Is a taxi app an information society service? Conclusions of the Advocate General of the CJEU in the Star Taxi App case

The Court of Justice of the EU is hearing a new case (Star Taxi App, caseC-62/19) in which it will settle whether a mobile application — in this case a taxi booking application — should be treated as an “information society service” or if, on the contrary, it should be considered an activity “in the field of transport” and therefore subject to transport regulations.

The CJEU already ruled in the UberPop application cases with two judgments in 2017 and 2018 (C-434/15, Elite Taxi; and C-320/16, Uber France). It considered the service provided by Uber, consisting of “connecting, by means of a smartphone application, a non-professional driver using his or her own vehicle with a person who wishes to make an urban journey.” The CJEU believed a service with those characteristics should be classified as a “service in the field of transport.” The CJEU believed that Uber offered urban transport services, organizing their general operation (Elite Taxi, 38). The Court highlighted that, without the application, drivers could not provide the transport service and users could not access their services (Elite Taxi, 39). It also stated that Uber exercised a decisive influence over the conditions under which the service is provided by the drivers, at least setting a maximum fare price, among other aspects (Elite Taxi, 39).

There are significant differences in this case. Star Taxi App is an application to request the services of authorized professional taxi drivers. Users download the app for free. Upon ordering a taxi, they are shown a list of taxi drivers with different tariffs and types of car, plus ratings from previous customers. The user then selects one of the taxis (or cancels the request). The app does not set the fare. Star Taxi App, SRL, the app provider, does not receive remuneration from the user either, as they pay the fare directly to the driver. Star Taxi App SRL, based in Romania, enters into agreements with professional taxi drivers, provides them with the app, a mobile terminal with a SIM card and limited data and, in exchange, it receives a fixed monthly remuneration from the taxi driver.

The Municipal Council of Bucharest established the obligation to request authorization for the activity of “taxi dispatch,” including using computer applications such as this, and Star Taxi App was in fact sanctioned for operating without that authorization. The challenge to those operations is what led to the case referred to the CJEU.

The Advocate General of the CJEU assigned to the case, Maciej Szpunar, has just submitted his conclusions on the case. The AG believes Star Taxi App is an information society service, as it meets the requirements that define this type of services under Article 1.1.b of Directive 2015/1535: a service provided remotely, electronically, at the individual request of the recipient and normally remunerated (in this case remunerated by the taxi drivers).

The AG recalls that, despite being part of the definition, a service can lose the status of an information society service when it is inherently linked to another that is not carried out electronically (for example, a transport service). This was what happened in the previous mentioned Elite Taxi case, examining the UberPop application. The AG highlights that the cases are not comparable. The Star Taxi App case deals with authorized professional taxi drivers who can work without the application. They are not Uber partners, as with Elite Taxi, but clients. Moreover, the AG believes that Star Taxi App does not exercise decisive control or influence on the conditions for providing the transport service, which are freely decided by the taxi drivers.

The AG thus believes the Star Taxi App service is not “inherently linked to the taxi transport service” and that it must be classified as an information society service. In keeping with the Elite Taxi judgment but also as an additional element, the AG offers the criterion that, to remain classified as an information society service, it is necessary — as is the case here — that the service “does not form an integral part” of the taxi transport service within the meaning of the Elite Taxi judgment.

Along with this central issue, other questions that we do not have room to address here have also been referred by the national court. It remains to be seen whether the Court will end up accepting this interpretation criterion, according to which classifying an activity as an information society service will ultimately heavily depend on the circumstances of each case.

Author: Miquel Peguera