At last a Directive protecting platform work – Now what?

 

Catherine Jacqueson, Professor of EU law and Alberto Barrio, post-doc on the WorkWel-project, Law Faculty, University of Copenhagen

Photo credit: conceptphoto.info, via Flickr 

Finally, the European Parliament formally adopted the directive protecting platform work on 24 April. It still needs to be formally endorsed by the Council too, but this is more a matter of procedure. Against all odds and at the very last minute, the Directive made it through the legislative rollercoaster. It was the Council which was holding back. It therefore came as a surprise that the Council adopted the compromise agreement on 11 March after having rejected this very same text on previous occasions. Suddenly, the blocking minority had vanished as Greece and Estonia no longer abstained and voted in favour of the compromise agreement. Germany continued its abstention because of internal struggles and France, the main opponent to the proposed Directive, seemed to have softened a bit its hard standpoint.

The approval of the Directive in the Council represents an important step towards greater protection of platform workers’ rights in the field of labour law and social protection. It is also a clear signal, which reinforces the EU social’s agenda following the Gothenburg summit of 2017 and the launch of the European Pillar of Social Rights. The Commission has – again – delivered. However, the compromises made to arrive there also mean that several provisions, particularly those regarding a rebuttable presumption of employment relationship are diminished compared to the European Commission’s proposal. More importantly, very little of the European Parliament’s proposition to further strengthen the protection of platform workers in its common position was introduced in this compromise version.

A watered-down presumption of employee

The proposal is much watered down at the end, especially in respect of its flagship provision creating a presumption of employee for those operating on labour platforms such as Deliveroo, Uber and Bolt. It leaves it to the Member States to decide upon which criteria the presumption should apply and thus fails to establish a level playing field between States, markets, businesses and providers. Some may argue that such ‘loose’ presumption creates more problems than it solves. Member States are also explicitly not required to apply to the presumption in the fields of social security and tax law, which may hinder achieving the expected increase in public authorities revenue of up to EUR 3.98 billion. The Member States could not agree that the directive should require a spillover effect to other legal fields at national level, but each State is free to do so. The sensitive issue of the EU’s competence might be lurking here. But even a watered-down version imposes a clear obligation on the EU States to insert such presumption, which ultimately could be challenged before national courts and end before the ECJ. Furthermore, national discretion is contained by some safeguards imposed by EU law and the case-law of the ECJ. Importantly, the directive carves it out in stone that the presumption should be based on facts indicating control and subordination and not on the supposed agreement of the parties. The Member States can be flexible in interpreting these criteria in line with the digitalization of the labour market. The directive requires States to set up procedural safeguards to enforce the legal presumption of employee. Thus, the directive is more a procedural one than one on substance. Again, the Member States are free to design them as long as they make it ‘effectively easy for the person performing platform to benefit from the presumption’ (recital 32). The fear here is that it could lead to more legal challenges concerning employment status - this time regarding the presumption instead of the status itself. Indeed, the presumption does not lead to automatic reclassification as employees. Only time will show the added value of the presumption and in which country it was most effective.

What is left?

In contrast, the detailed chapter on algorithm management may have real added value. At least on the paper. It is the EU’s first attempt to regulate algorithms within the context of work. Unlike the AI Act which has been formally adopted by the European Parliament, it does not rely on self-regulation but imposes specific obligations and prohibitions on platforms. It is rather ambitious, and interestingly most of its provisions apply also to the self-employed taking thereby a holistic approach. The Commission’s draft was left quite untouched until January where a few changes were inserted. The directive puts flesh on the dry provisions of the GDPR. It builds on the Regulation prohibiting the processing of some personal data and also the use of biometric data to predict future behaviour, which conflicts with fundamental rights such as the likelihood of pregnancy. It goes further than the GDPR, as it obliges platforms to open the black box on how they are designed and work. Likewise, human oversight is not only required where the platforms take a decision but also, for example, when they monitor data.

Furthermore, the directive is an improvement in terms of transparency and accountability of the platforms. Thus, the agreed version requires platforms to report and disclose certain information to relevant authorities including declaring the performance of platform work, as well as the number of persons doing so on a regular basis. The intention is both to get data and monitor the platforms, which could serve to improve enforcement of applicable rules in both internal and cross-border situations. This part has also been left quite untouched from the Commission’s original version with the removal of only a few of the criteria which need to be reported.

All in all, the directive is a clear signal that platform work and algorithm management should not be left unregulated. It is a hard law initiative with quite some softness. Its effectiveness in protecting those operating on the labour platforms will thus depend very much on its implementation and enforcement at national level, which will inevitably vary across the EU and the internal market…

 

 

The Ola & Uber judgments: for the first time a court recognises a GDPR right to an explanation for algorithmic decision-making

 

 

Raphaël Gellert, Marvin van Bekkum, and Frederik Zuiderveen Borgesius

- Dr. Gellert is assistant professor of law, at the iHub, Radboud University, The Netherlands (Twitter: @gellertraphael)

- Marvin van Bekkum is a PhD candidate, at the iHub, Radboud University, The Netherlands

- Prof. Dr. Zuiderveen Borgesius is professor of ICT and law, at the iHub, Radboud University, The Netherlands frederikzb@cs.ru.nl

 

In March 2021, the Amsterdam District Court decided in two cases regarding Uber (‘Uber employment’ and ‘Uber deactivation’ cases), and one case regarding Ola (see also the unofficial English translations of the judgments). Ola offers a service that’s comparable to Uber. Both companies offer an app that links (taxi) drivers to passengers.

In the Ola judgment, the Court requires the Ola company to explain the logic behind a fully automated decision in the sense of article 22 of the General Data Protection regulation (GDPR). This is the first time that a court in the Netherlands recognises such a right. To the best of our knowledge, it is also the first time that a Court anywhere in Europe recognises such a right.

In this blog post we sketch the background of the three cases, we summarise the relevant part of the judgments, and we comment on the judgments. We focus only on the parts of the judgment about fully automated decisions and a right to an explanation.

Background of the case: the GDPR and a right to an explanation

The GDPR contains a specific provision that in principle prohibits a fully automated decision with ‘legal effects’ for the data subject (individual), or that ‘similarly significantly affects him or her’ (article 22 GDPR). An example of a fully automated decision is, for example, automated credit scoring. The main rule of the prohibition says, in essence, that people may not be subjected to certain types of completely automated decisions with far-reaching effects, unless an exception applies.

The prohibition does not apply if the individual has consented to such decisions, or if such decisions are ‘necessary’ for entering into, or performing, a contract between the individual and the company.

If such an exception applies, the automated decision is allowed. Article 15 GDPR grants people the right to learn ‘meaningful information about the logic involved’ in such fully automated decisions. Some scholars speak of a ‘right to an explanation’ of AI-driven decisions. Article 15 also grants people a right to access their data. In short, people can ask an organisation what data the organisation has about them, for which purpose, etc.

Summary of the Ola and Uber judgments: access to data

We start by summarising the similarities between the Ola and Uber employment cases. In both judgments, drivers wanted to prove that they were subject to an employment relationship with Ola and Uber. To prove their employment relationship, the drivers requested access to their data under article 15 GDPR (par. 2.5 Ola judgment, par. 2.7-2.8 Uber employment case).

The drivers further state that the degree of algorithmic and automated management control is important for proving an employment relationship (par. 3.6 of the Ola judgment). A key element of the judgments was therefore whether such ‘algorithms and automated decision-making’ fall under the scope of article 22 GDPR. If article 22 applied, the drivers would also be able to access ‘meaningful information about the logic involved’ in these algorithms (par. 3.1 Ola judgment, par. 3.1 Uber employment judgment).

In both cases, the issue at stake was whether the algorithms and automated decision-making had ‘legal effects’ or did ‘similarly significantly affect’ the drivers in the sense of article 22 GDPR.

In the Uber employment case, the Court examined the algorithm-mediated matching of passengers and drivers. In the Court’s view, the drivers did not adequately motivate why there was a ‘legal’ or ‘significant effect’ in article 22 GDPR (par. 4.66 and 4.67 Uber employment judgment).

In the Ola case, the Court looked at various algorithms and automated decision-making processes such as those pertaining to the drivers’ earning profile, the system of irregularities detection, and the system for assigning trips. In the Court’s view, the drivers did not prove that these systems had a ‘legal’ or ‘similarly significant effect’, despite the systems having some effect on the driver’s behaviour (par. 4.47-4.50 Ola judgment).

The situation is different concerning Ola’s automated system of ‘penalties and deductions’ (par. 4.51 of the Ola judgment). If a certain ride was considered invalid, then Ola’s computer systems would give the driver a monetary penalty. The Court considered that such penalties ‘similarly significantly affects’ the driver. The penalties were significant because they affected the rights of the drivers resulting from the drivers’ agreement with Ola. Therefore, the Court required Ola to explain the logic behind such decisions on the basis of article 15 GDPR.

In the words of the Court, ‘Ola must communicate the main assessment criteria and their role in the automated decision to [the drivers], so that they can understand the criteria on the basis of which the decisions were taken and they are able to check the correctness and lawfulness of the data processing’ (par. 4.52 of the judgment).

Summary of the Uber deactivation judgment

In the other Uber deactivation case, the drivers were contesting the removal of their Uber license pursuant to an automated decision (par. 2.4, 3.1, 3.2 Uber deactivation judgment). As part of this contestation, the drivers also requested access to meaningful information about the logic involved in the automated decision pursuant to article 15 GDPR (par. 3.1 Uber deactivation judgment).

Contrary to the other cases, the discussion here concerned mostly whether the automated decision was ‘solely’ (or fully) automated in the sense of article 22 GDPR. Uber explained that an ‘Operational Risk team’ takes the decision to end the licenses on the basis of the potential fraud signal it receives from Uber’s automated algorithm (par. 4.19 Uber deactivation judgment).

In Dutch Civil procedure law, a statement by one party that is not contested by the opposing party is considered proven. The Court accepted Uber’s explanation because the drivers did not contest the explanation. The Court therefore concluded that there were no fully automated decisions (par. 4.24 Uber deactivation judgment). The Court consequently denied the drivers a right to access to meaningful information concerning the algorithm pursuant to article 15 GDPR (par. 4.26 Uber deactivation judgment).

Comments

In the Ola case, for the first time, a Court requires an organisation to explain the logic behind a fully automated decision in the sense of the GDPR. Many scholars (including us) thought that the GDPR provisions on automated decision-making and a right to an explanation would remain a dead letter. The predecessors of those provisions (in the 1995 Data Protection Directive) have not been applied much either.

However, this recent Ola judgment shows that Courts can actually apply these GDPR provisions in practice. Hence, the judgment gives an extra reason for organisations to take the GDPR provisions on automated decision-making seriously. Therefore, organisations that use fully automated decision-making that seriously affects people must be able to explain the logic behind such decisions.

In the Ola judgment the Court elaborates the term ‘meaningful information’. The Court builds on the ‘Guidelines on Automated individual decision-making and Profiling’, adopted by the Article 29 Working Party, the predecessor of the European Data Protection Board.

The Court interprets ‘useful information about the underlying logic’ in such a way that the most important assessment criteria and their role must be communicated to the data subject. Based on that information, the data subject should be able to understand which criteria the decision is based on. The data subject should also be able to verify the correctness and lawfulness of the data processing based on the given information (para 4.41 Ola judgment).

If a decision is automated in the sense of article 22 GDPR and an exception applies that allows that automated decision, then another requirement follows. Article 22(3) GDPR states that the organisation must ‘implement suitable measures to safeguard the data subject’s rights and freedoms and legitimate interests, at least the right to obtain human intervention on the part of the controller, to express his or her point of view and to contest the decision.’

Roughly summarised, the organisation must ensure that the victim of a fully automated decision can ask a human to reconsider the decision. For instance, if a bank uses a computer to decide whether a customer gets a mortgage, the customer must be able to ask a bank employee to reconsider the decision. Because the Court ruled that Ola used automated decision making in some cases, Ola probably needs to implement a system that allows human intervention.

GDPR is about more than privacy

The Ola judgment illustrates that the GDPR does not only aim to protect privacy. Rather, the GDPR aims for fairness in general, in situations where organisations use personal data. For instance, the GDPR also aims to mitigate the risk of discrimination. Indeed, in the Uber employment case, the Court stated that the GDPR is key to avoid ‘the discriminatory consequences of profiling’ (par. 3.3 Uber employment case). In the cases at stake, the drivers used the GDPR to contest the unfairness of a license-removal decision and to expose the power that platform economy apps have over drivers. 

The Dutch judgments discussed above are all from Courts of first instance. Hence, parties may still appeal the judgments.

Open questions

There are still many open questions about the GDPR’s provisions regarding fully automated decisions and a right to an explanation. For instance, article 22 GDPR applies to decisions ‘based solely on automated processing’. It is debatable to what extent the GDPR’s provision applies to decisions that are largely, rather than ‘solely’, based on automated processing. In the Uber deactivation case, a whole team took the decisions, so the case was clear-cut: the decisions were not automated.

Arguably, article 22 does not apply if a bank employee denies a loan on the basis of a recommendation by an AI system. It would be useful if case law made clearer where the border lies between, on the one hand, fully automated decisions, and on the other hand, partly automated decisions that remain outside the scope of article 22 of the GDPR. The European Data Protection Board says (at p 21) that an automated decision counts as a fully automated decision, if employees rubberstamp automated decisions. 

More clarity is also needed on what constitutes as a sufficient explanation under the GDPR. For many AI-driven decisions, it is difficult to explain the underlying logic. Explaining a decision can be especially difficult when an AI system arrives at that decision after analysing large amounts of data.

Photo credit: Ilya Plekahnov, via Wikimedia Commons

Workers’ rights in the gig economy: is the new EU Directive on transparent and predictable working conditions in the EU really a boost?

Bartłomiej Bednarowicz, PhD Researcher at the Faculty of Law of the University of Antwerp

Last week, the European Parliament approved the Directive on Transparent and Predictable Working Conditions in the European Union, which interestingly is the very first legally binding instrument that has been fleshed out from the European Pillar of Social Rights (EPSR) proclaimed by the European Commission, European Parliament and the Council in 2017. [Update: the Directive was published in the EU Official Journal in July 2019]

In short, the Pillar, which consists of a set of 20 principles and rights, is to serve as a way to deliver new and more effective rights to the citizens in 3 main categories: equal opportunities and access to the labour market, fair working conditions and social protection and inclusion. It is designed as ‘a compass for a renewed process of upward convergence towards the future of social Europe’. However, it lacks any solid enforceability vis-à-vis the Member States, so at least for the time being it is more of symbolic value, yet with a fully-fledged boosting potential to become a catalyst for the Court of Justice while interpreting the Directive on Transparent and Predictable Working Conditions.

Background

The Directive, proposed by the Commission as a Christmas present in 2017, is to repeal the archaic Directive 91/533/EEC on an employer's obligation to inform employees of the conditions applicable to the contract or employment relationship (‘Written Statement Directive’) which dates back from 1991 when no one supposed that the world of work would undergo such a transition and that people will be using apps like Uber or Deliveroo on a daily basis. The new Directive’s primary objective is to improve the working conditions by promoting more transparent and predictable employment while ensuring labour market adaptability. It covers all workers in all forms of work, including those in the most flexible non-standard and new forms of work such as zero-hour contracts, casual work, domestic work, voucher-based work or even platform work. According to the Impact Assessment presented by the Commission, the coverage will extend up to 2-3 million workers, including 3% of platform workers, overall impacting 200 million workers in the EU.

The adopted Directive

The Directive guarantees that all workers within its scope, regardless of the specific working arrangements they are engaged in, should be provided with more thorough and complete information regarding the essential aspects of their work, which are to be received by the worker – depending on the nature of the information, either within first 7 days or within a month since the employment commences. Workers will also have a right to be informed within a reasonable period in advance when exactly their employment will start, which is especially important for those with very variable working schedules that are to be determined by the employer in cases of on-demand work or zero-hours contracts. Workers ought to also have a right to seek additional employment by having widespread exclusivity clauses prohibited. Probation periods are limited to 6 months and can be extended only in exceptional circumstances. The Directive comes also with substantiated provisions on enforcement and introduces the reversed burden of proof to ensure that workers will effectively benefit from these rights and will not be subject to adverse treatment or consequences because they have exercised their rights.

More importantly, the Directive has a broad personal scope of application, although the initial proposal foresaw a wider ambit. For the first time in the history of EU employment law, the Commission presented a codified concept of a worker derived from the CJEU case-law. However, some Member States were far from being happy with the new proposal, so heated discussions in the Council were to be expected soon after the reasoned opinion came in from the Swedish Parliament asserting that the draft does not comply with the principle of subsidiarity.

As suspected, the proposal underwent some serious modifications in the Council which undercut its most ambitious proviso relating to the introduction of a Union definition of a worker. What is left in this regard, is ‘an employment contract or employment relationship as defined by the law, collective agreements or practice in force in each Member State with consideration to the case-law of the Court of Justice’. This severely undermined the Commission’s initial intentions to safeguard a unilateral personal scope of application that would preclude Member States from policing that very definition rigidly.

The case-law on free movement identifies that ‘the essential feature of an employment relationship is that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration’ (Case 66/86 Lawrie-Blum) provided ‘the pursued activity is genuine and effective, to the exclusion of activities on such a small scale as to be regarded as purely marginal and ancillary’ (Case 53/81 Levin). Member States can nevertheless decide not to apply the Directive to workers whose predetermined and actual working time is equal to or less than an average of three hours per week in a reference period of four consecutive weeks. However, for those engaged in zero-hours contracts, i.e. contracts that do not stipulate guaranteed working hours and do not create any obligations for the employer to offer the job and for the worker to accept the offered job, do not enjoy such an exclusion, so the Directive applies in full.

The reasoning behind it is that such workers constitute the most vulnerable workforce prone to experience precarity dictated by low income and unstable employment. On top of that, in cases of irregular work patterns, workers on zero-hours contracts or else engaged in on-demand work can be only called into work within the time frames they have made themselves available to the employer. If they are called in outside their reference hour period, workers are allowed to refuse the job assignment and cannot be subject to any adverse consequences by the employer, i.e. not calling the worker in again. In situations where the employer cancels a previously agreed work assignment, workers will be also entitled to compensation. This surely gives certain stability for the workers who are working on contracts with a variable working pattern.

What is more, special provisions are addressed to the Member States to prevent abusive practices of employers when it comes to on-demand work. Therefore, Member States can take measures to fight abuse such as setting limitations to the use and duration of such contracts or introduction of a rebuttable presumption of an existence of an employment contract stipulating a minimum amount of paid hours. It remains to be seen how this provision will be actually implemented in practice.

Perhaps the most far-reaching provision of the Directive is the workers’ right to transition for another form of employment that is more predictable and secure. If requested, the worker must receive a written reply from the employer with clear reasons for the decision within one month. The Directive also prescribes a legal presumption in cases when a worker has not received in due time partially or all of the mandatory information. In such situations, the worker is to enjoy the favourable presumptions that are to be defined in national law, which the employer has a right to rebut. Finally, Member States have 3 years to implement the Directive.

Comments

The Directive is to be warmly welcomed as it introduces a nuanced approach towards the mandatory information obligation regime for every employment relationship, regardless of its form. The only (narrow) inclusive criterion is the personal ambit of application to be decided pursuant to national law. However, a clear reference to the case-law of the CJEU on the concept of a worker gives certain hope that the Directive is capable of being interpreted broadly to attain its overarching objective of social policy. It is a shame that the Council decided not to include the full codified definition of a worker in the final text but at least placing an explicit reference to CJEU case-law boosts the EU legal awareness by hinting where to search for sources, especially for national judges or employment lawyers.

In any case, simple information rights are far from combating precarious employment and social exclusion so widely present nowadays in the gig economy. The Directive nonetheless is to be seen as a stepping stone in paving the winding road leading to high-quality jobs. The major bulk of responsibility lies now on the Member States to properly implement it. Once that is done, the national employment judges would have to step up their game and take charge of the sincere enforcement of the rules in the full spirit of EU law.

Indeed, the biggest pitfall is that the Directive has a different target group which is certainly not all platform workers. For them to enjoy the rights, they need to be first reclassified from bogus (false) self-employment and that might be an easier case for on-demand work (e.g. Uber, Deliveroo), but definitely not for crowdworkers who perform their tasks solely online (e.g. Amazon Mechanical Turk, Upwork, Clickworker). This will not be done automatically by virtue of the Directive, which nonetheless mentions in the recitals that false classification of a self-employed person under national law does not preclude the person from being a worker under EU law (Case C-413/13 FNV).

This will be up to the national courts to decide but while faced with that exercise, judges can and in fact, should, rely on CJEU case-law and elements that already echoed in Luxembourg such as degree of power of management, supervision, margin of discretion in the performance of assigned duties, capability to be dismissed and merely notional general independence; recruitment procedure and nature of the entrusted duties; freedom to choose the time, place and content of the work; extent of rights and duties vested upon the individual. Only then, platform workers can fall under the scope of the Directive and be protected against unpredictable work patterns which will enhance the transparency of their jobs. To put in short and bluntly, the principle of sincere cooperation and effet utile simply demands it.

On the bright side, the major accomplishment is that the Commission has actually delivered a new legal instrument in the long-forgotten field of employment as social policy is back on the agenda again. The European Pillar of Social Rights, albeit not binding, is therefore not an empty set of profound Eurojargon. Explicit references made in the Directive to the EPSR (thanks to the Parliament’s amendments) will allow the Court of Justice to elaborate on the Pillar’s value and status, just as it was with the EU Charter before it came into force. Frankly, more initiatives arising from the EPSR are coming up: the European Labour Authority has been set up, the Council Recommendation (not binding) for access to social protection for workers and the self-employed has been agreed and the Proposal for a Directive on work-life balance for parents has been negotiated successfully. It seems that the Commission’s hands are finally full with mainstreaming material social rights for the sake of social Europe and its future.

To conclude, in the wake of the centenary of the International Labour Organization, let us not forget about the apt statement from the 1944 Declaration of Philadelphia that ‘labour is not a commodity’. Thankfully, the Commission, after a period of stagnation taken in the name of flexicurity, seems to have finally gotten that forsaken memo. Point for the Commission, a win for the workers but still a loss for some platform workers who struggle to make ends meet in the gig economy.

Barnard & Peers: chapter 20

Photo credit: Manchester Evening News

Does EU law protect gig economy workers? Tensions in the CJEU’s case law

Dr Maria Tzanakopoulou, Teaching Fellow, King's College London and University College London

BACKGROUND

The gig economy is on the rise precipitating much discussion about working conditions –from working time to remuneration and from maternity and paternity protection to the all important classification of individuals working in the gig economy pool (see, eg, here and here). The case of King marks the debut of CJEU judgments related to the regulation of business conduct and worker’s rights in the gig economy. Here, the CJEU upholds the right of a self-employed worker to indeterminately carry over entitlements deriving from unexercised paid leave, while it protects Mr King’s right to an effective remedy before the courts. The story continues with the Court’s much debated Uber decision (discussed here), which reportedly blows in the face of businesses and becomes a stepping stone to more comprehensive protection of the gig economy worker (here). Perhaps somewhat surprisingly for those familiar with the Court’s often dismissive approach to labour rights (see, eg, here), the CJEU now seems, at least at first sight, reluctant to leave the gig economy unregulated and to turn its back on gig economy labour forces.

Very briefly, the Court in Uber classifies the company as a provider that ‘offers urban transport services’ [para 38] rather than as a mere intermediary between drivers and clients, as the company itself maintains. The tangible effect of this decision is the subordination of Uber to national regulatory measures. A less visible corollary of the case will be Uber’s increased responsibilities towards its drivers. The case of King, touching as it does upon the crucial matter of paid leave, has a more visible effect on workers. So much so, that the press was quick to present the decision as a breakthrough for gig economy workers at large (here). However, the extent to which the case makes headway in bringing gig economy workers as a whole under the protective ambit of employment rights is a matter that is not entirely straightforward.

FACTS

Mr King worked as a salesman for a company installing doors and windows (SWWL) from 1999 until his dismissal, brought into effect on the day of his 65th birthday, in 2012. According to his contract, a self-employed commission-only contract, Mr King was paid on the basis of the sales he concluded. His right to paid leave was unclear, as the contract was silent on that matter. In his Opinion, AG Tanchev reports that Mr King was in the meantime offered an employee contract, which would bring him into the sphere of full-blown worker protection, but he opted for carrying on his work on a self-employed basis. (Mr King later objected that the AG misunderstood the particular incident, but we lack further clarification, as the Court did not consider it necessary to reopen the oral procedure for what it apparently saw as a matter of secondary importance.)

Upon his dismissal in 2012, Mr King brought his case to the Employment Tribunal. Mr King succeeded in his claims that the dismissal was grounded upon discrimination on the basis of age and that he satisfied the definition of ‘worker’ for the purposes of the UK Working Time Regulations, implementing Directive 2003/88 (the ‘working time Directive’. The Employment Tribunal further found that Mr King was entitled to recover the sum of his untaken paid leave for his final year with SWWL, as well as the sum amounting to holiday he had taken from 1999 until 2012 and which had remained unpaid throughout his thirteen years of work.

So much remained undisputed by SWWL. However, the Employment Tribunal’s final finding, namely that Mr King was further entitled to recover the sum for any leave not actually taken during his work with SWWL, was appealed to the Employment Appeal Tribunal (‘EAT’). The latter accepted the appeal and passed the case back on the Employment Tribunal for reconsideration. According to the EAT’s line of argument, King would have to first take (unpaid) leave and subsequently raise a claim related to payment of that leave. This finding was primarily based on Regulation 13(9) of the domestic implementing legislation, which establishes that leave can only be taken in the relevant leave year and, if not, it cannot be replaced by payment in lieu, unless employment has been terminated. Regulation 30 further establishes that ‘[a] worker may present a complaint to an employment tribunal that his employer’ has either not allowed him annual leave or ‘has failed to pay him the whole or any part of any amount due to him’ in respect of annual leave. Logically then, failure to pay shall precede any complaint presented. The time limit for the complaint, laid down in Regulation 30(2)), is set at three months after the claim arises or at whatever period the tribunal considers appropriate where ‘it was not reasonably practicable for the complaint to be presented’. When that complaint is not presented in time then any entitlement, and in this case Mr King’s entitlement, shall be lost.

Mr King was of a different opinion. As failure to take annual leave was a direct result of his employer’s refusal to pay, the relevant rights were carried over from year to year until his termination of employment. His claim was therefore brought in time.

The EAT’s decision was, thus, appealed to the Court of Appeal, which referred five questions, of both a procedural and a substantive nature, to the CJEU. In a nutshell, the Court of Appeal asked whether the ‘use it or lose it’ approach of the Regulations is compatible with the right to an effective remedy. The question targeted the EAT’s interpretation that a worker can bring a complaint only upon taking leave, which the employer refuses to pay. The Court further asked if the right to paid leave carries over beyond the relevant leave year, in cases where non-exercise of that right is caused by the employer’s refusal to pay. If so, how long does that right carry over for?

THE COURT

The CJEU commenced on its assessment by emphasising the social significance of the right to paid leave. The Court was quick to bring the EU Charter of Fundamental Rights into its reasoning, referring in particular to article 31(2), which lays down the right to paid annual leave. The purpose of Directive 2003/88 read in the light of the Charter is to allow the worker to enjoy annual leave under conditions of remuneration comparable to those of working periods: the right to paid leave cannot be ‘subject to any preconditions whatsoever’ [para 33]. If leave itself or remuneration become uncertain as a result of the employer’s conduct, then the right is in jeopardy.

On the basis of the above, the CJEU rejected the EAT’s interpretation of the Regulations as incompatible with the Directive: ‘in the case of a worker in a situation such as that of Mr King, if the national remedies are interpreted as indicated [by the EAT], it is impossible for that worker to invoke, after termination of the employment relationship, a breach of Article 7 of Directive 2003/88 in respect of paid leave due but not taken, in order to receive the allowance referred to in paragraph 2 of that article. A worker such as Mr King would thus be deprived of an effective remedy’ [para 46]. As such, a complaint cannot be exclusively available after the employer has refused to pay for a leave already taken. This is so, despite the fact that the Directive itself is silent on remedies, not least because the Charter enshrines the right to an effective remedy in article 47 [para 41].

With respect to a worker’s ability to carry over paid annual leave rights, the Court first recognised that Mr King did not exercise his rights for reasons beyond his control. Whether or not Mr King was in the meantime offered employee status was irrelevant for the CJEU, which looked at the worker’s status as it ‘existed and persisted’ until retirement, whatever the reason for that status may be [para 50]. According to the Court’s settled case law on absence due to sickness, allowance in lieu should be available to those unable to exercise paid leave rights for reasons beyond their control. However, a carry over limit of fifteen months should be equally acceptable, given that the Court also has regard to ‘the protection of employers faced with the risk that a worker will accumulate periods of absence of too great a length and the difficulties in the organisation of work which such periods might entail’ [para 55]. The question thus came down to whether Mr King’s situation was comparable to absence due to sickness.

The Court here noted that ‘protection of [Mr King’s] employer’s interests does not seem strictly necessary’ [para 59], especially in light of the need for the right to paid leave to be interpreted broadly:

‘It must be noted that the assessment of the right of a worker, such as Mr King, to paid annual leave is not connected to a situation in which his employer was faced with periods of his absence which, as with long-term sickness absence, would have led to difficulties in the organisation of work. On the contrary, the employer was able to benefit, until Mr King retired, from the fact that he did not interrupt his professional activity in its service in order to take paid annual leave’ [para 60].

The Court concluded that ‘an employer that does not allow a worker to exercise his right to paid annual leave must bear the consequences’ [para 63], which in this case amounted to the sum due for all leaves untaken by Mr King over the years.

COMMENT

At the outset, King is a case that gives recognition to a significant employment right and should be welcome on that ground alone. The Court did not shy way from stretching the outer limits of the right to paid leave and fired straight at the employer. In symbolic terms, the case seems equally interesting, with the CJEU’s diction hinting at a robust defence of what the Court calls ‘EU social law’ against the interests of the employer.

Reliance on the Charter as a leg-up in the Court’s broad interpretation of the right is also interesting, albeit, I think, not necessarily decisive for this case. The point of a purposive interpretation, like the one pursued by the Court here, is precisely that it needs not rely on text (see here). The Court could have decided much the same without the Charter’s assistance. That said, the decision is a harsh message to businesses engaging freelancers or generally workers that lack employee status.

Nevertheless, the significance of King for gig economy worker rights at large should not be overestimated. The grand scheme of things suggests that, whereas workers in the gig economy can win the small individual battles before the Court, the CJEU is unwilling to open up the way to wide-ranging protection.

To begin with, Mr King’s worker status was not under dispute, thus disburdening the CJEU of examination of the personal scope of the right to paid leave. In other words, the Court did not discuss applicability of that right to gig economy workers as such. As the AG notes in his Opinion, the case was effectively concerned with the essence, rather than the existence, of the right [para 30]. In light of this, it could be argued that the Court’s primary concern was to interpret the right and only at a secondary level to protect the gig economy worker. Certainly, the specificities of the case, and of Mr King’s situation, render this a consequential decision for many workers in the gig economy. Nevertheless, the extent to which the relevant legislation will cover a gig economy worker remains contingent upon each individual worker’s exact employment status.

What is perhaps more important is that, once King is compared to the Court’s approach to collective labour rights in the gig economy, the picture becomes even less promising.

Indeed, the social dimension of employment rights emphasised in King appears to be neglected in cases dealing with collective labour rights of the gig economy worker. It is now established case law of the Court that collective bodies representing self-employed workers pursue an economic activity and are therefore caught by the restrictive framework of competition law rules (see Pavlov). This is so, the Court has aegued, despite these bodies’ pursuit of a social objective [Pavlov, para 118]. The importance of Pavlov is put down not to the specific facts of the case but to the Court’s refusal to invest a body representing self-employed workers with equal protection as, eg, collective bargaining agreements between employers and employees (see, eg, Albany).

On the contrary, the Court has noted that ‘the Treaty contains no provisions (…) encouraging the members of the liberal professions to conclude collective agreements with a view to improving their terms of employment and working conditions (…)’ [para 69]. Worse even, in the more recent FNW Kunsten, the Court declared in unequivocal terms that ‘in so far as an organisation representing workers carries out negotiations acting in the name, and on behalf, of those self-employed persons who are its members, it does not act as a trade union association and therefore as a social partner, but, in reality, acts as an association of undertakings’ [para 28] and therefore falls within the scope of competition law rules.

All things considered, the Court appears to be adopting double standards. It is ready to recognise the social significance of the right to paid leave of an individual freelancer, yet it stops short of shielding the right of the self-employed worker to collective bargaining.

One way forward, then, would be for the Court to recognise individual rights piecemeal, as in King. Another way would be for individuals to rely on the courts, European or domestic, for an inclusive approach to self-employed workers, as in Aslam. Here, the worker status of Uber drivers, recognised by the Employment Tribunal and upheld by the EAT, placed these individuals within the protective ambit of the National Minimum Wage Act and the Working Time Regulations. Like Mr King, the status of Uber drivers as workers for the purposes of these pieces of legislation is now beyond dispute. It is, however, doubtful whether any of the above would be able to negotiate their salary or pension through collective bargaining free from the burden of EU competition law rules. A third way forward would perhaps be for the CJEU to recognise the social significance of bargaining rights and to guarantee them for gig economy workers. Only then, I think, will it be justified to say that the war was won.

King wins a battle but the war is ongoing: when an employment right can be defended individually before the court, but not collectively in the field –even where that right is upheld– I shall remain hesitant to ring victory bell for gig economy workers.

Barnard & Peers: chapter 20

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Why Uber isn’t Appy: the ECJ defines the difference between transport and digital services

Lorna Woods, Professor of Internet and Media Law, University of Essex

The Court of Justice has followed its own established tradition and given us a significant judgment just shortly before a holiday break, perhaps in the hope that any emotionally driven (negative) response will have gone away by the time every one has got back to work. Last year we had Tele2/Watson (discussed here); this year it is Uber. The Court, in a relatively short judgment, seems to have followed its Advocate General (discussed here) - at least in outcome - to find that Uber provides a transportation service that may be regulated by the relevant Member State. While Uber may suggest at least in media reports that this ruling is not that significant to its business, the ruling may be the subject of some scrutiny by legal advisors to intermediation services to understand precisely the point at which such services are no longer to be considered information society services (within the eCommerce Directive) and what they might be considered to be instead.

To understand the significance of the judgment at this point, it is necessary to have some awareness of the patchwork of EU legislation potentially covering these services. The eCommerce Directive provides the framework for online businesses and famously provides the safe harbour provisions for those providing some forms of intermediation services: mere conduits; providers of caching services; and hosts. This directive also provides for regulation in place of establishment within the field of the directive, and limits the sorts of regulation that may be allowed. Specifically licensing for the service is not permitted.

The Services Directive provides a similar approach, but certain sectors are excluded (gambling as well as transport, for example) and may therefore be subject to more detailed regulatory systems. Broadcasting (audiovisual media services) are subject to a separate regime too, which specifies certain rules about the content that may be provided on such services.

In sum, the categorisation of a service into a particular category affects the extent to which those services may be subject to regulation. The providers of electronic intermediation services have to date benefitted from a regulatory approach which not only limits regulation but in some instances protects them also from liability in the interests of developing the market in such services.

What we see with Uber, and other intermediation services, is not just the connection of two individuals or entities who want to contract with one another but the creation of that circumstance as well as the control over the terms on which that business is carried out. Essentially, the question before the Court was whether such behaviour was just about providing technical services (an app) or whether the control was such that the intermediary had gone beyond intermediation and at what point that boundary was overstepped. 

The Court here confirmed that, in principle, a service providing information from one party to another would fall within the eCommerce Directive as an information society service (though it did not provide the detailed analysis of the Advocate General); taxis are by contrast transportation services. The service provided by Uber was more than "an intermediation service 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" (para 37).

From the Court’s perspective, it seems that there are three elements – though their interrelationship is not clear:

That the services be integral to the provision of other services (para 40);

The market creation aspect (para 39) – that is the service providers would not provide the service without the platform’s intervention (in the Court’s words the service providers were ‘led’ to do this); and

The decisive influence by the platform over the conditions under which that service is provided (para 39).

Given the structure of the Court’s judgment (and its use of the word ‘thus’ at the beginning of para 40), it could be argued that the over-arching concern is that identified at (1), but that the issues identified at (2) and (3) help identify a services integral nature. Whether, however, both market creation and control of conditions are necessary.  The Court did not make this point express but merely listed them as factors in this instance; in this there is a similarity to the Opinion of the Advocate General. 

As previously noted, this issue may have consequences for other platforms in the sharing economy and whether they are seen as part of the service that they facilitate. In essence we are seeking to place these platforms on a scale between bulletin board, client management system and agency.

The Court did not expressly consider a point which was central to the reasoning of the Advocate General – that is, the question of whether the two elements could be seen as economically independent of one another (in which case, they should be viewed separately).  One response would be to note that the Court has talked of the electronic communications aspect being integral to the overall service. The terrain described by points 2 and 3 above however is not exactly that of economic interdependence, though the Court suggests as the Advocate General argued that the economic activity is taking place only because of the role played by the platform. 

Does this then suggest that there is a difference between service which amateurs are encouraged to supply and those supplied by those professionally so engaged? This distinction may not make much sense in the context of the gig economy and piecework systems of what is de facto employment.

By contrast to the Advocate General, the Court – after concluding that neither the eCommerce Directive nor the Services Directive was applicable to Uber’s app – took the view that the app was part of a service in the field of transport since that concept “includes not only transport services in themselves but also any service inherently linked to any physical act of moving persons or goods from one place to another by means of transport” (para 41). 

Consequently, the Court avoids having to follow the reasoning of the Advocate General to find Uber responsible for the taxi drivers, instead going straight to the point that Member States may regulate the circumstances in which such intermediation takes place (para 47). This seems a more logical consequence of the reasoning than the somewhat artificial distinction that the Advocate General made between app and taxi service. It does mean, however, that those providing apps to facilitate the provision of services may find themselves having to look to the regulatory framework for that particular service, rather than the regulatory framework for electronic communications.

Barnard & Peers: chapter 14

Photo credit: The Independent

Uber: a taxi service or an app? Analysis of an ECJ Advocate-General’s view

Lorna Woods, Professor of Internet Law, University of Essex

Case C-434/15 Asociación Profesional Elite Taxi v. Uber Systems Spain SL, Opinion of the Advocate General, 11 May 2017

This case is the first before the Court of Justice specifically on the sharing economy and the extent to which coordination via platform should be treated as removing unnecessary red-tape, or as seeking to avoid regulation in the public interest (in the form of concerns about passenger safety) as well as permitting unfair competition.  While the Commission seems in favour of the (unequal) sharing economy, Advocate General Szpunar sees the position a little differently.

FACTS

Spanish law envisaged that taxi firms, and transport intermediaries, should hold a licence.  Asociación Profesional Elite Taxi (APET) sought to challenge the use Uberpop, an app which allows non-professional private drivers to transport passengers using the drivers’ own cars, where neither Uber nor the drivers have the requisite licences.   Passenger users download the app from Uber and provide their bank details to Uber.  On receiving a request for a car, the app notifies drivers and calculates the fare (this latter based on distance but also demand for taxi services at that time).  The payment is made to Uber, which deducts a percentage and then pays the remainder to the driver.  To use the app as a driver, an individual must comply with Uber’s terms and conditions. APET sought a cease and desist order and a prohibition of future similar behaviour on the basis of unfair competition.  Uber resisted APET’s claims on the basis that it was not providing transport/taxi services but was rather a digital intermediary. 

QUESTION REFERRED

The national court referred the questions of how to classify Uber’s services to the Court of Justice. The answer would affect with EU derived legal regime would be applied to Uber, with the corollary that the State’s freedom to impose licensing requirements would correspondingly vary depending on which regime was held to be applicable.  In essence, the question was whether Uber fell within the provisions of the e-Commerce Directive (Directive 2000/31) as an information society service provider, or whether the Services Directive (Directive 2006/123) or the TFEU itself applied in this context.  Here, there is a distinction between a service general and a service in the field of transportation.

OPINION

The first phase of the opinion comprises some general remarks about the significance of the ruling and the impact of different types of competence on the outcome.  The Advocate General also assumed that the respondent in the case should be the Dutch company (Uber BV), which operates the app in the EU, rather than the Spanish company, Uber Spain, which is responsible for advertising.

The Advocate-General then moved on to consider the scope of the e-Commerce Directive, specifically the meaning of ‘information society services’ as defined in Article 2(a) of that Directive by reference to Article 1(2) of Directive 98/34 (the Directive on notifying new technical barriers to trade). Under Article 1(2), an information society must be a service provided for remuneration, at a distance, by electronic means and at the individual request of a recipient. In the view of the Advocate-General, the questions of whether there is a service provided for remuneration and at individual request appeared unproblematic [para 27], but questions arose as to the test of whether the service is provided at a distance by electronic means.  In the eyes of the Advocate General the problem related to the fact that what was in issue was a ‘composite service’ [para 28].

The Advocate-General emphasised that the definition concerned services “’entirely transmitted, conveyed and received by wire, by radio, by optical means or by other electromagnetic means’” [para 29, quoting 2nd indent of 2nd subparagraph of Article 1(2), Directive 98/34, emphasis in Opinion].  So, services not delivered by electronic means did not fall within the scope of the e-Commerce Directive; services which were incidental to such services would likewise not be liberalised by the e-Commerce Directive. Assuming that they did would undermine the perceived effectiveness of EU law [para 31]. Thus:

… an interpretation of the notion of information society services which brings online activities with no self-standing economic value within its scope would be ineffective in terms of the attainment of the objective pursued by Directive 2000/31. [para 32]

The Advocate General suggested that a composite service would be treated as an information society service in two circumstances:

-          where the two elements could be seen as economically independent of one another they would be treated separately for regulatory purposes – the electronic element likely falling with the eCommerce Directive; and

-          where the service  provided was substantially or predominantly provided by electronic means.

A common example of the first case would be a three party situation where an intermediary service provider facilitates a transaction between a user and an independent service provider/seller.  While the intermediary provides added value, the trader here pursues an independent business.  In a two party situation – where the intermediary provider is also the provider of a service not provided by electronic means, the two elements cannot be seen as separable; rather, they ‘form an inseparable whole’ [para 35]. 

In that instance, it will be necessary to see if the composite service falls within the second category; that is, whether the bundle falls within the eCommerce Directive or outside it. For determining the answer to this second question, the key element is where the economic value lies. So where the main component is performed online that service should be classified as an information society service (assuming the other elements of the test are met); conversely, where it is not then the service does not fall within the eCommerce Directive. The Advocate General, citing Ker-Optika (Case C-108/09) suggests that this test would be satisfied in the case of online sales (via the seller’s own website).  Delivery of goods is ‘simply the performance of a contractual obligation’ [para 36]. 

Applying these tests here, the Advocate General noted that Uber provided more than a matching service of passengers to taxi drivers. It sets down the essential characteristics of the service to be provided (eg quality and age of vehicle; drivers to have licences and no criminal record), it informs drivers where and when there are likely to be a high volume of trips and/or preferential fares, and it sets the prices.  Uber maintains indirect control over drivers through its ratings function.  Thus, in the view of the Advocate General,

‘… Uber exerts control over all the relevant aspects of an urban transport service ….  (…) Uber therefore controls the economically significant aspects of the transport service offered through its platform’ [para 51].

 While the Advocate General sought to distinguish this case from the cases concerning whether drivers are employees of Uber, on the basis of this indirect control the Advocate General concluded that:

 ‘Uber’s activity comprises a single supply of transport in a vehicle located and booked by means of the smartphone application and this service is provided, from an economic standpoint, [citations omitted] by Uber or on its behalf’ [para 53]. 

The Advocate General sought to distinguish the activity of Uber from intermediary services on the basis that Uber drivers do not carry out an independent activity. Instead, their activity exists solely because of the existence of the platform.  By contrast, flight or hotel booking systems are separate from the independent services operated by the hotels and airlines and for whom the websites are just one mechanism of advertising their services. Furthermore, it is the hotels and airlines which control the prices and the conditions on which their services are offered. Finally, a choice is offered to the user between hotels/airlines. 

In opposition to the Commission’s views on the sharing economy, the Advocate General did not think that the fact that Uber did not own the cars was determinative. Uber is more than a ‘mere taxi booking application’ [para 64].  Because of the extent of the innovation on the transport sector caused by the way the apps links drivers and passenger and the conditions on which it does this, ‘it is undoubtedly the supply of transport which is the main supply and which gives the services the economic meaning’ [para 64].  The supply of connection services is ancillary to this.

Having determined that Uber’s services do not fall within the eCommerce Directive, the Advocate General considered the Services Directive: Article 2(2)(d) specifies that the Services Directive does not apply to transport services.  The Advocate General confirmed that Uber’s taxi services were transport services in the context of Article 2(2)(d) Services Directive as recital 21 refers to ‘urban transport [and] taxis’ [cited para 68].  The service likewise falls within the exception to the Treaty rules on free movement of services (Article 58(1) TFEU) and therefore subject to the specific transport sector rules in Article 90 TFEU et seq.

The Advocate-General concluded by considering the position should Uber’s app be deemed to fall within the eCommerce Directive.  He noted that Member States would then be limited in terms of the conditions that they could apply to such a service; drivers however would still be subject to any relevant national regulation. The Advocate General argued that Uber nonetheless could be penalised for unfair competition as ‘it is responsible not only for the supply whereby passengers and drivers are connected with one another, but also for the activity of those drivers’ [para 86], whether or not the booking app were seen to be separate from the transportation service or not.  The Advocate General therefore proposed that the eCommerce Directive

‘does not preclude requirements relating to the activity of transport in the strict sense being established in national law or the imposition of penalties on Uber for failing to comply with those requirements, including by means of an injunction ordering it to discontinue the service’ [para 88].

Comment

This opinion will be grabbing the headline news because of the headline fact that – shock, horror- Uber is a taxi company.  The reasoning used is worth a little more attention, because our understanding of that reasoning, if the Court of Justice follows the same lines, will affect any wider ramifications for the ‘sharing’ economy more generally.  So while the Advocate-General starts his opinion by suggesting that the subject matter of the case is ‘narrow’ (para 2), the repercussions are potentially a little broader.  A recognition of this fact can be inferred by the approach of the Advocate General to the question of scope of the eCommerce Directive and the insistence that the eCommerce Directive regulates services that are entirely delivered by electronic means – the emphasis is that of the Advocate General (para 29), with the result that it cannot be said

That any trade-related online activity, be it merely incidental, secondary or preparatory in nature, which is not economically independent is, per se, an information society service (para 37).

The opinion re-iterates this point when considering the app as an information society service (see below). The significance of this is that the eCommerce Directive cannot be used to avoid regulation of the main service, at least to the extent that such regulation is not a barrier to trade unacceptable to EU law more generally and as exemplified by the Services Directive, just because some aspect of the business is on-line.  This leads to a second general point: the Opinion is noteworthy for the way it manoeuvred the circumstances of the case around to the twin obstacles to national regulation of the eCommerce Directive and the Services Directive, especially given that the Commission, in its Communication on the Collaborative Economy (COM(2016)356) seem to view the Services Directive in particular providing a basis for such services. 

The tests identified by the Advocate-General will not seem unusual – talking about whether the different elements of a composite service are severable or preponderantly one thing or another can be seen elsewhere, for example in the case of goods and services (an example of which is given by Advocate General Szpunar in his reference to Ker-Optika, para 36), or even questions of competence. 

A couple of points can be made here.  The first is that in some of the factors to be taken into account in determining independence, the Advocate General comes close to eliding the question of what is the nature of the service with the question of who is providing it. Many of the factors the Advocate General considered reflect the Commission’s Communication from last year. Of potentially more consequence is the impact considering as a factor the question of whether the service would exist without the app.  This can be seen by contrasting the position of Airbnb with Uber.  If we look at control, Uber is caught because of its control over key aspects such as access to passengers, and price (detailed in paras 43-51); on these considerations Airbnb which does not set price might not be caught. However, if the test is that ‘the activity exists solely because of the platform’ (para 56), for Airbnb as for Uber, the answer might well be ‘yes’.  Of course, Uber and Airbnb are different in that transport does not fall within the Services Directive but rather is dealt with by specific provisions within the TFEU.  Nonetheless, the recitals to the Services Directive specify that:

it does not apply to requirements, such as road traffic rules, rules concerning the development or use of land, town and country planning, building standards (Rec 9),

some of which may affect the running of hotels or B&Bs. Further, the directive does not apply to taxation (Article 2(3)), so for example, taxes on short term lets may be unaffected by the Services Directive (though dealt with under the TFEU).

A further point that is worthy of note is the consequence of seeing Uber and the drivers as providing separate services.  The requirement to have a licence to provide a connection service in the context of transportation would fall within the scope of the eCommerce Directive and would be caught be the prohibition on authorisations set out in Article 2(h)(i); the Advocate General was of the opinion that is was unlikely that any restriction on the electronic aspect of the service could be justified by considerations of public interest.  The prohibition does not, however, extend to the regulation of transport services - they are not provided by electronic means.  So the regulation of taxi services remains possible and, as noted, Uber remains responsible for the drivers’ activities (para 86).  Arguing Uber’s activity as whole should benefit from the liberalising principles in the eCommerce Directive would run the risk of undercutting any form of regulation ‘because all traders are currently in a position to offer services by electronic means….’ (para 87).  Could a similar argument be put forward in other sectors of the sharing economy?  In principle, yes, but presumably only where the platform has exerted Uber-like control over the actual provision of the services.

Even when the Grand Chamber Court of Justice has handed down its ruling, this will not be the end of the Uber saga.  Currently pending before the Court is a reference from France concerning the imposition of penalties on Uber for running an unlicensed taxi service: Case C-320/16 Criminal Proceedings against Uber France, which raises the question of whether France should have notified its rules as a technical regulation under Directive 98/34.

Barnard & Peers: chapter 14

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