judgment of the London Employment Tribunal of 28 October 2016, Aslam, Farrar and Others -v- Uber (Case 2202551/2015), the decision of the Audiencia Provincial de Madrid No 15/2017 of 23 January 2017 in an action between Uber and the Asociación Madrileña del Taxi, as well as the order of the Tribunale Ordinario di Milano of 2 July 2015 (cases 35445/2015 and 36491/2015).

[7] See, among others, I. Beltrán de Heredia Ruiz, Work in the Platform Economy: Arguments for an Employment Relationship, Huygens Editorial, 2019; A. Ginès i Fabrellas, A.-S. Gálvez Durán., Sharing economy vs. uber economy  y las fronteras del Derecho del Trabajo: la (des)protección de los trabajadores en el nuevo entorno digital, InDret 2016, n. 1; J.M. Goerlich Peset, La prestación de servicios a través de plataformas ante el Tribunal de Justicia: el caso Uber y sus repercusiones laborales, La Ley Digital (LALEY 6292/2018); J., Mercader Ugina, El mercado de trabajo y el empleo en un mundo digital, Revista de Información Laboral, 2018, n.11 (BIB 2018\13994); J., Mercader Ugina,  La prestación de servicios en plataformas profesionales: nuevos indicios para una nueva realidad, in Trabajo en Plataformas Digitales: innovación, Derecho y mercado, Aranzadi, 2018, p. 155 ss.; A. Todolí Signés, El trabajo en la era de la Economía Colaborativa, Tirant lo Blanch, Valencia, 2017, p. 223 ss.

[8] M.C. Escande-Varniol, Uber est un service de transport, mais quel statut pour les chauffeurs?, Semaine sociale Lamy, 2018, n. 1804, p. 5: “Un autre enjeu moins visible immédiatement dans cette affaire est le rôle d’harmonisation du droit des plateformes électroniques de services que la CJUE est appelée à jouer dans un espace européen où les montages de sociétés sont faits, comme c’est le cas en l’espèce, pour optimiser l’application des droits nationaux en l’absence d’harmonisation fiscale et sociale”.

[9] Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations.

[10] Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market ('Directive on electronic commerce').

[11] Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market.

[12] Art. 56 TFEU: “Within the framework of the provisions set out below, restrictions on freedom to provide services within the Union shall be prohibited in respect of nationals of Member States who are established in a Member State other than that of the person for whom the services are intended”.

[13]The judgment of December 2, 2010, Ker-Optika bt v ÀNTSZ Dél-dunántúli Regionális Intézete, case C-108/09 (ECLI:EU:C:2010:725), in the area of online sales of contact lenses, is considered a national standard that limits the marketing of contact lenses exclusively to establishments specializing in medical instruments and prohibits their online sale contrary to Articles 34 and 36 TFEU and Directive 2000/31/EC. For the Court, the national standards concerning the marketing of contact lenses fall within the scope of Directive 2000/31/EC, in so far as they refer to the sale of such contact lenses online. On the other hand, the national standards related to the delivery of these contact lenses constitute only the execution of a contractual obligation, so the standard related to delivery should not affect the provision of the principal service.

[14] M. Barrio Andrés, Breve comentario a la sentencia Uber: cómo regular los servicios compuestos o mixtos en la economía digital, La Ley Digital (LALEY 115/2018).

[15] Although these vary in each State, they generally include the number of doors of the vehicles, their age limit, compliance with the requirements of technical inspection or compulsory insurance, the driving license that drivers must have or lack of a criminal record, among others.

[16] A. Ginès i Fabrellas-S. Gálvez Durán., Sharing economy vs. uber economy y las fronteras del Derecho del Trabajo: la (des)protección de los trabajadores en el nuevo entorno digital, InDret 2016, n. 1, p. 17 ss.

[17] Section 52 of the Opinion in Elite Taxi.

[18] Section 56 of the Opinion in Elite Taxi.

[19] Section 31 of the Opinion in Elite Taxi.

[20] Section 15 of the Opinion in General Uber France.

[21] J.M. Miranda Boto, Las competencias de la Comunidad Europea en materia social, Thomson-Reuters Aranzadi, 2009, p. 254-255.

[22] Recital 10: “In order to improve road safety, prevent the distortion of competition and guarantee the safety and health of the mobile workers covered by this Directive, the latter should know exactly which periods devoted to road transport activities constitute working time and which do not and are thus deemed to be break times, rest times or periods of availability. These workers should be granted minimum daily and weekly periods of rest, and adequate breaks. It is also necessary to place a maximum limit on the number of weekly working hours.”

[23] S. Rodríguez Marín, Aspectos jurídicos de la economía colaborativa y bajo demanda en plataformas digitales, in S. Rodríguez Marín-A. Muñoz García (Coords.), Aspectos legales de la economía colaborativa y bajo demanda en plataformas digitales, Wolters Kluwer, 2018, p. 55 y ss.

[24]As indicated by S. Rodríguez Marín (op. cit., p. 56): within the taxi sector three models can be identified: taxis that circulate on public roads; those parked at specific stops reserved for them; and those which go specifically to provide a previously contracted service. Vehicles that operate with VTC authorizations, as in the case of Uber, “compete only with the third operating model, being prohibited by law from operating in either of the other two ways.”

[25] S. Rodríguez Marín, op. cit., p. 56.

[26]Law 25/2009, of December 22, amending various laws to adapt to the law on free access to service activities and their exercise.

[27]Royal Decree 1057/2015, of November 20, which modifies the Regulation of the Land Transport Law, approved by Royal Decree 1211/1990, of September 28, on the lease of vehicles with drivers, to adapt it to Law 9/2013, of July 4, which modifies Law 16/1987, of July 30, on Land Transport, and Law 21/2003, of July 7, on Aviation Security. In turn, this RD is completed with Order FOM/2799/2015, of December 18, which modifies Order FOM/36/2008, of January 9, which develops the second section of the Chapter IV of Title V, on the matter of leasing vehicles with drivers, of the Regulation of the Land Transport Law, approved by Royal Decree 1211/1990, of September 28.

[28]Currently, the Resolution of March 15, 2019, of the Directorate General of Land Transportation, which announces the entry into operation of the Communications Registry of Services for Leasing Vehicles with Drivers and its conditions of use, is in force sinceApril 1, 2019.

[29]Arts L. 3120-1 and L. 3124-13.

[30]In Paragraph 36 of the Opinion, Mr. Szpunar, while recognizing that it would be strange for the Court to depart from its Opinion in the Elite Taxi case and classify Uber as an information society service and not as a transport service, expresses its desire to also analyse the issue of the effects arising from the failure to notify, “for the sake of completeness (...) because the answer to that question will give a fuller picture of the position.”

[31]Paragraph 14 of the Opinion refers to, in regard to the classification of the services provided by Uber (or UberPop, in this case), the Opinion presented in the Elite Taxi case.

[32]Section 31 of the Opinion is especially expressive: “If every national provision that prohibited or punished intermediation in illegal activities had to be regarded as a technical regulation merely because the intermediation most likely takes place by electronic means, then a great number of internal rules in the Member States, written and unwritten, would have to be notified as technical regulations.”

 

[33]About this issue, J. Leal Amado–T.Coelho Moreira, A lei portuguesa sobre o transporte de passageiros a partir de plataforma electrónica: sujeitos, relações e presunções, Labour & Law Issues, 2019, vol. 5, n. 1, p. 71 ss.

Vázquez Maneiro Yolanda



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