61983CJ0113_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 113/83
COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER, GIULIANO MARENCO, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ORESTE MONTALTO, A MEMBER OF ITS LEGAL SERVICE, JEAN MONNET BUILDING, KIRCHBERG,
APPLICANT,
V
ITALIAN REPUBLIC, REPRESENTED BY ARNALDO SQUILLANTE, DIVISIONAL PRESIDENT OF THE STATE COUNCIL, HEAD OF THE DEPARTMENT FOR CONTENTIOUS DIPLOMATIC AFFAIRS, ACTING AS AGENT, ASSISTED BY IGNAZIO FRANCESCO CARAMAZZA, AVVOCATO DELLO STATO, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE ITALIAN EMBASSY,
DEFENDANT,
Subject of the case
APPLICATION FOR A DECLARATION UNDER THE SECOND PARAGRAPH OF ARTICLE 169 OF THE EEC TREATY THAT, IN REQUIRING TWO TRANSPORT AUTHORIZATIONS UNDER THE COMMUNITY QUOTA SYSTEM WHEN A COUPLED COMBINATION OF VEHICLES, CONSISTING OF PARTS REGISTERED IN TWO DIFFERENT MEMBER STATES, EFFECTS INTERNATIONAL CARRIAGE BY ROAD, THE ITALIAN REPUBLIC HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER COUNCIL REGULATION ( EEC ) NO 3164/76 ON THE COMMUNITY QUOTA FOR THE CARRIAGE OF GOODS BY ROAD BETWEEN MEMBER STATES,
Grounds
1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 17 JUNE 1983, THE COMMISSION OF THE EUROPEAN COMMUNITIES BROUGHT AN ACTION UNDER ARTICLE 169 OF THE EEC TREATY FOR A DECLARATION THAT THE ITALIAN REPUBLIC HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER COUNCIL REGULATION ( EEC ) NO 3164/76 OF 16 DECEMBER 1976 ON THE COMMUNITY QUOTA FOR THE CARRIAGE OF GOODS BY ROAD BETWEEN MEMBER STATES ( OFFICIAL JOURNAL 1976, L 357, P . 1 ).
2 REGULATION NO 3164/76 PROVIDES THAT THE COMMUNITY QUOTA OF AUTHORIZATIONS, FIXED EACH YEAR BY THE COUNCIL, IS TO BE ALLOCATED BETWEEN THE MEMBER STATES . EACH MEMBER STATE IS TO ISSUE THE AUTHORIZATIONS FORMING PART OF ITS SHARE TO THE CARRIERS ESTABLISHED IN ITS TERRITORY . ARTICLE 2 ( 1 ) OF THE REGULATION PROVIDES THAT THE COMMUNITY AUTHORIZATIONS ENTITLE THEIR HOLDERS TO EFFECT, OVER ALL TRANSPORT LINKS BETWEEN THE MEMBER STATES, THE CARRIAGE OF GOODS BY ROAD FOR HIRE OR REWARD, WITH THE EXCEPTION OF INTERNAL TRANSPORT OPERATIONS WITHIN THE TERRITORY OF A MEMBER STATE, AND TO EFFECT JOURNEYS UNLADEN THROUGHOUT THE COMMUNITY .
3 ARTICLE 2 ( 3 ) PROVIDES THAT COMMUNITY AUTHORIZATIONS ARE TO BE MADE OUT ' ' IN THE NAME OF A CARRIER ' ', THEY MAY NOT BE TRANSFERRED BY THE CARRIER TO THIRD PARTIES, EACH AUTHORIZATION MAY BE USED FOR ONLY ONE VEHICLE AT A TIME, IT MUST BE CARRIED ON THE VEHICLE AND PRODUCED AT THE REQUEST OF ANY AUTHORIZED INSPECTING OFFICER AND ' '
' VEHICLE '
MEANS A SINGLE VEHICLE OR A COUPLED COMBINATION OF VEHICLES ' ' .
4 ARTICLE 5 PROVIDES THAT THE MEMBER STATES ARE TO ASSIST ONE ANOTHER WITH A VIEW TO APPLYING THE REGULATION AND SUPERVISING ITS IMPLEMENTATION .
5 IN THE EXERCISE OF THOSE POWERS GIVEN TO EACH MEMBER STATE FOR THE PURPOSE OF APPLYING AND SUPERVISING THE REGULATION, WHEN TWO PARTS OF A COUPLED COMBINATION OF VEHICLES EFFECTING INTERNATIONAL CARRIAGE OF GOODS BY ROAD TO, FROM, OR PASSING THROUGH ITALY ARE REGISTERED IN DIFFERENT MEMBER STATES, THE ITALIAN AUTHORITIES REQUIRE TWO AUTHORIZATIONS, ONE FOR THE TOWING VEHICLE AND ONE FOR THE TRAILER .
6 THE COMMISSION CONSIDERED THAT REQUIREMENT INCOMPATIBLE WITH THE PROVISIONS OF REGULATION NO 3164/76 . IT MAINTAINED THAT ARTICLE 2 ENTITLED HOLDERS OF COMMUNITY AUTHORIZATIONS TO EFFECT THE CARRIAGE OF GOODS SUBJECT TO CERTAIN CONDITIONS AND NO PROVISION OF THE REGULATION MADE A DISTINCTION AS TO THE STATE OF REGISTRATION OF A SINGLE VEHICLE OR THE PARTS OF A COUPLED COMBINATION OF VEHICLES .
7 THE ITALIAN GOVERNMENT ADVOCATED A DIFFERENT INTERPRETATION OF REGULATION NO 3164/76, ARGUING THAT, IN PROVIDING FOR A SINGLE AUTHORIZATION EVEN IN
RESPECT OF CARRIAGE EFFECTED BY A COUPLED COMBINATION OF VEHICLES, THE REGULATION COVERED ONLY CASES WHERE THE TWO PARTS MAKING UP THE COMBINATION BELONGED TO THE SAME UNDERTAKING HOLDING THE AUTHORIZATION AND CONSEQUENTLY WERE REGISTERED IN ONE MEMBER STATE AND THAT IT THUS DID NOT COVER CASES WHERE EACH PART OF THE COUPLED COMBINATION OF VEHICLES WAS REGISTERED IN A DIFFERENT MEMBER STATE . IT MAINTAINED THAT REGULATION NO 3164/76 IMPLICITLY RECOGNIZED A CONNECTION BETWEEN EACH TRANSPORT AUTHORIZATION AND THE STATE OF REGISTRATION OF THE VEHICLES USED UNDER THAT AUTHORIZATION . IT BASICALLY CONTENDED THAT ALTHOUGH THE REGULATION DID NOT EXPRESSLY REFER TO REGISTRATION, IT DID ESTABLISH A CONNECTION BETWEEN THE AUTHORIZATION AND, ON THE ONE HAND, THE IDENTITY OF THE VEHICLE AND, ON THE OTHER, ITS OWNER FROM WHICH IT WAS TO BE INFERRED THAT IT ESTABLISHED A CONNECTION WITH THE STATE OF REGISTRATION .
8 THE ITALIAN GOVERNMENT ADMITTED THAT THE REGULATION DID NOT EXPRESSLY REFER EITHER TO THE IDENTITY OF THE VEHICLE OR ITS OWNER . IT NEVERTHELESS MAINTAINED THAT THE IMPORTANCE OF THOSE TWO FACTORS WAS TO BE INFERRED INTER ALIA FROM THE INTERPRETATION OF CERTAIN PROVISIONS OF THE REGULATION IN QUESTION AND ITS ANNEXES .
9 THUS, ACCORDING TO THE ITALIAN GOVERNMENT, THE IDENTITY OF THE VEHICLE, AS A CONDITION FOR THE GRANT OF THE AUTHORIZATION, WAS TO BE INFERRED FROM THE SECOND SUBPARAGRAPH OF ARTICLE 2 ( 3 ) OF REGULATION NO 3164/76 WHICH PROVIDED THAT ' ' EACH AUTHORIZATION MAY BE USED FOR ONLY ONE VEHICLE AT A TIME ' '
AND THAT IT MUST ' ' BE CARRIED ON THE VEHICLE ' ' . THE SAME CONDITION WAS ALSO TO BE INFERRED FROM POINT 4 OF THE GENERAL PROVISIONS OF ANNEX II REFERRED TO IN ARTICLE 4 OF THE REGULATION WHICH REQUIRED A RECORD SHEET FOR EACH JOURNEY TRAVELLED BY EACH VEHICLE WHICH ' ' STARTS AND FINISHES AT THE PLACE WHERE THE VEHICLE IS USUALLY BASED ' '
AND FOR THAT PURPOSE REFERRED PRECISELY TO THE ' ' PLACE WHERE THE VEHICLE IS USUALLY BASED ' ' .
10 AS REGARDS THE IMPORTANCE OF THE OWNER OF THE VEHICLE, THE ITALIAN GOVERNMENT MAINTAINED THAT AUTHORIZATIONS WERE ISSUED BY EACH MEMBER STATE TO ITS NATIONALS EVEN IF THE WORDING OF ARTICLE 2 ( 6 ) OF THE REGULATION IN QUESTION REFERRED ONLY TO CARRIERS ' ' ESTABLISHED IN THEIR TERRITORY ' '
AND CONSEQUENTLY CONCERNED VEHICLES WHICH THEY OWNED AND WHICH WERE ' ' NATURALLY ' '
REGISTERED IN THAT MEMBER STATE . IT ALSO MAINTAINED THAT POINT ( C ) OF COMMISSION RECOMMENDATION NO 69/191/EEC OF 9 JUNE 1969 ( JOURNAL OFFICIEL 1969, L 165, P . 7 ) PROVIDING THAT THE HOLDER OF THE AUTHORIZATION COULD USE IT FOR VEHICLES OF WHICH HE WAS THE OWNER, OR FOR VEHICLES ON HIRE, SHOWED THE IMPORTANCE OF OWNERSHIP AND CONSEQUENTLY OF THE STATE OF REGISTRATION OF THE VEHICLE . IT PUT FORWARD AN ARGUMENT BASED ON COUNCIL
DIRECTIVE 65/269/EEC OF 13 MAY 1965 CONCERNING THE STANDARDIZATION OF CERTAIN RULES RELATING TO AUTHORIZATIONS FOR THE CARRIAGE OF GOODS BY ROAD BETWEEN MEMBER STATES ( OFFICIAL JOURNAL, ENGLISH SPECIAL EDITION 1965-1966, P . 64 ), ARTICLE 1 OF WHICH PROVIDED THAT AUTHORIZATIONS WERE TO BE ISSUED BY THE MEMBER STATE IN WHICH THE VEHICLE WAS REGISTERED . IT ADDED THAT COUNCIL DIRECTIVE 82/50/EEC OF 19 JANUARY 1982 AMENDING THE FIRST COUNCIL DIRECTIVE, OF 23 JULY 1962, ON THE ESTABLISHMENT OF COMMON RULES FOR CERTAIN TYPES OF CARRIAGE OF GOODS BY ROAD BETWEEN MEMBER STATES ( OFFICIAL JOURNAL 1982, L 27, P . 22 ) CONCERNED CASES OF THE REPLACEMENT OF A VEHICLE WHICH HAD BECOME ' ' UNSERVICEABLE IN A MEMBER STATE OTHER THAN THAT IN WHICH IT IS REGISTERED ' ' .
11 FINALLY, THE ITALIAN GOVERNMENT MAINTAINED THAT THE COMMISSION, IN ITS PROPOSAL OF 15 DECEMBER 1980 FOR A REGULATION AMENDING REGULATION NO 3164/76, PROVIDED THAT THE AUTHORIZATION SHOULD IN FUTURE BE ISSUED IN RESPECT OF THE TRACTOR AND THAT IT COULD ALSO BE USED TO COVER ' ' HAULAGE OF A TRAILER OR SEMI-TRAILER . . . REGISTERED IN A DIFFERENT MEMBER STATE ' ', WHICH WOULD NOT HAVE BEEN NECESSARY IF THAT RULE HAD ALREADY FOLLOWED FROM REGULATION NO 3164/76 .
12 THE COMMISSION REFUTED ALL THOSE ARGUMENTS . IT STATED THAT UNDER THE SYSTEM ESTABLISHED BY REGULATION NO 3164/76 THE GRANT OF AUTHORIZATIONS WAS NOT LINKED TO THE IDENTITY OF THE OWNER OF A VEHICLE OR THE NATIONALITY OF THE HOLDER . MORE PARTICULARLY IT OBSERVED THAT NEITHER THE SECOND SUBPARAGRAPH OF ARTICLE 2 ( 3 ) OF THE REGULATION NOR POINT 4 OF THE GENERAL PROVISIONS OF ANNEX II ( REPEALED BY REGULATION NO 3024/77 OF 21 DECEMBER 1977 ( OFFICIAL JOURNAL 1977, L 358, P . 4 ) IMPOSED CONDITIONS FOR THE ISSUE OF AUTHORIZATIONS BUT ONLY FOR THEIR USE AND THAT THE ' ' PLACE WHERE THE VEHICLE IS USUALLY BASED ' '
WAS NOT NECESSARILY THE PLACE OF REGISTRATION OF THE VEHICLE .
13 IT FURTHER OBSERVED THAT ACCORDING TO ARTICLE 2 ( 6 ) OF REGULATION NO 3164/76 AUTHORIZATIONS WERE TO BE ISSUED BY EACH MEMBER STATE NOT TO ITS NATIONALS BUT TO CARRIERS ESTABLISHED IN ITS TERRITORY . ACCORDING TO THE COMMISSION, RECOMMENDATION NO 69/191 OF 9 JUNE 1969, APART FROM THE FACT THAT IT CONCERNED NOT THE GRANT BUT THE USE OF AUTHORIZATIONS, SHOWED THAT THEY COULD ALSO BE USED FOR HIRED VEHICLES . IT STATED THAT DIRECTIVE 65/269 OF 13 MAY 1965 DID NOT RELATE TO THE COMMUNITY QUOTA BUT TO BILATERAL QUOTAS
BETWEEN MEMBER STATES AND THAT COUNCIL DIRECTIVE 82/50 OF 19 JANUARY 1982 CONFIRMED ITS VIEW .
14 FINALLY THE COMMISSION STATED THAT ITS PROPOSAL OF 15 DECEMBER 1980 WAS INTENDED TO RESOLVE THE PROBLEM WHICH HAD APPEARED BECAUSE IN THE CASE OF COUPLED VEHICLES CERTAIN MEMBER STATES REQUIRED AN AUTHORIZATION ISSUED IN THE NAME OF THE UNDERTAKING OPERATING THE TOWING VEHICLE, WHEREAS OTHERS REQUIRED AN AUTHORIZATION IN THE NAME OF THE UNDERTAKING OPERATING THE TRAILER AND THAT AT THE SAME TIME AS RESOLVING THAT PROBLEM AN ANCILLARY CLAUSE CONCERNING THE PROBLEM IN THE PRESENT CASE WAS ADDED, THE OBJECT OF WHICH WAS TO CLARIFY REGULATION NO 3164/76 RATHER THAN TO AMEND IT .
15 THE COMMISSION ' S VIEW MUST BE ACCEPTED . NONE OF THE ARGUMENTS OF THE ITALIAN GOVERNMENT CAN BE UPHELD . AS THE COMMISSION RIGHTLY OBSERVED, IN THE SYSTEM ESTABLISHED BY REGULATION NO 3164/76, AS IS APPARENT FROM ITS PROVISIONS, EACH AUTHORIZATION IS ISSUED IN THE NAME OF A CARRIER AND NOT FOR A PARTICULAR VEHICLE, SO THAT THE HOLDER OF THE AUTHORIZATION MAY CHOOSE WHICH VEHICLE TO USE TO EFFECT THE CARRIAGE AND IS NOT BOUND BY ANY CONDITION AS TO OWNERSHIP OR THE STATE OF REGISTRATION .
16 IT SHOULD FURTHER BE NOTED THAT ALTHOUGH THE SECOND SUBPARAGRAPH OF ARTICLE 2 ( 3 ) OF REGULATION NO 3164/76 PROVIDES THAT ' ' EACH AUTHORIZATION MAY BE USED FOR ONLY ONE VEHICLE AT A TIME ' ', THE THIRD SUBPARAGRAPH OF ARTICLE 2 ( 3 ) EXPRESSLY PROVIDES, WITHOUT ANY EXCEPTION OR DISTINCTION ON THE BASIS OF REGISTRATION, THAT ' '
' VEHICLE '
MEANS A SINGLE VEHICLE OR A COUPLED COMBINATION OF VEHICLES ' ', WHICH PRECLUDES THE REQUIREMENT OF TWO AUTHORIZATIONS FOR COUPLED VEHICLES . CONSEQUENTLY, THE ARGUMENT OF THE ITALIAN GOVERNMENT BASED ON THE COMMISSION ' S SUBMISSION OF A PROPOSAL FOR A REGULATION OF 15 DECEMBER 1980 CANNOT AFFECT THAT INTERPRETATION .
17 IT IS TRUE THAT THE REGULATION LEAVES OPEN THE QUESTION FOR WHICH OF THE TWO COUPLED PARTS THE ONE AUTHORIZATION MUST BE ISSUED . HOWEVER, THAT LACUNA CANNOT JUSTIFY THE REQUIREMENT BY A MEMBER STATE OF TWO AUTHORIZATIONS FOR A COUPLED COMBINATION OF VEHICLES .
18 IT IS THEREFORE NECESSARY TO DECLARE THAT IN REQUIRING TWO TRANSPORT AUTHORIZATIONS UNDER THE COMMUNITY QUOTA SYSTEM WHEN A COUPLED COMBINATION OF VEHICLES, CONSISTING OF PARTS REGISTERED IN TWO DIFFERENT MEMBER STATES, EFFECTS INTERNATIONAL CARRIAGE BY ROAD, THE ITALIAN REPUBLIC HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER COUNCIL REGULATION NO 3164/76 OF 16 DECEMBER 1976 .
Decision on costs
COSTS
19 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE, THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS IF THEY HAVE BEEN ASKED FOR . SINCE THE DEFENDANT HAS BEEN UNSUCCESSFUL IT MUST BE ORDERED TO PAY THE COSTS .
Operative part
ON THOSE GROUNDS,
THE COURT
HEREBY :
1 . DECLARES THAT IN REQUIRING TWO TRANSPORT AUTHORIZATIONS UNDER THE COMMUNITY QUOTA SYSTEM WHEN A COUPLED COMBINATION OF VEHICLES, CONSISTING OF PARTS REGISTERED IN TWO DIFFERENT MEMBER STATES, EFFECTS INTERNATIONAL CARRIAGE BY ROAD, THE ITALIAN REPUBLIC HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER COUNCIL REGULATION NO 3164/76 OF 16 DECEMBER 1976 ;
2.ORDERS THE DEFENDANT TO PAY THE COSTS .