Advocate General opinion in Addison Lee “taxis in bus lanes” case

On Wednesday this week, Advocate General Wahl handed down his opinion in Case C-518/13 Eventech v Parking Adjudicator. It makes interesting reading, but does not reach any firm conclusions as to the question of whether TfL’s policy of allowing black cabs but not minicabs to use the London bus lanes amounts to State aid.

Followers of this case may recall that the proceedings started in 2011 when Eventech, a subsidiary of Addison Lee, challenged penalty charge notices served on it in relation to the use by two Addison Lee minicabs of the Southampton Row bus lane in London. When the case got to the Court of Appeal, that Court referred questions to the European Court on whether (for the purposes of Article 107(1) TFEU) TfL’s policy involved State resources, whether the policy was selective, and whether there was the requisite effect on inter-State trade.

The Advocate General considered that, in this case, the questions of State resources and selectivity were interlinked. Both, he considered, turned on the comparability of black cabs and minicabs. In respect of State resources, the question of whether preferential access to public infrastructure (in the form of the bus lanes) involved State resources depended on whether black cabs and minicabs are comparable. In other words (see para 46) where State authorities make available a bus lane to black cabs but not minicabs, that does not involve a transfer of State resources “provided that all comparable undertakings are granted access on equal terms”.

Likewise, in relation to the selectivity test, the Advocate General considered that the┬árelevant question was whether the two groups of undertakings were comparable. That, he said, was a matter for the State to prove. In addition (para 72) “the State must also show that a difference in treatment arising from the objective of the measure is consistent with the principle of proportionality in that it does not go beyond what is necessary to achieve the objective and that that objective could not be attained by less far-reaching measures. Only a comprehensive review by the national courts in this regard is sufficient to prevent arbitrariness and to ensure that the State is mindful of its burden of proof in demonstrating that these requirements are fulfilled”.

According to the Advocate General, therefore, both the State resources question and the selectivity question in this case should come down to the national court’s assessment of the comparability of black cabs and minicabs, together with a “comprehensive review” by the national court of the proportionality of TfL’s policy.

As to the question of the effect on inter-State trade, the Advocate General saw some force in the submissions of the EFTA Surveillance Authority, intervening before the ECJ, that the Court’s current case-law on the requisite effect on inter-State trade set out too wide a test. Ultimately, however (para 87) he concluded that it would be “premature at this point to consider retreating from that line of case-law, which has been settled for more than 30 years”. He therefore proposed that, if the question of an effect on inter-State trade arose, 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 – although whether or not inter-State trade was liable to be affected was also, he thought, ultimately a question for the national court.

The key message therefore: State aid is neither excluded nor confirmed; rather, whether or not there is State aid should, in the opinion of the Advocate General, turn on the assessments of the national court as to comparability and effect on trade.

Further discussion of this case is planned for a future UKSALA seminar, currently pencilled in for December. Details will be posted up on this website once the date and time have been confirmed.

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