1 By its application, the European Commission asks the Court to declare that, by not authorising cabotage operations by coach and bus in the context of occasional services unless the operations are carried out within a period of seven consecutive days in one calendar month, the Kingdom of Denmark has failed to fulfil its obligations under Article 15(b) of 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 2009 L 300, p. 88).
2 Article 2 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), entitled ‘Definitions’, provides: ‘For the purposes of this Regulation:
3 Article 8 of that regulation, entitled ‘General principle’, 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. 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. 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. …’
4 Recitals 3, 4 and 10 of Regulation No 1073/2009 state the following:
5 Article 1 of Regulation No 1073/2009, entitled ‘Scope’, provides, in paragraph 4 thereof: ‘This Regulation shall apply to national road passenger services for hire or reward operated on a temporary basis by a non-resident carrier as provided for in Chapter V.’
6 Article 2 of that regulation, entitled ‘Definitions’, provides: ‘For the purposes of this Regulation, the following definitions shall apply: …’
7 Chapter V of that regulation, entitled ‘Cabotage’, comprises Articles 14 and 15 thereof.
8 Article 14 of that regulation, entitled ‘General principle’, reads as follows: ‘Any carrier who operates road passenger transport services for hire or reward and who holds a Community licence shall be permitted, under the conditions laid down in this Chapter and without discrimination on grounds of the carrier’s nationality or place of establishment, to operate the cabotage operations as specified in Article 15.’
9 Under Article 15 of Regulation No 1073/2009, entitled ‘Authorised cabotage operations’: ‘Cabotage operations shall be authorised for the following services: … …’
10 Since 1 November 2019, the Kingdom of Denmark has applied an administrative practice through which Danish authorities interpret the words ‘on a temporary basis’, used in the definition of the concept of ‘cabotage operations’ as set out in Article 2(7) of Regulation No 1073/2009, as being incapable of referring to a period of longer than ‘seven consecutive days in one calendar month’ (‘the contested administrative practice’). That practice is described in a press release issued by the Ministry of Transport dated 11 October 2019, entitled ‘Danmark strammer fortolkningen af EU’s regler om cabotage for busser’ (‘Denmark tightens interpretation of EU rules on cabotage by coach and bus’).
11 According to the Commission, the contested administrative practice which consists of limiting, for a non-resident carrier, cabotage operations by coach and bus on Danish territory to a period of seven consecutive days in one calendar month is not in line with Regulation No 1073/2009 and infringes the principle of proportionality.
12 Further to contacts with the Danish Government, the Commission sent the Kingdom of Denmark a letter of formal notice on 9 June 2021 stating that, by applying the contested administrative practice, that Member State was failing to fulfil its obligations under Article 15(b) of Regulation No 1073/2009.
13 The Kingdom of Denmark responded to the letter of formal notice on 2 August 2021, stating that that practice is in line with Regulation No 1073/2009. In that regard, it argued, first of all, that there is no common interpretation of the rules for cabotage for passenger transport. Next, it argued that that practice is in line with the regulation’s objective and with the expression ‘on a temporary basis’ in Regulation No 1072/2009. Lastly, it argued that that practice is proportionate.
14 On 19 May 2022, the Commission sent the Kingdom of Denmark a reasoned opinion, to which that Member State responded on 1 July 2022. In that response, that Member State maintained that the contested administrative practice is in line with Regulation No 1073/2009.
15 Considering the Kingdom of Denmark’s response to be unsatisfactory, the Commission decided to bring the present action.
16 The Commission, supported by the EFTA Surveillance Authority, notes that Regulation No 1073/2009 establishes detailed rules for the application of the principle, enshrined in primary law, of the freedom to provide services in the coach and bus passenger transport sector.
17 In accordance with the provisions of that regulation, EU carriers are free to provide occasional road passenger services on a temporary basis in Member States other than the Member State of establishment, on the sole condition that they possess a Community licence.
18 The contested administrative practice has the effect that non-resident carriers are prohibited from performing two cabotage operations by coach and bus in Denmark in one calendar month if those operations take place more than one week apart. Thus, according to that practice, a carrier who performs a cabotage operation in Denmark on the first day of a month, then again on the 20th of the same month, infringes Regulation No 1073/2009, even if those operations were the only operations performed by that carrier in Denmark.
19 The Commission emphasises that, in so far as it governs the conditions for the freedom to provide international road passenger services by coach and bus, Regulation No 1073/2009 and, more specifically, the expression ‘on a temporary basis’ in Article 2(7) thereof, must be interpreted in the light of the relevant provisions of the TFEU concerning the freedom to provide services, as interpreted by the Court.
20 Referring inter alia to the case-law set out in the judgments of 30 November 1995, Gebhard (C‑55/94, EU:C:1995:411, paragraph 27), and of 11 December 2003, Schnitzer (C‑215/01, EU:C:2003:662, paragraphs 31 and 32), the Commission submits that neither the duration, nor the frequency, nor the regularity, nor the periodicity, nor the continuity of an activity can be used as the sole criterion to establish if that activity falls under the provisions of the TFEU concerning the freedom to provide services and the rules governing cabotage as set out in Regulation No 1073/2009. It follows that an automatic limitation of cabotage operations to a predetermined period, such as that at issue in the contested administrative practice, is contrary to that regulation.
21 The wording of that regulation - according to which carriers have the right to operate road passenger services by coach and bus ‘on a temporary basis’ in a host Member State - implies that it is necessary to assess on a case-by-case basis whether the activity of the carrier in question took place on a temporary basis. A rule such as that established by the contested administrative practice cannot therefore replace the margin of discretion that necessarily follows from such a case-by-case assessment.
22 The Commission adds that Regulation No 1073/2009 does not expressly authorise Member States to adopt measures of application regarding occasional cabotage operations. Furthermore, although, admittedly, notwithstanding their direct applicability in national legal systems, some provisions of a regulation may necessitate, for their implementation, the adoption of measures of application by the Member States, the contested administrative practice does not fulfil, in the present case, the conditions that must be satisfied in that regard, such as those that follow from case-law, in particular from the judgment of 21 December 2011, Danske Svineproducenter (C‑316/10, EU:C:2011:863, paragraph 41).
23 First, the contested administrative practice does not merely clarify the margin of discretion conferred to Member States, it excessively restricts the right of carriers to perform cabotage operations by coach and bus in Denmark. Secondly, that practice is contrary to the aim of Regulation No 1073/2009, namely to liberalise the performance of certain types of passenger transport by road and to lay down the conditions under which non-resident carriers are authorised to operate national passenger transport services in a Member State in the context of the EU common transport policy. In particular, the Commission emphasises that, given that Article 2(7) of that regulation provides as the only restriction on cabotage operations that they be carried out ‘on a temporary basis’, the Kingdom of Denmark, in establishing a general regime as reflected in the contested administrative practice, does not guarantee the margin of discretion necessary for the abovementioned case-by-case assessment. Thirdly, that practice is disproportionate.
24 In response to those arguments, the Kingdom of Denmark, supported by the Kingdom of Norway, submits, first of all, that the contested administrative practice was introduced in order to address the difficulties, observed by the Danish authorities, in determining, in specific cases, the legality or lack thereof of cabotage operations by coach and bus.
25 Next, Member States are entitled to adopt measures of application to clarify the scope of Article 15(b) of Regulation No 1073/2009. It is not possible, on the basis of the wording, objective or context of that regulation, to determine the exact meaning of the expression ‘on a temporary basis’, referred to in Article 15(b) of that regulation, read in conjunction with Article 2(7) thereof. In those circumstances, Member States are free, in accordance with the case-law of the Court, in particular the judgments of 21 December 2011, Danske Svineproducenter (C‑316/10, EU:C:2011:863), and of 12 April 2018, Commission v Denmark (C‑541/16, EU:C:2018:251), to adopt measures of application in order to clarify the scope of the provisions concerned.
26 In the present case, according to the Kingdom of Denmark, the contested administrative practice has precisely allowed cases in which a foreign transport undertaking operates in Denmark ‘on a temporary basis’ to be identified. That practice is in line with the purpose of Regulation No 1073/2009, which is to ensure the free movement of services in the transport sector while also ensuring that cabotage operations are not carried out in such a way as to constitute a permanent and continuous activity.
27 As regards the fact that that practice is based on a period consisting of a number of days rather than on a number of transport operations, the Kingdom of Denmark submits that the EU legislature, in order to clarify the scope of the terms ‘on a temporary basis’ set out in Regulation No 1072/2009, in relation to freight cabotage operations, also introduced a rule referring to a period of seven days. Freight cabotage operations and cabotage operations by coach and bus are based on the same principles.
28 Lastly, according to the Kingdom of Denmark, the contested administrative practice respects the principle of proportionality. That practice constitutes a measure capable of ensuring that cabotage operations by coach and bus do not take place continuously and to such an extent that, in reality, the non-resident undertaking leaves the territory of the host Member State only very rarely, if ever, with the result that the activity loses its temporary nature.
29 The Kingdom of Norway adds that the contested administrative practice is clear, foreseeable and easy to observe as a matter of law. In addition, neither the wording, nor the context, nor the object, nor the origin of Regulation No 1073/2009 precludes an interpretation allowing a fixed maximum period to be set in order for cabotage operations to be regarded as ‘temporary’. On the contrary, the absence of specific provisions governing the scope of the concept of ‘cabotage operations’ in that regulation leaves a margin of discretion to Member States to adopt national measures of application.
30 The Kingdom of Norway further submits that, without a clear definition of the rules governing the scope of cabotage operations referred to in Article 2(7) and Article 15(b) of that regulation, the effectiveness of that regulation would be impeded since it would not be possible to supervise and ensure compliance with the scope of authorised operations in a consistent and predictable way.
31 In addition, as regards the words ‘on a temporary basis’ in Article 2(7) of that regulation, the Kingdom of Norway doubts whether they must be interpreted in the light of the case-law of the Court relating to the temporary nature of services within the meaning of Articles 56 and 57 TFEU.
32 By its action, the Commission criticises the Kingdom of Denmark for having failed to fulfil its obligations under Article 15(b) of Regulation No 1073/2009 by not authorising cabotage operations by coach and bus in the context of occasional services unless the operations are carried out within a period of seven consecutive days in one calendar month. The Commission argues that, in any event, the contested administrative practice is not in line with the purpose of that regulation and infringes the principle of proportionality.
33 With a view to ruling on the merits of this action, it must, in the first place, be recalled that, according to the Court’s settled case-law, pursuant to Article 288 TFEU and by virtue of the very nature of regulations and of their function in the system of sources of EU law, the provisions of those regulations generally have immediate effect in the national legal systems without it being necessary for the national authorities to adopt measures of application. Nonetheless, some of those provisions may necessitate, for their implementation, the adoption of measures of application by the Member States (see, to that effect, judgments of 11 January 2001, Monte Arcosu, C‑403/98, EU:C:2001:6, paragraph 26; of 12 April 2018, Commission v Denmark, C‑541/16, EU:C:2018:251, paragraph 27; and of 30 May 2024, Expedia, C‑663/22, EU:C:2024:433, paragraph 40).
34 In so far as the implementation of certain provisions of a regulation so require, Member States may adopt measures of application for that regulation provided that they do not obstruct its direct applicability or conceal its nature as an act of EU law, that they specify that they are acting in exercise of a discretion conferred on them under that regulation, and that they adhere to the parameters laid down thereunder (see, to that effect, judgments of 21 December 2011, Danske Svineproducenter, C‑316/10, EU:C:2011:863, paragraph 41; of 12 April 2018, Commission v Denmark, C‑541/16, EU:C:2018:251, paragraph 28; and of 30 May 2024, Expedia, C‑663/22, EU:C:2024:433, paragraph 41).
35 In that regard, it is by referring to the relevant provisions of the regulation concerned, interpreted in the light of its objectives, that it may be determined whether they prohibit, require or allow Member States to adopt certain measures of application and, particularly in the latter case, whether the measure concerned comes within the scope of the discretion that each Member State is recognised as having (see, to that effect, judgments of 21 December 2011, Danske Svineproducenter, C‑316/10, EU:C:2011:863, paragraph 43; of 12 April 2018, Commission v Denmark, C‑541/16, EU:C:2018:251, paragraph 29; and of 30 May 2024, Expedia, C‑663/22, EU:C:2024:433, paragraph 42).
36 In the present case, it should be noted that the relevant provisions of Regulation No 1073/2009, namely Article 15(b) and Article 2(4) and (7) thereof, do not expressly authorise the Member States to adopt national measures of application as regards cabotage operations.
37 However, similarly to what the Court has found with respect to comparable provisions relating to the concept of cabotage operations in the context of freight transport set out in Article 2(6) and Article 8 of Regulation No 1072/2009, it is necessary to ascertain whether Member States have a margin of discretion to adopt national measures of application for Regulation No 1073/2009 even though that regulation does not expressly authorise them to do so (see, by analogy, judgment of 12 April 2018, Commission v Denmark, C‑541/16, EU:C:2018:251, paragraph 34).
38 It is necessary, in particular, to verify, as the Kingdom of Denmark submits, whether the definition of ‘cabotage operations’, as authorised by Regulation No 1073/2009, indeed lacks sufficient detail, with the result that the adoption of national measures of application to clarify the scope of that definition appears justified.
39 In that regard, it should be noted that Article 2(7) of that regulation defines ‘cabotage operations’, inter alia, as ‘national road passenger services for hire and reward carried out on a temporary basis by a carrier in a host Member State’, without, however, providing any clarification as regards that temporal condition.
40 Article 15(b) of that regulation provides that ‘cabotage operations’ are to be authorised for ‘occasional services’. However, even though the concept of ‘occasional services’ is defined in Article 2(4) of that regulation, it must be stated that none of those provisions precisely defines, either in terms of duration or number, the occasional nature of the authorised services.
41 The fact that a provision of a regulation is worded in general or imprecise terms is an indication that national measures of application are required (see, to that effect, judgment of 12 April 2018, Commission v Denmark, C‑541/16, EU:C:2018:251, paragraph 39).
42 Furthermore, although the objective of Regulation No 1073/2009, as stated in recital 3 thereof, is to provide a coherent framework for the international carriage of passengers by coach and bus throughout the European Union, that objective does not preclude a Member State from adopting certain measures of application for that regulation. With regard, in particular, to cabotage operations, recital 10 of that regulation states that, while non-resident carriers are to be allowed to operate national road passenger services, regard should be had to the specific characteristics of each form of service and the performance of such cabotage operations should be subject to EU legislation on the harmonisation of certain social legislation relating to road transport and to national law in force in specified areas in the host Member State.
43 Accordingly, it must be found that Member States are free to adopt national measures of application for Regulation No 1073/2009 and, more specifically, for Article 2(4) and (7) and Article 15(b) of that regulation, in order to clarify the scope of the concept of ‘cabotage operations’ within the meaning of that regulation.
44 In the second place, it should be borne in mind that, when adopting measures to implement a regulation, the Member States are required to comply with the principle of proportionality, which applies to their legislative and regulatory authorities when they apply EU law and requires that measures implemented by means of a provision must be appropriate for attaining the objective pursued by the EU legislation and must not go beyond what is necessary to achieve it (see, to that effect, judgments of 21 December 2011, Danske Svineproducenter, C‑316/10, EU:C:2011:863, paragraphs 50 to 52; of 12 April 2018, Commission v Denmark, C‑541/16, EU:C:2018:251, paragraph 50; and of 30 May 2024, Expedia, C‑663/22, EU:C:2024:433, paragraph 43).
45 As regards, first, the question whether the contested administrative practice is appropriate for attaining the objective of Regulation No 1073/2009, the Kingdom of Denmark maintains that that practice is such as to ensure the free movement of services in the transport sector, while also ensuring that cabotage operations are not carried out in such a way as to constitute a permanent and continuous activity within the host Member State.
46 It should be noted in that regard that it is indeed true that, as stated in recital 4 of Regulation No 1073/2009, the freedom to provide services constitutes a basic principle of the common transport policy and requires that carriers from all Member States be guaranteed access to international transport markets without discrimination on grounds of nationality or place of establishment, in accordance with the general principle stated in Article 14 of that regulation.
47 However, it should also be noted that, both Article 1(4) and Article 2(7) of Regulation No 1073/2009 emphasise the temporary nature of cabotage operations. Recital 10 of that regulation indicates, furthermore, that while non-resident carriers should be allowed to operate national road passenger services, regard should be had to the specific characteristics of each form of service.
48 As the Advocate General notes in paragraphs 44 and 45 of his Opinion, by establishing a time limit for cabotage operations by coach and bus on Danish territory over the course of a calendar month, the contested administrative practice ensures that that activity does not go beyond the scope of a temporary activity and become permanent and continuous. It is therefore capable of ensuring compliance with the requirement that cabotage operations be temporary in nature, and of ensuring that that requirement is foreseeable and observed.
49 It follows that the contested administrative practice is appropriate for attaining the objective pursued by the provisions of Regulation No 1073/2009 relating to cabotage.
50 As regards, secondly, the question whether the contested administrative practice goes beyond what is necessary to attain this objective, it should be noted that that practice limits cabotage operations by coach and bus to a period of seven consecutive days in one calendar month.
51 It follows that, although that practice results in the carrier concerned having to observe a waiting period, the duration of which varies depending on the moment in the calendar month that those cabotage operations were carried out, it is not intended to prohibit the performance of other transport operations by coach and bus, such as international transport operations either to the Member State of establishment or to other Member States, followed, as the case may be, by cabotage operations by coach and bus in those other Member States. Carriers may therefore continue to perform such operations during that waiting period (see, by analogy, judgment of 4 October 2024, Lithuania and Others v Parliament and Council (Mobility package), C‑541/20 to C‑555/20, EU:C:2024:818, paragraphs 832, 833 and 852).
52 It must therefore be held that the waiting period resulting from the contested administrative practice does not go beyond what is necessary to attain the objective pursued by that practice, which is to ensure that cabotage operations by coach and bus are not carried out in such a way as to create a permanent or continuous activity in the same host Member State.
53 In that regard, the Commission claims that that objective could be achieved through less restrictive measures than that waiting period. However, it must be stated that the Commission does not explain what those measures would consist of.
54 According to settled case-law of the Court, in proceedings for failure to fulfil obligations, it is for the Commission to prove the existence of the alleged infringement and to provide the Court with the information necessary for it to assess whether the infringement exists, and the Commission may not rely on any presumption for that purpose (see, to that effect, judgments of 25 May 1982, Commission v Netherlands, 96/81, EU:C:1982:192, paragraph 6, and of 21 December 2023, Commission v Denmark (Maximum parking time), C‑167/22, EU:C:2023:1020, paragraph 47).
55 Consequently, it must be concluded that the contested administrative practice does not infringe the principle of proportionality.
56 In those circumstances, it must be held that the Commission has not established that, by not authorising cabotage operations by coach and bus in the context of occasional services unless the operations are carried out in a period of seven consecutive days in one calendar month, the Kingdom of Denmark has failed to fulfil its obligations under Article 15(b) of Regulation No 1073/2009.
57 The Commission’s action must therefore be dismissed.
58 Under Article 138(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs, if costs have been applied for. Since the Kingdom of Denmark has applied for costs and the Commission has been unsuccessful, the latter must be ordered to pay the costs. 1. Dismisses the action; 2. Orders the European Commission to pay the costs.