Court of Justice considers whether black cab only…

Case C-518/13 R (Eventech Ltd) v The Parking Adjudicator

In a preliminary reference to Luxembourg concerning the policy permitting black cabs but not private hire vehicles (“minicabs”) to use most London bus lanes during operational hours (and whether or not the policy was a State aid), the Court of Appeal had asked the Court of Justice a series of questions in respect of the various elements of unlawful State aid as defined by Article 107(1) TFEU.

Giving judgment on 14 January 2015, the Court of Justice held that the fact that black cabs were not obliged to pay fines as a result of their use of bus lanes did not involve additional burdens on public authorities which might entail a commitment of “State resources”; the situation was distinguishable from that in Case C-279/08P Commission v Netherlands in which the undertakings concerned had been enabled to buy emissions allowances in order to avoid fines which would otherwise have been payable. The Court observed (at [40]) that “the reason why black cabs can use those bus lanes without being subject to fines is not that the public authorities have made a decision not to collect fines which are payable, but that taxis are permitted to use those bus lanes”.

In response to Eventech’s argument that the policy gave preferential access to State-funded transport infrastructure for the use of which no payment was sought, the Court noted (i) that the roads and the bus lanes in question were not operated commercially and (ii) that the issue was not the construction of infrastructure (as in Case C-288/11 Mitteldeutsche Flughafen and Flughafen Leipzig-Halle v Commission) but rather preferential access to the same. The question in the Court’s view was thus whether Article 107(1) TFEU required the relevant public authorities “to impose on users entitled to privileged access to public infrastructure a charge which corresponds to the economic value of that privilege”.

The Court held (at [48]) that:

“…it must be held that where the State, in order to pursue the realisation of an objective laid down by that State’s legislation, grants a right of privileged access to public infrastructure which is not operated commercially by the public authorities to users of that infrastructure, the State does not necessarily confer an economic advantage for the purposes of Article 107(1) TFEU”.

Somewhat less cryptically the Court continued (at [49]):

“…it must be stated that the identification of the objective pursued is, in principle, a matter within the prerogative of the competent national public authorities alone and they must have a degree of discretion both as regards whether it is necessary, in order to achieve the regulatory objective pursued, to forego possible revenue and also as regards how the appropriate criteria for the granting of the right, which must be determined in advance in a transparent and non-discriminatory manner, are to be identified”.

As to whether (for the purpose of establishing whether the policy was “selective”) the policy introduced distinctions between operators who were in a comparable factual and legal situation, whilst the Court emphasised that that was an issue which fell to the referring court to determine (at [57]), in providing “guidance” it concluded (at [61]) that black cabs and minicabs were in factual and legal situations which were sufficiently distinct to permit the view that they were not comparable and that the policy therefore did not confer a selective economic advantage on black cabs.

Unsurprisingly, given the tenor of previous decisions of the Court of Justice on the point, the Court held that it was conceivable that the effect of the policy was to render less attractive the provision of minicab services in London, with the result that opportunities for undertakings established in other Member States to penetrate that market were thereby reduced (at [70]); it was thus conceivable that the policy was such as to affect trade between Member States within the meaning of Article 107(1).