How will VTC licenses be regulated after the European judgment that rejects the limitation of one VTC for every 30 taxis? These are all the scenarios

2023-06-20 11:29:38

The Court of Justice of the European Union (CJEU) recently declared illegal the limitation of the number of VTC licences, used by companies such as Uber, Cabify or Bolt, in the Barcelona Metropolitan Area (AMB) to one for every thirty permits for transportation services. taxi, concluding that it involves a “disproportionate” restriction on the freedom of establishment. However, the court considered that requiring the obtaining of a permit in addition to that provided at the national level, as Catalonia and other regions do, “may be necessary for the proper management of transport, traffic and public space, as well as for the protection enviroment”.

The CJEU ruling thus responds to a preliminary ruling referred by the Superior Court of Justice of Catalonia (TSJC) regarding the case of Prestige and Limousine SL, a subsidiary of Cabify, which brought to court the local regulation of VTC management in the Area Metropolitana de Barcelona, ​​which limited the number of VTC licenses to one for every 30 and required these vehicles to obtain a double license to operate in Barcelona.

After the European pronouncement, the Catalan court will have to issue a sentence, a resolution that will affect the Barcelona Metropolitan Area, where the mayoress Ada Colau used decree law 3/2018 and the Ábalos decree to implement a more restrictive regulation of VTCs. Specifically, Decree Law 3/2018 raised the ratio of one VTC for every 30 taxis to the category of law, a limitation that shortly after was endorsed by the Supreme Court, although the CJEU now considers this restriction contrary to the freedom of establishment. For its part, the Ábalos decree, also from 2018, allowed the autonomous communities to create their own rules to grant or deny new VTC licenses and for this gave them a four-year extension, which ended on September 30, 2022.

Emilio Domínguez del Valle, lawyer and expert in mobility and transport, explains, in statements to LA RAZÓN, that the annulment of the precepts of that Barcelona regulation will give free rein to more than 1,000 vehicles requesting authorizations prior to the national law of 2018 and that are still in court and pending judgment. The same should happen in all those cases of authorizations denied by the 1/30 limitation that are still pending judgment in other communities. However, before all these cases are resolved, the CJEU will give an answer to the preliminary ruling question sent by the Supreme Court on this subject, which could end up being resolved in the same way.

Thus, in the medium term, the great change will come with this response, since there are, according to Domínguez del Valle, 25,000 judicialized VTC authorizations pending that resolution since the Government raised the 1/30 ratio from regulation to the category of law, which prevents companies from claiming against this limitation, which is only subject to the decisions of the CJEU or the Constitutional Court.

The taxi, for its part, has denounced an avalanche of requests for authorizations that exceed 100,000 since the CJEU ruled. However, Domínguez del Valle clarifies that if there is no demand, the avalanche of which the taxi speaks cannot be produced. There will only be some communities where a part of the increase in VTC licenses can be absorbed because there is a deficit taxi service.

The number of VTCs that operate in the cities will depend on the double licenses

The key to the regulation now lies in the fact that, although the CJEU opposes the limitation of VTC licenses compared to taxi licences, it is not opposed to requiring a second license for VTCs granted by the municipality where they provide service, but This is provided that it is based on “objective, non-discriminatory and known criteria in advance, which exclude arbitrariness, do not overlap with the controls already carried out for the national license and respond to the particular needs of that conurbation”. Therefore, although the illegality of the 1/30 ratio opens the door to the request for thousands of authorizations, the real number of VTCs that will be able to operate in the cities will depend on that second authorization established by the municipalities.

This is the way to regulate the VTC authorizations that the taxi is claiming from the Ministry of Transport at its meeting today. Yesterday the Minister of Transport, Mobility and the Urban Agenda, Raquel Sánchez, assured that the Government is designing “a formula that guarantees a balance (between the taxi and VTC sectors) and from there it will have to be the autonomous communities that abide by the guidelines of the sentence”. Bearing in mind that the powers of traffic, circulation fall on the municipalities, it will be in their hands to demand or not a second license to the VTC to operate.

The areas that choose to request this double authorization will have to do so in accordance with the non-discrimination precepts established by the CJEU. For example, it could not be required that all VTCs in a city be electric, when not all taxis are electric, nor that all VTCs have a certain size, as is the case in Barcelona with the requirement of a minimum length of 4.90 meters to the VTC, when not all taxis are this size. Therefore, the lawyer and mobility expert concludes that the requirements must be qualitative and not quantitative. That is, according to Emilio Domínguez del Valle, they will be training requirements, economic capacity, guarantees to users, quality and environmental condition of the vehicles, among others.

Possible crime of prevarication?

In their ruling, the Luxembourg magistrates consider that guaranteeing the economic viability of the taxi is not a sufficient reason to establish the 1/30 ratio. Therefore, María Gutiérrez, tenured professor of Criminal Law at the Complutense University of Madrid, warns in La Vanguardia that “perpetuating discriminatory restrictions against the constitutional principle of interdiction of arbitrariness, could even lead to criminal responsibilities”. In this sense, it recalls that the Supreme Court in the ERE case (STS 749/2022, of September 13, considered that “the resolutions that make up the procedure for drafting laws are an administrative matter, and therefore, capable of integrating the crime of prevarication”. In the same way, the employers of VTC have warned, who have reminded the acting Government that if it legislates to continue protecting the interests of the taxi, contrary to the European sentence, it could be committing the crime of prevarication.