In its judgement of 2 February 2017, a Madrid Commercial Court dismissed the appeal lodged by the Spanish Confederation of Bus Transportation (CONFEBUS) on May 2015 against Comuto Iberia S.L. and Comuto S.A. (parent companies of Blablacar) (Blablacar) for unfair competition.

CONFEBUS argued that Blablacar infringed the unfair competition rules by carrying out, without the necessary permit, an activity regulated by the Spanish Land Transportation Act (SLTA). The Court ruled that Blablacar’s activity focuses exclusively on private carsharing activities between individuals, outside the scope of the SLTA.

CONFEBUS argued that Blablacar performs an activity seeking profit because Blablacar charges a 10% commission to platform users. Blablacar objected that the commission is only an insignificant monetary compensation to cover the necessary expenses for the correct functioning of the platform. The Court agreed with the defendant’s argument, stating that Blablacar has not created a platform in order to provide a transportation service, but to put in contact individuals who want to make the same trip and share certain expenses. The drivers are not hired by Blablacar; nor do the drivers belong to a transportation company. They are individuals who at their own risk offer to participate in the platform.

In this context, the Judgement established that the price recommended by Blablacar, which is based on the distance and number of travellers using each car, remains lower than regulated prices for functionally comparable transportation services. Drivers do not seek profit other than exceptionally.

Direct payment to Blablacar by the travellers is not regarded by the Court as a significant element to conclude that the activity of Blablacar must be caught by the sector regulation, because Blablacar wires the money to the driver immediately after the trip.

Overall, the Court held that the activity developed by Blablacar constitutes an activity regulated by the Spanish Information Society Services and Electronic Commerce Act (SISSEC). In its Judgement, the Court assimilated Blablacar to a social network such as Facebook or WhatsApp, justifying that the prior control of its users data by Blablacar is an essential requirement to be part of the network.

The SISSEC establishes that in Spain a service from an EU Member State can be restricted only when it poses a serious threat to the public order. When this threat does not occur, free provision of services should prevail. The Judge recognized that the activity carried out by Blablacar is in a grey area in regulatory terms, but such lack of definition does not enable prohibition.

The commented Judgement has been published a year and a half after another Spanish dismissed a petition to close down Cabify (an individual transportation service competing with the taxi service). Interestingly, the court that now endorses Blablacar’s activity was the same court that in December 2014 ordered the interim suspension of Uber’s activity in Spain.

CONFEBUS has already announced that it will appeal the Judgement.