Deutsche Post AG and Klaus Leymann v Land Nordrhein-Westfalen.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2019:999
• Docket Number: C-203/18,C-374/18
• Celex Number: 62018CJ0203
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Date: 21 November 2019

Provisional text

JUDGMENT OF THE COURT (Third Chamber)

21 November 2019 (*)

(Reference for a preliminary ruling — Regulation (EC) No 561/2006 — Road transport — Social legislation — Vehicles used to deliver items as part of the universal postal service — Exceptions — Vehicles partly used for such delivery — Directive 97/67/EC — Article 3(1) — ‘Universal service’ — Concept)

In Joined Cases C‑203/18 and C‑374/18,

REQUESTS for a preliminary ruling under Article 267 TFEU from the Oberverwaltungsgericht für das Land Nordrhein-Westfalen (Higher Administrative Court for the Land of North Rhine-Westphalia, Germany) (C‑203/18), made by decision of 21 February 2018, received at the Court on 20 March 2018, and from the Landgericht Köln (Regional Court, Cologne, Germany) (C‑374/18), made by decision of 22 May 2018, received at the Court on 7 June 2018, in the proceedings

Deutsche Post AG,

Klaus Leymann

v

Land Nordrhein-Westfalen (C‑203/18),

and

UPS Deutschland Inc. & Co. OHG,

DPD Dynamic Parcel Distribution GmbH & Co. KG,

Bundesverband Paket & Expresslogistik eV

v

Deutsche Post AG (C‑374/18),

THE COURT (Third Chamber),

composed of A. Prechal, President of the Chamber, L.S. Rossi (Rapporteur) and J. Malenovský, Judges,

Advocate General: P. Pikamäe,

Registrar: D. Dittert, Head of Unit,

having regard to the written procedure and further to the hearing on 28 March 2019,

after considering the observations submitted on behalf of:

– Deutsche Post AG and Mr Leymann, by T. Mayen and B. Stamm, Rechtsanwälte,

– Land Nordrhein-Westfalen, by A. Baron-Barth and B. Spieles, acting as Agents,

– UPS Deutschland Inc. & Co. OHG, DPD Dynamic Parcel Distribution GmbH & Co. KG and Bundesverband Paket & Expresslogistik eV, by S. Maaßen and P. Pommerening, Rechtsanwälte,

– Deutsche Post AG, by K. Hamacher, Rechtsanwalt,

– the Polish Government, by B. Majczyna, acting as Agent,

– the European Commission, by W. Mölls and J. Hottiaux, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 13 June 2019,

gives the following

Judgment

1 These requests for a preliminary ruling concern the interpretation of Article 13(1)(d) of Regulation (EC) No 561/2006 of the European Parliament and of the Council of 15 March 2006 on the harmonisation of certain social legislation relating to road transport and amending Council Regulations (EEC) No 3821/85 and (EC) No 2135/98 and repealing Council Regulation (EEC) No 3820/85 (OJ 2006 L 102, p. 1), as amended by Regulation (EU) No 165/2014 of the European Parliament and of the Council of 4 February 2014 (OJ 2014 L 60, p. 1) (‘Regulation No 561/2006’).

2 The requests have been made in proceedings between (1) postal operator Deutsche Post AG and the transport manager of its Bonn branch (Germany), Mr Leymann (together ‘Deutsche Post and another’), and (2) Land Nordrhein-Westfalen (Case C‑203/18); and between (1) UPS Deutschland Inc. & Co. OHG, DPD Dynamic Parcel Distribution GmbH & Co. KG and Bundesverband Paket & Expresslogistik eV, (together ‘UPS Deutschland and others’) and (2) postal operator Deutsche Post (Case C‑374/18), concerning the application, to carriage by Deutsche Post vehicles, of rules on driving times, breaks and rest periods for drivers engaged in the carriage of goods and passengers by road.

Legal context

European Union law

Regulation No 561/2006

3 According to recitals 4, 17, 22 and 23 of Regulation No 561/2006:

‘(4) Effective and uniform enforcement of [the provisions of Regulation (EEC) No 3820/85 relating to driving time, break and rest period rules for drivers engaged in national and international road transport within the Community] is desirable if their objectives are to be achieved and the application of the rules is not to be brought into disrepute. Therefore, a clearer and simpler set of rules is needed, which will be more easily understood, interpreted and applied by the road transport industry and the enforcement authorities.

…

(17) This Regulation aims to improve social conditions for employees who are covered by it, as well as to improve general road safety. It does so mainly by means of the provisions pertaining to maximum driving times per day, per week and per period of two consecutive weeks, the provision which obliges drivers to take a regular weekly rest period at least once per two consecutive weeks and the provisions which prescribe that under no circumstances should a daily rest period be less than an uninterrupted period of nine hours. Since those provisions guarantee adequate rest, and also taking into account experience with enforcement practices during the past years, a system of compensation for reduced daily rest periods is no longer necessary.

…

(22) In order to promote social progress and improve road safety, each Member State should retain the right to adopt certain appropriate measures.

(23) National derogations should reflect changes in the road transport sector and be restricted to those elements not now subject to competitive pressures.’

4 Article 1 of Regulation No 561/2006 provides:

‘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.’

5 Article 2(1)(a) of that regulation states:

‘This Regulation shall apply to the carriage by road:

(a) of goods where the maximum permissible mass of the vehicle, including any trailer, or semi-trailer, exceeds 3.5 tonnes, …’

6 Articles 5 to 9 of Regulation No 561/2006 set out the rules applicable to transport vehicle crews, driving time, breaks and rest periods.

7 Chapter IV of that regulation, headed ‘Exceptions’, includes Article 13, according to which:

‘1. Provided the objectives set out in Article 1 are not prejudiced, each Member State may grant exceptions from Articles 5 to 9 and make such exceptions subject to individual conditions on its own territory or, with the agreement of the States concerned, on the territory of another Member State, applicable to carriage by the following:

…

(d) vehicles or combinations of vehicles with a maximum permissible mass not exceeding 7.5 tonnes used by universal service providers as defined in Article 2(13) of Directive 97/67/EC of the European Parliament and of the Council of 15 December 1997 on common rules for the development of the internal market of Community postal services and the improvement of quality of service [(OJ 1998 L 15, p. 14)] to deliver items as part of the universal service.

These vehicles shall be used only within a 100 km radius from the base of the undertaking, and on condition that driving the vehicles does not constitute the driver’s main activity;

(e) vehicles operating exclusively on islands not exceeding 2 300 square kilometres in area which are not linked to the rest of the national territory by a bridge, ford or tunnel open for use by motor vehicles;

…

(i) vehicles with between 10 and 17 seats used exclusively for the non-commercial carriage of passengers;

…

(o) vehicles used exclusively on roads inside hub facilities such as ports, interports and railway terminals;

…’

Directive 97/67

8 According to recital 18 of Directive 97/67, as amended by Directive 2008/6/EC of the European Parliament and of the Council of 20 February 2008 (OJ 2008 L 52, p. 3) (‘Directive 97/67’):

‘Whereas, in view of the fact that the essential difference between express mail and universal postal services lies in the value added (whatever form it takes) provided by express services and perceived by customers, the most effective way of determining the extra value perceived is to consider the extra price that customers are prepared to pay, without prejudice, however, to the price limit of the reserved area which must be respected.’

9 Article 2(13) of Directive 97/67 provides:

‘For the purposes of this Directive, the following definitions shall apply:

…

(13) universal service provider: the public or private postal service provider providing a universal postal service or parts thereof within a Member State, the identity of which has been notified to the Commission in accordance with Article 4.’

10 Article 3(1), (4) and (5) of Directive 97/67 provides:

‘1. Member States shall ensure that users enjoy the right to a universal service involving the permanent provision of a postal service of specified quality at all points in their territory at affordable prices for all users.

…

4. Each Member State shall adopt the measures necessary to ensure that the universal service includes the following minimum facilities:

…

– the clearance, sorting, transport and distribution of postal packages up to 10 kilograms,

…

5. The national regulatory authorities may increase the weight limit of universal service coverage for postal parcels to any weight not exceeding 20 kilograms and may lay down special arrangements for the door-to-door delivery of such parcels.

…’

German law

11 The Verordnung zur Durchführung des Fahrpersonalgesetzes (Regulation implementing the Law on driving crews) of 27 June 2005 (BGBl. 2005 I, p. 1882), as last amended by the Regulation of 8 August 2017 (BGBl. 2017 I, p. 3158) (‘the FPersV’), was adopted by the Bundesministerium für Verkehr, Bau- und Stadtentwicklung (Federal Ministry of Transport, Building and Urban Development, Germany) for the purpose of implementing, in the German legal order, Regulation No 561/2006.

12 Paragraph 1 of the FPersV, headed ‘Driving time and rest periods in the field of road transport’, provides:

‘(1) Drivers

1. of vehicles used for the carriage of goods and where the maximum permissible mass of the vehicle, including any trailer, or semi-trailer, exceeds 2.8...