Last week brought a very interesting opinion of the Advocate General Szpunar in case C-62/19 Star Taxi App. The case constitutes a follow-up to a range of preliminary rulings on the platform economy, most notably the judgments in the two Uber cases (see our comments, respectively, on Uber Spain and Uber France) and in Airbnb Ireland, as well as the pending case Cali Apartments. It is worth noting that it was also AG Szpunar who successfully advised the Court in the first three of them, while on the fourth pending case, in which AG Bobek delivered the opinion, the Court is about to rule later this month.
Facts of the case
Similarly to Uber references, case C-62/19 Star Taxi App involved a provider of a mobile application connecting drivers and passengers in urban transport. Furthermore, the doubts raised equally concerned the legal qualification of the service provider (as a provider of information society services or not) as well as the scope of Member States' regulatory discretion concerned. More specifically, in the case at hand the question was whether the provider of Star Taxi App could be subjected to the Romanian requirements imposed on operators of taxi 'dispatching' services, including the requirement to obtain prior authorisation.
At this stage, it is necessary to note that the business model of Star Taxi App was not merely a copy of the (in)famous Uber platform. Like Uber, the application helped passengers to establish contact with providers of urban transport services. However, the provider did not automatically select two parties for a ride, but rather displayed a list of drivers available for a journey, from whom the passenger was free to choose a party. Secondly, the application provider did not set the fare, which was rather paid directly to the driver. Finally, only taxi drivers authorised and licensed to provide taxi services were allowed on the platform and no additional steps were taken to control the quality of the vehicles and their drivers or the drivers' conduct.
Not unlike the Uber France case, the provider of Star Taxi App, operating without authorisation, was eventually fined for having infringed the applicable Romanian norms. The provider appealed, arguing that the legal provisions applied to it were contrary to the EU law. Against this background, the Regional Court in Bucharest decided to stay the proceedings and refer a number of questions to the Court of Justice.
Opinion of the AG
The questions referred concerned, firstly, the notion of the information society service, secondly, the scope of regulatory discretion of the Member States under the E-Commerce Directive and the Services Directive and, thirdly, the notification requirements laid down in Directive 2015/1535.
Finding 1: Star Taxi App provides information society services
The Advocate General began his response to the first question by reitering the notion of information society service defined in Article 2(a) of the E-Commerce Directive by reference to Article 1(1)(b) of Directive 2015/1535. To recall, 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". According to the AG, the service consisting in putting taxi passengers directly in touch, via an electronic application, with taxi drivers, such as the one considered in the main proceedings, fell under that definition. Most notably, the AG did not consider the business model of Star Taxi App to be "inherently linked" to the underlying transport services, as it did in the Uber cases. In his view, the service was merely an adjunct to a pre-existing and organised taxi transport service (considering it was offered to licensed drivers only), while its provider did not exercise control or decisive influence over the conditions under which transport services were provided by the taxi drivers (paras. 45, 49). Hence, unlike in the case of Uber, the E-Commerce Directive should be considered applicable to the analysed services.
Finding 2: National rules are not precluded by the principle excluding prior authorisation in the E-Commerce Directive
The key part of the opinion in Star Taxi App is linked to the second question, concerning the interpretation of the principle excluding prior authorisation in the E-Commerce Directive. To recall, pursuant to its Article 4(1), Member States shall ensure that the taking up and pursuit of the activity of an information society service provider may not be made subject to prior authorisation or any other requirement having equivalent effect. Most importantly for the present case, the subsequent paragraph specifies that the principle mentioned above "shall be without prejudice to authorisation schemes which are not specifically and exclusively targeted at information society services". Focusing on the latter, AG Szpunar argued that a national provision, such as the one in the case at hand, which extends the requirement to obtain prior authorisation - with which providers of economically equivalent services already have to comply (cf. para. 74) - to the providers of information society services does not constitute an authorisation scheme specifically and exclusively targeted at providers of the second category of services. In order words, providers of information society services can, in such case, be subject to an authorisation scheme.
The arguments brought by the AG in support of this reasoning appear broadly convincing. According to the AG, while the EU legislature's aim in adopting the E-Commerce Directive was to encourage the development of information society services, its intention was not to enable economic operators to evade legal obligations solely because they operate 'online' (para. 25). The rationale for Article 4(2) of the E-Commerce Directive can thus be linked to the prevention of unequal treatment between information society services and similar services which do not fall within that concept. Indeed, with the growth of the digital economy, providers of information society services may enter markets in which 'traditional' service providers had previously played a central role. Following the AG, legislative or administrative action, which makes providers of such services subject to existing rules, does not amount to the creation of a new authorisation scheme specifically and exclusively targeting those services, but rather constitutes an adjustment of the existing scheme to take account of new circumstances (para. 69).
While this generally seems well-founded, the focus of the AG on the extension of already existing rules is not entirely clear. In my view, such an emphasis should simply be linked to the circumstances of the case. Specifically, the fact that the analysed Romanian provisions were extended to cover information society services makes it potentially more difficult for the national legislator to argue that its action was not "specifically and exclusively" targeted at information society services. AG's focus on this context is thus meant to show that, even in those circumstances, conditions of Article 4(2) of the E-Commerce Directive can be fulfilled. The temporal/technical aspect (extension of already existing rules) is not crucial to the interpretation, however. Also newly adopted rules, targeted at providers of information society services and other services equivalent in economic terms, can potentially fall under Article 4(2). Seen through this lens, one can wonder whether the complex reasoning on the notion of information society service, initiated by the AG in Uber Spain opinion, was indeed necessary?
Finding 3: Also Services Directive applies to the case at hand
Having analysed the E-Commerce Directive, the Adovocate General moved to the discussion of other harmonised provisions, most notably of Directive 2006/123/EC on services in the internal market. Most notably, the AG found that the Services Directive also applies to the case at hand. According to the AG, the relation between the two directives is defined by the principle of lex specialis derogat legi generali, laid down in Article 3(1) of Services Directive. Pursuant to this provision, in the event of a conflict, the provisions of specific acts of EU law governing access to and the exercise of services in specific sectors take precedence over those of Directive 2006/123/EC. As argued by the AG, in the case at hand a conflict of this kind did not arise. Consequently, authorisation schemes, introduced in accordance with Article 4(2) of the E-Commerce Directive, should comply with the rules laid down in Articles 9 and 10 of the Services Directive.
The subsequent analysis of AG Szpunar essentially falls in line with the recent opinion of AG Bobek in Cali Apartments. In particular, a distinction is made between the benchmark for evaluating the need for establishing an authorisation scheme in the first place (Article 9) and more specific conditions of such a scheme (Article 10). According to AG Szpunar, the preliminary reference did not contain sufficient information to give extensive guidance on the two provisions in the analysed context. It is worth highlighting, however, that, in view of the AG, the requirement of consumer protection cannot be invoked as the valid objective of the scheme, as it is already satisfied by the obligations imposed on drivers (para. 97). To what extent such a broad-brush conclusion is indeed justified can be a subject of debate. By contrast, observation made in relation to the following provision, according to which an authorisation scheme is not based on criteria justified by an
overriding reason relating to the public interest when the grant of
authorisation is subject to requirements that are technologically
unsuited to the applicant's intended service (para. 101), appears to be well-founded.
The last part of the opinion involved the interpretation of Directive 2015/1535 laying down a procedure for the provision of information in the field of technical regulations and of rules on information society services. The key question raised in this context was whether the national provisions at hand constituted technical regulation. Somewhat surprisingly, the AG did not refer in this part of the judgment to his previous argument concerning the consistent case law finding that provisions on authorisation schemes do not constitute technical regulations (cf. para. 72). The AG may thus himself recognize the weakness of this reasoning in relation to the rules on services (cf. recital 18 of Directive 98/48/EC, which introduced the notion). Still, after a rather brief reasoning, the AG similarly concludes that provisions at issue did not constitue technical regulations. Considering the rather expansive interpretation of the notification requirements in the prior case law, e.g. in VG Media and Airbnb Ireland, one can wonder whether this part of the opinion will indeed find support of the Court.
* The author carries out a research project on consumer protection in the collaborative economy, financed by the National Science Centre in Poland on the basis of decision no. DEC-2015/19/N/HS5/01557.
