Consulted for the first time at the request of the French employment platforms social relations authority (ARPE), the Autorité de la concurrence issues a conditional opinion on a collective agreement in the PHV sector and recommends that an impact study be carried out before the agreement is approved

The social dialogue framework specific to the PHV intermediated transport services sector

• The introduction of social dialogue in the PHV sector

To provide self-employed PHV drivers with guarantees and rights similar to those of salaried employees and thus help to calm relations between platforms and drivers, the legislator has made social dialogue compulsory between contact platforms and these self-employed workers via their representative professional entities.

Under the negotiations – conducted under the aegis of the ARPE – several agreements and amendments have been signed since the start of 2023 (notably concerning the introduction of minimum earnings per journey and per hour of activity). The agreement submitted to the Autorité for its opinion is part of those negotiations.

• The 19 December 2023 agreement

Under the agreement submitted to the Autorité for its opinion, each platform will have to implement a system enabling each driver to choose a minimum income per kilometre of travel, from which to receive journey proposals from the platform ranked by preference. Signed by a single professional platform entity (whose main member, Uber, has a particularly significant presence on the French market, and by two of the seven driver trade unions that took part in the negotiations in 2023), the agreement meets the conditions of Article L. 7343-29 of the French Labour Code and applies to the signatories.

The ARPE plans to approve and thus to extend the agreement to all platforms and self-employed PHV drivers. As the decision to approve an agreement, like the decision to extend an industry-wide agreement under labour law, is taken only after a legal review of the text of the agreement, the ARPE is responsible for ensuring the agreement does not undermine free competition.

The 19 December 2023 agreement does not in itself harm competition

While the agreement provides for platforms to implement a system enabling each operator to choose a minimum income per kilometre of travel, this type of system is currently only offered by Uber.

For the Autorité, the fact that a single market operator owns technology that its competitors do not have, that its acquisition represents a significant cost or that an operator has taken a significant lead in the design and development – even if the technology is not yet fully operational at the time of the analysis – does not in itself constitute an infringement of competition law rules.

The Autorité recommends that an impact study be carried out before the agreement can be approved

While the agreement itself is not anticompetitive, its widespread application raises a number of unanswered questions that could have anticompetitive consequences. Firstly, the different players are not in a position to confirm the cost of developing the system. It is therefore impossible, as things stand, to avoid the possibility of the agreement enabling Uber to oust its competitors. It should also be noted that Uber has access to volumes of data unmatched by its competitors for developing and testing technologies, due to the number of PHV drivers who use its contact service in France and the number of journeys they make.

In addition, the Autorité invites the ARPE to ensure the agreement is sufficiently balanced between its social objectives and the consideration of potential competition risks. In the case at hand, as the social benefits of the agreement for drivers have not been established, an impact study is required. The Autorité de la concurrence is unable to carry out such a study, due to a lack of sufficient information to make a decision.