Proposal for a DECISION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL empowering Italy to negotiate and conclude an agreement with Switzerland authorising cabotage operations in the course of international road passenger transport services by coach and bus in the border regions between the two countries
Date: 2019-05-13
Institutions: Directorate-General for Mobility and Transport, European Commission
Subjects: Italy, Switzerland, bilateral agreement, bus, carriage of passengers, frontier region, international road transport, ratification of an agreement, road cabotage

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   EUROPEAN COMMISSION  Brussels, 13.5.2019  COM(2019) 223 final 2019/0108 (COD)  Proposal for a DECISION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL empowering Italy to negotiate and conclude an agreement with Switzerland authorising cabotage operations in the course of international road passenger transport services by coach and bus in the border regions between the two countries  
 
 
EXPLANATORY MEMORANDUM 

1. 

• 

CONTEXT OF THE PROPOSAL 

Reasons for and objectives of the proposal 

On the subject matter 

The border regions of Italy and Switzerland are closely integrated. Many Italians commute to 
work in Switzerland and vice versa and there is vibrant cross-border passenger traffic by road. 
A number of bus and coach services are offered which cross the border and thus connect the 
border regions of the two countries. 

The  two-way  carriage  of  passengers  and  goods  by  road  between  Switzerland  and  the  EU  is 
regulated  by  the  Land  Transport  Agreement  between  the  EU  and  Switzerland1  (hereinafter 
'EU Agreement').  

According to Article 20(1) of the EU Agreement, "[t]ransport between two points situated on 
the territory of the same Contracting Party by carriers established in the territory of the other 
Contracting  Party  are  not  authorised  under  this  Agreement".  This  means  that  the  carriers 
operating the passenger services which cross the border can only carry passengers across the 
border or within the territory of the Contracting Party they are established in. Bus and coach 
operators  established  in  Switzerland  may  not  carry  passengers  between  two  points  on  the 
Italian  side  of  the  border  and  operators  established  in  the  EU  may  not  carry  passengers 
between two points on the Swiss side of the border. 

Article  20(2)  of  the  EU  Agreement  allows  pre-existing  rights  under  bilateral  agreements 
concluded  between  individual  EU  Member  States  and  Switzerland  that  were  in  force  at  the 
time  of  conclusion  of  the  EU  Agreement  to  continue  to  be  exercised,  provided  there  is  no 
discrimination between EU carriers and no distortion of competition. Cabotage in passenger 
transport  by  coach  and  bus  may  thus  be  possible  in  relations  with  Switzerland  in  case  an 
agreement  between  an  EU  Member  State  and  Switzerland  in  force  on  21  June  1999  had 
foreseen  this.  In  practice,  none  of  the  relevant  bilateral  agreements  between  Member  States 
and  Switzerland  that  were  in  force  at  that  time  did  foresee  cabotage  rights  for  passenger 
transport by coach and bus.2 

By letter dated 7 February 2018, Italy informed the Commission that it would like to negotiate 
and conclude an agreement with Switzerland which authorises cabotage operations during the 
provision of international passenger transport services by coach and bus in the border regions 
between the two countries. In the June 2018 meeting of the EU-Switzerland Inland Transport 
Committee, established by the EU Agreement, Switzerland informed the Commission that it 
was also interested in concluding such an agreement. 

1 

2 

Agreement between the European Community and the Swiss Confederation on the Carriage of  Goods 
and Passengers by Rail and Road, OJ L 114, 30.4.2002, p. 91. 
While the last sentence of Article 20(2) of the EU Agreement indicates that the corresponding rights are 
listed  in  Annex  8  to  that  Agreement,  Annex  8  currently  only  lists  the  rights  for  the  carriage  of 
passengers  in  triangular  traffic  (pursuant  to  Article  19(2)  of  the  EU  Agreement),  not  any  rights  for 
cabotage.  
In  2007,  France  amended  its  bilateral  road  transport  agreement  with  Switzerland  of  1951  to  allow 
cabotage in the border regions of the two countries in the course of the provision of regular cross-border 
services  between  the  two  countries.  France  is  right  now  the  only  country  that  has  an  agreement  with 
Switzerland which allows cabotage in road passenger transport by coach and bus. 

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Cabotage  in  passenger  transport  by  coach  and  bus  can  improve  the  efficiency  of  transport 
operations as it allows increasing the load factor of the vehicle. The EU is therefore generally 
favourable to  the opening of the cabotage market,  as it has done inside the EU in line with 
Regulation  (EC)  No  1073/2009  on  common  rules  for  access  to  the  international  market  for 
coach  and  bus  services3  (hereinafter  'Regulation  (EC)  No  1073/2009').  The  authorisation  of 
cabotage  operations  in  the  context  of  the  provision  of  international  passenger  transport 
services by coach and bus in the border regions between Italy and Switzerland would allow 
the carriers involved to become more competitive and efficient. 

On the EU competence 

Article 3(2) of the Treaty on the Functioning of the European Union (TFEU) establishes that 
"[t]he  Union  shall  also  have  exclusive  competence  for  the  conclusion  of  an  international 
agreement when its conclusion is provided for in a legislative act of the Union or is necessary 
to  enable  the  Union  to  exercise  its  internal  competence,  or  in  so  far  as  its  conclusion  may 
affect common rules or alter their scope". 

Under  Regulation  (EC)  No  1073/2009,  cabotage  operations  within  the  Union  may  be 
conducted,  under  certain  conditions,  exclusively  by  carriers  holding  a  Community  licence. 
International  commitments  permitting  other  carriers,  in  particular  carriers  from  third 
countries,  to  conduct  such  operations  affect  the  above  mentioned  Regulation,  within  the 
meaning of Article 3(2) TFEU.4 

Furthermore, such international commitments also affect the EU Agreement, in particular its 
Article  20.  They  are  not  authorised  by  paragraph  1  of  that  Article,  except  as  set  out  in  its 
paragraph 2.  

Consequently,  commitments  such  as  those  intended  by  Italy  fall  within  the  scope  of  the 
Union's  exclusive  competence.  However,  in  accordance  with  Article  2(1)  TFEU,  the  Union 
may empower Member States to act in areas where it has exclusive competence. 

The  aim  of  this  proposal  is  to  empower  Italy  to  negotiate  and  conclude  an  agreement  with 
Switzerland  that  would  authorise  cabotage  operations  in  the  provision  of  cross-border  road 
passenger  transport  services  by  bus  and  coach  in  the  respective  border  regions  of  the  two 
countries. 

On the procedure 

Cabotage  operations  within  the  Union  by  third  country  carriers,  not  holding  a  Community 
licence  in  accordance  with  Regulation  (EC)  No  1073/2009,  affect  the  functioning  of  the 
internal  market  for  coach  and  bus  services,  as  established  by  the  Union  legislator  through 
Regulation (EC) No 1073/2009. It is therefore necessary that any empowerment under Article 
2(1)  TFEU  be  granted  by  the  Union  legislator,  in  accordance  with  the  legislative  procedure 
referred to in Article 91 TFEU.  

3 

4 

Regulation (EC) No 1073/2009 of the European Parliament and of the Council of 21 October 2009 on 
common  rules  for  access  to  the  international  market  for  coach  and  bus  services,  and  amending 
Regulation (EC) No 561/2006, OJ L 300, 14.11.2009, p. 88. 
For a similar situation, cf. Opinion 2/15 of the Court of Justice of the European Union of 16 May 2017, 
EU:C:2017:376, paragraphs 189 and 190. 

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Consistency with existing policy provisions in the policy area 

Currently,  the  EU  Agreement  does  not  authorise  any  cabotage  operations  in  road  passenger 
transport by coach and bus. However, Article 20(2) of the EU Agreement specifically allows 
the  continued  exercise  of  pre-existing  cabotage  rights  provided  there  is  no  discrimination 
between  EU  carriers  and  there  will  be  no  distortion  of  competition.  An  agreement  between 
Italy  and  Switzerland  that  would  authorise  cabotage  operations  during  the  provision  of 
international  passenger  transport  services  by  coach  and  bus  would  not  alter  the  rights  of 
Switzerland  under  the  EU  Agreement.  Moreover,  the  conclusion  of  a  bilateral  agreement 
limited to cabotage in the respective border regions and, in respect of non-discrimination and 
undistorted competition, subject to conditions identical to those established in Article 20(2) of 
the  EU  Agreement,  is  in  line  with  the  policy  underlying  the  exception  set  out  in  that 
provision. 

Inside the EU, cabotage in road passenger transport by coach and bus is allowed in line with 
the  provisions  of  Regulation  (EC)  No  1073/2009.  Article  15  of  that  Regulation  authorises 
cabotage operations within the EU (1) for occasional services, (2) for special regular services 
provided that they are covered by a contract concluded between the organiser and the carrier, 
and (3) for regular services in the course of a regular international service except for transport 
services meeting the needs of an urban centre or conurbation or transport needs between it and 
the surrounding areas. The operation of that Regulation would be affected by the conclusion 
of  a  bilateral  road  transport  agreement  as  requested  by  Italy,  but  the  affection  would  be 
sufficiently  limited,  in  case  the  authorisation  is  given  subject  to  the  conditions  described 
above. 

• 

Consistency with other Union policies 

An  agreement  between  Italy  and  Switzerland  that  authorises  cabotage  operations  during  the 
provision  of  international  passenger  transport  services  by  coach  and  bus  in  the  respective 
border regions of the two countries would not be inconsistent with any other Union policy. 

2. 

• 

LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY 

Legal basis 

The legal basis for this proposal is Articles 2(1) TFEU and 91 TFEU.  

• 

Subsidiarity (for non-exclusive competence)  

The proposal falls under the exclusive competence of the Union. 

• 

Proportionality 

The objective of the proposal is to authorise, pursuant to Article 2(1) TFEU, the negotiation 
and  conclusion  of  a  bilateral  agreement  between  Italy  and  Switzerland  that  authorises 
cabotage  operations  during  the  provision  of  international  passenger  transport  services  by 
coach and bus in the border regions between the two countries. Consequently, the proposed 
Decision of the European Parliament and of the Council does not go beyond what is necessary 
to achieve this objective. 

• 

Choice of the instrument 

Cabotage  operations  within  the  Union  by  third  country  carriers,  not  holding  a  Community 
licence  in  accordance  with  Regulation  (EC)  No  1073/2009,  affect  the  functioning  of  the 
internal  market  for  coach  and  bus  services,  as  established  by  the  Union  legislator  through 

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Regulation (EC) No 1073/2009. It is therefore necessary that any empowerment under Article 
2(1)  TFEU  be  granted  by  the  Union  legislator,  in  accordance  with  the  legislative  procedure 
referred to in Article 91 TFEU. The proposed act, in its nature an individual empowerment, is 
to be adopted in response to a corresponding request made by Italy. It should therefore take 
the  form  of  a  decision,  addressed  to  Italy.  Consequently  the  proposed  Decision  of  the 
European Parliament and of the Council represents an adequate instrument to empower Italy, 
in accordance with Article 2(1) TFEU, to act in this matter. 

3. 

• 

RESULTS 
CONSULTATIONS AND IMPACT ASSESSMENTS 

EX-POST 

EVALUATIONS, 

OF 

STAKEHOLDER 

Stakeholder consultations 

This proposal is based on a request by Italy and concerns only this Member State. A similar 
request has been received by Germany which is subject to a parallel procedure. 

4. 

BUDGETARY IMPLICATIONS 

This proposal has no impact on the Union budget. 

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2019/0108 (COD) 

Proposal for a 

DECISION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

empowering Italy to negotiate and conclude an agreement with Switzerland authorising 
cabotage operations in the course of international road passenger transport services by 
coach and bus in the border regions between the two countries 

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Articles 2(1) and 91 thereof, 

Having regard to the proposal from the European Commission, 

After transmission of the draft legislative act to the national parliaments, 
Having regard to the opinion of the European Economic and Social Committee5, 
Having regard to the opinion of the Committee of the Regions6, 

Acting in accordance with the ordinary legislative procedure, 

Whereas: 

(1) 

(2) 

In  accordance  with  Article  20(1)  of  the  Agreement  between  the  European 
Community and the Swiss  Confederation on the Carriage of Goods and  Passengers 
by Rail and by Road7  (hereinafter 'the EU Agreement'), the transport of passengers 
by  coach  and  bus  between  two  points  situated  on  the  territory  of  the  same 
Contracting  Party  by  carriers  established  in  the  territory  of  the  other  Contracting 
Party, known as cabotage, is not authorised. 

In  accordance  with  Article  20(2)  of  the  EU  Agreement,  existing  cabotage  rights 
under bilateral agreements concluded between the Member States of the Union and 
Switzerland,  which  were  in  force  when  the  EU  Agreement  was  concluded,  namely 
on  21  June  1999,  may  continue  to  be  exercised  provided  that  there  is  no 
discrimination  between  carriers  established  in  the  Union  and  no  distortion  of 
competition.  Italy  has  no  bilateral  agreement  with  Switzerland  that  authorises 
cabotage  operations  during  the  provision  of  passenger  transport  services  by  coach 
and bus between the two countries. Therefore, the right to conduct such operations as 
a  result  of  the  possible  conclusion  of  such  an  agreement  is  not  among  the  rights 
covered by Article 20(2) of the EU Agreement. 

(3) 

International commitments permitting carriers from Switzerland to conduct cabotage 
operations within the Union are liable to affect Article 20 of the EU Agreement, to 
the extent that this provision does not authorise such operations. 

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7 

OJ C , , p. . 
OJ C , , p. . 
OJ L 114, 30.4.2002, p. 91. 

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(4) 

(5) 

(6) 

(7) 

(8) 

(9) 

Furthermore, under Regulation (EC) No 1073/20098, cabotage operations within the 
Union may be conducted, under certain conditions, exclusively by carriers holding a 
Community  licence.  International  commitments  permitting  carriers  from  third 
countries, not holding such a licence, to conduct operations of that kind are liable to 
affect that Regulation. 

Consequently,  such  commitments  fall  within  the  Union's  exclusive  external 
competence.  Member  States  may  negotiate  or  enter  into  such  commitments  only  if 
empowered to do so by the Union in line with Article 2(1) TFEU. 

Cabotage  operations  within  the  Union  by  third  country  carriers,  not  holding  a 
Community  licence  in  accordance  with  Regulation  (EC)  No  1073/2009,  affect  the 
functioning of the internal market for coach and bus services, as established by the 
Union  legislator  through  Regulation  (EC)  No  1073/2009.  It  is  therefore  necessary 
that any empowerment under Article 2(1) TFEU be granted by the Union legislator, 
in accordance with the legislative procedure referred to in Article 91 TFEU. 

By  letter  dated  7  February  2018,  Italy  requested  an  empowerment  by  the  Union  to 
conclude an agreement with Switzerland authorising cabotage operations during the 
provision  of  international  passenger  transport  services  by  coach  and  bus  in  the 
respective border regions of the two countries. 

Cabotage operations allow increasing the load factor of the vehicles which increases 
the economic efficiency of the services. It is therefore appropriate to authorise such 
operations in the course of the provision of international passenger transport services 
by  coach  and  bus  in  the  respective  border  regions  of  Switzerland  and  Italy.  This 
could further strengthen the close integration of these border regions. 

In order to ensure that the cabotage operations concerned do not excessively alter the 
functioning  of  the  internal  market  for  coach  and  bus  services,  as  established  by 
Regulation  (EC)  No  1073/2009,  their  authorisation  should  be  subject  to  the 
conditions  that  there  is  no  discrimination  between  carriers  established  within  the 
Union and no distortion of competition.  

(10) 

For  the  same  reason,  cabotage  operations  should  only  be  authorised  in  the  border 
regions of Italy in the course of the provision of coach and bus services between Italy 
and Switzerland. To this effect,  it is  necessary to define the border regions of  Italy 
within  the  meaning  of  this  Decision  in  a  manner  that  takes  due  account  of  the 
functioning  of  Regulation  (EC)  No  1073/2009,  while  allowing  to  increase  the 
efficiency of the operations concerned, 

HAVE ADOPTED THIS DECISION: 

Article 1 

Italy  is  hereby  empowered  to  negotiate  and  conclude  an  agreement  with  Switzerland 
authorising  cabotage  operations  in  the  respective  border  regions  of  Italy  and  Switzerland  in 
the course of the provision of coach and bus services between the two countries, provided that 
there  is  no  discrimination  between  carriers  established  in  the  Union  and  no  distortion  of 
competition.  

8 

OJ L 300, 14.11.2009, p. 88. 

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As border regions  of  Italy  within the meaning of the first  paragraph shall be considered the 
regions  Piedmont  and  Lombardy  and  the  autonomous  regions  Valle  d'Aosta  and  Trentino-
Alto Adige. 

Italy shall inform the Commission of the conclusion of an agreement pursuant to Article 1 of 
this  Decision  and  notify  the  text  of  the  said  agreement.  The  Commission  shall  inform  the 
Council and the European Parliament thereof. 

Article 2 

This Decision is addressed to the Italian Republic. 

Done at Brussels, 

Article 3 

For the European Parliament 
The President 

For the Council 
The President 

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