On 23 September 2015, the President of the Dutch-speaking Brussels Commercial Court (the "President") gave judgment in cease-and-desist proceedings lodged by Taxi Radio Bruxellois NV ("TRB"), which operates under the business name of "Taxis Verts", against various companies of the Uber group regarding Uber's activities in Brussels (President of the Dutch-speaking Brussels Commercial Court, 23 September 2015, Uber Belgium BVBA, Uber BV, Uber International BV and Rasier Operations BV v. Taxi Radio Bruxellois NV, in the presence of Brussels Hoofdstedelijk Gewest, Belgische Federatie van Taxis en Nationale Groepering van Ondernemingen met Taxi- en Locatievoertuigen met Chauffeur VZW).
The judgment was given in the context of opposition proceedings lodged by Uber Belgium BVBA ("Uber Belgium") against a judgment by default of the President of the French-speaking Brussels Commercial Court of 31 March 2014 (the "Initial Judgment"). The Initial Judgment found that Uber Belgium had committed an unfair commercial practice by transmitting requests for taxi rides to drivers who are not in the possession of the licence referred to in Article 3 of the Ordinance of the Brussels Capital Region of 27 April 1995 on taxi services and vehicle location 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"). Accordingly, the Initial Judgment ordered Uber Belgium to cease and desist from this practice subject to a penalty of EUR 10,000 per infringement.
On 24 April 2014, Uber Belgium lodged an action to have the Initial Judgment set aside. TRB subsequently served a third-party notice on the Dutch Uber entities Uber BV, Uber International BV and Rasier Operations BV (collectively "Uber Netherlands"). Following a request of Uber Netherlands to have the case dealt with in Dutch, the case was transferred to the President.
Before the President, TRB argued that Uber Belgium and Uber Netherlands are distorting competition by transmitting requests for taxi rides to drivers who are not in the possession of the licence required under the Ordinance and do not comply with the Ordinance's rules. According to TRB, this distortion of competition is harmful not only to taxi drivers who do comply with the Ordinance but also to providers of dispatching services like TRB, which act as an intermediary between the taxi drivers and the customers.
Uber Belgium, for its part, sought the annulment of the Initial Judgment. By way of counterclaim, Uber Netherlands (i) asserted that TRB infringes competition law and the rules on fair market practices by including non-compete clauses in its contracts and by entering into restrictive agreements with its competitors; and (ii) requested the President to order TRB to cease and desist from these practices, subject to a penalty payment.
The President held that the Initial Judgment should be reformed as it is not Uber Belgium but other companies of the Uber group which actually provide the contested services. Accordingly, the President held that TRB's claim against Uber Belgium is unfounded.
The President continued by examining the situation of Uber Netherlands. In this regard, the President noted that it was not in dispute that providers of dispatching services (like Uber Netherlands and TRB) are themselves not subject to the Ordinance's licence requirement. However, according to the President, it should be examined whether the licence requirement applies to the drivers whom Uber Netherlands puts in contact with customers.
Pursuant to Article 2, 1° of the Ordinance, the existence of a "taxi service" and, hence, the applicability of the Ordinance's licence requirement, is subject to three cumulative conditions: (i) the service should consist of the paid transport of people by a carrier with a vehicle (which should satisfy specific conditions); (ii) the vehicle should be 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; and (iii) the destination should be determined by the client.
In assessing whether these conditions were met by the Uber drivers, the President dismissed the arguments of Uber Netherlands that there cannot be a "taxi service" because (i) its ride-sharing services called UberPOP are: (a) provided by "private individuals" and (b) do not qualify as public utility services; and (ii) it is the UberPOP driver who determines the destination and not the user of UberPOP. The UberPOP services differ from Uber's so-called UberX services in that they are not provided by professional, licensed drivers but by non-professional drivers.
The President next examined whether the UberPOP drivers provide the service against remuneration (first condition). In this regard, the President noted that the remuneration of UberPOP drivers may either (i) exceed their actual costs incurred; or (ii) cover their costs only.
The President observed that, in the first case (remuneration exceeds costs), the three conditions of Article 2, 1° of the Ordinance are met. Accordingly, the President concluded that Uber Netherlands 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) (this provision prohibits any act contrary to fair market practices by which a company harms or may harm the professional interests of one or more other companies). Uber Netherlands was found to have done so by transmitting requests for paid taxi services to unlicensed UberPOP drivers whose remuneration exceeds their actual costs incurred. The President ordered Uber Netherlands to cease and desist from these practices subject to a penalty of EUR 10,000 per infringement and per party (starting from the twenty-first calendar day following the date of service of the judgment).
In the second situation (remuneration covers costs only), the President questioned whether the Ordinance's licence requirement is compatible with the principle of proportionality, as laid down in Article 5 of the Treaty on the European Union and Article 52, §1 of the Charter of Fundamental Rights of the European Union (the "Charter"), read in conjunction with (i) Articles 15, 16 and 17.1 of the Charter; and (ii) Articles 49 and 56 of the Treaty on the Functioning of the European Union ("TFEU"). Articles 15, 16 and 17.1 of the Charter guarantee the freedom to engage in work, freedom to conduct a business and the right to property respectively. Articles 49 and 56 TFEU protect the right of establishment and the freedom to provide services.
For this reason, the President decided to refer a question for a preliminary ruling to the Court of Justice of the European Union ("ECJ"). The President asked the ECJ to clarify whether the Ordinance is compatible with the above provisions should it be interpreted in such a way that the notion of "taxi services" would also apply to occasional private drivers who are unpaid and who engage in ride-sharing by accepting requests for rides that are communicated to them through a software application of Uber Netherlands, which is established in another EU Member State (See, ECJ, case C-526/15, Uber Belgium).
The President has not yet ruled on the counterclaim which Uber Netherlands had brought against TRB for the alleged infringement of competition rules. As regards the relevant product market definition, the President considered that Uber Netherlands and TRB are active on the same market. However, since Uber Netherlands had not provided any specific market data (number of drivers, number of vehicles, number of rides, prices, etc.), the President decided to continue the debate in order to allow the parties to exchange additional briefs on the counterclaim of Uber Netherlands.
On 14 October 2015, Uber suspended its UberPOP service in Brussels following the President's ruling. Uber currently only provides services through licensed drivers (i.e., the UberX service). However, it announced in the press that it intends to appeal the judgment.
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