Opinion of Advocate General Szpunar delivered on 15 December 2022.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• ECLI: ECLI:EU:C:2022:997
• Celex Number: 62021CC0050
• Date: 15 December 2022

Provisional text

OPINION OF ADVOCATE GENERAL

SZPUNAR

delivered on 15 December 2022(1)

Case C‑50/21

Prestige and Limousine, S.L.

v

Área Metropolitana de Barcelona,

Asociación Nacional del Taxi (ANTAXI),

Asociación Profesional Elite Taxi,

Sindicat del Taxi de Catalunya (STAC),

TAPOCA VTC1 SL,

Agrupació Taxis Companys

(Request for a preliminary ruling from the Tribunal Superior de Justicia de Cataluña ((High Court of Justice, Catalonia, Spain))

(Reference for a preliminary ruling – Articles 49 and 107 TFEU – Private hire vehicles (PHVs) – Limitation of the number of PHV operating licences in relation to the number of taxi licences – Authorisation scheme involving the obtaining of a second operating licence)

I. Introduction

1. Markets in transition are a tricky business for lawmakers and those interpreting and applying the law. Geopolitical circumstances, technology and society and, with them, consumer demands are in constant evolution. Concomitantly, new players, technologies and suppliers are appearing. They are having a disruptive effect on existing circumstances. They are changing the status quo, sometimes provisionally, often for good. If a market is subject to a certain degree of regulation, newcomers, often using new business models, tend to have a difficult outlook.

2. The taxi business throughout Europe could provide a case study of a market in transition. In many places across the European Union, suppliers of taxi services have traditionally been shielded from competition thanks to State regulation, (2) while web-based platforms have started offering local passenger transport-on-demand services with a high degree of zeal, precision and efficiency. This has contributed not only to more transparency at all stages of the provision of local transport services, where supply and demand is being matched with a higher degree of precision than before, but has also increased both supply and demand. As far as drivers are concerned, it is nowadays far easier than before to become a driver and to offer services through a platform, while customers have greater control over how, where and at what cost they are transported. Furthermore, local private transport has become more affordable and the economic barrier to entry for consumers has been lowered considerably. People who could not afford private transport before are now in many instances in a position to do so. All this has led to a state of affairs in which the distinction between traditional taxi services and new players on the market has become blurred and where their services converge. Moreover, this has led to a certain cross-fertilisation in the sense that traditional taxi operators increasingly resort to web-based applications to match supply and demand.

3. As the Court is well aware, the Metropolitan Area of Barcelona (‘the AMB’) is not immune to this trend, and this is not the first time that the Court has been faced with the issue of local passenger transport-on-demand services in Barcelona. Notably, in the seminal judgment in Asociación Profesional Elite Taxi, (3) the Court clarified that certain web-based platforms provide a service in the field of transport, the consequence being that neither the provisions of Directive 2006/123/EC (4) nor those of Directive 2000/31/EC, (5) nor the freedom to provide services under Article 56 TFEU applies, which means that measures adopted by Member States cannot be scrutinised against those provisions. In particular, such undertakings cannot evade any obligations they might have as undertakings offering transport services by ‘escaping’ Member State regulation through Directive 2000/31, which, by definition, entails little obligation for internet service providers.

4. At the same time, it is well known that the freedom of establishment under Article 49 TFEU does apply to services in the field of transport. This is the point of departure of the present case. The Court is invited to rule on whether the balance, struck by the Spanish regulator, between traditional taxi services and transport services carried out with private hire vehicles (PHVs) (6) meets the requirements of Article 49 TFEU.

5. In Barcelona too, the traditional taxi model has come under challenge. A system of local passenger transport-on-demand services has evolved in parallel to the traditional taxi market and PHVs have started to appear on the scene. In Spain, PHVs were traditionally conceived to cater for the market for inter-town transport, yet they have found their way into intra-town transport. In particular, as regards the latter aspect, from the perspective of the customer in particular, they are taxis in almost all but name, in that they offer transport services to customers in return for a fare. At the same time, in the AMB they have fewer rights (using bus and taxi lanes, for instance, is forbidden) and fewer obligations (there are no fixed fares and they are not obliged to accept a customer).

6. As the PHV model became a victim of its own success and more and more suppliers appeared, the Spanish regulator stepped in at national and local level. Specific licences were required for the AMB and such licences were limited to 1 licence for every 30 taxi licences. In practice, as the number of taxi licences has remained stable for the past 35 years, newcomers to the PHV market are prevented from accessing those licences.

7. In this Opinion, I shall propose that the Court rule that the system, as it currently exists in the AMB, is contrary to the freedom of establishment under Article 49 TFEU, in so far as the ratio of 1 PHV licence to 30 taxi licences is concerned. It constitutes a disproportionate restriction on that fundamental freedom.

II. Legal Framework

8. Under Article 43 of Ley 16/1987 de Ordenación de los Transportes Terrestres (Law 16/1987 on the regulation of land transport) of 30 July 1987 (BOE No 182 of 31 July 1987), as amended by Royal Decree-Law 3/2018 of 20 April 2018 (BOE No 97 of 21 April 2018) (‘the LOTT’), the grant of a public transport licence is conditional on the provision of evidence by the applicant undertaking that, amongst other things, it satisfies such other specific conditions required for the proper performance of the services as may be established by regulation, having regard to principles of proportionality and non-discrimination.

9. Article 48 of the LOTT provides as follows:

‘1. The grant of a public transport licence shall be non-discretionary and may therefore be refused only where the necessary requirements are not satisfied.

2. However, in accordance with [European Union] laws and any other applicable provisions, where the supply of public hire vehicles is subject to quantitative limits within the autonomous community or at a local level, regulations may be made establishing limits on the number of new licences granted for the provision of inter-urban transport by the aforesaid class of vehicles and for private hire vehicles.

3. Without prejudice to the provisions of the previous paragraph, in order to maintain an appropriate balance in the supply of both forms of transport, the grant of new licences for private hire vehicles may be refused where the proportion of existing licences in the territory of the autonomous community in which the vehicles are intended to be established is more than 1 for every 30 licences issued for public hire vehicles.

However, those autonomous communities to which responsibility in respect of licences for private hire vehicles has been delegated by the national government may alter the rule on proportionality set out in the previous paragraph, provided that the rule they establish is less restrictive.’

10. Article 91 of the LOTT provides that public transport licences shall be valid for the provision of services throughout the national territory, with no restrictions as regards the starting point or destination of the journey, with the exception, amongst others, of licences for private hire vehicles, which must comply with any conditions imposed by regulations as regards the starting point, destination or route offered by services.

11. The LOTT is implemented by the Reglamento de la Ley de Ordenación de los Transportes Terrestres (Regulation implementing the Law on the regulation of land transport) (‘the ROTT’), which has been amended several times.

12. A part of the ROTT is, in turn, implemented by Orden FOM/36/2008 por la que se desarrolla la sección segunda del capítulo IV del título V, en materia de arrendamiento de vehículos con conductor, del Reglamento de la Ley de Ordenación de los Transportes Terrestres (Order FOM/36/2008 implementing the second section of Chapter IV of Title V of the Regulation implementing the Law on the regulation of land transport, concerning private hire vehicles) of 9 January 2008 (‘the PHV order’), which was in turn amended by Order FOM/2799/2015 of 18 December 2015. Article 1 of the PHV order, entitled ‘Mandatory licensing requirement’, stipulates that ‘in order to carry on private hire vehicle services, a licence must be obtained for each vehicle that is to be used for such services’.

13. The main proceedings concern a challenge to the Reglamento de ordenación de la actividad de transporte urbano discrecional de viajeros con conductor en vehículos de hasta nueve plazas que circula íntegramente en el ámbito del Área Metropolitana de Barcelona (Regulation governing non-scheduled urban transport services provided by private hire passenger vehicles with up to nine seats operating solely within the AMB; ‘the RVTC’), approved on 26 June 2018 by the Consejo Metropolitano del Área Metropolitana de Barcelona (Metropolitan Council of the AMB) and published in the Boletín Oficial de la Provincia de Barcelona (Official Gazette of the Province of Barcelona) on 9 July 2018 and also in the Diari Oficial de la Generalitat de Catalunya (Official Gazette of the Government of Catalonia) number 7897 of 14 June 2019, which...