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And here's what Judge Murphy said in relation to EU law.
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164. Regulations which restrict the number of public hire vehicles contradict the very concept of public service. It is, of course, open to the relevant authority to insist on quality as the base or threshold requirement in relation to a vehicle license as well as a drivers license. The 1961 Act does not contemplate the restriction of numbers in order to enforce standards.
Moreover, there would appear not to be any criteria in the Act, nor in the regulations, by which a determination should be made on the number of new licenses to be granted. Indeed, no indication has been given to the local authorities to whom the Minister purports to delegate the function of the factors to be considered in limiting the number of vehicles.
165. The policies and principals contained in Section 82 of the Road Traffic Act, 1961 do not provide a basis upon which the Minister can require local authorities to impose a quantitative restriction on the issuance of new taxi licenses within their respective areas.
166. In arriving at such a conclusion the Court is not attempting to interfere with the Minister’s right to make regulations for the control and operation of taxis. That right does not appear to extend to the limitation of number or to discriminate in favour of existing taxi licence holders.
167. To recapitulate, then, on this portion of my judgment, I have held the following:
(i) The words “control and operation” , as they appear in S. 82 of the Road Traffic Act, 1961, do permit the Minister in question to exercise a measure of numerical or quantitative control over the licensing of public service vehicles. That this is so is apparent simply from the fact that the Minister is empowered to grant licences. By granting or, indeed, by refusing any application for a licence, the Minister is ipso facto exercising quantitative control over the licensing of such vehicles. This fact is not challenged by the fact that a licence may have been granted for qualitative reasons relating to the condition of a particular vehicle or the extent to which the applicant for the licence is qualified to hold a licence.
(ii) To frame the central legal question which has been thrown into focus by these proceedings as being that of whether the Minister in question is empowered under the 1961 Act to exercise numerical control over public service vehicles is largely unhelpful at all events, insofar as it deflects the mind from the real issue, which is that of whether the Minister in question is empowered to exercise numerical control over such vehicles in the manner in which he has purported to do under the impugned Statutory Instrument .
(iii) The O’Neill case, to which the parties have already referred and to much already made abundant reference in the course of this judgment, is relevant not because it provides authority for the proposition that the Minister may not exercise quantitative control over public services vehicles, which it does not, but rather because:-
(a) it unambiguously rejects the possibility of the Minister fettering his discretion in purporting to exercise quantitative control under the Act;
(b) it casts serious doubt on the constitutionality of any scheme authorised by the Oireachtas which would have the effect of excluding persons from working in an industry for which they may be perfectly well qualified.
The scheme at suit in O’Neill, like the scheme at suit before the Court, was “so radical in qualifying a limited number of persons and disqualifying all others who may be equally competent from engaging in the business” that
“[i]t may be that such a far reaching power could not be delegated by the national parliament at all.” Murphy, J., op. cit.
(iv) The Minister, in restricting the number of licences in the manner under consideration, has fettered the discretion conferred upon him by s. 82 of the Act of 1961. The scheme ostensibly put in place by SI 3 of 2000 represents an exercise of quantitative control and there can be little objection to that per se . However, it is also a blanket restriction which renders nugatory applications from parties other than current taxi licence holders.
It represents a fettering of the Minister’s discretion which affects the rights of citizens to work in an industry for which they may be qualified and, further, which affects public access to taxis and restricts the development of the taxi industry.
168. The foregoing is, to my mind, sufficient to dispose of this matter.
169. However, beyond these considerations, I feel bound to add a further point which is of no little importance. I was not addressed by Counsel in the course of these proceedings on the issue of the extent to which European Community law affects the scheme put in place by the Minister.
Nevertheless, I consider that European Community law is relevant to these proceedings and may also be fatal to the scheme whereby additional taxi licences will only issue to current holders of licences.
170. The argument is just this. Non-discrimination is a general principle of Community law and, as such, it is a principle which is binding upon this State as a Member State of the European Union. It is no less binding upon this Court than it is upon the Executive and the Legislature.
It need hardly be observed here that this principle has informed the development of Community Law as a whole and has found expression in fields of that law as diverse as nationality and sex equality. Most recently, the Amsterdam Treaty has inserted a new Article 13 EC which provides a legislative basis for Community measures aimed at combating discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.
171. Discrimination on grounds of nationality is expressly proscribed by Article 12 of the EC Treaty (formerly, Article 6 EC). It is trite law that this prohibition extends also to indirect discrimination on grounds of nationality.
Such a case of indirect discrimination would arise where, as in the case before me, a national rule which appears on its face not to discriminate on grounds of nationality in practice affects nationals of other European Union Member States to a greater degree than nationals of Ireland.
In this regard, it is not necessary for it to be established that the national measure in practice affects a higher proportion of foreigners, but merely that the measure is “intrinsically liable” to affect nationals of other Member States more than Irish nationals: see, in the context of Article 39 EC (formerly, Article 48 EC) Case C-237/94, O’Flynn v. Adjudication Officer [1996] ECR I-2617 .
172. Article 12 EC is directly effective and can be relied upon before this Court without the necessity of relying on any other Treaty article: Case C-92/92, Phil Collins v. Imtrat Handelsgesellschaft mbH [1993] ECR I-5145, [1993] 3 CMLR 773 .
173. I have come to the conclusion that the scheme purportedly put in place by SI 3/2000 may very well indirectly discriminate against Member States of the European Union other than Ireland in a manner which is prohibited by Article 12 of the EC Treaty.
I venture that all and, if not, the great majority of current taxi licence holders are Irish nationals. By restricting the grant of new licences to this category of persons, the Minister is effectively precluding nationals of other EU Member States from becoming the owners of new taxi licences in Ireland.
That those nationals could purchase the licences at the market rate is no defence. It is true that Irish persons who are not taxi licence holders are equally negatively affected, but the favouring of one group. all or most of the members of which are Irish nationals, remains.
174. I am guided, in reaching this conclusion, by such seminal European Court of Justice cases as Case C-279/93, Finanzamt Koln-Altstadt v. Roland Schumacker [1995] ECR I-225 and, in applying such principles in the Irish context, by such cases as Bloomer v. Law Society [1995] 3 IR 14
175. Even if my interpretation of Article 12 EC is misguided because of the equal exclusion of Irish nationals who are not taxi licence holders, Article 86 EC (formerly Article 90 EC) has to be considered, which provides, in relevant part that:
“1. In the case of ... undertakings to which Member States grant special or exclusive rights, Member States shall neither enact nor maintain in force any measure contrary to the rules contained in this Treaty, in particular to those rules provided for in Article 12 and Articles 81 to 89 .”
[Emphasis added]
176. Wyatt and Dashwood, European Community Law (Sweet and Maxwell, 3rd edn., 1993), 551, explain that the rationale behind the portion of Article 86 EC quoted above is “the fact that the State has deliberately intervened to relieve the undertaking concerned wholly or partially from the discipline of competition, and must bear the responsibility for the consequences.”
177. It is my view that the taxis must fall within the regulatory framework of Article 86 EC, as “undertakings to which [the State] grant[s] special or exclusive rights” .
178. The scheme might further be impugned under Article 86 on the ground that it might lead taxi drivers to abuse Article 82 EC, which is the Treaty provision dealing with abuses of dominant positions. This might seem a little extreme, but the jurisprudence of the European Court of Justice has established that the grant of exclusivity, such as in the present case, may infringe Articles 86 and 82 either when the exercise of the exclusive rights cannot avoid being abusive ( Case C-41/90, Hofner and Elser v. Macrotron GmbH [1991] ECR I-1979, [1993] 4 CMLR 306 ), or where such rights are liable to create a situation in which the undertaking is induced to commit an abuse ( Case C-260/89, Elliniki Radiophonia Tileorassi AE (ERT) v. Dimotiki Etairia Pliroforissis (DEP) and Sotirios Kouvelas [1991] ECR I-2925, [1994] 4 CMLR 540 ).
Also instructive in this regard is Case C-179/90, Merci Convenzionali Porto di Genova SpA v. Siderurgica Gabrielli SpA [1991] ECR I-5889, [1994] 4 CMLR 422 , as to which, see Craig and de Búrca, EU Law , 2nd ed., Oxford, 1998. Taxis may very well be induced to commit abuses of their dominant position in Ireland by the scheme purportedly put in place by SI 3/2000.
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EU law is quite complex in the fact that it sometimes encompasses a wider field than would first appear in the wording of the legislation. It is interesting what Judge Murphy says and the way he articulates the reasoning behind the legislation. There has never been a case brought under this legislation but I suspect at some time in the future that might well change.
A significant note which I might add is that article 13 which Justice Murphy highlighted in his summing up is being strengthened by the EU and is due to become law in October this year. It will be interesting to see how the new modified version is interpreted?
Regards
JD
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