OPINION OF ADVOCATE GENERAL

PIKAMÄE

delivered on 13 June 2019 ( 1 )

Joined Cases C‑203/18 and C‑374/18

Deutsche Post AG,

Klaus Leymann

v

Land Nordrhein-Westfalen

(Request for a preliminary ruling

from the Oberverwaltungsgericht für das Land Nordrhein-Westfalen (Higher Administrative Court for the Land of North Rhine-Westphalia, Germany))

and

UPS Deutschland Inc. & Co. OHG,

DPD Dynamic Parcel Distribution GmbH & Co. KG,

Bundesverband Paket & Expresslogistik eV

v

Deutsche Post AG

(Request for a preliminary ruling

from the Landgericht Köln (Regional Court, Cologne, Germany))

(Reference for a preliminary ruling — Road transport — Regulation (EC) No 561/2006 — Use of tachograph — Article 13(1)(d) — Exception for vehicles used for the delivery of items as part of the universal postal service — Vehicles partly used for the delivery of items not forming part of the universal postal service — Directive 97/67/EC — Concept of ‘universal service’)

1. In the present joined preliminary ruling cases, the Court is asked, inter alia, to determine the scope of Article 13(1)(d) of Regulation (EC) No 561/2006 of the European Parliament and of the Council of 15 March 2006 on the harmonisation of certain social legislation relating to road transport and amending Council Regulations (EEC) No 3821/85 and (EC) No 2135/98 and repealing Council Regulation (EEC) No 3820/85, as amended by Regulation (EU) No 165/2014 of the Parliament and of the Council of 4 February 2014 (‘Regulation No 561/2006’). ( 2 ) That provision allows Member States to grant an exception from the application of the provisions of that regulation concerning driving times, breaks and rest periods to carriage by the vehicles used by universal postal service providers ‘to deliver items as part of the universal service’.

2. In particular, the Court will be required to rule, in its forthcoming judgment, on whether that exception must be understood as meaning that it covers only vehicles used solely and exclusively for the purpose of delivering items covered by the universal postal service, or whether it is also applicable where those vehicles are used predominantly, or to a degree determined in some other way, for the purpose of delivering items covered by that service.

I. Legal context

A. European Union law

1. Regulation No 561/2006

3. Article 1 of Regulation No 561/2006 provides: ‘This Regulation lays down rules on driving times, breaks and rest periods for drivers engaged in the carriage of goods and passengers by road in order to harmonise the conditions of competition between modes of inland transport, especially with regard to the road sector, and to improve working conditions and road safety. This Regulation also aims to promote improved monitoring and enforcement practices by Member States and improved working practices in the road transport industry.’

4. Article 2(1)(a) of that regulation provides: ‘This Regulation shall apply to the carriage by road: (a) of goods where the maximum permissible mass of the vehicle, including any trailer, or semi-trailer, exceeds 3.5 tonnes …’

5. Articles 5 to 9 of that regulation set out the rules applicable to the crew of a transport vehicle, driving time, breaks and rest periods.

6. Article 13(1) of that regulation, which is included in Chapter IV (‘Exceptions’), states: ‘Provided the objectives set out in Article 1 are not prejudiced, each Member State may grant exceptions from Articles 5 to 9 and make such exceptions subject to individual conditions on its own territory or, with the agreement of the States concerned, on the territory of another Member State, applicable to carriage by the following: … (d) vehicles or combinations of vehicles with a maximum permissible mass not exceeding 7.5 tonnes used by universal service providers as defined in Article 2(13) of Directive 97/67/EC of the European Parliament and of the Council of 15 December 1997 on common rules for the development of the internal market of Community postal services and the improvement of quality of service ( 3 ) to deliver items as part of the universal service. These vehicles shall be used only within a 100 km radius from the base of the undertaking, and on condition that driving the vehicles does not constitute the driver’s main activity; …’

2. Regulation (EU) No 165/2014

7. Regulation (EU) No 165/2014 of the European Parliament and of the Council of 4 February 2014 on tachographs in road transport, repealing Council Regulation (EEC) No 3821/85 on recording equipment in road transport and amending Regulation (EC) No 561/2006 ( 4 ) sets out, inter alia, obligations and requirements in relation to the construction, installation, use, testing and control of tachographs used in road transport.

3. Directive 97/67/EC

8. Article 2(13) of Directive 97/67, as amended by Directive 2008/6/EC of the European Parliament and of the Council of 20 February 2008 ( 5 ) (‘Directive 97/67’) provides: ‘For the purposes of this Directive, the following definitions shall apply: … 13. universal service provider: the public or private postal service provider providing a universal postal service or parts thereof within a Member State, the identity of which has been notified to the Commission in accordance with Article 4.’

9. Article 3(1), (4) and (5) of that directive provides that: ‘1. Member States shall ensure that users enjoy the right to a universal service involving the permanent provision of a postal service of specified quality at all points in their territory at affordable prices for all users. … 4. Each Member State shall adopt the measures necessary to ensure that the universal service includes the following minimum facilities: – the clearance, sorting, transport and distribution of postal items up to two kilograms, – the clearance, sorting, transport and distribution of postal packages up to 10 kilograms, – services for registered items and insured items. 5. The national regulatory authorities may increase the weight limit of universal service coverage for postal parcels to any weight not exceeding 20 kilograms and may lay down special arrangements for the door-to-door delivery of such parcels. …’

B. German law

10. Paragraph 1 of the Verordnung zur Durchführung des Fahrpersonalgesetzes (Regulation implementing the Law on driving crews; ‘the FPersV’), entitled ‘Driving time and rest periods in the field of road transport’, provides: ‘(1) Drivers 1. of vehicles used for the carriage of goods and where the maximum permissible mass of the vehicle, including any trailer, or semi-trailer, exceeds 2.8 tonnes but does not exceed 3.5 tonnes … shall observe the rules relating to driving times, breaks and rest periods provided for by Articles 4, 6 to 9 and 12 [of Regulation No 561/2006]. (2) Subparagraph (1) shall not apply to 1. vehicles referred to in Paragraph 18; … (6) … The operator shall 1. issue the driver with sufficient copies of the appropriate forms, based on the specimen set out in Annex 1, for the production of records; 2. examine the records immediately upon their submission by the driver and take any immediate steps necessary to ensure compliance with the first to fifth sentences; 3. keep the records in chronological order and in legible form outside the vehicle for 1 year following their submission by the driver and present them to the competent persons on request; 4. destroy the records by 31 March of the calendar year following the expiry of the retention period … …’

11. Paragraph 18 of the FPersV, entitled ‘Exceptions under Regulations (EC) No 561/2006 and (EU) No 165/2014’, provides: ‘(1) In accordance with Article 13(1) of [Regulation No 561/2006] and Article 3(2) of [Regulation No 165/2014], the following categories of vehicle shall, within the scope of the application of the Law on driving crews, be excluded from the application of Articles 5 to 9 of [Regulation No 561/2006] and from the application of [Regulation No 165/2014]: … 4. vehicles or combinations of vehicles with a maximum permissible mass not exceeding 7.5 tonnes which are used, by postal service providers providing universal services as defined in Paragraph 1(1) of the Post-Universaldienstleistungsverordnung (Federal Regulation on universal postal services) of 15 December 1999, ( 6 ) as last amended by Paragraph 3(26) of the Law of 7 July 2005 ( 7 ) [(‘the PUDLV’)], within a 100 km radius from the base of the undertaking to deliver items as part of the universal service, in so far as driving the vehicle does not constitute the driver’s main activity; …’

12. Paragraph 4(1)(b) of the Postgesetz (Law on postal services) of 22 December 1997, ( 8 ) as last amended by Paragraph 169 of the Law of 29 March 2017 ( 9 ) (‘the PostG’), provides: ‘For the purposes of this Law, postal services shall mean the following commercial services: … (b) the carriage of addressed parcels the individual weight of which does not exceed 20 kg, …’

13. Paragraph 11 of the PostG provides: ‘(1) The universal service is a minimum range of postal services referred to in Paragraph 4(1) which are provided to a specified quality at all points in the national territory at an affordable price. The universal service shall be restricted to postal services which are subject to licence and postal services at least parts of which are capable, from the point of view of conveyance, of being provided by way of postal services subject to licence. It shall include only those services that are generally regarded as essential. (2) The Federal Government is empowered to determine by regulation requiring the consent of the Bundestag (the Federal Parliament, Germany) and the Bundesrat (the Federal Council, Germany) the content and scope of the universal service, in accordance with the provisions of subparagraph (1).’

14. On the basis of Paragraph 11(2) of the PostG, the Federal Government clarified the scope of the universal service with regard to the delivery of parcels provided for in Paragraph 1(1)(2) of the PUDLV, which is worded as follows: ‘(1) The following postal services shall be classified as universal services: … (2) The conveyance of addressed parcels the individual weight of which does not exceed 20 kg and the dimensions of which do not exceed those laid down in the Universal Postal Convention and the implementing regulations relating thereto. …’

II. The facts giving rise to the dispute, the main proceedings and the questions referred for a preliminary ruling

A. Case C‑203/18

15. Deutsche Post AG is the universal postal service provider in Germany. In that capacity, it transports parcels with a maximum weight of 20 kilograms, in accordance with Paragraph 1(1)(2) of the PUDLV. For its deliveries, it uses vehicles or combinations of vehicles with a maximum permissible mass not exceeding 7.5 tonnes. At the same time, and using those same vehicles, Deutsche Post also delivers parcels weighing more than 20 kilograms — that is to say, parcels that do not come under the universal service — but which, according to the information provided by Deutsche Post, represent no more than 5% of the total load of all vehicles, even during periods of intensive distribution.

16. Deutsche Post takes the view that, as universal postal service provider, it falls within the exception provided for in Paragraph 18(1)(4) of the FPersV. As a result, it claims not to be subject to the obligation to apply the rules laid down in relation to undertakings concerning driving times, breaks and rest periods for drivers engaged in the carriage of goods and passengers by road.

17. By contrast, the competent authorities maintain that that exception is not applicable on the ground that Deutsche Post also transports heavier parcels weighing over 20 kilograms, that is to say, the limit applicable to items falling within the universal service. In that context, Deutsche Post business premises have been inspected several times and administrative penalties procedures have been instituted against transport and distribution centre managers, as well as against Deutsche Post delivery drivers.

18. On 21 January 2015, Deutsche Post and Mr Klaus Leymann (‘Deutsche Post and another’) brought an action for a declaratory judgment before the Verwaltungsgericht Köln (Administrative Court, Cologne, Germany), seeking clarification of the scope of the exception provided for in Paragraph 18(1)(4) of the FPersV and recognition that that exception also applies to vehicles which transport parcels individually weighing over 20 kilograms alongside parcels covered by the universal service. By a judgment of 2 February 2016, the application was dismissed as unfounded by the Verwaltungsgericht Köln (Administrative Court, Cologne). In so doing, that court, inter alia, upheld the interpretation of Land Nordrhein-Westfalen (the Land of North Rhine-Westphalia, Germany) that the exception at issue applies only if the vehicles are used ‘exclusively’ for the purpose of delivering items falling within the universal postal service.

19. On 7 March 2016, Deutsche Post and another appealed against that judgment to the referring court.

20. First of all, that court notes that, in adopting Paragraph 18(1)(4) of the FPersV, the German legislature used the content of Article 13(1)(d) of Regulation No 561/2006, which provides for an exception covering vehicles or combinations of vehicles used by the universal postal service provider to deliver items as part of the universal service (‘the exception at issue’), with the result that the interpretation of that national provision depends, essentially, on the interpretation to be given to the exception provided for in EU law.

21. In that regard, the referring court points out that the interpretation advocated by the Land of North Rhine-Westphalia would prevent the universal postal service provider from obtaining a competitive advantage over undertakings which do not provide such a service and which are thus subject to the rules on driving times, breaks and rest periods. However, in the view of that court, the exception at issue might also be understood as being intended to compensate for the competitive disadvantage to the universal service provider resulting from State regulation of pricing and the quality of the services provided.

22. Moreover, in the event that the exception at issue does not require vehicles or combinations of vehicles to be used ‘exclusively’ to deliver items as part of the universal service, the referring court considers that it will be necessary to clarify whether that exception requires at the very least that a specified proportion of items must be covered by the universal service in order for those vehicles or combinations of vehicles to be exempt from compliance with the obligations laid down by Regulation No 561/2006.

23. In those circumstances, the Oberverwaltungsgericht für das Land Nordrhein-Westfalen (Higher Administrative Court for the Land of North Rhine-Westphalia, Germany) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) Is the exception set out in Article 13(1)(d) of [Regulation No 561/2006] to be interpreted as covering only vehicles or combinations of vehicles that are used exclusively for the purpose of delivering packages in the context of the universal service, or can it additionally be applied where the vehicles or combinations of vehicles are used, predominantly or to a degree determined in some other way, also for the purpose of delivering packages in the context of the universal service? (2) In the context of the exception referred to in the first question, for the purposes of assessing whether vehicles or combinations of vehicles are used exclusively or, as the case may be, predominantly or to a degree determined in some other way, also for the purpose of delivering packages in the context of the universal service, is the general use of a vehicle or combination of vehicles to be used as a basis for that assessment, or the specific use of a vehicle or combination of vehicles for a single journey?’

B. Case C‑374/18

24. As in Case C‑203/18, the dispute in the main proceedings concerns compliance by Deutsche Post with the obligations laid down in Regulation No 561/2006.

25. Nevertheless, there are two elements which distinguish this case from Case C‑203/18: (i) the applicants in the main proceedings, namely UPS Deutschland Inc. & Co. OHG, DPD Dynamic Parcel Distribution GmbH & Co. KG and Bundesverband Paket & Expresslogistik eV (‘UPS Deutschland and others’), complain that Deutsche Post infringed Paragraphs 3 and 3a of the Gesetz gegen den unlauteren Wettbewerb (Law against unfair competition) and have brought an action seeking the cessation of those practices and a declaration of the obligation to make good the damage suffered as a result and (ii) the vehicles or combination of vehicles concerned have a maximum mass exceeding 2.8 tonnes but below 3.5 tonnes.

26. As is apparent from its order for reference, the Landgericht Köln (Regional Court, Cologne, Germany) inclines to the view that the defendant cannot rely on the exception provided for in Paragraph 18(1)(4) of the FPersV, since, as is apparent from the meaning and purpose of that provision, the exception at issue can apply only where delivery is exclusively of items falling within the universal postal service. In particular, according to that court, the objective of improving the working conditions of drivers and road safety, pursued by the FPersV, which transposes Regulation No 561/2006 into the domestic legal system, can be achieved only if, in a sector characterised by strong competition, such as the postal sector, exceptions are strictly interpreted.

27. Furthermore, the referring court is uncertain whether the provision of certain add-on services in connection with a postal item precludes its classification as an item delivered ‘as part of the universal service’. In the view of the referring court, that question should be answered in the affirmative.

28. For those reasons, the Landgericht Köln (Regional Court, Cologne) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) Is Article 13(1) of [Regulation No 561/2006] to be interpreted as meaning that that provision permits exceptions from Articles 5 to 9 of [Regulation No 561/2006] only in the event that a vehicle of a universal service provider within the meaning of Article 2(13) of Directive [97/67] transports solely and exclusively items forming part of the universal service, in accordance with Article 13(1)(d) of [Regulation No 561/2006], or are exceptions from Articles 5 to 9 of [Regulation No 561/2006] also permissible under that provision in the case where the vehicles concerned, in addition to transporting items forming part of the universal service, also carry items that do not come under the universal service? (2) If the answer to Question 1 is that exceptions from Articles 5 to 9 of [Regulation No 561/2006] are also permissible in the case where the vehicles concerned, in addition to transporting items forming part of the universal service, also carry other items that do not come under the universal service: (a) What proportion must the share of items which a vehicle carries as part of the universal service represent as a minimum? (b) What proportion may the share of items which do not come under the universal service and which the vehicle carries at the same time as those forming part of the universal service represent as a maximum? (c) How is such a proportion, as described in points (a) and (b), to be determined in each case? (d) Must such a proportion, as described in points (a) and (b), be defined for each individual journey performed by the vehicle concerned or is an average proportion, based on all the journeys performed by the vehicle in question, sufficient? (3) (a) Is a national provision of an EU State on driving times and rest periods for vehicles and combinations of vehicles for the carriage of goods with a maximum permissible mass in excess of 2.8 [tonnes] and not exceeding 3.5 [tonnes], which reproduces verbatim the provisions of Article 13(1) of [Regulation No 561/2006], to be interpreted exclusively on the basis of EU law? (b) Can a national court, notwithstanding the verbatim reproduction of EU law, apply different criteria to interpret the provisions reproduced from EU law? (4) Is an item’s classification as an item forming part of the universal service in accordance with Directive [97/67] precluded where, in connection with that item, add-on services such as: – collection (without a time slot), – collection (with a time slot), – minimum age check, – cash on delivery, – postage payment by recipient up to 31.5 kg, – redirection service, – instructions in the event of non-delivery, – preferred delivery day, – preferred delivery time, are offered?’

C. Procedure before the Court

29. In Case C‑203/18, written observations were lodged by Deutsche Post and another, the Land of North Rhine-Westphalia, the Polish Government and the European Commission.

30. In Case C‑374/18, written observations were lodged by UPS Deutschland and others, Deutsche Post, the Polish Government and the Commission.

31. By decision of the President of the Court of 5 February 2019, Cases C‑203/18 and C‑374/18 were joined for the purposes of the oral procedure and the judgment.

32. At the joint hearing held on 28 March 2019 for the two cases which were now joined, oral argument was presented by Deutsche Post and another, the Land of North Rhine-Westphalia, UPS Deutschland and others, Deutsche Post and the Commission.

III. Analysis

A. Preliminary observations

33. As regards Case C‑203/18, it is not disputed that the first and second questions referred relate to the interpretation of Regulation No 561/2006, in particular the exception provided for in Article 13(1)(d) of that regulation.

34. As regards Case C‑374/18, it should be noted that the first and second questions referred, which are, in essence, identical to those in Case C‑203/18, also relate to the interpretation of Regulation No 561/2006. The fourth question raised in Case C‑374/18 also concerns, in my view, the interpretation of that regulation. Although it is true that that fourth question refers to Directive 97/67, it is quite clear from the observations of the Landgericht Köln (Regional Court, Cologne) that that directive is taken into account only in so far as it makes it possible to determine the extent of the concept of ‘universal service’ and thus to ascertain whether the requirement for the application of the exception at issue has been fulfilled, that is to say that the vehicles concerned must be used to deliver items ‘as part of the universal service’.

35. Nevertheless, unlike in Case C‑203/18, the referring court, by its third question, expresses doubts as to the relevance of Regulation No 561/2006 for the interpretation of national law in circumstances such as those at issue in the main proceedings.

36. In that regard, the referring court points out that the national legislation alleged to have been infringed, namely the FPersV, transposes into German law the provisions of Regulation No 561/2006 concerning vehicles or combinations of vehicles with a maximum permissible mass exceeding 2.8 tonnes. In other words, German law applies the rules governing driving times, breaks and rest periods to a larger number of vehicles than that which is covered by Regulation No 561/2006, since the latter applies only to the carriage by road of goods transported by vehicles or combinations of vehicles with a maximum permissible mass exceeding 3.5 tonnes, as provided for in Article 2(1)(a) of that regulation.

37. As the referring court points out, the dispute in the main proceedings in Case C‑374/18 concerns vehicles or combinations of vehicles — that is, those with a maximum permissible mass of between 2.8 tonnes and 3.5 tonnes — which do not in principle fall within the scope of Regulation No 561/2006, but to which German law nevertheless applies.

38. It is for that reason that that court asks the Court of Justice whether a provision such as Paragraph 18(1)(4) of the FPersV, where it concerns vehicles with a maximum permissible mass exceeding 2.8 tonnes and below 3.5 tonnes, must be interpreted exclusively on the basis of EU law or whether a national court may apply different criteria.

39. In the event that it is established that a national court is entitled, for the purposes of interpreting Paragraph 18(1)(4) of the FPersV, to apply criteria other than those set out in the relevant provision of EU law, namely Article 13(1)(d) of Regulation No 561/2006, it is clear that the Court does not have jurisdiction to answer the first, second and fourth questions referred in Case C‑374/18.

40. Since that third question effectively calls into question the Court’s jurisdiction to answer the questions referred in Case C‑374/18, I shall address that third question first of all, as the Commission, moreover, suggests in its written observations (Section B). This will allow me subsequently to examine together the two questions common to both cases (the first and second questions both in Case C‑203/18 and in Case C‑374/18) (Section C), and then to proceed to the assessment of the fourth question in Case C‑374/18 (Section D).

B. The third question referred in Case C‑374/18

41. By its third question, the referring court seeks, in essence, to ascertain whether Paragraph 18(1)(4) of the FPersV — where it concerns vehicles with a maximum permissible mass exceeding 2.8 tonnes but below 3.5 tonnes and which therefore do not, in principle, fall within the scope of Regulation No 561/2006 — must be interpreted on the basis of EU law or whether, by contrast, a national court is entitled to apply criteria that differ from those of EU law in interpreting such a provision.

42. In order to answer that question, I shall first of all recall the principles established in the relevant case-law of the Court and I shall then apply those principles to the circumstances of the present case.

1. Summary of the case-law concerning a reference in national law to EU law

43. In the first place, I would point out that the fact that Paragraph 18(1)(4) of the FPersV concerns, in the present case, carriage by vehicles not falling within the scope of Regulation No 561/2006 does not necessarily preclude the Court from having jurisdiction to answer the questions referred to it. The Court has on many occasions held that it had jurisdiction to give preliminary rulings on questions concerning provisions of EU law in situations in which the facts of the cases before the national courts fell outside the scope of that law, provided that those provisions had been rendered applicable by national law, which had adopted, for purely internal situations, the same approach as that provided for under EU law. ( 10 ) Such a conclusion is primarily based on the assessment that, in order to forestall future differences of interpretation, provisions taken from EU law should be interpreted uniformly, irrespective of the circumstances in which they are to apply. ( 11 )

44. However, that does not mean that the Court has jurisdiction to give a ruling on each case that requires the application of national provisions making reference to EU law.

45. In a series of judgments dating back to the judgment in Kleinwort Benson ( 12 ) and recently confirmed on several occasions, ( 13 ) the Court has adopted a stricter approach concerning the limits of its jurisdiction, stating that an interpretation by the Court of provisions of EU law in situations outside its scope is justified only where those provisions have been made applicable to such situations by national law in a direct and unconditional way. Moreover, the Court assumes jurisdiction in such situations only if it is certain that its interpretation will be binding on the national court. ( 14 )

46. In those circumstances, it seems to me necessary to define what is meant by a ‘direct’ and ‘unconditional’ reference and to clarify how the Court determines whether the national court is bound to adhere to the Court’s interpretation.

47. As regards the term ‘direct’, it must, in my view, be understood as meaning that it requires the reference to be express and unambiguous. ( 15 )

48. Such classification presupposes, in my view, that the national legislation indicates in a sufficiently precise manner that the national legislature’s intention is to refer to the content of the provisions of EU law. For such an indication to be regarded as sufficiently precise, it does not seem necessary for the reference to the relevant rules of EU law to be expressly included in the text of the national law to be applied, ( 16 ) provided that it is sufficiently unambiguous. In order to determine whether this is so, more recent case-law of the Court seems to me to attach particular significance to two factors: first, the applicable national provision must have similar content to the provision of EU law, in that it faithfully reproduces the main content of the latter provision; secondly, it must be clear from the preamble to or the explanatory memorandum for the national legislation that the legislature, when it adopted the provision in question, sought to harmonise internal situations with those covered by EU law. ( 17 )

49. As regards the term ‘unconditional’, it must be interpreted, in my view, as meaning that the reference must relate to the context of the provision in question or, to put it more technically, the reference must be to the whole of the legislation at issue. This implies, as has been explained by Advocate General Cruz Villalón, ( 18 ) that a single reference by the national legislature to a particular provision taken from the EU legislation cannot be regarded as ‘unconditional’, since the application of the Court’s case-law in such a case and, consequently, the reply to the question referred for a preliminary ruling, would run the risk of being irrelevant to the dispute in the main proceedings and therefore purely hypothetical. ( 19 )

50. As regards the binding nature of the interpretation provided by the Court, it suffices to note that, in the light of the referring court’s discretion in assessing whether the questions referred to the Court in the context of a reference for a preliminary ruling are necessary, ( 20 ) this nature appears to be presumed in the case-law, except where the evidence in the case file leads to the conclusion that such an interpretation is not binding on the national courts. ( 21 )

2. Application to the present case

51. On the basis of the principles I have just recalled, and for the reasons which I shall set out in the following paragraphs, I consider that the reference to Article 13(1)(d) of Regulation No 561/2006 in Paragraph 18(1)(4) of the FPersV must be characterised as ‘direct and unconditional’, with the result that Article 13(1)(d) of Regulation No 561/2006 is made applicable to vehicles which, because they have a maximum permissible mass below the minimum limit of 3.5 tonnes, would not, in the absence of such a reference, fall within the scope of Regulation No 561/2006.

52. First, the reference in question is, in my view, ‘direct’, in so far as the requirements laid down by the case-law referred to in points 48 to 49 of this Opinion, with respect to both the wording of Paragraph 18(1)(4) of the FPersV and the intention of the German legislature, have been fulfilled.

53. Indeed, the wording of that provision seems to me even to go beyond what is necessary to comply with such requirements, since it does not merely replicate the main content of Article 13(1)(d) of Regulation No 561/2006, as amended by Article 45 of Regulation No 165/2014, but, having expressly referred thereto in its title (‘Exceptions under Regulations (EC) No 561/2006 and (EU) No 165/2014’), and in its first sentence (‘in accordance with Article 13(1) of Regulation No 561/2006 and Article 3(2) of Regulation No 165/2014 …’), reproduces word for word, without any variation, the exception at issue. The only difference as compared with the wording of Article 13(1)(d) of Regulation No 561/2006 lies in the reference to ‘universal service’ provision, which clearly does not refer to Directive 97/67 but to the domestic provisions transposing that directive.

54. With respect to the intention of the German legislature, I note that, in its order for reference in Case C‑203/18, the referring court states that it is clear from the documents relating to the origin of Paragraph 18(1)(4) of the FPersV that that legislature ‘intended to make full use of the exception provided for in Article 13(1)(d) of Regulation No 561/2006’ and thus harmonised the treatment of internal situations with that of the situations covered by Regulation No 561/2006.

55. Secondly, the reference made by the FPersV is, in my view, also ‘unconditional’, in so far as it covers not only Article 13(1)(d) of Regulation No 561/2006, but refers more generally to the relevant legislation as a whole, namely Regulations No 561/2006 and No 165/2014.

56. It is clear from the order for reference that, far from making a single reference, the FPersV ‘transposes [Regulation No 561/2006] into national federal law’, that that legislation ‘is in essence identical [to that regulation]’, ( 22 ) and that its objectives, in particular those of harmonising the conditions of competition between modes of inland transport and of improving working conditions and road safety, are consistent with the objectives of Regulation No 561/2006.

57. Paragraph 18(1)(4) of the FPersV thus forms part of a comprehensive system of national rules extending the application of the EU rules governing driving times, breaks and rest periods, established by Regulation No 561/2006, to carriage by vehicles with a maximum permissible mass below that which falls within the scope of Regulation No 561/2006. ( 23 )

58. Moreover, I share the view of the Commission in its written observations that the provisions of the FPersV governing the monitoring of compliance with those rules were also conceived in parallel with EU law. Paragraph 1(6) of the FPersV imposes, within the limits of its scope, obligations on both the driver and the owner of the undertaking concerned in order to ascertain whether the rules relating to driving times, breaks and rest periods have been complied with. It is irrelevant from that point of view that, while Regulation No 165/2014 requires the use of a tachograph, the national legislation requires only the keeping of records, since that national legislation seeks to ensure compliance with the same requirements set out in that regulation.

59. Lastly, it should be observed that there is nothing in the file to suggest that the referring court is free to depart from the Court’s interpretation of Article 13(1)(d) of Regulation No 561/2006.

60. In the light of the foregoing, I consider, as I have already argued above, that the reference in question must be regarded as ‘direct and unconditional’ within the meaning of the Court’s case-law, which means that the Court should declare that it has jurisdiction to answer the first, second and fourth questions referred in Case C‑374/18.

61. In those circumstances, it goes without saying that, in the context of the interpretation of the national provision at issue, namely Paragraph 18(1)(4) of the FPersV, the referring court cannot base its decision, in whole or in part, on national criteria that differ from those of EU law.

62. In the light of the foregoing considerations, I propose that the Court answer the third question referred for a preliminary ruling to the effect that Paragraph 18(1)(4) of the FPersV — where it concerns vehicles with a maximum permissible mass exceeding 2.8 tonnes but below 3.5 tonnes and which therefore do not, in principle, fall within the scope of Regulation No 561/2006 — must be interpreted exclusively on the basis of EU law.

C. The questions common to Cases C‑203/18 and C‑374/18 (first and second questions)

63. By their first question, the Oberverwaltungsgericht für das Land Nordrhein-Westfalen (Higher Administrative Court for the Land of North Rhine-Westphalia) and the Landgericht Köln (Regional Court, Cologne) ask the Court, in essence, whether the exception provided for in Article 13(1)(d) of Regulation No 561/2006 must be interpreted as meaning that it can apply to the vehicles of a universal service provider only if they transport solely and exclusively items falling within the universal service, or whether it also covers vehicles transporting, in addition to those items, other items which are not attributable to that service. In the event that the Court considers that the exception at issue applies also to vehicles transporting the latter items, the referring courts essentially seek to ascertain, by their second question, the minimum permissible proportion or volume of items falling within the universal service and the maximum permissible proportion or volume of items not falling within that service, and the manner in which those proportions or volumes are to be calculated in practice.

64. It should be recalled, above all, that Regulation No 561/2006 seeks to harmonise certain aspects of the social legislation of the Member States in the area of the carriage of goods and passengers by road. To that end, Articles 5 to 9 of that regulation provide for a series of rules on driving times, breaks and rest periods for drivers of vehicles falling within its scope.

65. Such provisions do not, however, apply either to vehicles used for the services listed in Article 3 of Regulation No 561/2006, which fall outside its scope (‘exemptions’), or to those used for the services referred to in Article 13 of that regulation, which may be subject, at national level, to an exception granted at the discretion of the Member State concerned (‘exceptions’). The provision which the referring courts ask the Court to interpret in the context of their first and second questions, namely Article 13(1)(d) of Regulation No 561/2006, is included in the list of exceptions.

66. Unlike other exceptions, on which the Court has already had occasion to give a preliminary ruling, ( 24 ) the provision in question has never, to my knowledge, been interpreted by the Court. The Court will therefore be called upon to clarify, in its forthcoming judgment, the scope of the exception contained therein, and in particular to examine whether such an exception should be interpreted broadly, as maintained by Deutsche Post and another, Deutsche Post and the Polish Government, or strictly, as argued, in contrast, by the Land of North Rhine-Westphalia, UPS Deutschland and others and the Commission.

67. In their written observations, all those parties analysed at some length the wording of Article 13(1)(d) of Regulation No 561/2006 and read that provision in the light of the scheme and objectives of Regulation No 561/2006. For my part, I have already indicated that I am of the view that various considerations, relating to those traditional methods of interpretation, support a strict interpretation of the exception provided for in the provision at issue.

1. Literal interpretation

68. Article 13(1)(d) of Regulation No 561/2006 provides that Member States are entitled to grant exceptions from the rules governing driving times, breaks and rest periods provided for therein in relation to carriage by vehicles, with a specific maximum permissible mass, used by universal postal service providers to deliver items ‘as part of the universal service’. ( 25 )

69. At first glance, the addition of the substantive criterion that those vehicles must be used to deliver items ‘as part of the universal service’, in the wording of the provision at issue, seems to me already to suggest that the EU legislature did not wish to include within the scope of the exception at issue all vehicles of the universal postal service providers but only those which transport solely and exclusively items covered by the universal postal service. Moreover, it is reasonable to imagine that, if it had been the intention of the EU legislature to apply that exception to vehicles transporting both items falling within the universal service and items not falling within that service, it would probably have made application of the exception conditional, by referring to a specified minimum level or proportion of items covered by the universal service, which it did not do.

70. That reading seems to me to be supported by a comparison of several language versions of Article 13(1) of Regulation No 561/2006. Although I acknowledge that, since they do not differ from the French version [‘dans le cadre du service universel’], the versions in German (‘im Rahmen des Universaldienstes’), Spanish (‘en el marco del servicio universal’), Estonian (‘universaalse postiteenuse raames’) and Italian (‘nell’ambito del servizio universale’) provide no additional elements to support that reading, the versions in English (‘as part of the universal service’) and Portuguese (‘como parte do serviço universal’) seem to me to be capable of substantiating that reading.

71. Indeed, the latter two versions expressly state that, in order for the vehicles concerned to benefit from the exception at issue, the individual items (‘bens’ in the Portuguese version) for the delivery of which those vehicles are used must be delivered as part of the universal service. This means, in my view, that each individual item must be part of the universal postal service or, in other words, must be covered by that service. Consequently, the exception at issue does not cover vehicles used to deliver, in addition to items covered by the universal postal service, other items not covered by it.

72. Some of the parties, in particular the Polish Government, have challenged that conclusion on the basis of a comparison of the wording of the exception at issue with that of the exceptions in Article 13(1)(e), (i) and (o) of Regulation No 561/2006. In particular, they pointed out that, in the wording of the latter exceptions, the EU legislature expressly stated that the vehicles referred to therein must be used ‘exclusively’ for the purposes identified by those exceptions, but did not do so when it formulated Article 13(1)(d) of that regulation. The absence of a comparable reservation in the latter provision demonstrates, according to those interested parties, that it was not the intention of the EU legislature to limit the scope of that exception to carriage by means of vehicles used exclusively for the delivery of items covered by the universal postal service, but to include also within its scope cases in which vehicles are simultaneously used for the delivery of items which are not covered by that service.

73. I am not convinced by that argument.

74. In my view, the fact that the EU legislature did not use the term ‘exclusively’ in the exception under consideration in this Opinion does not mean that the legislature failed to restrict the scope of that exception solely to vehicles used for the carriage of items falling within the universal postal service. On the contrary, I consider that the expression ‘as part of the universal service’ performs a function equivalent to that of the word ‘exclusively’, that is to say, the function of limiting the scope of the exception at issue to prevent its practical effects from ultimately undermining the objectives of Regulation No 561/2006.

75. The use of that word in the exceptions in Article 13(1)(e) of that regulation (‘vehicles operating exclusively on islands not exceeding 2300 square kilometres in area which are not linked to the rest of the national territory by a bridge, ford or tunnel open for use by motor vehicles’ ( 26 )) and in Article 13(1)(o) of Regulation No 561/2006 (‘vehicles used exclusively on roads inside hub facilities such as ports, interports and railway terminals’ ( 27 )) ensures that the vehicles concerned do not travel outside a limited geographical area (an island or a port area) and thus fulfils the requirement to reduce the negative impact of those exceptions on the objectives of improving the working conditions of drivers and road safety. Similarly, the use of the word ‘exclusively’ in the exception in Article 13(1)(i) of that regulation (‘vehicles with between 10 and 17 seats used exclusively for the non-commercial carriage of passengers’) makes it possible to limit its scope so that it applies only in situations where the carriage of passengers is undertaken for reasons of public interest, which has the effect of minimising the anti-competitive impact of that exception.

76. Similarly, the expression ‘as part of the universal service’, in Article 13(1)(d) of Regulation No 561/2006, restricts the scope of the exception for postal services to situations where carriage involves general services performed in the public interest, with a view to neutralising the potential anti-competitive impact of such an exception.

77. Moreover, in my view, the Court has already confirmed that the absence of the term ‘exclusively’ in the wording of one of the exceptions listed in Article 13(1) of Regulation No 561/2006 does not necessarily lead to the contrary inference that it must be interpreted broadly. I refer, in particular, to the judgment in A. Karuse, ( 28 ) in which, in reply to a question concerning the scope of the concept of ‘vehicles used in connection with road maintenance’ contained in the exception under Article 13(1)(h) of Regulation No 561/2006, the Court held that that concept does not cover the vehicles of a private provider, which carries out the transport of gravel intended for road maintenance works to the road maintenance works site, but includes only vehicles used for transports carried out wholly and exclusively in connection with carrying out road maintenance. ( 29 )

78. I consider, therefore, that a literal interpretation leaves no doubt that the exception at issue must be narrowly construed.

2. Systematic interpretation

79. In my view, a systematic interpretation also supports a strict reading of the exception at issue.

80. In that regard, I note that Article 13(1)(d) of Regulation No 561/2006 is contained in Chapter IV of that regulation, which is entitled ‘Exceptions’. It is therefore one of the provisions setting out exceptions which Member States may grant from the rules laid down in Chapter II of that regulation (‘Crews, driving times, breaks and rest periods’), that is, Articles 5 to 9 of Regulation No 561/2006.

81. The exceptions in question are already the subject of settled case-law, which has established the principle that the conditions for their application must be strictly interpreted. ( 30 )

3. Teleological interpretation

82. In my view, only a strict interpretation of the exception at issue is, moreover, consistent with the objectives of Regulation No 561/2006, ( 31 ) as I shall explain below.

83. It should be recalled, first of all, that, according to Article 1 thereof, Regulation No 561/2006 aims to harmonise the conditions of competition in the road transport sector and to improve social conditions for employees to whom it applies, as well as to improve road safety, by requiring road transport vehicles to be equipped with an approved tachograph enabling compliance with driving times, breaks and rest periods for drivers to be monitored.

84. With regard to the objectives of improving social conditions for employees and road safety, the Court has already held, when it was asked to consider the scope of the second subparagraph of Article 13(1)(d) of Regulation No 561/2006, that a broad interpretation of the exception would be such as to undermine those objectives, since it would have the effect that a large number of vehicles would be likely to be driven by drivers who might legally drive long hours without a rest, which would go against the objective of improving road safety, and that a large number of drivers would not benefit from the protection of their working conditions provided by Regulation No 561/2006, which would go against the objective of improving social conditions for those employees. ( 32 )

85. Those considerations seem to me to be fully applicable to the present case.

86. Indeed, a broad interpretation of the exception at issue would mean, on the one hand, that all vehicles of Deutsche Post could be driven by drivers entitled to drive for long periods without a rest and, on the other hand, that such drivers would not benefit from the protection of their working conditions, in the absence of an obligation to use a tachograph (for vehicles with a maximum permissible mass exceeding 3.5 tonnes) or keep records (for vehicles with a maximum permissible mass ranging from 2.8 to 3.5 tonnes). I have no doubt that the number of vehicles used by Deutsche Post, ( 33 ) and therefore the number of drivers of those vehicles, are extremely high.

87. As regards the objective of harmonising the conditions of competition in the road transport sector, it seems to me that the adverse effect which a broad interpretation of the exception at issue might have on that objective is clear simply from an application to the present case of the guidance to be derived from the judgment in A. Karuse. ( 34 )

88. Using reasoning developed in the case-law interpreting the predecessor of Regulation No 561/2006, ( 35 ) the Court held in that case that the exceptions listed in Article 13(1) of Regulation No 561/2006 can cover only vehicles used for the provision of ‘general services performed in the public interest’. On that basis, the Court ruled that, since the transport of gravel intended for road maintenance works to the road maintenance works site is not a service which is ancillary to the road maintenance works, the vehicles used to provide that service did not fall within the concept of ‘vehicles used in connection with road maintenance’ contained in Article 13(1)(h) of Regulation No 561/2006. According to the Court, an interpretation extending the scope of that exception so that it also covers the vehicles of a private service provider which carries out merely the transport of the gravel intended for the maintenance work to the road maintenance works site, ‘would confer on [that provider] a competitive advantage over other service providers in the same sector, since it would save the cost of installing and maintaining [a tachograph in such a vehicle]’. ( 36 )

89. Applying those assessments to the present case, I note that the delivery of items covered by the ‘universal service’, as it is defined in Article 3(1) of Directive 97/67, must clearly be deemed to be a ‘general service in the public interest’ within the meaning of the Court’s case-law, which means that the vehicles used to provide that service fall within the concept of ‘vehicles … used … to deliver items as part of the universal service’ and may thus benefit from the exception at issue. However, if that concept is understood to include also the vehicles used to deliver items covered by other postal services, that interpretation would inevitably result in a distortion of competition, since it would effectively confer a competitive advantage on the universal service provider, which would thus save on the costs of installing and maintaining tachographs in the vehicles it uses, by comparison with the other undertakings providing those postal services.

90. In that connection, Deutsche Post and another, Deutsche Post and the Polish Government disputed in their written observations the existence of such a competitive advantage for the universal service provider, arguing that the very objective of that exception is to redress the balance in a situation where the provider of that service is at a competitive disadvantage, by means of ‘compensation’ for the financial burden involved in providing such a service of general interest.

91. I cannot endorse that argument.

92. It seems to me that, since that exception fulfils the need to ensure that the universal service obligations are carried out, which is likely to be hindered by the rules on driving times, breaks and rest periods, the real beneficiaries of the exception are the users and not the provider of the universal postal service. ( 37 ) Consequently, the objective of that exception cannot be regarded as being that of offsetting the financial burden resulting from the provision of the universal postal service, which would benefit the provider of that service.

93. Moreover, I would draw attention to the fact that the EU legislature has already envisaged, in Article 7(3) and (4) of Directive 97/67, financing mechanisms for the universal postal service which each Member State is entitled to introduce where it establishes that the universal service obligations entail a net cost to the provider of that service, namely (i) a mechanism to compensate the undertaking(s) concerned from public funds or (ii) a mechanism for the sharing of the net cost between providers of services and/or users, which may include the establishment of a compensation fund administered by a body independent of those beneficiaries.

94. It follows from all those considerations that the conclusion that the exception provided for in Article 13(1)(d) must be interpreted strictly is confirmed by a teleological interpretation.

4. Historical interpretation

95. A careful examination of the origin of Regulation No 561/2006 is, in my view, such as to support the arguments put forward above.

96. Regulation No 3820/85 already contained a provision establishing an exception relating to postal services. Article 4(6) of that regulation provided for a wide-ranging exemption for those services, since it covered vehicles ‘used in connection with the … carriage of postal articles’.

97. In its proposal for the reform of Regulation No 3820/85, the Commission had contemplated abolishing that exemption without replacing it, ( 38 ) given that postal services would henceforth fall within the category of services which had been wholly or partly liberalised.

98. Subsequently, at first reading, ( 39 ) the European Parliament had considered that a provision establishing an exception for postal services should be maintained but made no proposal to re-establish such a provision covering the vehicles used for the delivery of all postal items. However, it recommended the inclusion of a derogation for vehicles ‘when used to deliver postal items as part of the universal service’. ( 40 )

99. In its amended proposal, ( 41 ) the Commission agreed to that amendment by the Parliament and thus proposed that the wording of the exception at issue, almost identical to the present one, should include the expression ‘as part of the universal service’, because the Commission recognised ‘the need for a limited derogation for local postal services to be excluded’. ( 42 )

100. In view of these matters, I consider that, when it repealed Regulation No 3820/85 and adopted Regulation No 561/2006, the EU legislature wished to provide for an exception relating to postal services limited to vehicles intended for the delivery of items covered by the universal service, in order to ensure that that exception would not, through its application also to vehicles used for the delivery of items covered by the liberalised postal services, distort competition on those markets.

101. That interpretation of the intention of the EU legislature is supported, in my view, by the current wording of recital 23 of Regulation No 561/2006, according to which ‘national derogations should reflect changes in the road transport sector and be restricted to those elements not now subject to competitive pressures’. I do not see how that reduction of the scope of the national exceptions could be compatible with a broad interpretation of the exception at issue.

102. In the light of the foregoing considerations, I consider that, like the literal, systematic and teleological approaches, a historical approach to Article 13(1)(d) of Regulation No 561/2006 supports a strict interpretation of the exception contained therein.

103. Below, I shall address an argument, which was put forward in the written observations of Deutsche Post and another, Deutsche Post and the Polish Government, based on the requirement to preserve the effectiveness of the exception at issue.

5. The requirement to preserve the effectiveness of the exception

104. According to those parties, a strict interpretation of the exception at issue cannot be endorsed, on the ground that it would deprive that exception of its effectiveness. Such an interpretation would mean that a provider providing both the universal postal service and other postal services would be required, in order to benefit from that exception, to set up two distribution networks, and in particular two complete fleets of vehicles, one for the delivery of parcels of an individual weight not exceeding 20 kilograms, forming part of the universal service, and the other for the delivery of heavier parcels, not covered by that service. This would entail such significant additional costs for universal postal service providers that none of them would in practice make use of the exception at issue.

105. That argument is not, in my view, such as to invalidate the conclusion that the exception at issue requires a strict interpretation.

106. I note from the outset that the need to double Deutsche Post’s fleet of vehicles is disputed by the other parties. For my part, I do not see why logistical solutions other than a doubling of Deutsche Post’s fleet of vehicles would not be conceivable, given that, as the latter acknowledged in its written observations, the proportion of items it transports which are not covered by the universal postal service amounts to only 5% of the total.

107. In any event, I consider that the exception at issue would not lose its effectiveness if a strict interpretation of it is adopted. Even assuming that the only possible solution for Deutsche Post is the doubling of its fleet of vehicles, ( 43 ) with the high additional costs that such a solution would entail, I do not believe that it is possible to infer that the exception at issue would not be used by any universal postal service provider in the European Union. On the contrary, it is reasonable to imagine that a provider seeking to benefit from that exception would simply be required to make an economic choice, after striking a balance between the savings resulting from the absence of any obligation to use a tachograph and the additional costs of doubling its fleet of vehicles. In my view, that balancing of options would not always result in a decision by the universal postal service provider not to use that exception.

108. In the light of those considerations, I propose that the Court answer the first question referred to the effect that Article 13(1)(d) of Regulation No 561/2006 must be interpreted as meaning that it can apply to the vehicles of a universal service provider only if they transport solely and exclusively items falling within the universal service.

109. In view of the answer I propose to give to that first question, there is no need, in my view, to answer the second question referred in both Case C‑203/18 and Case C‑374/18. If the carriage of a single item not falling within the universal postal service is sufficient to ensure that the exception provided for in Article 13(1)(d) of Regulation No 561/2006 does not apply to vehicles used for that purpose, it goes without saying that there is no need to establish a proportion of vehicle use for delivering items falling within the universal service, nor a maximum volume (of items not falling within the universal service) or minimum volume (of items falling within that service).

D. The fourth question referred in Case C‑374/18

110. By its fourth question, the Landgericht Köln (Regional Court, Cologne) seeks, in essence, to ascertain whether delivery of an item involving add-on services, such as those listed in that question, comes under the universal service pursuant to Directive 97/67 and, therefore, must be regarded as delivery of an item ‘as part of the universal service’ for the purposes of applying the exception at issue.

111. The answer to this question clearly involves an effort to provide an interpretation which seeks to define the meaning of the concept of ‘universal service’, as provided for by Directive 97/67.

112. Before embarking on that analysis, I would point out that, while aiming to regulate the provision of the universal service at EU level, the provisions laid down by that directive are pursuing a gradual opening up of the postal sector to competition. ( 44 ) The requirement to strike a fair balance between those two objectives must therefore govern the effort to provide an interpretation of the concept of ‘universal service’.

113. First of all, it should be pointed out that Article 3(1) of Directive 97/67 provides a definition of ‘universal service’ as involving ‘the permanent provision of a postal service of specified quality at all points in their territory at affordable prices for all users’. Since that definition is only intended to set out the general principles governing the provision of the universal service, it provides no clarification as to the substantive content of the concept of ‘universal service’, in particular as regards the types of ‘postal service’ which would fall within that concept.

114. Is it possible to identify the ‘postal services’ to which Article 3(1) refers?

115. A first answer to that question is to be found in Article 3(4) and (5) of Directive 97/67, which provides that the universal service must include, at a minimum, (i) the clearance, sorting, transport and distribution of postal items up to 2 kilograms, (ii) the clearance, sorting, transport and distribution of postal packages up to 10 kilograms (a limit which may be increased to 20 kilograms by the national regulatory authorities) and (iii) services for registered items and insured items. In other words, those services as a whole constitute the minimum substantive content of the concept of ‘universal service’ in the postal sector (‘the basic services’).

116. The fact that Directive 97/67 covers only the essential core of the concept of ‘universal service’ necessarily implies that the EU legislature wished to introduce an element of flexibility in determining the scope of that concept, in order to take into account different ideas in the Member States as to the scope of the public interest mission which universal service providers are called upon to accomplish.

117. Thus, Member States are, in principle, entitled to reserve to the universal service provider services other than the basic services, as listed in Article 3(4) and (5) of Directive 97/67.

118. It is at this point that my reasoning diverges from that put forward by Deutsche Post in its written observations. I do not agree with the conclusion, drawn by the latter on the basis of the foregoing considerations, that Member States have sole decision-making power to ascertain whether services going beyond the basic services because they are accompanied by add-on services nevertheless fall within the scope of the universal service.

119. My disagreement arises from the fact that, in my view, that conclusion disregards recitals 18 and 21 of Directive 97/67, which clearly indicate that that decision-making power is not unlimited. ( 45 )

120. It is clear from recital 21 that Member States may under no circumstances include in the universal service new services, document exchange and ‘self-provision’, since they do not fall within the scope of the ‘universal service’. Similarly, Member States cannot include express mail services, since recital 18 draws a distinction between those services and the universal service.

121. Although recital 21 is not relevant to the answer which the Court is required to give to the fourth question, on the ground that the services at issue in the main proceedings — namely the basic services accompanied by add-on services — do not fall within the categories referred to therein, recital 18 seems to me to be applicable in the present case, since those services do, by contrast, constitute ‘express mail services’.

122. Even though Directive 97/67 does not define what is meant by ‘express mail services’, I would note, in the first place, that recital 18 itself brings to light a criterion for identifying them, in stating that ‘the essential difference between express mail and universal postal services lies in the value added (whatever form it takes) provided by express services and perceived by customers, [and that] the most effective way of determining the extra value perceived is to consider the extra price that customers are prepared to pay …’. ( 46 ) In the second place, I would point out that the Court has recently held, in its judgments in Ilves Jakelu ( 47 ) and Confetra and Others, ( 48 ) that express mail services are distinct from the universal postal service by reason of the added value they provide to customers, for which the latter agree to pay a higher amount. ( 49 )

123. The distinction between ‘express mail services’ and ‘universal service’ is also supported, as UPS Deutschland and others argue in their written observations, by the origin of Directive 97/67.

124. In its amended proposal, ( 50 ) the Commission had rejected an amendment introduced by the Parliament at first reading, which sought to amend recital 21 of Directive 97/67 in such a way that special services, including express mail services, would become part of the universal service. ( 51 ) That rejection, which was later confirmed by the Council of the European Union when it adopted its common position, ( 52 ) was based on the assessment that ‘special … services have specific characteristics which distinguish them from services within the universal postal service’.

125. In the light of those considerations, there is no doubt, in my view, that the basic services accompanied by the add-on services listed in the fourth question referred (collection with or without a time slot, minimum age check, cash on delivery, postage payment by recipient up to 31.5 kilograms, redirection service, instructions in the event of non-delivery, preferred delivery day, preferred delivery time) are likely to provide added value to customers, who are thus willing to pay a higher price to benefit from those services. ( 53 ) Consequently, it must be concluded that those services must be classified as ‘express mail services’ and therefore do not come under the universal service.

126. Accordingly, I suggest that the Court answer the fourth question referred by the Landgericht Köln (Regional Court, Cologne) to the effect that delivery of an item involving add-on services, such as those listed in that question, does not come under the universal service pursuant to Directive 97/67 and, therefore, cannot be regarded as delivery of an item ‘as part of the universal service’ for the purposes of applying the exception provided for in Article 13(1)(d) of Regulation No 561/2006.

IV. Conclusion

127. In the light of the foregoing considerations, I propose that the Court answer as follows the questions referred for a preliminary ruling by the Oberverwaltungsgericht für das Land Nordrhein-Westfalen (Higher Administrative Court for the Land of North Rhine-Westphalia, Germany) and the Landgericht Köln (Regional Court, Cologne, Germany): (1) Article 13(1)(d) of Regulation (EC) No 561/2006 of the European Parliament and of the Council of 15 March 2006 on the harmonisation of certain social legislation relating to road transport and amending Council Regulations (EEC) No 3821/85 and (EC) No 2135/98 and repealing Council Regulation (EEC) No 3820/85, as amended by Regulation (EU) No 165/2014 of the Parliament and of the Council of 4 February 2014, must be interpreted as meaning that it can apply to the vehicles or combinations of vehicles of a universal service provider only if they transport solely and exclusively items falling within the universal service. (2) Paragraph 18(1)(4) of the Verordnung zur Durchführung des Fahrpersonalgesetzes (Regulation implementing the Law on driving crews) — where it concerns vehicles or combinations of vehicles with a maximum permissible mass exceeding 2.8 tonnes but below 3.5 tonnes and which therefore do not, in principle, fall within the scope of Regulation No 561/2006, as amended by Regulation (EU) No 165/2014 of the Parliament and of the Council of 4 February 2014 — must be interpreted on the basis of EU law. (3) Delivery of an item involving add-on services — such as collection with or without a time slot, minimum age check, cash on delivery, postage payment by recipient up to 31.5 kilograms, redirection service, instructions in the event of non-delivery, preferred delivery day and preferred delivery time — does not come under the universal service pursuant to Directive 97/67/EC of the European Parliament and of the Council of 15 December 1997 on common rules for the development of the internal market of Community postal services and the improvement of quality of service, as amended by Directive 2008/6/EC of the European Parliament and of the Council of 20 February 2008 and, therefore, cannot be regarded as delivery of an item ‘as part of the universal service’ for the purposes of applying the exception provided for in Article 13(1)(d) of Regulation No 561/2006, as amended by Regulation (EU) No 165/2014 of the Parliament and of the Council of 4 February 2014.

( 1 ) Original language: French.

( 2 ) OJ 2006 L 102, p. 1.

( 3 ) OJ 1998 L 15, p. 14.

( 4 ) OJ 2014 L 60, p. 1.

( 5 ) OJ 2008 L 52, p. 3.

( 6 ) BGBl. 1999 I, p. 2418.

( 7 ) BGBl. 2005 I, p. 1970.

( 8 ) BGBl. 1997 I, p. 3294.

( 9 ) BGBl. 2017 I, p. 626.

( 10 ) This is a series of decisions which began with the judgment of 18 October 1990, Dzodzi (C‑297/88 and C‑197/89, EU:C:1990:360, paragraphs 29 to 43). See, most recently, judgment of 31 May 2018, Ernst & Young (C‑633/16, EU:C:2018:371, paragraph 30).

( 11 ) See, in particular, judgments of 18 October 1990, Dzodzi (C‑297/88 and C‑197/89, EU:C:1990:360, paragraph 37); of 17 July 1997, Leur-Bloem (C‑28/95, EU:C:1997:369, paragraph 32); and of 7 November 2013, Romeo (C‑313/12, EU:C:2013:718, paragraphs 21 to 23).

( 12 ) Judgment of 28 March 1995 (C‑346/93, EU:C:1995:85).

( 13 ) Judgments of 14 March 2013, Allianz Hungária Biztosító and Others (C‑32/11, EU:C:2013:160); of 5 April 2017, Borta (C‑298/15, EU:C:2017:266); of 14 February 2019, CCC — Consorzio Cooperative Costruzioni (C‑710/17, not published, EU:C:2019:116); and of 13 March 2019, E. (C‑635/17, EU:C:2019:192).

( 14 ) That was not the situation in the case giving rise to the judgment of 28 March 1995, Kleinwort Benson (C‑346/93, EU:C:1995:85), in which the applicable national provisions stated that national courts had only to ‘have regard’ to the Court’s case-law, without making it binding upon them.

( 15 ) See, to that effect, Opinion of Advocate General Cruz Villalón in Allianz Hungária Biztosító and Others (C‑32/11, EU:C:2012:663, point 29).

( 16 ) See, in particular, judgment of 7 January 2003, BIAO (C‑306/99, EU:C:2003:3, paragraphs 91 to 93). See also point 39 of the Opinion of Advocate General Kokott in ETI and Others (C‑280/06, EU:C:2007:404), according to which ‘in that context it is irrelevant whether national law expressly or merely impliedly refers to Community law; instead, what is decisive is orientation in substance to Community law’.

( 17 ) See judgments of 14 March 2013, Allianz Hungária Biztosító and Others (C‑32/11, EU:C:2013:160, paragraph 21), and of 5 April 2017, Borta (C‑298/15, EU:C:2017:266, paragraph 40). See, also, judgment of 14 February 2019, CCC — Consorzio Cooperative Costruzioni (C‑710/17, not published, EU:C:2019:116, paragraphs 23 to 25).

( 18 ) See Opinion of Advocate General Cruz Villalón in Allianz Hungária Biztosító and Others (C‑32/11, EU:C:2012:663, point 29).

( 19 ) See, in that regard, Opinion of Advocate General Jacobs in Leur-Bloem (C‑28/95, EU:C:1996:332, point 75), and that of Advocate General Tizzano in Adam (C‑267/99, EU:C:2001:190, point 34). See, also, point 32 of the Opinion of Advocate General Ruiz-Jarabo Colomer in Kofisa Italia (C‑1/99 and C‑226/99, EU:C:2000:498), according to which ‘… the Court should rule only in cases in which the factual and legislative context of the dispute is one contemplated by the Community rule’.

( 20 ) See, in particular, judgment of 11 December 2007, ETI and Others (C‑280/06, EU:C:2007:775, paragraph 29).

( 21 ) See judgments of 11 January 2001, Kofisa Italia (C‑1/99, EU:C:2001:10, paragraph 31); of 16 March 2006, Poseidon Chartering (C‑3/04, EU:C:2006:176, paragraph 18); of 14 March 2013, Allianz Hungária Biztosító and Others (C‑32/11, EU:C:2013:160, paragraph 22); and of 21 July 2016, VM Remonts and Others (C‑542/14, EU:C:2016:578, paragraph 18).

( 22 ) Emphasis added.

( 23 ) Paragraph 1(1)(1) of the FPersV, which is the cornerstone of such a system, provides that the drivers of those vehicles are required to observe the rules relating to driving times, breaks and rest periods provided for by Articles 4 and 6 to 9 of Regulation No 561/2006.

( 24 ) See judgments of 28 July 2011, Seeger (C‑554/09, EU:C:2011:523); of 13 March 2014, A. Karuse (C‑222/12, EU:C:2014:142); and of 7 February 2019, NK (C‑231/18, EU:C:2019:103).

( 25 ) I am aware that that article includes a second subparagraph, according to which ‘these vehicles shall be used only within a 100 km radius from the base of the undertaking, and on condition that driving the vehicles does not constitute the driver’s main activity’. However, that subparagraph is not, in my view, relevant to the interpretation requested by the referring courts.

( 26 ) Emphasis added.

( 27 ) Emphasis added.

( 28 ) Judgment of 13 March 2014 (C‑222/12, EU:C:2014:142).

( 29 ) Judgment of 13 March 2014, A. Karuse (C‑222/12, EU:C:2014:142, paragraph 35).

( 30 ) See judgment of 7 February 2019, NK (C‑231/18, EU:C:2019:103, paragraph 21 and the case-law cited).

( 31 ) I would recall that, according to settled case-law, the scope of the exceptions provided for in Article 13(1) of that regulation must be determined in the light of the aims pursued by the regulation. See, in particular, judgment of 13 March 2014, A. Karuse (C‑222/12, EU:C:2014:142, paragraph 28 and the case-law cited).

( 32 ) Judgment of 28 July 2011, Seeger (C‑554/09, EU:C:2011:523, paragraphs 35 and 36). See, also, Opinion of Advocate General Léger in Sjöberg (C‑387/96, EU:C:1997:619, point 30).

( 33 ) In their written observations, UPS Deutschland and others estimate that there are some 10000 such vehicles.

( 34 ) Judgment of 13 March 2014 (C‑222/12, EU:C:2014:142).

( 35 ) Council Regulation (EEC) No 3820/85 of 20 December 1985 on the harmonisation of certain social legislation relating to road transport (OJ 1985 L 370, p. 1). The Court refers to two judgments in which it ruled on the interpretation of Article 4(6) of that regulation, that is to say, the judgments of 25 June 1992, British Gas (C‑116/91, EU:C:1992:277), and of 21 March 1996, Mrozek and Jäger (C‑335/94, EU:C:1996:126).

( 36 ) Judgment of 13 March 2014, A. Karuse (C‑222/12, EU:C:2014:142, paragraph 38).

( 37 ) This was implicitly accepted by Deutsche Post and another and Deutsche Post at the hearing, when they argued that a strict interpretation would go against the public interest objective of the exception at issue, that is to say, the objective of providing the universal postal service at a reasonable price to users, in that it would have the effect of increasing that price. Nevertheless, that conclusion does not seem correct to me. In that regard, I note that those parties cited, in support of their argument, point 41 of the Opinion of Advocate General Kokott in TNT Post UK (C‑357/07, EU:C:2009:7), a case which concerned the interpretation of the concept of ‘public postal services’ for the purpose of applying one of the exemptions provided for by EU VAT law. For my part, in addition to noting that the Court did not reproduce that point in the judgment, I consider that, unlike the strict interpretation of a VAT exemption, which is necessarily passed on in the final price of the service, the strict interpretation of an exception in the sector in question does not have the direct consequence of raising the price of the service concerned.

( 38 ) Proposal for a Regulation of the European Parliament and of the Council on the harmonisation of certain social legislation relating to road transport (OJ 2002 C 51E, p. 234). In particular, the Commission had justified its proposal as follows: ‘those areas where service provision is now firmly within the private sector have been deleted in recognition of the pressures of competition that now prevail, namely in the gas and electricity sectors, telegraph and telephone services, carriage of postal articles, radio and television broadcasting and detection of radio or television transmitters or receivers’ (emphasis added).

( 39 ) See European Parliament legislative resolution on the proposal for a European Parliament and Council regulation on the harmonisation of certain social legislation relating to road transport (COM(2001) 573 — C5-0485/2001 — 2001/0241(COD)) (OJ 2004 C 38E, p. 152).

( 40 ) Emphasis added.

( 41 ) Amended proposal for a Regulation of the European Parliament and of the Council on the harmonisation of certain social legislation relating to road transport and amending Council Regulation (EEC) No 3821/85 on recording equipment in road transport (COM(2003) 490 final).

( 42 ) Emphasis added.

( 43 ) Even if that were the case, it is not possible to accept the argument put forward by Deutsche Post and another and Deutsche Post in their written observations that, due to the doubling of their vehicle fleet resulting from a strict interpretation of the exception at issue, such an interpretation would go against the objective of environmental protection, enshrined in Article 3(3) TEU and Articles 11 and 191 et seq. TFEU, since the latter is not among the objectives pursued by Regulation No 561/2006. See, in that regard, judgment of 7 February 2019, NK (C‑231/18, EU:C:2019:103, paragraph 31).

( 44 ) See, to that effect, recital 8 of Directive 97/67.

( 45 ) See, in that regard, judgment of 11 March 2004, Asempre and Asociación Nacional de Empresas de Externalización y Gestión de Envíos y Pequeña Paquetería (C‑240/02, EU:C:2004:140, paragraph 24), in which the Court, in reply to a question concerning freedom to impose additional conditions on the definition of ‘self-provision’, and thereby limit the situations which are covered by it, held that Member States do not have the option of extending the scope of the concept of ‘universal service’ since such extension would go against the objective of Directive 97/67 of establishing gradual and controlled liberalisation in the postal sector.

( 46 ) Emphasis added.

( 47 ) Judgment of 15 June 2017 (C‑368/15, EU:C:2017:462, paragraph 24).

( 48 ) Judgment of 31 May 2018 (C‑259/16 and C‑260/16, EU:C:2018:370, paragraph 38).

( 49 ) In both cases, the Court’s conclusion is based on paragraph 19 of the judgment of 19 May 1993, Corbeau (C‑320/91, EU:C:1993:198), according to which the exclusion of competition is not justified as regards ‘specific services dissociable from the service of general interest which meet special needs of economic operators and which call for certain additional services not offered by the traditional postal service’.

( 50 ) Amended proposal for a European Parliament and Council Directive on common rules for the development of the internal market of Community postal services and the improvement of quality of service (COM/96/0412 final — COD 96/0221) (OJ 1996 C 300, p. 22), p. 4.

( 51 ) Legislative resolution embodying Parliament’s opinion on the proposal for a European Parliament and Council Directive on common rules for the development of Community postal services and the improvement of quality of service (COM(95)0227 — C4-0540/95 — 95/0221(COD)) (OJ 1996 C 152, p. 20), amendment 22.

( 52 ) Common Position (EC) No 25/97 adopted by the Council on 29 April 1997 with a view to adopting Directive 97/…/EC of the European Parliament and of the Council on common rules for the development of the internal market of Community postal services and the improvement of quality of service (OJ 1997 C 188, p. 9).

( 53 ) It seems to me that this is confirmed by the examples of supplementary services provided in point 2.4 of the Notice from the Commission on the application of the competition rules to the postal sector and on the assessment of certain State measures relating to postal services (OJ 1998 C 39, p. 2), that is to say: ‘guarantee of delivery by a given date; collection from the sender’s address; delivery to the addressee in person; possibility of a change of destination and addressee in transit; confirmation to the sender of delivery; …; personalised treatment for customers and the offer of a range of services according to requirements’.