If there is any hint of state support for a competitor in the EU, a company should consider whether state aid arguments could be brought to bear, since ultimately any illegal aid might have to be repaid, with interest. The London black cabs case decided by the European Court of Justice (ECJ, the EU’s highest court) on 14 January 2015 provides an interesting example of the scope of state aid law, even though ultimately the arguments did not prevail.
In London, “black cabs” are permitted to use bus lanes, but minicabs are generally prohibited from doing so during the hours when bus lane restrictions are operational. An operator of minicabs was served with penalty notices due to the fact that two of its drivers had used a bus lane. The operator challenged those notices, claiming that the bus lanes policy constitutes state aid to the operators of black cabs.
The English Court of Appeal asked the ECJ whether this benefit for black cabs constitutes state aid. The ECJ found that it does not, since no state resources are involved and black cabs and minicabs in London are not comparable offerings.
The argument therefore failed. Nevertheless, it was very imaginative and shows the possibilities for using state aid arguments as a weapon.