By Niccolò Aspreno Bencivenni
In July 2022, several documents became known as Uber Files. The series of thousands of documents, leaked by Mark MacGann and published by the Guardian, suggest that Uber attempted to lobby high-level politicians for market advantage, ignoring the working conditions and welfare of their drivers. Such issues have seen the company at the centre of numerous judgments between carriers, trade associations, users of services and Uber itself. In January 2023 the European Parliament, the Council and the Commission discussed the revelations about Uber’s lobbying practices in the EU with the aim of clarifying what emerged.
Status quo ante
Uber is an application designed and developed in the United States (2009), owned by Uber Technologies INC. The company is based in San Francisco (California) and is also the parent company of the European Holdings it controls: Uber International Holding B.V. and Uber International B.V., which controls the operating companies Uber B.V and its tasks are those of operating the platform, conducting business and managing administrative responsibilities. In Italy, Uber Italy S.r.l., carries out the activity by providing consultancy services.
In Europe, several Courts or Municipalities and Government Agencies have banned UberPop, one of the activities of the chauffeur-hire company, where the private driver makes his car available with those who need to travel. The Hamburg and Berlin’s Courts ruled that UberPop does not comply with the licensing requirements for taxi services provided by the Passenger Transport Act and that the measures taken against Uber would not violate the Trade Regulation Act (Gewerbeordnung). On 9 December 2014, after the appeal lodged request of the Madrid City Taxi Association in Spain, the Commercial Court No. 2 of Madrid ordered the suspension and prohibition of Uber’s activities, claiming that they openly violated rules in the field of passenger transport. What is interesting is that legal disputes involving Uber all over the globe always have the same content: Uber unfairly competes with taxis because the company does not pay taxes or licence fees, puts passengers in danger by not being covered by insurance, drivers without licence are untrained and not or under-insured. More generally, the company breaks the law.
Perhaps it was precisely because of these numerous disputes, often resulting in referrals from one Court to another and conflicting decisions, that the debate has moved from the courtrooms to those of politics.
Despite numerous national Courts’ pronouncements and rulings of the Court of Justice of the European Union, loopholes in the regulation of non-scheduled transport and problems with the status of Uber drivers have deteriorated the already precarious equilibrium emerged with the advent of new forms of shared mobility managed by digital platforms. Indeed, if case law has appeared uneven and sometimes conflicting, the same cannot be said for the company’s way of navigating in the oblivion of regulatory uncertainties: Uber has grown up to the point of entering the New York Stock Exchange on May 10 2019, valuing the company at $80 billion. Therefore, it is easy to understand why the Uber Case transformed into a political issue, whose focus is on interests and persons at the heart of the Uber Files scandal.
Revelations
After the confidential dossiers leaked, more than 120.000 documents relating to the period between 2013 and 2017 came to light. These include emails, messages and transcripts dealing with the relations between Uber and some European high-profile politicians including the French President Emmanuel Macron and the former Italian Prime Minister Matteo Renzi. The scandal also affected the highest echelons of the European Union all the way up to former European Commissioner Neelie Kroes. Despite her denials, Kroes has been charged with exploiting her power to strengthen the lobbying influence of the Uber company, namely by influencing Dutch politicians – including Dutch Prime Minister Mark Rutte – to halt an inquiry at Uber’s Amsterdam headquarters. In addition, Kroes allegedly offered to set up a number of meetings between Uber and Dutch Ministers and top EU officials. In the light of the Uber Files investigations and because of the accusation against Kroes – who allegedly violated the EU Commission’s Code of Conduct and EU rules in the field of competition – the Commission issued a letter of clarification, the contents of which are currently unknown.
The actions of the EU
The protests related to Uber’s activities moved from the Courts to the streets and resulted in a debate that reached the European institutions. It is from them that efforts are currently being made to further regulate on the subject of platform employees’ working conditions and of public transportation within the EU. Indeed, we witnessed the debate on the politically sensitive Directive on platform workers/riders, aiming to properly determine the employment status of workers and increase the transparency of companies operating in the sector. The Directive states that its purpose is “to improve the working conditions of persons performing platform work by ensuring the correct determination of their employment status, by promoting transparency, fairness, human oversight, safety and accountability in algorithmic management in platform work and by improving transparency in platform work, including in cross-border situations, while fostering the sustainable growth of digital labour platforms in the Union.“
With this regard, in February Members of the European Parliament approved the dossier on the matter. The Directive has also been examined by the European Economic and Social Committee. To continue with the negotiations on the document, it is now necessary to wait for the Member States to clarify their stance. On the other hand, the company’s top management continues to be concerned that the proposal could wipe out a developing but still poorly regulated market.
In conclusion, it is becoming increasingly evident how the issues related to unlawful conduct of large companies with an international reach need to be addressed with an integrated approach, aiming at guaranteeing fair competition and workers’ rights. The publication of the Uber Files has certainly accelerated the regulation process that, although not fully completed, seems to proceed in line with the fundamental antitrust principles of the European Union, as regulated in the Treaty on the Functioning of the European Union (TFEU).