‘Penalizing Uber as an information service does not require notification to the EU’
In an opinion to the EU Court, the Advocate General concluded that the French government does not have to notify the EU Commission of a draft law criminalizing UberPop. This also applies if Uber is seen as an information service.
The French government has charged Uber with criminal charges because, according to France, UberPop violates the law. Uber believes that the French rules on which the government has based its criminal prosecution constitute a ‘technical regulation’ for ‘an information service’. According to Uber, it therefore falls within the scope of a European directive. This Directive obliges Member States to notify to the Commission any legislation or regulation envisaged to introduce technical regulations for information society products and services. Because the French government failed to disclose the relevant French rules before they came into effect, there is no basis for criminal prosecution in France, according to Uber.
A French judge had asked the European Court of Justice for advice on this matter. The Advocate General says that regardless of whether the UberPop service falls within the scope of the directive, Member States have the power to sanction or prohibit the illegal pursuit of transportation activities such as UberPop. This is allowed irrespective of whether or not UberPop falls under the regime of the Directive, so it is irrelevant for the notification obligation, according to the Advocate General, whether or not UberPop can be regarded as an information service.
In doing so, the Advocate General refers to an earlier opinion in May, which concluded that UberPop must be regarded as a transport service and must therefore comply with the same rules as other taxi services, and can therefore not be seen as an information service. Therefore, the directive in question does not apply and there is no need to notify the Commission.
Should the Court ultimately decide that UberPop must be regarded as an information service and therefore falls under the Directive, the Advocate General considers that banning or criminalizing UberPop is not a ‘technical regulation’ as defined in the Directive. According to the Advocate General, this means that a notification to the Commission can be omitted.
In addition, he also states that the notification obligation only applies to technical regulations that specifically aim to expressly and specifically regulate the access to and the performance of information society services. Rules that only incidentally or implicitly apply to information services are not subject to the notification obligation, according to the Advocate General. According to the Advocate General, the latter applies to the French rules in question in this case.
The European Court of Justice can disregard the Advocate General’s advice and still rule in favor of Uber, but it is not often that the Court ignores the Advocate General’s advice.