What top EU lawyer thinks about Uber, Airbnb and gig workers

LUXEMBOURG — Maciej Szpunar may be the most important European tech influencer youve never heard of.

The Polish lawyer, an advocate general at the Court of Justice of the European Union in Luxembourg, is the legal mind behind two landmark opinions concerning Uber and Airbnb that are defining how platforms can operate in Europe.

In the former case he found that Ubers business model meant it could be regulated like a transport firm, while in the latter he opined that Airbnb should be seen as a tech platform. Both opinions — which are non-binding but tend to influence the courts final decision — are still reverberating through the EUs tech ecosystem.

Now Szpunar is turning to his next big case, which involves StarTaxi, a Romanian ride-hailing service that wants to be classified as a tech platform.

He stopped short of offering any spoilers, but did offer this clue into his thinking: “The determination of the price is essential as transport services are concerned, especially taxi services,” Szpunar told POLITICO in an interview that took place in his office at the court in Luxembourg. “If youre looking for a taxi, the only two things youre interested in are when the taxi is arriving, and how much you have to pay.”

Other considerations, like the ranking of drivers and the platforms relationship with its workers, are also key, he added.

“With accommodation services, its not that people are always choosing the cheapest accommodation.” — Maciej Szpunar

Szpunar will hand down his latest opinion just as the European Commission is getting to work updating the blocs e-commerce directive, a law penned 20 years ago which protects internet platforms from direct liability and underpins much of the web-based economy.

The so-called Digital Services Act, which is set to be unveiled in late 2020, will adapt the e-commerce directive to take a range of concerns into account. But Szpunar said there would always be a role to play for courts — and lawyers like himself — due to the fact that regulation could not predict every real-world situation.

“To regulate the internet is a very challenging adventure for the legislator,” he said. “They will never be in a position to predict all the varieties of situations that would have to be regulated.”

“There will always be some lacuna, some further need for precision,” he added.

Uber, Airbnb and StarTaxi

The 49-year-old doctor of law, who holds degrees from the University of Silesia and the College of Europe, first emerged as a key player in the platform economy in 2017, when he handed down his opinion in a case pitting Spanish taxi association Elite Taxi against Uber and its now-defunct car-sharing service, UberPop.

In the midst of an uproar over Uber, with taxi drivers in several cities physically battling gig-economy rivals in the streets, Elite Taxi argued that UberPop — which allowed anyone with a car to provide rides — was effectively a transport company. Uber countered that it was a platform acting as a middleman to connect drivers and passengers.

Szpunars advice, which led to a CJEU ruling later the same year that Uber should be regulated as a transport firm, was important for its expansion plans in Europe. While the firm was already being regulated under transport laws in several countries, the ruling emboldened national regulators to press ahead with restrictions, and Uber disbanded its UberPop service.

Now Szpunars reasoning is set to be put to the test with StarTaxi.

The Romanian service, which connects people seeking rides with licensed drivers, wants to be defined as an “information society service,” as opposed to a transport company, arguing that it exerts less direct control over its service than Uber.

Szpunar, who is set to render his opinion in the fall ahead of a final ruling expected by year-end, declined to comment on a pending case.

But he added that a crucial factor was determining the degree of control a platform exerts over the final service provided to a customer. In other words, while a service that provides hotel accommodation directly to customers would not qualify as an “information society service,” one that merely facilitates reservations with third parties would.

“You cannot exercise too much control over the final service because this final service is not the information society service,” he said.

However, Szpunar is quick to underline that what goes for ride-hailing companies does not apply without distinction to other platforms. In the case of Airbnb, which faced a legal challenge from French hotel lobby AhTop, he found that control over pricing was less crucial than for a ride-hailing firm because price was only one of many criteria considered by a buyer when making their choice.

An Uber user waits for a car at Tegel Airport in Berlin | Sean Gallup/Getty Images

“With accommodation services, its not that people are always choosing the cheapest accommodation,” he said.

In an opinion from April of last year, Szpunar said Airbnb should be seen as a tech platform, not a hotel company, prompting a wave of outrage from European cities.

Mayors warned that the opinion gives Airbnb carte blanche to undermine traditional hotels and encourage excessive tourism. The European Committee of the Regions complained that the EUs executive arm had failed to properly define what constitutes an “information society service,” or tech platform, leaving courts to take “highly political decisions.”

“I understand the concerns,” Szpunar said, referring to the backlash against the Airbnb advice. “But I think the values or the needs that have to be protected can be protected in accordance with the e-commerce directive.”

Fooled by appearances

In coming months, as the PolisRead More – Source

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