Rather as I predicted in an earlier post, Addison Lee has this week lost its claim against Transport for London in respect of the latter’s bus lane policy under which black cabs are allowed to use (most) bus lanes at all times whereas minicabs can only use them outside their hours of operation (save to pick up or set down pre-booked passengers). Its claim was based primarily on Articles 56 and 49 TFEU (guaranteeing the freedom to provide services and freedom of establishment respectively), on the general EU law principle of equal treatment, and on Article 107 TFEU (on state aid), rather than on traditional domestic law grounds, which – as the Court noted at  – would have required Addison Lee to demonstrate Wednesbury unreasonableness.
In essence, the judge (Burton J) concluded that the case had nothing to do with EU law: Treaty rights were simply not engaged by the bus lane policy. First, there was nothing to suggest that any of Addison Lee’s drivers from other EU Member States were affected by the policy, in terms of their decision to come to the UK or the decision, once in this country, to become minicab drivers. The judge was “wholly unpersuaded that this traffic restriction has any relevance at all to freedom of establishment” (). As to the question of equal treatment, which the judge seems to have accepted (at least for present purposes) was in play, he was satisfied that black cabs were in a different position from minicabs, in that they needed to be accessible for people wishing to hail them on the street: it made “entire good sense for black cabs to be travelling in bus lanes” ([60(i)]). There were also the points that only 8% of black cabs are pre-booked and so properly in competition with minicabs, and that if minicabs were allowed to use the lanes, there would be “no rational distinction” such vehicles and hire vehicles, chauffeured cars and the like: in other word, extending bus lane use to minicabs would be the “thin end of the wedge” ([60(iii)]). Finally, there was no question of the policy amounting to unlawful state aid, in part because inter-State trade was not affected by it and in part because, as previously mentioned, black cabs and minicabs were not in comparable situations, in light of the objective pursued by the measure concerned ().
In my earlier post, I suggested that the effects of the regulations in question on EU trade freedoms might be too remote to be vulnerable to challenge on those grounds. The Court has agreed: Burton J said that “this challenge has simply been the attempt to mount a challenge to a London traffic regulation by turning it into a “Euro-point”, and I am wholly unpersuaded by it” (). In other words, not every estuary of domestic law has been swamped by the incoming tide of European law: there are some parts which even EU law cannot reach.