Airbnb as intermediary in civil law? News from the Low Lands

Dear readers, 

it is not too late to report on a recent development in Dutch consumer law whose features make it likely relevant beyond local borders. 

On 9 March, just before the country transitioned to "intelligent lockdown" because of Corona, the Amsterdam district court gave a very consumer-friendly judgment in a case between a Dutch holiday maker and accommodation platform Airbnb. 

The basis for the case is a rule in Dutch law according to which real estate intermediaries cannot charge both the owner and the tenant for their intermediation services. The Amsterdam court agreed with the claimant that this rule should also apply to Airbnb, ordering the company to refund the fee unduly paid by the consumer. 

The Court rejected a number of counter arguments raised by Airbnb, ranging from the non-applicability of Dutch law under the platform's T&Cs to the scope of the Dutch rule - which originally was intended for residential leases - to, importantly, the qualification of Airbnb itself as intermediary. 

Readers of this blog may remember that Airbnb brought the French attempt to treat it as a real estate intermediary, which would result in it being subject to licensing requirements, before the CJEU, obtaining a victory against French regulators. The Dutch case at hand poses the interesting question whether the CJEU's ruling would stand in the way of considering Airbnb an intermediary for civil purposes only. A perfunctory look at the Information Society Directive (2000/31 EC) suggests the Dutch rule can be defended as being outside the scope of the harmonisation brought about by the Directive, which does not intend to harmonise rules of contract law other than the ones standing in the way of online contracting as such. 

Meanwhile, the first specialised service has emerged, offering consumers to automatise their claims for redress of Airbnb fees. The possibility of redress is open to consumers who have booked after mid-2016. 

Unlike Uber, Airbnb provides information society services, AG says

Last Tuesday Advocate-General Szpunar delivered his opinion in case C-390/18 Airbnb Ireland. The case does not directly relate to consumer law, but remains highly relevant to consumer protection. Most notably, it provides an opportunity for the AG and the Court to refine the criteria for distinguishing different types of services provided in the platform economy and, consequently, the scope of Member States' regulatory discretion.

Airbnb Ireland is a direct follow-up to the two earlier Uber cases, both of which we have reported on extensively on this blog (see eg CJEU gives Member States a green light to regulate Uber, Nihil novi from the CJEU in Uber France). To recall, the Court of Justice found, back then, that services provided by Uber – an operator of a popular ride-hailing app – did not qualify as information society services, but rather constituted services in the field of transport. This meant, among others, that Uber could not rely on the freedom of movement established in Directive 2000/31/EC on electronic commerce. Or, in other words, that Member States enjoyed a wider margin of discretion when it comes to regulating Uber and similar service providers.

Setting the scene

The questions asked in C-390/18 Airbnb Ireland were very similar to those asked in C-434/15 Uber Spain. Essentially, the controversy was whether the provisions of French law, requiring a person who engages in the mediation and management of real property to hold a professional license (among other requirements), could be applied to a service provider, established in another Member State, who enables hosts to be connected with guests via an online platform. To reply to this question it needed to be established, as a first step, whether services provided by Airbnb qualified as information society services within the meaning of Directive 2000/31/EC. Contrary to the Uber case, Advocate-General Szpunar responded to this question in the affirmative.

It is worth highlighting that it was also AG Szpunar who advised the Court in Uber cases. Szpunar’s finding that the business model of Airbnb falls within the scope of the E-Commerce Directive does not contradict his earlier argumentation (which was largely followed by the Court). Rather he elaborates on the previously established framework and applies it to a new factual setting.

Key points of the opinion 

What I particularly like about AG's opinion is the attempt to structure the assessment of composite services under free movement law. Services of this kind – provided partially by electronic means and partially not – without doubt form an intrinsic part of the platform economy. In particular, the Advocate-General tries to elaborate on the criteria set forth in the previous cases: C-108/09 Ker Optika  and the aforementioned Uber cases (C-434/15 Uber Spain and C-320/16 Uber France).

Essentially, the AG argues, there is one major question to be asked with respect to composite services: whether or not services provided by electronic means are inseparably linked with services 'having material content'. Both types of services are not inseparably linked when the former do not lose their economic interest and continue to be independent of the latter (and, so it seems, vice versa, cf. paras. 46 and 59). If it is clear that services are not inseparably linked, then the component provided by electronic means falls under Directive 2000/31/EC, while the other component does not. When both services are inseparably linked Directive 2000/31/EC does not apply. However, some services may prima facie appear to be separable, but still require an additional assessment to make sure this is indeed the case.

It is in this second group of cases when the Uber case law kicks in. As the AG recalls in para. 49 of the opinion, the Court concluded in Uber that the company, in addition to an intermediation service consisting in connecting drivers with passengers through an app, simultaneously offered urban transport services, which it rendered accessible, in particular, through software tools … and whose general operation it organised. According to the Advocate-General, in doing so, the Court developed two criteria for establishing inseparability of composite services. These relate to the fact that the service provider, firstly, offers services having material content (eg transport services) and, secondly, exercises decisive influence on the conditions under which such services are provided.

Expressed in this way, the two criteria may not seem logically connected. First, it is required that the platform provider himself offers services 'having material content' and then, additionally, that he exerts a decisive influence on the conditions under which such services are provided (by himself?). Further parts of the Airbnb opinion, however, explain this in a more convincing way. Here are some of the most relevant takeaways:

• The criterion of 'offering services having material content' essentially means creating a new offer. It was fulfilled in Uber because, arguably, non-professional drivers would not be led to provide transport services and passengers would not use the services provided by those drivers without the relevant application (para. 51).
• The fulfillment of that criterion, in any case, is only an indication that a service provided by electronic means is inseparably linked with a services having material content (being a subject of the new offer; para. 65). Most importantly, the fact that it is not fulfilled (i.e. that no fundamentally new offer is created) does not yet mean that services provided by electronic means are separable from services having material content (and therefore fall under E-Commerce Directive).
• Thus, overall, the second criterion - decisive influence over the conditions of the supply of services having material content - is (nomen omen) decisive for assessing the nature of services provided by an operator of online platform (para. 67). This, in turn, should be assessed by looking at the key parameters of underlying services, which may vary from market to market. In urban transport such parameters included price, availability, quality and safety. In short-term accommodation rental, elements related to location and standard of accommodation appear to be most relevant from AG's perspective. Price can also play a role, although not as important as in the urban transport market (para. 71).

Following a more detailed examination, the Advocate-General concluded that Airbnb did not exert decisive influence over the conditions of the supply of short-term accommodation services. Consequently, these services could be separated from services provided electronically by Airbnb. A similar conclusion was reached with respect to additional services provided by Airbnb, such as photography, insurance and guarantee, which – according to the AG – were only ancillary to the intermediation service provided by electronic means (para. 82).

Concluding thought

All in all, in view of the AG, a service consisting in connecting, via an electronic platform, potential guests with hosts offering short-term accommodation, in a situation where the provider of that service does not exercise control over the essential procedures of the provision of those services, constitutes an information society service within the meaning of Directive 2000/31/EC. This does not mean that no additional requirements, related in particular to consumer protection, can be imposed on a provider of such services by the Member State other than the Member State of service provider's establishment. The relevant restrictions, however, must comply with substantive and procedural criteria laid down in Article 3(4) of E-Commerce Directive. So, at least, the Advocate-General – the judgment of the Court still lies ahead.

* 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.

Nihil novi from the CJEU in Uber France

In a judgment delivered yesterday the Court of Justice once again looked at the legal environment of Uber’s business model. Similarly to its earlier ruling (see our post CJEU gives Member States a green light to regulate Uber), the Court classified the services provided by Uber not as information society services, but rather as services in the field of transport and denied the applicability of the European framework on services liberalisation to the analysed context. 

Setting the scene

The background of Uber France was analogous to Uber Spain. Both cases referred to the UberPOP business model, i.e. the one in which the smartphone app provided by Uber Technologies Inc. is used to connect passengers with non-professional drivers (the situation is different in a yet another pending case concerning Uber Black). The differences were subtle: in Uber Spain, the case referred to the civil proceedings brought against Uber by a taxi drivers’ association based on general rules on unfair competition. By contrast, Uber France dealt with a private prosecution and a civil action brought against Uber by a specific taxi driver based on a newly introduced provision of French criminal law. On both occassions the provider of the contested smarthphone app sought to rely on EU law to protect its freedom to provide information society services across EU. Both times - in vain.

The legal dilemma in Uber France

The more specific question in the commented case was whether the aforesaid provision of French law - which prohibited and penalised the organisation of a system for putting customers in touch with persons who engage in the carriage of passengers in breach of applicable market access requirements - constituted "technical regulation" within the meaning of Directive 98/34/EC as amended by Directive 98/48/EC (later replaced by Directive 2015/1535). Relying on such an interpretation, Uber argued that the provision could not be enforced against it because it had not been notified to the European Commission.

Indeed, Article 8(1) of Directive 98/34/EC, as amended, required Member States to immediately communicate to the Commission any draft technical regulation including any "rules on services". Article 1(5) defined a rule on services as "requirement of a general nature relating to the taking-up and pursuit of [information society] service activities ..., in particular provisions concerning the service provider, the services and the recipient of services, excluding any rules which are not specifically aimed at [information society] services". The directive did not elaborate on the consequences of a failure to notify; however, according to the settled case law of the Court, such a failure renders the adopted technical regulation inapplicable and therefore unenforceable against individuals (see paras. 35-39 of Advocate-General's opinion).

Against this background the national court decided to stay the proceedings and ask the Court of Justice for an interpretation of Directive 98/34/EC, as amended.

Judgment of the Court

The judgment in Uber France does not come as a big surprise - indeed, the Court decided to follow its earlier line of reasoning as well as the argumentation of AG Szpunar (see also our post The Uber saga continues) and refused to provide the defendant with a helpful hand. The Court, once again, focused on the classification od services provided by Uber and found them to fall outside the scope of Directive 98/34/EC, as amended, and Directive 2006/123 on services in the internal market. Consequently, to the extent the national provision applied to services of this kind, the provision itself fell outside the scope of both liberalisation directives.

In this short entry I will not argue either in favour or against the classification made by the Court - the issue is by no means black-and-white and continues to divide the academic community. Instead, I will focus on the quality of legal reasoning in Uber France, of which, I believe, one could have expected more.

Comment

The questions referred by the national court in the commented case revolve around the nuanced terminology used in Directive 98/34/EC, as amended, particulary the notion of a "rule on services". One problematic element of this term - the quality of not being "specifically aimed" at information society services - was already highlighted before. In the subsequent paragraph Article 1(5) provides for further interpretative elements, which the referring court seemed to consider relevant.

The Court of Justice, however, did not elaborate on any of these elements. It limited itself to rejecting the qualification of services provided by Uber as information society services, holding that the intermediation service provided by that company was "inherently linked" to the offer transport services and thus constituted a service in the field of transport. In doing so, it relied on two criteria: the fact that the drivers and passengers would not have been led to provide or use the transport services without the Uber app and - the criterion which I personally find more convincing - the fact that Uber exercised "decisive influence" over the conditions under which the relevant transport services were provided (para. 21). The Court went on to recall that services provided by Uber also fell outside the scope of Directive 2006/123 on services in the internal market, which does not apply to transport. Because the judgment is essentially limited to these insights it does not bring anything new beyond what we already know from Uber Spain.

The Court's self-restraint may be frustrating to the reader, who may be tempted to look for more clues that the judgment actually provides. What, in my view, does not follow from Uber France is that an existence of a business model which falls under the national provision while not qualifying as an information society service automatically disqualifies such a provision as being "specifically aimed" at information society services. Assessment of the detailed wording of Article 1(5) of Directive 98/34/EC, as amended, including references to the statement of reasons of national provisions as well as to an implicit or incidental effect of such provisions on information society services can still be relevant. But does this make any difference for the procedural situation of Uber? The judgment in Uber France does not really tell.

* 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.

CJEU gives Member States a green light to regulate Uber

Just yesterday the Court of Justice delivered its judgment in one of the two high-profile cases brought before it with respect to the European operations of the US-based digital multinational Uber. The ruling in C‑434/15 Asociación Profesional Elite Taxi (or Uber Spain) comes as a serious blow to the company, which has continuously insisted to act merely as a provider of an online intermediation service. The Court has, however, largely followed the earlier opinion of the Advocate-General Szpunar (see our posts on both opinions here and here) and classified the activities of Uber as "services in the field of transport".

Why is this relevant?

Due to its socio-economic importance - both at the national level and from the internal market perspective - as well as specific features - particularly with respect to the (former) public or quasi-public transport networks - transport sector has traditionally been given a special treatment under the EU Treaties. For the similar reasons Member States have long been reluctant to open their national transport markets to liberalisation. As a matter of fact, it required an action brought by the Parliament against the Council to confirm the positive obligation of the latter to extend the freedom to provide services to that sector (case C-13/83 Parliament v. Council). This has led to an intensification of the legislative efforts aimed to remove the barriers to cross-border provision of different transport services - air, road, rail and water - and at the same time reaffirmed the specificity of the path taken in that area, resulting inter alia in the exclusion of "services in the field of transport" from the scope of Services Directive.

In the case at hand the specificity of the transport sector meets with another special area of the EU law - that related to the provision of the so-called "information society services". This domain, associated mainly with online activities, has been subject to a separate legal scheme - the E-Commerce Directive. 

The question thus appeared whether the activity of Uber - that is the provision of a paid service, by means of a smartphone application, consisting of connecting non-professional drivers using their own vehicles with persons wishing to make urban journeys - should be qualified as a service in the field of transport, an information society service, neither or both. Should the services in question fall under the scope of either Services or E-Commerce Directive, the liberalisation regime established in those acts would kick in, meaning that Member States would only be allowed to restrict their provision if specific conditions set out in those directives were fulfilled.

Judgment of the CJEU

The Court opted for an interpretation which is least favourable to Uber and leaves the widest margin of discretion to the Member States. Its reasoning appears to be largely based on the AG opinion, even though no direct references to that document are made. The following points are worth highlighting:

• The intermediation service consisting of connecting non-professional drivers with the passengers by means of a smartphone application is, in principle, a separate service from the underlying transport service and, again in principle, meets the criteria for classification as an "information society service" (paras. 34-35).
• However, the concrete service provided by Uber is more than an intermediation service. In the specific case at hand, the service of intermediation is rather an integral part of an overall service whose main component is a transport service (paras. 38, 40).
• This is because, as explained in paragraph 39, firstly, the intermediation service is "based on the selection of non-professional drivers using their own vehicle, to whom the company provides an application without which (i) those drivers would not be led to provide transport services and (ii) persons who wish to make an urban journey would not use the services provided by those drivers" and, secondly, Uber exercises "decisive influence" over the conditions under which that service is provided by the drivers (infuences prices, processes payments, engages in quality control).

Consequently, services provided by the company cannot be classified as information society services, but rather belong to services in the field of transport. This means that the activities of Uber fall outside the scope of the E-Commerce and Services Directives as well as Article 56 of the Treaty on the Functioning of the European Union. They are, by contrast, covered by Article 58(1) TFEU and further provisions applicable to the area of transport. This is of limited help to Uber as no common rules coverning the type of services provided within its business model (i.e. non-public urban transport) currently exist at the EU level. Member States, therefore, enjoy a wide margin of discretion when it comes to regulating the conditions under which services of that type can be provided. 

Concluding thought

The judgment is a significant defeat for Uber, which should probably brace itself for the upcoming ruling in the parallel French case. Its implications for other businesses belonging to the so-called "platform economy" may, nevertheless, be less far reaching than it can seem at first sight. After all, it is the specificity of the transport sector that left the services provided by the company outside the scope of both directives. Additionally, the reference to a "decisive influence", while not legally uncontroversial, suggests that it is only in fairly specific circumstances that an online service may fall outside the scope of the information society framework. Negative consequences of the judgment thus appear to be largely Uber-specific - at least for the time being. Or, as its critics might say, what goes around comes around.

* 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.

The Uber saga continues

Roughly two months ago we commented on the opinion of Advocate-General Szpunar in case C-434/15 Uber Spain. His conclusion that the popular ride-hailing platform should not be considered as an information society service, but rather as a transport service was very bad news for Uber. We also wrote that the same AG was currently drafting an opinion in a related case, C-320/16 Uber France, which left the provider of the (in)famous transport app with little grounds for optimism. The opinion was eventually published this Tuesday and, indeed, comes as no surprise.

Background of the case

The case deals with a specific provision of the French transport code, introduced in 2014. It prohibited and penalised the organisation of a system for putting customers in touch with persons who engage in the carriage of passengers in breach of applicable market access requirements. The provision was aimed as a new weapon for national authorities and private parties against providers of services such as UberPOP (part of the ride-hailing business model involving non-licensed private drivers). Soon after it came into force, the provision was put to test in the first proceedings.

Uber naturally fought back. It argued, among others, that the national provision invoked against it constituted a technical regulation within the meaning of Article 1(11) Directive 98/34/EC, as amended, and was therefore covered by the notification requirement laid down in Article 8(1) of that directive. According to the defendant, since no such communication had been made, the provision relied upon in the proceedings should be deemed inapplicable and hence unenforceable.

Two heavy blows from Advocate-General

"UberPOP not an information society service"

Advocate-General Szpunar was not convinced. He began the assessment by recalling his earlier opinion in Uber Spain, in particular the proposed guidelines as to how "composite services" (i.e. services consisting of a component provided by electronic means and a component not provided by such means) should be approached. What is more, he used the opportunity to make two additional points in support of his claim. First, he distinguished the type of activities pursued by Uber from the situation considered by the CJEU in case C-339/15 Vanderborght (see also our earlier blog post on that matter here). Furthermore, he drew a distinction between the case at hand and the legal relationship arising from a franchise contract. The AG concluded by reiterating his earlier view that services provided by Uber should not be classified as information society services, but rather as services in the field of transport.

"Either way, national provision at issue not a technical regulation"

The Advocate-General did not stop here, however. He went on to argue that the question of whether the contested provision of French law constituted a technical regulation could be resolved irrespectively of the classification of the UberPOP service. And, not surprisingly, also that line of reasoning was not very helpful to Uber.

The assessment focused on the wording of Article 1(5) of Directive 98/34/EC, as amended (on a side note, the act was recently repealed and replaced by Directive 2015/1535). The analysed provision defined "rules on services" as requirements of a general nature relating to the taking-up and pursuit of the activities of information society service providers, excluding any rules which are not specifically aimed at those services. It also clarified that "a rule shall not be considered to be specifically aimed at information society services if it affects such services only in an implicit or incidental manner".

The analysis started well for Uber. The Advocate-General agreed with the defendant that the contested national provision was "principally directed at systems for connecting the two parties by electronic means", thus rejecting arguments of the French government to the contrary. However, he went on to argue that - since the prohibition in question was limited to the organisation of a system for putting customers in touch with persons providing transport services illegally - the impact of that prohibition on information society services was merely incidental. 

In one of the most illustrative parts of the opinion the AG submitted: 

"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. That would lead to an unwarranted extension of the obligation to notify without that really contributing to the attainment of the objectives of the notification procedure, the purpose of which is to prevent the adoption by the Member States of measures that are incompatible with the internal market and to enable economic operators to make more of the advantages inherent in the internal market. Instead of that, an excessive notification obligation, with the penalty of regulations that have not been notified being inapplicable, would facilitate circumvention of the law and engender legal uncertainty, including in relationships between individuals." (para. 31)

Concluding remark

The commented opinion deals with a delicate interface of regulation and innovation and is bound to attract mixed responses. One may wonder, for instance, how national provisions like the one at issue should be assessed in the light of Article 15 of Directive 2000/31/EC on electronic commerce and whether some sort of notification mechanism would not be desired to ensure compliance with this norm. The question would, of course, be devoid of meaning if the Court were to follow the AG's understanding of the nature of Uber's activity in the first place. In this respect the Advocate-General appears to share the view that the company, which he classifies as a transport company, should be distinguished from the "genuine sharing economy". Last but not least, it is worth noting that some of the criteria referred to by the AG in support of this claim overlap with the indicative benchmarks formulated by the Commission in its collaborative economy communication (particularly references to the level of control or influence exerted by the platform provider). Quite ironically, however, the Commission itself had reportedly been pleading - at least in Uber Spain - against the proposed line of reasoning. This shows that the matter remains highly controversial and its eventual resolution is far from clear. The doubts should be allayed by the end of this year.

* 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.

Services provided by Uber are services in the field of transport, not information society services - Advocate-General says

Earlier today, the long-awaited opinion of Advocate-General Szpunar in case C‑434/15 Uber Spain was published. The analysis concerns one of the two cases brought before the CJEU in connection with the controversial mobile app. The key question addressed in both cases is whether services provided by Uber should be classified as information society services or as transport services. This categorization is of paramount importance from the point of view of EU law.

The opinion is bad news to Uber Technologies Inc. and its European subsidiaries. The Advocate-General took the view that services provided by Uber do not constitute information society services, but should rather be regarded as services in the field of transport. Consequently, the activity of Uber falls outside the scope of both E-Commerce Directive and Services Directive. Such an interpretation would allow Member States to subject Uber to a number of sectoral requirements.

The opinion is based on several factual assumptions about the practical operation of the analysed business model. Primary focus remains on the service marketed as UberPOP. These factual elements are, of course, for the national court to verify. More importantly, however, the opinion also includes a more abstract interpretation of the legal issues at hand. If followed by the Court of Justice, the framework proposed by the AG could be used in the assessment of other digital business models. 

The essential part of the opinion concerns the notion of an information society service. By way of reminder, the term refers to "any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services" (Article 2(a) of Directive 2000/31/EC in connection with Article 1(2) of Directive 98/34/EC). Since the business model at hand involves both electronically and non-electronically supplied services, the following questions have arisen: 1) which services are actually provided by Uber and 2) are these services provided at a distance and by electronic means.

According to the AG, the decisive question in this respect is whether the service which is not supplied by electronic means is economically independent of the service which is provided by that means. The relevant framework of assessment is set out in para. 35, which reads as follows:

"Where the provider of the service supplied by electronic means is also the provider of the service not supplied by such means or where he exercises decisive influence over the conditions under which the latter service is provided, so that the two services form an inseparable whole, it is necessary to identify the main component of the supply envisaged, that is to say, the component which gives it meaning in economic terms. For a service to be classified as an information society service, this main component must be performed by electronic means."

Assessment of the Uber business model led the Advocate-General to believe that, in that factual context, the connection of passengers and drivers is neither self-standing, nor the main supply in relation to the supply of transport. Consequently, the service provided by Uber cannot be classified as an ‘information society service’. The opinion cites the examples of other digital services, such as platforms for the online sale of goods (para. 36) and platforms for the purchase of flights or hotel bookings (paras. 57-60), and draws a distinction between operators of such platforms an Uber. The AG also points to the difference between Uber and ride-sharing platforms, but does not elaborate on that aspect any further (para. 42). He similarly distances himself from competition and labour law issues.

The overall line of argumentation along with the conclusions reached are summarised in paras. 71-72 of the opinion.

71. (...) In the case of composite services, consisting of a component provided by electronic means and another component not provided by such means, the first component must be either economically independent of the second or the main component of the two in order to be classified as an ‘information society service’. Uber’s activity must be viewed as a whole encompassing both the service of connecting passengers and drivers with one another by means of the smartphone application and the supply of transport itself, which constitutes, from an economic perspective, the main component. This activity cannot therefore be split into two, for the purpose of classifying a part of the service as an information society service. Consequently, the service must be classified as a ‘service in the field of transport’.

72. I therefore propose that the Court should answer the first and second questions referred for a preliminary ruling as follows:

– Article 2(a) of Directive 2000/31, read in conjunction with Article 1(2) of Directive 98/34, must be interpreted as meaning that a service that connects, by means of mobile telephone software, potential passengers with drivers offering individual urban transport on demand, where the provider of the service exerts control over the key conditions governing the supply of transport made within that context, in particular the price, does not constitute an information society service within the meaning of those provisions.

– Article 58(1) TFEU and Article 2(2)(d) of Directive 2006/123 must be interpreted as meaning that the service described in the preceding point constitutes a transport service for the purposes of those provisions.

On a final note

The same Advocate-General is drafting the opinion in the second case involving Uber, namely C-320/16 Uber France, which leaves the American company with little grounds for optimism. Publication of the other opinion is scheduled for 4 July. Since opinions of AGs are not binding on the Court, Uber can, however, still hope that the CJEU will not follow the proposed line of argumentation.

* 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.