Wednesday, 24 September 2014

Barring private hire from London's bus lanes is legal

BRUSSELS (Reuters) - Allowing London's trademark black cabs to use bus lanes while excluding other minicab companies does not constitute illegal state aid, an adviser to the highest European Union court found on Wednesday.

The opinion is the latest stage in a longstanding dispute between the British capital's transport authority and Eventech, which owns a minicab fleet used by the cab firm Addison Lee. 

An advocate general, who advises the European court in Luxembourg, found that Transport for London's (TfL) policy of only allowing black cabs to use the city's bus lanes did not constitute an unlawful transfer of public resources -- essentially a subsidy -- to registered taxis.

"Where state authorities make a bus lane on a public road available to black cabs but not to PHVs (private hire vehicles) during the hours of operation of that bus lane, that does not involve a transfer of 'state resources', provided that all comparable undertakings are granted access on equal terms," Advocate General Nils Wahl said in his opinion.

Opinions from advocates general are respected by the court in a majority of cases.

The dispute comes at a time when alternative taxi providers, such as the car-sharing service Uber, have clashed with traditional cabs concerned about what they call unfair competition. The conflict has led to Europe-wide taxi strikes and temporary bans on Uber in Germany.

Eventech had argued that TfL's bus lane policy was an infringement of the freedom to provide services and also amounted to illegal state aid to the benefit of black cabs.

But Wahl rejected those claims, saying that under EU state aid rules it was not necessary for member states to demand payment for access to public infrastructure, such as bus lanes.

"If...state aid rules were interpreted as generally requiring member states to charge for access to public infrastructure or state-controlled resources, this might deter states from creating or opening up areas to which there has previously been no, or only limited access," Wahl said.

Eventech had also argued that exempting black cabs from paying fines for using the bus lanes amounted to an illegal transfer of public money to their benefit, a claim again rejected by Wahl.

The dispute began in 2010 when two of Addison Lee's drivers were fined for driving their cars along a bus lane in central London. Eventech challenged the fines but lost before the High Court, leading to its appeal to the EU's top court.

High Court Bus Lane Conclusion.... Round one.

Below is the conclusion of the case currently going through the Europian Court, appertaining to private hire use of bus lanes.

It would seem that today, addison Lee have lost the first round.

It is now up to the licensing authorities in the membered states to show that Taxis and Private Hire do not have comparable need to use Bus Lanes.


 In light of the foregoing, I propose that the Court respond to the questions referred by the Court of Appeal (England and Wales) (United Kingdom) as follows:

On a proper construction of Article 107(1) TFEU, where the authorities of a Member State make a bus lane on a public road available to taxis but not to private hire vehicles during the hours of operation of that bus lane:

–        this does not involve a transfer of ‘State resources’, provided that access is granted on equal terms to all comparable undertakings; and

–        this does not amount to ‘favouring certain undertakings’, provided that those authorities show 
(i) that taxis and private hire vehicles are not legally and factually comparable, owing to objective considerations relating to the safety and efficiency of the transport system, and 
(ii) that such a measure is suitable for achieving that objective and does not go beyond what is necessary in order to achieve it.

It is for the referring court to determine whether that is the case in the circumstances of the main proceedings. If that is not the case, the mere fact that the right to use the bus lanes is conferred in the context of a local traffic policy does not, in itself, exclude the possibility of trade between Member States being affected, which also falls to be determined by the referring court.

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