Legal Conclusions on the Operation of Internet Platforms

OPINION OF ADVOCATE GENERAL SZPUNAR

https://curia.europa.eu/juris/document/document.jsf;jsessionid=1B1ECA1D19F674B9B5A28F3FFB93686C?text=&docid=230875&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=27754592

delivered on 10 September 2020 (1)

Case C‑62/19

Star Taxi App SRL

v

Unitatea Administrativ Teritorială Municipiul Bucureşti prin Primar General,

Consiliul General al Municipiului Bucureşti,

interested parties

IB,

Camera Naţională a Taximetriştilor din România,

D’Artex Star SRL,

Auto Cobălcescu SRL,

Cristaxi Service SRL

(Request for a preliminary ruling
from the Tribunalul București (Regional Court, Bucharest, Romania))

(Reference for a preliminary ruling – Directive (EU) 2015/1535 – Article 1(1)(b) – Definition of ‘Information Society services’ – Service putting taxi customers directly in touch with taxi drivers – Mandatory taxi booking service for taxis of authorised carriers – Article 1(1)(e) – Rule on services – Notification obligation – Directive 2000/31/EC – Article 4 – Prior authorisation – Authorisation schemes not specifically and exclusively targeted at Information Society services – Directive 2006/123/EC – Articles 9 and 10 – Authorisation schemes for service activities)

Introduction

1. EU legislation lays down special rules for a specific category of services, namely ‘Information Society’ services, that is to say, services provided at a distance by electronic means or, put simply, mainly via the internet. Under EU law, such services benefit from the principle of mutual recognition between Member States as well as a number of facilitations as regards establishment in the providers’ respective Member States of origin.
2. However, it is not always easy to distinguish between an Information Society service and a ‘traditional’ service when different kinds of services form an integral part of a composite service. That is particularly the case for urban transport services booked by electronic means. The Court has already had the opportunity to provide some guidance on that distinction in specific circumstances. (2) However, such guidance is not necessarily intended to apply in different circumstances.
3. A second difficulty comes to light where national rules govern ‘traditional’ services of the same economic nature as Information Society services. It is therefore necessary to determine to what extent and, as the case may be, under what circumstances EU law allows those rules to be applied to the latter category of services. A further question arises where there is doubt as to whether the rules adopted to regulate ‘traditional’ services are actually intended to apply to Information Society services, due to the latter’s specificity or novelty. (3)
4. All of those different issues emerge in the present case and thus give the Court the opportunity to clarify its case-law on the matter. Legal context European Union law
5. Under Article 2(a) of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’): (4)

‘For the purpose of this Directive, the following terms shall bear the following meanings:

(a) “information society services”: services within the meaning of Article 1(2) of Directive 98/34/EC as amended by Directive 98/48/EC; [(5)]’

6. Article 4 of that directive provides:

‘1. Member States shall ensure that the taking up and pursuit of the activity of an information society service provider may not be made subject to prior authorisation or any other requirement having equivalent effect.

2. Paragraph 1 shall be without prejudice to authorisation schemes which are not specifically and exclusively targeted at information society services …’
3. Article 2(1) and Article 2(2)(d) of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market (6) provides:

‘1. This Directive shall apply to services supplied by providers established in a Member State.

2. This Directive shall not apply to the following activities:

…

(d) services in the field of transport, including port services, falling within the scope of Title [VI] of the [TFEU];

…’

8. Under the first sentence of Article 3(1) of that directive:

‘If the provisions of this Directive conflict with a provision of another Community act governing specific aspects of access to or exercise of a service activity in specific sectors or for specific professions, the provision of the other Community act shall prevail and shall apply to those specific sectors or professions.’

9. Article 9(1) of that directive provides:

‘1. Member States shall not make access to a service activity or the exercise thereof subject to an authorisation scheme unless the following conditions are satisfied:

(a) the authorisation scheme does not discriminate against the provider in question;

(b) the need for an authorisation scheme is justified by an overriding reason relating to the public interest;

(c) the objective pursued cannot be attained by means of a less restrictive measure, in particular because an a posteriori inspection would take place too late to be genuinely effective.’

10. Lastly, Article 10(1) and (2) of that directive states:

‘1. Authorisation schemes shall be based on criteria which preclude the competent authorities from exercising their power of assessment in an arbitrary manner.

2. The criteria referred to in paragraph 1 shall be:

(a) non-discriminatory;

(b) justified by an overriding reason relating to the public interest;

(c) proportionate to that public interest objective;

(d) clear and unambiguous;

(e) objective;

(f) made public in advance;

(g) transparent and accessible.’

11. Article 1(1) of Directive (EU) 2015/1535 of the European Parliament and of the Council of 9 September 2015 laying down a procedure for the provision of information in the field of technical regulations and of rules on Information Society services (7) provides:

‘1. For the purposes of this Directive, the following definitions apply:

…

(b) “service” means any Information Society service, that is to say, any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services.

For the purposes of this definition:

(i) “at a distance” means that the service is provided without the parties being simultaneously present;

(ii) “by electronic means” means that the service is sent initially and received at its destination by means of electronic equipment for the processing (including digital compression) and storage of data, and entirely transmitted, conveyed and received by wire, by radio, by optical means or by other electromagnetic means;

(iii) “at the individual request of a recipient of services” means that the service is provided through the transmission of data on individual request.

An indicative list of services not covered by this definition is set out in Annex I;

…

(e) “rule on services” means a requirement of a general nature relating to the taking-up and pursuit of service activities within the meaning of point (b), in particular provisions concerning the service provider, the services and the recipient of services, excluding any rules which are not specifically aimed at the services defined in that point.

For the purposes of this definition:

(i) a rule shall be considered to be specifically aimed at Information Society services where, having regard to its statement of reasons and its operative part, the specific aim and object of all or some of its individual provisions is to regulate such services in an explicit and targeted manner;

(ii) a rule shall not be considered to be specifically aimed at Information Society services if it affects such services only in an implicit or incidental manner;

(f) “technical regulation” means technical specifications and other requirements or rules on services, including the relevant administrative provisions, the observance of which is compulsory, de jure or de facto, in the case of marketing, provision of a service, establishment of a service operator or use in a Member State or a major part thereof, as well as laws, regulations or administrative provisions of Member States, except those provided for in Article 7, prohibiting the manufacture, importation, marketing or use of a product or prohibiting the provision or use of a service, or establishment as a service provider.

…

This comprises technical regulations imposed by the authorities designated by the Member States and appearing on a list drawn up and updated, where appropriate, by the Commission, in the framework of the Committee referred to in Article 2.

…’

12. Under the first subparagraph of Article 5(1) of that directive:

‘Subject to Article 7, Member States shall immediately communicate to the Commission any draft technical regulation, except where it merely transposes the full text of an international or European standard, in which case information regarding the relevant standard shall suffice; they shall also let the Commission have a statement of the grounds which make the enactment of such a technical regulation necessary, where those grounds have not already been made clear in the draft.’

13. Finally, Article 10 of the directive provides:

‘Directive 98/34/EC, as amended by the acts listed in Part A of Annex III to this Directive, is repealed, without prejudice to the obligations of the Member States relating to the time limits for the transposition into national law of the Directives set out in Part B of Annex III to the repealed Directive and in Part B of Annex III to this Directive.

References to the repealed Directive shall be construed as references to this Directive and shall be read in accordance with the correlation table in Annex IV.’

Romanian law

14. Article 1a(j) and Article 15 of Legea nr. 38/2003 privind transportul în regim de taxi și în regim de închiriere (Law No 38/2003 on transport by taxi and hire vehicle) of 20 January 2003 (8) (‘Law No 38/2003’) provide:

‘Article 1a

…

(j) taxi dispatching (“dispatching”) means an activity related to the transport by taxi consisting in receiving customer bookings by telephone or other means and forwarding them to a taxi driver via a two-way radio;

…

Аrticle 15

1. Taxi dispatching may be carried on only within the area covered by the authorisation by any legal person (“the booking centre”) holding an authorisation granted by the competent authority in accordance with this law.
2. A taxi dispatching authorisation may be obtained by submitting the following documents:

(a) a copy of the registration certificate issued by the commercial register;

(b) a sworn declaration by the taxi or hire vehicle transport operator that the booking centre is equipped with the necessary technical means, a two-way radio, a secure radio frequency, authorised staff and the necessary spaces;

(c) a copy of the radio telephony operator certificate for the employees of the taxi booking centre issued by the competent communications authority;

(d) a copy of the licence to use radio frequencies issued by the competent authority.

…

5. Authorised carriers providing taxi services shall use a booking centre in accordance with this law on the basis of a dispatching agreement concluded with that centre under non-discriminatory conditions.
6. Dispatching services shall be mandatory for all taxis of authorised carriers operating in an area other than areas where less than 100 taxi licences have been issued or where that service is optional.

…

8. Taxi dispatching agreements concluded with authorised carriers must contain terms setting out the parties’ obligations to comply with the rules on quality and legality of the service provided and the agreed fares.
9. Taxis served by a booking centre may provide transport services on the basis of a flat fare or fare scale depending on vehicle category, in accordance with the dispatching agreement.
10. The booking centre shall supply the authorised carriers it serves with a two-way radio for installation in taxis on the basis of a lease agreement concluded under non-discriminatory conditions.’
11. In the municipality of Bucharest (Romania), taxi services are regulated by the Hotărârea Consiliului General al Municipiului București nr. 178/2008 privind aprobarea Regulamentului-cadru, a Caietului de sarcini și a contractului de atribuire în gestiune delegată pentru organizarea și executarea serviciului public de transport local în regim de taxi (Decision No 178/2008 of Bucharest Municipal Council approving the framework regulation, contract documents and concession agreement for the delegated management of the organisation and provision of local public taxi services) of 21 April 2008 (‘Decision No 178/2008’). Article 21(1) of Annex 1 to that decision was originally worded as follows:

‘In the municipality of Bucharest, dispatching services shall be mandatory for all taxis of authorised carriers and may be provided only by booking centres authorised by the competent authorisation authority of the municipality of Bucharest, under conditions ensuring that customers are able to request those services by telephone or other means through booking centres.’

16. Decision No 178/2008 was amended by the Hotărârea Consiliului General al Municipiului București nr. 626/19.12.2017 pentru modificarea și completarea Hotărârii Consiliului General al Municipiului București nr. 178/2008 privind aprobarea Regulamentului-cadru, a Caietului de sarcini și a contractului de atribuire în gestiune delegată pentru organizarea și executarea serviciului public de transport local în regim de taxi (Decision No 626/19.12.2017 of Bucharest Municipal Council amending and supplementing Decision No 178/2008) of 19 December 2017 (‘Decision No 626/2017’).
17. Article 3 of Annex 1 to Decision No 178/2008 as amended, resulting from Article I of Decision No 626/2017, states:

‘The terms and concepts used and defined in Law No 38/2003 have the same meaning herein and, for the purposes of this framework regulation, the following definitions shall apply:

…

(Ia) dispatching by any other means: activity carried out by a booking centre authorised by the competent authority to receive bookings from customers by means of an IT application or bookings made on the website of an authorised booking centre and to forward them to taxi drivers via a two-way radio.

(Ib) IT application: software installed and functioning on a mobile or fixed device, belonging exclusively to the authorised booking centre and bearing its name.

…’

18. Article 21 of Annex 1 to Decision No 178/2008 as amended, resulting from Articles II and III of Decision No 626/2017, is worded as follows:

‘1. In the municipality of Bucharest, dispatching services shall be mandatory for all taxis of authorised carriers and may be provided only by booking centres authorised by the competent authorisation authority of the municipality of Bucharest, under conditions ensuring that customers are able to request those services by telephone or other means, including through applications connected to the internet that must bear the name of the booking centre appearing in the dispatching authorisation granted by the competent authorisation authority of the municipality of Bucharest.

…

3a. Dispatching services shall be mandatory for all taxis of authorised carriers operating a taxi in the municipality of Bucharest and may be provided only by booking centres authorised by the competent authorisation authority of the municipality of Bucharest, under conditions ensuring that customers are able to request those services by telephone or other means (IT applications, bookings made on the website of a booking centre) and to forward them to taxi drivers via a two-way radio.’

19. Article 41(2a) of Annex 1 to that decision as amended, resulting from Article IV of Decision No 626/2017, provides that in the pursuit of taxi activities, taxi drivers are required, inter alia, to refrain from using telephones or other mobile devices when providing transport services.
20. Article 59(6a) of Annex 1 to that decision as amended, resulting from Article V of Decision No 626/2017, states:

‘Failure to comply with the obligations laid down in Article 21(3a), which are applicable to all comparable activities irrespective of the way and the circumstances in which they are carried out, resulting in an unauthorised driver or an authorised taxi carrier being contacted to transport a person or group of persons in the municipality of Bucharest, shall be punishable by a fine of between 4 500 and 5 000 [Romanian lei (RON) (between approximately EUR 929 and 1 032)].’

Dispute in the main proceedings, procedure and questions referred for a preliminary ruling

21. S.C. Star Taxi App SRL (‘Star Taxi App’), a company incorporated under Romanian law established in Bucharest, operates an eponymous smartphone application placing users of taxi services directly in touch with taxi drivers.
22. That application makes it possible to run a search which displays a list of taxi drivers available for a journey. The customer is then free to choose a particular driver. Star Taxi App does not forward bookings to taxi drivers and does not set the fare, which is paid directly to the driver at the end of the journey.
23. Star Taxi App concludes contracts for the provision of services directly with taxi drivers authorised and licensed to provide taxi services, without carrying out any selection or recruitment process. Under those contracts, drivers are given access to an IT application and are equipped with a smartphone on which the application is installed and a SIM card including a limited amount of data to enable use of the application, in exchange for a monthly payment from the taxi driver to Star Taxi App. Furthermore, that company does not control either the quality of the vehicles and their drivers or the drivers’ conduct.
24. On 19 December 2017, Bucharest Municipal Council adopted Decision No 626/2017, which extended the scope of the obligation to apply for authorisation for the activity of ‘dispatching’ to cover operators of IT applications such as Star Taxi App. Star Taxi App was fined RON 4 500 (approximately EUR 929) for having infringed those rules.
25. Taking the view that its activity constituted an Information Society service to which the principle of the exclusion of prior authorisation laid down in Article 4(1) of Directive 2000/31 applies, Star Taxi App lodged a prior administrative complaint requesting revocation of Decision No 626/2017. That request was refused on the ground that the disputed rules, first, had become necessary on account of the considerable scale on which unauthorised legal entities were found to be unlawfully taking bookings and, secondly, did not infringe the freedom to provide services by electronic means since they provided a framework for an intermediation service in connection with the activity of passenger transport by taxi.
26. Star Taxi App therefore brought proceedings before the Tribunalul București (Regional Court, Bucharest, Romania) seeking annulment of Decision No 626/2017.
27. In those circumstances the Tribunalul București (Regional Court, Bucharest) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Are the provisions of Directive [98/34] (Article 1(2)), as amended by Directive [98/48], and of Directive [2000/31] (Article 2(a)), which state that an Information Society service is a “service … provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services”, to be interpreted as meaning that an activity such as that carried on by Star Taxi App SRL (namely a service consisting in putting taxi passengers directly in touch, via an electronic application, with taxi drivers) must be regarded specifically as an Information Society and collaborative economy service (bearing in mind that Star Taxi App SRL does not fulfil the criteria for being a transport undertaking considered by the Court of Justice of the European Union in paragraph 39 of its judgment of 20 December 2017, Asociación Profesional Elite Taxi, C‑434/15, EU:C:2017:981, with reference to Uber)?

Can I use ride-hailing apps like Star Taxi for airport transfers in Bucharest?

The EU Court ruling in Case C-62/19 from December 3, 2020, confirms that apps like Star Taxi can operate legally as they organize transport services by connecting drivers and passengers. Travelers can book rides directly through the app for Bucharest Henri Coandă Airport, with fares starting at about 20 RON for short trips to the city center. Always check for licensed drivers to ensure safety and compliance.

What does the Star Taxi App court case mean for taxi regulations in Romania?

The judgment states that internet platforms providing taxi services must follow the same rules as traditional taxis, including licensing requirements set by local authorities in Bucharest. This means apps cannot bypass regulations on fares or vehicle standards, protecting passengers from overcharging. Expect standard airport taxi rates of 2.5 RON per km within the city after this ruling.

Is it safe to book taxis via apps after the EU ruling on Star Taxi?

Yes, the December 2020 decision in Case C-62/19 upholds that such platforms are responsible for ensuring driver qualifications and insurance, making app-based rides as safe as regular taxis. In Bucharest, rides from the airport take 20-30 minutes to downtown, costing 40-50 RON depending on traffic. Verify the app's compliance with local laws before booking to avoid issues.