Proposal for a DECISION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL empowering Germany to amend its existing bilateral road transport agreement with Switzerland with a view to 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: Baden-Württemberg, Bavaria, Germany, Switzerland, bilateral agreement, bus, carriage of passengers, frontier region, international road transport, revision of an agreement, road cabotage

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   EUROPEAN COMMISSION  Brussels, 13.5.2019  COM(2019) 221 final 2019/0107 (COD)  Proposal for a DECISION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL empowering Germany to amend its existing bilateral road transport agreement with Switzerland with a view to 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  Germany  and  Switzerland  are  closely  integrated.  Many  Germans 
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 
German  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 11 May 2017, Germany informed the Commission that it would appreciate if 
the  Union  was  to  empower  it  in  line  with  Article  2(1)  TFEU  to  amend  its  bilateral  road 
transport agreement with Switzerland of 19533 with a view to authorising cabotage operations 
during  the  provision  of  passenger  transport  services  by  coach  and  bus  in  the  border  region 
between the two countries. In the June 2018 meeting of the EU-Switzerland Inland Transport 

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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. 
The text of the agreement is online retrievable under no. "0.741.619.136" in the Systematic Compilation 
of Federal Legislation (https://www.admin.ch/gov/de/start/bundesrecht/systematische-sammlung.html). 

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Committee, established by the EU Agreement, Switzerland informed the Commission that it 
was also interested in amending this agreement to that effect. 

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  services4  (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  Germany  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.5 

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 Germany 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 Germany to amend its existing bilateral road transport 
agreement with Switzerland with  a view to  authorising cabotage operations in the course of 
international  road  passenger  transport  services  by  coach  and  bus  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.  

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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 
Germany  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, an amendment of the pre-existing 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 amendment 
of the bilateral road transport agreement as requested by Germany, 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  amendment  of  the  existing  bilateral  road  transport  agreement  between  Germany  and 
Switzerland  with  a  view  to  authorising  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 sole objective of this proposal is to empower Germany, pursuant to Article 2(1) TFEU, to 
amend  its  existing  bilateral  road  transport  agreement  with  Switzerland  with  a  view  to 
authorising  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 

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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. The proposed act, in its nature an individual empowerment, is 
to be adopted in  response to a corresponding request made by Germany. It should therefore 
take  the  form  of  a  decision,  addressed  to  Germany.  Consequently  the  proposed  Decision  of 
the  European  Parliament  and  of  the  Council  represents  an  adequate  instrument  to  empower 
Germany, 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  Germany  and  concerns  only  this  Member  State.  A 
similar request has been received by Italy which is subject to a parallel procedure. 

4. 

BUDGETARY IMPLICATIONS 

This proposal has no impact on the Union budget. 

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2019/0107 (COD) 

Proposal for a 

DECISION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

empowering Germany to amend its existing bilateral road transport agreement with 
Switzerland with a view to 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 Committee6, 
Having regard to the opinion of the Committee of the Regions7, 

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 
Road8 (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.  The 
bilateral  road  transport  agreement  between  Germany  and  Switzerland  of  19539  does 
not authorise 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  a  possible  amendment  to  the  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 
8 
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OJ C , , p. . 
OJ C , , p. . 
OJ L 114, 30.4.2002, p. 91. 
Text retrievable under no. "0.741.619.136" in the Systematic Compilation of Swiss Federal Legislation. 

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(4) 

(5) 

(6) 

(7) 

(8) 

(9) 

Furthermore, under Regulation (EC) No 1073/200910, 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  11  May  2017,  Germany  requested  an  empowerment  by  the  Union  to 
amend  its  road  transport  agreement  with  Switzerland  with  a  view  to  authorising 
cabotage operations during the provision of 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 Germany. 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 Germany in the course of the provision of coach and bus services between 
Germany and Switzerland. To this effect, it is necessary to define the border regions of 
Germany 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 

Germany is hereby empowered to amend its existing bilateral road transport agreement with 
Switzerland with a view to authorising cabotage operations in the respective border regions of 
Germany 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. 

10 

OJ L 300, 14.11.2009, p. 88. 

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As border regions of Germany within the meaning the first paragraph shall be considered the 
the 
administrative  districts  of  Freiburg  and  Tübingen 
administrative district of Swabia in Bavaria. 

in  Baden-Württemberg  and 

Article 2 

Germany  shall  inform  the  Commission  of  the  amendment  of  its  bilateral  road  transport 
agreement with Switzerland 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. 

This Decision is addressed to the Federal Republic of Germany. 

Done at Brussels, 

Article 3 

For the European Parliament 
The President 

For the Council 
The President 

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