The Eventech case arose because Transport for London (TfL) and the London Boroughs, the authorities in charge of most roads in London allowed Black Cabs to use bus lanes, but prohibited licenced minicabs from using the very same lanes. Both Black Cabs (or Hackney cabs – they’re not all black!) and minicabs (private hire vehicles) carry passengers for payment. However, only Black Cabs can ‘ply for hire’ (for an sideline but entertaining historical run through of UK cases on ‘plying for hire’ see here ); Minicabs require people to call for their services beforehand and they can only pick up those who have pre-booked. A further difference between the two is in the standards binding their drivers: ‘Cabbies’ are subject to strict standards concerning their vehicles, fares, and orienteering capabilities; minicab drivers have no such obligations.
The applicant, Eventech, is a wholly-owned subsidiary of Addison Lee plc, which operates a fleet of minicabs in Greater London. In 2010, two of its drivers were served penalty charge notices by the London Borough of Camden for driving in bus lanes. These charges were challenged and on appeal dismissed by the High Court of Justice (England and Wales). Appealing again, the Court of Appeal referred three questions for preliminary ruling:
‘1. Does making a bus lane on a public road available to Black Cabs but not minicabs, during the hours of operation of that bus lane, involve the use of “State resources” within the meaning of Article 107(1) TFEU, in the circumstances of the present case?
2. (a) In determining whether making a bus lane on a public road available to Black Cabs but not minicabs, during the hours of operation of that bus lane, is selective for the purposes of Article 107(1) TFEU, what is the relevant objective by reference to which the question whether Black Cabs and minicabs are in a comparable legal and factual situation should be assessed?
(b) If it can be shown that the relevant objective, for the purposes of question 2(a), is at least in part to create a safe and efficient transport system, and that there are safety and/or efficiency considerations that justify allowing Black Cabs to drive in bus lanes and that do not apply in the same way to minicabs, can it be said that the measure is not selective within the meaning of Article 107(1) TFEU?
(c) In answering question 2(b), is it necessary to consider whether the Member State relying on that justification has demonstrated, in addition, that the favourable treatment of Black Cabs by comparison with minicabs is proportionate and does not go beyond what is necessary?
3. Is making a bus lane on a public road available to Black Cabs but not to minicabs, during the hours of operation of that bus lane, liable to affect trade between Member States for the purposes of Article 107(1) TFEU, in circumstances where the road in question is located in central London, and there is no bar to citizens from any Member State owning or driving either Black Cabs or minicabs?’
The CJEU found that ‘the fact that Black Cabs are not obliged to pay fines because of their use of bus lanes does not involve additional burdens on the public authorities which might entail a commitment of State resources’ (para 41). In addition, ‘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’ (para 48). In this case, the objective of the legislation – being to ensure a safe and efficient transport system – could justify access of Black Cabs only to the bus lane system
The CJEU indicated that in view of their different legal status, Black Cabs and minicabs are in factual and legal situations which are sufficiently distinct so as not to be comparable, although ‘the identification of the respective situations of Black Cabs and minicabs and the assessment of whether those situations may be comparable is an issue which falls within the jurisdiction of the referring court, which alone has available to it all the relevant matters of fact and law’ (para 57). On the basis of the facts before it, the CJEU considered that the bus lane policy does not confer a selective advantage on Black Cabs.
Answering the third question, the CJEU found that ‘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’ meaning that such a system may affect trade between Member States within the meaning of Article 107(1) TFEU.
This case came as an appeal against the Commission Decision of 24 October 2011 on State aid SA 32600 (2011/C) in which the Commission declared SNCF’s 2010 rescue aid (which it had approved just over a year previously ) and 2011 restructuring aid plan (recapitalisation and loans) for SeaFrance to be incompatible with the internal market. Both plans had emerged in a bid to save SeaFrance in light of its ‘systematically deteriorate[ing]’ financial situation ‘owing to unfavourable conditions, internal difficulties and industrial action’.
The Commission’s 2011 decision had ordered the rescue aid be recovered; in the present case France sought annulment of this decision. This action was dismissed by the General Court, reinforcing the Commission’s decision.
The Court found that the measures taken by SNCF were ‘so closely linked that they are inseparable as regards the private investor test’ and as such the Commission was not obliged to consider the loans from the rescue and restructuring aid separately. The loans and the recapitalisation were all set out in the same restructuring plan and SeaFrance was in financial difficulty at both the relevant times when the rescue aid was granted and when the recapitalisation and restructuring plan was conceived. Further, the GC noted that the loans were only granted in the process of the ‘because of a rearrangement of the sole recapitalisation measure originally set out prior to the complaint of SeaFrance’s competitor.’ Finally, the GC noted as relevant that no other actor besides the SNCF was involved
The GC considered that the Commission Decision was correct to find that a private investor in a market economy would not have implemented the measures of SNCF. Finally, it found that the Commission was correct to find that SeaFrance had not made a contribution free of aid and necessarily amounting to 50% of the financing needs of the restructuring.