Belgium: Brussels Enterprise Court Rules In Favour Of Uberx Services In Brussels

On 16 January 2019, the President of the French-language Brussels Enterprise Court (Ondernemingsrechtbank/Tribunal de l'entreprise) handed down his judgment in cease-and-desist proceedings regarding Uber's activities in Brussels initiated by the Belgian Federation of Taxis (FeBeT) and 23 taxi companies (together the "claimants") against Uber B.V., a Dutch company forming part of the Uber group, and nine providers of vehicle leasing services with driver operating through the UberX platform (the "UberX drivers") (President of the French-language Brussels Enterprise Court, 16 January 2019, Fédération belge des taxis, SPRL Ben Thami, SCRL Mahdaoui, SPRL Taxis Lucas, SPRL Fylra, SPRL taxi Energie, SPRL Nioucha, SPRL Cabs 1030, SPRL Mk Tax, SPRL Youzak taxi, SPRL Phedonas, SPRL Marbel, SPRL Kara, SPRL Sadegh, SA T.M.T. Partner, SCS Taxi Tsatakis et Cie, SA Liberty Cars, SPRL Alraha, SPRL Stertax, SPRL Taxi City, SPRL E.L.H., SCS T.M.S. Limousine, SA Blue Cabs, SPRL Mol-Tax v. Uber B.V., SCS V&C Concept, SPRL Arman, SPRL Thomi-Autos, Mr. Chardoudi Tariq, Mr. Sahli Sofien, Mr. Haouari El Mostafa, SPRL K-Everest, SPRL Flambeau, Mr. Saba Antonio Rossario).

The claimants argued that UberX and the UberX drivers infringed Articles 3 and 16 of the Ordinance of the Brussels Capital Region of 27 April 1995 on taxi services and vehicle leasing services with driver (Ordonnantie van het Brussels Hoofdstedelijk Gewest van 27 april 1995 betreffende de taxidiensten en de diensten voor het verhuren van voertuigen met chauffeur/Ordonnance de la Région de Bruxelles-Capitale du 27 avril 1995 relative aux services de taxi et aux services de location de voiture avec chauffeur – the "Ordinance"). Article 3 of the Ordinance prohibits the operation of taxi services without a 'taxi' licence granted by the Brussels-Capital Region. Article 16 of the Ordinance in turn requires operators of 'vehicle leasing services with driver' to hold a 'limousine' licence, which is different from a 'taxi' licence. According to the claimants, Article 3 was infringed in that the UberX drivers did not have a 'taxi' licence but only a 'limousine' licence, whereas Article 16 was infringed in that, allegedly, the drivers did not satisfy all conditions for obtaining a 'limousine' licence. The claimants further maintained that, by relying on 'limousine' licences without allegedly meeting all conditions, the UberX drivers had committed an unfair market practice within the meaning of Article VI.104 of the Code of Economic law (Wetboek van Economisch Recht van 28 februari 2013/Code de droit économique du 28 février 2013 – the "CEL"). Article VI.104 CEL prohibits any act contrary to fair market practices by which a company harms or may harm the professional interests of at least one other company. 

The President first examined the situation of Uber B.V. In this regard, the President dismissed Uber B.V.'s argument that it would not be subject to the Ordinance as its UberX service would qualify as an 'information society service' within the meaning of Directive 2006/123 of 12 December 2006 on services in the internal market (the "Services Directive"). Referring to the judgments of the Court of Justice of the European Union in Uber Spain (Case C-434/15) and Uber France (Case C-320/16), the President held that the UberX service must be regarded as forming an integral part of an overall service the main component of which is a transport service and that, as a result, Uber B.V. offers a 'service in the field of transport' within the meaning of Article 2(2)(d) of the Services Directive (See Van Bael & Bellis on Belgian Business Law, Volume 2017, No. 12, pp. 7-8; Van Bael & Bellis on Belgian Business Law, Volume 2018, No. 4, pp. 8-9, available at www.vbb.com). Article 2(2)(d) of the Services Directive excludes services in the field of transport – including urban transport and taxis – from the scope of the Directive.

However, the President noted that a 'service in the field of transport', such as the UberX service, should not be confused with a transport service per se. Since none of the vehicles are exploited by Uber B.V. itself given that it does not own any of the vehicles, the President found that Uber B.V. cannot be regarded as a transport services provider. According to the President, Uber B.V.'s services therefore fall outside the scope of the Ordinance.

Next, the President examined the situation of the UberX drivers. The claimants submitted that the UberX drivers are misleading both the public and the authorities by operating with 'limousine' licences instead of 'taxi' licences. More specifically, they argued that the contract for the provision of services between Uber B.V. and the UberX drivers is concluded with the sole aim of circumventing the prohibition on the provision of taxi services without holding a 'taxi' licence.

The President dismissed this argument on the basis of Article 2,1° of the Ordinance which provides, inter alia, that a transport service can only be considered a taxi service when the vehicle is made available to the public either at a specific parking space on the public road or at any place which is not open to public traffic. The President noted that this condition was not satisfied as the contact between a passenger and an UberX vehicle can only occur through the UberX digital application developed by Uber. As passengers must register with Uber's 'Platform Rider Association' ("PRA") before being able to order any rides, UberX vehicles are not accessible to the public, but only to the registered PRA users. In view of these elements, the President concluded that UberX drivers do not provide taxi services within the meaning of the Ordinance.

Finally, the President examined whether the UberX drivers meet the conditions for operating a limousine licence. While he rejected as unfounded all claims against UberX drivers holding a limousine licence granted by the Brussels Capital Region, the President found that one UberX driver (SPRL Thomi-Autos) holding a limousine licence granted by the Walloon Region had committed an unfair market practice by using a vehicle which failed to meet the passenger's comfort and quality expectations within the meaning of Article 73 of the Decree of 3 June 2009 implementing the Walloon Decree of 18 October 2007 on taxi services and vehicle leasing services with driver (Arrêté du Gouvernement wallon du 3 juin 2009 portant execution du Décret wallon du 18 octobre 2007 relatif aux services de taxis et aux services de location de voitures avec chauffeur). Accordingly, the President ordered Thomi-Autos to cease and desist from offering vehicle leasing services with driver with that specific vehicle subject to a penalty of EUR 5,000 per infringement.

This judgment confirms that the service provided by UberX drivers qualifies as a vehicle leasing service with driver for which a 'limousine' licence is required. Uber B.V. may thus continue to operate its UberX service in Brussels provided that the UberX drivers satisfy the conditions for operating a 'limousine' service. The claimants announced in the press that they intend to appeal the judgment.

The judgment follows a series of judgments prohibiting the UberPOP service in Brussels. The UberPOP service differs from the UberX service in that, in contrast to UberX drivers who are professional drivers holding a 'limousine' licence, UberPOP drivers are non-professional, unlicensed drivers (See Van Bael & Bellis on Belgian Business Law, Volume 2015, No. 10, pp. 18-19 and Van Bael & Bellis on Belgian Business Law, Volume 2018, No. 12, pp. 16-17, available at www.vbb.com).

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