Opinion: judgment of the European Court of Justice in the Uber case will not be the last

Rando Maisvee.

PHOTO: Erakogu

Does anyone know anyone who is not familiar with a smartphone? Probably there are some who say ‘yes’, as well as some who still only deal in cash.

It’s a matter of taste whether one acts in an innovative or a more conservative manner. However, one can be certain that where there are people, there is communication, and where there is communication, there are different opinions and disagreements. Therefore, it is only natural, that Uber, being the flagship of the collaborative economy that functions via smartphones, has been drawn into a number of disputes on both sides of the Atlantic.

At the end of last year domestic media, as well as international media both reported on the judgment of the European Court of Justice awarded in the dispute of Uber with taxi drivers of Barcelona. The headlines created the impression as if the high court had considered Uber a taxi service. This is not completely accurate. It would also be premature to make far-reaching conclusions based on the reported judgment in respect of the same service in Estonia and elsewhere.

Is Uber an IT or a taxi service?

The short answer is: neither! Namely, the Grand Chamber of the ECJ found, that such service is not just an information society service, but instead ‘a service in the field of transport’. This is a wider concept than just ‘transport service’. This service does not apply only to transport services as such, but also to all other services, which are inherently linked with the physical activity of transporting individuals or goods from one location to another. Discussing services in the field of transport the Court made a reference to the case-law relating to vehicle inspection services.

The matter of whether or not other platforms similar to Uber should also be classified as a ‘service in the field of transport’ depends on the concrete nature of the particular platform. However, the important aspect pointed out by the ECJ is that the EU has not adopted harmonised rules governing the services in the field of transport. This means that it is the duty of every individual Member State to regulate the provision of services such as Uber. Estonia has already done this, passing amendments to the Transport Act, which entered into effect on 01.11.2017. Nevertheless, it is worth mentioning that the legislation passed has lost its original substance welcoming the collaborative economy.

The European Court of Justice evaluated the service provided by Uber merely in terms of whether this service is subject to the provisions of the Directive 2006/123/EC that facilitates free movement of services. Therefore, the judgment lacks more specific explanations of the details, which are of interest to other courts in England and California, where the issue of the employment relationship between drivers and Uber is still awaiting final resolution. But most likely the judgment passed late last year would be of help for the European Court of Justice themselves in reviewing another dispute involving Uber, which has not yet been settled, and which was initiated at the request of the criminal court of France. This means that in near future there will be yet another judgment of the ECJ on Uber.

Hobby or employment?

It is both this and that. On 10.11.2017 in London Uber received a negative judgment in the dispute dealing with the employment relationship of drivers. This judgment is likely to be appealed, and it will be heard by the Supreme Court as early as in February together with another similar dispute in the matter of Pimlico Plumbers Ltd. Insofar as the details of the dispute being settled in England are not comparable with the terms and conditions of the service applied in Estonia, and the laws are different as well, protection of drivers under labour law would be possible in Estonia only if the recommendations contained in the analysis of the future of work, published by the Ministry of Social Affairs, are implemented. But when one compares the way the given recommendations are reflected in draft legislation, this is unlikely to happen. For instance, the analysis proposes exempting employers from the obligation to observe occupational health and safety requirements, if employees work from home, but the recommendations are disregarded in the respective draft acts.

Collective economy has emerged on the back of the economic crisis of 2008–2009, creating new possibilities for earning a living, and offering alternatives to consumers. But currently it is difficult to see whose interest are served – other than those competing with Uber – by setting administrative restrictions on collective economy. The author does not know whether the absence of Uber in Riga, China, Madrid, and London has in the end improved the life of drivers and consumers. But absence of a universal smartphone-based solution is in any case inconvenient and old-fashioned.