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ECJ is wrong in Uber cases, but so was I...

Today (see also this Dutch Blog) another Uber ruling appeared from the European Court of Justice. Just like the previous ruling from December 2017, the argument basically runs as follows.

1. The services directive (2006/123/EC) deals with services
2. The services directive (2006/123/EC) deals not with transport services 
3. Uber is a transport service
4. So Uber is not covered by the services directive

So far so good. However, Uber obviously is not just a transport service. You could even argue that if there were no smartphones and apps, Uber would not exist. So the app, an information society service, is essential for this service. The ECJ turns it upside down, and downgrades the app to being not essential to the service being delivered. That leads to the following reasoning.

5. Information society services are services
6. The Uber App is an information society service
7. Uber app is intertwined with the transport service
8. The services directive (2006/123/EC) deals not with transport services
9. The Uber App is not an information society service

The consequence of this ruling is that any app or website offering transport services, is no longer covered by the e-commerce directive. This consequence is wrong. You should distinguish, which used to be common practice, the information society service from the service or selling it facilitates. So the information society service is the app or website, and can facilitate either the purchase of a product (e.g, book) or service (e.g. legal advice).

I must admit I was wrong too, and actually did what the ECJ ruled, two years ago. In the International Business and Internet law class, the students had to argue either that Uber/Airbnb are global information society services just bringing together supply and demand, or that they should comply with local norms. It was one of the most interesting classes I ever had, the students were excellent (see description in this blog at the bottom).

Back then I concluded I was not sure what to choose, Uber/Airbnb just being an information society service, or Uber/Airbnb having to comply with local norms. I told the students our class showed you could argue either way. It is only now after the ECJ choose for the local norms I realized it is not “either … or”. It is BOTH. Information society service AND compliance with local norms.

The last word has not yet been said on this issue. This is a fascinating area, in which outcomes of arguments can depend on taking a primary EU law approach, or focus on specific Directives. Also, the freedom of services (as one of the EU freedoms) clearly is not the same as a service in the civil law sense, where there is a distinction between selling goods and selling services (Recently the ECJ also indicated that selling shoes in a brick and mortar shop qualifies as delivering a service, and freedom of establishment applies).

This is lawyer’s paradise, for both academics and practitioners. Tomorrow I have an e-commerce law class on this topic. I expect fireworks from the students again!

P.S. in the first class a majaority was in favor of the ECJ decision, in the second a majority against. Each class I divided in a PRO ECJ and CON ECJ group. Also, one student noted "I consider Uber App to be an Information society service, but why are we arguing either ... or, why not both".




Bruce Latham dinsdag 17 april 2018 09:56

If Uber only allowed taxis to connect with potential costumers, I could follow it being an information service. But Uber sets the price, and Uber is even moving in to self-driving cars (who is their service connecting then?). There are ride share apps, where people can say 'I'm driving from X to Y, if you want to ride along (part of) this route, you can pay me Z'. Those are pure services I'd argue, as the app only connects supply and demand, and doesn't influence price, route, etc. Uber is like Amazon, where they are actually selling the product, not like Craigslist or whatever where users decide themselves what they're offering and for how much.

Arno R. Lodder dinsdag 17 april 2018 10:04

Interesting you mention Amazon, that is a classic example of an information society service provider. Based on the Uber ruling, however, you could even argue they are not. Basicallly, you could even argue there are not that many ISSP at all, apart from e.g.
It is time to seriously rethink why EU law has ISSPs, whether they should be seen as special service providers. Maybe we should skip ISSPs as a concept, maybe we should redefin, etc.



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