Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2013] CSOH 15
P897/12	OPINION OF LORD BRODIE in the cause SPRING RADIO CARS LIMITED Petitioner; for judicial review of a decision of GLASGOW CITY COUNCIL ________________

Petitioner: Howlin QC; Gillespie Macandrew LLP

Respondent: Anderson QC, Blair; Executive Director, Corporate Services, Glasgow City Council

25 January 2013

Introduction

[1] The petitioner is Spring Radio Cars Limited. Its business is that of operating private hire cars. It owns some 180 vehicles which are driven by self-employed drivers. It provides facilities for a further 500 vehicles which are owned by third parties. It trades under the name of Network Private Hire. Among the areas in which the petitioner provides private hire car services is the city of Glasgow.

[2] The respondent is Glasgow City Council. The respondent is the licensing authority for its area for the purposes of the Civic Government (Scotland) Act 1982.

[3] The petitioner seeks judicial review of a decision made by the respondent, acting by its Licencing Regulatory Committee in terms of its powers under section 10(2) of the 1982 Act. The decision was made on 18 January 2012. The petitioner contends that the decision was unlawful, first, as a matter of purely domestic law, by reason of it having been arrived at under error of law, it being Wednesbury unreasonable and it being the result of the respondent having unlawfully fettered its direction and, second, by reason of it having the effect of restricting trade between member states of the European Union and therefore being contrary to article 34 of the Treaty on the Functioning of the European Union.

Statutory and Treaty provisions

The Civic Government (Scotland) Act 1982

[4] The Civic Government (Scotland) Act 1982 provides inter alia:

"10.-(1) A licence, to be known as a 'taxi licence' or, as the case may be, a 'private hire car licence', shall be required for the operation of a vehicle as -

(a) a taxi; or

(b) a private hire car.

(2) A licensing authority shall not grant or renew a taxi licence or private hire car licence unless they are satisfied that the vehicle to which the licence is to relate is suitable in type, size and design for use as a taxi or private hire car, as the case may be, and is safe for that use, and that there is in force in relation to the vehicle such a policy of insurance or such security as complies with Part IV of the Road Traffic Act 1972.

...

(4) A vehicle shall, for the purposes of subsection (2) above, be treated by a licensing authority as being suitable in type, size and design if it complies with regulations in that regard made by the Secretary of State under section 20(2) of this ~Act in respect of their area.

...

11.-(1) The holder of a taxi or private hire car licence shall present the taxi or private hire car for inspection and testing by or on behalf of the licensing authority within such period and at such place as they may by notice reasonably require.

(2) An authorised officer of a licensing authority (as respects a taxi or private hire car licensed for the area of the authority) or a constable shall have power at any reasonable time to inspect and test, for the purpose of ascertaining its fitness, a licensed taxi or private hire car or, for the purpose of testing its fitness or accuracy, any taximeter and if he is not satisfied as to the safety of the taxi or private hire car for the carriage of passengers or as to the fitness or accuracy of the taximeter he may by notice in writing -

(a) require the holder of the taxi or private hire care licence to make the taxi, private hire car or taximeter, as the case may be, available for further inspection at such reasonable time and place as may be specified in the notice;

...

14.-(1) Subject to subsection (2) below, there shall not be displayed on or in a private hire car any word, sign, notice, mark, illumination or other feature which may suggest that the vehicle is available for her as a taxi.

...

20.-(2) The Secretary of State may by regulations made by statutory instrument prescribe types, sizes and designs of vehicles for the purposes of section 10(4) of this Act and, in doing so, may prescribe different types, sizes or designs of vehicles in respect of different areas.

...

23.-(1) In sections 10 to 22 of this Act -

'taxi' means a hire car which is engaged, by arrangements made in a public place between the person to be conveyed in it (or a person acting on his behalf) and its driver for a journey beginning there and then; and

'private hire car' means a hire car other than a taxi within the meaning of this subsection."

The Local Government (Miscellaneous Provisions) Act 1976

[5] The Local Government (Miscellaneous Provisions) Act 1976, which applies to England and Wales but does not apply to Scotland, provides inter alia:

"4. - Licensing of hackney carriages.

(1) A district council may attach to the grant of a licence of a hackney carriage under the Act of 1847 such conditions as the district council may consider reasonably necessary.

(2) Without prejudice to the generality of the foregoing subsection, a district council may require any hackney carriage licensed by them under the Act of 1847 to be of such design or appearance or bear such distinguishing marks as shall clearly identify it as a hackney carriage.

...

48. - Licensing of private hire vehicles.

(1) Subject to the provisions of this Part of this Act, a district council may on the receipt of an application from the proprietor of any vehicle for the grant in respect of such vehicle of a licence to use the vehicle as a private hire vehicle, grant in respect thereof a vehicle licence;

Provided that a district council shall not grant such a licence unless they are satisfied -

(a) that the vehicle is -

(i) suitable in type, size and design for use as a private hire vehicle;

(ii) not of such design and appearance as to lead any person to believe that the vehicle is a hackney carriage;

(iii) in a suitable mechanical condition;

(iv) safe; and

(v) comfortable."

Transport Act 1980

[6] Section 64 of the Transport Act 1980, which applies to England and Wales but does not apply to Scotland, provides inter alia:

"64. - Roof-signs on vehicle other than taxis.

(1) There shall not, in any part of England and Wales outside the metropolitan police district and the City of London, be displayed on or above the roof of any vehicle which is used for carrying passengers for hire or reward but which is not a taxi -

(a) any sign which consists of or includes the word 'taxi' or 'cab', whether in the singular or plural, or 'hire', or any word of similar meaning or appearance to any of those words, whether alone or as part of another word; or

(b) any sign, notice, mark, illumination or other feature which may suggest that the vehicle is a taxi."

The Treaty

[7] Article 34 of the Treaty on the Functioning of European Union (formerly article 28 of the Treaty on the European Community and before that article 30 of the EEC Treaty) provides:

"Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States."

Factual background

[8] By way of factual background the petitioner avers as follows:

"4.1.2 Private hire cars are, like taxi cabs, available for hire by members of the public. However, the manner in which private hire cars operate differs in a number of respects from that in which taxi cabs operate. For example, there are certain restrictions on picking up passengers which apply to private hire cars but not to taxis: private hire cars are not allowed to ply for trade; their drivers are not allowed to pick up passengers who attempt to hail them in the street; their fares are calculated by reference to the mileage driven and not by reference to a taxi-meter. Unlike private hire cars, taxis have an illuminated bidding light on the roof and generally have the word 'TAXI' prominently displayed in large, often fluorescent letters around their coachwork.

4.1.3 The petitioner provides private car hire services in the Greater Glasgow area. The area includes not only the City of Glasgow but also Rutherglen, Cambuslang, Kirkintilloch, Bearsden and Newton Mearns, amongst other places. The population served by the petitioner is approximately 1,200,000. Within that number, the population of the City of Glasgow amounts to approximately 592,300.

4.1.4 Within the City of Glasgow itself, there are over 1,428 taxi cabs which are licenced by the Council and about 2,800 private hire cars which are so licensed.

4.1.5 For the purpose of expanding and improving its private car hire services, the petitioner proposes to operate a fleet of passenger transport vehicles based on the Fiat Scudo. The Fiat Scudo is a van which is imported into the United Kingdom from France. It is manufactured in Valenciennes, France, by a joint venture entity called SEVEL ('Société européenne de véhicules légers') formed between the Italian company Fiat S.p.a. (or a subsidiary of that company) and the French group PSA Peugeot Citroën. Each year, around 500 Fiat Scudos having an aggregate value of around £11,500,000 are imported into the United Kingdom from France for conversion into private hire cars and for use as taxi cabs.

4.1.6 The Fiat Scudo is but one of several types of vehicle which are imported into the United Kingdom from other Member States of the European Union for conversion into taxi cabs or private hire cars. In particular, the Peugeot Expert van is imported for that purpose. The Peugeot vehicle, like the Fiat Scudo, is manufactured by SEVEL at Valenciennes in France. Numerous Experts are imported each year into the United Kingdom for conversion. A converted Expert is sometimes called an E7. In addition, a Mercedes vehicle known as the Vito is manufactured in Vitoria, Spain, by Mercedes-Benz España S.A. Numerous Vitos, are imported each year into the United Kingdom, some of them already adapted for use as a taxi. The Mercedes Viano or M8 is essentially the same vehicle as the Mercedes Vito. The Viano/M8, too, is manufactured in Spain by Mercedes-Benz España S.A. It, too, is imported in large numbers into the United Kingdom. Unlike the Vito, it does require to be converted into a taxi or a private hire car after is has been imported.

4.1.7 In the form in which they are imported, the Fiat Scudo and the Peugeot Expert require to be adapted for use as passenger transport vehicles (whether taxi cabs or private hire vehicles) before they can be so used. Certain of the Mercedes vehicles also require to be adapted. In the Glasgow area, such adaptations are carried out by Scot Seat Direct Limited, trading as 'Scotcab', whose adapted Fiat vehicle is called a 'Scotcab's Fiat Scudo". Until recently, they were also carried out by the Penso group on behalf of Paton, whose adapted Fiat vehicle is called a 'Paton TW200'. The adaptations include the fitting of a division to separate the passengers from the driver, the fitting of a ramp to facilitate ingress and egress by passengers in wheelchairs and the fitting of special seats, safety belts, anchor points and grab handles for such passengers and their wheelchairs. Both the Scotcab Fiat Scudo and the Paton TW200 are well suited for use either as a taxi cab on the one hand or as a private hire car on the other hand. They both have 'whole vehicle M1 type approval' in terms of the relevant directives of the European Union relating to the type-approval of motor vehicles and their trailers.

4.1.8 The petitioner desires to have the Fiat Scudo vehicle included in the Approved Vehicles List maintained by the Council. The vehicle is already approved by the Council for use as a taxi cab."

The decision and the background to the decision

[9] At statement 2 of the petition the petitioner identifies the act of which he complains as the respondent's decision to reject an application presented by the petitioner and others to include the Fiat Scudo vehicle in the list of vehicles approved by the respondent for use as a private hire cars (the "Approved Vehicles List"). I admit to having initially been puzzled by these averments (which are admitted by the respondent in its answers). Section 20(2) of the 1982 Act empowers the Secretary of State, by making regulations, to prescribe types, sizes or designs of vehicles (I was advised that this power has never been exercised) but no equivalent power is conferred on a licensing authority generally to specify what type, size or design of vehicle it would consider suitable for use as a private hire car. Rather, what section 10(1) and (2) would seem to require is that the authority consider, on an application for a private hire car licence, whether a particular vehicle is suitable and, if not so satisfied, not to grant or renew the licence. My puzzlement as to the precise nature of the act complained of was compounding by the petitioner's averments at statement 4.2.1 which are as follows:

"4.2.1 On 25 August 2011 an unincorporated association known as Greater Glasgow Private Hire Association ('GGPHA') made a written application to the Council to have the Fiat Scudo added to the Council's Approved Vehicles List. The petitioner is a member of GGPHA. For reasons unknown to the petitioner, the Council treated the application as though it emanated from the petitioner alone. In what follows the application will, for the sake of simplicity, be treated as though it emanated solely from the petitioner."

[10] Parties' explanations made matters clearer and now that I understand the situation, I would accept, as Mr Howlin on behalf of the petitioner conceded, that the way in which the respondent had acted was a pragmatic way of dealing with matters which were intra vires its powers under section 10.

[11] Section 10(2) of the 1982 Act confers a discretion on licensing authorities to determine whether a particular vehicle which it is proposed should be operated as a private hire car is suitable for such use. Once an application for a licence in respect of a particular type of vehicle has been granted, there is however no reason not to grant a licence in respect of another vehicle of the same type. It is obviously useful for someone wishing to operate a vehicle as a private hire car to know what type or types of vehicle the licensing authority considers suitable for use. Presumably with this consideration and other administrative efficiencies in mind the respondent has, since at least its Licensing Committee's decision of 9 October 1990, maintained an Approved Vehicles List by reference to which it can be ascertained what type of vehicle will be regarded as suitable by the respondent for use as a private hire car. The text of the Approved Vehicles List which was adopted on 9 October 1990 and which was lodged in the petition process is in the following terms:

"PRIVATE HIRE CAR LICENSING

APPROVED CARS LIST

1. This list indicates 'Yes' or 'No' to each make and model of car. 'Yes' means the model is approved, 'No' that it is not.

2. Even though any model is approved, it must nonetheless meet the basic criteria:-

(a) marked 'Yes' on the list and

(b) Engine size of nominal 1600 cc or more

(c) 4 door type (or 5 if hatchback or estate)

(d) Rear seat width 48" or more

(e) Right hand drive.

e.g. Austin Maestro is 'Yes', but Maestro 1300 is not acceptable.

3. Vehicles which are purpose-built as taxis or 'hackney carriages' are not approved for use a s private hire cars. Currently these are Carbodies FX4 types, and MCW/Reliant Metrocabs

4. Occasionally applications may be made for unusual vehicles. The Committee may entertain such applications, if there is good reason."

[12] A feature of this text of the Approved Vehicles List is that it discloses that vehicles which are purpose-built as taxis are not approved for use as private hire cars. As construed by the respondent in practice, that statement is taken to mean that the respondent will not usually allow vehicles of the same type to operate both as taxis and as private hire cars. The petitioner avers that by its decision of 9 October 1990 the respondent reaffirmed a policy or practice to that effect. The respondent has been prepared to entertain, from time to time, requests for inclusion of new vehicle types on the Approved Vehicles List. I would understand that on occasions such requests have been granted while on other occasions they have been refused. The petitioner has made such requests in the past. It made an application by email dated 8 September 2008 for approval of the Scotcab Fiat Scudo for use as a private hire car. The respondent's Committee met for the purpose of considering, inter alia, the petitioner's application on 25 September 2008. The Committee considered a report dated 25 September 2008 which stated, inter alia: "Members will be aware of the practice that if a vehicle is approved for use as a taxi, it would not be approved for use a private hire car, and vice versa." That report was accompanied by an earlier report on the Scotcab Fiat Scudo, dated 11 September 2008, from the Inspection Centre Manager of the respondent's Land Services Department. The earlier report stated, inter alia:

"The above vehicle was assessed by the Inspection Centre and the findings are that the base vehicle is built on the Fiat Scudo, which is the same vehicle as the Patons Taxi TW200. It is usually council practice to not allow the same vehicle to operate as both taxis and private hire cars. The front page of documentation from Scotcab describes the vehicle as a 'wheelchair accessible taxi adaption'."

The petitioner applied again in 2009 to the Committee to have the Paton TW200 vehicle added to the Approved Vehicles List. The petitioner's application was considered at a meeting of the Committee on 4 March 2009. At that meeting the chairman and other Committee members referred to the alleged similarity of the Paton TW200 vehicle to vehicles which had already been added to the Approved Vehicle List for use as taxi-cabs and the alleged danger that members of the public would confuse the Paton TW200 private hire vehicle with a taxi-cab.

[13] Although the petitioner makes averments about what was included in reports or what was said at meetings of the Committee with a view to establish the proposition that the respondent does have a policy or practice of refusing to approve a vehicle type for use as a private hire car where the same vehicle type has previously been approved for use as a taxi-cab, it is not suggested that the respondent has been other than entirely frank in disclosing the approach which it adopts. This is apparent from, for example, the terms of the letter written by the respondent's Executive Legal Manager (Licensing) to the petitioner dated 2 February 2009. That letter was in the following terms:

"I refer to your request, by email dated 8 September 2008, for approval of a new vehicle type, namely a Fiat Scudo, as a Private Hire Car vehicle.

...

The information attached to your letter of 22 September 2008 will be taken into account.

You will be given an opportunity to address the Committee on the terms of your request. In doing so you should be in a position to address the Committee on the Council's long-standing policy/practice regarding the approval of vehicles for use as Private Hire Cars.

The Council's policy/practice is as follows:-

·               The legislation - the Civic Government (Scotland) act 1982 - draws a clear distinction between the operations of a Taxi and the operations of a Private Hire Car.

·               Section 10(2) of the Act states 'A Licensing Authority shall not grant or renew a Taxi Licence or Private Hire Car Licence unless they are satisfied that the vehicle to which the Licence is to relate is suitable in type, size and design for use as a Taxi or Private Hire Car, ....'

·               In exercising the power given by that Section, the Council, as Licensing Authority, takes the view that to reflect the distinct operations of Taxis and Private Hire Cars, the vehicles to be approved for each use should also be distinct in terms of 'type' & 'design'.

·               The 'distinctive approach' of the Legislation is also reflected by the terms of Section 14 of the Act which prohibits signage etc., on a Private Hire Car that may even suggest that the vehicle is available for hire as a Taxi.

·               In pursuance of this 'distinctive approach' the Council has consistently maintained two separate approved vehicle lists - one for approved vehicles to be used for Taxis and one for approved vehicles to be used as Private Hire Cars.

·               The Council's Licensing Committee on 9 October 1990 approved the approach to be taken with regard to the approval of vehicles for use as Private Hire Cars - that is the Committee approved a Report on the basis that 'vehicles which are purpose-built as Taxis or "hackney carriages" are not approved for use as a Private Hire Car'. That policy/practice remains in force.

Your request for approval of a new vehicle type for use as a Private Hire Car, namely the Fiat Scudo, will require to be considered against the terms of the policy/practice as aforesaid. That is because the Fiat Scudo is the same base vehicle as the Fiat TW200 which has already been approved for use as a purpose-built Taxi.

In presenting your request to the Committee you should be in a position to address the Committee as to why your proposed vehicle should be approved as a Private Hire Car notwithstanding that the same vehicle (albeit under a different name) is already approved for use as a Taxi. Your request will be dealt with on its own merits.

You should note that the Committee on 11 February 2009 will take a decision in principle as regards the approval of your proposed vehicle type for use as a Private Hire Car. If the Committee decides in your favour, the matter will be continued to allow you to produce documentation to prove that the vehicle meets the required technical specifications - including M1 Whole Vehicle Type Approval.

I will copy this letter to your Solicitor J.P. Mowberry.

If you require any further written background information prior to the hearing of your request on 11 February 2009, please let me know."

[14] The petitioner is a member of an unincorporated association known as Greater Glasgow Private Hire Association ("the GGPHA"). I understood the GGPHA to have relatively few members. It is administered by Mr Ross Blyth, who is an employee of the petitioner. By email of 25 August 2011 Mr Blyth on behalf of the GGPHA made an application to the respondent, addressed to the respondent's Principal Licensing Officer, Miss Helen Welsh, for inclusion of the Fiat Scudo TW200 on the Approved Vehicles List. Given the source of the email and the fact that the GGPHA (described in the email as "recently reconstituted") did not and would not operate private hire cars, it is perhaps unsurprising that the respondent treated the request contained in the email of 25 August 2011 as coming from the petitioner. No issue was taken about this at the time and nothing arises out of it in the context of this petition. The application was considered at a meeting of the Committee held on 18 January 2012. The report to the Committee, dated 18 January 2012, by the respondent's Executive Director of Corporate Services included the following paragraph:

"1.2 Members will be aware of the current policy/practice which is to the effect that if a vehicle is approved for use as a taxi, it would generally not be approved for use as a private hire car, and vice versa. That policy/practice was last affirmed by the Licensing Committee on 9 October 1990 and has been followed consistently ever since. That stated policy/practice was predicated on the distinctive approach of the Civic Government (Scotland) Act 1982 to the operations of taxis and private hire cars. Section 10(2) of that Act states: 'A licensing authority shall not grant or renew a taxi licence or private hire car licence unless they are satisfied that the vehicle to which the licence is to relate is suitable in type, size and design for use as a taxi or private hire car ......'"

At the meeting on 18 January 2012 the application for the inclusion of the Fiat Scudo TW200 on the list of approved vehicles was refused.

[15] The Committee did not give reasons for its decision but I took it to be accepted on behalf of the respondent that the reason for not including the Fiat Scudo TW200 on the list of approved vehicles was that the respondent had not been persuaded to depart from its policy or established practice that it will not include a vehicle on the Approved Vehicles List for use as a private hire car when the same type of vehicle has already been approved for use as a taxi-cab. It was admitted that at the meeting of 18 January 2012, one of the members of the Committee observed that the TW200 vehicle looked like a taxi and could confuse the public.

Submissions of parties

Petitioner

[16] In presenting his submission that the respondent's decision was unlawful and therefore should be reduced, Mr Howlin distinguished between his "EU ground", on the one hand, and his "non-EU grounds", on the other. His first non-EU ground was the respondent's error in law by reason of its misconstruction of the extent of the power conferred by section 10(2) of the 1982 Act, as demonstrated by the terms of the letter from the Executive Legal Manager (Licensing) of 2 February 2009. It was this error: that the statute mandated that the vehicles to be approved for each use should be distinct in terms of type and design which predicated the respondent's whole approach and, in particular, its policy as stated in the report to the Committee of 18 January 2012. What a licensing authority is required to consider is whether a particular vehicle is suitable for use as a taxi, if the application is an application for a taxi licence, or a private hire car, if the application is for a private hire car licence. If the same vehicle has previously been found to be suitable for use as a private hire car, where the application is an application for a taxi licence, or for a taxi, where the application is an application for a private hire car licence, is not only nothing to the point but does not afford a lawful reason for refusal.

[17] Mr Howlin's second non-EU ground was that the respondent's decision was Wednesbury unreasonable (cf Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223). The policy as approved in 1990 was that the vehicles which were purpose-built as taxis or hackney carriages were not approved for use as private hire cars. In 1990 there were two purpose-built taxi types: the Carbodies FX4 and the MCW/Reliant Metrocab. Both the FX4 and the Metrocab conformed to the "classic London cab" design. These types looked like taxis even without any particular livery or signage. Accordingly it was entirely comprehensible that there should be a policy whereby the FX4 and the Metrocab should not be approved as private hire cars. However, nowadays a number of vehicles have been approved for use as taxis which, as Mr Howlin put it, "do not look like taxis". They are minivans or minibuses. By preventing such vehicles being approved for use as private hire cars, the respondent has lost sight of the original purpose of its policy, which was to prevent vehicles which were obviously designed as, and instantly recognisable as, taxis from being used as private hire cars. As appeared from Associated Provincial Picture Houses Ltd v Wednesbury Corp supra at 229, a person entrusted with a discretion must direct himself properly in law; call his own attention to matters which he is bound to consider; and exclude from his consideration matters which are irrelevant. To these elements, Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345 adds, at 348, a fourth element: where the decision is one for which a factual basis is required there should be a proper basis in fact to support it. In Mr Howlin's submission the respondent's decision failed the Wednesbury/Wordie Property tests. Not only was the decision based on a material error of law, being the respondent's erroneous construction of section 10(2) but it took into account irrelevant matters, namely the fact that the TW200 was already approved for use as a taxi-cab and the respondent's policy (flowing from its error of law) of not approving one and the same type both as a taxi-cab and as a private hire car. Moreover the respondent had failed to take into account relevant matters, namely the fact that in any event its policy was directed at purpose-built taxis such as the FX4 and the fact that the Fiat Scudo was not a purpose-built taxi in the sense of being a vehicle, the appearance of which was such that it was obviously a taxi and could be nothing else. Finally, the respondent predicated its decision upon an assumption of fact for which no factual basis was available, namely the assumption, in the absence of any evidence, that a Fiat Scudo bearing the livery and signage of a private hire car was likely to be mistaken for a taxi.

[18] Mr Howlin's final non-EU ground was that the respondent had unlawfully fettered its discretion by adopting a policy from which it was not prepared to depart: cf British Oxygen Co Ltd v Ministry of Technology [1971] AC 610 at 624 and Centralbite Ltd v Kincardine & Deeside District Licensing Board 1990 SLT 231. The fettering of the respondent's discretion could be inferred from the consistency with which the policy has been relied on by the Council, the fact that it has departed from its policy on only two occasions and then without any intelligible explanation and the summary manner in which the Committee dealt with the petitioner's application on 18 January 2012. Reference was made to the petitioner's averments at statements 4.2.2, 4.2.3 and 4.2.4 of the petition.

[19] For his EU ground Mr Howlin relied on article 34 of the Treaty on the Functioning of the European Union. The respondent's policy, as applied, for example, to the Fiat Scudo, which was manufactured in France, constituted a measure having an equivalent effect to a quantitative restriction on imports and accordingly was prohibited as a matter of EU law. By refusing to include a vehicle based on the Fiat Scudo body on the Approved Vehicles List, the respondent was reducing the potential market for such vehicles within its area and therefore restricting the quantity of such vehicles which would be imported into the United Kingdom. As had been held in Case 8/74 Procureur du Roi v Dassonville [1974] ECR 837, all trading rules enacted by member states which are capable of hindering, directly or indirectly, actually or potentially intra-community trade were to be considered as measures having an effect equivalent to quantitative restrictions. All measures having such effect were prohibited: Campus Oil Ltd v Minister for Industry and Energy [1984] 2727 at 2746, para 15. There was no de minimis rule: Joined Cases 177, 178/82 Van de Haar [1984] ECR 1797 at 1812. It was irrelevant that there was no intention to restrict inter-state trade and accordingly the respondent's averments to the effect that the decision complained of was not a measure intended to restrict imports was irrelevant. Mr Howlin accepted that the application of article 34 was subject to the so-called "rule of reason". Essentially this meant that if an aspect of intra-community trade has been regulated by an EU instrument establishing common rules then member states must observe these rules but in the absence of such rules, certain disparities among member states must be accepted: Cassis de Dijon (Case 120/78 Rewe-Zentral AG v Bundesmonopolverwaltung für Branntwein [1979] ECR 649 at 662. However, a national measure which creates a disparity must be proportionate. If the objective which the national measure seeks to achieve could be achieved in a manner which was less restrictive of intra-state trade then an overly restrictive measure will be prohibited: Case 261/81 Walter Rau v De Smedt Pvb A [1981] ECR 3961. In the present case the respondent maintains that there is a genuine need to protect consumers from confusing taxis with private hire cars. Assuming there to be such a need, that could be achieved by means that are less restrictive than prohibiting certain vehicle types from use as private hire cars altogether. It would, for example, be possible to impose requirements as to livery and signage which would have the result of sufficiently distinguishing taxis, on the one hand, from private hire cars, on the other.

Respondent

[20] It was Mr Anderson's submission on behalf of the respondent that for the petitioner to succeed it had to show that the respondent's policy was unlawful. Mr Howlin had conceded that it was entirely lawful for the respondent to have a policy in relation to the suitability of vehicles for the purposes of section 10(2) as long as the particular policy was not inconsistent with or destructive of the purpose of the statutory provision and provided that it did not exclude a genuine consideration of the particular application: cf Elder v Ross & Cromarty District Licensing Board 1990 SLT 307 at 311, Centralbite Ltd v Kincardine & District Licensing Board supra. The question therefore was whether the 1990 policy was in any way inconsistent with statute. Mr Anderson compared the terms of the 1980 Act with those of the equivalent English legislation. What was made explicit in the English legislation: that there should be a clear distinction as to physical appearance between vehicles used as taxi-cabs and vehicles used as private hire cars, was implicit in the 1982 Act. Therefore the respondent's policy was not inconsistent with the relevant statue. Deciding what was required to maintain the necessary distinctiveness of, on the one hand, taxis, and, on the other, private hire cars was very much a matter for the local licensing authority with its knowledge of local circumstances: cf R v Bournemouth Borough Council ex p Thompson (1985) 83 LGR 662. That section 10(2) distinguished as between taxis and private hire cars supported the legitimacy of the respondent's approach, as did the averments in the petition explaining that the ways in which taxis and private hire cars operated were different one from the other. As the terms of section 64 of the Transport Act 1980 illustrated, the presence of a bidding light may not be enough to identify a vehicle as a taxi as opposed to a private hire car. The construction that Mr Howlin sought to impose on section 10(2) was too narrow. The subsection was intended to confer a wide discretion on licensing authorities. It was difficult to see how Mr Howlin could on the one hand advance his construction of the subsection and yet, on the other, concede (as he had done expressly) that the respondent had power to maintain the Approved Vehicles List. Such power, the exercise of which allows for good administration and not having constantly to "invent the wheel", could only come from section 10(2).

[21] As far as Wednesbury unreasonableness was concerned, the petitioner's case was entirely irrelevant. The respondent had previously approved the Fiat Scudo as a taxi. In refusing to approve it as a private hire car, the Committee took that fact into account. It was unnecessary for there to be any fact-finding in relation to the potential for confusion. That was a matter within the competence of the Committee applying its own local knowledge.

[22] There was no evidence of the respondent having fettered its discretion. As appeared from the affidavit of Mr John Paul Cassidy, which the petitioner had lodged, the Committee had heard Mr Blyth in support of the application and, as Mr Anderson understood the position, the respondent's licencing officer in reply. The Committee had inspected the vehicle. There had been discussion. The Committee had then retired to consider. All that was prayed in aid in support of the proposition that the Committee's discretion had been fettered by the policy was that the discussion before it had only lasted for ten minutes and that the Committee had only retired for five minutes. Nothing could be inferred from these timings. Different policies will admit of different scope for departure. What was in issue here was relatively straightforward. One cannot assume that a decision-maker has been fettered in his decision-making simply because a policy has been adhered to.

[23] Turning to the EU ground, it was Mr Anderson's submission that the decision complained of was not a measure having the equivalent effect to a quantitative restriction on imports, as prohibited by article 34. No point was taken on behalf of the respondent under reference to article 36 which provides that the provisions of article 34 shall not preclude prohibitions or restrictions on imports which can be justified on certain specified grounds, provided that they do not constitute a means of arbitrary discrimination or disguise restriction on trade between member states. It was true that there was a certain lack of clarity in the relevant decisions of the European Court of Justice but, Mr Anderson submitted, the decision here did not engage article 34 at all. Admitted, the ambit of the prohibition was widely stated in Procureur du Roi v Dassonville supra at para 5, but there were limits. If a measure was not capable of hindering trade there will be no breach. Here, what was in issue was not a trading rule. It was not a clear prohibition. It was not intended to and it did not hinder trade between states. It had no direct impact whatsoever. The decision in question was quite different from the legislative acts which had been found by the Court of Justice to have been struck at by article 34 in Aragonesa de Publicidad [1991] ECR 04151, Ligur Carni [1993] ECR-I-6621, and Campus Oil Ltd v Minister for Industry and Energy [1984] ECR 2727 and, indeed, Dassonville. The facts here were closer to those in Quietlynn Ltd v Southend Borough Council [1991] 1 QB 454 where a prohibition on selling certain articles other than in a licensed sex shop was found to have no connection with intra-community trade since the products covered by the relevant statutory provision might nevertheless still be marketed. Mr Anderson also referred to R v Chief Constable of Sussex ex p International Traders Ferry Ltd [1999] 2 AC 418.

Discussion

[24] As I have already indicated, I had an initial concern over precisely what was the decision that the petitioner was seeking to review here and upon what statutory basis that decision had been made. That concern has been allayed. Strictly, as Mr Anderson confirmed, what was considered by the Committee on 18 January 2012 was an informal application, made in the knowledge of a notorious policy, with a view to the policy being extended to include the Fiat Scudo as a type of vehicle which the respondent would regard as suitable for use as a private hire car. By an "informal" application Mr Anderson meant that it was not an application for the grant of a specific private hire car licence, as is provided for by section 10(2). Nevertheless, as Mr Howlin and Mr Anderson were agreed, entertaining such informal applications was a function which was empowered by the subsection. The lawfulness of the particular policy reaffirmed in 1990 was challenged by Mr Howlin but, as a matter of generality, he did not challenge the lawfulness of a licensing authority such as the respondent having a policy or policies in relation to the sort of vehicle which it would be likely to consider suitable for use as private hire cars, provided, of course, that the licensing authority was prepared to consider departures from the relevant policy in a particular case. That, as Mr Anderson confirmed, has to be so. No complaint was directed at the procedure adopted by the respondent which appears to have been entirely rational and responsive to the commercial interests of those in the position of the petitioner. I can only agree with Mr Anderson that by going about things as it did, the respondent avoided the inefficiency and inconvenience associated with what Mr Anderson described as "reinventing the wheel". However, neither that the respondent's decision was informal nor that the procedure adopted in making it was rational and accommodating, save it from being held to be unlawful in the event of the policy informing the decision being unjustified by statute, the decision being Wednesbury unreasonable, the Committee having fettered its discretion or the decision being in contravention of European Union law. Mr Howlin, on behalf of the petitioner, criticised the decision for all of these reasons and it is to these criticisms that I now turn.

[25] The licensing of hackney carriages and, after the invention of the taximeter, taxi-cabs has a long history. The licensing of private hire cars has a shorter history but the objectives of licensing both sorts of vehicles are the same. In return for the privilege of conveying members of the public for a fare, the licensee undertakes to provide a certain level of service by means of a vehicle which conforms to certain standards. The market for this sort of transportation is being regulated in the public interest. An aspect of that regulation is the division of the market into sectors: taxi-cabs in one sector, private hire cars in another sector. Different conditions apply to the different sectors. Only licensed taxi-cabs can operate in the taxi-cab sector and only licensed private hire cars can operate in the private hire car sector. For such a scheme to work, as Mr Howlin acknowledged in his submissions, the public must be able readily to distinguish among taxis, private hire cars and vehicles which are not licensed (whose drivers may nevertheless be prepared to pick up the unwary). It is therefore entirely rational, indeed essential, that the licensing authority should require taxis and private hire cars to be different in appearance. Again I understood Mr Howlin to accept that, while not identifying a source of power to impose such requirements other than section 10(2) of the 1982 Act. As Mr Anderson pointed out, the equivalent legislation in England and Wales contains specific provisions empowering licensing authorities to require taxis to be of such design or appearance or bear such distinguishing marks as to be clearly identifiable as taxis and require private hire cars not to be of such design and appearance as to lead any person to believe that the vehicle is a taxi (see Local Government (Miscellaneous) Provisions) Act 1976, sections 47 and 48). There are no such specific provisions in the Scottish legislation but, agreeing with Mr Anderson, I would see that the powers conferred on Scottish licensing authorities, such as the respondent, by section 10(2) of the 1982 Act are sufficiently wide to allow the respondent, when assessing the suitability of a particular vehicle for use as a private hire car by reference to its "type, size and design", to include consideration of whether it is sufficiently distinctive in its appearance to avoid confusion with the types of vehicle which are used in the licensing authority's area as taxis. As already touched on, I did not understand Mr Howlin to argue that section 10(2) did not empower the respondent to require vehicles used as private hire cars to have an appearance which was distinct from that of vehicles used as taxis. He specifically conceded that section 10(2) allowed the respondent to maintain an Approved Vehicles List. Mr Howlin's argument was that the respondent had misdirected itself in law by construing section 10(2) as requiring it to ensure that vehicles used as private hire cars had to be distinct in type and design from vehicles used as taxis. I would agree that that would be a misconstruction but I do not find the respondent to have so misconstrued the subsection. That would not be a fair reading of the letter of 2 February 2009 from the Executive Legal Manager (Licensing) and there is nothing else before me to suggest that the decision of 18 January 2012 had proceeded on a misconstruction of the statute. In my opinion, while section 10(2) does not require a licensing authority to ensure that licensed taxis are different in type and design from licensed private hire cars, if a licensing authority considers that they should be different in type and design, then it is within the authority's discretion so to determine and that the powers conferred by section 10(2) are sufficient to permit the licensing authority to ensure that this is so by, for example, adopting a published policy to that effect and maintaining an approved vehicles list.

[26] It is accordingly my opinion that in adopting the policy reaffirmed in 1990, maintaining an approved vehicles list and making the decision complained of, the respondent was acting intra vires. The petitioner's challenge on the ground of error of law therefore fails.

[27] In my opinion the petitioner's challenge on Wednesbury unreasonableness also fails. The starting point in a consideration of this challenge is Mr Howlin's concession that there was nothing unlawful or unreasonable in the respondent's reaffirmation of its policy as at 1990 in terms of the text which I have reproduced above. As at 1990 the respondent approved only two vehicle types for use as taxis, the FX4 and the Metrocab. Mr Howlin was at pains to emphasise that these two vehicle types were variants on the "classic London cab". Lest I be in any doubt about the matter, he produced a photograph of the FX4 and photograph of the Metrocab for my inspection. Thus, submitted Mr Howlin, the respondent's policy was directed at purpose-built taxis which obviously look as though they could not be anything other than a taxi. As at 1990 the policy was therefore reasonable in prohibiting the use of London cab vehicle types as private hire cars in that were London cab vehicle types to be so used, there would obviously be a risk of confusion in the minds of members of the public. This was not the case with the Fiat Scudo vehicle type. This was, as Mr Howlin described it, "neutral ... it could be anything". Accordingly, it could not be said that the Fiat Scudo used as a private hire car in the respondent's area would be confused with a taxi, at least in the absence of evidence, of which there was none.

[28] I am entirely unpersuaded by this aspect of Mr Howlin's argument. It has to be borne in mind that it is for the respondent, as licensing authority, to determine what sort of vehicle is suitable for use as a private hire car in its area. As I have set out above, I consider that when considering suitability, the licensing authority is entitled to have regard to the desirability of private hire cars being readily identifiable as such and not being confused with taxis. I would understand Mr Howlin to accept that. He specifically accepted the rationality of a policy which did not approve the London cab type for use as a private hire car on the ground that this might give rise to confusion in the minds of the public. I therefore had some difficulty in understanding his contention that it was irrational (or at least Wednesbury unreasonable) for the respondent, having approved the Fiat Scudo type for use as a taxi, refusing to approve its use as a private hire car on the ground that were the same vehicle type to be operated both as taxis and private hire cars there would be a risk of confusion in the minds of the public. For those of a certain generation living in certain parts of the country, the London cab vehicle type will no doubt have a very strong association with the notion of a "taxi". However, it does not follow this is the only vehicle type which will come to be associated in the minds of the public with a taxi. Perceptions change depending upon what one is familiar with. A London cab is instantly recognisable as a taxi because of its distinctive shape. Other vehicle shapes, as determined by type, while perhaps not quite so distinctive, may be similarly recognisable. That a vehicle may be identifiable as a taxi by reason of a bidding light, additional special signage and a particular livery does not mean that a licensing authority is bound to take the view that such indicators are sufficient to identify a particular vehicle as a licensed taxi-cab.

[29] I have not been satisfied that the respondent has, in applying its policy, unlawfully fettered its discretion. The respondent entertained the petitioner's application as it has entertained other applications. The petition identifies two occasions when the respondent has in fact departed from its policy. It may be that there only have been two such occasions but, as Mr Anderson submitted, generally consistent application of a relevant policy does not necessarily mean that a decision-maker has closed its mind to the possibility of departing from the policy. Moreover, again as Mr Anderson submitted, some policies will lend themselves more readily to a departure than others. As I see it, the policy here has the rational objective of forming in the mind of the public a perception of what sort of vehicles may be used as licensed taxis and, therefore, what sort of vehicles may not be used as licensed taxis. Maintaining an authorised vehicle list is, in my opinion, a lawful means of facilitating the attainment of that objective. The respondent is, in my opinion, entitled to take the view that it does not take many departures from such a policy before the objective of forming a firm perception in the public mind is materially compromised.

[30] Mr Howlin argues that the decision of 18 January 2012 constitutes a measure having the equivalent effect to a quantitative restriction on imports from a member state of the European Union and therefore is struck at by article 34 of the Treaty on the Functioning of the European Union.

[31] The proposition that a decision that a particular vehicle type which may be freely imported into the United Kingdom and there put to a variety of uses cannot (once it has been appropriately adapted) be put to the specific use of private hire car in a particular licensing area because the same vehicle type is already approved for use as a taxi must be regarded as a measure having the equivalent effect to a quantitative restriction on the importation of such vehicle types into the United Kingdom is, at first blush, somewhat surprising. If correct, it would seem to follow that, subject to article 36 of the Treaty, any requirement which had the result of excluding a particular product from any portion of its potential market in a member state is unlawful. In the specific field of taxi licencing, all authorities throughout the United Kingdom which restrict licences to London cabs, or indeed impose any restriction on vehicle type, will be in breach of the Treaty provisions. Indeed, any system of licensing that may potentially restrict the number or types of vehicles operated as taxis or private hire cars in a particular area within the United Kingdom would seem to be struck at. However, simply because a proposition or its apparent consequences are surprising does not mean that the proposition is wrong. Mr Howlin pointed to the stark terms in which the effect of what is now article 34 was stated in Dassonville at para 5:

"All trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade are to be considered as measures having an effect equivalent to quantitative restrictions."

The article 34 prohibition applies to all measures having such effect, not just trading rules and not just measures which are intended to have that effect: Campus Oil Ltd v Minister for Industry and Energy supra at para 15. Mr Anderson pointed out that the cases relied on by Mr Howlin had all related to legislative measures, whereas what was in issue in the present case was an administrative decision. That, however, is not critical. A variety of non-legislative measures have been found relevant for the purposes of article 34: Campus Oil supra and see, eg, Oliver Free Movement of Goods in the European Community, (3^rd Edition), paras 6.14 to 6.16. Moreover, Mr Howlin submitted, on the authority of Joined Cases 177 and 178/82 Van de Haar [1984] ECR 1797 at paras 13 and 14, that there was no de minimis rule. In other words, simply because the consequential hindrance to trade is slight, that does not prevent a measure being held to be the equivalent to a quantitative restriction.

[32] Van de Haar was a reference for a preliminary ruling under what was then article 177 of the Treaty. In answering the referred questions the Court of Justice said this at paragraph 14:

"A court called upon to consider whether national legislation is compatible with [article 34] must decide whether the measure in question is capable of hindering, directly or indirectly, actually or potentially, intra-community trade. That may be the case even though the hindrance is slight and even though it is possible for imported products to be marketed in other ways."

[33] In response to the terse and very generally stated dicta of the European Court of Justice relied on by Mr Howlin, Mr Anderson asserted that the decision complained of here had nothing to do with international trade. The reality was that its connection with imports was non-existent. The matter had to be looked at in a more nuanced way than that which might be suggested by the passages cited in Dassonville and Van de Haar. He referred to what had been said, both by the Advocate General and by the Court in Quietlynn Ltd v Southend Borough Council supra.

[34] I agree with Mr Anderson. There is no question of what the petitioner characterises as a measure, having been intended to regulate trade in goods with another member state. Indeed, on the basis of the information with which I was provided, there would appear to be no trade between member states in the Fiat Scudo vehicle type in a form suitable for use as a private hire car. It is necessary that the body of what Mr Howlin described as a light van be adapted by a Scottish coach builder before it can be used in the way intended by the petitioner. The petitioner does not offer to prove any actual reduction in imports of the relevant vehicle type, merely that were it to be approved for use by the respondent as a private hire car, it would be the petitioner's intention to purchase some 25 vehicles (presumably from Scotcab, the Scottish coachbuilders which carries out the necessary adaptations). Without going any further, there would therefore appear to be at least a question as to whether the effect of the challenged decision upon the free movement of goods within the European Union might not be too uncertain and too indirect for it to be regarded as truly capable of hindering trade between member states. That the reason why the Fiat Scudo was not approved by the respondent for use as a private hire car, with such reduction in demand as that might entail, was because it had already been approved for use as a taxi-cab, with the increase in demand which that might entail, would merely make any supposed restriction in imports more doubtful. However, as appears from the decision of the European Court in Quietlynn, whatever might be suggested by a consideration of Dassonville and de Haar in isolation, a more comprehensive appraisal of the relevant case law indicates that simply because the implementation of a scheme of regulation has the result of reducing the level of imports of goods of a certain sort, that is not in itself sufficient to involve a contravention of what is now article 34.

[35] Quietlynn Ltd v Southend Council supra was an application for a preliminary ruling by the Crown Court at Chelmsford. The Local Government (Miscellaneous Provisions) Act 1982 provided local authorities in England and Wales with the power to control sex cinemas and sex shops in their areas. In particular, it empowered those authorities to bring certain provisions of the Act into force in their areas by passing a resolution to that effect in terms of which a licence was required if premises were used for a business which consisted to a significant degree in selling or displaying articles made or intended for use in connection with, or for the purpose of stimulating or encouraging, sexual activity. The defendants, Quietlynn Ltd and its managing director, were convicted by Southend Magistrates Court of using their premises for the sale of sex articles contrary to the Act. The defendants appealed to the Crown Court. Their sole defence was that the provisions of the Act relating to the licensing system for sex establishments and offences against that system were incompatible with article 30 of the EEC Treaty, in as much as they constituted a measure having an effect equivalent to a quantitative restriction on imports from other member states and fell within neither one of the exceptions provided for in article 36 nor any other derogation. The goods offered for sale in the shop in question were at the material times lawfully on sale, apart from the operation of the Act. It appeared to the Crown Court that the effect of the 1982 Act was to reduce indirectly in absolute terms the quantity of sex articles imported into the United Kingdom for the defendants to be able to sell. The Crown Court therefore requested the Court of Justice to give a preliminary ruling on a number of questions. The first question (which if answered in the negative would not require the subsequent questions to be answered) was in these terms:

"1. Where a member state (once a local authority has resolved that the legislation is to apply to their area subject to the requirement for premises which are sex establishments to be licensed) prohibits the sale (inter alia) of lawful sex articles from unlicensed sex establishments, and where the effect of such a prohibition is to enable the local authority to exercise control over sex establishments within their area, and where the effect is to have restricted the appellants from selling goods from other member states since they have been attempting not to contravene the Act by their stocking policy and in doing so have been selling less imported material from member states than would otherwise have been the case and thus to restrict the availability of sex articles manufactured in other member states; is such a prohibition a measure having equivalent effect to a quantitative restriction on imports within the meaning of article 30 of the E.E.C. Treaty?"

[36] In giving his opinion to the Court, Advocate General Lenz accepted that if sex articles could be sold without the hindrance of the 1982 Act, sales would be more extensive and the volume of imports therefore greater. Thus, on the basis of what he described as the Dassonville "formula", such a reduction in imports would justify the application of what was then article 30 and is now article 34. But, having said as much at paras 5 and 6 of his opinion, the Advocate General continued, at paras 7 et seq:

"7. However, a comprehensive appraisal of the relevant case law makes clear that this consideration is not in itself sufficient. In fact, that formula is merely a starting point for the requisite examination. Further factors must then also be taken into account and, as the Commission of the European Communities and other parties have shown, each case must be decided on its own merits.

8. Accordingly, if the case law is looked at more closely and it is borne in mind that, in the present case, there is no outright prohibition on the sale of certain products but rather that marketing rules apply which, under certain circumstances, preclude those products from being sold in certain places (where sales reach a significant degree), comparable situations may readily be encountered in earlier cases also concerning only the nature and method of marketing of products, in respect of which it was found that article 30 did not apply (although some impact on imports could not be ruled out)."

The Advocate General then considered a number of cases including Case 155/80 Oebel [1981] 1993 ECR 1993 and Case 75/81 Blesgen v Belgium [1982] ECR 1211. Having done so, he continued:

"13. In the light of this case law it has been suggested, in my view not without some justification, that a similar conclusion should be arrived at in the present case and it should be found that the provisions at issue in the main dispute are not within the scope of article 30 of the E.E.C. Treaty. In fact, in this case as well there are good reasons for stating that the Local Government (Miscellaneous Provisions) Act 1982 has nothing to do with international trade because the sale of the articles contemplated is in any case possible by means other than sex shops, in particular through businesses which require no licence (because the sale of sex articles does not reach a significant degree) or by means of mail order, even if in this case, as was stated at the hearing, certain restrictions apply (irrespective of the origin of the products).

14. The other judgments mentioned in the proceedings are, it has to be said, basically not relevant and therefore provide no grounds for arriving at a different assessment in the present case."

[37] The Court of Justice agreed with the approach of the Advocate General, as appears from para 11 of the Court's judgment where, having previously cited Oebel and Blesgen, it said:

"11. It must also be pointed out that the provisions prohibiting the sale of sex articles from unlicensed sex establishments have in fact no connection with intra-Community trade, since the products covered by the Act may be marketed through licensed sex establishments and other channels, that is to say through shops in which sex articles account for only an insignificant proportion of sales and which are therefore not required to be licensed, or by mail order. Moreover, those provisions are not intended to regulate trade in goods within the Community and they are therefore not of such a nature as to impede trade between member states."

And accordingly it continued at para 12:

"12. The answer to the first question must therefore be that article 30 of the E.E.C. Treaty should be construed as meaning that national provisions prohibiting the sale of lawful sex articles from unlicensed sex establishments do not constitute a measure having an effect equivalent to a quantitative restriction on imports."

[38] I was not referred to any of the decisions of the Court of Justice on this point subsequent to Quietlynn. I was not, for example, referred to Joined Cases C-267 and C-268/91 Keck and Mithouard [1993] ECR I-6097. I therefore proceed upon the basis that parties were agreed that, for the purposes of this petition, Quietlynn represents the law. Taking that to be so, it is clear that even where a measure is likely to have an adverse impact on the volume of imports, that of itself does not mean that it is necessarily to be regarded as having equivalent effect to a quantitative restriction on imports into a member state and therefore prohibited by what is now article 34. What Advocate General Lenz, at para 5 of his opinion in Quietlynn, refers to as the "formula" set out in Dassonville appears in para 5 in the judgment of the Court in Procureur du Roi v Dassonville supra. It is as follows:

"All trading rules enacted by member states which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade are to be considered as measures having an effect equivalent to quantitative restrictions."

Mr Howlin relied on that formula, reminding me that "trading rules" should be rendered simply as "measures" (which is the expression used in article 34) and that the act of a local authority was to be regarded as the act of a member state. Because, so Mr Howlin asserted, the decision complained of would reduce the demand in a part of the United Kingdom for Fiat Scudo vans and because the vans were manufactured in France, the volume of imports of the vans would of necessity be reduced and therefore the decision complained of must be regarded as a measure having equivalent effect to a restriction on imports. That approach, and I do not see the petitioner to take the matter any further than that, either in averment or in argument, respectfully appears to me to be no more than an example of a mechanical application of the Dassonville formula such as was said by the Advocate General, at para 7 of his opinion in Quietlynn, not to be sufficient to lead to an application of what is now article 34.

[39] I have already touched on some of my difficulties in coming to the conclusion which Mr Howlin urged upon me. At risk of some repetition I would add this by way of explanation as to why I accept Mr Anderson's submission and reject Mr Howlin's.

[40] I accept that the decision complained of is a measure attributable to a member state and therefore to that extent is within the scope of article 34. I do not accept that either conceptually or, on the averments in this petition, factually, it can be regarded as having equivalent effect to a quantitative restriction on imports. On the approach of the Advocate General in Quietlynn, which was endorsed by the Court, and, I would suggest of necessity when what is in issue is equivalency, before coming to a conclusion on the application of article 34 it is necessary to have regard to the whole circumstances of the case because, as the Advocate General put it, "each case must be decided on its own merits." Looking then to the circumstances, there is no suggestion that the measure here was intended to prevent imports from other member states or to restrict the volume of such imports or to make their importation more difficult or more expensive. That, of course, is not of itself determinative, although it is a factor to which the Court clearly had regard in Quietlynn. However, the matter goes further, in that there is nothing in the measure that, as a matter of fact, prevents, or restricts, or makes more difficult or expensive the importation either of a particular type of light van (the Fiat Scudo) or light vans in general. A matter that was not pursued in argument was the relevance of a measure impacting upon the importation of one specific product as opposed to the importation of all products of a particular sort. One might suppose if fewer Fiat Scudos are imported from France for the purpose of adaptation as private hire cars then more vehicles of other types will be imported from other member states with a motor industry. Here, the petitioner avers that the effect of the decision complained of is to restrict imports of the Fiat Scudo, albeit that is also "apt to restrict" imports of the Peugeot Expert and of certain variants of the Mercedes Vito or Viano. I shall have something further to say about these averments but, for present purposes, in the absence of argument to the contrary, I shall assume that a measure that has an effect equivalent to a quantitative restriction on the import of a specific product manufactured in another member state (but not other products of the same sort) may be caught by the prohibition in article 34. Taking the contention then as being that the decision complained of has an equivalent effect to a quantitative restriction on the import of Fiat Scudos, I consider that Mr Anderson was fully entitled to submit, as he did, that the decision complained of has nothing to do with international trade. It has to do with the licensing of private hire cars and therefore a particular use (as a licensed private hire car) to which a Fiat Scudo van, once suitably adapted, can be put. The decision has no impact whatsoever upon the various other uses, including use as a taxi, to which a suitably adapted Fiat Scudo can be put in the United Kingdom. Just as the decision does not restrict importation of the Fiat Scudo (at least directly), it does not restrict the sale of the Fiat Scudo in the United Kingdom, whether in its form when imported or after it has been adapted. The analogy is imperfect but the effect complained of here, the exclusion of a product from a highly specific part of its potential market, looks to be similar to that attributed to measures not found in breach of the Treaty prohibition in Oebel (prohibition of sale of bakery goods to individual consumers at certain times of the night), Blesgen (prohibition of sale of certain alcoholic beverages in Belgian public houses) and Quietlynn. Features of these cases to which Advocate General Lenz drew attention were that the measures complained of did not prohibit sale of the goods in question and that intra-Community trade in the goods remained possible. That is true in the present case in respect of the trade in Fiat Scudo vans. Advocate General Lenz characterised the measures under consideration in Oebel, Blesgen and Quietlynn as to do with the nature and method of marketing products. That may not be so in the present case but I do not consider that that assists the petitioner's argument. A measure which restricts the way in which an imported product may be marketed has to do with trade in the product in question and therefore has to do with the market for that product in a particular member state. Such a measure, if having an adverse effect on the volume of imports, would seem closer conceptually to a measure having an equivalent effect to a restriction on the volume of imports than a measure, such as the decision in the present case, which is only concerned with one particular use to which the product may be put. If the measures in Oebel, Blesgen and Quietlynn were not struck at by what is now article 34 then, a fortiori, neither is the decision complained of here.

[41] It is accordingly my opinion that even if it be assumed in the petitioner's favour that the respondent's decision will have some (albeit very slight) adverse impact on the number of Fiat Scudo vans imported into the United Kingdom, it cannot in any meaningful way be described as a measure having equivalent effect to a quantitative restriction on imports and therefore it is not unlawful by virtue of contravention of article 34. However, had it been necessary for me so to decide, I would have found the petition to be irrelevant insofar as directed at the EU ground in that the petitioner does not offer to prove, by way of sufficiently specific averments, that the decision complained of is, as a matter of fact, likely to restrict the volume of imports of the Fiat Scudo van into the United Kingdom from other member states, far less the volume of all similar vehicles from other member states. The nearest the petitioner gets to such averments are those found at statement 5.5.4 of the petition which are in the following terms:

"5.5.4 The effect of the decision complained of is to restrict imports into one Member State, the United Kingdom, of goods from another Member State, France. The goods in question are the Scudo vehicle manufactured by SEVEL in France, though the policy which underlines the decision is apt to restrict, also, imports into the United Kingdom of the Peugeot Expert and of certain variants of the Mercedes Vito or Viano. The effect of the decision, in so far as it affects vehicles approved by the Council for use as taxi cabs or as private hire cars in the Glasgow area, is to restrict the import of the Fiat Scudo for the purpose of being adapted for use as a private hire car in that area. The decision is therefore a measure having equivalent effect to a quantitative restriction on imports between Member States. Nothing in the restriction is justified by the terms of Article 36 of the Treaty.

There may be cases where it is so self-evident that a measure will reduce the volume of imports from a member state that an assertion along the lines of that contained in the first sentence of the averments quoted above would suffice. I do not see this as such a case. As Advocate General Lenz said in Quietlynn, each case must be decided on its own merits. The matter is fact-sensitive. I recognise that the Dassonville formula only requires that a measure be "capable of hindering, directly or indirectly, actually or potentially, intra-Community trade" and thus, as a matter of generality, it may not be necessary to show that a measure actually restricts imports before it is held to contravene article 34, but only that it potentially does so: see eg Oliver supra at para 6.22. However, in the circumstances of the present case, where any connection between the decision complained of and the likely volume of imports of Fiat Scudo vans, let alone vans in general, looks to be at best remote and uncertain, before upholding the contention that a refusal to add the Fiat Scudo to the respondent's Approved Vehicle List amounted to a measure having equivalent effect to a quantitative restriction on imports I would require to hear evidence that such an effect was at least likely. Otherwise it would seem to me that the supposed equivalence of the effect of the decision complained of and a quantitative restriction remains in the realms of speculation.

[42] I will dismiss the petition. I reserve all questions of expenses.