On 14 January 2015, the Court of Justice of the European Union ("ECJ") held that a right of privileged access granted to London 'black cabs' to bus lanes – a privilege not extended to private hire vehicles (e.g., minicabs) – does not involve state aid.
The matter concerned a private hire company that had challenged two fines before the English Courts relating to the unauthorised use of bus lanes, alleging that the exclusive permission for London's distinctive black cabs to use London's bus lanes constituted state aid. It complained that Transport for London ("TfL"), London's local government body responsible for public transport, gave an unfair advantage to operators of black cabs, as private hire vehicles are prohibited from using the bus lanes during the hours when bus lane restrictions are operational. The Court of Appeal referred the question to the ECJ in order to determine whether the black cabs were in fact benefitting from state aid through TfL's bus lane policy.
The ECJ analysed the matter from two angles: (i) whether this policy involves a commitment of state resources; and (ii) whether it confers on black cabs a selective economic advantage. Both questions were answered in the negative by the ECJ. Indeed, TfL was not foregoing any revenue which it would have received without the bus lane policy. The bus lanes were constructed for the purpose of offering a safe and efficient public transport network in London – they are not operated commercially and can be used without any charge. In light of these circumstances, the ECJ ruled that the grant of such preferential access to a public infrastructure in favour of black cabs did not involve a transfer of state resources.
Furthermore, the ECJ referred to the distinctiveness of black cabs in so far as they are subject to stricter standards than minicabs relating to their vehicles, fares and knowledge of London. The black cabs and minicabs were thus not found to be in a comparable situation. For that reason, the ECJ was of the opinion that permitting black cabs to use bus lanes while excluding private minicabs did not confer a selective economic advantage on the former.
The ECJ added as a final note that TfL's bus lane policy might, however, render it less attractive for foreign private hire companies to offer minicab services in London and, as such, could affect trade between Member States.
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