How might the controversy surrounding digital taxi service Uber - and the fallout - impact on the regulation of lawyers?
We have been buffeted by powerful European Union stories all week. The sight of groups of migrants in Calais clambering into trucks, and being ineffectively chased off by French police, reminds us as little else can that, for better or worse, we are tied to the fate of the rest of the continent.
There have been the endless negotiations over the Greek debt crisis, David Cameron’s first efforts at renegotiating the terms of the UK’s EU membership, and the US decision to move heavy military equipment closer to Russia.
But the current EU issue most relevant for lawyers was highlighted by the blockades and demonstrations in France over the online taxi service and app, Uber. Uber has been banned in various EU member states (it is facing legal action or strong restrictions in at least France, Italy, Germany, Spain, the Netherlands and Belgium), and there have been protests in London, too.
But it has hit back by lodging complaints with the European Commission against France and Germany, complaining that their ban violates, among other things, the Treaty articles on free provision of services and establishment, as well as articles in the Services Directive (2006/13).
The question at stake in the EU as elsewhere is whether Uber provides transport services (and so is subject to taxi regulations) or digital services as a platform linking customers to drivers (and so escapes taxi rules). The answer will decide which regime applies to it. You will not be surprised to hear that Uber argues that it is a digital service, and the taxi companies that it is a transport service.
The European Commission is investigating, and will only say for the time being: “Uber is a technological service, which impacts modes of transport”.
This week, the commissioner for the single market, Elzbieta Bienkowska, said that she would introduce legislation this year to resolve the issue. She pointed out that some member states permit Uber, and so the single market lacks a harmonised approach. She said that future action would include other players, such as Airbnb – another good example of a digital platform which claims it is not a hotel service, although hotels whose market has been severely affected disagree, pointing out that it escapes hotel regulations as a result.
And why does this affect lawyers? Because platforms are coming our way fast, and are already big business in the US: LegalZoom, RocketLawyer, Modria and a host of others, including document-assembly sites. Such platforms may well argue that they are not providing legal services, they are just digital platforms. Can you see the pattern yet?
We are not taxi drivers and so may not care whether Uber is seen by the commission as a digital platform, and not a transport company. And, anyway, we take great pride in being a regulated profession which is part of the administration of justice and rule of law.
But we will care a lot when our time comes and the large legal services platforms threaten to take over our market in a serious way - whereas presently they are just a cloud on the horizon - and are able to claim that, because of the Uber decision and the forthcoming legislation, they are not legal services providers at all and so do not have to follow lawyers’ regulation.
That is why it seems imperative to me that the legal profession enters the Uber argument soon, before the commission makes up its mind which way to jump. A line must be drawn to ensure that legal services, whether provided by platforms or lawyers, are always regulated to the same high standard in the public interest.
This is not about the threat to our jobs. I am well aware that this is exactly what the taxi drivers and hoteliers say about Uber and Airbnb. Taxi drivers say that they are subject to regulation to guarantee the safety, security, quality of service and rights of customers. Familiar?
We lawyers like to think that we are special, and that our regulation alone is necessary in the highest public interest. But in this case we will rightly be joining ranks with other non-professional regulated sectors – and will doubtless be cast as old-fashioned anti-free-marketers as a result.
These views are mine, and not of the organisation for which I work. I have noticed that bars often require time for their responses, because they rightly have to consult and reflect and take the public interest into account.
But in this case they should be quick if they are to influence an outcome which might have a devastating impact on their, and their members’, futures.
Jonathan Goldsmith is a consultant and former secretary-general at the Council of Bars and Law Societies of Europe, which represents around a million European lawyers through its member bars and law societies. He blogs weekly for the Gazette on European affairs