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23 April 2014

Uber’s “outrageous” judgment?

The “Uber” case unleashed a social and political tsunami in Brussels. Newspapers headlines, Neelie Kroes’ angry blog post and “tweet”, the Bruxelles Mayor’s counterstrike, plus a lot of comments on all social media: the decision of the President of the Commercial Court of Brussels ordering Uber to cease its services in Belgium has made a lot of buzz… Many comments go in the same direction: the judgment is reactionary, protectionist, anti-technology, or even outrageous.

The question to be asked is, amongst all the people commenting the decision and blaming the judges, who has actually read the judgment?

I have been looking around in the press and on several social media, but I could not find any information regarding the content of it, until I finally managed to get a copy of it yesterday.

And what does it say? Not much actually.

It is a so called “default” judgment, which means that the defendant did not show up for the hearing, and has not presented any defense. In such case, the court only checks whether it is competent, whether the plaintiff is entitled to file the claim and whether the writ of summons has been served correctly. It does not need to make a thorough analysis of the merits of the claim, and unless the claim is grotesque, the court usually grants it (knowing that the defendant can anyway oppose the decision and present its plea before the same judges).

In Uber’s case, it appears that the defendant is not Uber Inc., a US company, but Uber bvba, a Belgian subsidiary of the Dutch company Uber BV. The competence of the court is obvious. For the same reason, Belgian law is obviously applicable. As to the merits of the case, taxi services in Brussels are subject to regulations, including a license requirement. On the contrary, and quite obviously, the persons using Uber’s website to offer taxi services are not licensed taxi drivers. In its default decision, noticing that Uber is absent at the hearing, the Court upholds the Taxi services’ position and orders Uber to cease “the transmission of requests for a taxi, to non-licensed drivers”, under a penalty of EU 10.000 per infringement to the order.

Is such penalty per infringement outrageous? Again, let’s stress that as Uber did not appear before Court to defend itself, the judges probably granted all the measures as requested by the plaintiff without moderating them in any way.

The question is why Uber did not appear in court? Maybe Uber bvba’s office in Brussels is a mere post-box. Maybe the staff did not react on time (the writ was served on a Wednesday and the hearing was on the following Monday)? Maybe Uber did not really care (reading the terms and conditions on Uber.com, it seems that it Uber bvba is not actually the company that is responsible for the services).

Another question is whether the Uber services are indeed illegal. That’s another story. From a legal perspective, Uber could certainly rely on various arguments, among which the rules regarding the free provision of services and the home-country rules contained in the European Directive on Electronic Commerce.

Most likely to be continued… if Uber opposes to the judgment.

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