Case C‑167/22

European Commission

v

Kingdom of Denmark

Judgment of the Court (Second Chamber) of 21 December 2023

(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)

1. Freedom to provide services – Provisions of the Treaty – Scope – Services in the field of transport within the meaning of Article 58(1) TFEU – EU act making applicable to a transport sector the principle of freedom to provide services as enshrined in Article 56 TFEU – Scope

   (Arts 56 and 58(1) TFEU; European Parliament and Council Regulation No 1072/2009, recitals 2 and 4 and Arts 1(1) and (4), and 2(6))

   (see paragraphs 39-42)

2. Action for failure to fulfil obligations – Proof of the failure to fulfil obligations – Burden of proof on the Commission – Production of evidence showing failure – Presumptions – Not permissible –National legislation introducing a limit of 25 hours of parking time along the motorway network of the Member State concerned – Compliance with the rest periods provided for in Regulation No 561/2006 –Action to establish an obstacle to the freedom to provide road transport services falling within the scope of Regulation No 1072/2009 – Action based on presumptions – Lack of evidence – Dismissal of the action

   (Art. 258 TFEU; European Parliament and Council Regulations No 561/2006, Art. 2(1)(a), Arts 4, 6 and 8, and No 1072/2009, Arts 8 and 9)

   (see paragraphs 43-57)

Résumé

Regulation No 1072/2009 on common rules for access to the international road haulage market ( 1 ) aims to establish a common transport policy leading to the removal of all restrictions against the person providing transport services on the grounds of nationality or the fact that he or she is established in a different Member State from the one in which the services are to be provided.

On 1 July 2018, the Kingdom of Denmark laid down a rule limiting the maximum parking time at public rest areas along its motorway network to 25 hours (‘the 25-hour rule’). ( 2 )

After sending the Kingdom of Denmark a request for information, the European Commission initiated infringement proceedings on the basis of Article 258 TFEU for failure to fulfil the obligation to ensure the freedom to provide transport services as laid down in Regulation No 1072/2009. It argued, in essence, that, although the 25-hour rule does not introduce direct discrimination, it constitutes a restriction on the freedom to provide transport services since it does not affect road hauliers established in Denmark in the same way as non-resident road hauliers. The Kingdom of Denmark denied any infringement in that regard and provided the additional information requested by the Commission. Taking the view that that reply was unconvincing, the Commission sent a reasoned opinion to that Member State, to which the latter responded, maintaining its position concerning the compliance of the 25-hour rule with EU law. Still unconvinced by the arguments put forward by the Danish Government, the Commission brought an action for failure to fulfil obligations before the Court of Justice, seeking a declaration that, by laying down the 25-hour rule, the Kingdom of Denmark had failed to fulfil its obligations relating to the freedom to provide transport services laid down in Articles 1, 8 and 9 of Regulation No 1072/2009. According to the Commission, that rule affects non-resident hauliers more and the resulting obstacle to the freedom to provide services is not justified by any of the overriding reasons of public interest relied on by that Member State.

By its judgment, the Court dismisses the Commission’s action. It points out, in the light of its settled case-law, that, in an action for failure to fulfil obligations, the burden of proof relating to establishing the existence of such a failure is borne by the Commission, and it may not rely on any presumption. The Court considers that, in the present case, the Commission has not adduced, to the requisite legal standard, proof of its allegations.

Findings of the Court

After rejecting the plea of inadmissibility raised by the Kingdom of Denmark, the Court examines the substance of the case and points out, first of all, that the services which are classified as ‘service[s] in the field of transport’ fall within the scope of Article 58(1) TFEU, a specific provision which excludes them from the scope of Article 56 TFEU relating to the freedom to provide services in general. ( 3 ) That does not prevent an EU act adopted on the basis of those provisions of the Treaties relating to transport ( 4 ) 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.

In the present case, the Court notes that Regulation No 1072/2009 is to apply 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 the national carriage of goods by road for hire or reward undertaken on a temporary basis by a non-resident haulier. ( 5 ) In that 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 in the same way to non-resident hauliers as to those established in the host Member State, so as to prevent any discrimination on grounds of nationality or of place of establishment.

Next, as regards the Kingdom of Denmark’s argument that competence to lay down rules on the duration of parking at public rest areas lies with the Member States, the Court recalls that, according to settled case-law, the Member States must exercise their powers in compliance with EU law, and therefore, in the present case, with the relevant provisions of Regulation No 1072/2009. In that context, they must also take account of the rules on driving times, breaks and rest periods which, under Regulation No 561/2006, ( 6 ) must be observed by drivers engaged in the carriage of goods with vehicles with a maximum permissible mass exceeding 3.5 tonnes ( 7 ) (‘the vehicles concerned’). Compliance with those rest periods may depend, inter alia, on the availability of rest areas on motorways. In that regard, the Court finds that, by its very nature, a rule such as that of 25 hours has the effect of making those rest areas unavailable in order to comply with the various rest periods provided for in Regulation No 561/2006. ( 8 ) It 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, and of affecting them more than hauliers established in Denmark.

In that regard, the Court points out, however, that, according to settled case-law, in proceedings for failure to fulfil obligations it is for the Commission to establish the existence of the alleged infringement and to provide the Court with the information necessary for it to assess whether the infringement exists, and that the Commission may not rely on any presumption. In the present case, the Kingdom of Denmark produced, in the pre-litigation procedure and in its defence, data on the number of parking spaces available for the vehicles concerned, in particular those provided by the private sector, and provided clarification on those data at the hearing. However, in its application, the Commission merely relied on a lack of adequate alternative parking capacity spread over the Danish motorway network and, moreover, in its reply, merely observed that the data produced in defence by the Kingdom of Denmark did not alter its conclusions in that regard.

By contrast, the Commission has not produced any objective data establishing the inadequacy of alternative parking capacities for the purposes of compliance with rest periods exceeding 25 hours. Without such 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 non-resident service providers to the detriment of the latter compared to those established in Denmark. Thus, the mere existence of capacity problems on the public rest areas of the Danish motorway network and the identification by the Member State concerned of the challenges to be addressed in terms of parking capacity, which was one of the main reasons for the introduction of the 25-hour rule, do not support the conclusion that it infringes Regulation No 1072/2009. The same is true of the fact that the parking capacities provided by the private sector are lower than those of public rest areas, since, within that 25-hour limit, the parking of those vehicles remains permitted at such places.

Nor, lastly, has the Commission, in the present case, objectively established that the location of the alternative places provided by the private sector and their distribution across the territory or the fact that some of those places are subject to a fee would be such as to impede transport activities to the detriment of non-resident service providers, but merely relied in that regard on presumptions.

Accordingly, the Court considers that the Commission has not adduced, to the requisite legal standard, proof of its assertions that the 25-hour rule constitutes an obstacle to the freedom to provide transport services falling within the scope of Regulation No 1072/2009. Consequently, it dismisses the Commission’s action for failure to fulfil obligations.

( 1 ) 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 ) That rule was implemented by the road authority pursuant to Paragraph 92(1) of the færdselsloven (Danish Highway Code).

( 3 ) Judgments of 20 December 2017, Asociación Profesional Elite Taxi (C‑434/15, EU:C:2017:981, paragraph 44), and of 8 December 2020, Poland v Parliament and Council (C‑626/18, EU:C:2020:1000, paragraph 145).

( 4 ) Namely, Title VI of Part Three of the FEU Treaty, which comprises Articles 90 to 100 TFEU.

( 5 ) In accordance with Article 1(1) and (4) of Regulation No 1072/2009, read in conjunction with Article 2(6) of that regulation.

( 6 ) 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).

( 7 ) Those rules are expressly referred to in recital 13 and Article 9(1)(d) of Regulation No 1072/2009.

( 8 ) 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.