Name of the act/s*

Legal framework of individual and remunerated passenger transport activity in vehicles uncharacterized, by means of electronic platforms (TVDE) - Act nº 45/2018, of 8^th October

Subject area

Electronic platforms for passenger transport services

Brief description of the contents of the act

The Act (so-called 'Uber law') establishes, on the one hand, the legal framework for the activity of individual and remunerated transport of passengers in 'ordinary' or unmarked vehicles based on electronic platforms. On the other hand, it regulates the activity of electronic platforms that organise and make available to users this mode of transport by providing intermediation services between users and TVDE operators.

Both the activities are subject to a licence issued by the Institute of Mobility and Transportation, I.P. This shall examine the application and give its decision within 30 working days, which shall be deemed to have been tacitly granted if no decision is taken within that period.

The new type of transport service is carried out through the articulation and coordination of «three operative figures»: i) the transport operators, which are the legal persons who provide, through their drivers, a transport service to users who submit their requests to an electronic platform of which the operators are members; ii) the drivers; and iii) the operators of the electronic platforms.

The transport operators are obliged to ensure full and permanent compliance with requirements relating to vehicles and drivers engaged in the provision of TVDE services and to labour, health and safety at work and social security legislation.

The operators of electronic platforms have the following constraints:

a)      They must certify compliance with the legal and regulatory requirements applicable to the vehicles;

b)     They are obliged to pay a contribution (to a percentage, between a minimum of 0,1 % and a maximum of 2 %, of the intermediation fee charged for all its operations), which is intended to compensate for the administrative costs of regulation and supervision of their activities and to stimulate the achievement of national objectives in the field of urban mobility;

c)      They must monthly report to the Mobility and Transport Authority information regarding their activities (notably the number of trips made, individually billed amounts and intermediation fees charged);

d)     They must have, and communicate to Institute of Mobility and Transportation, I.P., a representative for the Portuguese territory;

e)      They must, before the start of each trip and during its completion, provide users information on the terms and conditions of the services provided and, particularly, the price of the trip, the elements making up the calculation formula and their weighting factor; digital maps for real-time tracking of the vehicle path; and driver identification, including his/her unique TVDE driver registration number and photograph; …

As far as drivers are concerned, specific requirements are provided: they have to hold a category B driving license for more than three years; have to have completed a compulsory training course (defined by the Ordinance no. 293/2018, of 31 October), which is valid for five years; and be a holder of a TVDE motorist certificate. They must have a written contract with TVDE operators, who are their employers. They cannot work for more than ten hours within a 24-                -hour period, regardless of the number of platforms on which the TVDE driver provides services.

TVDE drivers are not allowed to pick up passengers on the street without an appointment through the electronic platform and they cannot drive in bus lanes and cannot stop at taxi ranks.

The TVDE service may be remunerated by applying one or more fares to the distance travelled and/or time spent on transport, or by applying a fixed price determined before the service was contracted. The fee charged by the operator of the electronic platform must not exceed 25 % of the value of the trip.

The provision of TVDE services cannot be refused except in limited cases expressly provided for and there is a specific duty to ensure the transport of passengers with reduced mobility and of their means of locomotion. Hence, users are protected as consumers of uncharacterized vehicles and as consumers of electronic platforms.

The activities of electronic platform operators, TVDE operators, as well as TVDE vehicles and drivers are subject to supervision and regulation by eight different authorities.

Infringements to several provisions are qualified as misdemeanours, which are punishable with fines ranging from € 2,000 to € 5,000 in the case of natural persons and from € 5,000 to € 15,000 in the case of legal or corporate persons. Depending on the seriousness of the offence and under the terms of the general regime of misdemeanours, the accessory sanction of prohibition of the exercise of the activity for a maximum period of two years may be applied.

Comment

The enactment of the Act n.º 45/2018 was preceded by many months of parliamentary discussion (Proposed Law 50/XIII - https://www.parlamento.pt/ActividadeParlamentar/Paginas/DetalheIniciativa.aspx?BID=40897), by clashes with the taxi sector (which activity is strictly regulated), and by judgments that determined to Uber Technologies, Inc., United States, the compliance with all the legislation relating to the licensing of road transport activities (Judgement of the District Court of Lisbon, First Section, of 24 April2015, Case no. 7730/15.0T8LSB, available at http://observador.pt/wp-content/uploads/2015/04/decisao-comarca-de-lisboa-uber.pdf; and Judgment of Lisbon Court of Appeal of 27 April 2017, Case no. 7730-15.0T8LSB.L1-8 (http://www.dgsi.pt/jtrl.nsf/-/0BC185DC4E2275DF802581290054C1D1).

The Act 45/2018 puts an end to the unconditional freedom to enter into the market of providing transport service mediated by online platforms. It introduced a "full package" regulation system, integrating mechanisms not only of prior control, but also of inspection and successive supervision ant it deals with questions concerning competition law, consumer protection and employment law, among others. It has brought more transparency and predictability to the use of the transport service.

Bearing in mind the Judgment of December 20, 2017, Case C‑434/15, Asociación Profesional Élite Taxi v. Uber Systems Spain SL and the Judgment of April 10, 2018, Case C-320/16, Uber France SAS – that qualified the services provided by Uber as “services in the field of transport” (respectively paragraph 41 and paragraph 21) -, it is possible to argue that the Portuguese regulation is in line with the ECJ case law, which stressed that these services are not “covered by Article 56 TFEU on the freedom to provide services in general but by Article 58(1) TFEU, a specific provision according to which ‘freedom to provide services in the field of transport shall be governed by the provisions of the Title relating to transport” (Case C‑434/15, no. 44).

The Act 45/2018 draws a clear distinction between electronic platforms operators and transport operators: the former intermediate the conclusion of urban transport contracts on demand; and the latter ones provide the transport service and are responsible for the activity of drivers. In addition, under the new regulation, the drivers have become professional drivers, whose employers are the transport operators.

In this legal framework, even if the electronic platforms operators exercise an important role or significant influence over the transport service, it is not certain whether they provide “services in the field of transport”. Nevertheless, the requirements they have to fulfil, namely the need of a licence, are quite demanding.

Advocate General Szpunar, in Conclusions delivered on 11 May 2017, Case C‑434/15, stated that he does not think that “the need to ensure the effectiveness of the rules on the provision of transport services stricto sensu can warrant the establishment, as a preventive measure, of the requirement to have authorisation for intermediation services in general”; and that [u]nlawful activities in that field can be countered only with a system of enforcement” (no 89).

From this perspective, there seems to be some excess in the Portuguese legislator's option for a «full control» of electronic platforms operators.

Secondary sources/ doctrinal works (if any)

Amado, João Leal and Moreira, Teresa Coelho - “La legge portoghese sul trasporto passeggeri tramite piattaforma elettronica: soggetti, rapporti e presunzioni”, Labour & Law Issues, 2019, LLI, Vol. 5, No. 1, 2019, pp. 47-79 (https://labourlaw.unibo.it/issue/view/804);

Carvalho, Joana Campos – “Online platforms: concept, role in the conclusion of contracts and current legal framework in Europe = Plataformas en línea: concepto, papel en la conclusión de contratos y marco legal actual en Europa”, Cuadernos de Derecho Transnacional, 2020, Vol. 12, No. 1, pp. 863-874 (https://e-revistas.uc3m.es/index.php/CDT/issue/view/595);

Carvalho, Jorge Morais - “Developments on Uber in Portugal”, EuCML, Reports, Journal of European Consumer and Market Law, 2015, 4, pp. 154-158;

Estancona Pérez, Araya Alicia - “La sentencia del Tribunal de Justicia de la Unión Europea de 20 de diciembre de 2017: (caso Uber) y su influencia en la iniciativa legislativa portuguesa”, Estudos de Direito do Consumidor, n. 14, 2018, pp. 53-94;

Leong, Hong Chen - “The ‘Uber’ Law”, Sérvulo Publications, 21 Aug 2018, article about the legalization of the new model of individual passenger transport service introduced in Portugal with the arrival of Uber (https://www.servulo.com/pt/investigacao-e-conhecimento/A-Lei-ldquoUberrdquo-Lei-n-452018-de-10-de-agosto/6264/);

Neves, Inês – “Os condutores da Uber: a presunção de culpa do condutor ‘por conta de outrem’, na responsabilidade civil por factos ilícitos”, Revista da Faculdade de Direito da Universidade do Porto, Porto, a.12-14 (2015-2019), pp. 285-308;

OECD/ITF, Regulation of for-fire passenger transport: Portugal in International Comparison (https://www.itf-oecd.org/regulation-hire-passenger-transport-portugal).

*Act citation /year and number

Act nº 45/2018, of 8^th October

Rectification Declaration No. 25-A/2018 republished (in the Portuguese official gazette on August 10^th) in its entirety the text, that was originally published contained inaccuracies vis-à-vis the final approved version of the law.

Enacted by

Parliament (Assembleia da República)

Official link to the text of the act

https://dre.pt/web/guest/pesquisa/-/search/116029380/details/maximized?p_p_auth=AQ25DNXo