Staatsanwaltschaft Köln and Bundesamt für Güterverkehr v BW (C-246/22)

Contents

Judgment of the Court (Seventh Chamber)14 September 2023^note(Reference for a preliminary ruling — Transport operations — Combined transport of goods between Member States — Directive 92/106/EEC — International carriage of goods by road — Regulation (EC) No 1072/2009 — Transport of empty containers before loading or after unloading of goods in the context of combined transport — Non-applicability of the provisions relating to cabotage operations)In Case C‑246/22,REQUEST for a preliminary ruling under Article 267 TFEU from the Amtsgericht Köln (Local Court, Cologne, Germany), made by decision of 25 March 2022, received at the Court on 8 April 2022, in the proceedingsTHE COURT (Seventh Chamber),composed of M.L. Arastey Sahún (Rapporteur), President of the Chamber, F. Biltgen and N. Wahl, Judges,Advocate General: J. Richard de la Tour,Registrar: A. Calot Escobar,having regard to the written procedure,after considering the observations submitted on behalf of:– the Bundesamt für Güterverkehr, by M. Schleifenbaum, Rechtsanwalt,– the European Commission, by P. Messina, G. von Rintelen and G. Wilms, acting as Agents,after hearing the Opinion of the Advocate General at the sitting on 20 April 2023,gives the following

Judgment

1This request for a preliminary ruling concerns the interpretation of Council Directive 92/106/EEC of 7 December 1992 on the establishment of common rules for certain types of combined transport of goods between Member States (OJ 1992 L 368, p. 38), and 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).

2The request has been made in proceedings between BW, the manager of a transport company (‘BW’) and the Bundesamt für Güterverkehr (Federal Office for the Carriage of Goods, Germany; ‘the Federal Office’) concerning the imposition of an administrative fine for infringement of provisions relating to cabotage operations.

Legal context

European Union law

Directive 92/106

3The third and sixth recitals of Directive 92/106 state:‘Whereas the increasing problems relating to road congestion, the environment and road safety call, in the public interest, for the further development of combined transport as an alternative to road transport;…Whereas for combined transport methods to result in a real reduction in road congestion, such liberalisation should relate to road journeys of limited distance’.

4Article 1 of that directive provides:‘This Directive shall apply to combined transport operations, without prejudice to [Council] Regulation (EEC) No 881/92 [of 26 March 1992 on access to the market in the carriage of goods by road within the Community to or from the territory of a Member State or passing across the territory of one or more Member States (OJ 1992 L 95, p. 1)].For the purposes of this Directive, “combined transport” means the transport of goods between Member States where the lorry, trailer, semi-trailer, with or without tractor unit, swap body or container of 20 feet or more uses the road on the initial or final leg of the journey and, on the other leg, rail or inland waterway or maritime services where this section exceeds 100 km as the crow flies and make the initial or final road transport leg of the journey;– between the point where the goods are loaded and the nearest suitable rail loading station for the initial leg, and between the nearest suitable rail unloading station and the point where the goods are unloaded for the final leg, or;– within a radius not exceeding 150 km as the crow flies from the inland waterway port or seaport of loading or unloading.’

5Article 3 of that directive provides:‘In the case of combined transport for hire or reward, a transport document which fulfils at least the requirements laid down in Article 6 of Council Regulation No 11 of 27 June 1960 concerning the abolition of discrimination in transport rates and conditions, in implementation of Article 79(3) of the [EEC] Treaty [(OJ, English Special Edition 1959-1962, p. 60)], shall also specify the rail loading and unloading stations relating to the rail leg, or the inland waterway loading and unloading ports relating to the inland waterway leg, or the maritime loading and unloading ports relating to the maritime section of the journey. …’

6Article 4 of the same directive is worded as follows:‘All hauliers established in a Member State who meet the conditions of access to the occupation and access to the market for transport of goods between Member States shall have the right to carry out, in the context of a combined transport operation between Member States, initial and/or final road haulage legs which form an integral part of the combined transport operation and which may or may not include the crossing of a frontier.’

Regulation No 1072/2009

7Recitals 4, 5, 13, 15 and 16 of Regulation No 1072/2009 state:(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. ……(15) Without prejudice to the provisions of the [FEU] Treaty 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.(16) This Regulation is without prejudice to the provisions concerning the incoming or outgoing carriage of goods by road as one leg of a combined transport journey as laid down in [Directive 92/106]. National journeys by road within a host Member State which are not part of a combined transport operation as laid down in [Directive 92/106] fall within the definition of cabotage operations and should accordingly be subject to the requirements of this Regulation.’

8Article 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] 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.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:…’

9Article 2 of that regulation, entitled ‘Definitions’, provides:‘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);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;…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;…’

10Chapter III of that same regulation, entitled ‘Cabotage’, includes Article 8 thereof, which provides in paragraphs 1 and 2:1. 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.…’

11It follows from Article 18 of Regulation No 1072/2009 that that regulation repealed and replaced, inter alia, Regulation No 881/92.

German law

12Paragraph 13 of the Verordnung über den grenzüberschreitenden Güterverkehr und den Kabotageverkehr (Regulation on the international carriage of goods by road and cabotage operations) of 28 December 2011 (BGBl. 2012 I, p. 42), in the version applicable to the dispute in the main proceedings (‘the GüKGrKabotageV’), provides:‘International combined transport for hire or reward means the transport of goods for which:1. the motor vehicle, trailer, chassis, swap body or container with a length of at least 6 metres make part of the journey by road and another part of the journey by rail or by river or maritime vessel (with a maritime section of more than 100 kilometres as the crow flies),2. the journey takes place partly within the country and partly outside it, and3. the road transport leg of the journey is carried out within the country only between the point where the goods are loaded or unloaded and(a) the nearest suitable rail station or(b) an inland waterway port or seaport within a radius not exceeding 150 kilometres as the crow flies (loading or unloading).’

13Article 15(1) of the GüKGrKabotageV states:‘An entrepreneur whose undertaking is established in a Member State of the European Union or in another State party to the Agreement on the European Economic Area[, of 2 May 1992 (OJ 1994 L 1, p. 3),] may, in the context of a combined transport operation within the meaning of Paragraph 13, carry out loading or unloading operations in the national territory if he or she meets the conditions of access to the occupation and access to the market for transport of goods by road between Member States.’

The dispute in the main proceedings and the question referred for a preliminary ruling

14On 22 January and 6 February 2020, during on-the-spot checks carried out at Contargo Rhein-Neckar GmbH, the Federal Office objected to 60 transport operations carried out on behalf of that company by TIM-Trans Impex SRL, a company established in Romania, between 6 May and 27 May 2019.

15The Federal Office accuses BW, who is the manager of TIM-Trans Impex, of having transported, on at least 57 occasions, empty containers which did not come within the privileged treatment afforded to combined transport under Paragraph 13 et seq. of the GüKGrKabotageV and which consequently constituted cabotage operations. Therefore, according to the Federal Office, BW, in her capacity as managing director, exceeded the limit of three cabotage operations in seven days laid down in Article 8 of Regulation No 1072/2009.

16At a hearing, BW maintained that the transport of empty containers was part of the transport of loaded containers, coming within the privileged treatment afforded to combined transport by Directive 92/106. She stated that her business consisted of transporting full containers, previously taken unladen in a container terminal, to a port in order to be shipped by sea, as well as to transport, after unloading, the empty containers to a container terminal. In BW’s view, it is therefore correct to consider the transport of empty containers not in isolation, but rather as part of the overall transport contract and thus to benefit from the privileged treatment afforded to combined transport.

17By decision of 30 October 2020, the Federal Office issued BW with an administrative fine of EUR 8625 for infringing the rules on cabotage operations. According to the Federal Office, the transport of an empty container before loading or after unloading is subject to the limitations on cabotage laid down in Article 8 of Regulation No 1072/2009.

18Hearing an action brought by BW against that decision, the Amtsgericht Köln (Local Court, Cologne, Germany), which is the referring court, considers that the outcome to the dispute in the main proceedings depends on whether the transport of such an empty container is part of the transport of the loaded container in the context of a combined transport operation or whether it must be regarded as a legally separate transport operation. In the view of the referring court, Regulation No 1072/2009 and Directive 92/106 do not contain any provisions providing a clear answer in that regard.

19According to the referring court, as regards Regulation No 1072/2009, recital 16 does not enable knowing whether or not the transport operations at issue in the main proceedings form part of a combined transport operation.

20As for Directive 92/106, in the view of the referring court, its third recital argues in favour of a broad interpretation of the concept of ‘combined transport’. In contrast, the very detailed rules laid down in Article 1 of that directive militate in favour of a different interpretation, prohibiting the transport of empty containers before loading or after unloading from being regarded as part of a combined transport operation in all these cases. That transport of empty containers could, not only in exceptional cases, but also generally, be carried out over distances well in excess of 100 or 150 kilometres, as well as between Member States. According to the referring court, it is not certain that this would serve the purpose justifying the privileged treatment afforded to combined transport, namely to combat the increasing problems relating in particular to the environment and road congestion in the European Union. Article 3 of that directive also precludes a broad interpretation, since it does not lay down an obligation to provide information relating to the journey of the empty container by road in the transport document.

21In 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 transport of empty containers to or from the loading or the unloading point an inseparable part of the transport of the loaded containers such that the transport of the empty containers benefits from the privileged treatment afforded to the transport of the full containers in so far as those empty containers are exempt from the cabotage rules in the context of combined transport?’

Consideration of the question referred

22By its question, the referring court asks, in essence, whether Article 1 of Directive 92/106 must be interpreted as meaning that the road transport of empty containers between a container terminal and a point where the goods are loaded or unloaded falls within the concept of ‘combined transport’ within the meaning of that article, such that it benefits from the liberalised scheme laid down for initial and/or final road transport legs which form an integral part of a combined transport operation, within the meaning of Article 4 of that directive, and which are exempt from the application of the provisions relating to cabotage laid down by Regulation No 1072/2009.

23In order to answer that question, it should be noted, in the first place, that it follows from the second paragraph of Article 1 of Directive 92/106, read in the light of the sixth recital thereof, that ‘combined transport’ is defined as being the transport of goods between Member States where the lorry, trailer, semi-trailer, with or without tractor unit, swap body or container of 20 feet or more uses the road on the initial or final leg of the journey and, on the other leg, rail or inland waterway or maritime services where this section exceeds 100 km as the crow flies and make the initial or final road transport leg of the journey in such a way as to ensure that it concerns a road journey limited in distance.

24In addition, in accordance with Article 4 of that directive, all hauliers established in a Member State have the right to carry out, in the context of a combined transport operation between Member States, initial and/or final road haulage legs which form an integral part of the combined transport operation and which may or may not include the crossing of a frontier.

25In the second place, under Article 2(3) and (6) of Regulation No 1072/2009, cabotage operations are defined as being national carriage for hire or reward carried out on a temporary basis in a host Member State, in conformity with that regulation, the host Member State being the Member State in which a haulier operates other than the haulier’s Member State of establishment.

26In so far as, according to recital 5 of that regulation, the latter seeks to establish a transitional cabotage regime, the Member States are not required to completely open national markets to non-resident hauliers (judgment of 12 April 2018, Commission v Denmark, C‑541/16, EU:C:2018:251, paragraph 52), namely to hauliers established in another Member State.

27Accordingly, Article 4 of Directive 92/106 carries out a more far-reaching liberalisation of road transport than that resulting from the cabotage regime laid down by Regulation No 1072/2009.

28Article 8 of that regulation lays down limits on cabotage operations. More specifically, as regards the conditions under which hauliers established in another Member State may carry out cabotage operations in the host Member State, it follows from Article 8(2) of that regulation that those operations must be following an international carriage of goods by road from a Member State or a third country to the host Member State. In that latter Member State, the haulier concerned may carry out a maximum of three cabotage operations within seven days from the last unloading in the course of the international carriage.

29In addition, recitals 13 and 15 of Regulation No 1072/2009 emphasise the temporary nature of cabotage and state, in particular, that cabotage operations should not be carried out so as to create a permanent or continuous activity in the host Member State (judgment of 12 April 2018, Commission v Denmark, C‑541/16, EU:C:2018:251, paragraph 52; see also, to that effect, judgment of 8 July 2021, Staatsanwaltschaft Köln and Bundesamt für Güterverkehr, C‑937/19, EU:C:2021:555, paragraph 51).

30In the present case, it is apparent from the order for reference that the business of the transport company at issue in the main proceedings consists of collecting an empty container in a container terminal, transporting it to the loading point of the goods concerned and, once loaded, transporting that container to a sea port in order for it to continue the part of the combined transport which does not take place by road, thereby carrying out an initial road journey, within the meaning of Article 1 of Directive 92/106. Similarly, in the case of a final road journey, within the meaning of that article, that company collects a full container in a sea port, transports that container to the point of unloading of those goods and, once unloaded, brings that empty container to a container terminal.

31The referring court harbours doubts as to whether such transport of empty containers forms part of a combined transport, thus benefiting from the liberalised scheme established by Directive 92/106, or whether, in contrast, it constitutes a separate transport subject to the restrictions on cabotage operations laid down by Regulation No 1072/2009.

32In that regard, as regards the relationship between those two acts of EU law, it should be noted, first, that the first paragraph of Article 1 of Directive 92/106 states that the directive applies to combined transport operations, without prejudice to Regulation No 881/92. That regulation was repealed and replaced by Regulation No 1072/2009.

33Second, according to recital 16 of Regulation No 1072/2009, that regulation applies without prejudice to the provisions concerning the incoming or outgoing carriage of goods by road as one leg of a combined transport journey as laid down in Directive 92/106. Recital 16 states that national journeys by road within a host Member State which are not part of a combined transport operation as laid down in Directive 92/106 fall within the definition of cabotage operations and should accordingly be subject to the requirements of that regulation.

34It follows that, in order to determine whether or not a journey made within a Member State by a transport company established in another Member State falls within the definition of ‘cabotage’, it is necessary to examine whether or not that journey forms part of combined transport as defined in Directive 92/106.

35However, it must be stated that that directive does not specify whether the transport of empty containers which immediately precedes a transport of goods falling within combined transport or immediately follows such a transport is part of a combined transport.

36That said, according to the Court’s settled case-law, in interpreting a provision of EU law, it is necessary to consider not only its wording but also its context and the objectives of the legislation of which it forms part (judgment of 28 October 2022, Generalstaatsanwaltschaft München (Extradition and ne bis in idem), C‑435/22 PPU, EU:C:2022:852, paragraph 67 and the case-law cited).

37Admittedly, it is apparent from the wording of Article 1 of Directive 92/106 that the combined transport operations referred to in that article are ‘transport of goods’ operations. However, that does not rule out the possibility that some of those operations take place with the empty container, provided that the unladen journey is carried out in immediate connection with the transport of goods. As the European Commission states, in essence, in its written observations, the transport of empty containers between a container terminal and the point of loading or unloading of the goods constitutes a journey which is ancillary but essential to the performance of the main transport operation, namely the transport of the goods, of which it forms an integral part.

38That finding is supported by the objectives of Directive 92/106. In that regard, it follows from the third recital of that directive that the increasing problems relating to road congestion, the environment and road safety call, in the public interest, for the further development of combined transport as an alternative to road transport.

39Where the initial or final road leg of a combined transport operation, within the meaning of that directive, is provided, within a Member State, by a haulier established in another Member State, the only interpretation that facilitates the objective of promoting recourse to a combined transport operation is the interpretation that the transport of the empty container before the transport of goods themselves or after such a transport of goods forms part of that combined transport. As the Advocate General observed, in essence, in points 41 and 42 of his Opinion, any other interpretation would require a national haulier to transport that empty container between the point of loading or unloading and the container terminal, which would entail additional financial and administrative burdens and would therefore be liable to render that combined transport operation less competitive.

40The conclusion referred to in paragraph 37 of the present judgment is also supported by Regulation No 1072/2009 which, like Directive 92/106, forms part of the common transport policy, since those two acts of EU law are, moreover, interlinked, as follows from the provisions referred to in paragraphs 32 and 33 of the present judgment.

41Article 1(1) of that regulation provides that the regulation is to apply ‘to the international carriage of goods’, and Article 2(2)(d) of that regulation defines ‘international carriage’ as including an unladen journey in conjunction with certain laden journeys. Similarly, Article 1(5) of that regulation exempts from the requirement of a Community licence and any carriage authorisation a number of types of transport of goods and ‘unladen journeys made in conjunction with such carriage’. Those provisions thus demonstrate the intention of the EU legislature to recognise that certain unladen journeys may be regarded as benefiting from the provisions applicable to the transport of goods, provided that such unladen journeys are carried out in conjunction with a laden transport operation.

42In the light of all the foregoing considerations, the answer to the question referred is that Article 1 of Directive 92/106 must be interpreted as meaning that the road transport of empty containers between a container terminal and a point where the goods are loaded or unloaded falls within the concept of ‘combined transport’ within the meaning of that article, such that it benefits from the liberalised scheme laid down for initial and/or final road transport legs which form an integral part of a combined transport operation, within the meaning of Article 4 of that directive, and which are exempt from the application of the provisions relating to cabotage laid down by Regulation No 1072/2009.

Costs

43Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring 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.

Operative part

On those grounds, the Court (Seventh Chamber) hereby rules: Article 1 of Council Directive 92/106/EEC of 7 December 1992 on the establishment of common rules for certain types of combined transport of goods between Member Statesmust be interpreted as meaning that the road transport of empty containers between a container terminal and a point where the goods are loaded or unloaded falls within the concept of ‘combined transport’ within the meaning of that article, such that it benefits from the liberalised scheme laid down for initial and/or final road transport legs which form an integral part of a combined transport operation, within the meaning of Article 4 of that directive, and which are exempt from the application of the provisions relating to cabotage laid down by 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.