1 This request for a preliminary ruling concerns the interpretation of Article 56 TFEU, Article 1(2) of Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations (OJ 1998 L 204, p. 37), as amended by Directive 98/48/EC of the European Parliament and of the Council of 20 July 1998 (OJ 1998 L 217, p. 18) (‘Directive 98/34’), Article 2(a), Article 3(2) and (4) and Article 4 of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’) (OJ 2000 L 178, p. 1), Articles 9, 10 and 16 of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market (OJ 2006 L 376, p. 36), and, lastly, Article 5 of Directive (EU) 2015/1535 of the European Parliament and of the Council of 9 September 2015 laying down a procedure for the provision of information in the field of technical regulations and of rules on Information Society services (OJ 2015 L 241, p. 1).
2 The request has been made in proceedings between Star Taxi App SRL, on the one hand, and the Unitatea Administrativ Teritorială Municipiul București prin Primar General (Territorial Administrative Unit of the Municipality of Bucharest, Romania; ‘the Municipality of Bucharest’), and the Consiliul General al Municipiului București (General Council of the Municipality of Bucharest, Romania), on the other, concerning regulations under which prior authorisation is required for the activity, carried out by means of a smartphone application, of putting persons wishing to make an urban journey in touch with authorised taxi drivers.
3 Directive 2015/1535 repealed and replaced Directive 98/34 with effect from 7 October 2015, and references to the latter are now to be construed as relating to Directive 2015/1535, pursuant to the second subparagraph of Article 10 of that directive.
4 In particular, point 2 of the first paragraph of Article 1 of Directive 98/34 has been replaced in identical terms by Article 1(1)(b) of Directive 2015/1535.
5 Article 2(a) of Directive 2000/31 defines ‘information society services’ as ‘services within the meaning of Article 1[(1)(b) of Directive 2015/1535]’.
6 Article 3(2) and (4) of Directive 2000/31 read as follows: ‘2. Member States may not, for reasons falling within the coordinated field, restrict the freedom to provide information society services from another Member State. … 4. Member States may take measures to derogate from paragraph 2 in respect of a given information society service if the following conditions are fulfilled: (a) the measures shall be: (i) necessary for one of the following reasons: - public policy, in particular the prevention, investigation, detection and prosecution of criminal offences, including the protection of minors and the fight against any incitement to hatred on grounds of race, sex, religion or nationality, and violations of human dignity concerning individual persons, - the protection of public health, - public security, including the safeguarding of national security and defence, - the protection of consumers, including investors; (ii) taken against a given information society service which prejudices the objectives referred to in point (i) or which presents a serious and grave risk of prejudice to those objectives; (iii) proportionate to those objectives; (b) before taking the measures in question and without prejudice to court proceedings, including preliminary proceedings and acts carried out in the framework of a criminal investigation, the Member State has: - asked the Member State referred to in paragraph 1 to take measures and the latter did not take such measures, or they were inadequate, - notified the Commission and the Member State referred to in paragraph 1 of its intention to take such measures.’
7 Article 4 of that directive provides: ‘1. Member States shall ensure that the taking up and pursuit of the activity of an information society service provider may not be made subject to prior authorisation or any other requirement having equivalent effect. 2. Paragraph 1 shall be without prejudice to authorisation schemes which are not specifically and exclusively targeted at information society services, or which are covered by Directive 97/13/EC of the European Parliament and of the Council of 10 April 1997 on a common framework for general authorisations and individual licences in the field of telecommunications services [OJ 1997 L 117, p. 15].’
8 Recital 21 of Directive 2006/123 states: ‘Transport services, including urban transport, taxis and ambulances as well as port services, should be excluded from the scope of this Directive.’
9 Pursuant to Article 2(2)(d) of that directive, it does not apply to services in the field of transport, including port services, falling within the scope of Title V of Part Three of the EC Treaty, which is now Title VI of Part Three of the FEU Treaty.
10 Article 3(1) of that directive provides: ‘If the provisions of this Directive conflict with a provision of another Community act governing specific aspects of access to or exercise of a service activity in specific sectors or for specific professions, the provision of the other Community act shall prevail and shall apply to those specific sectors or professions. These include: (a) Directive 96/71/EC [of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services (OJ 1997 L 18, p. 1)]; (b) Regulation (EEC) No 1408/71 [of the Council of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community, as amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996 (OJ 1997 L 28, p. 1)]; (c) Council Directive 89/552/EEC of 3 October 1989 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities [OJ 1989 L 298, p. 23]; (d) Directive 2005/36/ΕC [of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications (OJ 2005 L 255, p. 22)].’
11 Article 4(1) of Directive 2006/123 defines ‘service’ as any self-employed economic activity, normally provided for remuneration, as referred to in Article 57 TFEU.
12 Chapter III of that directive, which is headed ‘Freedom of Establishment for Providers’, contains Articles 9 to 15. Article 9 provides: ‘1. Member States shall not make access to a service activity or the exercise thereof subject to an authorisation scheme unless the following conditions are satisfied: (a) the authorisation scheme does not discriminate against the provider in question; (b) the need for an authorisation scheme is justified by an overriding reason relating to the public interest; (c) the objective pursued cannot be attained by means of a less restrictive measure, in particular because an a posteriori inspection would take place too late to be genuinely effective. 2. In the report referred to in Article 39(1), Member States shall identify their authorisation schemes and give reasons showing their compatibility with paragraph 1 of this Article. 3. This section shall not apply to those aspects of authorisation schemes which are governed directly or indirectly by other Community instruments.’
13 Under Article 10(1) and (2) of Directive 2006/123: ‘1. Authorisation schemes shall be based on criteria which preclude the competent authorities from exercising their power of assessment in an arbitrary manner. 2. The criteria referred to in paragraph 1 shall be: (a) non-discriminatory; (b) justified by an overriding reason relating to the public interest; (c) proportionate to that public interest objective; (d) clear and unambiguous; (e) objective; (f) made public in advance; (g) transparent and accessible.’
14 Chapter IV of that directive, relating to free movement of services, contains Article 16, which provides: ‘1. Member States shall respect the right of providers to provide services in a Member State other than that in which they are established. The Member State in which the service is provided shall ensure free access to and free exercise of a service activity within its territory. Member States shall not make access to or exercise of a service activity in their territory subject to compliance with any requirements which do not respect the following principles: (a) non-discrimination: the requirement may be neither directly nor indirectly discriminatory with regard to nationality or, in the case of legal persons, with regard to the Member State in which they are established; (b) necessity: the requirement must be justified for reasons of public policy, public security, public health or the protection of the environment; (c) proportionality: the requirement must be suitable for attaining the objective pursued, and must not go beyond what is necessary to attain that objective. 2. Member States may not restrict the freedom to provide services in the case of a provider established in another Member State by imposing any of the following requirements: (a) an obligation on the provider to have an establishment in their territory; (b) an obligation on the provider to obtain an authorisation from their competent authorities including entry in a register or registration with a professional body or association in their territory, except where provided for in this Directive or other instruments of Community law; (c) a ban on the provider setting up a certain form or type of infrastructure in their territory, including an office or chambers, which the provider needs in order to supply the services in question; (d) the application of specific contractual arrangements between the provider and the recipient which prevent or restrict service provision by the self-employed; (e) an obligation on the provider to possess an identity document issued by its competent authorities specific to the exercise of a service activity; (f) requirements, except for those necessary for health and safety at work, which affect the use of equipment and material which are an integral part of the service provided; (g) restrictions on the freedom to provide the services referred to in Article 19.’
15 Article 1(1)(b), (e) and (f) of Directive 2015/1535 provides: ‘1. For the purposes of this Directive, the following definitions apply: … (b) “service” means any Information Society service, that is to say, any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services. For the purposes of this definition: (i) “at a distance” means that the service is provided without the parties being simultaneously present; (ii) “by electronic means” means that the service is sent initially and received at its destination by means of electronic equipment for the processing (including digital compression) and storage of data, and entirely transmitted, conveyed and received by wire, by radio, by optical means or by other electromagnetic means; (iii) “at the individual request of a recipient of services” means that the service is provided through the transmission of data on individual request. … (e) “rule on services” means a requirement of a general nature relating to the taking-up and pursuit of service activities within the meaning of point (b), in particular provisions concerning the service provider, the services and the recipient of services, excluding any rules which are not specifically aimed at the services defined in that point. For the purposes of this definition: (i) a rule shall be considered to be specifically aimed at Information Society services where, having regard to its statement of reasons and its operative part, the specific aim and object of all or some of its individual provisions is to regulate such services in an explicit and targeted manner; (ii) a rule shall not be considered to be specifically aimed at Information Society services if it affects such services only in an implicit or incidental manner; (f) “technical regulation” means technical specifications and other requirements or rules on services, including the relevant administrative provisions, the observance of which is compulsory, de jure or de facto, in the case of marketing, provision of a service, establishment of a service operator or use in a Member State or a major part thereof, as well as laws, regulations or administrative provisions of Member States, except those provided for in Article 7, prohibiting the manufacture, importation, marketing or use of a product or prohibiting the provision or use of a service, or establishment as a service provider. …’
16 The first subparagraph of Article 5(1) of that directive provides: ‘Subject to Article 7, Member States shall immediately communicate to the Commission any draft technical regulation, except where it merely transposes the full text of an international or European standard, in which case information regarding the relevant standard shall suffice; they shall also let the Commission have a statement of the grounds which make the enactment of such a technical regulation necessary, where those grounds have not already been made clear in the draft.’
17 Under the second paragraph of Article 10 of that directive: ‘References to the repealed Directive [98/34] shall be construed as references to this Directive and shall be read in accordance with the correlation table in Annex IV.’
18 Article 11 of Legea nr. 38/2003 privind transportul în regim de taxi și în regim de închiriere (Law No 38/2003 on transport by taxi and hire vehicle) of 20 January 2003 (Monitorul Oficial al României, Part I, No 45 of 28 January 2003), in the version applicable to the facts of the main proceedings, provides: ‘… (j) taxi dispatching (“dispatching”) means an activity related to transport by taxi consisting in receiving customer bookings by telephone or other means and forwarding them to a taxi driver via a two-way radio.’
19 Article 15 of that law provides: ‘(1) Taxi dispatching may be carried on only within the area covered by the authorisation by any legal person (“the booking centre”) holding an authorisation granted by the competent authority in accordance with this law. (2) A taxi dispatching authorisation may be obtained by submitting the following documents: (a) a copy of the registration certificate issued by the commercial register; (b) a sworn declaration by the taxi or hire vehicle transport operator that the booking centre is equipped with the necessary technical means, a two-way radio, a secure radio frequency, authorised staff and the necessary spaces; (c) a copy of the radio telephony operator certificate for the employees of the taxi booking centre issued by the competent communications authority; (d) a copy of the licence to use radio frequencies issued by the competent authority. … (5) Authorised carriers providing taxi services shall use a booking centre in accordance with this law on the basis of a dispatching agreement concluded with that centre under non-discriminatory conditions. (6) Dispatching services shall be mandatory for all taxis of authorised carriers operating in an area other than areas where less than 100 taxi licences have been issued, where that service is optional. … (8) Taxi dispatching agreements concluded with authorised carriers must contain terms setting out the parties’ obligations to comply with the rules on quality and legality of the service provided and the agreed fares. (9) Taxis served by a booking centre may provide transport services on the basis of a flat fare or fare scale depending on vehicle category, in accordance with the dispatching agreement. (10) The booking centre shall supply the authorised carriers it serves with a two-way radio for installation in taxis on the basis of a lease agreement concluded under non-discriminatory conditions.’
20 In the municipality of Bucharest, taxi services are regulated by the Hotărârea Consiliului General al Municipiului București nr. 178/2008 privind aprobarea Regulamentului cadru, a Caietului de sarcini și a contractului de atribuire în gestiune delegată pentru organizarea și executarea serviciului public de transport local în regim de taxi (Decision No 178/2008 of the General Council of the Municipality of Bucharest approving the framework regulation, contract documents and concession agreement for the delegated management of the organisation and provision of local public taxi services) of 21 April 2008, as amended by Decision No 626/2017 of the General Council of the Municipality of Bucharest of 19 December 2017 (‘Decision No 178/2008’).
21 Article 3(1) of Annex 1 to Decision No 178/2008 provides: ‘The terms and concepts used and defined in Law No 38/2003 have the same meaning herein and, for the purposes of this framework regulation, the following definitions shall apply: … (i1) dispatching by any other means: activity carried out by a booking centre authorised by the competent authority to receive bookings from customers by means of an IT application or bookings made on the website of an authorised booking centre and to forward them to taxi drivers via a two-way radio. (i2) IT application: software installed and functioning on a mobile or fixed device, belonging exclusively to the authorised booking centre and bearing its name. …’
22 Article 21 of that annex is worded as follows: ‘(1) In the municipality of Bucharest, dispatching services shall be mandatory for all taxis of authorised carriers and may be provided only by booking centres authorised by the competent authorisation authority of the municipality of Bucharest, under conditions ensuring that customers are able to request those services by telephone or other means, including through applications connected to the internet that must bear the name of the booking centre appearing in the dispatching authorisation granted by the competent authorisation authority of the municipality of Bucharest. … (31) Dispatching services shall be mandatory for all taxis of authorised carriers operating a taxi in the municipality of Bucharest and may be provided only by booking centres authorised by the competent authorisation authority of the municipality of Bucharest, under conditions ensuring that customers are able to request those services by telephone or other means (IT applications, bookings made on the website of a booking centre) and to forward them to taxi drivers via a two-way radio.’
23 Article 41(21) of that annex provides: ‘In exercising the activity of providing taxi services, taxi drivers are required, inter alia, to refrain from using telephones or other mobile devices when providing the transport service.’
24 Point 61 of Article 59 of the same annex provides: ‘Failure to comply with the obligations laid down in Article 21(31), which are applicable to all comparable activities irrespective of the way and the circumstances in which they are carried out, resulting in an unauthorised driver or an authorised taxi carrier being contacted to transport a person or group of persons in the municipality of Bucharest, shall be punishable by a fine of between 4500 and 5000 [Romanian lei (RON) (approximately EUR 925 and EUR 1025)].’
25 Star Taxi App is a company incorporated under Romanian law, established in Bucharest, which operates a smartphone application of the same name connecting users of taxi services directly with taxi drivers.
26 The referring court describes the operation of the application, which can be downloaded free of charge, as follows.
27 A person wishing to make an urban journey searches using the application and is provided with a list of available taxi drivers showing five or six types of car at different rates. The passenger can choose a driver from the list on the basis of the comments and ratings provided by previous passengers, and also has the option not to proceed with the booking. Star Taxi App does not forward bookings to taxi drivers, however, nor does it set the fare, which is paid directly to the driver at the end of the journey.
28 Star Taxi App provides this service by entering into direct contracts for the provision of services with taxi drivers authorised to provide transport by taxi on a professional basis. It does not select those drivers. The purpose of the contracts is to provide the drivers with an IT application, called ‘STAR TAXI - driver’, a smartphone on which the application has been installed, and a SIM card including a limited amount of data, in exchange for a monthly subscription fee. Furthermore, Star Taxi App does not exercise any control over the quality of the vehicles or their drivers, or over the drivers’ conduct.
29 On 19 December 2017, the General Council of the Municipality of Bucharest adopted Decision No 626/2017 on the basis of Law No 38/2003.
30 In that regard, the referring court states that that decision inserted points (i1) and (i2) into Article 3 of Annex 1 to Decision No 178/2008, expanding the definition of the ‘dispatching’ activity subjected to the prior authorisation provided for by Law No 38/2003 to activities of the same kind carried out by means of an IT application. Through an amendment to Article 21 of that annex, Decision No 626/2017 also made dispatching services mandatory for all taxis of authorised carriers. Accordingly, such services can be provided only by taxi booking centres authorised by the competent authority, under conditions ensuring that customers are able to request those services by telephone or other means, including applications connected to the internet. These must bear the name of the booking centre appearing in the dispatching authorisation granted by the competent authority. Finally, that same decision inserted Article 59 point (61) into Decision No 178/2008, providing that failure to comply with those obligations is to be punishable henceforth by a fine of between RON 4500 and RON 5000 (approximately EUR 925 and EUR 1025).
31 Star Taxi App was fined RON 4500 (approximately EUR 925) for infringement of those rules.
32 Taking the view, however, that its activity constituted an information society service, which, under Article 4 of Directive 2000/31, cannot be made subject to prior authorisation or any other requirement having equivalent effect, Star Taxi App made a prior administrative complaint seeking revocation of Decision No 626/2017. That complaint was rejected on the ground that the regulations at issue had been made necessary by the considerable number of bookings made with unauthorised legal entities, and that the regulations did not infringe the freedom to provide services by electronic means since they laid down a framework for an intermediation service relating to the transport of passengers by taxi.
33 Star Taxi App then brought an action for annulment of Decision No 626/2017 before the Tribunalul București (Regional Court, Bucharest, Romania).
34 The referring court observes that the service at issue in the proceedings it is dealing with differs from that at issue in the case which gave rise to the judgment of 20 December 2017, Asociación Profesional Elite Taxi (C‑434/15, EU:C:2017:981), in which, it notes, the Court held that an intermediation service, the purpose of which was to connect, by means of a smartphone application and for remuneration, non-professional drivers using their own vehicle with persons wishing to make urban journeys, was to be classified as a ‘service in the field of transport’ within the meaning of Article 2(2)(d) of Directive 2006/123, and thus fell outside the scope of the freedom to provide services in general, and more specifically, that of Directive 2006/123 and Directive 2000/31. In contrast to the service provider at issue in that case, Star Taxi App does not select non-professional drivers using their own vehicle, but enters into contracts for the provision of services with drivers authorised to provide transport by taxi on a professional basis, not determining the fare for the journey or collecting it from the passenger, who pays it directly to the driver, or exercising control over the quality of the vehicles or their drivers, or over the conduct of the drivers.
35 Nevertheless, the referring court is uncertain whether the service provided by Star Taxi App is to be classified as an ‘information society service’ and, if so, whether regulations making the provision of such a service subject to prior authorisation are compatible with Directive 2000/31 and must be communicated to the Commission prior to adoption, in accordance with Article 5 of Directive 2015/1535.
36 In those circumstances the Tribunalul București (Regional Court, Bucharest) decided to stay the proceedings before it and refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) [Are the provisions of point 2 of the first paragraph of Article 1 of Directive 98/34 and Article 2(a) of Directive 2000/31], which state that an information society service is a “service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services”, to be interpreted as meaning that an activity such as that carried on by Star Taxi App SRL (namely a service consisting in putting taxi passengers directly in touch, via an electronic application, with taxi drivers) must be regarded specifically as an information society and collaborative economy service (bearing in mind that Star Taxi App SRL does not fulfil the criteria for being a transport undertaking considered by the Court of Justice of the European Union in paragraph 39 of its judgment [of 20 December 2017, Asociación Profesional Elite Taxi (C‑434/15, EU:C:2017:981)], with reference to Uber)? (2) In the event that [the application operated by] Star Taxi App SRL is to be regarded as an information society service, do the provisions of Article 4 of Directive [2000/31], of Articles 9, 10 and 16 of Directive [2006/123] and of Article 56 TFEU entail the application of the principle of the freedom to provide services to the activity carried on by Star Taxi App SRL? If the answer to that question is in the affirmative, do those provisions preclude rules such as those set out in [Article 3, Article 21(1) and (31), Article 41(21) and Article 59, point 61 of Annex I to Decision No 178/2008]? (3) In the event that Directive [2000/31] applies to the service provided by Star Taxi App SRL, are restrictions imposed by a Member State on the freedom to provide information society services, which make the provision of such services conditional on the possession of an authorisation or licence, measures [which may derogate from Article 3(2) of the directive, pursuant to Article 3(4) thereof]? (4) Do the provisions of Article 5 of Directive [2015/1535] preclude the adoption, without first notifying the … Commission, of regulations such as [those set out in Article 3, Article 21(1) and (31), Article 41(21) and Article 59, point 61 of Annex I to Decision No 178/2008]?’
37 Having decided to rule without a hearing owing to the health risks associated with the coronavirus pandemic, the Court sent a number of questions to the interested parties referred to in Article 23 of the Statute of the Court of Justice of the European Union, to be answered in writing. Answers were received from Star Taxi App and the Commission.
38 As a preliminary point, it should be noted, first, that the referring court refers in the first question to point 2 of the first paragraph of Article 1 of Directive 98/34. However, that directive was repealed and replaced, prior to the adoption of Decision No 626/2017, by Directive 2015/1535. The second paragraph of Article 10 of the latter directive provides that references to Directive 98/34 are to be construed as references to Directive 2015/1535. Accordingly, for the purposes of this question reference must be made to Article 1(1)(b) of the latter directive.
39 Secondly, the referring court confines itself in its question to stating that the activity at issue in the main proceedings is a service which consists in putting taxi passengers directly in touch, via an electronic application, with taxi drivers, but which, nonetheless, does not meet the criteria identified by the Court in paragraph 39 of the judgment of 20 December 2017, Asociación Profesional Elite Taxi (C‑434/15, EU:C:2017:981).
40 However, as set out in paragraphs 26 to 28 and 34 of this judgment, the court gives more detail as to the organisation of the activity at issue in the order for reference. What is in fact at issue in the main proceedings is an intermediation service, provided by way of a smartphone application, putting persons wishing to take taxis in touch with authorised taxi drivers. It also states that the drivers must pay a monthly subscription fee for the use of the application, but that the service provider does not forward bookings to them directly or determine the fare for the journey, and does not act as an intermediary for the payment. That information must thus be fully taken into account in answering the first question.
41 Hence, the first question must be understood as asking, in essence, whether Article 2(a) of Directive 2000/31, which refers to Article 1(1)(b) of Directive 2015/1535, must be interpreted as meaning that an intermediation service which consists in putting persons wishing to make urban journeys in touch, by means of a smartphone application and in exchange for remuneration, with authorised taxi drivers, for the purposes of which the service provider has entered into contracts for the provision of services with those drivers, in consideration of the payment of a monthly subscription fee, but does not forward the bookings to them, does not determine the fare for the journey or collect it from the passengers, who pay it directly to the taxi driver, and exercises no control over the quality of the vehicles and their drivers, or over the conduct of the drivers, constitutes an ‘information society service’ within the meaning of those provisions.
42 Under Article 1(1)(b) of Directive 2015/1535, an ‘information society service’ is ‘any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services’.
43 It should be stated - and this is not disputed by any of the parties or any of the other interested parties involved in the present proceedings - that the intermediation activity at issue in the main proceedings comes within the concept of ‘service’ within the meaning of Articles 56 and 57 TFEU.
44 Furthermore, it is clear, first, that such an intermediation service satisfies the first condition laid down in Article 1(1)(b) of Directive 2015/1535, namely that it is provided for remuneration (see, by analogy, judgment of 19 December 2019, Airbnb Ireland, C‑390/18, EU:C:2019:1112, paragraph 46).
45 In that regard, it is of no consequence that such a service is provided free of charge to the person wishing to make or making an urban journey, if it gives rise to the conclusion of a contract for the provision of services between the service provider and the individual authorised taxi driver, under which the driver pays a monthly subscription fee. It is settled case-law that the remuneration of a service supplied by a service provider within the course of its economic activity does not require the service to be paid for by all of those for whom it is performed (see, to that effect, judgments of 15 September 2016, Mc Fadden, C‑484/14, EU:C:2016:689, paragraph 41, and of 4 May 2017, Vanderborght, C‑339/15, EU:C:2017:335, paragraph 36).
46 Next, in so far as the person wishing to make an urban journey and an authorised taxi driver are put in touch by means of an electronic platform, without the intermediation service provider, on the one hand, or the intending passenger or driver, on the other, being present at the same time, that service must be regarded as being provided electronically and at a distance (see, by analogy, judgment of 19 December 2019, Airbnb Ireland, C‑390/18, EU:C:2019:1112, paragraph 47), for the purposes of the second and third conditions laid down in Article 1(1)(b) of Directive 2015/1535.
47 Finally, a service such as that at issue in the main proceedings is supplied at the individual request of recipients of the service, for the purposes of the fourth condition laid down in that provision, since it involves, simultaneously, a request made by means of the Star Taxi software application, by the person wishing to make an urban journey, and a connection to that application by the authorised taxi driver, indicating that he or she is available.
48 Such a service therefore meets the four cumulative conditions laid down in Article 1(1)(b) of Directive 2015/1535 and accordingly, in principle, constitutes an ‘information society service’ within the meaning of Directive 2000/31.
49 However, as is apparent from the Court’s case-law, although an intermediation service which satisfies all of those conditions, in principle, constitutes a service distinct from the subsequent service to which it relates, in the present case a transport service, and must therefore be classified as an ‘information society service’, that cannot be the case if it appears that that intermediation service forms an integral part of an overall service whose main component is a service coming under another legal classification (judgment of 19 December 2019, Airbnb Ireland, C‑390/18, EU:C:2019:1112, paragraph 50 and the case-law cited).
50 In that regard, the Court has held that, where the provider of an intermediation service offers urban transport services which it renders accessible, in particular, through software tools, and whose general operation it organises for the benefit of persons who wish to accept that offer, the intermediation service provided must be regarded as forming an integral part of an overall service whose main component is a transport service and, accordingly, must be classified not as ‘an information society service’ within the meaning of Article 2(a) of Directive 2000/31, which refers to Article 1(1)(b) of Directive 2015/1535, but as ‘a service in the field of transport’ within the meaning of Article 2(2)(d) of Directive 2006/123, to which Directive 2000/31, Directive 2006/123 and Article 56 TFEU are inapplicable (judgment of 20 December 2017, Asociación Profesional Elite Taxi, C‑434/15, EU:C:2017:981, paragraphs 38 to 44).
51 However, in view of its characteristics, an intermediation service such as that at issue in the main proceedings cannot be classified as ‘a service in the field of transport’, contrary to the submission of the municipality of Bucharest.
52 First, it is apparent from the order for reference that, unlike the intermediation service at issue in the case which gave rise to the judgment of 20 December 2017, Asociación Profesional Elite Taxi (C‑434/15, EU:C:2017:981), which offered and rendered accessible urban transport services operated by non-professional drivers previously absent from the market, the service at issue in the main proceedings is confined, as the Advocate General observed in point 49 of his Opinion, to putting persons wishing to make urban journeys in touch solely with authorised taxi drivers already engaged in that activity and for whom the intermediation service is merely one of a number of methods of acquiring customers, and not one, moreover, which they are in any way obliged to use.
53 Secondly, such an intermediation service cannot be regarded as organising the general operation of the urban transport service subsequently provided, since the service provider does not select the taxi drivers, or determine or receive the fare for the journey, or exercise control over the quality of the vehicles and their drivers or the drivers’ conduct.
54 It follows that an intermediation service such as that provided by Star Taxi App cannot be regarded as an integral part of an overall service whose main component is a transport service and is, accordingly, to be classified as an ‘information society service’ within the meaning of Article 2(a) of Directive 2000/31.
55 In the light of the foregoing, the answer to the first question is that Article 2(a) of Directive 2000/31, which refers to Article 1(1)(b) of Directive 2015/1535, must be interpreted as meaning that an intermediation service which consists in putting persons wishing to make urban journeys in touch, by means of a smartphone application and in exchange for remuneration, with authorised taxi drivers, for the purposes of which the service provider has entered into contracts for the provision of services with those drivers, in consideration of the payment of a monthly subscription fee, but does not forward the bookings to them, does not determine the fare for the journey or collect it from the passengers, who pay it directly to the taxi driver, and exercises no control over the quality of the vehicles or their drivers, or over the conduct of the drivers, constitutes an ‘information society service’ within the meaning of those provisions.
56 By its fourth question, the referring court asks whether Article 5(1) of Directive 2015/1535 precludes the adoption, without first notifying the Commission, of regulations such as those at issue in the main proceedings, in the present case, those set out in Article 3, Article 21(1) and (31), Article 41(21) and Article 59, point 61 of Annex I to Decision No 178/2008.
57 It should be noted that Article 5(1) of Directive 2015/1535 provides that, in principle, the Member States must immediately communicate to the Commission any draft ‘technical regulation’, within the meaning of Article 1(1)(f) of that directive and that, in accordance with settled case-law, failure by a Member State to comply with its obligation to communicate such a draft regulation in advance renders the ‘technical regulation’ unenforceable against individuals (see, to that effect, judgment of 30 April 1996, CIA Security International, C‑194/94, EU:C:1996:172, paragraphs 49 and 50), be it in criminal proceedings (see, inter alia, judgment of 4 February 2016, Ince, C‑336/14, EU:C:2016:72, paragraph 84), or in proceedings between individuals (see, inter alia, judgment of 27 October 2016, James Elliott Construction, C‑613/14, EU:C:2016:821, paragraph 64 and the case-law cited).
58 Hence, the obligation to communicate the draft in advance applies only where it relates to a technical regulation within the meaning of Article 1(1)(f) of that directive.
59 Accordingly, by its fourth question the referring court should be regarded as asking, in essence, whether Article 1(1)(f) of Directive 2015/1535 is to be interpreted as meaning that local authority legislation which makes the supply of an intermediation service, the purpose of which is to put persons wishing to make urban journeys in touch, by means of a smartphone application and in exchange for remuneration, with authorised taxi drivers, and which is classified as an ‘information society service’ within the meaning of Article 1(1)(b) of Directive 2015/1535, subject to obtaining prior authorisation, which is already applicable to other taxi reservation service providers, constitutes a ‘technical regulation’, within the meaning of that provision, and if so, whether Article 5(1) of Directive 2015/1535 must be interpreted as meaning that a failure to communicate the draft of that legislation to the Commission in advance renders the regulations unenforceable.
60 As to the classification of such regulations, it is apparent from the first subparagraph of Article 1(1)(f) of Directive 2015/1535 that a ‘technical regulation’ means ‘technical specifications and other requirements or rules on services, including the relevant administrative provisions, the observance of which is compulsory, de jure or de facto, in the case of marketing, provision of a service, establishment of a service operator or use in a Member State or a major part thereof, as well as laws, regulations or administrative provisions of Member States, except those provided for in Article 7, prohibiting the manufacture, importation, marketing or use of a product or prohibiting the provision or use of a service, or establishment as a service provider’.
61 It follows that, in order for national legislation affecting an information society service to be classified as a ‘technical regulation’, it must not only be classified as a ‘rule on services’ as defined in Article 1(1)(e) of Directive 2015/1535, but must also be compulsory, de jure or de facto, in the case, inter alia, of the provision of the service in question or its use in a Member State or a major part of that State.
62 The first subparagraph of Article 1(1)(e) of that directive defines a ‘rule on services’ as ‘a requirement of a general nature relating to the taking-up and pursuit of activities [relating to information society services], in particular provisions concerning the service provider, the services and the recipient of services, excluding any rules which are not specifically aimed at [information society services]’.
63 The second subparagraph of that provision states that for the purposes of that definition, ‘a rule shall be considered to be specifically aimed at Information Society services where, having regard to its statement of reasons and its operative part, the specific aim and object of all or some of its individual provisions is to regulate such services in an explicit and targeted manner’. It also adds that ‘a rule shall not be considered to be specifically aimed at Information Society services if it affects such services only in an implicit or incidental manner’.
64 In the present case, it is apparent from the order for reference that the Romanian legislation at issue in the main proceedings, whether Law No 38/2003 or Decision No 178/2008, does not make any reference to information society services. Furthermore, Article 3, Article 21(1) and (31) and Article 41(21) of Annex I to Decision No 178/2008 relate indiscriminately to all types of dispatching services, whether supplied by telephone or any other means, such as a software application.
65 Furthermore, as the Advocate General pointed out in point 108 of his Opinion, Law No 38/2003 requires providers of dispatching services operating by means of a smartphone application, just like all other providers of dispatching services, to possess equipment, in this case two-way radios, which, given the technology used to provide the service, serves no useful purpose.
66 Accordingly, since it is not specifically aimed at information society services, regulations such as those at issue in the main proceedings affect such services only in an implicit or incidental manner. Such a rule cannot, therefore, be regarded as a ‘rule on services’ within the meaning of Article 1(1)(e) of Directive 2015/1535, or, consequently, as a ‘technical regulation’ within the meaning of Article 1(1)(f) of that directive.
67 It follows that the obligation to communicate drafts of ‘technical regulations’ to the Commission in advance, laid down in Article 5(1) of Directive 2015/1535, does not apply to such regulations, and accordingly that the failure to communicate a draft of that nature cannot, by virtue of that provision, have any consequences as regards the enforceability of the intended regulations in a case such as that at issue in the main proceedings.
68 In the light of the foregoing, the answer to the fourth question is that Article 1(1)(f) of Directive 2015/1535 must be interpreted as meaning that local authority legislation which makes the supply of an intermediation service, the purpose of which is to put persons wishing to make urban journeys in touch, by means of a smartphone application and in exchange for remuneration, with authorised taxi drivers, and which is classified as an ‘information society service’ within the meaning of Article 1(1)(b) of Directive 2015/1535, subject to obtaining prior authorisation, which is already applicable to other taxi reservation service providers, does not constitute a ‘technical regulation’ within the meaning of the former provision.
69 By its second and third questions, the referring court asks, in essence, whether Article 3(2) and (4) and Article 4 of Directive 2000/31, Articles 9, 10 and 16 of Directive 2006/123 and Article 56 TFEU must be interpreted as precluding legislation of a Member State which makes the supply of an intermediation service, the purpose of which is to put persons wishing to make urban journeys in touch, by means of a smartphone application and in exchange for remuneration, with authorised taxi drivers, and which is classified as an ‘information society service’ within the meaning of Article 1(1)(b) of Directive 2015/1535, which is referred to in Article 2(a) of Directive 2000/31, subject to obtaining prior authorisation, which is already applicable to other taxi reservation service providers, such authorisation being conditional, inter alia, on bookings being communicated to drivers by two-way radio.
70 As a preliminary point, it should be observed that the dispute in the main proceedings is between Star Taxi App, a company incorporated under Romanian law and established in Romania, and two Romanian public authorities, namely the municipality of Bucharest and the General Council of the Municipality of Bucharest, and accordingly that the dispute is confined in all respects within Romania.
71 It is established case-law that the provisions of the FEU Treaty on the freedom to provide services do not apply to a situation which is confined in all respects within a single Member State (judgment of 15 November 2016, Ullens de Schooten, C‑268/15. EU:C:2016:874, paragraph 47 and the case-law cited).
72 It is also apparent from the wording of Article 3(2) of Directive 2000/31 that that provision only applies to information society services from another Member State, with Article 3(4) providing, subject to the conditions it sets out, for Member States to take measures derogating from that provision.
73 The same applies to Article 16 of Directive 2006/123, which appears in Chapter IV of that directive, concerning free movement of services, and which only applies to services supplied in a Member State other than that in which the service provider is established, in contrast to the provisions of Chapter III of that directive, concerning freedom of establishment for providers, namely Articles 9 to 15 of the directive, which also apply to a situation in which all the relevant elements are confined to a single Member State (judgment of 22 September 2020, Cali Apartments and HX, C‑724/18 and C‑727/18, EU:C:2020:743, paragraph 56 and the case-law cited).
74 Consequently, Article 56 TFEU, Article 3(2) and (4) of Directive 2000/31 and Article 16 of Directive 2006/123 are not applicable to a dispute such as that at issue in the main proceedings.
75 As regards the other provisions referred to by the referring court, namely Article 4 of Directive 2000/31, neither the wording nor the context of which indicate that it would apply only to providers of information services established in another Member State (see, by analogy, judgment of 30 January 2018, X and Visser, C‑360/15 and C‑31/16, EU:C:2018:44, paragraphs 99 and 100), and Articles 9 and 10 of Directive 2006/123, which, as has been observed in paragraph 73 above, also apply to purely internal situations, it must be stated that, in different ways, they lay down a principle of prohibiting authorisation schemes. In those circumstances, it has to be determined which of those provisions may be applicable to regulations such as those at issue in the main proceedings.
76 As is apparent from paragraphs 43 and 48 above, the intermediation service at issue in the main proceedings is not only a ‘service’ within the meaning of Article 57 TFEU, and therefore of Article 4(1) of Directive 2006/123, but is also an ‘information society service’ within the meaning of Article 2(a) of Directive 2000/31, which refers to Article 1(1)(b) of Directive 2015/1535.
77 Regulations of a Member State which govern such a service may therefore fall within the scope of Directive 2000/31, as well as that of Directive 2006/123, in so far as it follows from paragraphs 49 and 54 above that that service is not a ‘service in the field of transport’, expressly excluded from the scope of Directive 2006/123 by Article 2(2)(d), read in the light of recital 21 thereof.
78 However, under Article 3(1) of Directive 2006/123, that directive does not apply if its provisions conflict with a provision of another EU act governing specific aspects of access to or exercise of a service activity in specific sectors or for specific professions (judgment of 19 December 2019, Airbnb Ireland, C‑390/18, EU:C:2019:1112, paragraph 41).
79 It is therefore important to determine whether regulations which make the supply of an intermediation service, the purpose of which is to put persons wishing to make urban journeys in touch, by means of a smartphone application and in exchange for remuneration, with authorised taxi drivers, and which is classified as an ‘information society service’ within the meaning of Article 1(1)(b) of Directive 2015/1535, which is referred to in Article 2(a) of Directive 2000/31, subject to obtaining prior authorisation, which is already applicable to other taxi reservation service providers, such authorisation being conditional, inter alia, on bookings being communicated to drivers over a two-way radio, fall within the scope of Article 4 of Directive 2000/31 and, if so, whether that latter provision conflicts with Articles 9 and 10 of Directive 2006/123.
80 As regards the applicability of Article 4 of Directive 2000/31, it is apparent from reading paragraphs 1 and 2 of that article together that while the Member States may not make the taking up and pursuit of the activity of an information society service provider subject to prior authorisation or any other requirement having equivalent effect, the prohibition contained in that provision nevertheless concerns only regulations of Member States which are specifically and exclusively targeted at ‘information society services’.
81 It is apparent from the order for reference that, while it is undoubtedly the case that Decision No 626/2017 relates, principally if not exclusively, to intermediation services, the purpose of which is to put persons wishing to make urban journeys in touch, by means of a smartphone application and in exchange for remuneration, with authorised taxi drivers, it does no more, in broadening the scope of the term ‘dispatching’ as defined in Article 3 of Annex 1 to Decision No 178/2008 so as to encompass that type of service, than to extend to that information society service a pre-existing requirement for prior authorisation applicable to the activities of taxi reservation centres, activities which do not fall within the classification of ‘information society services’.
82 Accordingly, as the Advocate General stated in point 69 of his Opinion, such regulations, which, the referring court observes, have the effect of requiring Star Taxi App to obtain prior authorisation for the pursuit of its activity from the competent authority, does not amount to the creation of a new prior authorisation scheme specifically and exclusively targeted at an information society service.
83 It follows that the prohibition on any prior authorisation or other requirement having equivalent effect, laid down in Article 4(1) of Directive 2000/31, does not apply to regulations such as those at issue in the main proceedings.
84 Accordingly, there is no possibility of conflict between that provision and Articles 9 and 10 of Directive 2006/123, which, therefore, are applicable to such regulations.
85 It must therefore be determined whether those articles are to be interpreted as precluding such regulations.
86 In that regard, it is apparent from Section 1 of Chapter III of Directive 2006/123 that the compliance of a national authorisation scheme with the requirements laid down by that directive presupposes, in particular, that such a scheme, which, by its very nature restricts the freedom to provide the service concerned, satisfies the conditions set out in Article 9(1) of that directive, namely it is non-discriminatory, justified by an overriding reason relating to the public interest, and proportionate, but also that the criteria for granting the authorisations provided for by that scheme are in line with Article 10(2) of that directive, namely they are non-discriminatory, justified by an overriding reason in the public interest, proportionate to that public interest objective, clear and unambiguous, objective, made public in advance, and transparent and accessible (judgment of 22 September 2020, Cali Apartments and HX, C‑724/18 and C‑727/18, EU:C:2020:743, paragraph 57).
87 It follows that the assessment of whether legislation of a Member State establishing such an authorisation scheme is in line with the two articles referred to in the preceding paragraph, which lay down clear, precise and unconditional obligations giving them direct effect, presupposes that separate and consecutive assessments must be made of, first, whether the very principle of establishing that scheme is justified, and, then, the criteria for granting the authorisations provided for by that scheme (judgment of 22 September 2020, Cali Apartments and HX, C‑724/18 and C‑727/18, EU:C:2020:743, paragraph 58).
88 In that regard, it must be observed that the order for reference provides little by way of information that might enable the Court to provide an answer that is of use to the referring court.
89 It will therefore be for that court to assess, having regard to all relevant matters, whether the prior authorisation scheme established by the regulations at issue in the main proceedings does in fact satisfy the two sets of requirements referred to in paragraphs 86 and 87 above (see, by analogy, judgment of 22 September 2020, Cali Apartments and HX, C‑724/18 and C‑727/18, EU:C:2020:743, paragraph 78).
90 In relation, however, to the assessment of whether the criteria governing the exercise of the discretion of the competent authorities are justified, it should be observed, as the Advocate General noted in points 99 and 100 of his Opinion, that making the grant of an authorisation to provide a service subject to meeting technical requirements which are inappropriate for the service in question, and which therefore engender unjustified burdens and costs on providers of the service, cannot be compliant with Article 10(2) of Directive 2006/123.
91 In particular, that may be the case, which it is, however, for the referring court to verify, of an obligation imposed on providers of an intermediation service, the purpose of which is to put persons wishing to make urban journeys in touch, by means of a smartphone application and in exchange for remuneration, with authorised taxi drivers, to communicate bookings to the drivers over a two-way radio.
92 Not only does such an obligation, which requires both the intermediation service provider and the taxi drivers to possess such radio equipment, while also requiring the intermediation service provider to have specific personnel at its disposal to communicate bookings to the drivers, serve no useful purpose, but it also bears no relation to the characteristics of a service which relies entirely on the technical capacities of smartphones that make it possible, without direct human intervention, to determine the location of taxi drivers and their potential customers, and to put them in touch with one another automatically.
93 In the light of the foregoing, the second and third questions should be answered as follows: - Article 56 TFEU, Article 3(2) and (4) of Directive 2000/31 and Article 16 of Directive 2006/123 must be interpreted as not applying to a dispute in which all the relevant elements are confined to a single Member State. - Article 4 of Directive 2000/31 must be interpreted as not applying to regulations of a Member State which makes the provision of an intermediation service, the purpose of which is to put persons wishing to make urban journeys in touch, by means of a smartphone application and in exchange for remuneration, with authorised taxi drivers, and which is classified as an ‘information society service’ within the meaning of Article 2(a) of Directive 2000/31, which refers to Article 1(1)(b) of Directive 2015/1535, subject to obtaining prior authorisation, which is already applicable to other taxi reservation service providers. - Articles 9 and 10 of Directive 2006/123 must be interpreted as precluding regulations of a Member State which make the provision of an intermediation service, the purpose of which is to put persons wishing to make urban journeys in touch, by means of a smartphone application and in exchange for remuneration, with authorised taxi drivers, subject to obtaining prior authorisation to pursue their activity, where the conditions for obtaining the authorisation do not meet the requirements laid down in those articles, in that they impose, inter alia, technical requirements that are inappropriate for the service in question, which is a matter for the referring court to ascertain.
94 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.