Taxi Driver Online

If consumer transparency where the issue then perhaps the sale of licences should also be transparent. Perhaps those licenses that are for sale should be advertised by the council and sold with a health warning saying that the council reserve the right to deregulate Taxi numbers as and when they see fit. The licence holder would get his money and the purchaser would get fair warning as to the councils intent. We all know that’s not going to happen so it takes us back to my original comment about not parting with your money until you are satisfied its safe to do so.

Transparency in the sense of buying a licence resides in the buyers own knowledge of whether he understands section 16 of the 1985 Transport act, EU articles 81, 82 and 86 and last but not least the GATT agreement. The latter two are purely based on competition and are closely linked to what the OFT original enquiry was all about. Article 82 is the main plank of legislation, which overrides section 16 of the Transport act.

I'm sure everyone interested in this debate knows that so far there have been no challenges on licence refusal based on European law, especially article 82.

but I expect future challenges will not be based on section 16 of the 1985 Transport act they will probably be based on article 82 of EU competition law and the GATT agreement. With GATT, the appeal is conducted by an appeals panel in Geneva, there is no recourse by law, once they have made a decision it is final.

The thing about GATS is that it is so far removed from Taxi licensing no one realises the potential it could eventually have on all aspects of local Governement.

You may wonder why Local Authorities are running scared of the World Trade organisation and its GATS policy. I suppose most of you are wondering what GATS is. You may also wonder as I did, what the hell has the WTO got to do with Taxi Licensing. Well it is significant that some local Authorities seem to think that GATS will render them impotent when it comes to implementing licensing restrictions. If it is significant for local Authorities to voice concerns, it should be significant for you to understand how it could effect your future.



Because there is so much detail involved in the WTO "General Agreement on Trade in Services" known as (GATS) detailed comment and a full analysis would take too long to administer. To condense the implications I will outline the structure of the WTO and inform you of the concerns voiced by certain councils with regard to local Authority Licensing.

The World Trade Organisation was founded in 1995 superceding GATT, the "General Agreement on Tariff and Trades". GATT had been in place for nearly fifty years and was looked on by most sceptic observers as a forum for world trade disaster.

The WTO however is a more cohesive organisation and has a structure that is binding on all affiliated members. 146 member countries make up this trade organisation and each one is bound by the trading regulations contained within the rules of the Organisations continually evolving charter.

Trading disputes which, arise between member countries and cannot be resolved are subject to two forms of arbitration. The first phase is instigated by a request from either of the disputing countries to set up a WTO tribunal. This normally takes the form of a three-man committee of investigation and arbitration.

If either of the disputing countries disagree with the outcome of the tribunal, they have one appeal process, once that process is complete the decision of the appeal board is final.

The key word in the GATS Agreement is "Services" in the past, world trade has mostly been centered on "GOODS". The Introduction of the word services into the charter of the WTO through GATS has opened up a whole new sector in the movement of Export service Trade.

The GATS agreement and that's exactly what it is, an agreement between member countries, is binding. The UK is signed up to GATS therefore its implications could ultimately have an effect on the way services are administered. The WTO is primarily about Export so it may be confusing to you and I when certain councils refer to GATS as being a hindrance in their ability to administer Taxi Licensing. To get to the point of licensing I'll let you read what Reading Council had to say about GATS in reference to Taxi Licensing.


One of the most enlightening documents published with regard to GATS is the one published by Friends of the Earth. They state,

Quote:

I'm not really sure about the applicability of EU law John, maybe you have more information.

Dusty

HIGH COURT JUDGMENT IN APPEAL OF GOVERNMENT ISSUE OF TAXI LICENCES

THE HIGH COURT JUDICIAL REVIEW Record No. 38 JRI2000

BETWEEN

CHRISTOPHER HUMPHREY, TONY DOYLE, THOMAS O'CONNOR AND KEVIN BRADY
APPLICANTS

AND

THE MINISTER FOR THE ENVIRONMENT AND LOCAL GOVERNMENT, THE MINISTER OF STATE AT THE DEPARTMENT OF ENVIRONMENT AND LOCAL GOVERNMENT, IRELAND, TILE ATTORNEY GENERAL, DUNDALK URBAN DISTRICT COUNCIL, THE RIGHT HONOURABLE, LORD MAYOR ALDERMEN AND BURGESSES OF THE CITY OF DUBLIN THE NATIONAL TAXI DRIVERS UNION AND THOMAS GORMAN (IN HIS REPRESENTATIVE CAPACITY AS GENERAL SECRETARY OF THE UNION) (JOINED BY ORDER)
RESPONDENTS

JUDGMENT of Mr. Justice Roderick Murphy
Delivered the 13th day of October 2000.


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.

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.

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 1-26 17.

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-92192, Phil Collins v. Imtrat Handelsgesellschaft mbH [1993] ECR 1-5145, [1993] 3 CMLR 773.

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.

I am guided, in reaching this conclusion, by such seminal European Court of Justice cases as Case C-279193, Finanzamt Koln-Altstadt v. Roland Schumacker [19951 ECR 1-225 and, in applying such principles in the Irish context, by such cases as Bloomer v. Law Society [1995] 3 JR 14. 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." 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.

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 ".

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 1-1979, [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 1-2925, [19941 4 CMLR 540).

Also instructive in this regard is Case C-179/90, Merci Convenzionali Porto di Genova SpA v. Siderurgica Gabrielli SpA [19911 ECR 1-5889, [1994] 4 CMLR 422, as to which, see Craig and de 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.

Now what all this means is this. Article 82 refers to qualified citizens of other EU countries being denied employment in other EU countries. What the judge was saying is that if you restrict your own citizens, then you also restrict citizens from other EU counties. He is implying by way of restricting Taxi Licences, the Government is breaching article 82 and to some extent article 86 by denying EU citizens the right to have a Taxi licence. Very clever indeed.

I don't have Art 82 to hand John, but that's the 'abuse of a dominant position' article, which usually applies to the actions of companies - for example, if they abuse their market power to keep out new competitors by selling very cheaply - predatory pricing.
Dusty

A reply to JB from Wirral, Firstly around 60 drivers fought the Wirral case Mark Royden put his name as the applicant because he is the branch sec of the local T&G branch. This in effect meant that he was liable for court costs if we lost(which we did) when this was pointed out by the solicitors just about everyone took one step back, and Mark was the only one to put his head onto the block, so give him some credit.

A reply to JB from Wirral, Firstly around 60 drivers fought the Wirral case Mark Royden put his name as the applicant because he is the branch sec of the local T&G branch. This in effect meant that he was liable for court costs if we lost (which we did) when this was pointed out by the solicitors just about everyone took one step back, and Mark was the only one to put his head onto the block, so give him some credit.