OPINION OF ADVOCATE GENERAL
TANCHEV
delivered on 23 November 2017(1)
Case C‑541/16
European Commission
v
Kingdom of Denmark
(Failure of a Member State to fulfil obligations — Road haulage — Regulation (EC) No 1072/2009 — Article 2(6) — Notion of cabotage operation — Article 8(2) — Maximum of three cabotage operations within seven days from the last unloading of an international carriage — National rule allowing a cabotage operation to have either several loading points or several unloading points, but not both — Legal force of ‘Questions & Answers’ adopted by the Commission and published on its website, which were not put to a vote in the Committee on Road Transport)
1.        The provision of international road freight transport services within the European Union is not subject to any quotas or limitations in the volume or the frequency of services. (2) By contrast, cabotage, which may be defined as the provision of national road freight transport services, is subject to limitations when carried out by non-resident hauliers. While no quotas apply to the provision of cabotage services by non-resident hauliers, those hauliers are, according to Article 8(2) of Regulation No 1072/2009, only permitted to carry out up to three cabotage operations following an international carriage from another Member State or from a third country. Moreover, those three operations must be conducted within seven days from the unloading of the international carriage.
2.        Article 8(2) of Regulation No 1072/2009, which is known as the ‘three in seven’ rule, (3) is subject to different interpretations at national level. (4) Difficulties have arisen as regards, in particular, the counting of cabotage operations.
3.        The national provisions under scrutiny in the present case are the Danish rules, which provide that one cabotage operation can involve either several loading points or several unloading points, but not both.
4.        The European Commission, for its part, considers that a cabotage operation can involve several loading points and several unloading points. Therefore, it has brought an action before the Court, pursuant to the second paragraph of Article 258 TFEU, seeking a declaration that, by refusing to count as one cabotage operation an operation with several loading points and several unloading points, the Kingdom of Denmark has failed to fulfil its obligations under Regulation No 1072/2009.
5.        I should point out that, while cabotage accounts for a very small share of national road haulage in Denmark (5) and illegal cabotage is low, (6) the interpretation of the ‘three in seven’ rule may nonetheless be of importance to that Member State since Denmark appears to be particularly affected by so-called ‘systematic cabotage’, where ‘hauliers spend the majority of their time doing national transport in another EU country’. This appears to be due to the relatively high wages of drivers in Denmark (7) and, presumably, the geography of that Member State.
I.      Legal framework
A.      EU law
6.        Article 2 of Regulation No 1072/2009 provides:
‘For the purposes of this Regulation:
…
6. “cabotage operations” means national carriage for hire or reward carried out on a temporary basis in a host Member State, in conformity with this Regulation;
…’
7.        Article 8 of Regulation No 1072/2009 states:
‘1. Any haulier for hire or reward who is a holder of a [Union] 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.
…’
B.      Danish law
8.        Point 3 of the Guidelines on the rules on road cabotage in Regulation No 1072/2009 of the European Parliament and of the Council on common rules for access to the international road haulage market (8) (‘the Cabotage Guidelines’), which the Trafikstyrelsen (Transportation Office) published on its website on 21 May 2010, states:
‘A cabotage operation is defined as national carriage of a consignment from the picking-up of the goods until their delivery at the consignee as specified in the consignment note. An operation can involve several loading points or several deliveries.
…’
II.    Pre-litigation proceedings
9.        By letters of 9 September and 2 October 2013, the Commission asked the Kingdom of Denmark, within the framework of an EU Pilot procedure, (9) to provide information on national rules pertaining to cabotage. The Kingdom of Denmark replied by letters of 18 November and 12 December 2013.
10.      On 11 July 2014, the Commission, unsatisfied by those answers, sent the Kingdom of Denmark a letter of formal notice, claiming, in particular, that that Member State had infringed Articles 2 and 8 of Regulation No 1072/2009. In the Commission’s view, the Cabotage Guidelines, whereby a cabotage operation may have either several loading points or several unloading points, but not both, were inconsistent with those provisions, which did not set a maximum number of loading or unloading points.
11.      By letter of 9 September 2014, the Kingdom of Denmark submitted observations on the letter of formal notice.
12.      On 25 September 2015, the Commission sent the Kingdom of Denmark a reasoned opinion. The Commission stated, in particular, that the definition of a cabotage operation as involving either several loading points or several unloading points was inconsistent with Article 2(6) and Article 8(2) of Regulation No 1072/2009.
13.      By letter of 25 November 2015, the Kingdom of Denmark submitted observations on the reasoned opinion.
14.      Unconvinced by the arguments of the Kingdom of Denmark, the Commission brought the present action on 25 October 2016.
III. Proceedings before the Court and forms of order sought
15.      The Commission requests the Court to declare that the Kingdom of Denmark has failed to fulfil its obligations under Article 2(6) and Article 8 of Regulation No 1072/2009 and to order the Kingdom of Denmark to pay the costs.
16.      The Kingdom of Denmark asks the Court to dismiss the action on the ground that it has not infringed the provisions of Regulation No 1072/2009 pertaining to cabotage. The Kingdom of Denmark further asks that the Commission be ordered to pay the costs.
17.      Written observations were submitted by the Commission and the Kingdom of Denmark. Both the Kingdom of Denmark and the Commission presented oral argument at the hearing on 11 October 2017.
IV.    Analysis
A.      Arguments of the parties
18.      The Commission claims that the Kingdom of Denmark has failed to fulfil its obligations under Article 2(6) and Article 8 of Regulation No 1072/2009 by allowing a cabotage operation to have either several loading points or several unloading points, but not both.
19.      First, the Commission argues that Article 8(2) of Regulation No 1072/2009 does not provide for a maximum number of loading and/or unloading points within the same cabotage operation. Therefore, an operation may have any number of loading and/or unloading points. Consequently, the Cabotage Guidelines, whereby a cabotage operation may have either several loading points or several unloading points, but not both, adds a new condition to those laid down in Regulation No 1072/2009. Indeed, that regulation restricts the number of cabotage operations which may be carried out following an international carriage. It does not restrict the number of loading and/or unloading points of a cabotage operation.
20.      Second, the Commission submits that the definition of cabotage operation is regulated exhaustively in Article 2(6) and Article 8(2) of Regulation No 1072/2009. Consequently, Member States enjoy no discretion in that respect. There can only be one interpretation of the notion of cabotage operation. That interpretation is to be found in a document adopted by the Commission in the form of questions and answers (‘the Q&A’) (10) and published on the website of the Commission’s Directorate-General for Mobility and Transport. That document is binding on all Member States. In that regard, it is irrelevant that the Committee on Road Transport, which consists of representatives of the Member States, did not vote on that document, since no vote was required.
21.      Third, the Commission acknowledges that the Committee on Road Transport had originally considered that a cabotage operation can only involve ‘several loading points or several deliveries’. However, that position was taken at the meeting of that committee on 17 November 2009, that is, before Regulation No 1072/2009 became applicable. Once Articles 8 and 9 of Regulation No 1072/2009 became applicable on 14 May 2010, (11) problems arose in respect of the definition of cabotage operation. Therefore, that issue was discussed again by the Committee on Road Transport at the meeting of 25 October 2010. At that meeting, the representatives of the Member States reached an agreement. They concluded that a cabotage operation may involve ‘several loading points, several delivery points or even several loading and delivery points, as the case may be’. That interpretation of the notion of cabotage operation was subsequently published by the Commission in the form of the above mentioned Q&A.
22.      Fourth, in the Commission’s view, it cannot be argued that allowing a cabotage operation to have several loading points and several unloading points is inconsistent with the objective of Regulation No 1072/2009 and with the fact that the cabotage is temporary in nature. This is because its temporary nature is ensured by the ‘three in seven’ rule set out in Article 8(2) of Regulation No 1072/2009.
23.      Fifth, the Commission claims that, contrary to what the Kingdom of Denmark argues, the interpretation of the notion of cabotage operation laid down in the Cabotage Guidelines is inconsistent with the principle of proportionality. Precluding non-resident hauliers from carrying out cabotage operations with several loading points and several unloading points unduly limits those hauliers’ opportunities to carry out cabotage operations. By contrast, allowing non-resident hauliers to carry out operations with several loading points and several unloading points avoids empty trips and enhances transport efficiency.
24.      The Kingdom of Denmark maintains that, in allowing a cabotage operation to have either several loading points or several unloading points, but not both, it has not infringed Article 2(6) and Article 8 of Regulation No 1072/2009.
25.      The Kingdom of Denmark submits that Regulation No 1072/2009 does not exhaustively regulate cabotage operations since the provisions of that regulation pertaining to cabotage lack clarity. Consequently, Member States may adopt measures for the application of those provisions, provided that those measures are consistent with the principle of proportionality.
26.      First, the Kingdom of Denmark claims that Regulation No 1072/2009 lacks clarity as to the definition of cabotage operations. That regulation does not specify how many loading points and/or unloading points a cabotage operation may consist of. Therefore, it cannot be determined when the three-operation limit laid down in Article 8(2) of that regulation has been reached. That lack of clarity is further evidenced by the fact that (i) the Commission was originally of the same opinion as the Kingdom of Denmark, and it changed its mind only at the meeting of the Committee on Road Transport of 25 October 2010; (ii) the Commission itself acknowledged in a 2014 report (12) that the definition of cabotage in Regulation No 1072/2009 was unclear and had to be amended; and (iii) that Member States have diverging interpretations of that notion.
27.      Second, the Kingdom of Denmark contends that the Cabotage Guidelines are appropriate for attaining the objective pursued by Regulation No 1072/2009. The objective of that regulation is to prevent non-resident hauliers from carrying out permanent cabotage in the host Member State. If a cabotage operation could consist of several loading points and several unloading points, a large number of trips could be regarded as one cabotage operation. The three-operation limit laid down in Article 8(2) of Regulation No 1072/2009 would be emptied of its substance. Cabotage would no longer be ‘temporary’, as required by Article 2(6) of that regulation.
28.      Third, the Kingdom of Denmark claims that the Cabotage Guidelines do not go beyond what is necessary to achieve the objective of Regulation No 1072/2009. In particular, they do not require that a cabotage operation has one loading point and one unloading point. Moreover, there is no limitation under Danish law as to the number of senders and principals. Consequently, the Cabotage Guidelines are consistent with the principle of proportionality.
B.      Assessment
29.      I will first explain that Article 2(6) and Article 8(2) of Regulation No 1072/2009 do not address the question whether a cabotage operation may have several loading points and several unloading points. I will then turn to consider whether those provisions grant Member States discretion to adopt measures of application for their implementation. Since that is, in my opinion, the case, I will proceed to assess the proportionality of the Cabotage Guidelines. Finally, I will address the issue of the legal force of the Q&A published by the Commission on its website, which sets out the Commission’s interpretation of the notion of cabotage operation.
1.      Article 2(6) and Article 8(2) of Regulation No 1072/2009 do not specify whether a cabotage operation may have several loading points and several unloading points
30.      I note that Article 2(6) of Regulation No 1072/2009 makes no reference to loading or unloading points. That provision merely stresses the ‘temporary’ nature of cabotage operations.
31.      Article 8(2) of Regulation No 1072/2009 makes no reference to loading or unloading points either. That provision states that a maximum of three cabotage operations may be carried out within seven days from an international carriage. (13) It is true that Article 8(2) of Regulation No 1072/2009 specifies that a cabotage operation may have several unloading points. Indeed, according to the last sentence of the first subparagraph of that provision, ‘[t]he lastunloading in the course of a cabotage operation … shall take place within 7 days from the last unloading … in the course of the incoming international carriage’. (14) However, Article 8(2) of that regulation does not specify whether a cabotage operation may also have several loading points. Consequently, that provision does not indicate whether an operation may have several loading points and several unloading points.
32.      In other words, Article 2(6) and Article 8(2) of Regulation No 1072/2009 simply do not address the issue whether a cabotage operation may have several loading points and several unloading points.
33.      By contrast, the Cabotage Guidelines clearly state that ‘an operation can involve several loading points or several deliveries’, (15) thereby precluding operations consisting of several loading points and several unloading points. In adopting the Cabotage Guidelines, the Kingdom of Denmark clearly addressed and decided on the issue.
34.      Consequently, it needs to be determined whether Regulation No 1072/2009 granted the Kingdom of Denmark discretion to adopt the Cabotage Guidelines in order to clarify the definition of cabotage operations and the ‘three in seven’ rule laid down in Article 2(6) and Article 8(2) of that regulation.
2.      Is the adoption of domestic measures necessary in order to implement Article 2(6) and Article 8(2) of Regulation No 1072/2009?
35.      I should stress that the act of Union law whose provisions the Kingdom of Denmark allegedly infringed is a regulation, not a directive.
36.      Unlike directives, regulations are, pursuant to the second paragraph of Article 288 TFEU, binding in their entirety and directly applicable in all Member States. Consequently, Member States are precluded from adopting domestic measures which reproduce the text of a regulation. (16) They are also precluded from adopting domestic measures intended to alter the scope of a regulation, (17) or its provisions.
37.      However, this does not mean that Member States are precluded from adopting any measure of application of regulations. This is because some provisions of regulations may necessitate, for their implementation, the adoption of measures of application by the Member States. (18) In other words, regulations may not exhaustively govern the matter and may grant discretion to the Member States to adopt measures for their implementation. (19)
(a)    Regulations may necessitate the adoption of measures of application by the Member States even though they do not expressly provide for the adoption of such measures
38.      According to settled case-law, Member States may adopt rules for the application of a regulation provided that they do not thereby obstruct its direct applicability or conceal its nature as an act of EU law; that they specify that they are acting in the exercise of a discretion conferred on them under that regulation; and that they adhere to the parameters laid down thereunder. (20)
39.      It is by referring to the relevant provisions of the regulation concerned, interpreted in the light of the objectives of that regulation, that it may be determined whether they prohibit, require or allow Member States to adopt certain implementing measures and, particularly in the latter case, whether the measure concerned comes within the scope of the discretion that each Member State is recognised as having. (21)
40.      In the present case, neither Article 2(6) nor Article 8(2) of Regulation No 1072/2009 makes reference to national law. None of those provisions expressly empowers Member States to adopt measures of application as regards the definition of the notion of cabotage operation or the ‘three in seven’ rule. Nor does any other provision of Regulation No 1072/2009. (22)
41.      However, Member States may adopt measures of application of regulations even though they are not expressly empowered to do so. (23)
42.      For instance, the second paragraph of Article 3 of Council Regulation (EC) No 1/2005 (24) states that one condition that is to be complied with for the transport of animals is that ‘sufficient … height is provided for the animals, appropriate to their size and the intended journey’. However, as regards the road transport of pigs, Regulation No 1/2005 does not lay down numerical standards for the height of the internal compartments in which those animals are transported. Nor does it expressly empower Member States to lay down such requirements. Nevertheless, it has been held that Member States may adopt implementing measures laying down numerical standards as regards the internal height of compartments in which pigs are transported. (25)
43.      Similarly, Article 5 of Council Regulation (EC, Euratom) No 2988/95 (26) lists the penalties which ‘may’ be imposed in the event of infringement of provisions of Union law which prejudice the Union’s budget. (27) Article 7 of Regulation No 2988/95 states that those penalties may be imposed on the economic operator which committed such infringement, or on the person who is required to take responsibility for the infringement or to ensure that it is not committed. However, Regulation No 2988/95 does not specify in which situation, nor to whom, each of the penalties listed in Article 5 applies. Nor does it expressly empower Member States to adopt provisions in that regard. (28) Nevertheless, it has been held that Member States could, and even had to, adopt provisions in that domain. (29)
44.      I should point out that, as argued by the Kingdom of Denmark, the fact that a provision of a regulation is laid down in general or imprecise terms is an indication that domestic measures of application are needed. As the Court held in Zerbone, ‘in the event of difficulty of interpretation the national administration may be led to adopt detailed rules for the application of a [Union] regulation and at the same time to clarify any doubts raised’. (30) In Danske Svineproducenter, the Member States were recognised as having some discretion in order to lay down numerical standards for the height of the internal compartments for the road transport of pigs because the applicable regulation did not lay down ‘in precise terms’ the height of such compartments, that is, it did not itself lay down numerical standards. (31) Similarly, in SGS Belgium, the Member States were recognised as entitled to adopt measures of application laying down penalties because the relevant provisions of Regulation No 2988/95 ‘merely la[id] down general rules’ and they ‘[did] not specify which of the penalties listed in Article 5 … should be applied … nor the category of operators on whom such penalties are to be imposed’. (32)
(b)    Article 2(6) and Article 8(2) of Regulation No 1072/2009 necessitate the adoption of measures of application by the Member States
45.      In the present case, I consider that, for the reasons mentioned below, Article 2(6) and Article 8(2) of Regulation No 1072/2009 necessitate the adoption of domestic measures of application even though they do not expressly provide for the adoption of such measures.
46.      First, in order to ascertain whether the three-operation limit laid down in Article 8(2) of Regulation No 1072/2009 has been reached, it is necessary to decide whether a journey consisting of several loading points and several unloading points counts as one cabotage operation, as two operations, or more. Absent that clarification by Member States, the three-operation limit cannot be applied.
47.      Second, Article 2(6) of Regulation No 1072/2009 defines cabotage operations in general terms, merely by stating that they are ‘national carriage’ operations and that they are conducted ‘on a temporary basis’. As noted in point 44 above, the fact that a provision is laid down in imprecise terms is an indication that domestic measures of application are needed.
48.      Third, the different interpretations of the notion of cabotage operation by the Member States (33) are indicative of the lack of clarity and the imprecision of Article 2(6) and Article 8(2) of Regulation No 1072/2009.
49.      Some Member States, such as the Netherlands (34) and Sweden, (35) agree with the Commission that a cabotage operation may have several loading points and several unloading points. Other Member States, such as Denmark or, until recently, Finland, consider that an operation may not have several loading points and several unloading points. (36) Under certain domestic legislation, the latter position is subject to exceptions where there is one single freight contract which provides for several loading points and unloading points, or where the collection from different locations and/or the delivery to different locations is carried out for the same consignor and/or to the same consignee. (37) I should also mention the position of the United Kingdom authorities which, in order to count operations where there are multiple collections and multiple deliveries, ‘take the number of collections made or the number of deliveries made, whichever is the lowest’. (38)
50.      Fourth, the need to clarify the notion of cabotage operation has been acknowledged by the Commission itself in the Report on the State of the Union Road Transport Market, where it stated that ‘the revision [of Regulation No 1072/2009] would aim … at clarifying [its] problematic terms …, notably the definition of … cabotage’. (39)
51.      Consequently, I fail to see how the Kingdom of Denmark could be criticised for adopting domestic rules for the implementation of Article 2(6) and Article 8(2) of Regulation No 1072/2009.
(c)    The Commission’s 2017 proposal to amend Article 2(6) of Regulation No 1072/2009 is not determinative to the present case
52.      Finally, it should be emphasised that that conclusion is not called into question by the fact that, in 2017, the Commission proposed to amend the definition of cabotage operation so that it specifies that an operation may have several loading points and several unloading points. (40)
53.      Indeed, according to Article 2(2) of the Commission’s 2017 proposal, Article 2(6) of Regulation No 1072/2009 would be replaced by the following: ‘“cabotage operation” means national carriage for hire or reward carried out on a temporary basis in a host Member State, involving the carriage from the picking-up of the goods at one or several loading points until their delivery at one or several delivery points, as specified in the consignment note’. (41)
54.      The fact that the Commission proposes to amend Article 2(6) of Regulation No 1072/2009 so that it would specify that a cabotage operation may have several loading points and several unloading points does not mean that, prior to, or absent, that amendment, Member States cannot allow an operation to consist of several loading points and several unloading points. Nor does it mean that prior to, or absent, that amendment, Member States are required to allow an operation to consist of several loading points and several unloading points. Indeed, as I have explained, the current Article 2(6) of Regulation No 1072/2009 simply does not address that issue. The Commission’s 2017 proposal chooses one interpretation. That proposal takes nothing away from the fact that the current definition of a cabotage operation is drafted in very general terms and thus confers on Member States discretion to choose one interpretation or the other.
55.      I should also point out that, in 2017, the Commission also proposed to abandon the ‘three in seven’ rule. Where non-resident hauliers are now permitted to carry out three cabotage operations within seven days from the last unloading of an international carriage, under the Commission’s 2017 proposal, they would be permitted to carry out an unlimited number of operations within a shorter period, that is, five days from the last unloading of an international carriage. (42)
56.      If Article 8(2) of Regulation No 1072/2009 was amended as proposed by the Commission, there would be no more need to count cabotage operations since there would no longer be a limit to the number of operations which could be carried out within the reference period. Therefore, the question whether an operation could consist of several loading points and several unloading points would become irrelevant, and the proposed amendment of Article 2(6) of Regulation No 1072/2009 meaningless.
57.      In any event, I note that the Commission’s 2017 proposal is currently under discussion and that several Member States have expressed their disagreement. (43) At the time of writing, it is no more than the Commission’s view that Article 2(6) of Regulation No 1072/2009 should be amended as mentioned above.
58.      Consequently, no conclusion should be drawn from the Commission’s 2017 proposal to amend Article 2(6) of Regulation No 1072/2009 so that it specifies that a cabotage operation may consist of several loading points and several unloading points.
59.      I conclude that Article 2(6) and Article 8(2) of Regulation No 1072/2009 confer discretion on the Member States to adopt implementing measures which clarify the notion of cabotage operation.
3.      Assessment of the proportionality of the Cabotage Guidelines
60.      However, measures of application of Article 2(6) and Article 8(2) of Regulation No 1072/2009 adopted by the Member States must be in accordance with the general principles of Union law, in particular the principle of proportionality. (44)
61.      That principle, which applies to, inter alia, the legislative and regulatory authorities of the Member States when they apply Union law, requires that measures implemented by means of a provision must be appropriate for attaining the objective pursued and must not go beyond what is necessary to achieve it. (45)
62.      In my opinion, the Cabotage Guidelines comply with the principle of proportionality.
63.      First, they are appropriate for attaining the objective pursued by Regulation No 1072/2009 as regards cabotage.
64.      The objective of Regulation No 1072/2009 is, as regards cabotage, to set up a ‘transitional … regime’. (46) The ‘further opening of … cabotage’ and enhanced liberalisation shall only be carried out, ‘if appropriate’, in the light of ‘the effectiveness of controls and the evolution of employment conditions in the profession, the harmonisation of the rules in the fields of, inter alia, enforcement and road user charges, and social and safety legislation’. (47) In that regard, Article 17(3) of Regulation No 1072/2009 entrusts the Commission with the task of assessing whether harmonisation in those fields ‘has progressed to such an extent that the further opening of domestic road transport markets, including cabotage, could be envisaged’. (48)
65.      In other words, the objective of Regulation No 1072/2009 is not, as regards cabotage, to fully open domestic markets to non-resident hauliers. This is why, pursuant to Article 8(2) of Regulation No 1072/2009, cabotage is only permitted following an international carriage and is limited to three operations within seven days from the unloading of that international carriage. I note, in that regard, that, when preparing the proposal for what would become Regulation No 1072/2009, the Commission contemplated and rejected an option whereby non-resident hauliers would be permitted to carry out an unlimited number of cabotage operations within a one-month period. (49) This is also why recital 13 and Article 2(6) of Regulation No 1072/2009 stress the ‘temporary’ nature of cabotage, and recital 15 of that regulation emphasises that cabotage should not be ‘permanent’ or ‘continuous’.
66.      Allowing non-resident hauliers to carry out three 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. For instance, a non-resident haulier could load goods in point A, unload some goods in point B, load other goods in point C, unload some goods in point D, load other goods in point E, then unload all goods in point F and still have carried out only one cabotage operation. The temporary nature of the cabotage would thus be ensured only through the seven-day limit.
67.      I stress that, as mentioned in point 65 above, the option whereby an unlimited number of cabotage operations would be permitted within a certain period of time (admittedly, one month, not seven days) was rejected by the Commission in its proposal for what would become Regulation No 1072/2009. Such option was only recently put forward (with a shorter, five-day period) in the Commission’s 2017 proposal. (50)
68.      Therefore, it seems to me that allowing cabotage operations with an unlimited number of loading points and an unlimited number of unloading points runs counter to the temporary nature of the cabotage provided for by Article 2(6) of Regulation No 1072/2009, the three-operation limit laid down in Article 8(2), and the objective of Regulation No 1072/2009 as regards cabotage.
69.      Conversely, precluding non-resident hauliers from carrying out cabotage operations with several loading points and several unloading points aims at ensuring that cabotage is temporary and achieving a limited liberalisation of the cabotage market.
70.      Therefore, the Cabotage Guidelines are appropriate for attaining the objective pursued by Regulation No 1072/2009 as regards cabotage.
71.      Second, the Cabotage Guidelines do not go beyond what is necessary to achieve that objective.
72.      This is because, as argued by the Kingdom of Denmark, the Cabotage Guidelines do not preclude operations consisting of several loading points and one unloading point, or operations consisting of one loading point and several unloading points. They only preclude operations consisting of several loading points and several unloading points. This is also because, as the Kingdom of Denmark points out, the Cabotage Guidelines do not restrict the number of consignors or principals.
73.      I conclude that the Kingdom of Denmark had discretion to adopt the Cabotage Guidelines, that those guidelines are consistent with the principle of proportionality and that, consequently, the Kingdom of Denmark did not, in adopting them, fail to fulfil its obligations under Article 2(6) and Article 8(2) of Regulation No 1072/2009.
4.      The Q&A published on the website of the Commission is not binding on Member States
74.      That conclusion is not called into question by the fact that the Commission adopted the Q&A, (51) which was published on the website of its Directorate‑General for Mobility and Transport, and which states that ‘a cabotage operation can involve several loading points, several delivery points or even several loading and delivery points, as the case may be’. (52)
75.      In that regard, the Commission argues that its interpretation of the notion of cabotage operation, as laid down in the Q&A, is binding on Member States because the representatives of the Member States discussed and agreed on that interpretation at the meeting of 25 October 2010 of the Committee on Road Transport, and because it was published on the Commission’s website. (53)
76.      That argument cannot, in my view, be accepted. The Q&A cannot be considered binding on the Member States for the following reasons.
77.      First, I note that, although, as the Commission argues, the Q&A was published on the website of the Directorate‑General for Mobility and Transport, it was not published in the Official Journal.
78.      Second, I stress that, contrary to what the Commission argues, the representatives of the Member States did not agree on the interpretation of the notion of cabotage operation which is laid down in the Q&A.
79.      In that regard, it should be emphasised that neither Article 2(6) nor Article 8(2) of Regulation No 1072/2009 empowers the Commission to adopt an act which clarifies the notion of cabotage operation or the ‘three in seven’ rule. Nor does any other provision of that regulation.
80.      By contrast, the third subparagraph of Article 4(2) of Regulation No 1072/2009 provides that the Commission ‘shall adapt’ to technical progress the period of validity of the Union licence delivered to hauliers. Similarly, the second subparagraph of Article 4(4) and Article 5(4) of Regulation No 1072/2009 state that the Commission ‘shall adapt’ to technical progress, respectively, Annexes I and II and Annex III to that regulation. (54) The third subparagraph of Article 4(2), the second subparagraph of Article 4(4), and Article 5(4) of Regulation No 1072/2009 all require the Commission, when it ‘adapt[s]’ to technical progress the elements concerned, to follow the regulatory procedure with scrutiny referred to in Article 15(2) of that regulation. Under that procedure, which is laid down in Article 5a(1) to (4) of Council Decision 1999/468/EC, (55) as amended by Council Decision 2006/512/EC, (56) a vote of the relevant committee, in the present case the Committee on Road Transport, (57) is required.
81.      Since no provision of Regulation No 1072/2009 empowers the Commission to adopt acts that clarify the notion of cabotage operation or the ‘three in seven’ rule, no provision of that regulation requires those acts to be put to a vote in the Committee on Road Transport. It is beyond doubt that the regulatory procedure with scrutiny, or any other procedure under which a vote of that committee is required, (58) does not apply to the adoption of the Q&A. This was acknowledged by the Commission itself in its written observations. (59)
82.      Furthermore, Article 2(2) of the Rules of Procedure for the Committee on Road Transport (60) states that the agenda drawn up for each meeting ‘shall make a distinction’ between, on the one hand, ‘proposed measures about which [that] committee is asked to give an opinion, in accordance with the regulatory procedure with scrutiny’, and, on the other hand, ‘other issues put to [that] committee for information or a simple exchange of views’.
83.      It appears from the file that the interpretation of the notion of cabotage operation was on the agenda of two meetings of the Committee on Road Transport. Those meetings were held on 17 November 2009 and 25 October 2010. At each of those meetings, that question was merely discussed. (61) It was not put to a vote. (62) This suggests that, as argued by the Kingdom of Denmark at the oral hearing, that question was one of the ‘other issues’ mentioned in Article 2(2) of the Rules of Procedure for the Committee on Road Transport, which are put to that committee ‘for information or a simple exchange of views’.
84.      Consequently, the definition of the notion of cabotage operation laid down in the Q&A, far from having been agreed on by a majority of Member States, is no more than the Commission’s interpretation of that notion.
85.      Furthermore, I note that, had the regulatory procedure with scrutiny been applicable, a vote of the Committee on Road Transport in favour of the Commission’s interpretation of the notion of cabotage operation would not in itself have made that interpretation binding on the Member States. This is because, according to Article 5a(3) of Decision 1999/468, as amended by Decision 2006/512, other steps need to be followed to that end. (63)
86.      Third, I stress that, in the Impact Assessment of its 2017 proposal, the Commission itself acknowledged that the Q&A ‘has no legally binding character’. (64) This was reiterated at the oral hearing by the representative of the Commission. (65)
87.      Consequently, the Q&A cannot, in my view, be regarded as binding on Member States.
88.      It follows that the Commission has not demonstrated that the Kingdom of Denmark has failed to fulfil its obligations under Article 2(6) and Article 8 of Regulation No 1072/2009.
V.      Conclusion
89.      In the light of the foregoing considerations, I propose that the Court should:
(1)      dismiss the action; and
(2)      order the European Commission to pay the costs.
1      Original language: English.
2      The provision of such services is only subject to the possession of a Union licence issued by the Member State of establishment of the haulier and, if the driver is a third country national, of a driver attestation issued by a Member State. See Articles 3 and 5 of Regulation (EC) No 1072/2009 of the European Parliament and of the Council, of 21 October 2009, on common rules for access to the international road haulage market (recast) (OJ 2009 L 300, p. 72).
3      See p. 31 of the Study contract on the Ex-post evaluation of Regulation (EC) No 1071/2009 and [Regulation No 1072/2009], of December 2015 (‘the 2015 Ricardo Study’), available on the website of the Commission’s Directorate‑General for Mobility and Transport.
4      See p. 21 of the Commission’s REFIT ex-post evaluation of Regulation (EC) No 1071/2009 on access to the occupation of road transport operator and [Regulation No 1072/2009], of 28 October 2016 (‘the ex-post evaluation of Regulation No 1072/2009‘) (SWD(2016) 350 final), available on the website of the Commission’s Directorate‑General for Mobility and Transport.
5      In 2015, the share of cabotage in Denmark slightly exceeded 3% of all national road haulage operations, which is in line with the EU average (see p. 10 of the study of May 2017, An Overview of the EU Road Transport Market in 2015, available on the website of the Commission’s Directorate‑General for Mobility and Transport).
6      Illegal cabotage in Denmark amounts to less than 1% of cabotage activity (see p. 33 of the Study to support the impact assessment for the revision of Regulation (EC) No 1071/2009 and [Regulation No 1072/2009], of April 2017, available on the website of the Commission’s Directorate‑General for Mobility and Transport; and p. 11 of the ex-post evaluation of Regulation No 1072/2009).
7      See p. 28 of the ex-post evaluation of Regulation No 1072/2009; and p. 302 of the 2015 Ricardo Study, according to which, although ‘it is … difficult to identify concrete data’, ‘it is generally believed that the level of driver wages in Denmark is among the highest in Europe’.
8      Cabotagevejledning gældende fra den 14. maj 2010. En vejledning om cabotagereglerne i Europaparlamentets og Rådets forordning nr. 1072/2009 om fælles regler for adgang til markedet for international godskørsel.
9      EU Pilot procedure No 5703/13.
10      The title of that document is as follows: ‘The new cabotage regime under [Regulation No 1072/2009] – Questions & Answers’. It is available at the following address : https://ec.europa.eu/transport/modes/road/haulage_en.
11      See the second paragraph of Article 19 of Regulation No 1072/2009.
12      See p. 18 of the Report from the Commission to the European Parliament and the Council on the State of the Union Road Transport Market, of 14 April 2014 (‘the Report on the State of the Union Road Transport Market’) (COM(2014) 222 final).
13      Cabotage operations may only be carried out in the host Member State once all the goods carried in the course of the international carriage have been unloaded and the vehicle is empty. Indeed, Article 8(2) of Regulation No 1072/2009 provides that ‘once the goods carried in the course of an incoming international carriage have been delivered, hauliers … shall be permitted to carry out, with the same vehicle, … up to three cabotage operations’ (emphasis added).
14      Emphasis added.
15      Emphasis added.
16      This is because the entry into force and the application of a regulation are independent of any measure of reception into national law (judgment of 10 October 1973, Variola, 34/73, EU:C:1973:101EU:C:1973:101, paragraph 10).
17      Judgment of 15 November 2012, Al-Aqsa v Council and Netherlands v Al-Aqsa, C‑539/10 P and C‑550/10 P, EU:C:2012:711EU:C:2012:711, paragraph 86.
18      Judgments of 27 September 1979, Eridania, 230/78, EU:C:1979:216EU:C:1979:216, paragraph 34; of 21 December 2011, Danske Svineproducenter, C‑316/10, EU:C:2011:863, paragraph 40; and of 25 October 2012, Ketelä, C‑592/11, EU:C:2012:673, paragraph 35.
19      See Adam, R., and Tizzano, A., Manuale di diritto dell’Unione europea, 4th edition, Giappichelli, 2016, p. 167; Isaac, G., and Blanquet, M., Droit général de l’Union européenne, 10th edition, Sirey, 2012, p. 447; and Kovar, R., ‘Le règlement est directement applicable dans tout État membre: certes mais encore’, in De Grove‑Valdeyron, N., and Blanquet, M. (eds.), Mélanges en l’honneur du Professeur Joël Molinier, L.G.D.J., 2012, pp. 355 to 372 (p. 362).
20      Judgments of 21 December 2011, Danske Svineproducenter, C‑316/10, EU:C:2011:863EU:C:2011:863, paragraph 41; of 25 October 2012, Ketelä, C‑592/11, EU:C:2012:673, paragraph 36; and of 30 March 2017, Lingurár, C‑315/16, EU:C:2017:244, paragraph 18.
21      Judgment of 30 March 2017, Lingurár, C‑315/16, EU:C:2017:244EU:C:2017:244, paragraph 19.
22      As regards cabotage, references to national law in Regulation No 1072/2009 pertain to the conditions governing the transport contract, the weights and dimensions of road vehicles, the requirements relating to the carriage of certain categories of goods, the driving time and rest periods, and the value added tax on transport services (Article 9); and penalties (Article 16 and Chapter IV). Such references to national law do not pertain to the definition or the counting of cabotage operations.
23      See Hartley, T.C., The Foundations of European Union Law. An Introduction to the Constitutional and Administrative Law of the European Union, 8th edition, Oxford University Press, 2014, p. 217: ‘there may be cases in which, though the regulation does not expressly require implementation, it may impliedly permit it. This would be the case where the terms of the regulation are rather vague and provision for its detailed application is desirable. It appears that in such a case national measures will be permissible, provided they are not incompatible with the provisions of the regulation’.
24      Regulation of 22 December 2004 on the protection of animals during transport and related operations and amending Directives 64/432/EEC and 93/119/EC and Regulation (EC) No 1255/97 (OJ 2005 L 3, p. 1).
25      Judgment of 21 December 2011, Danske Svineproducenter, C‑316/10, EU:C:2011:863EU:C:2011:863, paragraphs 48 and 50; cf. judgment of 8 May 2008, Danske Svineproducenter, C‑491/06, EU:C:2008:263, paragraphs 38 to 40.
26      Regulation of 18 December 1995 on the protection of the European Communities financial interests (OJ 1995 L 312, p. 1).
27      Those penalties include the ‘payment of an administrative fine’, the ‘payment of an amount greater than the amounts wrongly received or evaded’, and the ‘total or partial removal of an advantage granted by [Union] rules’.
28      Quite the contrary, Article 2(3) of Regulation No 2988/95 states that ‘[Union] law shall determine the nature and scope of the administrative measures and penalties necessary for the correct application of the rules in question …’ (emphasis added).
29      Judgment of 28 October 2010, SGS Belgium and Others, C‑367/09, EU:C:2010:648EU:C:2010:648, paragraphs 36 and 40 to 43. Since, as mentioned above, Article 2(3) of Regulation No 2988/95 states that Union law shall set the applicable penalties, Member States may only adopt provisions pertaining to penalties as long as the EU legislature has not adopted provisions itself in that domain. I note that that obligation of Member States is based on Article 325 TFEU, which requires Member States to counter fraud affecting the financial interests of the Union, and on Article 4(3) TEU pertaining to the principle of sincere cooperation.
30      Judgment of 31 January 1978, Zerbone, 94/77, EU:C:1978:17EU:C:1978:17, paragraph 27 (emphasis added).
31      Judgment of 21 December 2011, Danske Svineproducenter, C‑316/10, EU:C:2011:863EU:C:2011:863, paragraph 48 (emphasis added). See point 42 above.
32      Judgment of 28 October 2010, SGS Belgium and Others, C‑367/09, EU:C:2010:648EU:C:2010:648, paragraph 36 (emphasis added). See point 43 above.
33      See pp. 9 and 21 of the ex-post evaluation of Regulation No 1072/2009.
34      See p. 228 of the 2015 Ricardo Study; and p. 60 of a report drawn by AECOM on 5 February 2014, Task B: Analyse the State of the European Road Haulage Market, Including an Evaluation of the Effectiveness of Controls and the Degree of Harmonisation (‘the AECOM Report’), available on the website of the Commission’s Directorate‑General for Mobility and Transport.
35      See pp. 100 and 101 of the 2015 Ricardo Study.
36      See footnote 32 of the ex-post evaluation of Regulation No 1072/2009, according to which ‘in Finland each loading or unloading operation amounts to one cabotage operation’. However, following the adoption of a reasoned opinion by the Commission, Finland amended its legislation on this issue. See footnote 80 of Part 1 of the Impact Assessment, of 31 May 2017, accompanying the proposal for a Regulation of the European Parliament and the Council amending Regulation (EC) No 1071/2009 and [Regulation No 1072/2009] with a view to adapting them to developments in the sector (‘the Impact Assessment of the Commission’s 2017 proposal’) (SWD(2017) 194 final).
37      See p. 228 of the 2015 Ricardo Study as regards the situation in Germany, Belgium and Poland.
38      See p. 61 of the AECOM Report.
39      See p. 18 of the Report on the State of the Union Road Transport Market.
40      Commission’s proposal, of 31 May 2017, for a Regulation of the European Parliament and the Council amending Regulation (EC) No 1071/2009 and [Regulation No 1072/2009] with a view to adapting them to developments in the sector (‘the Commission’s 2017 proposal’) (COM(2017) 281 final). As of today, that proposal has not led to the amendment of Regulation No 1072/2009.
41      Emphasis added.
42      According to Article 2(5)(a) of the Commission’s 2017 proposal, Article 8(2) of Regulation No 1072/2009 would be replaced by the following: ‘once the goods carried in the course of an incoming international carriage from another Member State or from a third country to a host Member State have been delivered, hauliers referred to in paragraph 1 shall be allowed to carry out, with the same vehicle or, in the case of a coupled combination, the motor vehicle of that same vehicle, cabotage operations in the host Member State or in contiguous Member States. The last unloading in the course of a cabotage operation shall take place within 5 days from the last unloading in the host Member State in the course of the incoming international carriage’ (emphasis added).
43      The Tweede Kamer der Staten-Generaal (House of Representatives, Netherlands) stated that some parliamentary groups ‘have substantive objections to … the currently proposed unlimited number of stops during the cabotage period, which has the effect of expanding rather than restricting cabotage’. It further noted that ‘five successive days of cabotage produce a “chain of cabotage” [to which] a cooling-off period might offer a solution’ (see p. 11 of Council document 11446/17, of 20 July 2017, Opinion of the Dutch House of Representatives on the application of the Principles of Subsidiarity and Proportionality). Similarly, the Senato della Repubblica (Senate of the Republic, Italy) suggested reducing from five to a maximum of three days the period within which non-resident hauliers may carry out cabotage operations without limitations (see p. 10 of Council document 12024/17, of 12 September 2017, Opinion of the Italian Senate on the application of the Principles of Subsidiarity and Proportionality). Moreover, the Bundesrat (Federal Council, Austria) stated that ‘it firmly rejects a rule that does not limit the number of carriages to be carried out, but merely focuses on a limitation in time, as this would make quasi-continuous cabotage … possible through a simple journey out of and a laden re-entry into the national market’ (see p. 6 of Council document 12600/17, of 28 September 2017, Opinion of the Austrian Federal Council on the application of the Principles of Subsidiarity and Proportionality). All of these documents are available on the EUR-Lex website, alongside the Commission’s 2017 proposal.
44      Judgments of 14 October 2004, Commission v Netherlands, C‑113/02, EU:C:2004:616, paragraph 19; of 28 October 2010, SGS Belgium and Others, C‑367/09, EU:C:2010:648, paragraph 40; of 21 December 2011, Danske Svineproducenter, C‑316/10, EU:C:2011:863, paragraph 51; and of 30 March 2017, Lingurár, C‑315/16, EU:C:2017:244, paragraph 29.
45      Judgment of 21 December 2011, Danske Svineproducenter, C‑316/10, EU:C:2011:863, paragraph 52. As to whether the proportionality test may include a third step, which requires that, when there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued (judgment of 22 March 2017, Euro-Team and Spirál-Gép, C497/15C497/15 and C‑498/15, EU:C:2017:229, paragraph 40), see Martinico, G., and Simoncini, M., ‘An Italian Perspective on the Principe of Proportionality’, in Vogenauer, S., and Weatherill, S. (eds.), General Principles of Law. European and Comparative Perspectives, Hart Publishing, 2017, pp. 221-241. According to Martinico and Simoncini, ‘the [Court] rarely reaches the third step of the test and this means that “the matter is settled by going through the levels of appropriateness (suitability) and necessity”’ (p. 227).
46      See recital 5 of Regulation No 1072/2009.
47      See recital 6 of Regulation No 1072/2009.
48      In 2014, such assessment took the form of the Report on the State of the Union Road Transport Market (see p. 1).
49      See p. 19 of the Impact Assessment accompanying the proposal for a regulation of the European Parliament and of the Council on common rules for access to the international road haulage market (recast), presented by the Commission on 6 July 2007 (SEC(2007) 635). That option was not adopted because it ‘would represent a substantial extension of the cabotage market and be very close to full liberalisation of cabotage’, thereby reducing transport costs, increasing the volume of cabotage and shifting jobs to Member States with lower labour costs. That option could have ‘substantial impacts’ and therefore required ‘a deeper analysis’, which went ‘beyond the scope of [the] simplification exercise’ carried out by the Commission (p. 32).
50      See point 55 above.
51      See footnote 10 above. When questioned at the hearing, the Commission indicated that the Q&A was published on its website a few days after the meeting of 25 October 2010 of the Committee on Road Transport.
52      Emphasis added.
53      According to the Commission’s written observations, ‘the Commission services published their interpretation of [the notion of] cabotage operation, which is binding on all Member States, more than six years ago, after discussing that interpretation with the Member States. Therefore, it was clear that the Commission would bring infringement proceedings against any Member State which would depart [from that interpretation]’. According again to the Commission’s written observations, ‘the [Committee on Road Transport] reached an agreement’ on the interpretation of the notion of cabotage operation as laid down in the Q&A.
54      Annex I to Regulation No 1072/2009 relates to the security features of the Union licence and the driver attestation, while Annex II to that regulation sets forth a model for the Union licence, and Annex III to that regulation lays down a model for the driver attestation.
55      Decision of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission (OJ 1999 L 184, p. 23).
56      Decision of 17 July 2006 amending Decision 1999/468 (OJ 2006 L 200, p. 11). I should mention that Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers (OJ 2011 L 55, p. 13) repealed and replaced Decision 1999/468. Regulation No 182/2011, however, is not applicable since it was adopted after the Q&A was published on the Commission’s website, a few days after the meeting of 25 October 2010 of the Committee on Road Transport. In any event, according to the second paragraph of Article 12 of Regulation No 182/2011, ‘the effects of Article 5a of [Decision 1999/468] shall be maintained for the purpose of existing basic acts making reference thereto’, such as Article 15(2) of Regulation No 1072/2009.
57      The Committee on Road Transport was set up by Article 18(1) of Council Regulation (EEC) No 3821/85 of 20 December 1985 on recording equipment in road transport (OJ 1985 L 370, p. 8). Article 15(1) of Regulation No 1072/2009 specifies that that Committee is to assist the Commission. See also, in that regard, the Commission’s Comitology Register, available at the following address: http://ec.europa.eu/transparency/regcomitology/index.cfm?do=List.list&page=20
58      Such as the management procedure and the regulatory procedure provided for by, respectively, Article 4 and Article 5 of Decision 1999/468, as amended by Decision 2006/512. No provision of Regulation No 1072/2009 makes reference to any of those procedures.
59      According to the Commission’s written observations, the interpretation of the notion of cabotage operation ‘[was] not put to a formal vote (which, in any event, was not legally required)’ (emphasis added).
60      Those Rules of Procedure are available on the Commission’s Comitology Register at the following address: http://ec.europa.eu/transparency/regcomitology/index.cfm?do=List.list&page=20
61      Indeed, the minutes of the meeting of 17 November 2009 of the Committee on Road Transport indicate that that committee ‘discussed’ various questions pertaining to Article 8 of Regulation No 1072/2009, which was to become applicable on 14 May 2010, such as the ‘three in seven’ rule. Similarly, the minutes of the meeting of 25 October 2010 of the Committee on Road Transport mention that that committee ‘discussed’ questions which had arisen after Article 8 of Regulation No 1072/2009 had become applicable, in particular, the question of the number of loading and unloading points which a cabotage operation may consist of.
62      I should also mention that, had the Committee on Road Transport voted at the meeting of 17 November 2009, it would have agreed to an interpretation of the notion of cabotage operation different from the one laid down in the Q&A. Indeed, a first version of the Q&A is attached to the minutes of that meeting, which states that ‘[a cabotage] operation can involve several loading points or several deliveries as the case may be’ (emphasis added). In other words, it is only after Article 8 of Regulation No 1072/2009 became applicable on 14 May 2010 that the Commission took the view that, as stated in the minutes of the meeting of 25 October 2010 of the Committee on Road Transport and in the Q&A, ‘a cabotage operation can involve several loading points, several delivery points or even several loading and delivery points, as the case may be’ (emphasis added).
63      The Commission would have had to submit the draft Q&A to the Parliament and the Council, each of which may have opposed the adoption of that draft. It is only if, on expiry of a three-month period, neither the Parliament nor the Council had opposed the draft Q&A, that the latter would have been adopted by the Commission.
64      See p. 25 of the Impact Assessment of the Commission’s 2017 proposal.
65      At the oral hearing, the representative of the Commission stated that, since the Q&A was published on its website following negotiation with the Member States, it expected all Member States to follow the interpretation of the notion of cabotage laid down in the Q&A. That representative further stated that, although that interpretation was ‘not legally binding’, the Commission had undertaken to see that that interpretation was applied, hence to bring infringement proceedings against any Member State that applied a different interpretation of the notion of cabotage operation.