Servicios de la sociedad de la información

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In its judgment of December 3, the Court of Justice of the European Union (CJEU) again examined the question of whether a certain mobile app, used to request taxi services, should be considered an “information society service” or an element of a transport service.

In line with prior case law and with the conclusions of the Advocate General (which we have already commented on in this blog), the CJEU states that even if a service can be defined as an “information society service” under Directive 2015/1535, it will not be considered as such if it is “an integral part of a global service, the main element of which is a service with a different legal classification”.

This is what happened in cases C-434/15, Elite Taxi and C-320/16, Uber France, where the CJEU considered that the UberPop service for non-professional drivers should be considered a transport service because it created an offer of urban transport services by organizing general operations and influencing service provision conditions.

In the present case, the CJEU concludes that the app qualifies as an information society service rather than a transport service. This matter concerns the Star Taxi App. The Romanian company Star Taxi App, SLR, provides this app for free to users, who use it to request the services of licensed professional taxi drivers. Taxi drivers pay Star Taxi App a monthly fee to use the app. The app does not set the fare. The user pays the taxi driver directly and Star Taxi App does not in any way control how taxi drivers provide the service. Under these circumstances, which are very different from those of the UberPop cases, the CJEU concludes that Star Taxi App provides an information society service through its mobile app.

Is it possible, then, to require Star Taxi App to have the prior license for the activity of “dispatching taxis” provided for in the Bucharest municipal regulation, which expressly includes mobile apps such as the Star Taxi App? Or is a regulation of that kind contrary to European law?

In accordance with article 4 of the Directive on electronic commerce (Directive 2000/31), access to the activity of an information society service provider cannot be subject to having a license in advance (art. 4.1). However, among other matters, this principle does not preclude a requirement for licenses “that are not specifically and exclusively for information society service providers” (art 4.2). The CJEU concludes that the license required by Bucharest regulations is not specifically and exclusively for information society services and, therefore, the prohibition of article 4 of Directive 2000/31 (section 82-83 of the judgment) does not apply.

It must be analyzed whether this licensing system is compatible with articles 9 and 10 of the Services Directive (Directive 2006/123). Under these precepts, the licenses needed for the provision of services cannot be discriminatory and must be proportionate and justified by overriding reasons of general interest. They also require that the licensing system be clear, unambiguous and objective, transparent and accessible and made public in advance. Following its own prior case law, the CJEU states that separate and successive assessments must be carried out to determine if the licensing system and other requirements are justified.

This analysis must be performed by the national court. For these purposes, the Court warns that subjecting the granting of licenses to the fulfillment of inappropriate requirements for the service in question, thus generating unjustified costs, would be contrary to art. 10.2 of Directive 2006/123.

Author: Miquel Peguera

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