«inherently linked to the offer by that company
of non-public urban transport services, in view
of the fact that, in the first place, that company provided an application without which those drivers would not have been led to provide transport services, and the
persons who wished to make an urban journey would not have used the services provided by those drivers and, in the second place, that company exercised decisive influence over the conditions under which services were provided by those drivers, inter alia by determining the maximum fare, by collecting that fare from the customer before paying part
of it to the non-professional driver
of the vehicle, and by exercising a
certain control over the quality
of the vehicles, the drivers and their conduct, which could, in some circumstances, result in their
exclusion» (Uber France, para 21).
Where a discriminatory standard meets these criteria, then limitations
of an employer's accommodation efforts and the resulting
exclusion of certain classes
of people would not amount to discrimination.
The seventh recital in the preamble to the Second Directive states that it is in the interest
of victims that the effects
of certain exclusion clauses should be limited to the relationship between the insurer and the
person responsible for the accident.