Opinion of the Advocate-General



Opinion of the Advocate-General

1. In these proceedings, the Commission of the European Communities asks the Court to find that, by maintaining rules which prohibit mopeds from towing trailers, the Italian Republic has failed to fulfil its obligations under Article 28 EC.

I – Legal background

A – Community law

1. The Treaty establishing the European Community

2. Article 28 EC provides:

‘Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States.’

3. Under Article 30 EC, prohibitions or restrictions on imports between Member States which are justified, in particular, on grounds of public security or the protection of health and life of humans are authorised, provided that they do not constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States.

2. The rules on procedures for the type-approval of two or three-wheel motor vehicles

4. Council Directive 92/61/EEC (2) was adopted in order to establish a Community type-approval procedure (3) for two or three-wheel motor vehicles.

5. As is clear from the preamble to that directive, the aim of that procedure is to guarantee the functioning of the internal market by removing technical barriers to trade in the motor vehicle sector. (4) A further aim is to improve road safety and environmental and consumer protection. (5)

6. In order to implement that Community type-approval procedure, the directive provides for total harmonisation of the technical requirements which such vehicles must satisfy. (6) It also provides that the technical requirements applicable to the various components and characteristics of such vehicles should be harmonised by means of separate directives. (7)

7. By virtue of the first subparagraph of Article 1(1), Directive 92/61 applies to ‘two or three-wheel motor vehicles, twin-wheeled or otherwise, intended to travel on the road, and to the components or separate technical units of such vehicles.’

8. Pursuant to Article 1(2) and (3) of the directive, the vehicles concerned are mopeds, (8) motorcycles, tricycles and quadricycles.

9. The requirements concerning the masses and dimensions of two or three-wheel motor vehicles were harmonised pursuant to Council Directive 93/93/EEC. (9)

10. Other technical requirements concerning, in particular, coupling devices and attachments for such vehicles were harmonised pursuant to Directive 97/24/EC of the European Parliament and of the Council. (10)

11. Directives 93/93 and 97/24 both state, in their preambles, that the requirements they lay down should not have the aim or effect of obliging Member States that do not allow two or three-wheel motor vehicles in their territory to tow a trailer to amend their rules. (11)

B – National law

12. Article 53 of Legislative Decree No 285 (Decreto Legislativo No 285) of 30 April 1992 (12) defines mopeds as ‘motor vehicles with two, three or four wheels’, the latter constituting the category of ‘motor quadricycles’.

13. Pursuant to Article 54 of the Highway Code, automobiles are motor vehicles with at least four wheels, excluding mopeds.

14. Pursuant to Article 56 of that code, only automobiles, trolleybuses (13) and automobile tractors are allowed to tow trailers.

II – The pre-litigation procedure

15. Following an exchange of correspondence between the Italian Republic and the Commission, the latter, considering that Italy had failed to fulfil its obligations under Article 28 EC by adopting the rules at issue, sent a letter on 3 April 2003 calling on Italy to submit its observations.

16. In its reply, dated 13 June 2003, the Italian Republic gave a commitment to make the requisite changes to the national rules and to remove the obstacle to imports mentioned by the Commission. That Member State also stated that the changes concerned not only the type approval of vehicles but also the registration and use of such vehicles and roadside checks of trailers.

17. However, the Commission received no further communication concerning the making of such changes and therefore, on 19 December 2003, sent a reasoned opinion to the Italian Republic calling on it to take the measures needed to comply with its obligations under Article 28 EC within a period of two months as from service of that notice. Having received no reply, the Commission instituted the present proceedings under Article 226 EC by application lodged at the Registry of the Court of Justice on 4 March 2005.

III – The application

18. The Commission claims that the Court of Justice should:

– declare that, by prohibiting the towing of trailers by mopeds, the Italian Republic has failed to fulfil its obligations under Article 28 EC;

– order the Italian Republic to pay the costs.

19. The Italian Republic contends that the Court should dismiss the application.

IV – The failure to fulfil obligations

A – Principal arguments of the parties

20. The Commission criticises the Italian Republic for breaching the principle of free movement of goods laid down in Article 28 EC by prohibiting mopeds from towing trailers.

21. In support of that charge, the Commission points out first of all that, in the absence of harmonised Community legislation on type approval, registration and use of trailers for mopeds, Articles 28 EC and 30 EC apply.

22. The Commission then states that the measure at issue precludes the use of trailers legally produced and marketed in the other Member States, thereby impeding imports and sales of such trailers in Italy. In its view, such a measure, constituting an obstacle to imports within the meaning of Article 28 EC, could only be considered compatible with the Treaty if it were justified by one of the public-interest grounds set out in Article 30 EC or by one of the imperative requirements recognised by the case-law of the Court.

23. In that connection, the Commission observes that the fact that the Italian Republic allows mopeds that are registered in other Member States and tow trailers to be used in its territory proves that the towing prohibition at issue does not reflect any road safety requirement.

24. Finally, the Commission states that the recitals to Directives 93/93 and 97/24, relied on by the Italian Republic in support of the rules at issue, are not in any way binding and cannot have the object or effect of rendering compatible with Community law national rules of the kind at issue in these proceedings. In that connection, the Commission refers to the settled case-law of the Court of Justice concerning the primacy of primary law over secondary law.

25. In response to those arguments, the Italian Republic submits that the infringement imputed to it concerns a prohibition on mopeds registered in Italy from towing trailers and not the refusal to register mopeds or trailers manufactured in another Member State and intended to be marketed within Italian territory.

26. The Italian Republic also contends that the reservation appearing in the last recitals to Directives 93/93 and 97/24 renders the contested measure permissible. In its view, such a reservation is accounted for by the differences of terrain between national territories. The prohibition could only be lifted if the technical rules on type approval, registration and use on the road of trailers towed by two or three-wheeled motor vehicles were harmonised. (14) The Italian Republic states that the applicable Community law does not provide for any such harmonisation. Accordingly, mutual recognition of trailer requirements remains within the discretion of the Member States.

27. The Italian Republic emphasises, finally, that the technical characteristics of the vehicles are important from the point of view of road safety. The Italian authorities consider that, in the absence of type-approval rules for vehicles towing a trailer, the requisite safety requirements are not fulfilled.

B – Assessment

28. The Commission seeks a finding by the Court that, by prohibiting mopeds from towing a trailer, the Italian rules impede the free movement of goods, contrary to the Treaty.

29. It must be observed, as a preliminary point, that the provisions of secondary law relied upon do not govern the technical characteristics that must be fulfilled by mopeds towing a trailer. National measures concerning this matter are not therefore subject to harmonisation at Community level.

30. Nevertheless, in the absence of common or harmonised rules, the Member States remain obliged to respect the fundamental freedoms upheld by the Treaty, which include the free movement of goods. (15)

31. That freedom guarantees in particular, by virtue of Article 28 EC, the prohibition between Member States of quantitative restrictions on imports and all measures having equivalent effect.

32. It is clear from settled case-law that any State measure which is capable of directly or indirectly, actually or potentially, hindering intra-Community trade is a measure having an effect equivalent to a quantitative restriction prohibited by Article 28 EC.(16) Thus, although a measure may not be intended to govern trade in goods between Member States, the decisive factor is its effect on intra-Community trade, whether actual or potential.

33. Moreover, it is clear from the case-law of the Court that, in the absence of harmonisation of laws, measures that apply without distinction to domestic products and those imported from other Member States are liable to constitute restrictions on the free movement of goods. (17)

34. Such measures may nevertheless be justified if they pursue legitimate aims. It has been consistently held that a national rule which hinders the free movement of goods is not necessarily contrary to Community law if it may be justified by one of the public-interest grounds set out in Article 30 EC or by one of the overriding requirements laid down by the Court’s case-law where the national rules are applicable without distinction. (18)

35. However, as the Court has emphasised, any derogation from the fundamental principle of the free movement of goods must be construed strictly. (19) Each of the justifications set out in Article 30 EC must therefore be viewed restrictively and that article cannot be extended to cases other than those which are exhaustively set out in it. Accordingly, it is for the national authorities to demonstrate, first, that their rules are necessary in order to attain the objective pursued and, second, that those rules are proportionate to that aim. (20)

36. It is in the light of those principles that we should consider whether the national rules at issue constitute an obstacle to the free movement of goods prohibited by Article 28 EC and, if they do, whether there may be justification for them.

1. The existence of an obstacle to the free movement of goods

37. I consider that the national rules at issue in these proceedings constitute a measure having an effect equivalent to a quantitative restriction prohibited by Article 28 EC.

38. First, it is clear from the file that the prohibition at issue is a measure that applies without distinction to both domestic products and products imported from other Member States. The Italian Republic emphasises in its reply that the prohibition extends to all trailers, regardless of where they are manufactured. (21)

39. Second, it is undeniable that, by imposing a general and absolute prohibition on the towing of trailers by mopeds throughout Italian territory, the national rules at issue impede the free movement of goods and, in particular, that of trailers.

40. Although that prohibition relates only to mopeds, it seems to me that the coupling of a trailer to a vehicle of that kind constitutes a normal and frequently used means of transport, particularly in rural areas. However, those rules, although not prohibiting imports of trailers and their marketing in Italy, have the effect of limiting their use throughout Italian territory. I am therefore of the opinion that such a prohibition is liable to limit opportunities for trade between the Italian Republic and the other Member States and to hamper imports and the marketing in Italy of trailers from those States, even though they are lawfully manufactured and marketed there.

41. In those circumstances, it seems to me that the national rules at issue constitute a measure having an effect equivalent to a quantitative restriction, in principle prohibited by Article 28 EC.

42. It must nevertheless be considered whether those rules, despite their restrictive effects on intra-Community trade, may be justified on one of the public-interest grounds set out in Article 30 EC or by one of the overriding requirements upheld by the case-law of the Court and, if so, whether such a restriction is suitable for attaining the aim pursued and is proportionate thereto.

2. Possible justification of the obstacle

43. In this case, the Italian Republic contends that the prohibition at issue was laid down in order to ensure safety for drivers. That ground is not expressly mentioned in Article 30 EC and that provision, as I have stated, must be interpreted strictly.

44. I consider, however, that the promotion of road safety constitutes a legitimate ground which may, in certain circumstances, justify a hindrance to trade in goods within the Community.

45. It is undeniable that road safety is an objective recognised and pursued by Community law. (22)

46. Moreover, it should be noted that the grounds of justification mentioned in Article 30 EC include public safety and protection of the health and life of humans. I consider that each of those grounds must naturally be taken to include the prevention of road accidents.

47. Finally, the Court has already conceded, in its judgment of 11 June 1987 in Gofette and Gilliard (23) regarding a control measure imposed as a precondition for registration of a vehicle imported from another Member State, that an obstacle to the free movement of goods may be justified on the basis of Article 30 EC where that measure proves necessary in order to guarantee road safety. (24)

48. In those circumstances, I am of the opinion that the national rules at issue may be justified on the basis of Article 30 EC to the extent to which they are, first, capable of guaranteeing drivers’ safety and, second, proportionate to that aim.

49. As regards, first, the suitability of the measure at issue for attaining the aim pursued, it seems to me that national rules which prohibit mopeds from towing a trailer are capable, in certain cases, of responding to road safety concerns.

50. It seems to me that coupling a trailer to a moped may, in certain circumstances, constitute a danger to traffic in so far as such vehicles are slow and encroach significantly upon the carriageway. I can therefore imagine that vehicular traffic of that kind may be limited on certain roads, such as motorways and particularly dangerous roads.

51. Accordingly, the possibility cannot in my view be excluded that such a measure may contribute to road safety.

52. As regards, second, the proportionality of that measure, it should be borne in mind that, even though it is for the Member States, in the absence of harmonised rules on the use of mopeds towing a trailer, to decide at what level they wish to uphold the safety of drivers and the manner in which that level of safety should be attained, they may nevertheless do so only within the limits laid down by the Treaty and, in particular, in compliance with the principle of proportionality.

53. For national rules to comply with that principle, it is important that the means employed should not go further than is necessary to ensure protection of the interests referred to.

54. It must, first of all, be pointed out that a national measure such as the one at issue in the present proceedings places a significant restriction on freedom of trade between Member States.

55. It is clear from the information in the documents before the Court that the measure in question involves a general and absolute prohibition. That measure does not merely limit the use of mopeds towing a trailer in specific areas or itineraries, but applies throughout Italian territory, regardless of the highway infrastructures and traffic conditions.

56. It must next be observed that the Italian authorities have not referred to any precise factor capable of showing that the requirements imposed are proportionate to the aim of effectively promoting drivers’ safety.

57. First, the Italian Republic confines itself to stating, in wholly general terms, that ‘the terrain of the various national territories is not uniform’ and that ‘the technical characteristics of the vehicles are important to the safety of persons and traffic’.

58. Second, the Italian Republic does not deny that the prohibition at issue relates only to mopeds registered in Italy. (25) Vehicles registered in other Member States are therefore allowed to be used with a trailer on Italian roads.

59. Finally, it seems to me that the safety of drivers pursued by the rules at issue can be guaranteed by measures less restrictive of intra-Community trade. I consider, for example, that localised prohibitions, applicable to itineraries that are considered dangerous, such as Alpine crossings or particularly heavily used public highways, would contribute to the pursuit of that aim. In that connection, the Italian Republic’s stated intention to amend its rules to conform with Community law in my view confirms that analysis.

60. In any event, I consider that it is incumbent upon the Italian authorities to consider carefully, before adopting a measure as radical as a general and absolute prohibition, whether it might be possible to resort to measures less restrictive of freedom of movement and to rule them out only if their unsuitability for attainment of the aim pursued is clearly established.

61. In view of the foregoing considerations, I am of the opinion that a general and absolute prohibition, like the one at issue in this case, is not a measure proportionate to the objective pursued by the national authorities.

62. Consequently, I consider that the national rules at issue, by breaching the principle of proportionality, cannot be validly justified on road safety grounds. In my view, those rules must therefore be declared incompatible with Article 28 EC.

63. I do not think that the foregoing analysis can be seriously contradicted by the Italian Republic’s argument that the final recitals to Directives 93/93 and 97/24 authorise the Member States to keep such rules in force.

64. It is clear from settled case-law that ‘the preamble to a Community act has no binding legal force and cannot be relied on either as a ground for derogating from the actual provisions of the act in question or for interpreting those provisions in a manner clearly contrary to their wording’. (26)

65. In this case, neither of the recitals referred to by the Italian Republic is repeated in the actual body of the directives. And, as I have already emphasised in point 70 of my Opinion in the Meta Fackler case, (27) although the preamble to a directive in principle may give the Court information as to the legislature’s intention and the meaning to be given to the measure’s provisions, the fact remains that, where a concept set out in a recital is not given concrete expression in the actual body of the directive, it is the terms of the latter that must predominate.

66. In any event, the Court has repeatedly held that a provision of secondary law, in this case a directive, ‘cannot be interpreted as authorising the Member States to impose conditions contrary to the Treaty rules on the free movement of goods’. (28)

67. In those circumstances, I consider that the Italian Republic cannot validly rely on the recitals to Directives 93/93 and 97/24 to justify the prohibition laid down by the rules at issue.

68. In view of the foregoing considerations, I am of the opinion that the Italian Republic has failed to fulfil its obligations under Article 28 EC by adopting and keeping in force rules prohibiting mopeds registered in Italy from towing trailers.

V – Costs

69. Under Article 69(2) of the Rules of Procedure, 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 Commission has applied for costs and the Italian Republic has, for the most part, been unsuccessful, it must be ordered to pay the costs.

VI – Conclusion

70. In view of the foregoing considerations, I propose that the Court:

– find that, by adopting and keeping in force rules prohibiting mopeds registered in Italy from towing a trailer, the Italian Republic has failed to fulfil its obligations under Article 28 EC;

– order the Italian Republic to pay the costs.

(1) .

(2) – Council Directive 92/61/EEC of 30 June 1992 relating to the type-approval of two or three-wheel motor vehicles (OJ 1992 L 255, p. 72).

(3) – According to Article 2(6) of Directive 92/61, ‘type approval’ means the procedure whereby a Member State certifies that a type of vehicle satisfies the technical requirements set out in the separate directives and the checks on the correctness of the manufacturers’ data, as provided in Annex I to that directive.

(4) – See the first to third, twelfth and last recitals.

(5) – See the last recital.

(6) – Ibid.

(7) – See the eighth recital.

(8) – According to Article 1(2), first indent, of Directive 92/61, ‘moped’ means ‘two or three-wheel vehicles fitted with an engine having a cylinder capacity not exceeding 50 cm 3 if of the internal combustion type and a maximum design speed of not more than 45 km/h.’

(9) – Directive of 29 October 1993 on the masses and dimensions of two or three-wheel motor vehicles (OJ 1993 L 311, p. 76).

(10) – Directive of 17 June 1997 on certain components and characteristics or two or three-wheel motor vehicles (OJ 1997 L 226, p. 1).

(11) – See the last recitals to those directives.

(12) – GURI No 114 of 18 May 1992, hereinafter ‘the Highway Code’.

(13) – Trolleybuses are vehicles with an electric motor not travelling on rails which take their energy from an overhead contact line.

(14) – The Italian Republic observes that such rules already exist for trailers towed by other types of vehicle.

(15) – It should be borne in mind that, under Article 3(1)(c) EC, European Community action includes the creation of an internal market characterised by the abolition, as between Member States, of obstacles to, in particular, the free movement of goods. Moreover, Article 14(2) EC provides: ‘[t]he internal market shall comprise an area without internal frontiers in which the free movement of goods … is ensured in accordance with the provisions of this Treaty’; those provisions are set out notably in Article 28 EC et seq. See, to that effect, Case C-265/95 Commission v France [1997] ECR I-6959, paragraph 24 et seq.).

(16) – See, in particular, Joined Cases C-267/91 and C-268/91 Keck and Mithouard [1993] ECR I-6097, paragraph 11, and Joined Cases C-158/04 and C-159/04 Alfa Vita Vassilopoulos and Carrefour Marinopoulos [2006] ECR I-0000, paragraph 15 and the case-law there cited.

(17) – See, in particular, Case 120/78 Rewe-Zentral (‘ Cassis de Dijon ’) [1979] ECR 649, paragraphs 6, 14 and 15.

(18) – See, to that effect, the judgment in Alfa Vita Vassilopoulos and Carrefour Marinopoulos , cited above (paragraph 20 and the case-law there cited). It should be borne in mind that a justification based on Article 30 EC or on one of the fundamental requirements recognised by Community law is not available where Community directives provide for harmonisation of the measures necessary for attainment of the specific objective pursued. In such cases, protective measures must be adopted within the framework defined by the harmonising directive (see, in particular, Case C-5/94 Hedley Lomas [1996] ECR I-2553, paragraph 18).

(19) – See, in particular, Case C-205/89 Commission v Greece [1991] ECR I-1361, paragraph 9.

(20) – See, by way of illustration, Case C-270/02 Commission v Italy [2004] ECR I-1559, paragraph 22.

(21) – Paragraph 2.

(22) – See, in particular, the Commission Recommendation of 6 April 2004 on enforcement in the field of road safety (OJ 2004 L 111, p. 75); the Commission Communication of 2 June 2003 concerning the European road safety action programme – Halving the number of road accident victims in the European Union by 2010: a shared responsibility (COM(2003) 311 final), and the Council Resolution of 26 June 2000 on the improvement of road safety (OJ 2000 C 218, p. 1).

(23) – Case 406/85 [1987] ECR 2525, paragraph 7.

(24) – Mention must also be made of the judgment in Case C-55/93 Van Schaik [1994] ECR I-4837, in which the Court, ruling on a preliminary question concerning, among other things, the interpretation of Article 49 EC (freedom to provide services), took the view that road safety requirements constitute overriding reasons relating to the public interest justifying rules of a Member State which exclude the issue of test certificates for vehicles registered in that State by garages established in another Member State (paragraph 19).

(25) – Paragraph 2 of the Defence.

(26) – See, in particular, Case C-136/04 Deutsches Milch-Kontor [2005] ECR I-10095, paragraph 32, and the case-law there cited.

(27) – Case C-444/03 [2005] ECR I-3913.

(28) – Case C-47/90 Delhaize and Le Lion [1992] ECR I-3669, paragraph 26. See also Case C-315/92 Verband Sozialer Wettbewerb (‘ Clinique ’) [1994] ECR I-317, paragraph 12, in which the Court held that a ‘directive must, like all secondary legislation, be interpreted in the light of the Treaty rules on the free movement of goods’.