CELEX: 62019CJ0937
Language: en
Date: 2021-07-08
Title: Judgment of the Court (Eighth Chamber) of 8 July 2021.#Staatsanwaltschaft Köln and Bundesamt für Güterverkehr v KA.#Request for a preliminary ruling from the Amtsgericht Köln.#Reference for a preliminary ruling – Regulation (EC) No 1072/2009 – Article 1(5)(d) – Article 8 – International carriage of goods by road from one Member State to another Member State – Cabotage operations following that international carriage in the territory of the latter Member State – Restrictions – Requirement of a Community licence and, where appropriate, a carriage authorisation – Exemptions – Cabotage operations following an international carriage on one’s own account – Conditions.#Case C-937/19.

JUDGMENT OF THE COURT (Eighth Chamber)
8 July 2021 (*)
(Reference for a preliminary ruling – Regulation (EC) No 1072/2009 – Article 1(5)(d) – Article 8 – International carriage of goods by road from one Member State to another Member State – Cabotage operations following that international carriage in the territory of the latter Member State – Restrictions – Requirement of a Community licence and, where appropriate, a carriage authorisation – Exemptions – Cabotage operations following an international carriage on one’s own account – Conditions)
In Case C‑937/19,
REQUEST for a preliminary ruling under Article 267 TFEU from the Amtsgericht Köln (Local Court, Cologne, Germany), made by decision of 25 November 2019, received at the Court on 23 December 2019, in the proceedings

KA,

interveners:

Staatsanwaltschaft Köln,

Bundesamt für Güterverkehr,

THE COURT (Eighth Chamber),
composed of N. Wahl, President of the Chamber, F. Biltgen (Rapporteur) and J. Passer, Judges,
Advocate General: M. Bobek,
Registrar: A. Calot Escobar,
having regard to the written procedure,
after considering the observations submitted on behalf of:
–        KA, by S. Domaradzki, adwokat,
–        the Bundesamt für Güterverkehr, by A. Marquardt, acting as Agent,
–        the Italian Government, by G. Palmieri, acting as Agent, and by P. Garofoli, avvocato dello Stato,
–        the European Commission, by T. Scharf and C. Vrignon, acting as Agents,
having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,
gives the following

Judgment

1        This request for a preliminary ruling concerns the interpretation of Regulation (EC) No 1072/2009 of the European Parliament and of the Council of 21 October 2009 on common rules for access to the international road haulage market (OJ 2009 L 300, p. 72).

2        The request has been made in proceedings between KA, the applicant in the main proceedings, and the Bundesamt für Güterverkehr (Federal Office for the Carriage of Goods, Germany; ‘the BAG’) concerning the imposition of a fine for infringement of provisions relating to cabotage operations.
 Legal context

3        Recitals 13 and 15 of Regulation No 1072/2009 provide:
‘(13)      Hauliers who are holders of Community licences provided for in this Regulation and hauliers authorised to operate certain categories of international haulage service should be permitted to carry out national transport services within a Member State on a temporary basis in conformity with this Regulation, without having a registered office or other establishment therein. …
…
(15)      Without prejudice to the provisions of the [TFEU] on the right of establishment, cabotage operations consist of the provision of services by hauliers within a Member State in which they are not established and should not be prohibited as long as they are not carried out in a way that creates a permanent or continuous activity within that Member State. To assist the enforcement of this requirement, the frequency of cabotage operations and the period in which they can be performed should be more clearly defined. In the past, such national transport services were permitted on a temporary basis. In practice, it has been difficult to ascertain which services are permitted. Clear and easily enforceable rules are thus needed.’

4        Article 1 of that regulation, entitled ‘Scope’, provides:
‘1.      This Regulation shall apply to the international carriage of goods by road for hire or reward for journeys carried out within the territory of the [European Union].
…
4.      This Regulation shall apply to the national carriage of goods by road undertaken on a temporary basis by a non-resident haulier as provided for in Chapter III.
5.      The following types of carriage and unladen journeys made in conjunction with such carriage shall not require a Community licence and shall be exempt from any carriage authorisation:
(a)      carriage of mail as a universal service;
(b)      carriage of vehicles which have suffered damage or breakdown;
(c)      carriage of goods in motor vehicles the permissible laden mass of which, including that of trailers, does not exceed 3[.]5 tonnes;
(d)      carriage of goods in motor vehicles provided the following conditions are fulfilled:
(i)      the goods carried are the property of the undertaking or have been sold, bought, let out on hire or hired, produced, extracted, processed or repaired by the undertaking;
(ii)      the purpose of the journey is to carry the goods to or from the undertaking or to move them, either inside or outside the undertaking for its own requirements;
(iii)      motor vehicles used for such carriage are driven by personnel employed by, or put at the disposal of, the undertaking under a contractual obligation;
(iv)      the vehicles carrying the goods belong to the undertaking or have been bought by it on deferred terms or have been hired …; and
(v)      such carriage is no more than ancillary to the overall activities of the undertaking;
(e)      carriage of medicinal products, appliances, equipment and other articles required for medical care in emergency relief, in particular for natural disasters.
…
6.      The provisions of paragraph 5 shall not affect the conditions under which a Member State authorises its nationals to engage in the activities referred to in that paragraph.’

5        Article 2 of that regulation, entitled ‘Definitions’, provides:
‘For the purposes of this Regulation:
1.      “vehicle” means a motor vehicle registered in a Member State, or a coupled combination of vehicles the motor vehicle of which at least is registered in a Member State, used exclusively for the carriage of goods;
…
3.      “host Member State” means a Member State in which a haulier operates other than the haulier’s Member State of establishment;
4.      “non-resident haulier” means a road haulage undertaking which operates in a host Member State;
5.      “driver” means any person who drives the vehicle even for a short period, or who is carried in a vehicle as part of his duties to be available for driving if necessary;
6.      “cabotage operations” means national carriage for hire or reward carried out on a temporary basis in a host Member State, in conformity with this Regulation;
…’

6        Chapter II of that regulation, entitled ‘International carriage’, includes Article 3 thereof, which provides:
‘International carriage shall be carried out subject to possession of a Community licence and, if the driver is a national of a third country, in conjunction with a driver attestation.’

7        Article 4 of Regulation No 1072/2009, entitled ‘Community licence’, which also appears in Chapter II thereof, is worded as follows:
‘1.      The Community licence shall be issued by a Member State, in accordance with this Regulation, to any haulier carrying goods by road for hire or reward who:
(a)      is established in that Member State in accordance with Community legislation and the national legislation of that Member State; and
(b)      is entitled in the Member State of establishment, in accordance with [European Union] legislation and the national legislation of that Member State concerning admission to the occupation of road haulage operator, to carry out the international carriage of goods by road.
2.      The Community licence shall be issued by the competent authorities of the Member State of establishment for renewable periods of up to 10 years.
…’

8        Chapter III of that regulation, entitled ‘Cabotage’, includes Article 8 thereof, which provides:
‘1.      Any haulier for hire or reward who is a holder of a Community licence and whose driver, if he is a national of a third country, holds a driver attestation, shall be entitled, under the conditions laid down in this Chapter, to carry out cabotage operations.
2.      Once the goods carried in the course of an incoming international carriage have been delivered, hauliers referred to in paragraph 1 shall be permitted to carry out, with the same vehicle, or, in the case of a coupled combination, the motor vehicle of that same vehicle, up to three cabotage operations following the international carriage from another Member State or from a third country to the host Member State. …
3.      National road haulage services carried out in the host Member State by a non-resident haulier shall only be deemed to conform with this Regulation if the haulier can produce clear evidence of the incoming international carriage and of each consecutive cabotage operation carried out.
Evidence referred to in the first subparagraph shall comprise the following details for each operation:
(a)      the name, address and signature of the sender;
(b)      the name, address and signature of the haulier;
(c)      the name and address of the consignee as well as his signature and the date of delivery once the goods have been delivered;
(d)      the place and the date of taking over of the goods and the place designated for delivery;
(e)      the description in common use of the nature of the goods and the method of packing, and, in the case of dangerous goods, their generally recognised description, as well as the number of packages and their special marks and numbers;
(f)      the gross mass of the goods or their quantity otherwise expressed;
(g)      the number plates of the motor vehicle and trailer.
4.      No additional document shall be required in order to prove that the conditions laid down in this Article have been met.
5.      Any haulier entitled in the Member State of establishment, in accordance with that Member State’s legislation, to carry out the road haulage operations for hire or reward specified in Article 1(5)(a), (b) and (c) shall be permitted, under the conditions set out in this Chapter, to carry out, as the case may be, cabotage operations of the same kind or cabotage operations with vehicles in the same category.
6.      Permission to carry out cabotage operations, within the framework of the types of carriage referred to in Article 1(5)(d) and (e), shall be unrestricted.’
 The dispute in the main proceedings and the question referred for a preliminary ruling

9        The applicant in the main proceedings is the owner of an undertaking established in Poland which manufactures packaging made from wood and carries out the carriage of goods. That undertaking holds a Community licence.

10      On 10 July 2018, a lorry registered in Poland, belonging to the applicant in the main proceedings, was subject to a roadside check while it was carrying paper and cardboard from a loading point in Krostitz (Germany) to an unloading point in Schwedt (Germany). It was consequently found that a cabotage operation was being carried out, as evidenced by the appropriate documents, namely a delivery note, a transport order and a weighing slip.

11      During that roadside check, a CMR (Cargo Movement Requirement) consignment note was presented in order to show that the cabotage operation in question followed an international carriage operation from another Member State to the host Member State, within the meaning of the first subparagraph of Article 8(2) of Regulation No 1072/2009. It is apparent from the document thus presented that, on the same day, the lorry in question had carried, from the factory of the undertaking belonging to the applicant in the main proceedings, located in Poland, goods manufactured and sold by that undertaking to a customer in Freital (Germany).

12      On 9 October 2018, the applicant in the main proceedings, in his capacity as owner of the haulage undertaking, was heard by the BAG. He declared that the cabotage operation, which had been carried out on the return route to Poland, was permitted under Article 8(6) of Regulation No 1072/2009, since it followed an international carriage operation for the purposes of Article 1(5)(d) of that regulation.

13      The BAG took the view that Article 1(5)(d) and Article 8(2) of Regulation No 1072/2009 could not be combined. In its view, if a haulier who has carried out the international carriage of goods on its own account, for the purposes of Article 1(5)(d) of that regulation, from one Member State to another Member State were permitted to carry out a cabotage operation following that international carriage, pursuant to Article 8(2) thereof, it would consequently be difficult, if not impossible, for the competent authorities to carry out checks as regards compliance with the provisions relating to cabotage operations, since the haulier carrying out an international carriage of goods on its own account is not subject to the requirement of holding a Community licence, nor that of providing the evidence listed in Article 8(3) of that regulation.

14      Consequently, by decision of 30 October 2018, the BAG imposed a fine of EUR 1 250 on the applicant in the main proceedings for infringement of the rules on cabotage operations.

15      The applicant in the main proceedings brought an action against that decision before the referring court.

16      That court considers that the resolution of the dispute before it depends on whether a haulier who, in accordance with Article 1(5)(d) of Regulation No 1072/2009, has carried out an international carriage of goods from one Member State to another Member State is permitted to carry out cabotage operations following that international carriage within the territory of the latter Member State pursuant to Article 8 of that regulation. More specifically, the referring court raises the question whether such international carriage constitutes an international carriage within the meaning of Article 8(2) of that regulation. In its view, that question does not appear to be answered in the same way in the Member States, in particular in Poland and Germany.

17      In those circumstances, the Amtsgericht Köln (Local Court, Cologne) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:
‘Is the first sentence of Article 8(2) of [Regulation No 1072/2009] to be interpreted as meaning that there is an incoming international carriage within the meaning of that provision also in the case where that carriage is carried out as part of a carriage in accordance with Article 1(5)(d) of [that regulation]?’
 Consideration of the question referred

 Admissibility

18      The applicant in the main proceedings contests the admissibility of the request for a preliminary ruling, arguing that the interpretation of EU law thus requested is not necessary for the resolution of the dispute in the main proceedings and that, in any event, the Court does not have before it the factual or legal material necessary to give a useful answer to the question referred to it.

19      It must be borne in mind, in that regard, that, according to the Court’s settled case-law, in proceedings under Article 267 TFEU, it is solely for the national courts before which a dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of each case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, if the questions submitted concern the interpretation of EU law, the Court is, in principle, bound to give a ruling. It follows that questions concerning EU law enjoy a presumption of relevance. The Court may thus refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, to that effect, judgment of 26 February 2013, Melloni, C‑399/11, EU:C:2013:107, paragraphs 28 and 29 and the case-law cited).

20      In the present case, it is not obvious that the interpretation of Article 1(5)(d) and Article 8(2) of Regulation No 1072/2009 sought by the referring court bears no relation to the actual facts of the main action or its purpose, concerns a hypothetical problem, or that the Court does not have before it the factual or legal material necessary to give a useful answer to the question submitted to it. On the contrary, it is apparent from the request for a preliminary ruling that the referring court expresses, in a reasoned manner, doubts regarding the interpretation to be given to the provisions of EU law concerned and provides a detailed account of the facts in that regard.

21      The request for a preliminary ruling must therefore be declared admissible.
 Substance

22      It should be observed that, according to the Court’s settled case-law, in the procedure laid down by Article 267 TFEU providing for cooperation between national courts and the Court of Justice, it is for the latter to provide the national court with an answer which will be of use to it and enable it to determine the case before it. To that end, the Court may have to reformulate the questions referred to it. The Court has a duty to interpret all provisions of EU law which national courts need in order to decide the actions pending before them, even if those provisions are not expressly indicated in the questions referred to the Court by those courts (judgment of 28 June 2018, Crespo Rey, C‑2/17, EU:C:2018:511, paragraph 40 and the case-law cited).

23      Consequently, even if, formally, the referring court has limited its questions to the interpretation of Article 8(2) and Article 1(5)(d) of Regulation No 1072/2009, that does not prevent this Court from providing the referring court with all the elements of interpretation of EU law that may be of assistance in adjudicating in the case pending before it, whether or not the referring court has referred to them in the wording of its questions. It is, in this regard, for the Court to extract from all the information provided by the national court, in particular from the grounds of the decision to make the reference, the points of EU law which require interpretation in view of the subject matter of the dispute (judgment of 28 June 2018, Crespo Rey, C‑2/17, EU:C:2018:511, paragraph 41 and the case-law cited).

24      In the present case, it is apparent from the request for a preliminary ruling that the referring court seeks to ascertain whether a haulier who has carried out an international carriage of goods on its own account, for the purposes of Article 1(5)(d) of Regulation No 1072/2009, from one Member State to another Member State is permitted to carry out cabotage operations following that international carriage within the territory of the latter Member State under Article 8 of that regulation.

25      Furthermore, the applicant in the main proceedings himself acknowledges that, before being used for carrying out the cabotage operation which was the subject of a roadside check, his lorry carried goods manufactured and sold by him from his factory in Poland to the undertaking of the customer who purchased them in Germany, which is not disputed. It will, however, be for the referring court to determine whether such carriage constitutes an international carriage of goods on one’s own account, for the purposes of Article 1(5)(d)(i) to (v) of Regulation No 1072/2009, in particular as regards the requirement set out in point (v) that that carriage must be ancillary to the overall activities of the undertaking.

26      In the light of the foregoing considerations, the question referred must be understood as seeking, in essence, to ascertain whether Regulation No 1072/2009 must be interpreted as meaning that a haulier who has carried out an international carriage of goods on its own account, for the purposes of Article 1(5)(d) of that regulation, from one Member State to another Member State, is permitted to carry out cabotage operations following that international carriage in the territory of the latter Member State under Article 8 of that regulation and, if so, under what conditions.

27      In that regard, it must be borne in mind that, pursuant to Article 1(1) and (4) thereof, Regulation No 1072/2009 applies, inter alia, to the international carriage of goods by road for hire or reward for journeys carried out within the territory of the European Union and to cabotage operations which, in accordance with Article 2(6) of that regulation, are defined as ‘national carriage for hire or reward carried out on a temporary basis in a host Member State’.

28      Chapter II of Regulation No 1072/2009 lays down the rules to which international carriage is subject. That chapter contains Article 3 of that regulation, which lays down the general principle that ‘international carriage shall be carried out subject to possession of a Community licence and, if the driver is a national of a third country, in conjunction with a driver attestation’.

29      Article 1(5)(a) to (e) of Regulation No 1072/2009 provides, however, that, in the case of certain types of carriage, hauliers do not require a Community licence and are exempt from any carriage authorisation. This is the case for the carriage of mail as a universal service (Article 1(5)(a) of that regulation), the carriage of vehicles which have suffered damage or breakdown (Article 1(5)(b) of that regulation), the carriage of goods in motor vehicles, the permissible laden mass of which, including that of trailers, does not exceed 3.5 tonnes (Article 1(5)(c) of that regulation) and the carriage of goods by motor vehicle on one’s own account (Article 1(5)(d) of Regulation No 1072/2009) or the carriage of medicinal products, appliances and equipment and other articles required for medical care in emergency relief, in particular for natural disasters (Article 1(5)(e) of Regulation No 1072/2009).

30      It is apparent from a combined reading of those provisions that the international carriage of goods on one’s own account, for the purposes of Article 1(5)(d) of Regulation No 1072/2009, is not subject to the requirements laid down in Article 3 of that regulation.

31      Chapter III of Regulation No 1072/2009, entitled ‘Cabotage’, sets out the rules relating to cabotage operations. Chapter III includes, inter alia, Article 8 of that regulation, entitled ‘General principle’, which lays down the general rules applicable to cabotage operations.

32      It should be noted that Article 8 lays down separate rules concerning permission to carry out cabotage operations, depending on whether they follow an international carriage of goods by road for hire or reward or an international carriage of goods by road on one’s own account.

33      On the one hand, Article 8(1) of Regulation No 1072/2009 lays down the general principle that ‘any haulier for hire or reward who is the holder of a Community licence and whose driver, if he is a national of a third country, holds a driver attestation, shall be entitled, under the conditions laid down in this Chapter, to carry out cabotage operations’.

34      It follows from that provision that hauliers who have carried out an international carriage of goods by road for hire or reward from one Member State to another Member State are entitled to carry out, within the territory of the latter Member State, cabotage operations following that international carriage if they comply with the requirements laid down in Article 3 of Regulation No 1072/2009.

35      On the other hand, Article 8(6) of Regulation No 1072/2009 states that permission to carry out cabotage operations, within the framework of the types of carriage referred to in Article 1(5)(d) of that regulation, is to be unrestricted.

36      Since, as recalled in paragraph 27 above, the concept of ‘cabotage operations’ is defined, for the purposes of Regulation No 1072/2009, as ‘national carriage for hire or reward’, Article 8(6) of that regulation cannot cover cabotage operations carried out on one’s own account, for the purposes of Article 1(5)(d) of that regulation, contrary to the submissions of the BAG, the Italian Government and the European Commission in their written observations.

37      Article 8(6) of Regulation No 1072/2009 must in fact be understood as establishing a derogation from the general principle laid down in Article 8(1) of that regulation.

38      In accordance with Article 1(5)(d) of Regulation No 1072/2009, international carriage of goods carried out on one’s own account is not, as has been pointed out in paragraph 30 above, subject to the requirements laid down in Article 3 of that regulation.

39      Thus, it is apparent from a combined reading of Article 1(5)(d) and Article 8(6) of Regulation No 1072/2009 that hauliers who have carried out an international carriage of goods by road on their own account from one Member State to another Member State are permitted to carry out cabotage operations within the territory of the latter Member State, without being subject to the requirements laid down in Article 3 and Article 8(1) of that regulation.

40      It must therefore be held that a haulier who has carried out an international carriage of goods on its own account, for the purposes of Article 1(5)(d) of Regulation No 1072/2009, from one Member State to another Member State, is permitted, in accordance with Article 8(6) of that regulation, to carry out cabotage operations following that international carriage in the territory of the latter Member State, without being subject to the requirements laid down in Article 3 and Article 8(1) of that regulation.

41      As regards the detailed rules relating to those cabotage operations, it should be noted that Article 8(2) to (5) of Regulation No 1072/2009 lays down the conditions under which hauliers may carry them out.

42      As set out in the first subparagraph of Article 8(2), ‘once the goods carried in the course of an incoming international carriage have been delivered, hauliers referred to in paragraph 1 shall be permitted to carry out, with the same vehicle, or, in the case of a coupled combination, the motor vehicle of that same vehicle, up to three cabotage operations following the international carriage from another Member State or from a third country to the host Member State’. That provision further states that ‘the last unloading in the course of a cabotage operation before leaving the host Member State shall take place within 7 days from the last unloading in the host Member State in the course of the incoming international carriage’.

43      The second subparagraph of Article 8(2) of Regulation No 1072/2009 provides that, ‘within the time limit referred to in the first subparagraph, hauliers may carry out some or all of the cabotage operations permitted under that subparagraph in any Member State, under the condition that they are limited to one cabotage operation per Member State within 3 days of the unladen entry into the territory of that Member State’.

44      The first subparagraph of Article 8(3) of Regulation No 1072/2009 states that ‘national road haulage services carried out in the host Member State by a non-resident haulier’, namely cabotage operations, are deemed to conform with that regulation ‘only … if the haulier can produce clear evidence of the incoming international carriage and of each consecutive cabotage operation carried out’.

45      That evidence, which is listed in points (a) to (g) of the second subparagraph of Article 8(3) of Regulation No 1072/2009, includes the following details for each operation: the name, address and signature of the sender (Article 8(3)(a) of that regulation), the name, address and signature of the haulier (Article 8(3)(b) of that regulation), the name and address of the consignee as well as his or her signature and the date of delivery once the goods have been delivered (Article 8(3)(c) of that regulation), the place and date of taking over of the goods and the place designated for delivery (Article 8(3)(d) of Regulation No 1072/2009), the description in common use of the nature of the goods and the method of packing, and, in the case of dangerous goods, their generally recognised description, as well as the number of packages and their special marks and numbers (Article 8(3)(e) of that regulation), the gross mass of the goods or their quantity otherwise expressed (Article 8(3)(f) of that regulation) and the number plates of the motor vehicle and trailer (Article 8(3)(g) of that regulation).

46      Article 8(4) of Regulation No 1072/2009 provides that no additional document is required to prove that the conditions set out in Article 8 of that regulation have been met.

47      It should be noted that, even though Article 8(2) of Regulation No 1072/2009 refers to ‘hauliers referred to in paragraph 1’ of Article 8 and, as has been pointed out in paragraph 37 above, Article 8(1) of that regulation does not apply to hauliers who have carried out an international carriage of goods on their own account, that circumstance is not capable of calling into question the fact that the detailed rules relating to cabotage operations laid down in Article 8(2) to (4) of that regulation are intended to apply to all cabotage operations, which are, by definition, carried out for hire or reward, regardless of whether they follow an international carriage of goods carried out for hire or reward or an international carriage of goods on one’s own account.

48      As is evident from the use of the wording ‘shall be entitled, under the conditions laid down in this Chapter’ or the wording ‘permission to carry out cabotage operations’ in Article 8(1) and Article 8(6) of Regulation No 1072/2009 respectively, those provisions govern only permission to carry out cabotage operations.

49      In addition, although, like international carriage of goods on one’s own account, the carriage of goods by road for hire or reward referred to in Article 1(5)(a) to (c) of Regulation No 1072/2009 is not subject to the requirements laid down in Article 3 of that regulation, the fact remains that, in accordance with Article 8(5) of that regulation, hauliers are entitled to carry out cabotage operations of the same kind or cabotage with vehicles in the same category provided that they comply with the conditions laid down in Chapter III of that regulation in relation to cabotage. Consequently, those cabotage operations are, in any event, subject to the conditions laid down in Article 8(2) to (4) of Regulation No 1072/2009.

50      Consequently, the detailed rules relating to cabotage operations laid down in Article 8(2) to (4) of Regulation No 1072/2009 apply not only to cabotage operations following an international carriage of goods for hire or reward, but also to cabotage operations following an international carriage of goods on one’s own account, for the purposes of Article 1(5)(d) of Regulation No 1072/2009.

51      Only such an interpretation is consistent with the objective pursued by Regulation No 1072/2009. The fact that all cabotage operations, including those following an international carriage on one’s own account for the purposes of Article 1(5)(d) of Regulation No 1072/2009, are subject to the conditions laid down in Article 8(2) to (4) of that regulation makes it possible to ensure the effectiveness of the strict rules governing cabotage operations in so far as it prevents that carriage from being carried out in such a way as to create a permanent or continuous activity within the host Member State and therefore guarantees the temporary nature of the cabotage, which, in accordance with recitals 13 and 15, is one of the objectives pursued by Regulation No 1072/2009.

52      It follows that, in order to ensure the effectiveness of Regulation No 1072/2009, hauliers who have carried out an international carriage of goods on their own account, for the purposes of Article 1(5)(d) of that regulation, from one Member State to another Member State are authorised to carry out, within the territory of the latter Member State, cabotage operations following that international carriage, subject, nevertheless, to compliance with the conditions laid down in Article 8(2) to (4) of that regulation.

53      That conclusion cannot be called into question by the argument put forward by the BAG and the Italian Government that, since hauliers carrying out the international carriage of goods on their own account are not required to hold a Community licence and, where appropriate, a driver attestation, it is impossible, in the context of a cabotage operation following that international carriage, to carry out checks as regards compliance with the rules on cabotage operations, in particular the conditions laid down in Article 8 of Regulation No 1072/2009, and to ensure the temporary nature of cabotage.

54      On the contrary, it is apparent from the documents before the Court that it is possible to require hauliers who, after having carried out an international carriage on their own account, for the purposes of Article 1(5)(d) of Regulation No 1072/2009, from one Member State to another Member State, subsequently carry out a cabotage operation in the territory of the latter Member State, to produce clear evidence of that international carriage and each consecutive cabotage operation carried out, in accordance with Article 8(3) of that regulation. In the present case, the applicant in the main proceedings, in his capacity as a haulier, was able, during the roadside check to which his lorry was subject, to present to the competent authorities the consignment note clearly showing international carriage on one’s own account to the Member State concerned and the appropriate documents relating to the cabotage operations following that international carriage in the territory of that Member State.

55      In the light of all the foregoing considerations, the answer to the question referred is that Regulation No 1072/2009 must be interpreted as meaning that a haulier who has carried out an international carriage of goods on its own account, for the purposes of Article 1(5)(d) of that regulation, from one Member State to another Member State, is permitted, under Article 8(6) of that regulation, to carry out cabotage operations following that international carriage within the territory of the latter Member State, subject, nevertheless, to compliance with the conditions laid down in Article 8(2) to (4) of that regulation.
 Costs

56      Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
On those grounds, the Court (Eighth Chamber) hereby rules:

Regulation (EC) No 1072/2009 of the European Parliament and of the Council of 21 October 2009 on common rules for access to the international road haulage market must be interpreted as meaning that a haulier who has carried out an international carriage of goods on its own account, for the purposes of Article 1(5)(d) of that regulation, from one Member State to another Member State, is permitted, under Article 8(6) of that regulation, to carry out cabotage operations following that international carriage within the territory of the latter Member State, subject, nevertheless, to compliance with the conditions laid down in Article 8(2) to (4) of that regulation.

[Signatures]

*      Language of the case: German.