European Commission v Kingdom of Denmark (C-167/22)

Contents

Judgment of the Court (Second Chamber)21 December 2023^note(Failure of a Member State to fulfil obligations — International road haulage — Regulation (EC) No 1072/2009 — Articles 8 and 9 — Regulation (EC) No 561/2006 — Rest periods — National legislation introducing a maximum parking time at public rest areas of 25 hours along the motorway network of a Member State — Restriction on the freedom to provide road transport services — Burden of proof)In Case C‑167/22,ACTION for failure to fulfil obligations under Article 258 TFEU, brought on 4 March 2022,European Commission, represented initially by L. Grønfeldt and P. Messina, subsequently by L. Grønfeldt, P. Messina and G. Wilms, and lastly by P. Messina, acting as Agents,supported by:Republic of Poland, represented by B. Majczyna, acting as Agent,vKingdom of Denmark, represented initially by J. Farver Kronborg, V. Pasternak Jørgensen and M. Søndahl Wolff, and subsequently by J. Farver Kronborg, C. Maertens and M. Jespersen, acting as Agents,THE COURT (Second Chamber),composed of A. Prechal, President of the Chamber, F. Biltgen, N. Wahl, J. Passer (Rapporteur) and M.L. Arastey Sahún, Judges,Advocate General: A. Rantos,Registrar: C. Strömholm, Administrator,having regard to the written procedure and further to the hearing on 25 May 2023,after hearing the Opinion of the Advocate General at the sitting on 7 September 2023,gives the following

Judgment

1By its application, the European Commission asks the Court to declare that, by laying down a rule limiting to 25 hours the maximum parking time at public rest areas along the Danish motorway network (‘the 25-hour rule’), the Kingdom of Denmark has failed to fulfil its obligations under the provisions on the freedom to provide transport services laid down in Articles 1, 8 and 9 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).

Legal context

European Union law

Regulation No 1072/2009

2Recitals 2, 4, 5 and 13 of Regulation No 1072/2009 are worded as follows:(2) The establishment of a common transport policy entails, inter alia, laying down common rules applicable to access to the market in the international carriage of goods by road within the territory of the Community, as well as laying down the conditions under which non-resident hauliers may operate transport services within a Member State. Those rules must be laid down in such a way as to contribute to the smooth operation of the internal transport market.…(4) The establishment of a common transport policy implies the removal of all restrictions against the person providing transport services on the grounds of nationality or the fact that he is established in a different Member State from the one in which the services are to be provided.(5) In order to achieve this smoothly and flexibly, provision should be made for a transitional cabotage regime as long as harmonisation of the road haulage market has not yet been completed.…(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. When such cabotage operations are performed, they should be subject to Community legislation such as Regulation (EC) No 561/2006 of the European Parliament and of the Council of 15 March 2006 on the harmonisation of certain social legislation relating to road transport [and amending Council Regulations (EEC) No 3821/85 and (EC) No 2135/98 and repealing Council Regulation (EEC) No 3820/85 (OJ 2006 L 102, p. 1)], and to national law in force in specified areas in the host Member State.’

3Article 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 Community.…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.…’

4Article 2 of that regulation, entitled ‘Definitions’, is worded as follows:‘For the purposes of this Regulation:…2. “international carriage” means:(a) a laden journey undertaken by a vehicle the point of departure and the point of arrival of which are in two different Member States, with or without transit through one or more Member States or third countries;(b) a laden journey undertaken by a vehicle from a Member State to a third country or vice versa, with or without transit through one or more Member States or third countries;(c) a laden journey undertaken by a vehicle between third countries, with transit through the territory of one or more Member States; or(d) an unladen journey in conjunction with the carriage referred to in points (a), (b) and (c);…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;…’

5Chapter III of the same regulation, entitled ‘Cabotage’, comprises Articles 8 to 10.

6Article 8 of Regulation No 1072/2009, 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.…’

7Article 9 of that regulation, entitled ‘Rules applicable to cabotage operations’, states:1.The performance of cabotage operations shall be subject, save as otherwise provided in Community legislation, to the laws, regulations and administrative provisions in force in the host Member State with regard to the following:(a) the conditions governing the transport contract;(b) the weights and dimensions of road vehicles;(c) the requirements relating to the carriage of certain categories of goods, in particular dangerous goods, perishable foodstuffs and live animals;(d) the driving time and rest periods;(e) the value added tax (VAT) on transport services.…2. The laws, regulations and administrative provisions referred to in paragraph 1 shall be applied to non-resident hauliers under the same conditions as those imposed on hauliers established in the host Member State, so as to prevent any discrimination on grounds of nationality or place of establishment.’

Regulation No 561/2006

8Article 2(1) of Regulation No 561/2006 provides:‘This Regulation shall apply to the carriage by road:(a) of goods where the maximum permissible mass of the vehicle, including any trailer, or semi-trailer, exceeds 3.5 tonnes, ……’

9Article 4 of that regulation is worded as follows:‘For the purposes of this Regulation the following definitions shall apply:…(f) “rest” means any uninterrupted period during which a driver may freely dispose of his time;(g) “daily rest period” means the daily period during which a driver may freely dispose of his time and covers a “regular daily rest period” and a “reduced daily rest period”:– “regular daily rest period” means any rest period of at least 11 hours. Alternatively, this regular daily rest period may be taken in two periods, the first of which must be an uninterrupted period of at least [three] hours and the second an uninterrupted period of at least nine hours,– “reduced daily rest period” means any rest period of at least [9] hours but less than 11 hours;(h) “weekly rest period” means the weekly period during which a driver may freely dispose of his time and covers a “regular weekly rest period” and a “reduced weekly rest period”:– “regular weekly rest period” means any period of rest of at least 45 hours,– “reduced weekly rest period” means any period of rest of less than 45 hours, which may, subject to the conditions laid down in Article 8(6), be shortened to a minimum of 24 consecutive hours;…’

10Chapter II of that regulation, entitled ‘Crews, driving times, breaks and rest periods’, includes Articles 5 to 9.

11Article 6 of Regulation No 561/2006 provides:1. The daily driving time shall not exceed nine hours.However, the daily driving time may be extended to at most 10 hours not more than twice during the week.2. The weekly driving time shall not exceed 56 hours and shall not result in the maximum weekly working time laid down in Directive 2002/15/EC [of the European Parliament and of the Council of 11 March 2002 on the organisation of the working time of persons performing mobile road transport activities (OJ 2002 L 80, p. 35)] being exceeded.3. The total accumulated driving time during any two consecutive weeks shall not exceed 90 hours.…’

12Article 8 of that regulation provides:1. A driver shall take daily and weekly rest periods.2. Within each period of 24 hours after the end of the previous daily rest period or weekly rest period a driver shall have taken a new daily rest period.If the portion of the daily rest period which falls within that [24-hour] period is at least [9] hours but less than 11 hours, then the daily rest period in question shall be regarded as a reduced daily rest period.…6.In any two consecutive weeks a driver shall take at least:– two regular weekly rest periods, or– one regular weekly rest period and one reduced weekly rest period of at least 24 hours. However, the reduction shall be compensated by an equivalent period of rest taken en bloc before the end of the third week following the week in question.A weekly rest period shall start no later than at the end of six 24-hour periods from the end of the previous weekly rest period.7. Any rest taken as compensation for a reduced weekly rest period shall be attached to another rest period of at least nine hours.8. Where a driver chooses to do this, daily rest periods and reduced weekly rest periods away from the base may be taken in a vehicle, as long as it has suitable sleeping facilities for each driver and the vehicle is stationary.…’

13Under Article 10(2) of that regulation, in Chapter III of that regulation, entitled ‘Liability of transport undertakings’:‘A transport undertaking shall organise the work of drivers referred to in paragraph 1 in such a way that the drivers are able to comply with … Chapter II of this Regulation. The transport undertaking shall properly instruct the driver and shall make regular checks to ensure that … Chapter II of this Regulation [is] complied with.’

Danish law

14The 25-hour rule is not expressly laid down in Danish legislation or administrative provisions. It was introduced following the agreement between the Danish Government and the Danish People’s Party concerning the 2018 Finance Law and implemented by the Road Authority pursuant to Paragraph 92(1) of the færdselsloven (Highway Code). It entered into force on 1 July 2018.

Pre-litigation procedure

15After sending the Kingdom of Denmark a request for information on the 25-hour rule, the Commission decided to initiate infringement proceedings for failure to fulfil the obligation to ensure freedom to provide transport services as guaranteed by Regulation No 1072/2009. In a letter of formal notice sent to the Kingdom of Denmark on 20 July 2018 on the basis of Article 258 TFEU, the Commission argued, in essence, that, although the 25-hour rule does not introduce direct discrimination, it nevertheless constitutes a restriction on the freedom to provide transport services since it does not affect Danish hauliers and non-resident road hauliers in the same way.

16The Kingdom of Denmark replied by letter of 20 September 2018, denying any infringement in that regard. On 19 February 2019, it provided the additional information requested in the meantime by the Commission.

17Taking the view that the arguments put forward by the Kingdom of Denmark in response to the letter of formal notice and the information and explanations provided by that Member State in its subsequent correspondence were unconvincing, the Commission, by letter of 15 May 2020, sent a reasoned opinion to the Kingdom of Denmark, in accordance with Article 258 TFEU, for failure to fulfil its obligations under the rules on the freedom to provide transport services laid down in Articles 1, 8 and 9 of Regulation No 1072/2009.

18In that reasoned opinion, the Commission explained that, in its view, the 25-hour rule constitutes a restriction which impedes the freedom to provide transport services, since it affects non-resident hauliers more severely than Danish hauliers. Moreover, that restriction cannot be justified by the objectives put forward by the Kingdom of Denmark, since the 25-hour rule is not appropriate for attaining those objectives and/or goes beyond what is necessary to attain them.

19In its reply of 14 September 2020 to the reasoned opinion, the Kingdom of Denmark maintained that the 25-hour rule complies with EU law. That rule does not constitute a restriction on the freedom to provide transport services, since it applies to both Danish and non-resident hauliers and the latter have other parking options in Denmark.

20In any event, the 25-hour rule is justified in the light of legitimate objectives, namely to ensure greater effective parking capacity to enable drivers to take their breaks and reduced rest periods, to end illegal parking on motorway lay-bys that poses traffic hazards, to ensure the proper functioning of rest areas by combating the negative effects caused by long-term parking and to guarantee drivers a favourable environment and good working conditions, since Danish motorway rest areas are not suitable for long-term stays.

21Still unconvinced by the arguments put forward by the Danish Government in response to the reasoned opinion, the Commission decided to bring the present action.

22By decision of the President of the Court of 28 July 2022, the Republic of Poland was granted leave to intervene in support of the Commission.

The action

Admissibility of the action

Arguments of the parties

23According to the Kingdom of Denmark, the action is inadmissible. First, the action does not satisfy the requirements of coherence, clarity and precision required under Article 120(c) and (d) of the Rules of Procedure of the Court of Justice by reason of the very general references made to Articles 1, 8 and 9 of Regulation No 1072/2009, which themselves have a very wide scope, without identifying the precise rules contained in those provisions which have allegedly been infringed in the present case. Second, there is no correspondence between the form of order sought and the pleas in law relied on in the application, in that in the latter, the Commission refers in several places to Articles 1, 4, 6 and 8 of Regulation No 561/2006, even though those articles are not mentioned in the form of order sought.

24The Commission disputes the validity of those arguments.

Findings of the Court

25It is apparent from settled case-law in relation to Article 120(c) of the Rules of Procedure that an application initiating proceedings must state clearly and precisely the subject matter of the proceedings and set out a summary of the pleas in law relied on, so as to enable the defendant to prepare its defence and the Court to rule on the application. It follows that the essential points of fact and law on which such an action is based must be indicated coherently and intelligibly in the application itself and that the forms of order sought must be set out unambiguously so that the Court does not rule ultra petita or fail to rule on one of the heads of claim (judgment of 28 April 2022, Commission v Bulgaria (Updating of marine strategies), C‑510/20, EU:C:2022:324, paragraph 16 and the case-law cited).

26The Court has also held that, where an action is brought under Article 258 TFEU, the application must set out the complaints coherently and precisely, so that the Member State and the Court can know exactly the scope of the alleged infringement of EU law, a condition that must be satisfied if the Member State is to be able to present an effective defence and the Court to determine whether there has been a breach of obligations, as alleged (judgment of 28 April 2022, Commission v Bulgaria (Updating of marine strategies), C‑510/20, EU:C:2022:324, paragraph 17 and the case-law cited).

27In particular, the Commission’s action must contain a coherent and detailed statement of the reasons which have led it to conclude that the Member State in question has failed to fulfil one of its obligations under the Treaties (judgment of 28 April 2022, Commission v Bulgaria (Updating of marine strategies), C‑510/20, EU:C:2022:324, paragraph 18 and the case-law cited).

28In the present case, in the first place, it is clear from the application initiating proceedings that, according to the Commission, by introducing the 25-hour rule, the Kingdom of Denmark has failed to fulfil its obligations under the rules on the freedom to provide transport services laid down in Articles 1, 8 and 9 of Regulation No 1072/2009, since those articles must, according to the Commission, be interpreted in the light of the general principle of freedom to provide services set out in Article 56 TFEU and that rule constitutes, within the meaning of the latter provision, an obstacle to the right to the freedom to provide goods transport services established by the abovementioned articles of that regulation.

29Furthermore, in so far as the Kingdom of Denmark criticises the Commission for not having further specified the relevant parts of those articles which had allegedly been infringed, it is sufficient to point out that such clarifications were not necessary in order to enable the Kingdom of Denmark, first, to understand the reasons, which have just been recalled, why the Commission considered that it had failed to fulfil its obligations under EU law and, second, to submit its arguments in defence effectively in that regard.

30In the second place, it follows unequivocally from the wording of the application that the Commission does not maintain that the 25-hour rule is contrary to Regulation No 561/2006, but considers that that rule has introduced an obstacle to the freedom to provide transport services in Denmark because, inter alia, it makes it much more difficult for a haulier established in another Member State to comply with the driving times and rest periods laid down by that regulation than for a haulier established in Denmark. In those circumstances, the fact of referring, in the application, in support of the complaint alleging failure to comply with the rules on the freedom to provide transport services laid down in Articles 1, 8 and 9 of Regulation No 1072/2009, to various provisions of Regulation No 561/2006, without citing those provisions in the form of order sought in the application, is in no way contrary to the requirements laid down in Article 120 of the Rules of Procedure, as interpreted by the Court in its case-law.

31It is apparent from the foregoing considerations that the present action is admissible.

Substance

Arguments of the parties

32The Commission, supported by the Polish Government, states that the 25-hour rule constitutes an obstacle to the freedom to provide road transport services as provided for by Regulation No 1072/2009 and, in particular, Articles 1, 8 and 9 thereof. First, that rule affects the ability of drivers to comply with the provisions on the reduced and regular weekly rest periods and the total driving time laid down in Articles 4, 6 and 8 of Regulation No 561/2006. In that regard, the presence of parking areas in the Member States, whether free of charge or subject to a fee, whether public or not, is necessary for the exercise of the rights provided for by Regulation No 1072/2009.

33Second, even though the 25-hour rule applies both to hauliers established in Denmark and to non-resident hauliers, it does not affect them in the same way, since hauliers with an operating centre in Denmark can make it relatively easy for their drivers to drive their lorries there. That rule has limited the existing parking opportunities to such a point that, in view of the obligation to comply with the abovementioned provisions on rest and driving periods, it is an obstacle to the supply of transport services in Denmark by non-resident hauliers. In that regard, the alternative parking capacities referred to by the Kingdom of Denmark are inadequate because they do not cover all of the Danish territory and are even too concentrated close to its borders.

34The obstacle introduced by the 25-hour rule, the stated objective of which was, after all, to prevent ‘more specifically the long-term parking of foreign lorries at Danish rest areas’, as is apparent from the terms of the agreement referred to in paragraph 14 above, is not, moreover, justified by any of the overriding reasons of public interest relied on by the Kingdom of Denmark.

35That Member State disputes the arguments put forward by the Commission.

36In its view, since neither Regulation No 1072/2009 nor Regulation No 561/2006 contains provisions regulating parking in the various Member States and the power to lay down rules on the duration of parking at the rest areas of the Member States therefore lies with those Member States and not with the European Union, there is no general prohibition on introducing restrictions such as parking restrictions, provided that they are non-discriminatory in accordance with what is laid down in recital 4 of Regulation No 1072/2009. Article 56 TFEU is not applicable in the present case, which falls within the scope of Article 58 TFEU on the freedom to provide services concerning transport.

37Furthermore, as regards the need for parking areas – the need for which, in the context of the exercise of the rights provided for by those regulations, is not disputed by the Kingdom of Denmark – it is satisfied in Denmark, having regard in particular to the number of non-public parking spaces available for long rest periods of more than 25 hours, such spaces being, moreover, accessible either free of charge or at a very low cost, usually without limitation as to parking time, and spread primarily along the roads most widely used by lorry traffic, as is apparent from the documentation produced by that Member State. The main purpose of public motorway rest areas is to enable road users to rest, relieve themselves and have something to eat without being designed for prolonged stoppages involving sufficient access to accommodation and facilities in terms of hygiene, catering and leisure.

38In any event, the 25-hour rule is appropriate for attaining the legitimate objectives pursued by that Member State, in particular that of promoting and improving road safety and drivers’ working conditions, and does not go beyond what is necessary and appropriate for attaining those objectives.

Findings of the Court

39It should be recalled at the outset that services which, like those at issue in the present case, are classified as ‘service[s] in the field of transport’ are not covered by Article 56 TFEU on the freedom to provide services in general but by Article 58(1) TFEU, a specific provision according to which ‘freedom to provide services in the field of transport shall be governed by the provisions of the Title relating to transport’, namely Title VI of Part Three of the FEU Treaty, which comprises Articles 90 to 100 TFEU (judgment of 20 December 2017, Asociación Profesional Elite Taxi, C‑434/15, EU:C:2017:981, paragraph 44 and the case-law cited). Thus, a service in the field of transport within the meaning of Article 58(1) TFEU is excluded from the scope of Article 56 TFEU (judgment of 8 December 2020, Poland v Parliament and Council, C‑626/18, EU:C:2020:1000, paragraph 145 and the case-law cited).

40Admittedly, that does not prevent an EU act adopted on the basis of those provisions of the Treaties relating to transport from being able, to the extent that it determines, to make the principle of freedom to provide services as enshrined in Article 56 TFEU applicable to a transport sector (see, to that effect, judgment of 5 October 1994, Commission v France, C‑381/93, EU:C:1994:370, paragraphs 12 and 13).

41In the present case, it should be noted that Regulation No 1072/2009, which was adopted on the basis of Article 71 EC (now Article 91 TFEU), applies, in accordance with Article 1(1) and (4) thereof, read in conjunction with Article 2(6) thereof, 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, namely, national carriage for hire or reward carried out on a temporary basis by a non-resident haulier. It follows from recitals 2 and 4 of that regulation that it is one of the European Union acts which seek to establish a common transport policy and therefore entail ‘the removal of all restrictions against the person providing transport services on the grounds of nationality or the fact that he is established in a different Member State from the one in which the services are to be provided’. In accordance with that objective, in particular, Articles 8 and 9 of Regulation No 1072/2009 lay down the conditions under which, once the goods carried in the course of an incoming international carriage have been delivered, hauliers of those goods are authorised to carry out those cabotage operations.

42In that latter regard, Article 9(2) of Regulation No 1072/2009 states, inter alia, that the national provisions referred to in paragraph 1 of that article are to be applied to non-resident hauliers under the same conditions as those imposed on hauliers established in the host Member State, so as to prevent any discrimination on grounds of nationality or place of establishment.

43As regards the Kingdom of Denmark’s argument that competence to lay down rules regarding parking times at public rest areas lies with the Member States and not with the European Union, it should be recalled that, according to settled case-law, the Member States must, when exercising their powers, comply with EU law, and therefore, in the present case, in particular, with the relevant provisions of Regulation No 1072/2009 (see, to that effect, judgment of 22 November 2018, Vorarlberger Landes- und Hypothekenbank, C‑625/17, EU:C:2018:939, paragraph 27 and the case-law cited).

44In that context, the Member States must also take account of the rules on driving times, breaks and rest periods which, under Regulation No 561/2006 must be observed by drivers engaged in the carriage of goods with vehicles with a maximum permissible mass exceeding 3.5 tonnes, to which, moreover, express reference is made in recital 13 and Article 9(1)(d) of Regulation No 1072/2009. The possibility for those drivers to comply with the rules relating to breaks and rest periods laid down by that regulation may depend, inter alia, on the availability of rest areas on motorways.

45In the present case, it must be held that, by its very nature, a rule fixing at 25 hours the maximum parking time at public rest areas along the motorway network of a Member State has the effect of making those rest areas unavailable for the purposes of regular weekly rest periods (of at least 45 hours) and reduced weekly rest periods (less than 45 hours, which may be reduced, in compliance with the conditions laid down in Article 8(6) of Regulation No 561/2006, to a minimum of 24 consecutive hours), with the sole exception of reduced weekly rest periods of between 24 and 25 hours.

46It follows that such a rule is, a priori, capable of having a specific effect on the exercise, by non-resident hauliers, of transport rights, in particular cabotage, conferred on them by Regulation No 1072/2009 and of affecting them more than hauliers with an operating centre in Denmark and who can, therefore, make it easier for their drivers to drive their lorries there.

47In that regard, it should, however, be recalled that, according to settled case-law, 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 determine whether there has indeed been an infringement, and the Commission may not rely on any presumption for that purpose (judgment of 24 June 2021, Commission v Spain (Deterioration of the Doñana natural area), C‑559/19, EU:C:2021:512, paragraph 46 and the case-law cited).

48In the present case, the Kingdom of Denmark produced, in the pre-litigation procedure and as an annex to its defence, data relating to the number of parking spaces for vehicles with a maximum permissible mass exceeding 3.5 tonnes. Subsequently, at the hearing, that Member State provided, without being contradicted on that point by the Commission, clarifications on those data, in accordance with which, in addition to the 1400 public parking spaces covered by the 25-hour rule, there are on the Danish territory, for those vehicles, at least 855 parking spaces without hourly limits provided by the private sector.

49However, in its application, the Commission merely maintained, in that regard, that there is inadequate alternative parking capacity spread over the Danish motorway network, given that, over the whole of that network, according to the data available to it at that stage of the procedure, there were, at most, 717 places, 625 of which are located at the Danish border or near it, some of which places are also subject to a fee.

50Furthermore, as regards the data produced by the Kingdom of Denmark in the annex to its defence and indicating, before being revised downwards by that Member State at the hearing, the existence of at least 1047 parking spaces for long rest periods, the Commission merely observed, in its reply, that those data did not alter its claims in the present case.

51By contrast, the Commission has not produced any objective data which would make it possible to establish that the alternative parking capacities provided by the private sector are, in the light of the volume of relevant traffic, inadequate to accommodate vehicles with a maximum permissible mass exceeding 3.5 tonnes for rest periods exceeding 25 hours. Without such objective data, it cannot be established, except on the basis of presumptions, that the 25-hour rule is in fact such as to impede cabotage activities carried out by providers established in other Member States to the detriment of those providers in relation to transport providers in the host Member State.

52That assessment is not called into question by the fact that it is apparent from the file submitted in the present case that, at the time the 25-hour rule was introduced there were capacity problems at the public rest areas of the Danish motorway network and that, in its reply to the letter of formal notice, the Kingdom of Denmark itself identified ‘the current challenges facing Denmark in terms of parking capacity’ as one of the main reasons for the introduction of that rule.

53In itself, such a general recognition as to the existence of problems of parking capacity in public rest areas does not lead to the conclusion that, in the present case, by adopting the 25-hour rule the Kingdom of Denmark infringed Regulation No 1072/2009. In particular, the mere fact that, as has been pointed out in paragraph 48 of the present judgment, the parking capacities provided by the private sector are lower than those available at public rest areas does not in itself prove that the parking capacity provided by the private sector is inadequate to accommodate vehicles with a maximum permissible mass exceeding 3.5 tonnes for rest periods exceeding 25 hours, since, within that hourly limit, the parking of those vehicles remains permitted at public rest areas. Therefore, in the absence of objective data in that regard, it has not been established that the parking capacities provided by the private sector are, in the light of the volume of relevant traffic, inadequate to take longer rest periods.

54As regards the fact, noted by the Commission, that a majority of parking spaces without hourly limits are located at or close to the Danish border, it must be stated, in the present case, that it follows from the data produced by the Kingdom of Denmark in an annex to its defence, first, that some 230 spaces out of the 855 parking spaces available for rest periods exceeding 25 hours are located well within Danish territory and, second, that the other locations are spread across different border areas – sometimes land and sometimes maritime areas – of that territory, very far removed from each other. However, in the absence of objective data in that regard produced by the Commission, the latter does not establish either that the capacity of those spaces is inadequate for the purposes of complying with those rest periods, or that their location is such as to significantly impede the activities, in particular cabotage operations carried out by service providers established in other Member States, to the detriment of those providers in relation to transport providers in the host Member State, which are, after all, also potentially required to redirect their vehicles to the places where their operating centre is located.

55In its reply to a question put by the Court at the hearing, the Commission acknowledged, moreover, that it was not in a position to produce a precise figure of the number of useful spaces or, in particular, to inform the Court of the way in which those spaces should be allocated geographically, in order for it to be considered that there is no longer any obstacle to the activities of hauliers established in other Member States. It added that, in its opinion, the parking capacity provided by the private sector, relied on by the Kingdom of Denmark, is not relevant, since that necessary alternative capacity would have to reach a very high threshold for the 25-hour rule to no longer represent an additional burden for foreign operators compared with the costs borne by Danish operators.

56In so doing, the Commission itself acknowledged that it had relied, in the present case, on presumptions.

57Finally, as regards the fact that part of that private alternative capacity in Denmark is subject to a fee, it must be pointed out that according to the data produced by the Kingdom of Denmark, the amounts payable for the use of paid parking spaces provided by the private sector do not appear excessive and that such costs are, where applicable, also liable to affect the transport services provided by national hauliers, for example in order to avoid the costs of having to redirect their vehicles to the places where their operating centre is located. Furthermore, it cannot be ruled out, in the absence of relevant objective data supplied by the Commission, that the parking spaces not subject to a fee provided by the private sector are, in any event, sufficient to accommodate vehicles with a maximum permissible mass exceeding 3.5 tonnes for rest periods exceeding 25 hours.

58It follows from all the foregoing considerations that the Commission has not proved to the requisite legal standard its assertions referred to in paragraph 33 of the present judgment according to which the 25-hour rule, in the present case, limited existing parking opportunities to such an extent that, in view of the obligation to comply with the abovementioned provisions relating to rest and driving periods, there would be an obstacle to the freedom to provide transport services falling within the scope of Regulation No 1072/2009. The Commission’s action must therefore be dismissed.

Costs

59Under Article 138(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Kingdom of Denmark has applied for costs and the Commission has been unsuccessful, the latter must be ordered to pay the costs.

60Pursuant to Article 140(1) of the Rules of Procedure, under which Member States which have intervened in the proceedings are to bear their own costs, the Republic of Poland is to bear its own costs.

Operative part

On those grounds, the Court (Second Chamber) hereby:

1.Dismisses the action;

2.Orders the European Commission, in addition to bearing its own costs, to pay those incurred by the Kingdom of Denmark;

3.Orders the Republic of Poland to bear its own costs.