Black Cabs in London Retain ‘Exclusive’ Rights to Drive in Bus Lanes

black cab
A detailed note on Case C-518/13 The Queen, on the application of Eventech Ltd v The Parking Adjudicator (judgment of 14th January 2015)
An enduring feature of EU law is that it may be used in an opportunist manner in some of the lowest tribunals in the EU to create challenges to national rules and policies. This was how the Eventech case arose. But the case has not made an impact upon the established case law on State aid, or focused attention upon the effects of regulatory rules, instead retreating into a comfortable form-based approach towards State aid.

The Issue

In London bus lanes may be used by the traditional “Black Cabs” to transport fares but also to pick up fares through the process of “hailing a cab”. Evidence produced before the High Court in London revealed that in a 2009 survey only 8 % of Black Cab journeys were pre-booked’ (AG Wahl Opinion, para 19). The regulatory rules imposed by Transport For London did not allow other taxi companies (“minicabs”), to use the bus lanes or ply for trade. This was because Black Cabs were under an obligation to be recognisable, be capable of carrying persons in wheelchairs, to set the fares by meters and to have a thorough knowledge of the City of London. This is a policy used in other major cities for registered taxi companies and is regulated by local authorities and is often endorsed by consumer groups to protect the safety of passengers. In London Black Cabs do not pay for this exclusive right, but obviously incur costs in meeting the criteria to be classified as a “Black Cab”.

AG Wahl noted 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’. This system of traffic control is increasing being challenged by calls for de-regulation as new taxi services are emerging, employing new technology to make taxi bookings using apps, smart phones and the internet. For arguments against de-regulation see L Eskenazi, ‘The French Taxi Case: Where Competition Meets—and Overrides—Regulation’ in the Journal of European Competition Law & Practice here (subscription required).

The Process

The case began with a fine imposed upon Eventech (a private hire taxi company, a subsidiary company of Addison Lee) when Eventech had deliberately used the bus lanes on Southampton Row in London. Addison Lee had wanted to challenge the exclusive rights of Black Cabs in time to offer a competitive taxi service for the London Olympics. An appeal against the penalty fine was made to the Parking Adjudicator in August 2011 and this was refused, as was an application for judicial review of this decision by Burton J in July 2012. On appeal to the Court of Appeal a mixture of EU free movement and State aid issues were raised: was the Transport for London policy a breach of the freedom to provide services under Article 56 TFEU?; did the policy breach the EU principle of equal treatment? Was the policy a breach of the EU State aid rules? On the State aid point the Court of Appeal raised the question of whether the exclusive right of the Black Cabs to use the bus lanes was the use of State resources. Thus questions were referred to the CJEU on issues relating to State resources, selectivity, whether the rules were proportionate and whether the policy was liable to affect trade between the Member States.

Do you know we also publish a journal on State aid?

EStAL banner
The European State Aid Law Quarterly is available online and in print, and our subscribers benefit from a reduced price for our events.


State Resources

AG Wahl concluded that an analogy could not be drawn with the ruling in NOx, [Case C-279/80P Commission v Netherlands [2011] ECR I-551]. That “releasing” Black Cabs from an obligation to pay a fine for using the London bus lanes does not give rise to a transfer of State resources. The AG argued that regulating public infrastructure does not normally engage the State aid rules but the State should ensure that infrastructure is available on an equal and non-discriminatory basis. The AG found that Black Cabs and minicabs are not in a comparable situation in all respects, since although both could find clients through pre-bookings, but only Black Cabs could use the bus lanes to ply for trade. This would be the pivotal question: whether State resources are at issue. The CJEU agreed with the submissions made by the Commission and the EFTA Surveillance Authority that where the State is pursuing an objective, laid down in legislation, grants a 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. [CJEU judgment, para 48]. This reasoning is confusing since the Black Cabs are given exclusive, privileged rights to commercially exploit their trade by free access to the infrastructure, created through State resources, at the expense of competitors. Yet the CJEU creates an artificial boundary which ignores the effects of the Transport for London policy:

“[I]t is common ground that the right of privileged access is the right to use bus lanes; that that right has an economic value; that the right is granted by the competent traffic authority; that it is stated in the relevant road traffic legislation that the objective pursued by the legislation at issue is that of ensuring a safe and efficient transport system; that neither the road network concerned nor the bus lanes are operated commercially; that the criterion for granting that right is that of providing taxi services in London; that that criterion was established in advance and in a transparent manner and, last, that all the providers of such services are treated equally” [para 50].


On the question of selectivity the CJEU held that this would normally be a question for the national court to decide, but in this case there was sufficient information before the Court to give guidance. In paras 60 and 61 of the judgment the CJEU concludes that Black Cabs and minicabs are in different factual and legal situations and thus the Transport for London policy does not confer a selective economic advantage on Black Cabs. Having come to this conclusion the CJEU did not consider it necessary to consider the proportionality of the measure.

Inter-State Trade

The EFTA Surveillance Authority had made submissions in the case urging the CJEU to depart from the established case law [Case C-280/00 Altmark [2003] ECR I-415] that there is “no threshold too low” to meet the requirement of an effect on inter-State trade. But the AG had stated that this was perhaps premature, and this view is confirmed by the CJEU:

“… it is conceivable that the effect of the bus lanes policy is to render less attractive the provision of minicab services in London, with the result that the opportunities for undertakings established in other Member States to penetrate that market are thereby reduced, which it is for the referring court to determine.” [para 71].


Anyone who has hailed a Black Cab in London [and is over the age of 30] will probably revel in the nostalgia of this ruling. It takes a protective review of State regulation – and the building of infrastructure funded by the State – as having few economic consequences for the competitive use and modernisation of activities. And yet as John Fingleton has recently reminded us it may be necessary to extend competition rules to tackle pervasive state regulatory barriers to trade and growth. [Can Competition Policy Drive Growth in Europe? Click here for a PDF version of the article]

Eventech also stands as a judgment of the CJEU oblivious to the developments elsewhere in competition law of using the competition rules, especially Articles 102 TFEU and Article 106 TFEU, to challenge regulation by the State [see for example, Case C-41/90 Hofner v Macrotron [1991] ECR 1979; Case C-553/12P DEI, judgment of 17 July 2014] that stands in the way of modernisation, liberalisation and experimentation within competitive markets.


Suggested citation:

E Szyszczak, ‘Black Cabs in London Retain ‘Exclusive’ Rights to Drive in Bus Lanes’ (State Aid Hub Blog, 27th January 2015) <>

About the contributor:

Professor Erika Szyszczak (University of Sussex,  Littleton Chambers, London) specialises in EU competition law and in particular State intervention in markets.





Erika Szyszczak

Erika Szyszczak is Professor of Law and Fellow of the UK Trade Policy Observatory at University of Sussex and practising barrister and ADR mediator at Littleton Chambers, Temple, London.

Related Posts

21. Jul 2020
State Aid Uncovered by Phedon Nicolaides

Taxation of Multinational Companies: The Apple Case – A Political Setback for the Commission, but a Victory on Principle

Defects, incompleteness and inconsistencies in tax rulings are not sufficient to prove the existence of an advantage in the meaning of Article 107(1) TFEU. Update on Temporary Framework: Number of approved and published covid-19 measures, as of 17 July 2020: 213* Legal basis: Article 107(2)(b): 21; Article 107(3)(b): 179; Article 107(3)(c): 18 Five Member States have implemented 13 or more […]
14. Jul 2020
State Aid Uncovered by Phedon Nicolaides

2019 Competition Report

The Annual Competition Report is a useful document, but it should provide more information on the results of the ex post evaluations and ex post monitoring. Update on Temporary Framework: Number of approved and published COVID-19 measures, as of 10 July 2020: 202* Legal basis: Article 107(2)(b): 20; Article 107(3)(b): 171; Article 107(3)(c): 17 Six Member States have implemented 11 […]
05. May 2020
State Aid Uncovered by Phedon Nicolaides
corona virus poster

Non-recovery of Incompatible State aid Is Costly

Legal and practical difficulties in the recovery of incompatible State aid do not constitute justifiable “absolute impossibility”. Temporary Framework On 1 May, the total number of State aid measures to combat covid-19 approved by the European Commission reached 102. Their legal basis was: Article 107(2)(b): 9; Article 107(3)(b): 86; Article 107(3)(c): 7   Introduction The 2020 Temporary Framework for State […]
09. Apr 2020
Guest State Aid Blog by Lexxion Publisher
Woman sitting by the computer

Follow Up Webinar with Phedon Nicolaides on ‚COVID-19 and State Aid Law‘ on 20 April

The European Commission is working on quickly adapting the existing State aid legal framework to address the current Covid-19 pandemic. Join us on 20th April from the comfort and safety of your (home) office to get an insider update on the Covid-19 response by State aid experts from the European Commission and national governments. ✓ Join from wherever you are – […]
31. Mar 2020
State Aid Uncovered by Phedon Nicolaides

How to Make Good the Damage Caused by a Natural Disaster

Compensation for costs incurred as a result of a natural disaster is State aid. The compensation must be for damage directly caused by the natural disaster. Introduction State aid to make good the damage caused by an “exceptional occurrence” such as the corona virus covid-19 is compatible with the internal market. The legal basis for exemption is Article 107(2)(b). Of […]
25. Feb 2020
State Aid Uncovered by Phedon Nicolaides

Environmental Remediation and State Liability

Liability assumed by the state for the actions of an undertaking constitutes a selective advantage that may result in potential transfer of state resources in the future. Introduction On 16 January 2020 the General Court delivered its judgment in case T‑257/18, Iberpotash v European Commission.[1] Iberpotash, a Spanish company, appealed against Commission decision 2018/118. Iberpotash owns and operates potash mines […]
30. Oct 2019
State Aid Uncovered by Phedon Nicolaides

The Operator of an Economic Infrastructure is an Undertaking

The assignment of public service tasks to an infrastructure operator is not sufficient to prevent the application of State aid rules. Introduction The characterisation of an entity as an undertaking is activity based, not status based. If it carries out activities for which there is a market, it becomes an undertaking, regardless of providing services which are in the general […]
16. Jul 2019
State Aid Uncovered by Phedon Nicolaides

Investor Protection and Existing Aid

Aid granted before accession to the EU may not be assessed by the Commission. Introduction It is fairly safe to say that in the sixty years of case law on State aid, the Court of Justice has ruled that there are just four instances in which payment of public money to an undertaking does not constitute State aid on the […]
16. Jan 2018
State Aid Uncovered by Phedon Nicolaides

Selectivity Requires Comparison

To determine whether a measure is selective it is necessary to compare the beneficiary companies to other companies which are in a similar situation and determine whether the latter receive the same advantage. Introduction[1]   On 20 December 2017, the Court of Justice delivered three judgments in appeals against rulings of the General Court concerning the expansion of digital terrestrial television […]
10. Aug 2017
Guest State Aid Blog by Lexxion Publisher
EStAL Mihalis Kekelekis

15th Jubilee Feature – State Aid Experts Paying Court to EStAL: Mihalis Kekelekis

Since 2002 Lexxion Publisher’s European State Aid Law Quarterly – EStAL serves as a forum for dialogue and deliberation on all issues related to State aid. On the occasion of our 15th anniversary special feature we have gathered our State aid family to reflect upon their joint journey together with our precious EStAL and of course our favourite topic State […]