Opinion of Advocate General Rantos delivered on 7 September 2023.
| Jurisdiction | European Union |
| ECLI | ECLI:EU:C:2023:648 |
| Date | 07 September 2023 |
| Celex Number | 62022CC0167 |
| Court | Court of Justice (European Union) |
Provisional text
OPINION OF ADVOCATE GENERAL
RANTOS
delivered on 7 September 2023 (1)
Case C‑167/22
European Commission
v
Kingdom of Denmark
(Failure of a Member State to fulfil obligations – Road transport – Regulation (EC) No 1072/2009 – Article 8 – Cabotage operations – General principle – Article 9 – Rules applicable to cabotage operations – Regulation (EC) No 561/2006 – Rest periods – National legislation introducing a maximum parking time at public rest areas along the motorway network – Limitation to 25 hours – Article 56 TFEU – Restriction on the freedom to provide road transport services)
Introduction
1. By its action for failure to fulfil obligations, the European Commission asks the Court to declare that the Kingdom of Denmark has failed to fulfil its obligations under the provisions of EU law relating to the freedom to provide road transport services set out in Articles 1, 8 and 9 of Regulation (EC) No 1072/2009, (2) by imposing a maximum parking time of 25 hours for lorries at rest areas on the public motorway network (‘the 25-hour rule’). It claims that that rule makes it more difficult for a driver to comply with the regular weekly rest period of at least 45 hours or with a reduced weekly rest period of 24 to 45 consecutive hours, as provided for in Article 8 of Regulation (EC) No 561/2006, (3) which, therefore, constitutes a restriction on the freedom to provide road transport services and is not justified by any of the overriding reasons of public interest cited by the Kingdom of Denmark.
2. The questions raised by the present case are therefore whether the 25-hour rule constitutes a restriction on the freedom to provide road transport services and, if so, whether that rule can be justified by overriding reasons of public interest.
Legal framework
European Union law
3. Article 1 of Regulation No 1072/2009, entitled ‘Scope’, provides, in paragraphs 1 and 4 thereof:
‘1. This Regulation shall apply to the international carriage of goods by road for hire or reward for journeys carried out within the territory of the Community.
…
4. This Regulation shall apply to the national carriage of goods by road undertaken on a temporary basis by a non-resident haulier as provided for in Chapter III.
…’
4. Article 8 of that regulation, entitled ‘General principle’, provides:
‘1. Any haulier for hire or reward who is a holder of a Community licence and whose driver, if he is a national of a third country, holds a driver attestation, shall be entitled, under the conditions laid down in this Chapter, to carry out cabotage operations.
2. Once the goods carried in the course of an incoming international carriage have been delivered, hauliers referred to in paragraph 1 shall be permitted to carry out, with the same vehicle, or, in the case of a coupled combination, the motor vehicle of that same vehicle, up to three cabotage operations following the international carriage from another Member State or from a third country to the host Member State. The last unloading in the course of a cabotage operation before leaving the host Member State shall take place within 7 days from the last unloading in the host Member State in the course of the incoming international carriage.
Within the time limit referred to in the first subparagraph, hauliers may carry out some or all of the cabotage operations permitted under that subparagraph in any Member State under the condition that they are limited to one cabotage operation per Member State within 3 days of the unladen entry into the territory of that Member State.
…’
5. Article 9 of the regulation, entitled ‘Rules applicable to cabotage operations’, states:
‘1. The performance of cabotage operations shall be subject, save as otherwise provided in Community legislation, to the laws, regulations and administrative provisions in force in the host Member State with regard to the following:
…
(d) the driving time and rest periods;
…
2. The laws, regulations and administrative provisions referred to in paragraph 1 shall be applied to non-resident hauliers under the same conditions as those imposed on hauliers established in the host Member State, so as to prevent any discrimination on grounds of nationality or place of establishment.’
6. Under Article 1 of Regulation No 561/2006 (4):
‘This Regulation lays down rules on driving times, breaks and rest periods for drivers engaged in the carriage of goods and passengers by road in order to harmonise the conditions of competition between modes of inland transport, especially with regard to the road sector, and to improve working conditions and road safety. This Regulation also aims to promote improved monitoring and enforcement practices by Member States and improved working practices in the road transport industry.’
7. Article 4 of that regulation provides:
‘For the purposes of this Regulation the following definitions shall apply:
…
(f) “rest” means any uninterrupted period during which a driver may freely dispose of his time;
(g) “daily rest period” means the daily period during which a driver may freely dispose of his time and covers a “regular daily rest period” and a “reduced daily rest period”:
– “regular daily rest period” means any period of rest of at least 11 hours. Alternatively, this regular daily rest period may be taken in two periods, the first of which must be an uninterrupted period of at least 3 hours and the second an uninterrupted period of at least nine hours,
– “reduced daily rest period” means any period of rest of at least nine hours but less than 11 hours;
(h) “weekly rest period” means the weekly period during which a driver may freely dispose of his time and covers a “regular weekly rest period” and a “reduced weekly rest period”:
– “regular weekly rest period” means any period of rest of at least 45 hours,
– “reduced weekly rest period” means any period of rest of less than 45 hours, which may, subject to the conditions laid down in Article 8(6), be shortened to a minimum of 24 consecutive hours;
…’
8. Article 8 of the regulation reads as follows:
‘…
6. In any two consecutive weeks a driver shall take at least:
– two regular weekly rest periods, or
– one regular weekly rest period and one reduced weekly rest period of at least 24 hours. However, the reduction shall be compensated by an equivalent period of rest taken en bloc before the end of the third week following the week in question.
A weekly rest period shall start no later than at the end of six 24-hour periods from the end of the previous weekly rest period.
…
7. Any rest taken as compensation for a reduced weekly rest period shall be attached to another rest period of at least nine hours.
8. Where a driver chooses to do this, daily rest periods and reduced weekly rest periods away from the base may be taken in a vehicle, as long as it has suitable sleeping facilities for each driver and the vehicle is stationary.
9. A weekly rest period that falls in two weeks may be counted in either week, but not in both.’
Danish law
9. The 25-hour rule is not expressly laid down in Danish legislation or administrative provisions. That rule, which was introduced further to a political agreement concerning the 2018 Finance Law, (5) applies pursuant to Paragraph 92(1) of the færdselsloven (Highway Code) (6) and entered into force on 1 July 2018. (7)
Background to the dispute and pre-litigation proceedings
10. Further to information received by associations in the road transport sector, the Commission, regarding the 25-hour rule as constituting a restriction on the freedom to provide transport services, commenced infringement proceedings against the Kingdom of Denmark.
11. In the context of those proceedings, the Commission sent the Danish Government a request for information on 2 May 2018, a letter of formal notice on 20 July 2018, a request for further information on 14 January 2019 and a reasoned opinion on 15 May 2020. Finding the arguments put forward at each stage by the Danish Government to be unconvincing, it brought an action for failure to fulfil obligations.
Procedure before the Court and forms of order sought
12. By application of 4 March 2022, the Commission brought the present action.
13. Written observations were submitted to the Court by the Danish and Polish Governments and by the Commission. The Danish Government and the Commission also presented oral argument at the hearing held on 25 May 2023.
14. The Commission claims that the Court should:
– declare that, by limiting to 25 hours the maximum parking time at the public rest areas of the motorway network in Denmark, the Kingdom of Denmark has failed to fulfil its obligations under the rules on the freedom to provide transport services laid down in Articles 1, 8 and 9 of Regulation No 1072/2009;
– order the Kingdom of Denmark to pay the costs.
15. The Kingdom of Denmark contends that Court should:
– dismiss the action;
– order the Commission to pay the costs.
Analysis
Admissibility
16. The Danish Government contends that the action is inadmissible because, first, it does not satisfy the requirements of consistency, clarity and precision necessary pursuant to Article 120 of the Rules of Procedure of the Court of Justice (8) and, second, there is a lack of consistency between the form of order sought and the pleas in law relied on in the application. (9)
17. In response, the Commission argues that the form of order sought in the application and the pleas in law relied on and arguments raised in support of that form of order are set out clearly and precisely.
18. In my view, it is clear from the application that, in the Commission’s opinion, the 25-hour rule infringes the general principles relating to the freedom to provide transport services for goods within the European Union, laid down in Articles 1, 8 and 9 of Regulation No 1072/2009, on the ground that that rule limits the possibility of...
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