TfL bus lane policy "does not amount to unlawful state aid": Advocate General

The bus lane policy adopted by Transport for London – under which black cabs but not private hire vehicles can use the lane reserved for buses during certain hours – does not amount to unlawful State Aid, an Advocate General has concluded.

In The Queen, on the application of Eventech Ltd v The Parking Adjudicator Advocate General Wahl said the dispute came in the wake of the technological advances made over the past few decades.

“In particular, the advent of satellite navigation systems and smartphones with specific applications designed for facilitating requests for transport have changed the way in which customers behave, blurring the lines between taxis and PHVs,” he said.

“The result is that taxis and PHVs are engaged in fierce competition with each other across Europe, and London is not the only city where conflicts have arisen.”

The Advocate General said he did not find that the State aid rules are generally concerned with State measures such as the bus lane policy, provided that equal treatment is ensured in respect of comparable undertakings.

AG Wahl concluded that 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.”

The Advocate-General added it was for the referring court to determine whether that was 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.”

Opinions from Advocate Generals are followed in most Court of Justice of the European Union cases.