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France: Constitutional Court Rules on Car-Hiring Services Legislation

(June 30, 2015) There have been some important recent developments on the legal status of chauffeured vehicles for hire in France. Probably the most significant came in the form of a constitutional challenge to Law No. 2014-1104 of October 1, 2014, on Taxis and Chauffeured Transport Vehicles, commonly called the Loi Thévenoud (Thévenoud Law), the main legislative framework for taxi and chauffeured car services. (Loi No. 2014-1104 du 1er octobre 2014 relative aux taxis et aux voitures de transport avec chauffeur, LEGIFRANCE; Jean-Baptiste Jacquin, Uber bouscule la loi Thévenoud [Uber Shakes Up Thévenoud Law], LE MONDE (Mar. 14, 2015).) The new law was meant to end the conflict between drivers of car-sharing and chauffeured vehicle services, such as Uber, and traditional taxi drivers. (Marie-Laure Combes, Taxis – VTC: la loi Thévenoud adoptée [Taxis – Chauffeured Transport Vehicles: Thévenoud Law Adopted], EUROPE 1 (Sept. 19, 2014).)

Shortly after this law entered into force, the companies Uber France and Uber BV were sued by the Union Nationale des Taxis, a taxi trade association, and three traditional professional chauffeur services. As part of its defense, Uber requested that constitutional challenges to three major provisions of the Thévenoud Law be referred to the Conseil constitutionnel (Constitutional Council), the French body tasked with verifying the constitutionality of laws. The Cour de cassation, which acts as a gatekeeper for this type of constitutional challenges, accepted, in two separate decisions, the referral of Uber’s challenges to the Conseil constitutionnel. (Constitution du 4 octobre 1958 (last updated Dec. 13, 2013), arts. 61, 61-1, 62, LEGIFRANCE; Constitution of 4 October 1958, Conseil constitutionnel website; Arrêt No. 375, Cour de cassation, com., Mar. 13, 2015, Cour de cassation website; Arrêt No. 376, Cour de cassation, com., Mar. 13, 2015, Cour de cassation website.)

Conseil Constitutionnel Decision on Challenges to Thévenoud Law

The Conseil constitutionnel considered Uber’s challenges to the Thévenoud Law and finally gave its decision on May 22, 2015. (Decision No. 2015-468/469/472 QPC of May 22, 2015, Corporation UBER France SAS et al., Conseil Constitutionnel website (in French).)

The three provisions challenged by Uber were: (1) the prohibition against chauffeured vehicles other than taxis charging a per-kilometer fee; (2) the prohibition on “electronic roaming” by chauffeured vehicles, i.e., the use of a smartphone application that shows the location of nearby available vehicles to potential customers in real-time; and (3) the requirement that, after each ride, chauffeured vehicles return to their home base or stop in a place where they are authorized to park. (Commentary, Decision No. 2015-468/469/472 QPC, Corporation UBER France SAS et al., at 8-13, Conseil Constitutionnel website (in French).)

The Conseil constitutionnel found that the first challenged provision, which prohibited chauffeured vehicles from charging customers on the basis of distance while authorizing licensed taxis to do so, unjustifiably violated freedom of enterprise, which the Conseil constitutionnel derives from a clause of the 1789 Declaration of the Rights of Man stating that “[l]iberty consists in being able to do anything that does not harm others.” (Id. at 17 & 25-27, citing the Déclaration des Droits de l’Homme et du Citoyen de 1789 [Declaration of the Rights of Man and the Citizen of 1789], art. 4, LEGIFRANCE, English version, Conseil Constitutionnel website.)

The Declaration of the Rights of Man has constitutional value in French law, as it is incorporated by reference in the preamble of the current Constitution. The Conseil constitutionnel found the other two provisions to be constitutional, however, deeming them to be justified by the governmental interest in preserving public order, particularly with regard to the use of public roadways and parking places. (Décision No. 2015-468/469/472 QPC du 22 mai 2015, ¶26.)

Reactions to the Decision

Both sides of the litigation initially expressed satisfaction with the Conseil constitutionnel’s decision. (Gaétan Supertino, Taxis vs. Uber: ce qui va changer pour les VTC [Taxis v. Uber: What Is Going to Change for Chauffeured Transport Vehicles], EUROPE 1 (May 22, 2015).) Nevertheless, the Thévenoud Law remains very contentious. In an additional court case, Uber submitted a constitutional challenge to another provision of the law that makes it illegal to operate a mobile application that puts non-professional drivers in contact with potential paying customers, something that Uber does through a service called UberPop. (Arrêt No. 699, Cour de cassation, com., June 23, 2015, Cour de cassation website; Bertille Bayart, Le cas UberPop soumis au Conseil constitutionnel [UberPop Case Submitted to the Conseil Constitutionnel], LE FIGARO (June 23, 2015).)

Reportedly, over 480 judicial procedures are currently pending against UberPop drivers. (Serge Raffy, Thomas Thevenoud: “Taxis, faites appliquer la loi!” [Thomas Thevenoud: “Taxis, Enforce the Law!”], LE NOUVEL OBSERVATEUR (June 25, 2015).) In at least one case, a court acquitted the defendant, finding that his activity as an UberPop driver was not in itself tantamount to being an unlicensed taxi driver. (Un chauffeur UberPop Relaxé à Paris en correctionnelle [UberPop Driver Released by Paris Criminal Court], LES ECHOS (June 11, 2015).)

Ongoing Conflict Between Uber, Taxis

The conflict between Uber and taxi drivers has escalated to new levels in recent days and has moved from the courthouse to the street. On June 25, 2015, taxi drivers organized strikes and demonstrations throughout France. Demonstrators blocked key roads, and there were several instances of violence between taxi drivers on the one hand and Uber drivers and other non-taxi chauffeurs on the other. (Taxis contre UberPOP: perturbations à Paris et dans plusieurs villes [Taxis Against UberPOP: Disturbances in Paris and in Several Cities], L’EXPRESS/AFP (June 25, 2015).) French President François Hollande has called for the dissolution of UberPOP, and the Police Prefect of Paris issued an order prohibiting UberPop’s services. Furthermore, the Minister of the Interior has asked the Paris Prosecutor’s office to bring charges against UberPop for organizing illegal activities. (Pierre Lelièvre, Hollande demande la dissolution d’UberPop [Hollande Calls for the Dissolution of UberPop [Hollande Calls for the Dissolution of UberPop], LIBERATION (June 26, 2015).) Uber France’s management, in response, has indicated that the company would contest these measures in court. (Bertille Bayart, Le gouvernement débordé par la guerre des taxis [Government Overwhelmed by the Taxi Wars], LE FIGARO (June 26, 2015).)

Possible EU Action

While the reaction of taxi drivers appears to be particularly strong in France, the issue of competition between traditional taxis and ride-sharing services such as Uber is controversial in other European countries as well. Noting that certain European Union Member States had very restrictive regulations on Uber-style services while others were more open, the European Commissioner for the Interior Market and Industry expressed the view that homogeneous rules were needed across Europe and that the Commission would work towards issuing “appropriate regulation” at the European level. (Philippe Brochen, L’UE veut légiférer sur Uber [The EU Wants to Legislate on Uber], LIBERATION (June 23, 2015).)