Well known is the Uber case, in which Barcelonan cab drivers were followed by the European court of Justice in their view that Uber, like them, is also required to have a cab license for its services.
The central question is whether this is an ‘Information Society service’ or not. In short, the Directive on electronic commerce stipulates that to such an Information Society service the ‘principle of the exclusion of prior authorisation’ applies. So member states may not subject (online) activities in this field to a license or other requirements. Interesting subject matter, of course. After all, this does not only apply to apps, but to anyone offering online services, including web shops that sell goods. And likewise, for example, to an English bank that offers online flash credits in the Netherlands, via www.flitskrediet.nl. Also this is regarded as an Information Society service and therefore does not fall under the Dutch Financial Supervision Act (Wft) – and can thus not easily be addressed by Dutch regulatory bodies such as AFM and DNB.
In the Uber case it was ruled that the Uber service is ‘inherently linked’ to the physical taxi transport service. Uber selects the drivers and sets the fare. Uber therefor is not an Information Society service. In the Star Taxi App case, the attorney general has now concluded otherwise. The application makes it possible to run a search which displays a list of taxi drivers available for the journey. The customer is free to choose a particular driver. The Star Taxi App does not recruit taxi drivers and does not exercise control or decisive influence over the transport conditions, according to the attorney general. And Star Taxi App does not set the fare, which is directly paid to the driver at the end of the journey. The app is an add-on to a pre-existing and organised taxi transport service, an ancillary service, and hence an Information Society service. The city of Bucharest – in imposing license requirements to Star Taxi App – is likely to get trumped in this issue.
So the design of the functionalities of an app or online service largely determines whether local regulations apply or not. For online entrepreneurs it may be advantageous to give this some thought. Why not structure your online business as an Information Society service?
