Facts of the case and the questions referred
As we recounted in our previous post, the case involved a provider of a mobile application connecting drivers and passengers in urban transport. The business model of Star Taxi App was, however, not identical to the Uber platform. Firstly, 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 fare was not set by and collected through the app, but was paid directly to the driver. Thirdly, 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 drivers. Finally, unlike Uber, Star Taxi App was a Romanian platform, operating on the Romanian market.
The operation of the platform was considered to be in violation of applicable national rules, most notably as regards prior authorisation. The provider contested the sanctions imposed on him, arguing that the relevant norms were contrary to the EU law. Against this background, the Regional Court in Bucharest decided to stay the proceedings and ask the Court of Justice for an interpretation of the notions of "information society services" under Directive 2000/31/EC and "technical regulations" under Directive 2015/1535 on the provision of information in the field of technical regulations. Moreover, the reference provided the Court with an opportunity to clarify specific norms on freedom of establishment, contained in Directive 2000/31/EC (principle excluding prior authorisation) and Directive 2006/123/EC on services (conditions for establishing authorisation schemes and for granting authorisations).
Judgment of the Court
Finding 1: Star Taxi App provides information society services
Like the AG, the Court found that services provided Star Taxi App fulfil the criteria of "information society services", to which Directive 2000/31/EC applies (para. 42-48), and cannot be seen as "inherently linked" to the underlying transport services. Key to the latter finding was the fact that Star Taxi App did not create a new market for non-professional drivers, but was limited to licensed taxi drivers, i.e. a market for services which existed before (para. 52), and did not organise the general functioning of underlying transport services, as it did not select the drivers, set or charge prices or control vehicles or drivers (para. 53). Consequently, unlike in Uber cases, classification as "information society services" remained available.
Finding 2: Notification requirements under Directive 2015/1535 do not apply
The Court then reversed the order of the questions referred and moved to the assessment of notification requirements under Directive 2015/1535. Like the AG, the Court concluded that the Romanian requirements imposed on operators of taxi "dispatching"
services did not constitue technical regulations as they were not specifically aimed at information society services. Whether or not this finding remains in line with the Court's previous case law can be a matter of debate. To recall, the Court was not equally generous to the national regulator in VG Media, where it found that the German copyright rules (introducing publisher rights) were aimed, at least in part, at regulating information society services (the use of snippets on search engines). In Star Taxi App, the Court was satisfied with the fact that "taxi dispatching" have long been defined more broadly and referred to the activity consisting in receiving customer bookings by telephone "or other means" and forwarding them to a taxi driver. The fact that more recent local rules in Bucharest explicitly mentioned "IT applications" among those "other means" was deemed irrelevant. To support this conclusion the Court observed that the analysed requirements, for example to obtain a two-way radio, applied equally to all types of dispatching services (para. 65). The latter argument seems rather shaky, considering that the Court later (rightly) argues that such a requirement, applied to the providers of information society services, could, in fact, be contrary to Directive 2006/123/EC. An alternative reading of Directive 2015/1535 could, however, be difficult to reconcile with the subsequent interpretation of Article 4(2) of Directive 2000/31/EC, which was likely a consideration in this part of judgment.
Finding 3: Article 4 of Directive 2000/31/EC does not apply to the scheme at hand, but Articles 9 and 10 of Directice 2006/123/EC do
The last part of the judgment concerns the applicability of the principle excluding prior authorisation in Article 4(1) of Directive 2000/31/EC to the case at hand. Similarly to the AG, the Court found that the analysed scheme was not covered by this provision and instead fell under the exception set out in the subsequent paragraph. To recall, pursuant to Article 4(2) of Directive 2000/31/EC, the principle excluding prior authorisations for information society services remains without prejudice to authorisation schemes which are not specifically and exclusively targeted at such services. Like the AG, the Court observed that a mere clarification (extension?) of the scope of pre-existing rules to dispatching services relying on IT applications does not consistute an authorisation scheme which is specifically and exclusively targeted at such services (paras. 81-82). Accordingly, a conflict between Directives 2000/31/EC and 2006/123/EC did not arise and provisions of the latter were deemed applicable.
The Court then moved to the interpretation of Articles 9 and 10 of Directive 2006/123/EC on freedom of establishment, referring numerously to its recent judgment in Cali Apartments. Like in the Cali case, the Court underlined that a separate and consecutive assessments must be made of, firstly, whether the very principle of establishing that scheme is justified, and, secondly, the criteria for granting the authorisations provided for by that scheme (para. 87). Since the information provided by the referring court in this regard was not sufficient (e.g. so as to assess if the scheme could be justified by reasons of consumer protection), the Court limited itself only to brief observations regarding the criteria apparent from the file. Most notably, it shared the view expressed by the AG that an obligation, imposed on service providers, to comply with technical requirements which are not appropriate for the service in question and thus generate unjustified burdens and costs for service providers could not be deemed compatible with Article 10(2) of Directive 2006/123/EC (para. 90). This could be the case for the requirement to obtain a two-way radio, which was nonetheless for the referring court to verify (paras. 91-92).
Concluding thoughts
Overall, the judgment in Star Taxi App is a reasonable ruling, seeking to strike a balance between the internal market goals and the public interest goals pursued by national regulators. One cannot fail to note, however, that the Court has taken a long way to arrive at this outcome. As apparent from the Star Taxi case, the EU rules at hand provide for significant safety vaults, which Members States can rely upon to regulate the provision of information society services in the public interest. The principle excluding prior authorisation in Article 4(1) of Directive 2000/31/EC does not apply to authorisation schemes which are not specifically and exclusively targeted at information society services and notification requirements in Directive 2015/1535 do not apply to rules which are not specifically aimed at this kind of services. Also the country of origin principle, which is laid down in Article 3(1) of Directive 2000/31/EC and was analysed in the Airbnb Ireland case, is not without limitaitons. Admittedly, the development of the platform economy has pushed some of these norms to its boundaries and a case could be made, for example, for making Article 4(1) of Directive 2000/31/EC less categorical. This, however, is a task for the EU legislature and a potential subject for the Digital Services Act. For the time being, the judgment in Star Taxi App shows, together with Airbnb Ireland, that classification of services of platform operators as activities falling outside of the scope of Directive 2000/31/EC should not be made too lightly and that EU free movement rules are to be reckoned with.
* 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.
