Fundamentals of IT Law: Legal Framework of Information Society Services

UNIVERSITÀ POLITECNICA DELLE MARCHE - Facoltà di Economia "Giorgio Fuà"

Fundamentals of IT Law

Prof. Roberto Ruoppo www.univpm.itARSITA PO UNIVERS ECNICA 900 DELLE MARCHE

Information Society Services Legal Framework

• Arts. 56 ff. TFEU on freedom of services
• EU Directive on electronic commerce, n. 31/2000: in particular Arts. 2, 3, 4
• EU Directive on services, n. 123/2006 concerning measures that can be adopted for service providers (in particular Arts. 9, 10, 16)
• EU Directive n. 1535/2015 on information society services featuresERSITA PO UNIVERS ECNICA DELLE MARCHE

Information Society Services and Online Intermediaries

The new economic model founded on market access enhances the role of online intermediaries Digital markets are developed through online intermediaries: Internet Service Providers (ISP) The more liberal regime provided by EU Directive 2000/31 is justified only when intermediation is actually carried out: - Absent for UBER - Present for AirbnbERSITA PO UNIVERS ECNICA DELLE MARCHE

Star Taxi Case: Information Society Service Features

CJEU, Star Taxi App v. General Council of Bucarest, 3 December 2020

Star Taxi App: Star Taxi App is a Romanian company managing a smartphone application with the purpose to put together taxi drivers with those who want to benefit of a urban journey. . Star Taxi allows consumers to select a driver among those present in the list . Star Taxi does not transmit the reservation to the driver and does not determine the price of the journey

Star Taxi App: Consumer and Driver Relationship

The relationship is between the final consumer and the taxi driver . It is the consumer having the duty to pay directly the driver for the service provided . There is no commission that has to be paid to Star Taxi by the consumer

Star Taxi App: Driver and App Relationship

The relationship between the taxi driver and the App · A supply contract is stipulated providing taxi drivers a smartphone with the Star Taxi App . Taxi drivers are due to pay a monthly fee for benefiting of the App service . Star Taxi does not exercise any kind of control on the vehicles' quality neither on drivers' behaviours

Star Taxi Case: Comparison with Uber

Is there any difference with Uber?

Is there any difference with Uber? - No assessment concerning the final price; - No control on transport quality - What about the drivers and their professional role?ERSITA PO UNIVERS ECNICA 902 DELLE MARCHE

Star Taxi Case: Statement of Facts - Romanian Law

Statement of the facts: Romanian national law concerning collection and distribution of taxi reservation . Bucarest municipal resolution 178/2008 subjecting this activity to a previous administrative authorization (limitation applicable to the traditional means, based on radio technology, e.g. radio taxi) . Bucarest municipal resolution 626/2017 broadening this authorization to online means tooERSITA PO UNIVERS ECNICA DELLE MARCHE

Star Taxi Case: Limitations on Freedom of Services

Are limitations applicable to freedom of services?

Star Taxi Case: Sanction and Claim

Statement of the facts: Star Taxi was fined by Romanian authorities because of the violation of municipal resolution 626/2017 . The violation was linked to the lack of any administrative license obtained for its activity

Star Taxi Case: Tribunal's Decision

Statement of the facts: Star Taxi claimed the unlawful character of the sanction . Star Taxi activity was considered to be an information society service and therefore not subjected to the authorization regime provided by Romanian law . The Tribunal of first instance rejected the claim because of the link between the collecting and distributing activity and the transport service provided by taxi drivers (recalling in this regard the UBER CJEU decision)= is this assessment correct?ERSITA PO UNIVERS ECNICA 200 DELLE MARCHE

Star Taxi Case: Superior Court Challenge

Statement of the facts: Star Taxi challenged the Tribunal's decision before the Superior Court of Bucarest · Bucarest Superior Court was not sure about the lawfulness of the first decision in respect to the EU Law provision: preliminary ruling to the CJEU · Which were the differences with UBER outlined by the Romanian Court?ERSITA PO UNIVERS ECNICA DELLE MARCHE

Star Taxi Case: Main Differences with UBER

Main differences with UBER outlined by Bucarest Court: . Star Taxi does not determine the price of the journey neither receives any payment by the consumer (it only receives a monthly fee by taxi drivers, independently from the journeys realized by them) · Star Taxi does not benefit of non professional drivers (but it only refers to taxi drivers with a lawful license) . Star Taxi does not exercise any control in respect to vehicles' quality or taxi drivers' behaviourERSITA PO UNIVERS ECNICA 000 DELLE MARCHE

Star Taxi Case: Object of Preliminary Ruling

The object of the preliminary ruling: · 1) What is Star Taxi's nature? Does it represent an information society service or a transport service? · 2) Even qualifying Star Taxi as an information society service, is the auhtorization regime applied by Romanian authorities compliant with EU Law?ARSITA PO UNIVERS ECNICA DELLE MARCHE

Star Taxi Case: Applicable EU Law

EU Law applicable in the dispute at stake: · Art. 56 TFEU · Art. 4 of EU Directive on electronic commerce 31/2000: it essentially establishes that EU member States must grant information society services and should not apply preventive authorization regimes; para. 4 establishes that the prohibition concerns authorizations specifically addressed to information society services · Arts. 9, 10 and 16 of EU Directive 123/2006: providing exceptions' requirements (non discrimination; general interests; proportionality)ARSITA PO UNIVERS ECNICA DELLE MARCHE

Star Taxi Case: First Question - Nature of Star Taxi

On the merits, the first question: what is the nature of Star Taxi?

On the merits, the first question: what is the nature of Star Taxi? The CJEU starts from the features of Star Taxi's activity - Star Taxi does not determine the price of the journey - Star Taxi does not exercise any kind of controlARSITA PO UNIVERS ECNICA DELLE MARCHE

Star Taxi Case: Information Society Service Requirements

On the merits, the first question: what is the nature of Star Taxi? The CJEU starts from the requirements settled by EU Directive 1535/2015 and decides that it is an Information society service: - It is a service - It is provided for remuneration (not by the consumer, but by the driver, through a monthly fee) - It is provided long-distance, in particular through an online platform - There is an individual requestARSITA PO UNIVERS ECNICA 902 DELLE MARCHE

Star Taxi Case: Differences with UBER

On the merits, the first question: what are the differences with UBER? - Star Taxi does not make use of a service provided by non- professional drivers - Star Taxi is useful for professional drivers already exercising their activity - Star Taxi does not create a new service that has not been provided before; adversely it represents a different way of collecting reservations, different and alternative from traditional means - Star taxi is not involved in the transport activity management: it is not a part of a more complex service represented by transportARSITA PO UNIVERS ECNICA DELLE MARCHE

Star Taxi Case: Second Question - Authorization Regime Compliance

On the merits, the second question: is the authorization regime compliant with EU Law? (in particular with the requirements settled by art. 4 EU Directive 31/2000; arts. 9, 10 and 16 EU Directive 123/2006) The question concerns the lawful or unlawful character of the administrative authorization, in light of its application to traditional providers of collection and distribution reservations: a problem of competition arises (between radio and online tools)