# C_2012379EN.01001502.xml

| 8.12.2012 | EN | Official Journal of the European Union | C 379/15 |
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8.12.2012

EN

Official Journal of the European Union

C 379/15

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Action brought on 20 September 2012 — European Commission v Kingdom of Spain

(Case C-428/12)

2012/C 379/26

Language of the case: Spanish

Parties

Parties

Applicant: European Commission (represented by: I. Galindo Martin and G. Wilms, Agents)

Applicant:

Defendant: Kingdom of Spain

Defendant:

Form of order sought

Form of order sought

The applicant claims that the Court should:

| — | declare that the Kingdom of Spain has failed to fulfil its obligations under Articles 34 and 36 of the Treaty on the Functioning of the European Union, by making it compulsory — in Ministerial Decree FOM/734/2007 of 20 March 2007 supplementing the Rules for the implementation of the Law on the Regulation of Inland Transport in respect of authorisations for the transport of goods by road — that, in order to obtain an ‘authorisation for the private, own-account transport of goods’, no more than five months must have elapsed since the first registration of the first vehicle of an undertaking’s fleet, and by failing to justify that requirement; |
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declare that the Kingdom of Spain has failed to fulfil its obligations under Articles 34 and 36 of the Treaty on the Functioning of the European Union, by making it compulsory — in Ministerial Decree FOM/734/2007 of 20 March 2007 supplementing the Rules for the implementation of the Law on the Regulation of Inland Transport in respect of authorisations for the transport of goods by road — that, in order to obtain an ‘authorisation for the private, own-account transport of goods’, no more than five months must have elapsed since the first registration of the first vehicle of an undertaking’s fleet, and by failing to justify that requirement;

| — | order the Kingdom of Spain to pay the costs. |
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order the Kingdom of Spain to pay the costs.

Pleas in law and main arguments

Pleas in law and main arguments

The requirement that, in order to obtain an ‘authorisation for the private, own-account transport of goods’, no more than five months must have elapsed since the first registration of the first vehicle of an undertaking’s fleet, constitutes a measure having equivalent effect to a quantitative restriction on imports, in breach of Article 34 of the Treaty on the Functioning of the European Union. That restriction is not justified either by one of the public interest grounds set out in Article 36 TFEU or by an imperative requirement.

As regards the existence of a restriction of the free movement of goods, in practice the rules in question restrict to a greater extent the import of vehicles already registered in other Member States than the purchase of vehicles registered in Spain. In addition, given that vehicles registered in other Member States already satisfy the European and/or national technical requirements in order to be considered roadworthy in the Member States of origin, the abovementioned rules fail to have regard to the principle of mutual recognition, since a vehicle which is roadworthy in another Member State must also be roadworthy in Spain. Furthermore, the measure in question constitutes a restriction of use such as those examined by the Court of Justice of the European Union in Case C-110/05 Commission v Italy [2009] ECR I-519 and Case C-142/05 Mickelsson and Roos [2009] ECR I-4273.

Commission

Italy

Mickelsson and Roos

As regards the justifications put forward by the Kingdom of Spain, namely, road safety and environmental protection, the Commission takes the view that the rules at issue are not proportionate to the objectives pursued and do not contribute to their attainment in a consistent, systematic manner.

The fact that a vehicle has been registered for the first time more than five months beforehand is no indication that it is not technically fit to be used in commercial activities nor is it an indication of the impact of its use on the environment. By contrast, a roadworthiness test would allow, at least to some extent, the technical condition of the vehicle to be determined and would be a less restrictive measure. Similarly, an examination of the technical characteristics of the vehicle, in conjunction where appropriate with a roadworthiness test, should make it possible to evaluate the level of pollution emitted by that vehicle.

Furthermore, it is difficult to see how the Kingdom of Spain can impose a five-month age-limit for the first vehicle while allowing other vehicles to be added to the fleet upon condition only that the average age-limit for the fleet does not exceed six years.

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