Opinion of the Advocate General — ECLI:EU:C:2017:894
Date: 2017-11-23
Language of the case: Danish
Subject matter: Transport
Procedure: Action for failure to fulfil obligations - unfounded
Origin: Denmark

Summary — Judgment of the Court (Fifth Chamber), 12 April 2018 1. Actions for failure to fulfil obligations — Proof of failure — Burden of proof on Commission — Presumptions — Unlawful (Art. 258 TFEU) 2. Acts of the institutions — Regulations — Direct applicability — Competence for implementation conferred on a Member State — Limits (Art. 288, second para., TFEU) 3. Transport — Road transport — Access to the market for the carriage of goods — Cabotage operations — Concept – Adoption by a Member State of national implementing measures limiting the number of loading points and unloading points which may be part of the same cabotage operation — Lawfulness (European Parliament and Council Regulation No 1072/2009, Art. 2(6) and (8)) 4. EU law — Principles — Proportionality — Scope 1. See the text of the decision. (see para. 25) 2. See the text of the decision. (see paras 27-29) 3. A Member State which adopts national implementing measures intended to clarify the concept of cabotage operations within the meaning of Regulation No 1072/2009 on common rules for access to the international road haulage market does not fail to fulfil its obligations under Article 2(6) and Article 8 thereof. First, the wording of Article 2(6) and Article 8(2) respectively of Regulation No 1072/2009 does not give an answer to the question whether the definition of cabotage operations referred to in that regulation must be understood as meaning that a cabotage operation may include a number of loading points and a number of unloading points. The fact that a provision of a regulation is worded in general or imprecise terms is an indication that domestic implementing measures are required. Second, in order to decide when the limit of three transport operations laid down in Article 8(2) of Regulation No 1072/2009 must be regarded as being reached, it must be determined whether a transport operation consisting of several loading points and unloading points constitutes one single cabotage operation or several cabotage operations. Third, the concept of cabotage operations within the meaning of Regulation No 1072/2009 is interpreted differently in the Member States. Furthermore, since allowing non-resident hauliers to carry out cabotage operations with an unlimited number of loadings points and an unlimited number of unloading points could render meaningless the three-operation limit laid down in Article 8(2) of Regulation No 1072/2009 and, thereby, run counter to the temporary nature of the cabotage and the objective pursued by that regulation with regard to that type of transport, a limit of the kind laid down in Article 8(2) of Regulation No 1072/2009 is appropriate to achieve the objective pursued by that regulation with regard to cabotage. In that connection, since, according to the national measures, only cabotage operations having several loading points and several unloading points are prohibited, those measures do not go beyond what is necessary to achieve the objective pursued by Regulation No 1072/2009. (see paras 38, 39, 41, 42, 53, 55, 59, 60, 62) 4. See the text of the decision. (see para. 50)