Opinion of Mr Advocate General Darmon delivered on 28 February 1991. - Commission of the European Communities v Italian Republic. - Failure to observe a directive - Combined road-rail carriage of goods. - Case C-45/89.



European Court reports 1991 Page I-02053



Opinion of the Advocate-General

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Mr President,

Members of the Court,

1. By the present action the Commission is asking the Court to make a declaration that, by maintaining in force a system of authorizations and/or quotas for combined road/rail carriage of goods between Member States and by refusing authorizations to private persons wishing to undertake such carriage, the Italian Republic has failed to fulfil its obligations under Council Directive 75/130/EEC of 17 February 1975 on the establishment of common rules for certain types of combined road/rail carriage of goods between Member States. (1)

2. Article 2 of this Directive provides that "each of the Member States shall, by 1 October 1975, liberalize the combined road/rail carriage referred to in Article 1 from all quota systems and systems of authorization". According to that Article, as amended by Council Directive 79/5/EEC of 19 December 1978, (2) combined road/rail carriage means "road transport of goods between Member States where the lorry, trailer, semi-trailer (with or without tractor unit), swap body and container of 20 feet or more are transported by rail between the nearest suitable rail loading station to the

point of loading and the nearest suitable rail unloading station to the point of unloading".

3. In its application, the Commission draws attention to the Italian decree of 4 July 1985, (3) which subjects to a system of quotas and authorization the possibility of using a tractor unit in isolation intended solely for the transport of trailers and semi-trailers during international combined carriage. A later decree of 16 September 1986, (4) referring to Directive 75/130, excluded from this system combined carriage between Member States, but it was repealed by a decree of 24 October 1986. (5)

4. The Commission sent the Italian Government a letter dated 25 May 1987, drawing its attention to the obligations under Directive 75/130, then on 4 July 1988 a reasoned opinion inviting it to take the necessary steps within two months. This opinion did not result in any action.

5. The Italian Government denies that it has failed to fulfil its obligations. It considers that the liberalization of combined "road/rail" carriage does not apply to the journey of the tractor unit from the business premises to the rail loading station or from the rail unloading station to the point of unloading when the tractor unit was not transported by rail and one or other of these journeys took place within a single Member State (non-accompanied carriage). The Italian Government relies essentially in order to support its view on Article 6 of Directive 75/130, which provides that the directive "shall not affect the conditions in force in each Member State governing admission to the occupation of road transport operator and access to the transport market". Whilst it recognizes, in its rejoinder, that the road part of "non-accompanied carriage" is included in the concept of international combined carriage given the wording of the amended Article 1 of the Directive, it considers nonetheless that the legal rules governing non-accompanied carriage are different from those governing accompanied carriage.

6. I shall state forthwith that this interpretation does not seem to me to be possible. It leads to undertakings being obliged to have the tractor unit travel by rail, with its load, in order to take advantage of the liberalization of international combined carriage. From an economic point of view, this obligation leads to unjustifiable costs for the traders concerned. It is therefore directly contrary to the aims of Directive 75/130, whose second recital specifies that "the use of the road/rail method...is economically advantageous over long distances".

7. From a legal point of view, it cannot be inferred either from the provisions or the general structure of Directive 75/130/EEC. Article 1, as amended by Directive 79/5/EEC, in its listing of what is transported by rail does not necessarily include the tractor unit, and specifies, furthermore, that the semi-trailer can be carried by rail with or without tractor unit. The first version of this article, as drafted at the time of adoption of Directive 75/130, was clearly more ambiguous. The tractor unit then featured in the list and the expression "(with or without tractor unit)" did not appear in the wording. Following the amendment of the article by Directive 79/5, there can be no room for doubt. Incidentally, the Court has already ruled, in a judgment of 7 July 1987 (6) that international combined carriage can occur whether or not the power unit is transported with the trailer by rail. (7)

8. The Italian Government does not deny this, but its argument is based on the view that the directive lays down two distinct sets of legal rules, according to whether or not the combined carriage is "accompanied". However, there is nothing in the wording of the directive to suggest this. On the contrary, according to Article 2, the liberalization of any system of authorization and of quotas applies to all combined carriage mentioned in Article 1. If "non-accompanied" combined carriage is within the scope of the directive, it must therefore benefit from the liberalization measures envisaged by Article 2.

9. Furthermore, as the Commission pointed out during the oral procedure, Article 6 applies on the one hand to the conditions of competence and technical capacity which an undertaking wishing to carry out road transport must fulfil and, on the other hand, to the general permits granted by the authorities of Member States which enable an undertaking effectively to carry on a business of road transport operator. It does not, however, apply to that undertaking' s right to carry out road transport which forms part of combined international carriage, which right must, under Article 2 of the Directive, be free from any requirement of authorization or of quota. Article 6 of Directive 75/130 must therefore be interpreted in the light of the aims of the directive and of its general structure, that is to say, having regard to its other provisions and, in particular, those of Article 2. Thus, even if the conditions of access for undertakings to the transport market created by national legislation are not affected by the directive, the provisions of Article 6 still cannot be interpreted in such a way as to call into question the liberalization of international combined carriage. Contrary to the Italian Government' s arguments in its rejoinder, the interpretation which I recommend does not render Article 6 meaningless.

10. Finally, the Italian Government' s argument is not compatible with the Court' s case law according to which "the carriage is regarded as a single operation from the point of departure to the point of arrival". (8)

11. In its rejoinder, the Italian Government reproduces a text in Italian which appears to be a working paper produced by the Commission in preparation for an amendment to Directive 75/130, from which it would seem that the argument it endorses is that considered by the Commission to be the current state of Community Law. It should be pointed out first of all that a Community institution' s opinion on the scope of a measure cannot override the explicit provisions of that measure. Furthermore, the document in question is an internal Commission document which does not reflect that institution' s official position. Only from the present infringement proceedings is it possible to ascertain the view which the Commission takes as a matter of principle on the questions at issue. Finally, even if this document were to be taken into consideration, it is not clear that it entirely endorses the Italian Government' s view. Far from being merely a commentary on Directive 75/130, it states that, on the contrary, despite the Directive "The implementing measures adopted by the Member States have not given rise to the creation of a free market" and relates the outstanding obstacles remaining as a result of national legislation. As for Italy' s situation, it refers to the present procedure "...only Italy applies quantative restrictions for national road transport operators (before the Court)". Therefore the document' s existence does not preclude a finding that Italy has failed to fulfil its obligations.

12. I therefore propose that:

(i) the Court make a declaration that, by maintaining in force a system of authorizations and/or quotas for combined road/rail carriage between Member States and by refusing authorizations to private persons wishing to undertake such carriage, the Italian Republic has failed to fulfil its obligation under Council Directive 75/130/EEC of 17 February 1975 on the establishment of common rules for certain types of combined road/rail carriage of goods between Member States;

(ii) the Court orders the Italian Government to pay the costs, including those of the intervener.

(*) Language of the case: French.

(1) OJ L 48, p. 31.

(2) Amending Directive 75/130/EEC (OJ L 5, p. 33).

(3) GURI No 197 of 22.8.1985.

(4) GURI No 219 of 20.10.1986, p. 18.

(5) GURI No 263 of 12.11.1986, p. 8.

(6) Commission v Italy [1987] ECR 2983.

(7) Paragraphs 6 and 7.

(8) Judgment in Commission v Italy [1984] ECR 1127, paragraph 16.

Translation