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).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions