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

The Polish CJEU advocate general behind major legal opinions affecting platform economy firms warms up for his next big case.

LUXEMBOURG — Maciej Szpunar may be the most important European tech influencer you’ve 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 Uber’s 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 court’s final decision — are still reverberating through the EU’s 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 you’re looking for a taxi, the only two things you’re interested in are when the taxi is arriving, and how much you have to pay.”

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

Szpunar will hand down his latest opinion just as the European Commission is getting to work updating the bloc’s 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.

Szpunar’s 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 Szpunar’s 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.

“With accommodation services, it’s 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 EU’s 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 Polish lawyer sizes up his next case, he will be paying attention to another key variable in the internet economy: platforms’ relationships with their workers.

Around the world, a debate is raging over whether gig-economy workers — from Uber drivers to bike delivery riders for Deliveroo, Foodora and others — should be redefined as employees.

California has passed a law, known as the AB5, that forces Uber to do just that, while a British court has ruled that drivers are employees in a case headed to the country’s Supreme Court this summer. Some drivers themselves argue that Uber uses algorithmic control to manage them in a way that is equivalent to an employer.

In his Uber opinion from 2017, Szpunar does not take a stand on whether Uber drivers should be classified as employees. But he does issue a warning not to be “fooled by appearances” when it comes to how Uber exerts control.

“Indirect control such as that exercised by Uber, based on financial incentives and decentralised passenger-led ratings, with a scale effect, makes it possible to manage in a way that is just as — if not more — effective than management based on formal orders given by an employer to his employees and direct control over the carrying out of such orders,” he wrote.

Spzunar now says it is only a matter of time before the court will have to decide whether the control platforms exercise over workers is comparable to the relationship that exists between an employer and an employee.

The first sign that platforms are trying to exercise the control of an employer is whether they punish workers for accepting gigs through a competitor. Another is whether the platform tries to control when and for how long workers work.

This definition is the kind of lacuna that Spzunar doesn’t have a clear-cut answer to.

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