BGH considers Uber Black to be anti-competitive

The I. Civil Senate of the Federal Court of Justice, which is responsible among other things for competition law, today ruled that the brokerage of rental cars via the app “UBER Black” is illegal and violates the UWG.

The complaint was filed by a cab operator from Berlin. The latter considered Uber’s offer to be anti-competitive due to a violation of the return requirement for rental cars (Section 49 (4) PBefG).

The latter had therefore initially sued Uber for injunctive relief. The district court upheld the claim and dismissed Uber’se. The Federal Court of Justice first asked the Court of Justice of the European Union for a preliminary ruling on the question of whether the service constituted a transport service not covered by the Union law provisions on the freedom to provide services (BGH, order of May 18, 2017 – I ZR 3/16 – Uber Black I). Following the decision of the Court of Justice of the European Union of December 20, 2017 on the “UBER Pop” service (C-434/15), the Federal Court of Justice has withdrawn its reference for a preliminary ruling.

The BGH therefore ruled that the use of the offending version of the app “UBER Black” violated Section 49 (1) of the German Civil Code. 4 sentence 2 PBefG. According to this provision, only driving orders that have been received in advance at the company’s place of business may be carried out with rental cars. In contrast, passengers can directly give driving orders to cab drivers. The condition that driving orders for rental cars must first be received at the entrepreneur’s place of business is not fulfilled if the driver receives the driving order directly, even if the company operating the rental car is informed at the same time.

In this interpretation, § 49 para. 4 sentence 2 PBefG vis-à-vis rental car companies and Uber is thus a constitutionally unobjectionable regulation on the exercise of a profession and is justified for the protection of cab traffic, for which – unlike for rental car companies – fixed transport tariffs apply and a contracting obligation exists.

Union law provisions would not prevent a ban on “UBER Black”. Concerns about a ban could arise in this respect solely from the Union rules on the freedom to provide services. However, these provisions do not apply to transport services. As in the case “UBER Pop” decided by the Court of Justice of the European Union on December 20, 2017, the switching service provided by the defendant by means of a smartphone application is an integral part of an overall service consisting mainly of a transport service. The significance of the Defendant’s services for the transportation service does not depend on whether the driver is private (UBER Pop) or professional (UBER Black) or whether the vehicle used for the trip is owned by a private person (UBER Pop) or a company (UBER Black).

In addition, Uber is liable as a participant for the competition violations of the rental car companies and drivers cooperating with it.