There's a way to do it better - find it.

(Thomas A. Edison)

Further developments on the Uber affair: an invitation by the Antitrust Authority to the Parliament for the creation of a “third kind” of drivers
星期五, 12 2月 2016 13:31

Further developments on the Uber affair: an invitation by the Antitrust Authority to the Parliament for the creation of a “third kind” of drivers

Giulia Sala

On the matters regarding Uber, according to the Antitrust Authority, a constitutionally oriented interpretation of these regulations is no longer sufficient, but it is necessary to develop focused legislative action: this is what emerged from the opinion of the Authority on November 2nd, 2015.

The Antitrust Authority responded to a question posed by the Ministry of the Interior – by request of the State Council – regarding the application of Articles 3 and 11 of Law 21/92 (“Framework on the transport of people by means of non-scheduled bus services”) to intermediation services of UberBlack and UberVan and to the service UberPop.

To begin, progressive development of digital platforms in all the markets was revealed and, as a result of the influx of Uber services in Italy, even the traditional radio-taxi services have evolved in this manner, adopting similar technological instruments. 

The disturbance between Uber services and traditional services has created  friction not only in our country, but also in several European countries. This is partially a result of widespread intervention of the courts (see our previous article) including the action of the Mercantile Judge of Barcelona who, on July 16, 2015, referred this case to the highest court in Europe, the European Court of Justice. The issues at the center of the indictment are the same as those that were asked by the Antitrust Authority – and for this reason, explicitly referenced in this opinion: the nature of these activities conducted by this type of platform, and in particular, if these activities must be considered mere transport activities, electronic information services or information society services (in accordance with Article 1, paragraph 2 of directive 98/34/CE of the European Parliament and of the Council, from June 22, 1998). 

In light of the principle of freedom of private economic initiative (Article 41 of the Constitution), the Antitrust Authority held that a “digital platform that connects via smartphone the demand and the supply of services offered by NCC employees cannot in fact by definition respect a rule that requires drivers to acquire a service from the garage to the return to the garage at the end of the trip.”  Articles 3 and 11 of l.21/92 cannot therefore be applied to the services of UberBlack and UberVan, in view of a fair balance among the competitive advantages derived from the development of this type of digital platform (and the protection of the public interest connected to these platforms) and also in view of protection for individual categories of employees.”

Also in reference to the UberPop service (non-professional drivers), the Authority found that Articles 3 and 11 cannot be applied, recalling the necessity to examine the aspects of public security and thus inviting the legislature to adopt regulation on this type of service “in light of the need to reconcile interests worthy of protection: competition, street security, passenger safety and also defining a “third type” of non-scheduled mobility service providers, or in other words, online platforms that connect passengers with non-professional drivers.”   

All that remains to do is wait and see whether this heartfelt invitation on part of the Antitrust Authority and shared by the market and by consumers, will be welcomed by the legislature or if it will remain in a situation of limbo, thus unfavorable for all the parties involved.