The law is it (really) in the process of switch on the side of taxis ? These have, of course, welcomed with relief the judgment of the Court of cassation, which has, in march 2020, requalified as employment contract the relationship between Uber to its drivers, prompting the giant of the VTC to treat as employees all of the drivers in this same case of figure contract.
Best, those who fought, in vain, against the ubérisation of their profession, to understand that this jurisprudence is a ticking time bomb. The violation of labour law by Uber, as recognized by the senior judges, may be, according to them, the leverage of collective action in unfair competition. In effect, the avoidance strategy of the French legislation has provided an economic advantage, unfair to Uber, allowing it to capture a share of their market.
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Two companies of transport of passengers, Taxis var and France Taxis, are at the initiative of the procedure which brings together for the time being the two powerful unions (FNTI and the UNT) and for the time being about 500 plaintiffs on the 55,000 taxis in French, the entries that started just over a month. They have chosen the law firm Bruzzo Dubucq, specializing in commercial litigation, to represent them. What are the levers of this collective action unprecedented ? What does one hope for in terms of compensation ? The responses of Cedric Dubucq.
The Point : A collective action against the global giant of the VTC, it is a bold bet ?
Cedric Dubucq : This may be bold, but the procedure itself : one is in a situation of illicit competition ! With regard to the right to work, the model of Uber was not viable and would have required investments of several hundred million euros in employer contributions, payroll, vehicles, insurance, etc. If Uber had assumed these costs, it would not have been able to offer prices unreasonably low. This company has not been able to achieve this economic model is that by violating the labour law. It is this that has recognized the social chamber of the Court of cassation in march of this year noting that the relationship between Uber to one of its drivers was a salaried employment relationship and not a relationship of service. This decision demonstrates the judicial will to punish this practice “wild” for the transport of persons. It is, to this day, the decision of the most successful ever made by our judges to be against the world leader in the VTC.
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It is therefore the violation of the rules of labour law by Uber, as recognized by the jurisprudence, that motivates this collective action ?
It is to draw all the consequences of this judicial news and of the harm suffered by taxis since the arrival of Uber on the transport market. The voluntary servitude of the drivers Uber is, alas, an echo of the involuntary servitude of taxis.
The fault of Uber, now acknowledged, and consecrated, is the starting point of a reasoning again based on the unfair competition. And besides, the collective action novel that is preparing can compete with what has already been done in other countries. In Quebec, approximately 20 000 drivers participate in a collective action to obtain approximately $ 1 billion. In the Uk, there are over 11 000 applicants to a legal action in unfair competition. California has ratified a law that makes drivers VTC employees.
From the beginning, Uber was well aware of the fact that it is not legally correct. And besides, Uber has warned investors that its model could be wiped out by the Court of cassation. They took a risk, and it is done. In this regard, the collective action also has a referred normative : to tell Uber that the French law applies to everyone, without exception. Several hundreds of taxi drivers have already joined the action, which will be brought before the tribunal de commerce of Paris.
By chance, the case law is more favorable to the victims of unfair competition.
Legally, what are your arguments ?
The legal leverage of the action is twofold and is based on the recent evolution of French law. The magistrates have found that the independent contractor status of the driver was ” fictitious “, which translates to the fault potential of Uber, which consists, in particular, have concealed the reality of the relationship with the drivers. Since the case law is by nature retrospective, the decision of the Court of cassation means that, from the beginning, Uber would have had to assume all of the obligations which are those of employer-friendly employment law. By not respecting its legal and regulatory obligations, Uber has placed itself in a position unusually advantageous on the transport market. In fact, the observance of the standards has a cost, and not following them can help you gain an illicit economy. The case-law of the Court of cassation is in this sense, punishing for a long time already under the unfair competition and the violation of the standard by a competitor. And, by chance, the case law is more favorable to the victims of unfair competition.
That is to say ?
We have an alignment of the planets ideal ! Until now, the company that was unfair competition had to demonstrate a financial loss, which is sometimes very complicated. The taxi drivers have to compensate for the loss of turnover, worked more, and their balance sheets do not reflect their real financial harm. Since a decision of the commercial chamber of the Cour de cassation rendered on February 12, 2020, the legal system of unfair competition is based on that of the counterfeit. The highest court of our country has stated that when the defendant has violated a law, and achieved an economy that is undue, the applicant, that is to say, the victim, can assess its reparable damage in the light of the illegal advantage that is granted to the author of the fault. To be clear, we are now from the point of view of the author of the fault which it is necessary to demonstrate how it has gained through its illegal practices. This opens the possibility of compensation news for the victims of acts of unfair competition : giving the judge the possibility to examine the profits or savings of illicit made by the author of the fault, the reparable damage is all the more important. It is therefore in the context of these two case law major that fits the collective action.
Don’t you fear that the other side of the bar, one between you and the fact that the “fault” of Uber concerns only a fraction of its drivers ?
Uber will defend itself likely by arguing that the reclassification of the contracts of the drivers, Uber has taken place only in respect of a small group of workers. This argument seems attractive, but it neglects one thing : the standardization of the contracts of the drivers Uber. Since all contracts are the same, the court decision concerning a contract only applies with respect to the other.
Some taxis know the true suffering that deserves repair
What do you expect in terms of repair ?
first, all taxis have suffered a moral injury linked to two elements. On the one hand, the arrival of Uber in such conditions has greatly undermined the image and reputation of the profession. The mind of the consumer has been influenced to the detriment of taxis, which are now to be professionals in decline. There is a trend of the behaviour in particular of the younger generations who have the sense (incorrect) that the taxis are more expensive than Uber. On the other hand, the taxi drivers have lived with anxiety competition from Uber, which leaves uncertain the future of the profession if such acts went unpunished. Taxis are anxious about their future. The anxiety is recognized by the jurisprudence of commercial that is part of the moral prejudice. Some taxis know the true suffering that deserves repair. Then, some taxi drivers have suffered damage to heritage due to the competition from Uber. The loss of value of the license and loss of revenue are the two main items of damage repairable.
This action can lead to a negotiation with Uber ?
This will depend on two factors, first, the attitude of Uber vis-à-vis its own failings, and the recognition of its own responsibility. Then, the amount of which must be agreed by the taxi drivers and that should compensate for the harm they have suffered individually.
writing will advise you
Dara Khosrowshahi : “The word “ubérisation” is simplistic “Uber – Maurice Lévy :” It would require that our States commit themselves more strongly “
