Identification of the case
National law sources
- § 3a UWG, § 49(4) 2, 5 PBefG
EU law sources
- Art. 56(1) TFEU, Regulation 2006/123/EC
Summary of the case
Facts of the caseThe plaintiff is a taxi company located in Berlin. The defendant is a company (seat in the Netherlands) which offered a smartphone application called ‘UBER Black’. Through the application, users can book rental cars with drivers. For that reason, the company cooperated with rental car companies (whose cars were referred to as UBER in the advertisement of the app). The company also decided the contract conditions, price formation, the payment method and the advertisement for coupons. The city Berlin issued a decision to the defendant that the use of this app violates § 49(4) PBefG. The plaintiff demanded at first instance that the defendant ceases to use the app ‘UBER Black’. The first instance court agreed with the plaintiff. The appeal of the defendant was further rejected at the Court of Appeal in Berlin (Kammergericht).
Type of enforcement
- Civil judicial enforcement
Measures, actions, remedies claimed/appliedInjunction against offering the smartphone application UBER APP
Reasoning (legal principles applied)The major EU-law-related discussion of this judgment, focuses on the question whether the German prohibition of the Uber app is conforming with art. 56(1) TFEU and Regulation 2006/123/EC. Therefore, the question must be answered whether Uber is a service provider regarding passenger transport.
In order to answer this question, the Federal Court of Justice relies entirely on the CJEU’s judgment given in C-343/15 Elite Taxi. Basing itself on the CJEU, the Federal Court of Justice argues that an agency service is considered a transportation service when the agency service is an integral part of the complete service. A service is an integral part when a provider has decisive influence on the overall service provision and clients would not use the concrete services of the driver without the agency service.
Applying these principles to the facts, the Federal Court of Justice concludes that Uber play an integral part in the provision of the transport service. It organises a fleet of vehicles by creating a uniform market presentation and referring to the fleet as ‘Uber’ in its advertisements. Furthermore, Uber organises promotions and the payment procedure, and dictates the conditions for the provision of transport services. Thereby, it exercises an extreme influence on the pricing and controls the quality of the vehicles respectively the drivers. As a result, Uber is an integral part of the overall transport service. In addition, consumers would not use the services of the drivers without the application. In this sense, it does not matter whether the participants necessarily depend on the app for the provision of the transport service itself.
The Federal Court of Justice also determines that the factual difference between the CJEU’s case on UberPop (which employs private drivers) and the current case on UberBlack (which employs professional drivers) is of no consequence for the existence of a transport service. It bases its reasoning on solely on the fact that the CJEU advised the Federal Court to withdraw its preliminary reference. According to the Federal Court, the CJEU would not give such advice if it considers the characteristic of the driver fundamental to establishing whether an agency service is a transport service.
Elements of judicial dialogue
Judicial dialogue patterns
Vertical dialogue type
- Direct dialogue between CJEU/ECtHR and National court (out of preliminary reference procedure)
- CJEU C-434/15, Uber Spain
- CJEU C-320/16, Uber France
Dialogue techniquesConform interpretation with EU law as interpreted by the CJEU
Purposes of using judicial dialogueTo ensure interpretation of German transportation laws in conformity with European law
Expected effects of judicial dialogue Legislative reform to allow for privately organised ride-sharing apps
Additional notes on the decision
Impact on legislation/policySince the PBefG currently leaves no room for privately organised ride-sharing-services, the current great coalition agreed on a reform of the law in its current coalition treaty. It is, however, unsure whether the reform will allow services like Uber Black or UberX concretely.