Eventech Ltd v The Parking Adjudicator & Anor

Article 56 TFEU does not govern transport services where Article 58 directs attention to the Treaty provisions on transport. The general EU principle of equal treatment may nevertheless apply where the measure falls within the scope of EU law.

A restriction must be justified by an objective legally permitted aim, be suitable and necessary, and satisfy proportionality. The distinction between London black cabs and minicabs was objectively justified because black cabs provide visibility and availability for passengers seeking to hail a taxi, whereas minicabs do not. The distinction was neither Wednesbury unreasonable nor unlawful State aid.

Eventech Ltd challenged the policy under which black cabs could use London bus lanes but minicabs could not, except to pick up or set down pre-booked passengers. The challenge arose from penalty charge notices issued under the Camden Bus Lanes (No 1) Traffic Order 2008.

The Parking Adjudicator dismissed Eventech’s appeal, considering that he lacked jurisdiction to disapply the Order or determine the alleged conflict with EU law. The parties accepted before the High Court that this approach was wrong because the Adjudicator was an emanation of the State. The central issues were whether the policy infringed Articles 49, 56 or 107 TFEU, the EU principle of equal treatment, or common-law Wednesbury reasonableness.

1. Jurisdiction. The Parking Adjudicator should have considered the validity of the Camden Order under EU and domestic law. His decision could not stand to that extent, and the High Court therefore determined the validity issues.
2. Articles 56 and 49 TFEU. By reason of Article 58(1), minicab and taxi transport services were not governed by Article 56. The court nevertheless applied the equal-treatment principle because the matter would otherwise have fallen within Article 56. The Article 49 argument failed: the evidence did not show that the bus-lane restriction affected access to, or made less attractive, establishment as a minicab driver.
3. Justification. The four conditions stated in Gebhard v Consiglio dell’ Ordine degli Avvocati e Procuratori di Milano [1995] ECR I-4165 applied equally to the freedom-of-movement provisions and equal treatment. The measure had to be non-discriminatory, justified by an imperative requirement in the general interest, suitable, and no more extensive than necessary. Objective justification could include reasons developed after the measure was adopted.
4. The distinction was not arbitrary. Black cabs could be hailed from the street and needed visibility, availability and access from the pavement. Minicabs could not ply for hire and had no equivalent need. The distinction was objectively justified, and the proposed alternatives did not render the policy unlawful.
5. The policy was not Wednesbury unreasonable. Nor did it constitute State aid contrary to Article 107 TFEU. The measure was not shown to affect trade between Member States and, alternatively, the different treatment was justified by the nature and general scheme of the bus-lane policy.
6. The claim was dismissed.

The claim was a judicial review of the Parking Adjudicator’s decision dated 16 August 2011. The High Court held that the Adjudicator had erred in refusing to consider the EU and domestic-law validity of the Camden Order, but dismissed the substantive challenge.