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
Regulation No 1072/2009
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.’
Regulation No 561/2006
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 taking rest periods on the road network in Denmark, as provided for in Regulation No 561/2006, and as a consequence, makes it more difficult for transport services for goods to be provided in that Member State.
19. More specifically, the Commission does not claim that that 25-hour rule is contrary to the legislation applicable to rest periods, and in particular to Regulation No 561/2006, but rather that such a limitation on parking is a barrier, in practice, to the possibility of drivers and transport undertakings providing their services on Danish territory. (10)
20. It appears to me, therefore, that the application satisfies the conditions laid down in Article 120 of the Rules of Procedure and, accordingly, I propose that the plea of inadmissibility raised by the Kingdom of Denmark be rejected.
Substance
21. In essence, in its action for failure to fulfil obligations, the Commission, supported by the Republic of Poland, criticises the Kingdom of Denmark for the fact that the 25-hour rule constitutes a restriction on the freedom to provide road transport services which is not justified by any of the overriding reasons of public interest cited by that Member State.
22. The Danish Government argues, first of all, that, under the principle of subsidiarity, the competence to lay down rules regarding parking times at rest areas in the national territory lies not with the European Union, but with the Member States.
23. However, as the Commission rightly observes, I consider that argument to be irrelevant, since the Commission does not contest the compatibility with the FEU Treaty of the parking rules, such as the 25-hour rule, in themselves, but rather the fact that, by the introduction – which is lawful per se – of that 25-hour rule, the Kingdom of Denmark introduced a restriction on the freedom to provide transport services. (11)
24. The Danish Government maintains, again as a preliminary point, that the services governed by Article 58 TFEU are excluded from the scope of Article 56 TFEU.
25. It is true that, under Article 58(1) TFEU, the freedom to provide services in the field of transport is governed not by the provisions of Article 56 TFEU, which are concerned more generally with the freedom to provide services, but by the provisions of the title of the FEU Treaty relating to transport, which consists of Articles 90 to 100 TFEU. (12)
26. The services concerned by the present case are subject to Regulation No 1072/2009, which was adopted on the basis of Article 71 EC (now, after amendment, Article 91 TFEU). That regulation applies, pursuant to Article 1(1) and (4) thereof, to the international carriage of goods by road for hire or reward for journeys carried out within the territory of the Union, including cabotage operations, namely, national carriage for hire or reward carried out on a temporary basis in a host Member State, (13) and its purpose is to eliminate restrictions on the freedom to provide road transport services. (14)
27. It is therefore my view that, whilst having been adopted in the context of the common transport policy, the provisions of Regulation No 1072/2009 concern the specific area of services provided in the field of transport and, in accordance with the? case-law, are to be interpreted in the light of the general principle of freedom to provide services set out in Article 56 TFEU. (15)
28. It is settled case-law that that provision requires not only the elimination of all discrimination on grounds of nationality against providers of services who are established in another Member State but also the abolition of any restriction, even if it applies without distinction to national providers of services and to those of other Member States, which may prohibit, impede or render less advantageous the activities of a provider of services established in another Member State where he or she lawfully provides similar services. (16)
The existence of a restriction on the freedom to provide services
29. In its action for failure to fulfil obligations, the Commission claims that, by introducing the 25-hour rule, the Kingdom of Denmark has failed to fulfil its obligations under Articles 1, 8 and 9 of Regulation No 1072/2009, as interpreted in the light of the general principle of freedom to provide services set out in Article 56 TFEU.
30. Although Regulation No 1072/2009 does not contain an express provision requiring Member States to provide parking spaces for lorry drivers, the Commission considers that the existence of such areas across the territory of the European Union, whether free of charge or subject to a fee and whether public or not, are essential to the freedom to provide road transport services guaranteed by the provisions cited above, and that the introduction of the 25-hour rules affects the drivers’ capacity to comply with the obligations of the regular weekly rest period of 45 hours and of a reduced weekly rest period of more than 25 hours, (17) as well as the obligation related to the total driving time, as laid down in Articles 4, 6 and 8 of Regulation No 561/2006.
31. That rule primarily affects hauliers who are not resident in Denmark, who need parking and rest areas on Danish territory, whereas hauliers with operating centres in Denmark can make it much easier for their drivers to drive their lorries to those centres. (18)
32. In response, the Danish Government argues, in essence, that the 25-hour rule is not discriminatory and does not constitute a restriction on the international carriage of goods.
33. It contends that Regulation No 1072/2009 and Regulation No 561/2006 do not contain any provision concerning parking rules, which remain the competence of the Member States. In addition, the need for parking areas, which is essential in order to meet the requirements imposed by those two regulations, is respected, given the number of public and private parking spaces available in Denmark.
34. In its view, the motorway areas concerned by the present case are not designed to allow lengthy rest periods to be taken and, in any case, transport undertakings are obliged to plan transport operations, pursuant to Article 10(2) of Regulation No 561/2006, and to bear the costs of accommodation, in accordance with Article 8(8) of that regulation. Furthermore, the 25-hour rule increases short-term parking capacity by allowing drivers to take shorter rest periods and encourages the market to establish secure parking areas that are more suited to the requirements of long-term parking.
35. It must be recalled, as a preliminary point, that it is established case-law that in proceedings for failure to fulfil obligations it is for the Commission to establish the existence of the alleged infringement and to provide the Court with the information necessary for it to assess whether the infringement exists, and the Commission may not rely on any presumption for that purpose. (19)
36. In the present case, after discussion between the parties, it appears that, on the date of the reasoned opinion, there were, in Denmark, 1 400 parking spaces in public rest areas and, at the very least, 855 parking spaces without time limits, provided by the private sector. (20)
37. It is true, from a purely practical point of view, that the 25-hour rule, by limiting the parking time at public rest areas, makes it more difficult for hauliers to take rest breaks in the areas covered by that rule, because the rule prevents drivers from taking regular weekly rest periods, and reduced rest periods of more than 25 hours, in those areas. Moreover, even though hauliers cannot spend regular rest periods in their vehicle, (21) the rule nevertheless seems to prevent the hauliers from being able to use the rest areas in question to park their lorries and from taking those rest periods elsewhere. (22)
38. That being said, I am not convinced that the limits on parking in public rest areas beyond the 25-hour limit imposed by the contested national legislation constitutes a genuine restriction on the freedom to provide services under EU law.
39. First of all, I note that, whilst the existence of parking spaces, and in particular public parking spaces, on the road network in Denmark undoubtedly makes it easier to comply with the obligations relating to rest periods imposed by Regulation No 561/2006, the EU rules upon which the Commission relies do not lay down any obligation to provide parking spaces.
40. It is true that, under Article 39(2)(c) of Regulation (EU) No 1315/2013, (23) in relation to road transport infrastructure, Member States are required, inter alia, to ‘[develop] rest areas on motorways approximately every 100 km in line with the needs of society, of the market and of the environment, in order inter alia to provide appropriate parking space for commercial road users with an appropriate level of safety and security’. However, that article does not introduce any rule regarding the arrangements for use of such areas and nor is it relevant in the present case, since it has not been relied on by the Commission in its complaints. In addition, Regulation No 561/2006, to which the Commission refers, in Article 8a thereof, in specifying the scope of that provision, simply states that, in accordance with that provision, Member States are to ‘encourage’ the creation of parking space for commercial road users. (24)
41. Whilst noting that the existence of parking areas offering the possibility of parking for 45 hours is a ‘pre-requisite’ for the functioning of the internal market in road transport services, the Commission explains that its argument is not that the Danish Government has not developed a sufficient number of rest areas with the option of long-term parking, but that it has limited the existing parking options to such a point that this constitutes a barrier to the supply of transport services in Denmark by non-resident hauliers. (25)
42. I wonder on what basis, in the absence of an obligation to provide a particular number of rest areas, a Member State would be required to maintain such areas once they have been created or, as far as is relevant here, such a State would be prevented from regulating the use of those rest areas. In my view, the Commission’s argument ultimately means that a Member State with a sufficient number of parking spaces could trigger a restriction on the freedom to provide transport services simply by the reducing the number of those spaces, whereas a Member State without sufficient spaces would not cause such a restriction, provided that it does not reduce the number thereof. In other words, the Commission’s approach would amount to considering there to be an infringement of the fundamental freedoms on the basis of a mere change in circumstances, even in the absence of an obligation on Member States to adopt measures or to refrain from such action.
43. Next, it appears to me that the Commission has simply mentioned the (indirect) impact of the 25-hour rule on the provision of transport services to Denmark, without however demonstrating that that alleged restriction actually reduces the capacity of transport undertakings established in other Member States to compete effectively with undertakings established in Denmark. Moreover, I also question why the existence of very inexpensive, private parking spaces, which is proven according to the evidence produced at the hearing, is not enough to overcome the issues raised by the Commission.
44. I note, in that regard, that the 25-hour rule is not directly discriminatory. Nor does it have the object or the effect of regulating the provision of transport services between Member States.
45. The impact of that rule on the provision of transport services between Member States, as alleged by the Commission, is therefore based on an assumption which is not, in my view, consistent with the principles relating to the burden of proof mentioned in point 35 of this Opinion. In those circumstances, for example, it could not be ruled out that the impact of that rule on parking and on the organisation of drivers’ rest periods, and therefore on the provision of cross-border road transport services in Denmark, may be too insignificant and uncertain for such a national measure to be regarded as being capable of restricting the provision of transport services between Member States.
46. Lastly, as the Danish Government observes, under Article 10(2) of Regulation No 561/2006, a transport undertaking is to organise the work of drivers in such a way that they are able to comply inter alia with Chapter II of that regulation (which concerns, inter alia, breaks and rest periods) and, under the second subparagraph of Article 8(8) of that regulation, as amended, any costs for accommodation outside the vehicle are to be covered by the employer. (26)
47. Accordingly, in the absence of (even contemplated and desirable) (27) EU legislation intended to require Member States to develop parking spaces and adopt detailed rules governing their use, I wonder whether the need to find or to develop logistical bases (here, parking areas) to support transport and cabotage activities is not simply part and parcel of the commercial expenditure and risks of transport undertakings and cannot, therefore, be a burden for a Member State. In my view, there is no obligation on Member States to promote, but simply to facilitate, the provision of cross-border transport services in their territory, regardless of whether or not they have developed parking areas and rules governing them. Furthermore, there is no provision of EU law that appears to preclude Member States from redeveloping such areas with a view to their use in the pursuit of other public interests.
48. In the light of the foregoing, I doubt that, in the context of the complaints set out in points 29 to 31 of this Opinion, the Commission has adduced the required evidence.
49. I therefore propose that the action be dismissed.
50. That said, if the Court comes to the conclusion that the 25-hour rule does constitute a restriction on the freedom to provide road transport services, it will be necessary to determine whether that rule is justified by the overriding reasons of public interest cited by the Danish Government. I will examine that question, in the alternative, in the following points of the present Opinion.
In the alternative: the existence of a justification based on overriding reasons of public interest
51. The Danish Government contends, in essence, that, in any event, the 25-hour rule is suitable to achieve legitimate objectives and does not go beyond what is necessary and appropriate.
52. In response, the Commission argues that, whilst the four objectives put forward by the Danish Government to justify that 25-hour rule may be regarded as legitimate and in the general interest, that rule is not suitable to achieve those objectives.
53. In addition, judging by the intention of the Danish legislature as spelled out in the agreement on the 2018 Finance Law, (28) the introduction of the 25-hour rule would appear to have an overtly discriminatory objective. Indeed, it is common ground between the parties that the declared objective of that rule was to prevent ‘more specifically, the long-term parking of foreign lorries at Danish rest areas’.
54. However, in the course of the pre-litigation proceedings, the Danish Government stated other objectives which, as the Commission acknowledges, could be regarded as legitimate and in the general interest, (29) namely, first, providing greater capacity at public rest areas for drivers to take their breaks and their reduced rest periods; secondly, putting an end to illegal parking on motorway lay-bys that poses traffic hazards; thirdly, ensuring that rest areas operate properly; and, fourthly, guaranteeing a favourable environment and good working conditions for drivers.
55. With regard to the objective of providing greater capacity so that drivers can take their breaks and their reduced rest periods, the Commission found, on the basis of information provided by the Danish Government, and without its finding being disputed by the latter, there to be no direct link between the long-term parking of lorries at motorway rest areas in Denmark and the capacity issue raised. (30)
56. As for the objective of putting an end to illegal parking on motorway lay-bys that poses traffic hazards, as the Commission notes, parking outside designated areas is already illegal, there being no need to add a further prohibition, which, furthermore, affects behaviour that is not directly covered by unlawful parking practices. (31)
57. As regards the objective of ensuring that rest areas operate properly, it appears to me that the prohibition on long-term parking is not directly linked to the operation of such areas, and that therefore, that objective could be pursued by more direct means, such as by laying down rules governing activities in such areas.
58. As to the objective of guaranteeing a favourable environment and good working conditions for drivers, I see no direct connection between the 25-hour rule and that objective, which must be pursued regardless of the parking time. (32)
59. Moreover, as for the reasons why the 25-hour rule is the only measure suitable to achieve the objectives pursued, such that no measure having a lesser impact on the freedom to provide services could be sufficiently effective to attain those objectives, I would recall that while it is settled case-law that the burden of proof on a Member State cannot extend to requiring the Member State to prove, positively, that no other conceivable measure could enable those objectives to be attained under the same circumstances, the fact remains that that Member State must challenge in substance and in detail the information produced by the Commission and the inferences drawn. (33)
60. In my view, the Danish Government has not furnished such information.
61. In conclusion, I consider that, if the Court concludes that the 25-hour rule does constitute a restriction on the freedom to provide road transport services, a conclusion with which I do not agree, as I have detailed in points 29 to 48 of this Opinion, that rule could be difficult to justify on the basis of the reasons put forward by the Danish Government.
Costs
62. Under Article 138(1) of the Rules of Procedure of the Court of Justice, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Kingdom of Denmark has applied for costs to be awarded against the Commission and the latter has been unsuccessful, I propose that it be ordered to pay the costs.
Conclusion
63. In the light of the foregoing considerations, I propose that the Court:
– dismisses the action, and
– orders the European Commission to pay the costs.