Provisional text

OPINION OF ADVOCATE GENERAL

PITRUZZELLA

delivered on 14 November 2023 (1)

Joined Cases C‑541/20 to C‑555/20

Republic of Lithuania (C‑541/20 and C‑542/20)

Republic of Bulgaria (C‑543/20 to C‑545/20)

Romania (C‑546/20 to C‑548/20)

Republic of Cyprus (C‑549/20 and C‑550/20)

Hungary (C‑551/20)

Republic of Malta (C‑552/20)

Republic of Poland (C‑553/20 to C‑555/20)

v

European Parliament

Council of the European Union

(Actions for annulment – ‘Mobility Package’ – Regulation (EU) 2020/1054 – Maximum daily and weekly driving times – Minimum breaks and daily and weekly rest periods – Obligation for drivers to return – Prohibition on taking regular weekly rest periods of more than 45 hours in the vehicle – Time limit for the installation of second generation smart tachographs (V2) – Date of entry into force – Regulation (EU) 2020/1055 – Conditions to be complied with to pursue the occupation of road transport operator – Conditions relating to the requirement of establishment – Obligation to return the vehicle to the operational centre in the Member State of establishment – Obligation concerning the number of vehicles and drivers normally based at the operational centre of the Member State of establishment – Cabotage operations – Cooling-off period of 4 days for cabotage – Derogation for cabotage as part of combined transport operations – Directive (UE) 2020/1057 – Specific rules for posting drivers in the road transport sector – Transposition period – Internal market – Special legal regime governing transport – Fundamental freedoms – Principle of proportionality – Impact assessment – Principle of non-discrimination – Environmental protection – Article 11 TFUE – Article 37 of the Charter of Fundamental Rights of the European Union – Principle of legal certainty – Article 91 TFEU – Taking into account the economic situation of hauliers – Article 94 TFEU)

Table of contents

I. Legal framework

A. Regulation 2020/1054 (mobility package, ‘working time’ section)

B. Regulation 2020/1055 (mobility package, ‘establishment’ section)

C. Directive 2020/1057 (mobility package, ‘posting of workers’ section)

II. Background to the dispute

III. The forms of order sought and the procedure before by the Court

IV. Analysis

A. Preliminary observations

1. The special legal regime of transport in the internal market

2. The principle of proportionality

(a) The principle of proportionality, the wide discretion of the legislature and review by the Court

(b) The data to be taken into consideration in the legislative process and the impact assessment

3. The principles of equal treatment and non-discrimination

4. The provisions of EU law concerning environmental policy

B. Regulation 2020/1054 (Cases C541/20, C543/20, C546/20, C551/20 and C553/20)

1. The pleas relating to the obligation for drivers to return

(a) The admissibility of the action in Case C543/20 as regards point 6(d) of Article 1 of Regulation 2020/1054

(1) Arguments of the parties

(2) Analysis

(b) Breach of the principle of legal certainty

(1) Arguments of the parties

(2) Analysis

(c) Breach of the fundamental freedoms guaranteed by the FEU Treaty

(1) Arguments of the parties

(2) Analysis

(d) Breach of the principle of proportionality

(1) The pleas relating to the proportionality of the obligation for drivers to return

(i) Arguments of the parties

(ii) Analysis

– The objectives of the legislation at issue

– The negative impacts on drivers

– The negative impacts on hauliers

– The negative impacts on the environment

– The existence of less onerous alternatives

(2) The pleas relating to the examination by the EU legislature of the proportionality of the obligation for drivers to return

(i) Arguments of the parties

(ii) Analysis

(e) The infringement of Article 91(2) and Article 94 TFEU

(1) Arguments of the parties

(2) Analysis

(i) The scope of Articles 91(2) and 94 TFEU

(ii) The alleged infringements of Articles 91(2) and 94 TFEU

(f) Infringement of the provisions of EU law on environmental and climate change policy

(1) Arguments of the parties

(2) Analysis

(g) Breach of the principles of equal treatment and non-discrimination

(1) Arguments of the parties

(2) Analysis

(h) Conclusion on the pleas relating to the obligation for drivers to return

2. The pleas relating to the prohibition on taking regular weekly rest periods in the cabin

(a) Breach of the principle of proportionality

(1) Arguments of the parties

(2) Analysis

(i) Preliminary observations

(ii) The judgment in Vaditrans and its scope

(iii) The proportionality of point 6(c) of Article 1 of Regulation 2020/1054

(b) Infringement of Article 91(2) and Article 94 TFEU

(1) Arguments of the parties

(2) Analysis

(c) Breach of the principles of equal treatment and non-discrimination

(1) Arguments of the parties

(2) Analysis

(d) Infringement of the provisions of EU law on freedom to provide transport services and on the single market

(1) Arguments of the parties

(2) Analysis

(e) Conclusion on the pleas relating to the prohibition on taking the weekly rest in the cabin

3. The pleas relating to point 2 of Article 2 of Regulation 2020/1054

(a) Breach of the principle of proportionality

(1) Arguments of the parties

(2) Analysis

(b) Breach of the principles of protection of legitimate expectations and legal certainty

(1) Arguments of the parties

(2) Analysis

(c) Infringement of the second paragraph of Article 151 TFEU.

(1) Arguments of the parties

(2) Analysis

4. The pleas relating to Article 3 of Regulation 2020/1054

(a) The effectiveness of the pleas relating to Article 3 of Regulation 2020/1054

(b) Breach of the principle of proportionality

(1) Arguments of the parties

(2) Analysis

(c) Breach of the obligation to state reasons

(1) Arguments of the parties

(2) Analysis

(d) Breach of the principle of sincere cooperation enshrined in Article 4(3) TEU

(1) Arguments of the parties

(2) Analysis

5. Conclusion on the actions relating to Regulation 2020/1054

C. Regulation 2020/1055 (Cases C542/20, C545/20, C547/20, C549/20, C551/20, C552/20 and C554/20)

1. The obligation for vehicles to return home every eight weeks (point 3 of Article 1 of Regulation 2020/1055, in so far as it amends Article 5(1)(b) of Regulation No 1071/2009)

(a) The pleas alleging infringement of Article 91(1) TFEU on the ground of failure to consult the EESC and the CoR

(1) Arguments of the parties

(2) Analysis

(b) The pleas alleging breach of EU environmental and climate change policy

(1) Arguments of the parties

(2) Analysis

(i) The alleged infringement of Article 3 TEU, Articles 11 and 191 TFEU and Article 37 of the Charter

(ii) The alleged breach of the international commitments of the European Union and the Member States in the field of environmental protection

(iii) The alleged breach of EU environmental policy owing to the incompatibility of the obligation for vehicles to return home every eight weeks with secondary environmental law, the conclusions of the European Council and the European Green Deal

(iv) Conclusion of the analysis

(c) The pleas alleging breach of the principles of equal treatment and non-discrimination

(1) Arguments of the parties

(2) Analysis

(d) The pleas alleging breach of the principle of proportionality

(1) The examination by the EU legislature of the proportionality of the obligation for vehicles to return home every eight weeks

(i) Arguments of the parties

(ii) Analysis

(2) Examination of the proportionality of the measure

(e) The pleas alleging infringement of Article 91(2) TFEU and of Article 94 TFEU

(1) Arguments of the parties

(2) Analysis

(f) The pleas alleging breach of fundamental freedoms guaranteed by the FEU Treaty

(1) Arguments of the parties

(2) Analysis

(g) Conclusion

2. The obligation for an undertaking to have at its disposal a number of vehicles and drivers proportionate to the volume of transport operations carried out by the undertaking (point 3 of Article 1 of Regulation 2020/1055, in that it added point (g) to Article 5(1) of Regulation No 1071/2009)

(a) First plea, alleging breach of the principle of proportionality

(1) Arguments of the parties

(2) Analysis

(b) The plea alleging breach of the principle of legal certainty

(1) Arguments of the parties

(2) Analysis

(c) The plea alleging infringement of Article 11 TFEU and of Article 37 of the Charter

(1) Arguments of the parties

(2) Analysis

(d) Conclusion

3. The waiting period of four days between two periods of cabotage (point 4(a) of Article 2 of Regulation 2020/1055, which introduced paragraph 2a into Article 8 of Regulation No 1072/2009)

(a) The pleas alleging breach of EU environmental and climate change policy

(1) Arguments of the parties

(2) Analysis

(b) The pleas alleging breach of the principle of proportionality

(1) Arguments of the parties

(2) Analysis

(i) The examination by the EU legislature of the proportionality of the waiting period between two periods of cabotage

(ii) The proportionate nature of the waiting period of four days between two periods of permitted cabotage

(c) The pleas alleging infringement of Article 91(2) TFEU and of Article 94 TFEU

(1) Arguments of the parties

(2) Analysis

(d) The pleas alleging breach of the principles of equal treatment and non-discrimination

(1) Arguments of the parties

(2) Analysis

(e) The pleas alleging infringement of Articles 26, 34 to 36 and 58(1) TFEU

(1) Arguments of the parties

(2) Analysis

(f) Conclusion

4. The possibility of making combined transport operations subject to a waiting period (point 5(b) of Article 2 of Regulation 2020/1055 in that it adds paragraph 7 to Article 10 of Regulation No 1072/2009 or the ‘safeguard clause’)

(a) The plea alleging breach of the principle of proportionality

(1) Arguments of the parties

(2) Analysis

(b) The pleas alleging infringement of Article 91(2) and Article 94 TFEU

(1) Arguments of the parties

(2) Analysis

(c) The plea alleging infringement of Article 11 TFEU and Article 37 of the Charter

(1) Arguments of the parties

(2) Analysis

(d) Conclusion

5. Conclusion on the actions concerning Regulation 2020/1055

D. Directive 2020/1057

1. Preliminary observations

(a) Directive 2020/1057 and the rules laid down therein on the posting of drivers

(b) The scope of the actions brought by the Republic of Bulgaria and the Republic of Cyprus in Cases C544/20 and C550/20, respectively

2. The pleas relating to the specific rules on the posting of drivers

(a) Preliminary observations

(b) The Court’s case-law on the posting of drivers in the road transport sector

(c) The plea relating to the non-applicability of Directive 96/71 to drivers in the road transport sector

(1) The parties’ arguments

(2) Analysis

(d) The infringement of Article 91(1) TFEU

(1) The parties’ arguments

(2) Analysis

(e) The breach of the principle of proportionality

(1) The pleas relating to the breach of the principle of proportionality

(i) The parties’ arguments

– The inappropriate nature of the criterion based on the type of transport operations

– The inappropriate and unnecessary nature of the ‘hybrid model’ for the purpose of contributing to the objectives pursued

– The disproportionate negative effects

(ii) Analysis

– Preliminary observations

– The objectives of the specific rules on the posting of drivers laid down in Directive 2020/1057

– The inappropriate nature of the criterion based on the type of transport operations

– The inappropriate and unnecessary nature of the ‘hybrid model’ for contributing to the objectives pursued

– The disproportionate negative effects

(2) The pleas relating to the examination of proportionality carried out by the EU legislature

(i) The parties’ arguments

(ii) Analysis

– Preliminary observations

– The absence of an additional impact assessment for the final version of the provisions relating to the posting of drivers set out in Directive 2020/1057

(f) The infringement of Article 90 TFEU (read in conjunction with Article 3(3) TEU), Article 91(2) TFEU and Article 94 TFEU

(1) The parties’ arguments

(2) Analysis

(g) The breach of the principle of equal treatment

(1) The parties’ arguments

(2) Analysis

(i) Preliminary observations

(ii) The alleged breach of the principle of equal treatment of bilateral transport operations and cross trade operations (Republic of Lithuania, Republic of Bulgaria, Romania and Republic of Cyprus )

(iii) The alleged breach of the principle of equal treatment of combined transport operations and bilateral transport operations (Hungary)

(iv) Conclusion

(h) The breach of the principles of free movement of goods and freedom to provide services

(1) Arguments des parties

(2) Analysis

(i) The infringement of Article 11 TFEU and of Article 37 of the Charter

(1) The parties’ arguments

(2) Analysis

3. The pleas relating to Article 9(1) of Directive 2020/1057

(a) The breach of the principle of legal certainty

(1) The parties’ arguments

(2) Analysis

(b) The breach of the principle of proportionality and infringement of Article 94 TFEU

(1) The parties’ arguments

(2) Analyse

4. Conclusion on the actions relating to Directive 2020/1057

V. Costs

VI. Conclusion

1.        This Opinion concerns 15 actions brought by seven Member States – the Republic of Lithuania, the Republic of Bulgaria, Romania, the Republic of Cyprus, Hungary, the Republic of Malta and the Republic of Poland – seeking annulment of certain provisions of, or sometimes in the alternative, in their entirety, three legislative measures forming part of a ‘Mobility Package’.

2.        Those three legislative measures, which all relate to the legal regime for road transport, are, first, Regulation (EU) 2020/1054 on, in particular, maximum daily and weekly driving times, minimum breaks and daily and weekly rest periods, and positioning by means of tachographs; (2) second, Regulation (EU) 2020/1055, which amended, in particular, the common rules concerning the conditions to be complied with to pursue the occupation of road transport operator and the common rules for access to the international road haulage market; (3) and, third, Directive (EU) 2020/1057 laying down specific rules for posting drivers in the road transport sector (4) (together, ‘the three contested measures’).

3.        These fifteen joined cases have a truly exceptional dimension. Rarely has a legislative undertaking given rise to such a grouped and intense contentious reaction at EU level. Such a reaction was expected, given the debates and, in some cases, the opposition expressed by a number of Member States during the legislative procedure leading to the adoption of the three measures making up the Mobility Package. On an issue that is fundamental to the internal market, the proposal brings clearly into view the risk of a split between two visions of the European Union. Over and above the legal issues at stake, it is therefore also, in a way, the pursuit of a desire to live together on common economic and social foundations that is at stake in these actions. It is therefore important, whatever their outcome, to give them the attention they deserve. It is with that responsibility that I submit this analysis to the Court.

I.      Legal framework

A.      Regulation 2020/1054 (mobility package, ‘working time’ section)

4.        Points 6(c) and (d), 8 and 11 of Article 1 of Regulation 2020/1054 state:

‘Regulation (EC) No 561/2006 is amended as follows:

…

(6)      Article 8 is amended as follows:

…

(c)      paragraph 8 is replaced by the following:

“8.      The regular weekly rest periods and any weekly rest period of more than 45 hours taken in compensation for previous reduced weekly rest periods shall not be taken in a vehicle. They shall be taken in suitable gender-friendly accommodation with adequate sleeping and sanitary facilities.

Any costs for accommodation outside the vehicle shall be covered by the employer.”;

(d)      the following paragraph is inserted:

“8a.      Transport undertakings shall organise the work of drivers in such a way that the drivers are able to return to the employer’s operational centre where the driver is normally based and where the driver’s weekly rest period begins, in the Member State of the employer’s establishment, or to return to the drivers’ place of residence, within each period of four consecutive weeks, in order to spend at least one regular weekly rest period or a weekly rest period of more than 45 hours taken in compensation for reduced weekly rest period.

However, where the driver has taken two consecutive reduced weekly rest periods in accordance with paragraph 6, the transport undertaking shall organise the work of the driver in such a way that the driver is able to return before the start of the regular weekly rest period of more than 45 hours taken in compensation.

The undertaking shall document how it fulfils that obligation and shall keep the documentation at its premises in order to present it at the request of control authorities.”

…

(8)      Article 9 is amended as follows:

…

(b)      paragraph 2 is replaced by the following:

“2.      Any time spent travelling to a location to take charge of a vehicle falling within the scope of this Regulation, or to return from that location, when the vehicle is neither at the driver’s home nor at the employer’s operational centre where the driver is normally based, shall not be counted as a rest or break unless the driver is on a ferry or train and has access to a sleeper cabin, bunk or couchette.”

…

(11)      In Article 12, the following paragraphs are added:

“Provided that road safety is not thereby jeopardised, in exceptional circumstances, the driver may also depart from Article 6(1) and (2) and Article 8(2) by exceeding the daily and weekly driving time by up to one hour in order to reach the employer’s operational centre or the driver’s place of residence to take a weekly rest period.

Under the same conditions, the driver may exceed the daily and weekly driving time by up to two hours, provided that an uninterrupted break of 30 minutes was taken immediately prior to the additional driving in order to reach the employer’s operational centre or the driver’s place of residence for taking a regular weekly rest period.

…”’

5.        Article 2 of Regulation 2020/1054 is worded as follows:

‘Regulation (EU) No 165/2014 is amended as follows:

…

(2)      In Article 3, paragraph 4 is replaced by the following:

“4.      No later than three years from the end of the year of entry into force of the detailed provisions referred to in the second paragraph of Article 11, the following categories of vehicles operating in a Member State other than their Member State of registration shall be fitted with a smart tachograph as provided in Articles 8, 9 and 10 of this Regulation:

(a)      vehicles fitted with an analogue tachograph;

(b)      vehicles fitted with a digital tachograph complying with the specifications in Annex IB to Regulation (EEC) No 3821/85 applicable until September 2011;

(c)      vehicles fitted with a digital tachograph complying with the specifications in Annex IB to Regulation (EEC) No 3821/85 applicable from 1 October 2011; and

(d)      vehicles fitted with a digital tachograph complying with the specifications in Annex IB to Regulation (EEC) No 3821/85 applicable from 1 October 2012.

4a. No later than four years after the entry into force of detailed provisions referred to in the second paragraph of Article 11, vehicles which are fitted with a smart tachograph complying with Annex IC to Commission Implementing Regulation (EU) 2016/799 [of 18 March 2016 implementing Regulation (EU) No 165/2014 of the European Parliament and of the Council laying down the requirements applicable for the construction, testing, installation operation and repair of tachographs and their components (OJ 2016 L 139, p. 1)] operating in a Member State other than their Member State of registration shall be fitted with a smart tachograph as provided in Articles 8, 9 and 10 of this Regulation.”

…

(8)      Article 11 is amended as follows:

(a)      the first paragraph is replaced by the following:

“In order to ensure that smart tachographs comply with the principles and requirements set out in this Regulation, the Commission shall, by means of implementing acts, adopt detailed provisions necessary for the uniform application of Articles 8, 9 and 10, excluding any provisions which would provide for the recording of additional data by the tachograph.

By 21 August 2021, the Commission shall adopt implementing acts laying down detailed provisions for the uniform application of the obligation to record and store data relating to any border crossing of the vehicle and activities referred to in the second and third indent of the first subparagraph of Article 8(1) and in the second subparagraph of Article 8(1).

…”’

6.        Article 3 of Regulation 2020/1054 provides:

‘This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

However, point (15) of Article 1 and point (12) of Article 2 shall apply from 31 December 2024.’

B.      Regulation 2020/1055 (mobility package, ‘establishment’ section)

7.        In the words of recitals 6 to 8 and 20 to 22 of Regulation 2020/1055:

‘(6)      In order to combat the phenomenon of so-called “letterbox companies” and to guarantee fair competition and a level playing field in the internal market, it is necessary to ensure that road transport operators established in a Member State have a real and continuous presence in that Member State and conduct their transport business from there. Therefore, and in light of experience, it is necessary to clarify and strengthen the provisions regarding the existence of an effective and stable establishment while avoiding the imposition of a disproportionate administrative burden.

(7)      The real and continuous presence in the Member State of establishment should in particular require that the undertaking carries out transport operations with the appropriate technical equipment situated in that Member State.

(8)      Regulation (EC) No 1071/2009 requires undertakings to conduct effectively and continuously their operations with the appropriate technical equipment and facilities at an operating centre situated in the Member State of establishment, and it allows for additional requirements at national level, the most common of which being a requirement to have parking spaces available in the Member State of establishment. However, those, unevenly applied, requirements have not been sufficient to ensure a genuine link with that Member State in order to efficiently fight letterbox companies and to reduce the risk of systematic cabotage and nomadic drivers organised from an undertaking to which the vehicles do not return. Considering that, in order to ensure the proper functioning of the internal market in the area of transport, specific rules on the right of establishment and the provision of services may be necessary, it is appropriate to further harmonise the establishment requirements and to strengthen the requirements linked to the presence of the vehicles used by the transport operator in the Member State of establishment. Defining a clear minimum interval within which the vehicle has to return also contributes to ensuring that those vehicles can be correctly maintained with the technical equipment situated in the Member State of establishment and facilitates controls.

The cycle for such returns should be synchronised with the obligation on the transport undertaking in 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)] to organise its operations in a manner that enables the driver to return home at least every four weeks, so that both obligations can be fulfilled through the return of the driver together with the vehicle at least every second four-week cycle. This synchronisation strengthens the right of the driver to return and reduces the risk that the vehicle has to return only to fulfil this new establishment requirement. However, the requirement to return to the Member State of establishment should not require a specific number of operations to be conducted in the Member State of establishment or otherwise limit the operators’ possibility to provide services throughout the internal market.

…

(20)      The rules on national transport performed on a temporary basis by non-resident hauliers in a host Member State (“cabotage”) should be clear, simple and easy to enforce, while maintaining the level of liberalisation achieved so far.

(21)      Cabotage operations should help to increase the load factor of heavy duty vehicles and reduce empty runs, and should be allowed as long as they are not carried out in a way that creates a permanent or continuous activity within the Member State concerned. To ensure that cabotage operations are not carried out in a way that creates a permanent or continuous activity, hauliers should not be allowed to carry out cabotage operations in the same Member State within a certain time after the end of a period of cabotage operations.

(22)      While the further liberalisation established by Article 4 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 (5)], compared to cabotage under Regulation (EC) No 1072/1999, has been beneficial in promoting combined transport and should, in principle, be retained, it is necessary to ensure that it is not misused. Experience shows that, in certain parts of the Union, that provision has been used in a systematic manner to circumvent the temporary nature of cabotage and as the basis for the continuous presence of vehicles in a Member State other than that of the establishment of the undertaking. Such unfair practices risk leading to social dumping and jeopardise respect of the legal framework relating to cabotage. It should therefore be possible for Member States to derogate from Article 4 of Directive 92/106/EEC and to apply the provisions relating to cabotage in Regulation (EC) No 1072/2009 in order to address such problems by introducing a proportionate limit to the continuous presence of vehicles within their territory.’

8.        Article 1 of Regulation (EU) 2020/1055 provides:

‘Regulation (EC) No 1071/2009 is amended as follows:

…

(2)      In Article 3, paragraph 2 is deleted;

(3)      Article 5 is replaced by the following:

“Article 5

Conditions relating to the requirement of establishment

1.      In order to satisfy the requirement laid down in point (a) of Article 3(1), in the Member State of establishment an undertaking shall:

(a)      have premises at which it is able to access the originals of its core business documents, whether in electronic or any other form, in particular its transport contracts, documents relating to the vehicles at the disposal of the undertaking, accounting documents, personnel management documents, labour contracts, social security documents, documents containing data on the dispatching and posting of drivers, documents containing data relating to cabotage, driving time and rest periods, and any other document to which the competent authority must have access in order to verify the undertaking’s compliance with the conditions laid down in this Regulation;

(b)      organise its vehicle fleet’s activity in such a way as to ensure that vehicles that are at the disposal of the undertaking and are used in international carriage return to one of the operational centres in that Member State at least within eight weeks after leaving it;

(c)      be registered on the register of commercial companies of that Member State or on a similar register whenever required under national law;

(d)      be subject to tax on revenues and, whenever required under national law, have a valid value added tax registration number;

(e)      once an authorisation has been granted, have at its disposal one or more vehicles which are registered or put into circulation and authorised to be used in conformity with the legislation of that Member State, regardless of whether those vehicles are wholly owned or, for example, held under a hire-purchase agreement or under a hire or leasing contract;

(f)      effectively and continuously conduct its administrative and commercial activities with the appropriate equipment and facilities at premises as referred to in point (a) situated in that Member State and manage its transport operations effectively and continuously using the vehicles referred to in point (g) with the appropriate technical equipment situated in that Member State;

(g)      on an ongoing basis, have at its regular disposal a number of vehicles that comply with the conditions laid down in point (e) and drivers who are normally based at an operational centre in that Member State, in both cases proportionate to the volume of transport operations carried out by the undertaking.

…”’

9.        Article 2 of Regulation 2020/1055 provides:

‘Regulation (EC) No 1072/2009 is amended as follows:

…

(4)      Article 8 is amended as follows:

(a)      the following paragraph is inserted:

–        “2a      Hauliers are not allowed to carry out cabotage operations, with the same vehicle, or, in the case of a coupled combination, the motor vehicle of that same vehicle, in the same Member State within four days following the end of its cabotage operation in that Member State.”;

(b)      in paragraph 3, the first subparagraph is replaced by the following:

“3.      National road haulage services carried out in the host Member State by a non-resident haulier shall only be deemed to comply with this Regulation if the haulier can produce clear evidence of the preceding international carriage and of each consecutive cabotage operation carried out. In the event that the vehicle has been in the territory of the host Member State within the period of four days preceding the international carriage, the haulier shall also produce clear evidence of all operations that were carried out during that period.”;

(5)      Article 10 is amended as follows:

…

(b)      the following paragraph is added:

“7.      In addition to paragraphs 1 to 6 of this Article and by way of derogation from Article 4 of Directive 92/106/EEC, Member States may, where necessary to avoid misuse of the latter provision through the provision of unlimited and continuous services consisting in initial or final road legs within a host Member State that form part of combined transport operations between Member States, provide that Article 8 of this Regulation apply to hauliers when they carry out such initial and/or final road haulage legs within that Member State. With regard to such road haulage legs, Member States may provide for a longer period than the seven-day period provided for in Article 8(2) of this Regulation and may provide for a shorter period than the four-day period provided for in Article 8(2a) of this Regulation. The application of Article 8(4) of this Regulation to such transport operations shall be without prejudice to requirements following from Directive 92/106/EEC. Member States making use of the derogation provided for in this paragraph shall notify the Commission thereof before applying their relevant national measures. They shall review those measures at least every five years and shall notify the results of that review to the Commission. They shall make the rules, including the length of the respective periods, publicly available in a transparent manner.”

C.      Directive 2020/1057 (mobility package, ‘posting of workers’ section)

10.      Article 1 of Directive 2020/1057, entitled ‘Specific rules on the posting of drivers’, is worded, as regards paragraphs 1 to 7 thereof, as follows:

‘1.      This Article establishes specific rules as regards certain aspects of Directive 96/71/EC relating to the posting of drivers in the road transport sector and of Directive 2014/67/EU relating to administrative requirements and control measures for the posting of those drivers.

2.      These specific rules apply to drivers employed by undertakings established in a Member State which take the transnational measure referred to in point (a) of Article 1(3) of Directive 96/71/EC.

3.      Notwithstanding Article 2(1) of Directive 96/71/EC, a driver shall not be considered to be posted for the purpose of Directive 96/71/EC when performing bilateral transport operations in respect of goods.

For the purpose of this Directive, a bilateral transport operation in respect of goods means the movement of goods, based on a transport contract, from the Member State of establishment, as defined in Article 2(8) of Regulation (EC) No 1071/2009, to another Member State or to a third country, or from another Member State or a third country to the Member State of establishment.

From 2 February 2022, which is the date from which drivers are required, pursuant to Article 34(7) of Regulation (EU) No 165/2014 [of the European Parliament and of the Council of 4 February 2014 on tachographs in road transport, repealing Council Regulation (EEC) No 3821/85 on recording equipment in road transport and amending Regulation (EC) No 561/2006 of the European Parliament and of the Council on the harmonisation of certain social legislation relating to road transport OJ 2014 L 60, p. 1] to record border crossing data manually, Member States shall apply the exemption for bilateral transport operations in respect of goods set out in the first and second subparagraphs of this paragraph also where, in addition to performing a bilateral transport operation, the driver performs one activity of loading and/or unloading in the Member States or third countries that the driver crosses, provided that the driver does not load goods and unload them in the same Member State.

Where a bilateral transport operation starting from the Member State of establishment during which no additional activity was performed is followed by a bilateral transport operation to the Member State of establishment, the exemption for additional activities set out in the third subparagraph shall apply to a maximum of two additional activities of loading and/or unloading, under the conditions set out in the third subparagraph.

The exemptions for additional activities set out in the third and fourth subparagraphs of this paragraph shall apply only until the date from which smart tachographs complying with the requirement of recording border crossings and additional activities referred to in the first subparagraph of Article 8(1) of Regulation (EU) No 165/2014 are required to be fitted in the vehicles registered in a Member State for the first time, under the fourth subparagraph of Article 8(1) of that Regulation. From that date the exemptions for additional activities set out in the third and fourth subparagraphs of this paragraph shall apply solely to drivers using vehicles fitted with smart tachographs, as provided for in Articles 8, 9 and 10 of that Regulation.

4. Notwithstanding Article 2(1) of Directive 96/71/EC, a driver shall not be considered to be posted for the purpose of Directive 96/71/EC when performing bilateral transport operations in respect of passengers.

For the purpose of this Directive, a bilateral transport operation in international occasional or regular carriage of passengers, within the meaning of Regulation (EC) No 1073/2009, is when a driver performs any of the following operations:

(a)      picks up passengers in the Member State of establishment and sets them down in another Member State or a third country;

(b)      picks up passengers in a Member State or a third country and sets them down in the Member State of establishment; or

(c)      picks up and sets down passengers in the Member State of establishment for the purpose of carrying out local excursions in another Member State or a third country, in accordance with Regulation (EC) No 1073/2009.

From 2 February 2022, which is the date from which drivers are required, pursuant to Article 34(7) of Regulation (EU) No 165/2014, to record border crossing data manually, Member States shall apply the exemption for bilateral transport operations in respect of passengers set out in the first and second subparagraphs of this paragraph also where, in addition to performing a bilateral transport operation, the driver picks up passengers once and/or sets down passengers once in Member States or third countries that the driver crosses, provided that the driver does not offer passenger transport services between two locations within the Member State crossed. The same shall apply to the return journey.

The exemption for additional activities set out in the third subparagraph of this paragraph shall apply only until the date from which smart tachographs complying with the requirement of recording of border crossings and additional activities referred to in the first subparagraph of Article 8(1) of Regulation (EU) No 165/2014 are required to be fitted in the vehicles registered in a Member State for the first time, under the fourth subparagraph of Article 8(1) of that Regulation. From that date the exemption for additional activities set out in the third subparagraph of this paragraph shall apply solely to drivers using vehicles fitted with smart tachographs, as provided for in Articles 8, 9 and 10 of that Regulation.

5.      Notwithstanding Article 2(1) of Directive 96/71/EC, a driver shall not be considered to be posted for the purpose of Directive 96/71/EC when the driver transits through the territory of a Member State without loading or unloading freight and without picking up or setting down passengers.

6.      Notwithstanding Article 2(1) of Directive 96/71/EC, a driver shall not be considered to be posted for the purpose of Directive 96/71/EC when performing the initial or final road leg of a combined transport operation as defined in 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)] if the road leg on its own consists of bilateral transport operations, as defined in paragraph 3 of this Article.

7.      A driver performing cabotage operations as defined in Regulations (EC) No 1072/2009 and (EC) No 1073/2009 shall be considered to be posted under Directive 96/71/EC.’

II.    Background to the dispute

11.      On 31 May 2017, the European Commission adopted a number of proposals forming part of a ‘mobility package’ aimed at amending certain aspects of the EU legislation applicable to the transport sector. These included, in particular, the Proposal for a Directive of the European Parliament and of the Council amending Directive 2066/22/EC as regards the enforcement requirements and laying down specific rules with respect to Directive 96/71/EC and Directive 2014/67/EU for posting drivers in the road transport sector (COM(2017) 278 final; ‘the proposal for a posting directive’); the proposal for a regulation of the European Parliament and of the Council amending Regulation (EC) No 561/2006 as regards minimum requirements on maximum daily and weekly driving times, minimum breaks and daily and weekly rest periods and Regulation (EU) No 165/2014 as regards positioning by means of tachographs (COM(2017) 277 final; ‘the proposal for a working time regulation’); and the proposal for a regulation of the European Parliament and of the Council amending Regulations (EC) No 1071/2009, (EC) No 1072/2009 and (EU) No 1024/2012 with a view to adapting them to developments in the road transport sector (COM(2017) 281 final; ‘the proposal for an establishment regulation’). Those proposals were accompanied by two impact assessments. (6)

12.      Following lengthy discussions both within the European Parliament and the Council of the European Union and between those two institutions, a compromise was found on the three contested legislative measures during negotiations conducted on 11 and 12 December 2019 in the framework of the interinstitutional trialogue between the Council, the Parliament and the Commission.

13.      On 7 April 2020, in the vote in the Council on the adoption of those measures, the measures received the support of a qualified majority of Member States, while nine Member States, namely the Republic of Bulgaria, the Republic of Cyprus, the Republic of Estonia, Hungary, the Republic of Latvia, the Republic of Lithuania, the Republic of Malta, the Republic of Poland and Romania were opposed to their adoption.

14.      On 15 July 2020, the Parliament and the Council adopted the final text of the three contested measures.

III. The forms of order sought and the procedure before by the Court

15.      In Case C‑541/20, the Republic of Lithuania, supported by the Republic of Latvia and Romania, (7) asks the Court, first, to annul, principally, point 6(d) of Article 1 and Article 3 of Regulation 2020/1054 or, in the alternative, that regulation in its entirety and, second, to annul, principally, Article 1(3) and (7) of Directive 2020/1057 or, in the alternative, that directive in its entirety.

16.      In Case C‑542/20, the Republic of Lithuania, supported by the Republic of Estonia, the Republic of Latvia and Romania, (8) claims that the Court should annul point 3 of Article 1 of Regulation 2020/1055, in so far as it inserts paragraph 1(b) in Article 5 of Regulation No 1071/2009, and annul point 4(a) of Article 2 of Regulation 2020/1055.

17.      In Case C‑543/20, the Republic of Bulgaria, supported by Romania and the Republic of Latvia, (9) asks the Court to annul, principally, point 6(c) and (d) of Article 1 of Regulation 2020/1054 or, in the alternative, the regulation in its entirety.

18.      In Case C‑544/20, the Republic of Bulgaria, supported by the Republic of Estonia, the Republic of Latvia and Romania, (10) asks the Court to annul Directive 2020/1057.

19.      In Case C‑545/20, the Republic of Bulgaria, supported by the Republic of Estonia, the Republic of Latvia, the Republic of Lithuania and Romania, (11) claims that the Court should annul point 3 of Article 1 of Regulation 2020/1055, in so far as it inserts paragraph 1(b) in Article 5 of Regulation No 1071/2009, or, in the alternative, annul point 3 of Article 1 in its entirety; annul point 4(a) of Article 2 of Regulation 2020/1055 or, in the alternative, annul point 4 of that Article 2 in its entirety; and, further in the alternative, annul Regulation 2020/1055 in its entirety.

20.      In Case C‑546/20, Romania, supported by the Republic of Latvia, (12) asks the Court to annul, principally, points 6(c) and (d) of Article 1 of Regulation 2020/1054 or, in the alternative, the regulation in its entirety.

21.      In Case C‑547/20, Romania, supported by the Republic of Estonia, the Republic of Latvia and the Republic of Lithuania, (13) claims that the Court should annul point 3 of Article 1 of Regulation 2020/1055, in so far as it inserts paragraph 1(b) in Article 5 of Regulation No 1071/2009; annul points 4(a), (b) and (c) of Article 2 of Regulation 2020/1055; in the alternative, annul Regulation 2020/1055 in its entirety.

22.      In Case C‑548/20, Romania, supported by the Republic of Estonia and the Republic of Latvia, (14) asks the Court to annul, principally, Article 1(3) to (6) of Directive 2020/1057 or, in the alternative, that directive in its entirety, in the event that the Court should find that those provisions are inseparable from the other provisions of that directive.

23.      In Case C‑549/20, the Republic of Cyprus, supported by the Republic of Estonia, the Republic of Latvia, the Republic of Lithuania and Romania, (15) claims that the Court should annul point 3 of Article 1 of Regulation 2020/1055, in so far as it inserts paragraph 1(b) in Article 5 of Regulation No 1071/2009, or, in the alternative, annul that Article 1(3) in its entirety; further in the alternative, annul Regulation 2020/1055 in its entirety.

24.      In Case C‑550/20, the Republic of Cyprus, supported by the Republic of Estonia, the Republic of Latvia and Romania, (16) asks the Court to annul Directive 2020/1057.

25.      In Case C‑551/20, Hungary, supported by the Republic of Estonia, the Republic of Latvia, the Republic of Lithuania and Romania, (17) asks the Court, first, to annul point 6(c) of Article 1 and point 2 of Article 2 of Regulation 2020/1054 and also, if necessary, the provisions of that regulation which are inseparable from those provisions; second, to annul point 3 of Article 1 of Regulation 2020/1055, in so far as it inserts paragraph 1(b) in Article 5 of Regulation No 1071/2009, and also, if necessary, the provisions of that regulation which are inseparable from that provision; and, third, to annul, principally, Article 1 of Directive 2020/1057 or, in the alternative, point 6 of Article 1 of that directive and also, if necessary, the provisions of that directive which are inseparable from that provision.

26.      In Case C‑552/20, the Republic of Malta, supported by the Kingdom of Belgium, the Republic of Estonia, the Republic of Latvia, the Republic of Lithuania and Romania, (18) claims that the Court should annul point 3 of Article 1 of Regulation 2020/1055, in so far as it inserts paragraph 1(b) in Article 5 of Regulation 1071/2009, and annul point 4 of Article 2 of Regulation 2020/1055. (19)

27.      In Case C‑553/20, the Republic of Poland, supported by Romania and the Republic of Latvia, (20) asks the Court to annul, principally, point 6(d) of Article 1 of Regulation 2020/1054 or, in the alternative, the regulation in its entirety.

28.      In Case C‑554/20, the Republic of Poland, supported by the Republic of Estonia, the Republic of Latvia, the Republic of Lithuania and Romania, (21) asks the Court to annul point 3 of Article 1 of Regulation 2020/1055, in that it adds paragraph 1(b) and (g) to Article 5(1)(b) of Regulation No 1071/2009; to annul point 4(a) of Article 2 of Regulation 2020/1055; to annul point 5(b) of Article 2 of that regulation; or, in the alternative, to annul Regulation 2020/1055 in its entirety.

29.      In Case C‑555/20, the Republic of Poland, supported by the Republic of Estonia, the Republic of Latvia and Romania, (22) asks the Court to annul Article 1(3), (4), (6) and (7) and Article 9(1) of Directive 2020/1057, or, in the alternative, that directive in its entirety.

30.      In all those cases, the applicant Member States ask the Court to order the Parliament and the Council to pay the costs.

31.      The Parliament and the Council ask the Court to dismiss all the actions referred to above and to order the applicant Member States to pay the costs.

32.      By decisions of 13, 21, 22, 26, 27 and 29 April 2021 and of 12 May 2022, the President of the Court granted leave to the Federal Republic of Germany, the Republic of Austria, the Kingdom of Sweden, the Grand-Duchy of Luxembourg, the Hellenic Republic, the Kingdom of the Netherlands, the French Republic, the Kingdom of Denmark and the Italian Republic, respectively, to intervene in support of the forms of order sought by the Parliament and the Council.

33.      The Republic of Bulgaria, the Republic of Cyprus, the Republic of Lithuania, Hungary, the Republic of Malta, the Republic of Poland, Romania, the Republic of Estonia and the Republic of Latvia, on the one hand, and the Council, the European Parliament, the French Republic, the Italian Republic and the Kingdom of Sweden, on the other hand, presented oral argument at the hearing before the Court on 24 and 25 April 2023.

34.      By decision of the President dated 13 October 2023, Cases C‑241/20 to C‑555/20 were joined pursuant to Article 54(2) of the Rules of Procedure.

IV.    Analysis

A.      Preliminary observations

35.      The 15 actions brought by the seven applicant Member States against the three contested measures concern transversally a number of provisions and fundamental principles of EU law.

36.      In that context, I consider it appropriate, as a preliminary point, to set out a number of general considerations on those provisions and principles, in the light of the Court’s case-law. On the basis of those considerations, I shall then develop the analysis of those actions for each of the three contested measures.

37.      In the following points I shall analyse, first of all, the special legal regime to which the field of transport belongs within the framework of the European Union legislation on the internal market. Next, I shall analyse, respectively, the principle of proportionality and the principles of equal treatment and non-discrimination, as developed in the Court’s case-law. Those principles are invoked on several occasions by various Member States in their pleadings. Last, I shall set out some considerations relating to the provisions of EU environmental law, infringement of which has also been raised transversally by several applicant Member States.

1.      The special legal regime of transport in the internal market

38.      The field of transport, in particular that of road transport, is a crucial sector for society, the economy and European integration. Neither EU law nor the Court provides a general and exhaustive definition of the concept of ‘transport’. (23) Nonetheless, in its case-law, the Court refers to a transport service as being a ‘physical act of moving persons or goods from one place to another by a means of transport’. (24)

39.      The field of transport is characterised by certain features specific to that economic sector that justify its being subject to a special legal regime in the context of the internal market. (25)

40.      In EU primary law, the need to take the specific features of the field of transport into account is reflected, in the first place, in the requirement explicitly and generally imposed on the EU legislature by Article 91(1) TFEU – which constitutes the legal basis for the implementation of the common transport policy – to take account of the ‘distinctive features’ of transport for the purpose of implementing that common policy.

41.      Other provisions coming under Title VI of Part Three of the FEU Treaty (Articles 90 to 100) on the common transport policy – provisions infringement of which is alleged on various occasions by the applicant Member States – give shape, moreover, to certain aspects that the legislature must specifically take into account when implementing that policy. Thus, pursuant to Article 91(2) TFEU, when the measures relating to that common policy are adopted, account is to be taken of the effect on the standard of living and level of employment in certain regions, and the operation of transport facilities, and, pursuant to Article 94 TFEU, when measures in respect of transport rates and conditions are adopted, account is to be taken of the economic circumstances of hauliers.

42.      Furthermore, in a consistent line of decisions, the Court has recognised that the EU legislature has a wide discretion with respect to the aims of and the means for implementing the common transport policy (26) and when adopting appropriate measures for that common policy. (27)

43.      In that context, it should be further emphasised that Article 91(1) TFEU distinguishes, in subparagraphs (a) and (b), first, between international transport and domestic transport and, second, between resident and non-resident hauliers. Specifically, although Article 91(1)(a) TFEU provides for the adoption of ‘common rules’ applicable to international transport, subparagraph (b) of that paragraph provides merely for the laying down of ‘conditions under which non-resident hauliers may operate transport services within a Member State’. EU law therefore provides, at the level of primary law, for a different approach within the framework of the common transport policy between the regulation of international transport and the regulation of domestic transport.

44.      In the second place, the requirement to take into consideration the features specific to the field of transport led the drafters of the Treaty to afford to that field a special status in the context of the regulation of the internal market, in particular as regards freedom to provide services. (28)

45.      Thus, in the field of transport, the free movement of services is governed not by Article 56 TFEU, which concerns freedom to provide services in general, but by the specific provision of Article 58(1) TFEU, pursuant to which ‘freedom to provide services in the field of transport shall be governed by the provisions of the Title relating to transport’. (29)

46.      It follows that, as the Court has acknowledged on a number of occasions in its case-law, in the field of transport, application of the principles governing freedom to provide services must be achieved, according to the FEU Treaty, by introducing a common transport policy. (30) Freedom to provide services, as guaranteed by Articles 56 and 57 TFEU, can therefore be applicable to transport services only in so far as secondary law has rendered that freedom applicable. (31) Non-liberalised transport services must thus be precluded from the scope of Article 56 TFEU. (32)

47.      Conversely, the authors of the Treaties did not make transport subject to any special regime as regards freedom of establishment. As the Court has had occasion to emphasise explicitly, the provisions of the FEU Treaty on freedom of establishment are applicable directly to transport. (33)

48.      It follows from the preceding considerations that the special status of transport in the context of the regulation by primary law of the internal market is distinguished by the combination of a right of establishment in any Member State, based on the FEU Treaty, and a right for hauliers to exercise freedom to provide transport services, which is guaranteed solely in so far as that right has been granted by means of measures of secondary law adopted by the EU legislature in the context of the common transport policy.

49.      As specifically regards the field of road transport, action by the EU legislature to achieve the common transport policy, on the one hand, has been taken with the aim of liberalising the sector and supporting the attainment of the internal market for road transport, its effectiveness and its competitiveness. Whereas international transport operations have been fully liberalised, domestic transport is still partially limited for non-resident hauliers by restrictions on cabotage operations, in keeping with the special status which transport enjoys under primary law conferred by Article 58(1) TFEU. (34)

50.      That special status thus limits the possibility of providing road transport services on a temporary basis in a Member State other than the Member State of establishment, while, conversely, it leaves fully open the possibility for nationals of all the Member States to become established in another Member State on a permanent basis and to carry out there the occupation of road haulier on the same conditions as the nationals of that Member State.

51.      On the other hand, the EU legislature has drawn up a vast framework of social rules for road hauliers and passenger road transport operators, aimed, in particular, at improving the working conditions of mobile workers in the road transport sector (namely drivers), improving road safety for all road users and ensuring fair competition between road hauliers in the single market. (35)

2.      The principle of proportionality

(a)    The principle of proportionality, the wide discretion of the legislature and review by the Court

52.      The Court has consistently held that the principle of proportionality, which is one of the general principles of EU law, requires that acts of the EU institutions be appropriate for attaining the legitimate objectives pursued by the legislation at issue and do not go beyond what is necessary in order to achieve those objectives; when there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued. (36) That principle is referred to in Article 5(4) TEU and in Article 1 of Protocol (No 2) on the application of the principles of subsidiarity and proportionality, annexed to the Treaties.

53.      As regards review by the Court of compliance with those conditions, the Court has recognised that the EU legislature has a wide discretion, in the exercise of the powers conferred on it, in areas such as the common transport policy, (37) in which its action involves choices of both a political and an economic or social nature, and in which it is called upon to undertake complex assessments and evaluations. Thus, the criterion to be applied is not whether a measure adopted in such an area was the only or the best possible measure, since its legality can be affected only if the measure is manifestly inappropriate having regard to the objective which the competent institutions are seeking to pursue. (38)

54.      Furthermore, the EU legislature’s wide discretion, which implies limited judicial review of its exercise, applies not only to the nature and scope of the measures to be taken but also, to some extent, to the establishment of the basic facts. (39)

55.      However, even where it has wide discretion, the EU legislature must base its choice on objective criteria and examine whether the aims pursued by the measure chosen are such as to justify even substantial negative economic consequences for certain operators. Under Article 5 of Protocol (No 2) on the application of the principles of subsidiarity and proportionality, annexed to the Treaties, draft legislative acts must take account of the need for any burden falling upon economic operators to be minimised and commensurate with the objective to be achieved. (40)

56.      As regards the subject matter of the judicial review that it must carry out, the Court has made clear that it cannot substitute its own assessment for that of the EU legislature in the exercise of a power involving choices of a political, economic and social nature and complex assessments. (41) In accordance with the case-law referred to in points 53 to 55 above, it is for the Court to determine whether the EU legislature manifestly exceeded its wide discretion with regard to the complex assessments and evaluations that it was called upon to conduct, by opting for measures that were manifestly inappropriate with regard to the objective pursued. (42)

57.      Thus, the Court could, at most, find fault with the legislature’s legislative choice only if it appeared manifestly incorrect or if the resulting disadvantages for certain economic operators were wholly disproportionate to the advantages otherwise offered. (43)

58.      Furthermore, it follows from settled case-law that even judicial review of limited scope requires that the EU institutions that have adopted the act in question must be able to show before the Court that in adopting the act they actually exercised their discretion, which presupposes that all the relevant factors and circumstances of the situation which the act was intended to regulate were taken into consideration. It follows that those institutions must at the very least be able to produce and set out clearly and unequivocally the basic facts that had to be taken into account as the basis of the contested measures of that act and on which the exercise of their discretion depended. (44)

59.      However, it is for the applicant to prove that the disadvantages resulting from the legislative choice made by the EU legislature are disproportionate when compared with the advantages that it otherwise brings. (45)

60.      In addition, the EU legislature does not have to take into consideration the particular situation of a Member State where the EU measure concerned has consequences in all Member States and requires that a balance between the different interests involved is ensured, taking into account the objectives of that measure. Therefore, the attempt to strike such a balance, taking into account not the particular situation of a single Member State, but that of all EU Member States, cannot be regarded as being contrary to the principle of proportionality. (46)

(b)    The data to be taken into consideration in the legislative process and the impact assessment

61.      In a number of actions, the applicant Member States put in issue the absence or insufficiency of the impact assessments carried out by the Commission (47) with respect to the three contested measures or some of their provisions. The question whether the legislature took into consideration all the relevant factors and circumstances of the situation which the measure was intended to regulate and whether it had to carry out or supplement an impact assessment is governed by the principle of proportionality. (48)

62.      The rules relating to impact assessments are set out in the interinstitutional agreement between the Parliament, the Council and the Commission ‘Better Law-Making’, of 13 April 2016 (49) (‘the interinstitutional agreement’) and specifically in Part III of that agreement.

63.      It follows from that agreement that the Commission is to carry out an impact assessment of its legislative initiatives that are expected to have significant economic, environmental or social implications. (50) The preparation of impact assessments is thus a step in the legislative process that, as a rule, must take place if a legislative initiative is expected to have such implications. (51)

64.      However, as is clear from the case-law, the provisions of the interinstitutional agreement are not binding. (52) Although impact assessments are an important and helpful tool in the legislative process, because they facilitate the drafting of well-reasoned and transparent legislation, the interinstitutional agreement does not cast them as a precondition to proposing or adopting legislation in all circumstances. (53) In that regard, the Court has expressly stated that the obligation to carry out such an assessment in every circumstance does not follow from the wording of the interinstitutional agreement. (54)

65.      In that context, the Court has observed that the failure to carry out an impact assessment cannot be regarded as a breach of the principle of proportionality where the EU legislature is in a particular situation requiring that an impact assessment be dispensed with and has sufficient information enabling it to assess the proportionality of an adopted measure. (55)

66.      As regards the scope of the assessment, although it follows from the interinstitutional agreement and from the case-law that the Parliament and the Council, when examining the Commission’s legislative proposals, are to take full account of the Commission’s impact assessments, (56) the Court has nonetheless expressly made clear that an impact assessment does not bind either the Parliament or the Council. (57) In that regard, it follows from the interinstitutional agreement that the Parliament and the Council may themselves carry out impact assessments when they consider it to be appropriate and necessary if they make substantial amendments to the Commission’s proposal. (58)

67.      It follows that the EU legislature may in principle also act in the absence of an impact assessment (59) and that the absence of an impact assessment does not automatically render the EU legislation subsequently adopted invalid. (60)

68.      The foregoing considerations, developed in the case of total absence of an impact assessment in relation to the adoption of a legislative measure, apply, a fortiori, in relation to the adoption of a specific provision of a measure that was not, as such, the subject matter of the impact assessment accompanying the Commission’s proposal for the measure.

69.      As regards measures adopted by the EU legislature which were not among those initially envisaged by the Commission in its proposal for a legislative act, the Court has explicitly held that the legislature remains free to adopt measures other than those which were the subject of the impact assessment and that, accordingly, the mere fact that it adopted a different and, as the case may be, more onerous measure than the measures envisaged by the Commission in the impact assessment is not such as to demonstrate that it manifestly exceeded the limits of what was necessary in order to achieve the stated objective. (61)

70.      Since, as is apparent from points 64 and 66 above, impact assessments are Commission documents which set out the political solution favoured by that institution and are not binding on the Parliament and the Council, the latter, in their capacity as co-legislators, are free, in accordance with Article 294 TFEU and within the limits imposed by respect for the Commission’s right of initiative, to arrive at a different assessment of the situation and, accordingly, take a different political position. It follows that even where the Parliament and the Council, departing from the Commission’s proposal and from the underlying impact assessment, amend substantial elements of that proposal, the fact that they have not updated the impact assessment does not automatically and necessarily render the EU legislation adopted invalid. (62)

71.      Nonetheless, as is apparent from points 58 and 65 above, the effective exercise of the power of assessment by the EU legislature assumes that all the relevant factors and circumstances of the situation that that measure was intended to regulate are taken into consideration.

72.      In that context, it follows from the case-law that the form in which the basic data taken into account by the EU legislature are recorded is irrelevant and that the EU legislature is therefore entitled to take into account not only the impact assessment but also any other source of information. (63)

73.      However, it follows from the case-law that in order to exercise their discretion properly, the co-legislators must take into account, during the legislative procedure, the scientific data and other findings that have become available, including scientific documents used by the Member States during Council meetings that the Council itself does not have. (64) The legislature may also take into account information which is in the public domain and which is accessible to any individual or undertaking with an interest in the matter. (65)

74.      In addition, the Court has consistently held that the legality of an EU act must be assessed in the light of the information available to the EU legislature at the time of the adoption of the legislation in question. (66)

3.      The principles of equal treatment and non-discrimination

75.      In a number of cases, certain Member States claim that some of the provisions of the three contested measures were adopted in breach of the principle of equal treatment and the principle of non-discrimination.

76.      In that regard, it follows from the Court’s case-law that the principle of equal treatment is a general principle of EU law, which is now enshrined in Article 20 of the Charter of Fundamental Rights of the European Union (‘the Charter’) (67) and of which the principle of non-discrimination set out in the Charter is a specific expression. (68)

77.      The Court has consistently held that that general principle requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified.(69)

78.      A difference in treatment is justified if it is based on an objective and reasonable criterion, that is, if the difference relates to a legally permitted aim pursued by the legislation in question, and if it is proportionate to the aim pursued by the treatment. (70)

79.      The comparability of different situations is assessed in the light of all the elements that characterise them. Those elements must, in particular, be determined and assessed in the light of the subject matter and purpose of the EU act making the distinction in question. In addition, the principles and objectives of the field to which the act relates must also be taken into consideration. (71)

80.      As is the case – as is apparent from point 53 above – for the assessment of the proportionality of the measures adopted in areas in which the legislature has a wide discretion, such as the field of transport policy, (72) the Court has also recognised, as regards respect for the principle of equal treatment, limited judicial review with regard to those measures, stating that, in such a context, the EU judiciary may not substitute its own assessment for that of the EU legislature, but must confine itself to examining whether the legislature’s assessment is vitiated by a manifest error of assessment or misuse of powers or whether the authority in question manifestly exceeded the bounds of its legislative discretion. (73)

4.      The provisions of EU law concerning environmental policy

81.      Some of the applicant Member States have argued on several occasions in their actions that some of the provisions of the three contested measures were adopted in breach of provisions of EU law concerning environmental policy. Those Member States specifically invoke infringements of Article 3(3) TEU, Article 11 and Article 191(1) TFEU and Article 37 of the Charter.

82.      It should be noted at the outset that the case-law has consistently drawn attention to the importance of the environmental protection objective described as ‘essential’ (74) and its transversal and fundamental nature (75).

83.      In that regard, it should be recalled that Article 191(1) TFEU defines the European Union’s policy in the field of the environment as having to contribute to the pursuit of preserving, protecting and improving the quality of the environment, protecting human health, prudent and rational utilisation of natural resources and promoting measures at international level to deal with regional or worldwide environmental problems and, in particular, to combating climate change.

84.      Article 191(2) TFEU provides that EU policy on the environment is to aim at a ‘high level of protection’, taking into account the diversity of situations in the various regions of the European Union. Similarly, Article 3(3) TEU provides that the European Union works in particular for a ‘high level of protection and improvement of the quality of the environment’ (76).

85.      Moreover, under Article 191(3) TFEU, in preparing its policy on the environment, the European Union shall take account of available scientific data on the cost-benefit balance of action or lack of action, the economic and social development of the European Union as a whole and the balanced development of its regions. Article 192 TFEU sets out in detail the conditions under which the European Union may act in order to achieve the objectives of EU policy on the environment.

86.      Article 11 TFEU provides that ‘environmental protection requirements must be integrated into the definition and implementation of the Union’s policies and activities, in particular with a view to promoting sustainable development’. As regards the scope of Article 11 TFEU, the parties have extensively quoted and commented on the Opinion of Advocate General Geelhoed (77) who proposed an interpretation of Article 6 TEC, which was succeeded by Article 11 TFEU, to which it will be necessary to return.

87.      As for Article 37 of the Charter, this states that a ‘high level of environmental protection and the improvement of the quality of the environment must be integrated into the policies of the Union and ensured in accordance with the principle of sustainable development’.

88.      Article 52(2) of the Charter provides that rights recognised by the Charter for which provision is made in the Treaties are to be exercised under the conditions and within the limits defined by those Treaties. That is the case with Article 37 of the Charter, which is based, in essence, on Article 3(3) TEU and Articles 11 and 191 TFEU. Consequently, the applicant Member States’ arguments relating to Article 37 of the Charter must be examined in the light of the conditions and limits flowing from Article 191 TFEU (78).

B.      Regulation 2020/1054 (Cases C‑541/20, C‑543/20, C‑546/20, C‑551/20 and C‑553/20)

89.      Five Member States, namely the Republic of Lithuania (Case C‑541/20), the Republic of Bulgaria (Case C‑543/20), Romania (Case C‑546/20), Hungary (Case C‑551/20) and the Republic of Poland (Case C‑553/20), ask the Court to annul several provisions of Regulation 2020/1054 or, in the alternative, that regulation in its entirety. Their actions relate to four provisions of that regulation.

90.      First, the actions brought by the Republic of Bulgaria, Romania and Hungary relate to point 6(c) of Article 1 of Regulation 2020/1054, which amended Article 8(8) of Regulation No 561/2006. That provision prohibits drivers from taking their regular weekly rest periods of more than 45 hours in the vehicle (‘the prohibition on taking regular weekly rest periods in the cabin’).

91.      Second, the actions brought by the Republic of Lithuania, the Republic of Bulgaria, Romania and the Republic of Poland relate to point 6(d) of Article 1 of Regulation 2020/1054, which introduced a new paragraph 8a in Article 8 of Regulation No 561/2006. That provision imposes the obligation for transport undertakings to organise the work of drivers in such a way that the drivers are able to return, normally, every four weeks, to the employer’s operational centre where the driver is normally based, in the Member State of the employer’s establishment, in order to begin their weekly rest period there or to return to their place of residence (‘the obligation for drivers to return’).

92.      Third, the action brought by Hungary also relates to point 2 of Article 2 of Regulation 2020/1054, which brought forward the date of entry into force of the obligation to install second-generation smart tachographs (‘V2 tachographs’).

93.      Fourth, the action brought by the Republic of Lithuania also relates to Article 3 of Regulation 2020/1054. That provision sets the date of the entry into force of Regulation 2020/1054 at the 20th day following its publication (namely, 20 August 2020), without providing for a transitional period for the entry into force of the prohibition on taking regular weekly rest periods in the cabin and for the obligation for drivers to return.

94.      I shall begin my analysis by examining the pleas raised to challenge the provision of Regulation 2020/1054 concerning the obligation for drivers to return. I shall then analyse the pleas raised against the other provisions of that regulation.

1.      The pleas relating to the obligation for drivers to return

95.      The Republic of Lithuania (Case C‑541/20), the Republic of Bulgaria (Case C‑543/20), Romania (Case C‑546/20) and the Republic of Poland (Case C‑553/20) challenge point 6(d) of Article 1 of Regulation 2020/1054, which lays down the obligation for drivers to return. Those four Member States raise a number of pleas against that provision.

96.      Before analysing those various pleas, however, it is appropriate to examine the plea of inadmissibility raised by the Council in Case C‑543/20.

(a)    The admissibility of the action in Case C‑543/20 as regards point 6(d) of Article 1 of Regulation 2020/1054

(1)    Arguments of the parties

97.      In Case C‑543/20, the Council raises a plea of inadmissibility in respect of the action brought by the Republic of Bulgaria in so far as it relates to point 6(d) of Article 1 of Regulation 2020/1054. In the Council’s submission, the action brought by that Member State seeks not to challenge the validity of that provision, but to clarify its precise interpretation. In addition, that Member State asserts that, in the event that the provision in question should be interpreted in a particular way, the Court would not need to examine the pleas challenging that provision. In the Council’s submission, the Republic of Bulgaria is using its privileged position under Article 263 TFEU to contest acts for the sole purpose of clarifying their meaning, which is contrary to the ratio legis of that provision. As the Court has held with regard to Article 267 TFEU, Article 263 TFEU, too, should not be used to raise hypothetical questions.

98.      The Republic of Bulgaria contends that the plea of inadmissibility raised by the Council should be rejected.

(2)    Analysis

99.      It should be borne in mind at the outset that, according to settled case-law, the objective of an action for annulment provided for in Article 263 TFEU is to ensure observance of the law in the interpretation and application of the Treaty. (79)

100. In addition, in accordance with Article 21 of the Statute of the Court of Justice of the European Union and Article 120(c) of the Rules of Procedure, an application must state the subject matter of the dispute, the form of order sought and a brief statement of the pleas in law on which the application is based. It follows from the case-law that that statement must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to exercise its power of review, that the essential points of law and of fact on which an action is based must be indicated coherently and intelligibly in the application itself and that the form of order sought in that application must be set out unambiguously. (80)

101. In this instance, it follows expressly from the heads of claim and the wording of the application that, by its action in Case C‑543/20, the Republic of Bulgaria seeks, in particular, annulment of point 6(d) of Article 1 of Regulation 2020/1054 or, in the alternative, annulment of that regulation in its entirety. That Member State raises a number of pleas in support of its claim for annulment.

102. However, as the Council points out, in the first part of its application, the Republic of Bulgaria puts forward two possible interpretations of the provision at issue. It asserts, on the one hand, that if the Court were to find that point 6(d) of Article 1 of Regulation 2020/1054 must be interpreted as meaning that drivers are required to return to their place of residence or to the operational centre of the employer at which they are normally based, situated in their employer’s Member State of establishment, that provision would breach their fundamental freedoms provided for in the FEU Treaty and several principles of EU law. On the other hand, the Republic of Bulgaria asserts that, if the Court were to find that that provision does not create an obligation for drivers to return to those two places and that they are therefore free to choose to take their rest periods wherever they wish, there would be no need to examine the pleas alleging those breaches.

103. In those circumstances, I consider that, as follows expressly from the form of order sought by the Republic of Bulgaria, the action brought by that Member State does indeed seek to call into question the legality of point 6(d) of Article 1 of Regulation 2020/1054 on the basis of Article 263 TFEU.

104. In addition, on reading the application, there is in my view no doubt that the Republic of Bulgaria indicates clearly and precisely the pleas in law and the arguments on which it relies in support of that claim for annulment, and also a summary of the pleas relied on for that purpose. To my mind, it follows that the requirements laid down in the first paragraph of Article 21 of the Statute of the Court of Justice of the European Union and in Article 120(c) of the Rules of Procedure of the Court are satisfied.

105. The mere fact that, in that context, that Member State seeks to clarify the interpretation of point 6(d) of Article 1 of Regulation 2020/1054 cannot in my view lead to the action being declared inadmissible. In accordance with the objective of the action for annulment referred to in point (2) of this Opinion, the review of legality under Article 263 TFEU necessarily means that the Court of the European Union, in exercising its power of interpretation, (81) interprets the provisions annulment of which is sought and, where appropriate, clarifies their scope.

106. Thus, contrary to what the Council’s argument presupposes, the determination of the precise scope of the obligation for drivers to return, as laid down in point 6(d) of Article 1 of Regulation 2020/1054, relates not to the admissibility of the action, but, rather, to its merits.

107. In my view, it follows from those considerations that the action brought by the Republic of Bulgaria in Case C‑543/20, in so far as it concerns point 6(d) of Article 1 of Regulation 2020/1054, must be considered admissible.

108. However, it follows from the assertion in the action brought by that Member State, referred to in point 102 above, that if the Court were to adopt an interpretation of point 6(d) of Article 1 of Regulation 2020/1054, according to which that provision does not give rise to an obligation for drivers to return to their place of residence or to the operational centre at which they are normally based, situated in their employer’s Member State of establishment, it would then no longer be necessary to analyse the substance of the pleas put forward by the Republic of Bulgaria with respect to that provision.

109. In those circumstances, I consider that it is appropriate to analyse first of all the pleas whereby certain Member States allege that point 6(d) of Article 1 of Regulation 2020/1054 breaches the principle of legal certainty. That analysis will make it possible to determine the precise scope of the obligation for drivers to return, as laid down in that provision.

(b)    Breach of the principle of legal certainty

(1)    Arguments of the parties

110. In their actions, the Republic of Lithuania (Case C‑541/20), the Republic of Bulgaria (Case C‑543/20) and the Republic of Poland (Case C‑553/20) claim that point 6(d) of Article 1 of Regulation 2020/1054 does not comply with the requirements flowing from the principle of legal certainty.

111. The Republic of Lithuania (82) claims that the legislature did not specify the way in which the provision laying down the obligation for drivers to return should be applied in practice. Thus, neither the rules applicable to the driver’s return, such as the costs and proof of that return, nor those applicable to a refusal to return and the consequences of such a refusal in terms of penalties for the employer and, where appropriate, the worker are specified. Likewise, the expression ‘place of residence’ of the driver is not clearly defined. In particular, it is not clear whether a driver from a third country must return to that country or to the temporary place of residence in the Member State concerned and, more generally, it is uncertain whether that expression refers to the Member State concerned or to a specific address of the place of residence. All of those uncertainties make a uniform application of Regulation 2020/1054 impossible.

112. The Republic of Bulgaria maintains that there is a fundamental lack of clarity as to the precise interpretation of that provision and of the obligations placed on drivers and hauliers. Thus, it is not clear: in the first place, whether that obligation for drivers to return is limited to the two places stated in the provision (namely the employer’s operational centre or the driver’s place of residence) or whether drivers may choose a different place; in the second place, whether that obligation is imposed on the drivers or on the hauliers; and, in the third place, in the latter case, whether the obligation in question is an obligation of means or an obligation of result. The interpretation of the provision at issue proposed by the Council and the Parliament in their pleadings contradicts the positions expressed in earlier documents, both by those institutions and by the Commission. The lack of legal certainty is proved, moreover, by the manner in which point 6(d) of Article 1 of Regulation 2020/1054 is interpreted at national level. Thus, it is apparent from a report of the Belgian police that penalties have been imposed on the sole ground that a driver had not returned after 13 weeks, without any consideration of whether he or she had chosen to spend his or her rest period elsewhere. (83)

113. The Republic of Poland maintains, in the first place, that the very nature of the obligation on the haulier provided for in point 6(d) of Article 1 of Regulation 2020/1054 is not clearly defined. It is unclear whether the undertaking is required only to provide the driver with a means of transport so that he or she may spend his or her rest time in one of the places mentioned or whether – as recital 14 of that regulation seems to suggest – it should ensure that the driver actually travels to one of those places. In the latter case, it is not clear in what way the haulier must oblige the driver to avail of the possibility to return which the employer offers him, or which vehicle must be used for that purpose. That provision is thus liable to impose obligations on hauliers which they would not be in a position to fulfil without committing a breach of workers’ individual freedom.

114. In the second place, according to the Republic of Poland, the question whether return to the place of residence must not be preceded by return to the operational centre raises doubts. It is not clear whether, by allowing drivers to return directly to their place of residence, the undertaking would fulfil its obligation to guarantee a rest period, since drivers ‘begin their weekly rest period’ at the operational centre.

115. In the third place, according to the Republic of Poland, the third subparagraph of the provision at issue also gives rise to doubts. Thus, it is not clear whether the tachograph, the records of which constitute the evidence required by that provision, is that of the vehicle by which the driver returned to the operational centre or to his or her place of residence or that of the vehicle habitually used by the driver. The contested provision does not specify the period for which the documents must be kept which, according to recital 14 of Regulation 2020/1054, the undertaking may use in order to demonstrate compliance with that obligation. The Republic of Poland submits that the lack of precision surrounding the provision contained in that subparagraph precludes its implementation. Regulations should determine with sufficient precision the content of the national implementing measures. That is not the case here, as the provision at issue confers too broad a discretion on the national authorities. The details added to the provisions of Regulation 2020/1054 by those authorities leads to diverging applications, accentuating the state of legal uncertainty, which is contrary to the regulation’s objective of reinforcing legal certainty as to the obligations imposed on hauliers in order to ensure a uniform application in the internal market.

116. The Council, the Parliament and the interveners supporting them contend that all of those pleas must be rejected.

(2)    Analysis

117. It is settled case-law that the principle of legal certainty requires, on the one hand, that the rules of law be clear and precise and, on the other, that their application be foreseeable for those subject to the law, in particular where they may have adverse consequences. That principle requires, inter alia, that legislation must enable those concerned to know precisely the extent of the obligations imposed on them, and those persons must be able to ascertain unequivocally their rights and obligations and take steps accordingly, (84) especially when they may have adverse consequences on individuals and undertakings. (85)

118. However, the requirements of legal certainty cannot be interpreted as precluding the EU legislature from having recourse, in a norm that it adopts, to an abstract legal notion, or as requiring that such an abstract norm refer to the various specific hypotheses in which it applies, given that not all of those hypotheses can be determined in advance by the legislature. (86)

119. Furthermore, it is not necessary for a legislative act itself to provide details of a technical nature, as the EU legislature may have recourse to a general legal framework that is, if necessary, to be made more precise at a later date. (87)

120. Consequently, the fact that a legislative act confers a discretion on the authorities responsible for implementing it is not in itself inconsistent with the requirement of foreseeability, provided that the scope of the discretion and the manner of its exercise are indicated with sufficient clarity, having regard to the legitimate aim in question, to give adequate protection against arbitrary interference. (88)

121. In this instance, in the context of actions such as those brought in the present cases, no actual situation falls to be assessed and only hypothetical situations are under consideration. In such a context, in application of the case-law referred to in the preceding points, in order to determine whether a provision is consistent with the principle of legal certainty, it is necessary, in my view, to examine whether that provision displays such ambiguity as to make it difficult for those to whom it is addressed to resolve unambiguously their rights and obligations under that provision. (89)

122. It is appropriate first of all to examine the arguments alleging that point 6(d) of Article 1 of Regulation 2020/1054 does not make it possible to understand, first, whether the obligation for drivers to return is borne by drivers or by hauliers and, second, whether drivers are free to choose a different place from the undertaking’s operational centre or their place of residence to begin their rest period.

123. In that regard, it should be borne in mind that point 6(d) of Article 1 of Regulation 2020/1054 provides, in its first subparagraph, that ‘transport undertakings shall organise the work of drivers in such a way that the drivers are able to return to the employer’s operational centre where the driver is normally based and where the driver’s weekly rest period begins, in the Member State of the employer’s establishment, or to return to the drivers’ place of residence, within each period of four consecutive weeks, in order to spend at least one regular weekly rest period or a weekly rest period of more than 45 hours taken in compensation for reduced weekly rest period’.

124. In addition, in accordance with the second subparagraph of that provision, read in conjunction with point 6(a) of Article 1 of that regulation, where a driver has taken two consecutive reduced weekly rest periods, the driver must be able to return during the third week in order to take the compensatory regular weekly rest period of more than 45 hours.

125. To my mind, it follows clearly from the wording of that provision that it is addressed not to the drivers but to the transport undertakings, requiring that they organise drivers’ work in such a way that the drivers are able, every three or four weeks, as the case may be, to begin their regular weekly rest period either at the employer’s operational centre or at the driver’s place of residence.

126. It follows that the obligation arising under the provision at issue is undoubtedly imposed on the hauliers. They are therefore under an obligation of organisation, in the sense that the haulier is required to organise the driver’s return to one of the two places mentioned, namely the undertaking’s operational centre or the driver’s place of residence. In addition, it follows from the wording of that provision that the obligation imposed on the transport undertaking is limited to organising the driver’s return to one of those two places and that it does not therefore extend to other places.

127. In those circumstances, the obligation imposed on the haulier by the provision at issue has no impact on the driver’s freedom to choose the place in which he or she intends to begin and spend his or her rest period. According to the wording of that provision, the driver must be able to begin his or her regular weekly rest period in one of those two places, but he or she is certainly not required to do so. Drivers are therefore free to begin and spend their regular weekly rest period at the place where they wish to do so, although that has no effect on the obligation of organisation imposed on the transport undertaking.

128. Furthermore, the scope of the provision at issue as described in the two preceding points not only follows explicitly from the wording of the provision, but is confirmed by recital 14 of Regulation 2020/1054. It follows expressly from that recital, first, that it is the ‘transport undertakings [that] organise’ the driver’s work and that have ‘obligations regarding the organisation of the regular return’. That recital thus confirms that that obligation is imposed on the haulier. Second, it follows from that recital that ‘organising the return should allow [drivers to reach] an operational centre of the transport undertaking in its Member State of establishment or the driver’s place of residence, and the drivers are free to choose where to spend their rest period’. (90) The use of the word ‘allow’ also confirms that the provision only makes a possibility available and does not impose an obligation on drivers.

129. The foregoing considerations also make it possible to respond to the arguments put forward by the Member States concerning the alleged lack of clarity in relation to the nature of the obligation. On the one hand, in answer to the doubts expressed by the Republic of Bulgaria, it is apparent from the foregoing that the obligation relating to the drivers’ return is an obligation to achieve a specific result as regards the organisation of a driver’s return, but not as regards the return as such, as the driver remains free to choose not to return to one of the two places mentioned and to begin his or her rest period where he or she wishes.

130. On the other hand, in answer to the Republic of Poland’s first complaint, it follows from those considerations that point 6(d) of Article 1 of Regulation 2020/1054 does not in any way require hauliers to compel the driver to avail of the possibility to return which is offered to him or her and therefore does not impose obligations which hauliers would be unable to fulfil without committing a breach of drivers’ fundamental right to individual freedom.

131. It also follows from those considerations that, contrary to the view expressed by the Republic of Lithuania, no penalties can be imposed on a driver if he or she refuses to return. Nor can any penalty be imposed on the haulier if the driver fails to return, if the haulier has complied with the obligation of organisation imposed on it.

132. In addition, as both the Republic of Lithuania and the Republic of Poland observe, point 6(d) of Article 1 of Regulation 2020/1054 does not specify either the procedure for the driver’s return or the means of transport that the driver is to use in order to return. However, that choice by the legislature does not create legal uncertainty, but aims to leave to hauliers the necessary flexibility to organise the driver’s return in the manner that is most reasonable in terms of costs, having regard to the needs of the undertaking and its organisational arrangements.

133. By its second complaint, the Republic of Poland also maintains that it is unclear whether return to the place of residence must be preceded by return to the operational centre. In that regard, it should be observed that, in accordance with the wording of point 6(d) of Article 1 of Regulation 2020/1054, it is possible for the employer to fulfil its obligation to ensure the driver’s return by asking the driver to return to its operational centre in the Member State of establishment. In the context of the contract of employment, the transport undertaking, as employer, may always require the driver to return to the operational centre during his or her working hours, (91) before he or she begins his or her rest period.

134. In that regard, it should be observed, first, that the relationship of subordination between haulier and driver is governed by national employment law applicable to the contract of employment. It is therefore in accordance with that law that the rules on subordination must be determined. Second, Regulation 2020/1054 does not prohibit the employer from requiring the driver to return to the operational centre provided that such an obligation is imposed during working time and does not encroach on the driver’s rest periods. However, that obligation does not affect the driver’s right to choose the place in which he or she wishes to spend his or her rest period. Third, point 6(d) of Article 1 of Regulation 2020/1054 does not require the haulier to compel the driver to return to the operational centre in order to be able to satisfy the obligation for drivers to return. That provision uses the word ‘or’, not the word ‘and’. It leaves to the haulier the flexibility as to the choice of one or the other destination to which it refers.

135. As regards the Republic of Lithuania’s complaint that the expression ‘place of residence’ is not clearly defined, it suffices to observe that it is settled case-law that the place of residence corresponds to the place where the habitual centre of interests of the person concerned is situated. (92) It follows from that definition that the concept of ‘residence’ refers to a specific place and does not cover the entire territory of a Member State, as the Republic of Lithuania envisages. As regards the specific situation of drivers from third countries, in the light of the case-law referred to in point 118  above and the considerations developed in points 142 and 143 below, it cannot be maintained that the fact that the provision at issue does not regulate that situation entails a breach of the principle of legal certainty. That situation may be regulated at national level. In any event, it does not seem reasonable to extend the obligation for drivers to return imposed on hauliers to the point of making them responsible for returns outside the European Union. In that regard, I recall that, as I stated in the preceding point, it is permissible for the transport undertaking to choose between the two places mentioned in the provision at issue, so that if a return to the place of residence were to appear to be economically impracticable, the undertaking will still be able to fulfil the obligation by organising the return to the operational centre.

136. In its third complaint, the Republic of Poland claims that there is a lack of clarity in the third subparagraph of point 6(d) of Article 1 of Regulation 2020/1054 concerning the way in which hauliers must show that they fulfil their obligation concerning the driver’s return set out in the preceding subparagraphs.

137. In that regard, it will be recalled that the third subparagraph of that provision states that ‘the undertaking shall document how it fulfils that obligation and shall keep the documentation at its premises in order to present it at the request of the control authorities.’

138. On that point, recital 14 of Regulation 2020/1054 specifies that ‘in order to demonstrate that the transport undertaking fulfils its obligations regarding the organisation of the regular return, the transport undertaking should be able to use tachograph records, duty rosters of the drivers or other documentation. Such evidence should be available at the transport undertaking’s premises to be presented if requested by control authorities’.

139. The Republic of Poland claims, in essence, that the lack of precision concerning the provision contained in that third subparagraph prevents transport undertakings from implementing it. That Member State expresses, in particular, doubts in relation to the tachograph records that may be used to document that an undertaking has fulfilled the obligation for drivers to return, and also to the failure to determine the period during which the documents capable of proving that it has done so are to be kept.

140. However, it follows from a reading of the provision called into question, interpreted in the light of the relevant part of recital 14 of Regulation 2020/1054, that the EU legislature intended to afford hauliers a degree of flexibility by providing them with the possibility of proving that they have complied with the obligation for drivers to return by using any relevant documentation in order to do so. That flexibility concerning the manner of proving compliance with that obligation is consistent, moreover, with the flexibility that, as is apparent from point 132  above, the EU legislature gave hauliers to organise the driver’s return in the manner that is most reasonable in economic and organisational terms.

141. In that regard, the fact that the third subparagraph of point 6(d) of Article 1 of Regulation 2020/1054 does not specify the way in which hauliers must demonstrate that they fulfil their obligation for drivers to return does not mean that that provision fails to comply with the principle of legal certainty.

142. First, as is apparent from the case-law referred to in points 118 to 120  above, the requirements of the principle of legal certainty cannot be understood as requiring that a legal rule always mention the different specific hypotheses in which it may apply, since not all of those hypotheses can be determined in advance by the legislature. A provision such as that in the third subparagraph of point 6(d) of Article 1 of Regulation 2020/1054 which applies to a multitude of different situations cannot, and must not be required to, specify in detail all the situations to which it is to apply.

143. Second, it follows from the case-law that Member States may adopt implementing measures for a regulation even though that regulation does not expressly authorise them to do so, if they do not obstruct its direct applicability or conceal its nature as an act of EU law and if they specify that they are acting in exercise of a discretion conferred on them under that regulation and adhere to the parameters which it lays down. (93) It follows that, within those parameters, if Member States consider it necessary to incorporate that provision and to provide more information to hauliers, they can do so, while nonetheless observing the flexibility that that provision affords them as regards the way in which they prove compliance with the obligation for drivers to return.

144. Third, in the absence of precise rules at EU level or at national level concerning the way in which hauliers must demonstrate that they fulfil their obligation relating to the driver’s return, it is for the hauliers themselves to choose, in the context of the flexibility afforded by the EU legislature, the reliable method capable of ensuring compliance with the requirement for proof flowing from that provision. (94)

145. As regards, next, the Republic of Bulgaria’s argument that the interpretation proposed by the Council and the Parliament in their written pleadings before the Court is different from that which they proposed in previous acts, that Member State refers to intermediate acts adopted by those institutions during the legislative procedure, the objective of which is solely to pave the way for the adoption of a final act, without definitively fixing the position of the institution in question, (95) and which cannot therefore create any legal uncertainty. Likewise, the documents entitled ‘Questions and answers on the implementation of the mobility package’, published by the Commission on the website of its DG ‘Mobility and transport’, to which both the Republic of Bulgaria and the Republic of Poland refer, are not legally binding (96) and thus cannot demonstrate that the contested provision does not comply with the requirements of legal certainty.

146. Last, as regards the interpretations of the provision at issue given at national level and invoked by the Republic of Lithuania and by the Republic of Bulgaria, and also the report by the Belgian police produced by the Republic of Bulgaria as proof of the lack of legal certainty, it should be observed, first, that, in the absence of other factors, the information supplied by those Member States and, in particular, that latter document do not make it possible to establish whether, in the cases cited, the fines were imposed on the basis of a correct or an incorrect interpretation of point 6(d) of Article 1 of Regulation 2020/1054. Second, even if in the cases cited fines had been imposed on the basis of any incorrect reading of that provision, an incorrect application of the provision at issue cannot in any way demonstrate, as such, a lack of legal certainty. It may be a case of simple errors by the national authorities in the application of that provision, which could be rectified by means of the remedies available in the national legal orders in question.

147. It follows from all of the foregoing that, to my mind, the pleas raised by the Republic of Lithuania, the Republic of Bulgaria and the Republic of Poland alleging breach of the principle of legal certainty by point 6(d) of Article 1 of Regulation 2020/1054 must be rejected.

148. It also follows from the interpretation of the obligation for drivers to return, laid down in point 6(d) of Article 1 of Regulation 2020/1054, which was given in points 125 to 129 above that, in accordance with what was said in points 102 and 108 above, it will not in my view be necessary for the Court to analyse the substance of the other pleas put forward by the Republic of Bulgaria with respect to that provision of Regulation 2020/1054.

149. Likewise, the Republic of Lithuania seems, both in its reply (97) and at the hearing, to have limited the scope of its action against that provision solely to the situation in which the Court finds that under that provision the obligation to return is imposed on the drivers, which, as stated in the preceding points of this Opinion, is not the case. In those circumstances, I consider that the Court should also not analyse the substance of the other pleas raised by the Republic of Lithuania with regard to that provision of Regulation 2020/1054.

150. Consequently, in the remainder of this Opinion, I shall analyse the pleas raised by those two Member States against the provision at issue only in the alternative.

(c)    Breach of the fundamental freedoms guaranteed by the FEU Treaty

(1)    Arguments of the parties

151. In their actions, the Republic of Lithuania (Case C‑541/20), the Republic of Bulgaria (Case C‑543/20) and Romania (Case C‑546/20), all supported in that regard by the Republic of Latvia, claim that point 6(d) of Article 1 of Regulation 2020/1054 breaches a number of fundamental freedoms guaranteed by the FEU Treaty.

152. In the first place, the Republic of Lithuania maintains that point 6(d) of Article 1 of Regulation 2020/1054, in that it requires that drivers return to their place of residence or to the undertaking’s operational centre, without making it possible for drivers to choose themselves where they wish to spend their rest period, obstructs the freedom of movement for workers laid down in Article 45 TFEU and the drivers’ right to freely dispose of their rest periods. Likewise, the Republic of Lithuania claims that there is an infringement of Article 26 TFEU. Similarly, the Republic of Bulgaria claims that there is an infringement of Article 21(1) and Article 45 TFEU and of Article 45(1) of the Charter.

153. In the second place, Romania, supported in that regard by the Republic of Latvia, claims that point 6(d) of Article 1 of Regulation 2020/1054 constitutes an unjustified restriction of freedom of establishment and thus infringes Article 49 TFEU.

154. In Romania’s submission, that provision entails for road hauliers, first, new administrative obligations relating to proof of the regular return of drivers and, second, an increase in costs and a loss of revenues. Over and above the additional costs which compliance with the new evidential requirements entails, hauliers have to bear the costs of the travel undertaken by drivers, and a reduction in revenues in the light of the periods during which drivers carry out no profitable activity by reason of their return, normally empty. As most road hauliers are small or medium-sized enterprises (SMEs), the need to comply with that provision has even more significant repercussions.

155. It follows that setting up an undertaking in a State on the geographical periphery of the European Union is less profitable than setting up an undertaking in a State of Central and Western Europe, in view of the costs of journeys made over thousands of extra kilometres every four weeks to organise the driver’s return from the countries in which demand for transport is concentrated, and also of the additional administrative costs and losses of revenue referred to above.

156. Thus, first, point 6(d) of Article 1 of Regulation 2020/1054, in particular in so far as it gives rise to costs that differ depending on the Member States, encourages haulers established in the Member States on the geographic periphery of the European Union to create subsidiaries or branches in, or indeed to relocate their activities to, the Member States of Central and Western Europe. Such relocation is not the result of a genuine choice by the undertakings. Those undertakings are forced, in the light of the new conditions, to relocate. Second, that provision has a deterrent effect on operators established in the Member States of Central and Western Europe concerning the creation of companies in the Member States on the geographic periphery of the European Union. Although it is applicable without distinction, that provision thus affects access to the market for the undertakings of other Member States.

157. In the context of its arguments alleging breach of the principle of proportionality, Romania also claims that the obligation for hauliers to organise their activity in such a way that rest periods are taken in accordance with the requirements flowing from point 6(d) of Article 1 of Regulation 2020/1054 is capable of entailing unjustified restrictions on freedom to provide services.

158. The Council, the Parliament and the interveners supporting them contend that all of those pleas must be rejected.

(2)    Analysis

159. It should first of all be observed that the Court has held that the prohibition of restrictions on the fundamental freedoms guaranteed by the FEU Treaty applies not only to national measures, but also to measures adopted by the EU institutions. (98)

160. It follows that the measure at issue, namely the obligation for drivers to return, laid down in point 6(d) of Article 1 of Regulation 2020/1054, must comply with the provisions of the FEU Treaty on which the applicant Member States rely.

161. As regards, first of all, the pleas alleging infringement of Articles 26 and 45 TFEU raised by the Republic of Lithuania and the pleas alleging infringement of Article 21(1) and Article 45 TFEU and of Article 45(1) of the Charter raised by the Republic of Bulgaria, they are all expressly based on a reading of point 6(d) of Article 1 of Regulation 2020/1054 according to which that provision imposes the compulsory return of drivers to their place of residence or to the undertaking’s operational centre, without providing for the possibility for drivers themselves to choose where they wish to spend their rest period. However, it follows from points 125 to 129 above that that is not the scope of that provision. It follows that, as they are based on an incorrect reading of the provision at issue, those pleas must all be rejected as unfounded.

162. As regards, next, the plea raised by Romania alleging infringement of Article 49 TFEU, it should be borne in mind that, according to settled case-law, all measures which prohibit, impede or render less attractive the exercise of the freedom guaranteed by Article 49 TFEU must be regarded as restrictions on the freedom of establishment. (99)

163. In particular, the concept of ‘restriction’ (or obstacle) goes further than discrimination based on nationality and covers measures which, although applicable without distinction, affect access to the market for economic operators from Member States and thus impede intracommunity trade. (100) Such a restriction exists, in particular, if access to the market in the host Member State is made more difficult by the measure in question (101) or if economic operators are deprived of the opportunity to gain access to the market of that host Member State under normal and effective conditions of competition. (102)

164. In addition, in accordance with the Court’s case-law, freedom of establishment is distinguished from freedom to provide services first and foremost by the stability and continuity of the activity in question, as opposed to an activity of a temporary nature. (103)

165. The concept of ‘establishment’ within the meaning of the FEU Treaty provisions on freedom of establishment involves the actual pursuit of an economic activity through a fixed establishment in the host Member State for an indefinite period. Consequently, it presupposes actual establishment of the company concerned in that Member State and the pursuit of genuine economic activity there. (104)

166. Last, according to settled case-law, a restriction on freedom of establishment is permissible only if, in the first place, it is justified by an overriding reason relating to the public interest and, in the second place, it complies with the principle of proportionality, which implies that it is suitable for securing, in a consistent and systematic manner, the attainment of the objective pursued and that it does not go beyond what is necessary in order to attain that objective. (105)

167. In this instance, it is common ground that the provision laying down the obligation for drivers to return is applicable without distinction to every transport undertaking engaged in the carriage of goods by road coming within the scope of Regulation No 561/2006. (106)

168. That provision, as such, does not regulate or in any way limit the freedom of economic operators established in one Member State from becoming established in another Member State, for example by creating agencies or other establishments on that territory.

169. The right to become established, where appropriate, by creating subsidiaries, in any Member State of its choice in order to organise its work in the best way possible in keeping with the obligation for drivers to return is, on the other hand, guaranteed to every transport undertaking by Article 49 TFEU, which, as is apparent from point 47 above, is directly applicable to the road transport sector and which was implemented, in that sector, by Regulation No 1071/2009.

170. Furthermore, Romania itself confirms that that provision does not restrict the possibility for transport undertakings from one Member State to become established in another Member State when it claims, in the context of its argument, that that obligation will result in transport undertakings established in Romania creating subsidiaries and branches in other Member States.

171. Nonetheless, Romania maintains that that obligation is likely to impose costs on hauliers which differ depending on the Member States, which, on the one hand, forces hauliers established in the peripheral Member States of the EU to relocate in the Member States of Central and Western Europe and, on the other hand, has a deterrent effect on operators established in the latter Member States becoming established in the peripheral Member States. In Romania’s submission, that obligation makes access to the market of other Member States by those establishments more difficult.

172. In that regard, I note that, although it applies without distinction to undertakings engaged in the carriage of goods by road in the sense indicated in point 167 above, there is no doubt that the obligation for drivers to return is capable of having a greater impact on transport undertakings whose drivers make journeys over a long period away from their place of posting or residence.

173. To my mind, however, that finding does not in any way mean that the provision at issue constitutes a breach of their freedom of establishment under Article 49 TFEU by depriving those undertakings of the opportunity to have access to the markets of other Member States under normal and effective conditions of competition, as stated in the case-law referred to in point 163  above.

174. As the Council correctly observes, the organisational, administrative and economic disadvantages resulting from the obligation for drivers to return to which Romania refers in the context of its argument – namely the costs of the trips made by drivers in order to return, possible losses of revenues and the additional administrative burdens and costs – are, rather, the consequence of the fact that a transport undertaking has chosen, for its own commercial reasons, to become established in a Member State on the periphery of the European Union while carrying out, sometimes permanently or mainly, its activities in other distant Member States where it provides the essential part of its transport services.

175. However, the provision at issue does not in any way limit that undertaking’s freedom to become established in those Member States, by setting up there and effectively carrying out the activity of haulier there by means of a stable establishment for an indefinite period. In spite of that obligation, those undertakings still remain free, if they wish to do so, to become established in any Member State of their choice. At most, that provision is capable of making an economic model such as that mentioned in the preceding point less attractive.

176. And yet, even on the view that that provision were capable of making the provision of transport services coming within the economic model referred to above less attractive, that would not entail an infringement of the FEU Treaty rules on fundamental freedoms. As was observed in detail in point 44 et seq. above, freedom to provide services in the field of transport is subject to a special regime. Hauliers have a right to the free provision of transport (in this instance road transport) services solely in so far as that right has been granted by means of measures of secondary law adopted by the EU legislature within the framework of the common transport policy.

177. In those circumstances, the EU legislature is perfectly entitled, by adapting a legislative measure in order to enhance the social protection of the workers concerned, to alter the conditions in which freedom to provide services in the field of road transport is exercised, since the degree of liberalisation, pursuant to Article 58(1) TFEU, is determined not directly by Article 56 TFEU but by the EU legislature itself in the context of the implementation of the common transport policy, as explained in points 45 and 46 above.

178. In that regard, I note that the Court has already made clear that, in relation to the free movement of, inter alia, services, the measures adopted by the EU legislature may not only have the objective of facilitating the exercise of that freedom, but may also seek to ensure, where necessary, the protection of other fundamental interests recognised by the European Union which may be affected by that freedom. (107)

179. In that context, I refer in particular to Article 9 TFEU, which provides that, in defining and implementing the policies and activities of the European Union, the legislature is to take into account the guarantee of adequate social protection.

180. It follows that, in the context of the measures adopted for the implementation of the common transport policy, the EU legislature may indeed, in order to counteract the deterioration of working conditions for drivers resulting from an economic organisation model such as that model referred to in point 174 above, adopt measures aimed at ensuring adequate social protection for those drivers, being aware that the EU legislature is entitled to weigh up the interests involved, in compliance with the principle of proportionality. The question of compliance with that principle is addressed in the following section.

181. It follows from the foregoing considerations that, in my view, contrary to Romania’s contention, point 6(d) of Article 1 of Regulation 2020/1054 does not infringe either Article 49 TFEU or the provisions of the FEU Treaty on freedom to provide services. Consequently, all the pleas raised by the applicant Member States alleging breach of the fundamental freedoms guaranteed by the FEU Treaty must be rejected.

(d)    Breach of the principle of proportionality

182. In their actions the Republic of Lithuania (Case C‑541/20), the Republic of Bulgaria (Case C‑543/20), Romania (Case C‑546/20) and the Republic of Poland (Case C‑553/20) maintain that point 6(d) of Article 1 of Regulation 2020/1054 does not meet the requirements flowing from the principle of proportionality that are defined in Article 5(4) TEU.

183. Those four Member State contest the proportionality as such of the obligation for drivers to return laid down in that provision. They claim, in particular, that the measure is manifestly inappropriate for attaining the legitimate objectives pursued by the legislation at issue and goes beyond what is necessary in order to attain those stated objectives.

184. Furthermore, Romania and the Republic of Poland also dispute the examination of proportionality carried out by the EU legislature and, in particular, the failure to carry out an impact assessment of the final version of the provision as ultimately adopted.

185. Those two aspects should be analysed separately.

(1)    The pleas relating to the proportionality of the obligation for drivers to return

(i)    Arguments of the parties

186. In the first place, according to the Republic of Lithuania, the Republic of Bulgaria, Romania and the Republic of Poland, the obligation for drivers to return is not consistent with the principle of proportionality in the light of the negative impacts which it has on drivers.

187. First, the four Member States claim that the obligation for drivers to return breaches the principle of proportionality in that, by limiting drivers’ right to choose for themselves where they intend to spend their rest period and thus affecting their freedom of movement, it is a manifestly inappropriate measure, going beyond what is necessary in order to attain the objective of improving workers’ rest conditions. In that context, the Republic of Poland maintains that that obligation is thus contrary to Article 4(f) of Regulation No 561/2006, according to which ‘“rest” means any uninterrupted period during which a driver may freely dispose of his time’. The Republic of Poland claims, next, that the EU legislature determined in an arbitrary manner, in the provision at issue, the places in which drivers are required to spend their rest.

188. Second, the four Member States claim that the obligation for drivers to return entails a higher number of trips, which causes driver fatigue, as drivers are required to return to the Member States on the geographic periphery of the European Union. The imbalance for drivers created by that obligation affects their health and their capacity for work, having regard to the exhaustion caused by the intensive pace of returns. That situation also has negative consequences for road safety. It follows that the measure at issue is not appropriate for attaining the objectives of Regulation 2020/1054 of improving the working conditions of drivers in the European Union and road safety.

189. Third, Romania claims that, although one of the objectives of Regulation 2020/1054, as is apparent from recital 1, is to attract qualified workers in the field of road transport, the fact that transport undertakings are forced to relocate because of the costs associated with the new obligation means that a significant number of drivers are actually in danger of losing their jobs or having to move to another Member State in order to be able to continue to exercise the activity for which they are qualified. According to the information available to Romania, more than 45% of transport undertakings in Romania envisage setting up companies or subsidiaries, or relocating their activities in other States of Western Europe in order to attenuate the negative effects of the measures of the first mobility package. Those negative effects are felt in a sector of critical importance for the national economy, as services consisting in the carriage of goods by road are among the sectors which generate the most important Romanian exports and make a significant contribution to the national trade balance.

190. In the second place, according to the Republic of Bulgaria, Romania and the Republic of Poland, the obligation for drivers to return is not consistent with the principle of proportionality in relation to the negative impacts that it has on hauliers. Those Member States maintain that that obligation gives rise to considerable financial costs for hauliers. First, the obligation gives rise to operating costs associated with organising the driver’s return, and also losses in revenues connected with the time spent in returning to the Member State of establishment during which the drivers, travelling empty, carry out no profitable activity, which limits commercial activity and reduces revenues. Second, the requirement imposed on hauliers by the third subparagraph of the provision at issue, to document how they fulfil the obligation for drivers to return, also gives rise to significant additional burdens. Hauliers are for the most part SMEs, for which all of those burdens are particularly heavy. The European Economic and Social Committee (EESC) has emphasised the need to limit the procedures and the European Committee of the Regions (CoR) has also indicated that Member States on the periphery of the European Union found it more difficult to reach the centre of the internal market. In addition, the contested provision was adopted in a period of economic crisis triggered by the COVID-19 pandemic, which amplifies its negative effects.

191. In the third place, according to the Republic of Bulgaria, Romania and the Republic of Poland, the obligation for drivers to return is not consistent with the principle of proportionality in relation to the negative impacts that it has on the environment. Those three Member States claim that that obligation means planning additional trips for the departure and return of thousands of drivers per day. Drivers who come from countries on the geographic periphery of the European Union are objectively required to travel over very long distances, much greater than those covered by their counterparts in Central and Western Europe, where the essential part of transport in the European Union is carried out. In addition, the returns in all likelihood take place with a reduced load or even unladen, thus forcing thousands of vehicles to travel empty. That significant increase in the number of journeys entails an increase in CO2 emissions and has a significant impact on the environment.

192. In the fourth place, the Republic of Bulgaria, Romania and the Republic of Poland claim that alternatives less onerous for drivers and hauliers existed. They maintain that drivers’ freedom could have been preserved by laying down an obligation for hauliers to organise a return only in cases in which drivers wish to return. Thus, hauliers would not bear excessive additional costs. That alternative guarantees greater flexibility and, accordingly, an appropriate protection of drivers’ rights. The Republic of Poland refers specifically to a measure to that effect proposed by the Parliament’s Committee on Employment and Social Affairs.

193. The Council, the Parliament and the interveners supporting them contend that all of those pleas must be rejected.

(ii) Analysis

194. It follows from the case-law referred to in point 52 et seq. above that, in this instance, in order to be able to respond to the pleas alleging breach of the principle of proportionality by point 6(d) of Article 1 of Regulation 2020/1054, the Court must ascertain whether the EU legislature, in laying down an obligation which requires transport undertakings to organise drivers’ work in such a way that they are able to return either to the operational centre where the driver is normally based, in the Member State of the employer’s establishment, or to their place of residence, manifestly exceeded the wide discretion which they enjoy in relation to the common transport policy, (108) by choosing a measure which is manifestly inappropriate by reference to the objectives which it intended to pursue or which causes disproportionate disadvantages by comparison with the stated aims.

195. In those circumstances, it is appropriate at the outset to determine the objectives pursued by the legislation at issue and, in particular, by point 6(d) of Article 1 of Regulation 2020/1054 – objectives the lawfulness of which is not disputed by the applicant Member States – in order to be able to proceed to analyse the pleas alleging breach of the principle of proportionality.

–       The objectives of the legislation at issue

196. Regulation 2020/1054 was adopted in the context of the ‘mobility package’ to adapt the legislative framework of the field of road transport to developments in the sector, (109) taking account of its specific nature and, in particular, its extremely mobile character.

197. In that context, Regulation 2020/1054 made amendments to Regulation No 561/2006 with the aim of attaining three objectives defined as ‘strategic’. Thus, it follows from recitals 1, 6 and 36 that that regulation aims, first, to improve drivers’ working conditions; second, to ensure undistorted and fair competition for road transport undertakings; and, third, to contribute to road safety for all road users.

198. Those objectives are closely interlinked, as social matters and competition matters are clearly interdependent, since the commercial practices that enable operators to obtain an unfair competitive advantage frequently deprive drivers of their fundamental rights to social protection and to adequate working conditions, and illegal practices also hinder the proper functioning of the internal market. (110)

199. As may be seen from the Impact assessment – social section, the legislative amendments in the proposal for a working time regulation sought to contribute to the following political objectives arising from the FEU Treaty: the sustainable development of the internal market, based on a highly competitive social market economy (Article 3 TEU); freedom to provide services across borders (Article 56 TFEU); the improvement of living and working conditions (Article 151 TFEU), and the establishment of common rules for fair and safe international transport services (Article 91 TFEU). (111)

200. In that context, the provision imposing on hauliers the obligation to organise drivers’ work in such a way that they are able to return regularly to the operational centre where they are normally based or to their place of residence has, as is apparent from recital 14 of Regulation 2020/1054, the specific objective of ensuring that periods which drivers spend away from their place of residence are not excessively long.

201. That provision seeks specifically to remedy the absence in the earlier legislation of rules relating to drivers’ return to their place of residence. The absence of such rules had been identified as one of the factors contributing to the deterioration in drivers’ social standards. In the impact assessment, the Commission had stated that long periods that drivers spent away from home contributed to driver stress and fatigue and ultimately affected their health and led to a difficult work-life balance. (112)

202. Furthermore, the absence of rules relating to drivers’ return had also been identified as one of the factors that had led to diverging interpretations and enforcement practices in the Member States. (113)

203. Thus, the provision imposing on hauliers the obligation for drivers to return is part of the more general strategic objective of Regulation 2020/1054 of ensuring good working conditions for drivers and improving those conditions, an objective which is itself linked with the requirement to ensure adequate social protection laid down in Article 9 TFEU, referred to in point 179 above.

204. In that context, the objective of the measure at issue of improving drivers’ work-life balance and therefore their living standard also contributes to the objective of attracting qualified drivers, (114) in the light of the general shortage of qualified drivers in the European Union. As stated in the impact assessment, that shortage is, at least in part, caused by the deterioration in working conditions, which is harmful to the image and attractiveness of the driving profession. (115)

205. Last, taking into account the direct link between ensuring an appropriate rest period for drivers and road safety, the obligation for drivers to return also forms part of the strategic objective of Regulation 2020/1054 of ‘contributing to road safety for all road users’. (116) That strategic objective is in keeping with the objective, referred to in Article 91(1)(c) TFEU, of improving transport safety.

206. It is therefore in the light of the foregoing considerations that the pleas alleging breach of the principle of proportionality raised by the Republic of Lithuania, the Republic of Bulgaria, Romania and the Republic of Poland should be analysed. Those Member States claim that the provision at issue is not consistent with the principle of proportionality in the light of the negative impacts which it has, in the first place, on drivers; in the second place, on hauliers; in the third place, on the environment; and, in the fourth place, by comparison with the existence of other less onerous alternatives.

–       The negative impacts on drivers

207. As regards, first, the complaint alleging that the obligation for drivers to return breaches the principle of proportionality because it limits the driver’s right to choose the place where he or she intends to spend his or her rest period, it is based on the incorrect premise that the provision at issue limits drivers’ freedom to spend their rest period at the place of their choice. It follows from points 125 to 129  above that that provision has no impact on drivers’ free choice as to the place in which they wish to spend their rest period. This complaint must therefore be rejected as unfounded. (117)

208. I consider, moreover, that the complaint raised by the Republic of Poland, alleging that the two alternatives chosen by the legislature in point 6(d) of Article 1 of Regulation 2020/1054, namely the operational centre where the driver is normally based, in the Member State of the employer’s establishment, and the driver’s place of residence, are arbitrary, must also be rejected.

209. First of all, it should be observed that, as the Council points out, those two places were already mentioned in Regulation No 561/2006, specifically in Article 9(2) and (3), even in the version that preceded the amendments made by Regulation 2020/1054, as two places which normally have a connection with the beginning or the end of the driver’s rest period. (118) It follows that the reference to those two places in the provision at issue as places where the rest period is begun is not a novelty, but is based on the legislation already in existence.

210. Next, with specific regard to the reference to the operational centre where drivers are normally based, it follows from the case-law that the operational centre corresponds to the place to which the driver regularly travels in the normal exercise of his or her functions in order to take over and drive a vehicle fitted with recording equipment. (119) The Court has made clear that the place to which the driver is actually attached is the transport undertaking facilities from which he or she usually carries out his or her service and to which he or she returns at the end of that service, in the normal exercise of his functions and without complying with specific instructions from his or her employer. (120) That place also corresponds to the place referred to in Article 5(1)(b) and (g) of Regulation No 1071/2009, as amended by Regulation 2020/1055, at which drivers are normally based and to which the vehicles regularly return.

211. It does not seem in any way arbitrary that the legislature chose the place to which the driver is actually attached, to which he or she returns in the normal exercise of his or her functions, as one of the places to which the driver must be entitled to return in order to begin his or her rest period. In spite of the fact that a driver’s work is characterised by extreme mobility and that he or she is therefore required to provide services in different places at different times, that does not in any way alter the fact that those workers are permanently based at an operational centre to which they normally travel to collect and return the vehicle. That place is therefore undoubtedly a place having a genuine link with the beginning and the end of the services provided by the driver in the context of his or her employment relationship with his or her employer, namely the haulier.

212. Nor is the reference to the driver’s place of residence the result of an arbitrary choice. It follows from the definition of ‘residence’ in the case-law referred to in point 135 above that the place of residence is a permanent place to which the driver will in all likelihood travel regularly in order to spend his or her rest period there. Although the driver may on occasion wish to travel to other places for leisure or other purposes, he or she will certainly be able to do so without the undertaking being required to allow him or her to travel to such places, which may vary all the time. However, that does not alter the finding that the place of residence also undoubtedly constitutes a place having a genuine link with the rest period.

213. It follows that the legislature’s choice of the operational centre and the driver’s place of residence as the places to which the haulier is required to organise the driver’s return within the framework of the organisational obligation placed on it is neither arbitrary nor manifestly inappropriate.

214. As regards, second, the complaint alleging that the obligation for drivers to return is inappropriate for attaining the objectives of Regulation 2020/1054, having regard to the exhaustion and fatigue which the greater number of journeys linked with the return causes to drivers, it should be considered that, as stated in point 201 above, it was with the specific desire to improve drivers’ social conditions that the provision at issue was adopted, precisely in order to prevent long periods away from their place of residence from contributing to stress and fatigue and thus to the deterioration of their health.

215. In that regard, it should first of all be observed that the rest period will begin only when the driver has arrived at his or her place of residence or the employer’s operational centre, which follows from the actual wording of the provision at issue, which refers expressly to the beginning of the rest period. In addition, it follows from Article 9(2) and (3) of Regulation No 561/2006 that the driving time necessary for the driver to travel to a location to take charge of a vehicle or to return from that location is not, in principle, to be regarded as rest. Thus, the time spent driving the vehicle, if that is the means used for the driver to return to the operational centre or to the place of residence, is counted as driving time, and therefore as working time, in the same way as any other time spent driving the vehicle in any other place. It follows that the obligation for drivers to return will not in any way entail additional driving time and cannot therefore give rise to additional fatigue for drivers. It also follows that that measure, too, will not have negative impacts for road safety.

216. As regards, third, the arguments raised by Romania concerning the negative consequences for drivers and the Romanian economy owing to the possible loss of employment in Romania because of what is alleged to be the forced relocation of transport undertakings to the Member States of Western Europe, I observed in points 172 and 174 above that the obligation for drivers to return, while being applicable without distinction, is nonetheless capable of having a greater impact on certain transport undertakings whose economic organisation model entails drivers making journeys over a long period away from home or from their place of posting.

217. However, it follows from the impact assessment that before the provision at issue was adopted most drivers, in particular from the ‘EU-13’ Member States, (121) spent less than four weeks away from their place of residence, (122) so that it may be presumed that undertakings choosing such an economic model represent an appreciable, but minority, number. It follows that any impact on employment arising from what is alleged to be a forced change of economic organisation model seems to be rather limited.

218. Furthermore, as I observed in point 201  above, it follows from the impact assessment that a legislative intervention in that respect was considered necessary in order to counteract the deterioration in working conditions resulting for drivers spending long periods away from their place of residence. It was also observed that the provision imposing on hauliers the obligation for drivers to return is part of the more general strategic objective of ensuring good working conditions for drivers and improving those conditions, in keeping with the general objective pursued by Article 9 TFEU. (123)

219. It follows from the Court’s case-law that the EU legislature cannot be denied the possibility of adapting a legislative act, notably in the sector of the common transport policy, to any change in circumstances or advances in knowledge, having regard to its task of safeguarding the general interests recognised by the FEU Treaty and of taking into account the overarching objectives of the European Union laid down in Article 9 TFEU, including the requirements pertaining to the promotion of a high level of employment and the guarantee of adequate social protection. (124)

220. In particular, the Court has already recognised in that respect that, in view of the significant developments which have affected the internal market, not least because of the successive enlargements of the European Union, the EU legislature was entitled to adapt a legislative act, in order to restore the balance of the interests involved with the aim of increasing drivers’ social protection by amending the conditions in which they exercise the freedom to provide services. (125)

221. It follows that, to my mind, the legislature, in the context of the wide discretion which it has in common transport policy matters, in weighing up the different objectives and interests involved, may consider that it is appropriate to adopt a specific measure aimed at improving drivers’ working conditions in spite of any negative consequences which it may have in one or more Member States and in spite of the higher costs which the measure might cause for a minority, even if not negligible, number of undertakings in those Member States which use nomadic drivers to provide services on a more or less permanent basis in other Member States and which might thus have to change their economic organisation model, with a limited potential impact on employment. Such an approach appears to be consistent with the social ambitions of the European Union as set out in, among other provisions, Article 9 TFEU and does not appear to be the result of the EU legislature’s having exceeded its wide discretion.

222. In addition, it follows from the case-law referred to in point 60 above that when the EU act concerned has consequences in all Member States and assumes that a balance will be ensured between the various interests involved, taking account of the objectives pursued by that act, the EU legislature is not required to take the individual situation of each Member State into consideration. Therefore, the search for such a balance, taking into consideration not the individual situation of the various Member States, but the situation of all the Member States of the European Union, cannot in itself be considered to be contrary to the principle of proportionality.

223. It follows from the foregoing considerations that to my mind all the complaints relating to the alleged breach of the principle of proportionality by reference to the negative impacts that the obligation for drivers to return would have for drivers must be rejected.

–       The negative impacts on hauliers

224. Three of the applicant Member States claim that point 6(d) of Article 1 of Regulation 2020/1054 breaches the principle of proportionality with regard to the negative impacts which the obligation for drivers to return provided for therein has on hauliers, owing to the increase in costs and losses of revenues to which that obligation gives rise for them.

225. Those Member States refer to two types of costs linked with the fulfilment of that obligation: first, the additional costs and losses of revenue resulting from the organisation of the driver’s return; and, second, the costs resulting from the requirement imposed on hauliers by the third subparagraph of point 6(d) of Article 1 of Regulation 2020/1054 to document how they fulfil the obligation for drivers to return.

226. As regards, first, the additional costs which hauliers must bear in order to organise the drivers’ return, it should be observed at the outset that the legislature guaranteed a certain degree of flexibility to hauliers with regard to the implementation of the obligation for drivers to return. First, as stated in point 134 above, hauliers may choose between two places to organise the driver’s return, one of which is the undertaking’s operational centre and therefore a place having a direct connection to the haulier itself. Second, as I have already observed in point 132  above, by not specifying precisely the procedure for implementing the obligation for drivers to return, the legislature afforded the undertaking room for manoeuvre by allowing it to choose what it considers to be the best way to implement that obligation. Furthermore, I also note that the period mentioned in the provision at issue for the regular return of drivers does not appear to be manifestly disproportionate and in fact is not called into question by any Member State.

227. In addition, the legislature adopted, in connection with the obligation for drivers to return, a number of measures facilitating their return. It added to Article 12 of Regulation No 561/2006, as amended by Regulation 2020/1054, four new paragraphs which allow a driver to exceed the daily and weekly driving time by up to one hour to reach the employer’s operational centre or the driver’s place of residence to take a weekly rest period. Provided that certain additional conditions are met, that period may be increased to up to two hours for a regular weekly rest period. It follows from the impact assessment that the justification for that amendment was to allow drivers, in particular those engaged in long international trips, to reach their place of residence or their base to take a regular weekly rest period at home (or in another private place of choice). (126)

228. It follows from those considerations that, in leaving significant flexibility as to the procedure for implementing in concreto the obligation for drivers to return, the legislature intended, in a manner consistent with the case-law referred to in point 55 above, to ensure that any burden imposed on economic operators is the least onerous possible and proportionate to the objective to be attained.

229. In addition, as I observed in point 217 above, it follows from the impact assessment, first, that most drivers, especially from the ‘EU-13’ Member States, already spent less than four weeks away from their place of residence before the provision at issue was adopted. (127) In those circumstances, it may be reasonably considered that the impact of that measure, in terms of additional costs by comparison with the pre-existing situation, would be rather limited.

230. In that regard, I observe that, contrary to the Republic of Poland’s assertion, that finding is not capable of calling into question the need for the measure at issue. First, as stated in points 201 and 203  above, the measure was necessary in order to counter the phenomenon of ‘driver nomadism’ which concerned a non-negligible, although minority, number of drivers and had been identified as one of the factors contributing to the deterioration in drivers’ social conditions, but also as one of the factors which had led to diverging interpretations and enforcement practices in the Member States. In addition, the impact assessment had shown an increase in periods spent away from home and therefore a tendency for that phenomenon of ‘nomadism’ to increase. (128)

231. Second, the impact assessment had also shown that it was even possible that, owing to increased efficiency in the organisation of work, reductions in costs would be produced. (129) From that aspect, as regards the argument alleging losses in revenues, I note that the obligation for drivers to return is an obligation of organisation. Apart from the considerations which I shall set out in point 234 below, it is by no means obvious, let alone proved, that operators are unable to organise work in an economically profitable manner, while allowing drivers to exercise their right to return.

232. As regards, second, the costs arising from the requirement, referred to in the third subparagraph of point 6(d) of Article 1 of Regulation 2020/1054, to document how the hauliers fulfil the obligation for drivers to return, it should be emphasised that, as was observed in point 140 above, here, too, the EU legislature left a margin of discretion to the undertakings. It chose not to specify precisely the document necessary to satisfy that requirement to prove that the undertaking has fulfilled the obligation for drivers to return, by also allowing the Member States to adopt any implementing measures. However, recital 14 of Regulation 2020/1054 refers to two documents that, together with any ‘other documentation’, may be used by the transport undertaking to show that it fulfils the obligations regarding the organisation of the regular return: tachograph records and drivers’ duty rosters.

233. In accordance with the legislation in force even before Regulation 2020/1054 was adopted, (130) a transport undertaking was already required to keep tachograph records and drivers’ duty rosters at its premises. It follows that no new procedure is in principle necessary in order to comply with the requirements of proof that the undertaking has fulfilled the obligation for drivers to return. Quite to the contrary, the legislature introduced an additional degree of flexibility by affording undertakings the possibility of complying with those requirements in any other way and Member States the possibility of laying down, if necessary, additional implementing procedures, taking into account any specificities of the national context. In those circumstances, it cannot be considered that the provision at issue gave rise, in that respect, to manifestly disproportionate consequences for hauliers.

234. Last, and in any event, I note again, with regard to the two categories of costs referred to above, that, as already observed on several occasions, the provision laid down in point 6(d) of Article 1 of Regulation 2020/1054 was adopted specifically in order to protect and promote drivers’ social rights and to ensure that the time spent away from their place of residence is not excessively long. Any granting of social rights has a cost. It does not therefore seem surprising that the obligation for drivers to return may give rise to additional costs for the undertakings that are required to comply with it. However, as is apparent from the case-law referred to in points 57 and 60 above, the Court can find fault with the legislature’s normative choice only if it appears to be manifestly incorrect or if the disadvantages resulting for certain economic actors are disproportionate to the advantages which it otherwise presents, which it is for the applicant to prove. However, the applicant Member States have provided no proof that the obligation for drivers to return causes such disadvantages to hauliers.

–       The negative impacts on the environment

235. The Republic of Bulgaria, Romania and the Republic of Poland claim, in addition, that point 6(d) of Article 1 of Regulation 2020/1054 breaches the principle of proportionality with respect to the negative impacts that the obligation for drivers to return laid down in that provision has on the environment.

236. As regards the argument that that obligation entails planning additional trips for the return of thousands of drivers per day, it should be observed that, as I noted in points 217 and 229  above, the impact assessment had shown that most drivers, in particular from the ‘EU-13’ Member States, already returned, before the provision at issue was adopted, to the place of residence in a period of less than four weeks. It follows that the impact of the measure on the environment owing to the increase in CO2 emissions would be limited to additional returns resulting from the implementation of the measure at issue.

237. To that consideration, it is also appropriate to add that, contrary to the three Member States’ apparent assumptions, it is not inevitable that drivers will use empty vehicles in order to exercise their right to return, since, in the context of the flexibility which the provision at issue leaves to hauliers to organise the driver’s return, (131) it is quite possible for drivers to make use of other means of transport in order to return, such as public transport, the use of which does not entail additional emissions. Nor is it precluded that the right of return may be combined with the return of the undertaking’s vehicles to the operational centre within the framework of ordinary commercial activities. It is therefore rather a question of organising the return, with any increase in emissions depending solely on the organisational choices made by the hauliers.

238. From the same aspect, it follows from the fact that the measure at issue may have a greater impact on some transport undertakings which have chosen the economic organisation model such as that referred to in points 172 and 174 above without exercising their right – guaranteed by EU law (132) – to become established in the Member States in which they provide most of their transport services, that any increase in emissions is not directly linked to the measure at issue, but is rather the result of the undertakings’ economic organisational choice.

239. In such a context, I consider that, by virtue of the case-law, (133) the legislature, within the framework of the wide discretion which it enjoys in common transport policy matters, and after weighing up the various objectives and interests involved, may, without manifestly exceeding that wide discretion, adopt a specific measure aimed at improving drivers’ working conditions on the basis of the conclusion that any relatively moderate increase in emissions associated with the provision at issue may be offset by the advantages which the measure affords to drivers in social terms.

240. It is for the legislature – and the Court cannot substitute its own assessment (134) – to strike a balance between, in particular, the social objectives and the environmental objectives, while taking into account that, as will be explained in greater detail in points 317 and 318 below, EU law, and in particular Article 11 TFEU, which has as its objective sustainable development, does not impose a systematic obligation, for the adoption of each individual provision, to ensure that the requirements linked with the protection of the environment always prevail over other requirements which the legislature must also take into account, flowing from the provisions of primary law such as the requirement to ensure adequate social protection laid down in Article 9 TFEU. (135)

–       The existence of less onerous alternatives

241. Some of the Member States claim that less onerous alternatives exist than the imposition of an obligation for drivers to return such as that laid down in point 6(d) of Article 1 of Regulation 2020/1054. Those Member States refer in particular to the possibility of introducing an obligation for hauliers to organise the return only in cases where drivers wish to return.

242. In that regard, it should first of all be observed that, as some of those Member States have themselves observed and as is apparent from the file, that alternative was considered during the legislative process, but was eventually rejected. The proposal of the Parliament’s Committee on Employment and Social Affairs, referred to by the Republic of Poland in its action, proves that that is the case.

243. Next, as the Council rightly emphasises, the driver is the weaker party in the contractual relationship between employer (haulier) and employee (driver). A legislative solution such as that envisaged by those Member States might well result in the choice of the worker, as the weaker party in the employment relationship with the haulier, not being entirely free and the driver being put under pressure to make a choice that suits the interests of the employer. The impact assessment, moreover, had highlighted the difficulty in proving that drivers actually exercise a ‘free choice’. (136)

244. It follows that the alternative envisaged by some of the Member States does not appear to be an appropriate measure for attaining the specific objectives pursued by point 6(d) of Article 1 of Regulation 2020/1054.

245. To conclude, having regard to all of the foregoing considerations, I consider that all of the pleas alleging that the obligation for drivers to return is manifestly inappropriate for attaining the legitimate objectives pursued by the legislation at issue and goes beyond what is necessary to attain those objectives should be rejected.

(2)    The pleas relating to the examination by the EU legislature of the proportionality of the obligation for drivers to return

(i)    Arguments of the parties

246. Romania and the Republic of Poland claim that the EU legislature did not analyse several relevant circumstances of the situation which point 6(d) of Article 1 of Regulation 2020/1054 is intended to govern, as it did not carry out an appropriate impact assessment. The final version of the provision at issue was not the subject of an impact assessment and the effects of that definitive version were therefore not taken into account, which constitutes a breach of the interinstitutional agreement.

247. First, the Republic of Poland claims that the legislature did not carry out an appropriate assessment of the impact of the obligation on driver safety. It maintains that the legislature ignored an opinion of the EESC that had regretted the fact that the proposed amendments were not accompanied by a detailed assessment of driver, passenger or road safety in relation to driver fatigue. (137) Romania maintains that the impact on workers of long trips repeated over short periods was not taken into account when point 6(d) of Article 1 of Regulation 2020/1054 was adopted.

248. Second, the Republic of Poland claims that the legislature did not assess whether compliance with the obligation for drivers to return would contribute to an increase in traffic. In practice, that obligation is fulfilled by means of road transport, so that compliance with that obligation gives rise to 8 880 000 return trips over a year. Nor did the legislature take into account the considerable distances that drivers from the peripheral States of the European Union will have to cover for the purpose of complying with that obligation.

249. Third, the Republic of Poland claims that, unlike its initial version, the final text of the provision at issue, in its third subparagraph, requires hauliers, without an impact assessment having been carried out, to document how they fulfil the obligation laid down in that subparagraph and to keep that documentation in order to be able to present it in the event of a control. Burdens of that type should be preceded by a comprehensive assessment of the effects, taking into consideration the fact that hauliers are mainly SMEs.

250. The Council, the Parliament and the interveners supporting them contend that all of those pleas must be rejected.

(ii) Analysis

251. As a preliminary point, it should be observed that in this instance it is common ground that the EU legislature did indeed have an impact assessment at its disposal when it adopted Regulation 2020/1054 and that the provision laying down the obligation for drivers to return was covered by that impact assessment.

252. However, the EU legislature adopted a final version of that provision that was different from that contained in the proposal for a working time regulation (138) and was not the subject of a specific impact assessment.

253. That final version contained, fundamentally, three differences by comparison with the provision as proposed by the Commission.

254. First, the proposal for a working time regulation required transport undertakings to organise the work in such a way as to allow the driver solely to return ‘home’. The final version of that provision adopted in Regulation 2020/1054 provides for the possibility for transport undertakings to choose between two places to organise the driver’s return, namely the driver’s place of residence and the operational centre, analysed in detail in points 210 to 212 above.

255. Second, that Commission proposal required the undertaking to allow the driver to return in every period of three consecutive weeks. The final version of the provision at issue, on the other hand, allows the driver to return, normally, (139) during each period of four consecutive weeks.

256. Third, the final version of the provision at issue added a third subparagraph, which was not included in the Commission proposal, according to which the undertaking is to document how it fulfils the obligation for drivers to return and is to keep the documentation at its premises in order to present it at the request of the control authorities.

257. It follows that, apart from the introduction of the third subparagraph, the final version of that provision adopted by the legislature broadly corresponded to that envisaged by the Commission in its proposal drawn up on the basis of the impact assessment. As the Council emphasises, that final version, however, is less onerous for transport undertakings. By providing for a second place to which the driver may return and for a longer period, the final version affords undertakings a greater degree of flexibility when implementing the obligation for drivers to return that is imposed on them.

258. It is in that context that it must be verified, in the light of the complaints put forward by the Member States, whether in this instance the legislature breached the principle of proportionality in the light of the fact that the final version of the provision at issue was not the subject of an updated impact assessment and that the third subparagraph added was not the subject of a specific impact assessment.

259. As regards, in the first place, the complaint that the legislature did not carry out an appropriate assessment of the impact of the obligation for drivers to return on driver safety, in relation to the additional fatigue which the return trips would cause them, I refer to the considerations which I set out in points 214 and 215 of this Opinion. It follows from those considerations that the obligation for drivers to return will not in any way entail additional driving time and cannot therefore give rise to additional driver fatigue and, therefore, to risks for driver safety. On the contrary, as already pointed out on a number of occasions, that provision is specifically designed to improve their social condition.

260. In addition, as was observed in points 217 and 229 above, the impact assessment showed that most drivers, in particular those from the ‘EU-13’ Member States, already spent less than four weeks away from their place of residence before the provision at issue was adopted, so that it could it could already be expected on the basis of the impact assessment that the adoption of the obligation for drivers to return would have an impact on a limited, even if significant, number of drivers.

261. As for the Republic of Poland’s reference to the opinion of the EESC, I observe that, although that committee plays a very important role in the legislative procedure, it follows from Article 13(4) TEU and from Article 300(1) TFEU that it has an advisory role. It follows that the legislature is not required in every case to follow the recommendations contained in an opinion of that committee, especially if it considers that it has sufficient information at its disposal to make non-substantial amendments to a provision by comparison with that envisaged in the Commission proposal on the basis of an impact assessment.

262. In the second place, the Member States raise a complaint alleging that the legislature did not assess whether the implementation of the obligation for drivers to return would contribute to increased traffic, which would be harmful, in particular, to the environment. (140)

263. In that regard, it is appropriate, first, to observe that the impact assessment had expressly concluded that ‘no environmental impact ha[d] been identified’. (141) In the absence of other explanations, such an assertion does not appear to be sufficient to justify an assessment of the impact of the provision at issue on the environment which, in the context of the necessary weighing-up of the various objectives and interests involved, would permit the conclusion that that measure was proportionate by reference to its impact on the environment. However, in my view it is apparent from the file that, on the basis of other information that the legislature had at its disposal when it adopted the provision at issue, it was able to make such an assessment.

264. Second, as I have observed on a number of occasions, (142) the impact assessment shows that most drivers, both in the ‘EU-15’ Member States and in the ‘EU-13’ Member States, already spent less than four weeks away from their place of residence before the provision at issue was adopted, so that the impact of the measure on the environment owing to the increase in CO2 emissions would be limited to additional returns resulting from the implementation of the measure at issue.

265. Third, it also follows from the information available to the legislature, which has not really been disputed by the Member States concerned, that the application of the measure at issue was likely to increase heavy goods traffic by less than 0.1%. (143)

266. In those circumstances, I consider that the legislature cannot be accused of not having based its assessment on the relevant elements and circumstances of the situation that the provision at issue was intended to regulate.

267. In the third place, the Republic of Poland claims that there was no impact assessment with respect to the third subparagraph of point 6(d) of Article 1 of Regulation 2020/1054, which requires hauliers to document how they fulfil the obligation for drivers to return.

268. In that regard, however, I observe, first, that in its impact assessment the Commission had expressly shown, providing precise data, that non-compliance with the EU social, labour and market legislation, and the difficulty in ensuring compliance with the applicable rules, were among the main problems in road transport matters. (144) The provision laid down in the third subparagraph aims to require an undertaking to demonstrate that it has complied with its obligations under the law. The introduction of such a provision thus addresses a problem that is clearly highlighted in the impact assessment.

269. Second, it is apparent from points 232 and 233 above that that provision did not introduce any new procedure for meeting the requirements of proof of compliance with the obligation for drivers to return, but that, on the contrary, the legislature introduced a significant degree of flexibility for undertakings.

270. In those circumstances, in my view, the EU legislature cannot be considered to have breached the principle of proportionality by not carrying out a specific impact assessment with respect to a provision that merely requires an undertaking to demonstrate that it has fulfilled its obligations under the law, without introducing any new procedure for meeting the requirements of proof. That conclusion applies a fortiori in a situation in which the introduction of the provision addresses a problem explicitly highlighted in the impact assessment.

271. In conclusion, it follows from all of the foregoing considerations that, in my view, all the pleas claiming that point 6(d) of Article 1 of Regulation 2020/1054 does not meet the requirements arising from the principle of proportionality must be rejected.

(e)    The infringement of Article 91(2) and Article 94 TFEU

(1)    Arguments of the parties

272. In their actions, the Republic of Poland (Case C‑553/20) and Romania (Case C‑546/20) claim that, in adopting point 6(d) of Article 1 of Regulation 2020/1054, the EU legislature did not comply with the requirements flowing from Articles 91(2) and 94 TFEU.

273. As regards the infringement of Article 91(2) TFEU, the Republic of Poland claims that the superficial nature of the impact assessment and the absence of such an assessment with respect to the provision at issue do not permit the conclusion that the impact of that provision on the standard of living and level of employment in certain regions, and on the operation of transport facilities, was taken into account. In spite of the legislature’s discretion, the obligation to take account of the elements set out in Article 91(2) TFEU cannot be limited to taking note of those elements, on pain of depriving that provision of its effectiveness.

274. As regards, in the first place, the effect on the operation of transport facilities, the impact assessment did not take account of the consequences of the rise in the number of journeys on the principal transit routes in the European Union resulting from the obligation to make 8 880 000 return trips over one year. Those additional journeys increase road congestion and thus further aggravate the deterioration of the road infrastructures already found by the Commission. In that context, it is necessary to take account of the ‘Law of the fourth power’, (145) according to which the effect of the deterioration of the roads increases exponentially with the increase in the weight of the vehicle raised to the fourth power. Although heavy goods vehicles are less numerous than passenger cars, their impact on the infrastructures is much greater.

275. As regards, in the second place, the effect on employment and the standard of living, the increase in road traffic is also harmful to the quality of life in areas close to the main transport hubs, and to road safety. Nor was account taken of the severe consequences for drivers and undertakings established in the peripheral States of the European Union, for which the average length of return trips to the operational centre is considerably greater, or of the additional administrative and organisational burdens imposed on transport undertakings, more than half of which are SMEs, thus risking, in all likelihood, causing the bankruptcy of numerous transport undertakings or their transfer to States at the centre of the European Union. The evaluation contained in the impact assessment is restricted and summarised and too superficial to allow any conclusions to be drawn about the effects of the provision at issue on employment in certain regions.

276. As regards the infringement of Article 94 TFEU, the Republic of Poland claims that, in adopting the measure at issue, the legislature did not take account of the economic situation of hauliers, and that the impact assessment was too superficial in its examination of the impact of the proposed legislation on SMEs. The increased mileage inevitably resulting from the obligation for drivers to return should be evaluated in the context of the mobility package as a whole, which also includes Regulation 2020/1055. According to the Republic of Poland, the application of the provisions of that regulation gives rise to trips of 2 035 200 000 kilometres per year just for vehicles returning to operational centres in Poland. On the assumption that 60% of those journeys are made unladen, those vehicles cover 1 221 120 000 kilometres empty in a year. The Republic of Poland maintains that, among the numerous available measures designed to ensure that workers exercise their right to rest, the EU legislature chose the one that is most onerous for undertakings.

277. One of the effects of that situation is that some of the transport companies from the sector of SMEs established in the peripheral States of the European Union, because they are far removed from the geographic centre of the European Union, find it particularly difficult to fulfil the organisational requirements associated with the obligation for drivers to return to the operational centre or to their place of residence. Some of the undertakings may also decide to transfer their operational centre to the States at the centre of the European Union. The premise that the commercial decision to relocate the undertaking is not capable of causing them harm cannot be supported. The transfer of the undertaking’s seat represents a very significant burden for the functioning of the undertaking. In addition, unlike multinationals, the specificity of SMEs is reflected, inter alia, in the fact that they are linked to the place from which they provide their services.

278. The adoption of the contested provision during the COVID-19 pandemic also shows that the economic circumstances of hauliers was not taken into account. The economic effects of the outbreak are particularly felt in the transport sector, which is exposed to the fall in demand and to the restrictions on crossing internal borders reintroduced by the Member States. Those effects were already present during the legislative procedure, as the mobility package was adopted in July 2020.

279. Romania also maintains that the legislative solution adopted is contrary to the requirements of Article 91(2) TFEU and Article 94 TFEU in that it adversely affects the circumstances of hauliers. Since the organisation of the driver’s return entails greater losses for undertakings established in the Member States situated on the geographic periphery of the European Union, those undertakings are forced, in order to reduce their costs, to divert their activities to the States of Western Europe by setting up subsidiaries or branches there, or indeed by relocating their activity to those States. The transport sector is an essential sector for the national economy, especially for Romania and for other Member States on the geographic periphery of the European Union, in particular where exports are concerned.

280. The Council, the Parliament and the interveners supporting them contend that all of those pleas must be rejected.

(2)    Analysis

(i)    The scope of Articles 91(2) and 94 TFEU

281. Both Article 91(2) TFEU and Article 94 TFEU are included in Title VI of Part Three of the FEU Treaty on the common transport policy and provide that, when measures relating to that policy are adopted, account is to be taken of certain matters referred to therein.

282. As regards, in the first place, Article 91(2) TFEU, pursuant to that provision, when the measures to implement the common transport policy referred to in paragraph 1 of that article are adopted, account is to be taken of cases where their application might seriously affect the standard of living and level of employment in certain regions, and the operation of transport facilities.

283. That provision of the FEU Treaty was substantially amended by the Treaty of Lisbon. Whereas the earlier provision, namely Article 71(2) EC, provided for a special legislative procedure requiring unanimity for measures seriously affecting the standard of living and employment in certain regions, and the operation of transport facilities, Article 91(2) TFEU now provides only that ‘account shall be taken’ of cases where the application of the measure seriously affects those parameters.

284. Neither the FEU Treaty nor the case-law defines the concepts of ‘standard of living and level of employment in certain regions’ or of ‘operation of transport facilities’. In that regard, it may however be observed that the ‘regions’ in which a serious effect on the standard of living and level of employment must be considered may consist of one or several Member States. Thus, the concept of ‘operation of transport facilities’ may, in my view, be understood as including the terrestrial, maritime and air transport infrastructures which are operated as facilities open to users.

285. In any event, as follows from the use of the word ‘seriously’, the effect of the application of the measure at issue on the parameters indicated in the provision must be sufficiently significant. The mere fact that those parameters are affected by a measure is not sufficient to trigger the application of that provision.

286. As regards, in the second place, Article 94 TFEU, pursuant to that provision any measures taken within the framework of the Treaties in respect of transport rates and conditions is to take account of the economic circumstances of hauliers. That provision is intended to ensure that a measure in respect of transport rates and conditions does not solely pursue the interests of road users or other public interests, (146) thus wholly disregarding the economic circumstances of transport undertakings.

287. As regards the content of the obligation laid down in Article 94 TFEU, the Council claims that the fixing of rates in the field of the carriage of goods by road has been deregulated (147) and that the provision at issue, namely point 6(d) of Article 1 of Regulation 2020/1054, does not cover transport costs as such. In that regard, it is unclear, however, whether that obligation laid down in Article 94 TFEU relates only to measures whose direct subject matter is transport costs and conditions, or also to those that result in increased costs and have an effect on the profitability of transport undertakings, in other words, those which indirectly influence costs. (148) If the latter interpretation is the one to follow, then a measure having an indirect impact on transport rates comes within the scope of Article 94 TFEU.

288. Both Article 91(2) and Article 94 TFEU lay down mere obligations to ‘take account’ and therefore do not have an absolute value. (149)

289. Under those provisions, the EU legislature, when adopting measures in the field of the common transport policy, is required to take account of the specific parameters and objectives stated therein. They create the same degree of legal obligation as the horizontal clauses in Article 8 et seq. TFEU, which also lay down the obligation for the EU legislature to ‘take account’ of certain political objectives when defining and implementing all of its policies and its action. (150)

290. Articles 91(2) and 94 TFEU therefore require and assume that the legislature will weigh up the objectives pursued by a measure and the interests involved. (151)

291. However, as the Parliament and the Republic of Germany rightly observe, the obligation laid down in those two provisions to take account of the elements referred to therein does not imply any restriction of the discretion which the legislature enjoys in the context of the powers which are conferred on it in areas such as the common transport policy, (152) in which its action entails political, economic or social choices and in which it is required to carry out complex appraisals and assessments while seeking to strike a balance between the various interests involved.

292. The need to find that balance therefore does not in any way preclude the possibility for the legislature to adopt acts having negative effects on the parameters indicated in the two provisions. The obligation for the legislature flowing from those provisions is the obligation to take account of the effects which are harmful to those parameters – in the cases referred to in Article 91(2) TFEU, only the cases in which there is a ‘serious’ effect on those parameters – when weighing up the objectives pursued by a measure and the interests involved, which, ultimately, is covered by the assessment of the proportionality of the measure.

293. In that context, owing to the need to weigh up the different objectives and interests, and to the complexity of the implementation of those criteria, review by the Court must necessarily be limited to the question whether the EU legislature made a manifest error of assessment as regards the conditions for the application of Articles 91(2) and 94 TFEU. (153)

294. It is in the light of those considerations that the pleas alleging infringement of Articles 91(2) and 94 TFEU must be examined.

(ii) The alleged infringements of Articles 91(2) and 94 TFEU

295. As regards, first, the alleged breach of the requirement laid down in Article 91(2) TFEU to take account of the serious effect on transport facilities, raised by the Republic of Poland, it must be stated that that Member State has not proved either that the application of the obligation for drivers to return laid down in point 6(d) of Article 1 of Regulation 2020/1054 will give rise to such a serious effect or that the legislature made a manifest error of assessment, in that regard, by adopting the measure at issue.

296. The Republic of Poland relies on a significant increase in the number of journeys on the main transit routes of the European Union, but does not really dispute the Council’s assertion that it follows from the information available to the legislature that the application of the measure at issue was likely to cause heavy goods traffic to increase by less than 0.1%. (154) Even on the assumption that that figure had to be adjusted in application of the ‘Law of the fourth power’ to which the Republic of Poland refers, it must be stated that, in such circumstances, it cannot be asserted that the provision at issue is capable of having serious effects on road infrastructures.

297. For the remainder, the Republic of Poland merely claims that that increase in the number of journeys will worsen the state of the transport structures, which is already in an unsatisfactory state. However, it produces no proof that the effect resulting from the application of the measure at issue on those infrastructures will be so significant as to justify the finding of a ‘serious’ effect within the meaning of Article 91(2) TFEU.

298. Nor, second, as regards the alleged breach of the requirement laid down in Article 91(2) TFEU to take account of the serious effect on the standard of living and level of employment in certain regions, in the light of the considerations and the figures mentioned in point 265 above, can it be asserted that the provision at issue will have serious effects on the quality of life in the areas close to the main road transport routes and on road safety.

299. As regards the complaint that the legislature did not take account of the severe consequences for drivers, I refer to point 201 et seq. and also to points 214 and 215 above, from which it is apparent that, quite to the contrary, the provision at issue was adopted precisely in order to improve the social conditions of drivers. Furthermore, although Article 91(2) TFEU refers to employment and the standard of living in certain regions, which, as I have just said, (155) may correspond to one or several Member States, that does not alter the fact that the EU legislature cannot disregard other regions or the circumstances of the European Union as a whole. (156)

300. As regards the complaint that the legislature did not take account of the consequences for transport undertakings established in Member States on the periphery of the European Union owing to the increase in their costs, I refer to points 224 to 234 and to point 216 et seq. of this Opinion, from which it is apparent that, when the interests affected are weighed up by the EU legislature in the context of its wide discretion in common transport policy matters – a balancing exercise which Article 91(2) TFEU assumes will be carried out (157) – any negative effects flowing from the provision at issue for undertakings which have chosen an economic model such as the one described in point 174  above cannot entail a breach of the principle of proportionality.

301. In addition, it should be observed that the structure of workforce supply and demand was also examined in the impact assessment. (158) The market structure, including the large proportion of SMEs, was also taken into consideration in the impact assessment, which showed that the measure at issue would have diverse impacts on the different parts of the European Union. (159)

302. As regards, third, the alleged infringement of Article 94 TFEU, the arguments alleging failure to take account of the economic circumstances of hauliers and the criticisms of the impact assessment with regard to the taking into account of SMEs were examined in the preceding points of this Opinion.

303. For the remainder, I observe that the arguments based on Regulation 2020/1055 will be examined in the part of this Opinion devoted to the actions directed against that regulation. In that regard, it should be observed that, although both Regulation 2020/1055 and 2020/1054 are part of a package of measures adopted in a coordinated manner, they pursue objectives that do not wholly coincide. Whereas the obligation for drivers to return relates, within the framework of the general objectives of Regulation 2020/1054, to the objectives of a fundamentally social nature described in detail in points 196 to 205 above, Regulation 2020/1055 relates to the different objectives referred to in points 578 and 693 below. It follows that the analysis concerning the weighing up of interests carried out by the legislature and the proportionality of the measures adopted in those two regulations are not necessarily the same and that thus, as a general rule, arguments based on one regulation cannot be used to cast doubt on the lawfulness of the other.

304. As regards the complaint that the EU legislature chose the alternative that is most onerous for transport undertakings, it must be stated that, apart from the alternative discussed in points 241 to 244, the Republic of Poland does not identify what other less onerous alternatives would have been possible.

305. As regards the arguments relating to the risks that some of the transport undertakings in the SME sector established in the peripheral States of the European Union would withdraw from the market or relocate, I refer to the developments set out in points 172 to 180, point 216 et seq. and point 234 of this Opinion.

306. Last, as regards the arguments put forward by the Republic of Poland in relation to the COVID-19 pandemic, I note that while that outbreak had severe consequences for several economic sectors, also including the road transport sector, it was, however, an exceptional and temporary situation which cannot deflect the EU legislature from adopting appropriate social rules which apply in the long term. It follows that the COVID-19 pandemic cannot be relied on to demonstrate an alleged infringement of Article 94 TFEU.

307. It follows from all of the foregoing that in my view the pleas alleging infringement of Articles 91(2) and 94 TFEU must be rejected.

(f)    Infringement of the provisions of EU law on environmental and climate change policy

(1)    Arguments of the parties

308. In their actions, the Republic of Lithuania (Case C‑541/20), and the Republic of Poland (Case C‑553/20) claim that point 6(d) of Article 1 of Regulation 2020/1054 infringes various provisions of EU law on environmental and climate change policy. The Republic of Lithuania claims that there is an infringement of Article 3(3) TEU and of Articles 11 and 191 TFEU. The Republic of Poland claims that there has been infringement of Article 11 TFEU and of Article 37 of the Charter.

309. The Republic of Lithuania claims that, in imposing the obligation to ensure that drivers return regularly, point 6(d) of Article 1 of Regulation 2020/1054 infringes Article 3(3) TEU, Articles 11 and 191 TFEU and EU environmental and climate change policy, in that it is incompatible with that policy and with the obligation to ensure that EU transport policy measures are compatible with the other policies of the European Union. Environmental protection is one of the essential objectives of the European Union and the requirements relating to that policy must be integrated into the implementation of the common transport policy. In addition, when the procedure for the adoption of Regulation 2020/1054 was in progress, the Commission had already drawn up a European Green Deal, (160) in which the European Union set for itself the objective of achieving climate neutrality by 2050. According to the Commission’s data, the transport sector represents one quarter of total greenhouse gas emissions in the European Union and that proportion will continue to rise. In order to achieve climate neutrality, emissions in the transport sector must be reduced by 90% by 2050. (161) On 12 December 2019, the European Council adopted that objective and expressly asked the Council to take work forward in that field. (162) However, in adopting point 6(d) of Article 1 of Regulation 2020/1054, the EU legislature did not take account of those objectives. In view of the fact that the bulk of demand for the carriage of goods by road comes, according to the Commission’s data, from Member States at or around the centre of the European Union, while the bulk of demand for transport personnel comes from peripheral Member States of the European Union, that provision imposes an obligation which will cause an artificial increase in road traffic, the number of lorries travelling without goods or the number of other vehicles used to carry workers, fuel consumption and discharges of CO2 into the environment, thus reducing the effectiveness of the transport system and increasing pollution and congestion. The problems to which that provision will give rise for the environment and the climate will indisputably be on a large scale since, according to the Commission’s data, the transport sector employs around 2.9 million workers.

310. The Republic of Poland maintains, in Case C‑553/20, that Article 11 TFEU and Article 37 of the Charter have been infringed in so far as the requirements flowing from environmental protection were not taken into account. It follows from those two provisions that the EU institutions are required to refrain from taking measures that would be capable of jeopardising the attainment of the objectives of environment protection, and that requirement is not confined solely to measures that relate to Articles 191 and 192 TFEU. The principle, deriving from those provisions, that environmental requirements must be integrated into the other EU policies makes it possible to reconcile the objectives and requirements of environmental protection with the other interests and aims pursued by the European Union and to pursue sustainable development. Such a principle constitutes in itself a ground for annulment of an EU act where the environmental interests have clearly not been taken into account or have been completely ignored. In the light of the wide horizontal character of Article 11 TFEU, it is necessary, when examining whether a particular measure contributes sufficiently to the protection of the environment, not to consider that measure in isolation from other EU measures adopted for that purpose and connected to the activity in question: it is the body of measures adopted by the European Union in that field that provides the appropriate framework for such an assessment. Review by the Court in relation to the assessment of the conformity of the action of the EU legislature with that principle of integration should be analogous to the review carried out by the General Court when it has been required to assess whether action by the Commission respected the principle of energy solidarity. An interpretation of Article 11 TFEU as meaning that it applies only to areas of law and not to individual measures would have the effect of considerably reducing its importance. Environmental protection requirements should be taken into account, including in the determination of the different measures forming part of the relevant area of EU law. In those circumstances, the legislature was required to take the environmental requirements into account before adopting the obligation for drivers to return, which entailed, in particular, carrying out an assessment of the impact of the proposed rules on the environment and ensuring that those rules would not prejudice the attainment of the objectives fixed in the other acts of secondary law adopted in the field of the environment. The Parliament and the Council were then required to weigh up the competing interests and where necessary make the appropriate amendments.

311. It is common knowledge that air pollution caused by emissions from transport is the cause of numerous health problems to which road transport is the main contributor. The obligation for drivers to return laid down in point 6(d) of Article 1 of Regulation 2020/1054 gives rise to additional journeys generating an increase in CO2 emissions and air pollutants, emissions which are capable of having a significant impact on the attainment of the European Union’s environmental objectives resulting, in particular, from the Green Deal for Europe, from the objective of a climate-neutral European Union by 2050 by a 90% reduction in overall emissions from transport by comparison with 1990 levels by 2050 and from the objectives set for the Member States by the relevant EU legislation. The additional emissions of nitrogen oxide and dust caused by the application of that provision and the obligation for vehicles to return every eight weeks laid down in Regulation 2020/1055 are capable of undermining the effectiveness of the action defined by the Member States in national environmental plans. Those negative effects are documented in the environmental impact assessments of the obligation for vehicles to return every eight weeks submitted during the legislative procedure, notably by the Member States, by the IRU letter, by the KPMG report commissioned by a Bulgarian association and by the European Centre for International Political Economy (ECIPE) note. The Commission, through the intermediary of Commissioner Vălean, (163) has questioned the conformity of the obligation for vehicles to return every eight weeks with the ambitions of the European Green Deal and the conclusions of the European Council of 2019. In spite of that, the Parliament and the Council did not carry out an appropriate assessment of the impact of the obligation for drivers to return on the attainment of the European Union’s environmental objectives and compliance with the obligations imposed on Member States under the acts in the field of the environment. That absence of an impact assessment constitutes a manifest breach of their obligation to carry out such an assessment laid down in Article 11 TFEU. (164)

312. The Council, the Parliament and the interveners supporting them contend that all of those pleas must be rejected.

(2)    Analysis

313. The question of breach of the EU environmental and climate change policy will be the subject of an exhaustive examination in the context of the actions directed against point 3(a) of Article 1 of Regulation 2020/1055, which requires hauliers to ensure that vehicles return to the Member State of establishment every eight weeks, to which, in view of the similarity between the arguments put forward by the Republic of Lithuania and by the Republic of Poland in their respective parallel actions, I broadly refer. (165)

314. Thus, I shall merely point out that, as Article 52(2) of the Charter provides that rights recognised by the Charter for which provision is made in the Treaties are to be exercised under the conditions and within the limits defined by those Treaties, the right to a high level of environmental protection as enshrined in the Charter must be understood and interpreted under the conditions and within the limits, where appropriate, laid down in Article 3(3) TEU and Articles 11 and 191 TFEU. (166) Article 37 of the Charter does not therefore constitute an autonomous legal norm, independent of those other provisions of primary law.

315. As regards Article 3(3) TEU, its programmatic dimension excludes it from the parameters against which the conformity to primary law of a provision of secondary law can be assessed. It cannot, in my view, be applied independently of the specific provisions of the Treaty that implement the general objectives that it sets out. (167)

316. As regards Article 11 TFEU, in spite of its seemingly mandatory wording, I am not convinced that that provision is capable of giving rise to obligations on the part of the EU legislature as precise as those invoked by the applicants, since the legislature is only required to integrate the environmental protection requirements, no further details being provided. It follows from that lack of precision that the complaint raised by the Republic of Poland alleging infringement of Article 11 TFEU owing to the alleged absence of an impact assessment – and it is impossible to know precisely whether that complaint relates to the obligation for drivers to return as such or to the separate obligation for vehicles to return – cannot succeed. (168)

317. In addition, although Article 11 TFEU does indeed refer to the European Union’s policies and activities, such a reference cannot be interpreted as a systematic obligation, applicable to the adoption of each individual provision, to integrate the environmental protection requirements, or indeed to make them prevail. Having regard to the transversal nature of Article 11 TFEU, it is ultimately the way in which the European Union integrates those requirements and takes them into account in its policies that makes it possible to determine whether it acted as prescribed in that provision and whether the EU legislature exercised its powers in compliance with the objective set for it in that provision.

318. Such an interpretation seems to me to be supported by the very nature of the legislative action, which involves arbitrating, in a given field, between diverging interests and striking a balance between what are often contradictory interests. Thus, even though the obligation for drivers to return, viewed on its own, would have negative consequences for the environment, (169) that sole fact cannot be sufficient for a finding of infringement of Article 11 TFEU since, moreover, the EU legislature has undertaken various actions to try to contain the negative effects of the carriage of goods by road (170) and since the alleged consequences would constitute the cost of a social advance.

319. I also note that the various studies and analyses cited by the Republic of Poland, in particular, seek to describe and assess the alleged negative environmental effects that follow from the adoption by the EU legislature of the obligation for vehicles to return to the Member State of establishment every eight weeks. They are the same as those abundantly cited and commented on in the context of the actions directed against point 3(a) of Article 1 of Regulation 2020/1055 to which I refer. However, the obligation for drivers to return is not the same as the obligation for vehicles to return. (171)

320. As regards Article 191 TFEU, I note that Regulation 2020/1054 is not a measure adopted on the basis of the environment policy of the European Union and it has not been maintained that the defendant institutions were mistaken as to the legal basis. In addition, a measure cannot belong to the field of the environment for the sole reason that it should take account of environmental requirements. (172) In those circumstances, reliance on Article 191 TFEU appears to be irrelevant.

321. Last, as regards the allegation that the obligation for drivers to return would run counter to the objectives otherwise fixed by the European Council, by the European Green Deal and by the other instruments of secondary law, the following should be borne in mind. First, the internal legality of an act of secondary law cannot be examined by reference to another EU act of the same status, (173) unless it was adopted in application of the latter act or unless it is expressly provided, in one of the two acts, that one is to take precedence over the other, (174) which is not the case of Regulation 2020/1054.  In addition, any tensions on the part of the Member States between the objectives assigned to them by the various EU rules which apply to them cannot lead to a finding of a breach by a Member State of its obligations under one or other of those rules, unless one of those rules may be declared to be contrary to another of the same status. (175) Second, having regard to their essentially political nature and to the absence of a legislative function conferred on the European Council, no conclusion that would assist the outcome of the present actions could be drawn if the alleged contradiction with the conclusions of the European Council were to be upheld. (176) Third, the European Green Deal results from a communication from the Commission that is not among the parameters that were binding on the EU legislature when it adopted the obligation for drivers to return.

322. The pleas alleging breach of the European Union’s environmental and climate change policy must therefore be rejected.

(g)    Breach of the principles of equal treatment and non-discrimination

(1)    Arguments of the parties

323. In their actions, the Republic of Lithuania (Case C‑541/20), the Republic of Bulgaria (Case C‑543/20) and Romania (Case C‑546/20) claim that point 6(d) of Article 1 of Regulation 2020/1054 does not meet the requirements flowing from the principle of non-discrimination, laid down in Article 18 TFEU. The Republic of Bulgaria also refers to Articles 20 and 21 of the Charter, the principle of equality of the Member States, enshrined in Article 4(2) TEU and Article 95(1) TFEU, and the freedom to provide services.

324. In the first place, those three Member States claim that point 6(d) of Article 1 of Regulation 2020/1054 breaches the principle of non-discrimination in so far as it permits discrimination between hauliers established in the Member States on the geographic periphery of the European Union and those established in the Member States at the centre of the European Union. Organising the work of heavy goods vehicles in such a way that they are able to return home or to the Member State of establishment at least every four weeks is substantially less onerous for hauliers established in Member States with a large domestic market, whose drivers provide transport in the Member State of the haulier’s establishment, close to their place of residence, than for hauliers established in peripheral Member States, whose domestic market is limited and which concentrate on international transport. In particular, Romania claims that the obligation to ensure that drivers return entails significant losses for companies established in the Member States on the geographic periphery of the European Union, which are in any event substantially greater than those of companies established in Central or Western Europe.

325. The Republic of Lithuania claims, moreover, that the discrimination created by the provision at issue against undertakings of the Member States on the periphery of the European Union impedes the exercise of the freedoms of the internal market, since those undertakings are in a disadvantageous situation by comparison with undertakings from the centre of the European Union and the surrounding regions. Point 6(d) of Article 1 of Regulation 2020/1054 is thus a protectionist measure, whereby the undertakings of the peripheral States are forced out of the market for transport of a part of the EU territory, inevitably reducing the volume of those undertakings’ activities, since they must not only offer drivers working conditions that restrict their freedom of movement, but also organise their activity in such a way that a proportion of the journeys made by the vehicles is unprofitable or the vehicles remain empty while waiting for the drivers to be replaced or for them to return from the operational centre or the State of residence after their rest period.

326. In the second place, the Republic of Bulgaria and the Republic of Lithuania claim that the contested provision leads to discrimination between drivers who work for hauliers established in the Member States on the geographic periphery of the European Union and those who work for hauliers from Member States at the centre of the European Union, since returning to the State of residence requires a long-distance journey during short rest periods, which is likely to be unwanted and to aggravate the driver’s situation. Within the same Member State, the requirement at issue gives rise to discrimination between local drivers and drivers from other Member States. In addition, workers from the Member States on the periphery of the European Union are placed in an objectively more complicated situation, in that, in order to exercise their right to leave, they will have to travel longer distances and waste more time than workers from the regions around the centre of the European Union.

327. In the third place, the Republic of Bulgaria claims that the obligation for drivers to return also breaches the principle of equality of the Member States, owing to the substantially less favourable situation of the Member States at the periphery of the European Union.

328. The Council, the Parliament and the interveners supporting them contend that all of those pleas must be rejected.

(2)    Analysis

329. The Republic of Lithuania, the Republic of Bulgaria and Romania claim that the obligation for drivers to return breaches the principles of equal treatment and of non-discrimination in three aspects: first, it gives rise to discrimination between hauliers; second, it leads to discrimination between drivers; and, third, it gives rise to discrimination between different Member States.

330. As a preliminary point, it should be borne in mind that, as is apparent from the case-law referred to in point 79 above, the comparability of different situations must be assessed in the light of the object and the purpose of the EU measure which introduces the distinction in question. The objectives of the provision at issue were set out in point 196 et seq. above, to which I refer.

331. As regards, in the first place, the discrimination between hauliers which, it is alleged, is created by the obligation for drivers to return, it should be observed at the outset that, as was stated in point 167 above, the obligation for drivers to return applies without distinction and in the same way to every transport undertaking which engages in the carriage of goods by road coming within the scope of Regulation No 561/2006. The provision is applicable irrespective of the nationality of the employer (and also of the driver).

332. It follows that that obligation, as such, does not explicitly distinguish between transport undertakings.

333. Nonetheless, the three Member States claim, in essence, that, in spite of the fact that it applies without distinction to all transport undertakings, the obligation for drivers to return has a greater effect on transport undertakings established in the Member States at the geographic periphery of the European Union, which leads to discrimination prohibited by EU law.

334. In that regard, I observed in point 174 above that the obligation for drivers to return is capable of having a greater effect on transport undertakings which have chosen, for their own commercial reasons, to become established in a Member State on the periphery of the European Union, while carrying out their activities, permanently or for the most part, in other distant Member States in which they provide the essential part of their transport services, but without exercising their right to become established in those Member States, which EU law guarantees to them. (177)

335. It also follows from the impact assessment, as was observed in point 229  above, that a large proportion of transport undertakings, including those on the periphery of the European Union, already carried out their activities in a manner compatible with the obligation for drivers to return.

336. In those circumstances, as was observed in point 230 above, it is precisely the practices of ‘driver nomadism’ which concerned a significant number of drivers and which had been identified as one of the factors contributing to the deterioration of drivers’ social conditions, that the EU legislature intended to regulate in order to pursue the strategic objectives of Regulation 2020/1054, namely to improve drivers’ working conditions, and in particular to ensure fair and undistorted competition between hauliers and to contribute to road safety for all road users. (178)

337. As I observed in point 220  above, the Court has already recognised that the EU legislature is entitled to adapt a legislative act, in order to restore the balance of the interests involved with the aim of increasing drivers’ social protection by amending the conditions in which they exercise the freedom to provide services.

338. An EU harmonisation measure inevitably has diverging effects in the different Member States. (179) The legislature cannot be required to compensate for the differences in costs between economic operators arising from their choices of economic model and from the different circumstances in which they are placed (180) by reason of that choice, such as those resulting from geographic realities. (181)

339. Next, in the context of the limited review which, in a field such as that of transport policy, the Court has also recognised with regard to compliance with the principle of equal treatment, (182) the Court of the European Union cannot substitute its assessment for that of the EU legislature by casting doubt on the legislature’s choice to counter, by adopting a provision applicable without distinction to every transport undertaking, certain practices identified as contributing to the deterioration of drivers’ social conditions, even if that choice means that certain undertakings which have chosen a type of economic model will have to bear higher costs.

340. As for the arguments whereby the Republic of Lithuania claims that the alleged discrimination created by the provision at issue against undertakings of the Member States on the periphery of the European Union impedes the exercise of the freedoms of the internal market, I refer to the considerations set out in points 167 to 180 above,  in which I set out the reasons why the obligation for drivers to return does not infringe the FEU Treaty provisions on fundamental freedoms.

341. As regards, in the second place, the discrimination between drivers, which, according to the Republic of Lithuania and the Republic of Bulgaria, the obligation for drivers to return creates, I observe, by way of subsidiary point, (183) that the situation of drivers employed in transport undertakings established in the Member States at the geographic periphery of the European Union and the situation of drivers who work for hauliers established in Member States at the centre of the European Union are comparable so far as the right to have the opportunity to return to their place of residence within a reasonable time is concerned.

342. In those circumstances, it is difficult to consider that the EU legislature made a manifest error of assessment or clearly exceeded its discretion by failing to distinguish between the different workers according to the greater or lesser distance over which those workers must travel in order to return home or to their employer’s operational centre, and thus to refuse or limit, for a group of workers, the right to return by reason of the economic model chosen by their employer.

343. I share in that regard the opinion of the Council, which maintains that all drivers in the road transport sector are in a comparable situation as regards their right to return and must therefore be afforded the same rights in spite of the different burdens which the exercise of that right entails for their respective employers, depending on the economic models which their employers have chosen.

344. As regards, in the third place, the discrimination between different Member States which is alleged to be created by the obligation for drivers to return, even on the assumption that certain Member States are indirectly affected more than others by the provision at issue, as I have just observed, the Court has already held that an EU measure which is intended to standardise rules of the Member States, provided that it is applied equally to all Member States, cannot be considered to be discriminatory, as such a harmonisation measure inevitably produces different effects depending on the prior state of the various national laws. (184)

345. Having regard to all of the foregoing, I consider that the pleas raised against point 6(d) of Article 1 of Regulation 2020/1054 alleging breach of the principles of equal treatment and non-discrimination must all be rejected.

(h)    Conclusion on the pleas relating to the obligation for drivers to return

346. It follows from all of the foregoing considerations that, to my mind, all of the pleas raised by the Republic of Lithuania in Case C‑541/20, by the Republic of Bulgaria in Case C‑543/20, by Romania in Case C‑546/20 and by the Republic of Poland in Case C‑553/20 against point 6(d) of Article 1 of Regulation 2020/1054, which lays down the obligation for drivers to return, should be rejected.

2.      The pleas relating to the prohibition on taking regular weekly rest periods in the cabin

347. The Republic of Bulgaria (Case C‑543/20), Romania (Case C‑546/20) and Hungary (Case C‑551/20) dispute point 6(c) of Article 1 of Regulation 2020/1054, which establishes the prohibition on taking regular weekly rest periods in the cabin. (185) Those three Member States raise a number of pleas against that provision.

(a)    Breach of the principle of proportionality

(1)    Arguments of the parties

348. The Republic of Bulgaria, Romania and Hungary claim that point 6(c) of Article 1 of Regulation 2020/1054 does not satisfy the requirements flowing from the principle of proportionality.

349. Those three Member States, first, dispute the proportionality as such of the prohibition on taking weekly rest periods in the cabin, laid down in that provision. They claim, in particular, that that measure is manifestly inappropriate for attaining the legitimate objectives pursued by the legislation at issue, that it is not necessary in order to attain those objectives and that it goes beyond what is necessary to attain those stated objectives. Second, Romania and Hungary also dispute the examination of proportionality carried out by the EU legislature. They claim, in particular, that the EU legislature failed to take account of essential factors when it adopted the provision at issue.

350. As regards, in the first place, the pleas relating to the proportionality of the prohibition on taking regular weekly rest periods in the cabin, the Republic of Bulgaria, Romania and Hungary claim that point 6(c) of Article 1 of Regulation 2020/1054 breaches the principle of proportionality in that, owing to the current state of the European infrastructure, the prohibition laid down in that provision constitutes an obligation that is excessively difficult, or even impossible, to fulfil. Owing to the insufficient number of secured parking areas and lack of appropriate accommodation near those parking areas, drivers and transport undertakings are frequently faced with requirements that are impossible to meet. In those circumstances, that measure cannot be implemented in such a way as to attain the objectives pursued, which shows that it is manifestly inappropriate. It also places a manifestly disproportionate burden on drivers and transport undertakings. Consequently, by imposing such a requirement that is inapplicable in practice, the EU legislature made a manifest error of assessment.

351. The Republic of Bulgaria and Hungary observe that in the Impact assessment – social section, the Commission had already stated in several places that the EU generally lacks appropriate resting facilities and secured parking areas. (186) The insufficient state of facilities in the European Union is also apparent from a study published by the Commission in February 2019 on safe and secure parking places (‘the 2019 study’), (187) to which the three abovementioned Member States refer. According to that study, out of 300 000 parking places for heavy goods vehicles in the European Union, only some 47 000 are partly secured and only 7 000 display a certified level of security. As the average demand for overnight parking places is estimated to be almost 400 000 places, there is a shortfall of around 100 000 places, while very few parking areas guarantee an appropriate level of safety and security. In addition, that study reveals an unequal allocation of safe and secure parking places by comparison with the European transit routes, as the 7 000 certified parking places are found only in certain Member States. Furthermore, the EESC and several Member States drew attention to that situation during the legislative procedure.

352. The question of parking places and that of adequate accommodation, albeit different, are closely linked, in the sense that, for the driver, accommodation is only appropriate if it is close to an adequate and secure parking area where he or she knows that his or her cargo will be safe. The limited number of such parking areas further restricts the number of potential places of accommodation that the driver can use in order to take his or her weekly rest period.

353. The Republic of Bulgaria also observes that the insufficiency of the infrastructures is highlighted by the obligation for the Commission, pursuant to Article 1(7) of Regulation 2020/1054, to present a report to the Parliament and to the Council on the availability of suitable rest facilities for drivers by 31 December 2024. Romania adds that that article requires the Commission to publish a list of all parking areas. However, to date no website has been set up for that purpose.

354. Romania also claims that, in order to comply with the provision at issue, drivers travelling on routes without safe and secure parking areas will have no choice other than to use insecure areas, where they will leave their vehicles while spending their rest time in appropriate accommodation, thus exposing the vehicle to crime. Under the Convention on the Contract for the International Carriage of Goods by Road (CMR), signed at Geneva on 19 May 1956, the haulier is responsible for the total or partial loss, or for damage, occurring between the time when it takes over the goods and the time of delivery, as well as for any delay in delivery. In the current state of the infrastructure the legislative solution adopted therefore does not improve drivers’ working conditions but, quite to the contrary, can have the effect of increasing driver fatigue and stress and also the risks for their safety, their goods and their vehicle. In a similar vein, the Republic of Bulgaria claims that that the lack of secure parking areas for heavy goods vehicles in the European Union increases the risk of thefts and gives rise to insurance problems for hauliers.

355. The Republic of Bulgaria also adds that the fact that it is impossible to comply with the prohibition on taking regular weekly rest periods in the cabin exposes drivers and hauliers to the risk of incurring penalties which can lead to reputational damage and, therefore, to loss of access to the EU market for the carriage of goods by road. In that regard, it is irrelevant that the list of the most serious infringements of the EU rules does not include breach of the prohibition on taking a regular weekly rest period in the vehicle.

356. In that context, Romania and Hungary refer to Regulation (EU) No 1315/2013, (188) in particular to Articles 38(3) and 39(2)(c) thereof, and to the revised guidelines for the development of the trans-European transport network set out in that regulation and referred to in recital 19 of Regulation 2020/1054. Those provisions also prove the insufficiency of the current state of the European infrastructure.

357. Hungary observes, moreover, that Article 8a(3) and (4) of Regulation 2020/1054 contains repeated calls for the creation of safe and secure parking areas. (189) In addition, the measures for the creation of safe and secure parking areas can produce their effects only in the future, whereas no adequate transitional period was envisaged, while, moreover, the prohibition in question is absolute. The Republic of Bulgaria also disputes the absence of a transitional period for the entry into force of the provision at issue.

358. The Republic of Bulgaria maintains, next, that the Member States are under no obligation to guarantee, at least until a particular date, sufficient suitable accommodation and secure and safe parking areas. A Member State may thus have an incentive not to increase the number of infrastructures in order to limit the provision of transport services on its territory by foreign hauliers.

359. The Republic of Bulgaria also claims that the prohibition on taking regular weekly rest periods in the cabin entails significant higher costs for hauliers, which are for the most part SMEs, since the haulier is required to pay for appropriate accommodation for the drivers’ weekly rest periods when the drivers are away from home. (190) That also gives rise to costs for detours and any empty trips justified solely by the desire to find adequate accommodation. The costs that Bulgarian hauliers will incur as a result of that measure are estimated at EUR 143 million. Romania likewise claims that the measure is manifestly inappropriate in the light of the objective of reducing the administrative and financial burdens borne by transport undertakings.

360. The Republic of Bulgaria claims, moreover, that the concept of ‘appropriate accommodation’ is the source of legal uncertainty, which, as even the Commission admits, gives rise to problems of application. (191) Romania maintains that the divergence between Member States with regard to penalties for breach of the prohibition on taking regular weekly rest periods in the cabin, highlighted in the Impact assessment – social section, (192) are not resolved in Regulation 2020/1054 and that the Member States will therefore continue to impose different penalties, thus prolonging the situation of legal uncertainty for hauliers and drivers. The legislative solution is thus also inappropriate from that viewpoint, since it runs counter to the objective of Regulation 2020/1054 of standardising the interpretation and application of the rules and facilitating the cross-border enforcement of the social legislation in a coherent manner.

361. The three abovementioned Member States then question the relevance of the judgment in Vaditrans. (193) Thus, Hungary and Romania maintain that that judgment has no impact on the present cases. A reading of that judgment indicates, rather, that, during the judicial procedure, no data relating to the rest facilities available in the Member States had been produced before the Court or, for that reason, taken into consideration by it. It may therefore be presumed that the Court did not examine the question of proportionality, in that it did not evaluate a circumstance that was relevant for the application of the legislation in question, namely that the prohibition on taking the weekly rest period in the cabin is frequently impossible to apply in practice because of the insufficient number of rest facilities available in the Member States. The Court answered a question of interpretation, while in this instance the issue to be determined is whether, in the light of the information available, the legislature correctly exercised its discretion and satisfied the requirement of proportionality.

362. Romania also observes that, in the wake of that judgment, Regulation No 561/2006 must in any event be interpreted as meaning that it prohibits the regular weekly rest period being taken in the vehicle’s cabin. However, point 6(c) of Article 1 of Regulation 2020/1054 enshrines that prohibition, while adding further detail. The Republic of Bulgaria, also, claims that Regulation 2020/1054 is not confined to implementing the judgment in Vaditrans, but adds the requirement that the rest period be taken in suitable gender-friendly accommodation with adequate sleeping and sanitary facilities.

363. Last, the Republic of Bulgaria and Romania maintain that alternative appropriate measures exist that would be less onerous. Thus, first, according to the Commission itself, drivers should be allowed to spend their regular weekly rest period in the cabin, provided that it is the free choice of the driver or it is justified by the circumstances. (194) Second, another possible measure would be the introduction of a derogation in cases where suitable accommodation is not available within a specific radius of the driver’s location. Third, another possible approach, as proposed by the CoR would be for the prohibition on taking rest in the cabin not to be applied if the weekly rest period of 45 hours is spent in a place with a sufficient level of security and adequate sanitary facilities and if the driver’s cabin complies with the specifications to be fixed by the Road Transport Committee. Fourth, a transitional period could be introduced, after which the Commission would establish that there are sufficient safe and secure accommodation and parking places throughout the entire European Union. That transitional period could be accompanied by an obligation for Member States to guarantee that they will take the necessary steps to create appropriate infrastructures.

364. As regards, in the second place, the pleas relating to the examination by the EU legislature of the proportionality of the prohibition on taking the rest in the cabin, Romania and Hungary claim that the EU legislature failed to take account of certain essential factors when it adopted the provision at issue.

365. Those two Member States maintain that it is apparent from the information available at the time of the adoption of point 6(c) of Article 1 of Regulation 2020/1054 that the EU legislature was aware of what was then the inadequate nature of the European infrastructure. The impact assessment presents the shortage of parking places and of appropriate accommodation as being a factor that favours the practice consisting in taking the rest period in the vehicle’s cabin. The Commission even made clear that owing to that situation drivers have better rest conditions in the cabin than if they have recourse to the other available solutions. (195) In addition, the extent of that shortage was described by the Commission in the 2019 study. In addition, paragraphs 3 and 4 of Article 8a of Regulation No 561/2006, as amended by Regulation 2020/1054, contain repeated calls for the creation of safe and secured parking areas, which shows that when the legislature adopted the contested requirement it was aware of the insufficient number of parking spaces of appropriate quality. It follows that the EU legislature made a manifest error by failing to take account of the essential factors, namely the data relating to the shortage of safe and secure parking places, and did not assess the relevant evidence.

366.  The Council, the Parliament and the interveners supporting them contend that all of those pleas must be rejected.

(2)    Analysis

(i)    Preliminary observations

367. Point 6(c) of Article 1 of Regulation 2020/1054, the proportionality of which is called into question by the Republic of Bulgaria, Romania and Hungary, amended Article 8(8) of Regulation No 561/2006.

368. In its earlier version, Article 8(8) of Regulation No 561/2006 provided that ‘where a driver chooses to do this, daily rest periods [(196)] and reduced weekly rest periods (197) away from base may be taken in a vehicle, as long as it has suitable sleeping facilities for each driver and the vehicle is stationary.’

369. As its wording shows, that provision covered exclusively daily rest periods and reduced weekly rest periods and allowed drivers, on certain conditions, to take those rest periods in the vehicle. On the other hand, it did not explicitly cover the regular weekly rest period.

370. In the judgment in Vaditrans, however, the Court held that since, according to its wording, it expressly allowed only daily rest periods and reduced rest periods to be taken in the vehicle (as long as it had suitable sleeping facilities for each driver and was stationary), that provision was to be interpreted as meaning that it prohibited the regular weekly rest periods being taken in the vehicle. (198)

371. In the wake of that judgment, point 6(c) of Article 1 of Regulation 2020/1054 – a provision the legality of which is disputed in the present cases – amended Article 8(8) of Regulation No 561/2006 and now expressly prohibits the taking of regular weekly rest periods in the cabin. The new version of that provision as amended thus provides that the ‘regular weekly rest periods and any weekly rest period of more than 45 hours taken in compensation for previous reduced weekly rest periods shall not be taken in a vehicle’, but must be taken ‘in suitable gender-friendly accommodation with adequate sleeping and sanitary facilities’. It is also specified that ‘any costs for accommodation outside the vehicle shall be covered by the employer’.

372. It is in that context that the Republic of Bulgaria, Romania and Hungary dispute the proportionality of that provision. In that regard, it follows from the case-law referred to in point 52 et seq. above that, in order to examine the proportionality of a measure, the Court must determine whether, in adopting such a measure, the EU legislature manifestly exceeded the wide discretion which it enjoys in relation to common transport policy matters, (199) by opting for a measure that was manifestly inappropriate with regard to the objectives which it intended to pursue or which would cause disproportionate disadvantages by comparison with the stated aims.

373. As regards the objectives of the provision at issue, it is common ground that the provision seeks to pursue the strategic objectives of Regulation 2020/1054, to which I have already referred in point 197  above. In particular, as stated in recital 13 of Regulation 2020/1054, (200) that provision pursues the objective of promoting social progress, by improving drivers’ working conditions, which also contributes to improving road safety and to ensuring a level playing field for road transport.

374. The three Member States referred to above do not call into question the legitimacy of those objectives. On the other hand, they dispute the appropriateness and the necessity of that measure and also claim that it goes beyond what is necessary to attain the stated objectives.

375. The Council and the Parliament counter that argument, however, by claiming that point 6(c) of Article 1 of Regulation 2020/1054 did not really introduce the prohibition on taking regular weekly rest periods in the cabin into the EU legal order, as that prohibition already existed under the previous version of Article 8(8) of Regulation No 561/2006 as interpreted by the Court in the judgment in Vaditrans. The EU legislature therefore merely codified that interpretation.

376. However, the three Member States dispute the relevance of the judgment in Vaditrans for the present cases. In those circumstances, I consider that, before analysing in detail the arguments alleging breach of the principle of proportionality raised by those Member States, I should first of all analyse that judgment and clarify its relevance for the present cases.

(ii) The judgment in Vaditrans and its scope

377. In the judgment in Vaditrans, the Belgian Conseil d’État (Council of State) had referred a number of questions to the Court in the context of proceedings before it brought by a transport undertaking, Vaditrans, which sought annulment of a royal decree under which a fine could be imposed when a lorry driver took his or her regular weekly rest period in the vehicle.

378. In that context, the Belgian Council of State asked the Court whether Article 8(8) of Regulation No 561/2006, in its former version, referred to in point 368 above, must be interpreted as meaning that the regular weekly rest periods could not be spent inside the vehicle.

379. As I observed in point 370 above, in its judgment the Court ruled that that provision must be interpreted as meaning that it prohibited the regular weekly rest periods being taken in the vehicle. (201) After stating that such an interpretation was supported by the legislative history of that provision, the Court held that that interpretation ‘is clearly intended to achieve the aims of [Regulation No 561/2006] of improving drivers’ working conditions and road safety’. (202) In that respect, the Court went on to state that, even if vehicle design and cabin design had seen considerable improvements, the fact remained that a lorry’s cabin ‘does not appear to constitute an appropriate resting place for rest periods longer than daily rest periods and reduced weekly rest periods’ and that drivers should be able to spend their regular weekly rest periods ‘in a place which offers them adequate and suitable accommodation’. (203)

380. The Court also observed that an interpretation to the contrary would have implied that a driver could have taken all of his or her rest periods in the vehicle cabin and that, accordingly, that driver’s rest periods would be taken in a place which did not provide suitable accommodation, which would not be likely to contribute to furthering the objective pursued by that regulation of improving drivers’ working conditions. (204)

381. The Court then added that a possible deterioration in the conditions in which drivers would have been able to take weekly rest periods or the difficulty in proving compliance with that requirement could not justify failure to comply with the mandatory rules of Regulation No 561/2006 concerning drivers’ rest periods. (205)

382. The three Member States that dispute the proportionality of the provision at issue, however, raise a number of arguments calling into question the relevance of the judgment in Vaditrans in the present cases.

383. In the first place, Hungary and Romania maintain that Vaditrans is not relevant because in that case, which concerned a reference for a preliminary ruling on interpretation, the Court did not examine the question of the proportionality of the obligation introduced by Regulation No 561/2006 by comparison with the actual possibilities of implementing that provision. The Court did not assess the impossibility of applying the prohibition on taking regular weekly rest periods in the cabin.

384. I consider, however, that such an argument amounts, in essence, to calling the Court’s judgment into question and even seeks to challenge, ex post, the validity of that provision of Regulation No 561/2006 that was interpreted by the Court in that judgment. By that argument, those Member States maintain, ultimately, that the former version of Article 8(8) of Regulation No 561/2006 as interpreted by the Court in the judgment in Vaditrans was invalid on the ground that it was contrary to the principle of proportionality, as the Court did not take into consideration in its analysis the impossibility or the excessive difficulty in complying with the prohibition on taking the regular weekly rest period in the vehicle resulting from the interpretation of that provision which it had adopted in that judgment.

385. An argument raised in an action for annulment brought against a provision and alleging that the former version of that provision, as interpreted by the Court in an earlier judgment, is invalid is, to my mind, undoubtedly inadmissible. In this instance, the subject matter of the actions brought by the Member States in question is the claim for annulment of point 6(c) of Article 1 of Regulation 2020/1054 and not a claim for annulment of the former version of Article 8(8) of Regulation No 561/2006, which was replaced by that provision.

386. Nor, moreover, and from a similar perspective, in an action for annulment brought against a provision of an act of EU law, can a Member State, in my view, attempt to call into question the interpretation of the previous version of that provision adopted by the Court in a judgment given on a reference for a preliminary ruling.

387. In that regard, it should be emphasised that, in accordance with Article 23 of the Statute of the Court of Justice of the European Union, the Governments of the Member States are able to participate in the preliminary ruling procedure and, in particular, to submit observations in that procedure. If a Member State wishes to maintain that a European Union provision that is the subject of a reference for a preliminary ruling is invalid or wishes to argue in favour of a particular interpretation of that provision, that Member State may indeed intervene in the preliminary ruling procedure and submit its arguments. However, it cannot do so in a subsequent action having as its subject matter a claim for annulment of a new provision that amended that earlier provision.

388. It follows that if the Member States referred to above considered that the previous version of Article 8(8) of Regulation No 561/2006 was invalid or ought to have been interpreted in a particular way, they could have and ought to have raised their arguments by intervening in the case of Vaditrans. Those Member States cannot call into question either the validity of that provision or the interpretation adopted by the Court in that judgment in the context of the present actions, which have as their subject matter a claim for annulment of, inter alia, point 6(c) of Article 1 of Regulation 2020/1054.

389. In the second place, the Republic of Bulgaria and Romania also claim that point 6(c) of Article 1 of Regulation 2020/1054 does not merely codify the judgment in Vaditrans, but adds further requirements.

390. In that regard, it follows from the wording of point 6(c) of Article 1 of Regulation 2020/1054 that, by comparison with the former version of Article 8(8) of Regulation No 561/2006, as interpreted by the Court in the judgment in Vaditrans, the new version appears to add three further requirements. First, the new version of that provision refers not only to ‘regular weekly rest periods’ but also to ‘any weekly rest period of more than 45 hours taken in compensation for previous reduced weekly rest periods’. Second, it states that those rest periods must be taken ‘in suitable gender-friendly accommodation with adequate sleeping and sanitary facilities’. Third, it specifies that ‘any costs for accommodation outside the vehicle shall be covered by the employer’.

391. As regards the first requirement, it must be stated that it is covered by the interpretation of the previous version of Article 8(8) of Regulation No 561/2006 adopted by the Court in the judgment in Vaditrans. As I observed in point 379 above, in that judgment the Court explicitly ruled that a lorry’s cabin does not constitute an appropriate resting place for rest periods longer than daily rest periods and reduced weekly rest periods. (206) It follows that even before Regulation 2020/1054 was adopted a weekly rest period of more than 45 hours taken in compensation for previous reduced weekly rest periods could not have been taken in the vehicle.

392. Likewise, the second requirement referred to in point 390 above follows directly from the judgment in Vaditrans. In that judgment, the Court expressly held that drivers should be able to spend their regular weekly rest periods ‘in a place which offers them adequate and suitable accommodation’. (207) That includes, implicitly but undoubtedly, the requirement that that place be gender-friendly and, in so far as it constitutes ‘appropriate accommodation’, that it have adequate sleeping and sanitary facilities.

393.  As regards, third, the requirement that the employer cover all costs of accommodation outside the vehicle, to my mind that requirement follows, also implicitly, from the prohibition on taking regular weekly rest periods in the cabin as it results from the judgment in Vaditrans, read in the light of the purpose of the provision at issue. First, the ‘appropriate resting place for rest periods longer than daily rest periods’ to which the Court refers in that judgment is supposed to take the place of the lorry’s cabin for regular weekly rest periods. The cabin is in principle made available by the employer, but is recognised by the Court as a place that does not provide adequate accommodation for such periods. (208) Logically, the ‘appropriate resting place’, which is supposed to replace it, should also be made available by the employer. Second, to make the driver cover the costs of accommodation in an ‘appropriate resting place for rest periods longer than daily rest periods’ would, in my view, be contrary to the purposes of that provision, recognised by the Court as being to improve the working conditions of employees in the road transport sector and to improve general road safety. (209)

394. It follows from all of the foregoing that, in adopting point 6(c) of Article 1 of Regulation 2020/1054, the legislature did not introduce into the EU legal order the prohibition on taking the regular weekly rest period in the cabin as laid down in that provision, but merely codified the existing law resulting from the former version of Article 8(8) of Regulation No 561/2006, as interpreted by the Court in the judgment in Vaditrans.

395. In those circumstances, in accordance with the case-law referred to in point 52 et seq. and in line with point 372 above, examination of the pleas raised by the Republic of Bulgaria, Romania and Hungary alleging breach of the principle of proportionality will have to focus on ascertaining whether, in codifying the existing law, the EU legislature manifestly exceeded the wide discretion which it enjoys in relation to common transport policy matters by opting for a measure that was manifestly inappropriate with regard to the objectives which it was intended to pursue or which caused disproportionate disadvantages by comparison with the stated aims. It is therefore from that perspective that I shall examine the various arguments put forward by the three Member States concerned with the aim of calling into question the proportionality of point 6(c) of Article 1 of Regulation 2020/1054.

(iii) The proportionality of point 6(c) of Article 1 of Regulation 2020/1054

396. The three Member States put forward, first of all, a number of arguments alleging that the measure is inappropriate and disproportionate because of the present state of the European infrastructure, and specifically the insufficient number of secure parking places and appropriate accommodation close to those parking places, which makes it excessively difficult, or indeed impossible, to comply with the prohibition on taking regular weekly rest periods in the cabin.

397. In that respect, as regards the appropriate character of that measure for attaining the objectives pursued, the legitimacy of which is not disputed, its appropriateness has already been confirmed by the Court in paragraph 43 of the judgment in Vaditrans, where the Court held that the prohibition on taking the regular weekly rest period in the vehicle was clearly intended to achieve the aims of Regulation No 561/2006 of improving drivers’ working conditions and road safety.

398. As regards the possible disproportionate nature of the legislature’s choice to codify the existing law, it should be observed that any other approach, different from that of maintaining the prohibition on taking regular weekly rest periods in the vehicle, would have entailed a reduction of the drivers’ social protection and thus a deterioration in their working conditions by comparison with the existing situation, which would be contrary to the objectives of the rules in question and to the judgment in Vaditrans.

399. In that regard, it should first of all be borne in mind that the Court has expressly held that the vehicle’s cabin is a place that does not provide appropriate accommodation for rest periods longer than daily rest periods and reduced weekly rest periods. (210) Accordingly, any legislative solution that allowed such rest periods to be spent in the cabin would be incompatible with that finding.

400. Any current shortage of appropriate infrastructures cannot in my view constitute justification for allowing (or indeed requiring), by means of legislation, drivers to take their regular weekly rest periods in the vehicle, that is to say, in a place which is not appropriate for spending such long rest periods. Any problems with the infrastructure should not be resolved to the detriment of drivers’ social rights and, ultimately, of their health. It follows that the legislature cannot be criticised for having breached the principle of proportionality on the ground that it did not amend the existing law, reducing drivers’ social rights, by allowing them to take their regular weekly rest periods in an inappropriate place.

401. It should also be emphasised, moreover, that the provision at issue does not prohibit drivers from taking any rest periods whatsoever in the vehicle, but that it applies solely to regular weekly rest periods. Those rest periods are taken only every two or three weeks. (211) They constitute, in addition, the type of rest that, in the words of point 6(d) of Article 1 of Regulation 2020/1054, drivers must be able to take at their place of residence as a consequence of the obligation for drivers to return, which reduces the pressure that the measure at issue is alleged to exert on parking areas.

402. Furthermore, all the alternative legislative solutions mentioned by the Member States concerned are not appropriate for pursuing the social protection objectives referred to in the rules in question and would all entail a reduction of that social protection for drivers. As regards, first, the possibility of leaving it to drivers to choose to take their regular weekly rest period in the cabin, I consider that it is not appropriate, on the basis of considerations analogous to those which I set out in point 243 above, concerning the risk that the choice of the worker, as the weaker party in the employment relationship with the haulier, is not entirely free and that he or she might be subjected to pressure to make a choice that would suit the interests of the employer. Second, the introduction of derogations, such as those envisaged in the second and third alternatives referred to in point 363 above, would mean that drivers would be allowed to take their regular weekly rest period in an inappropriate place, which would mean a reduction of drivers’ social rights. Third, the provision of a transitional period also does not seem appropriate, for the reasons developed in detail in point 499 et seq. of this Opinion below in the context of the analysis of the pleas raised against Article 3 of Regulation 2020/1054 concerning the date of its entry into force.

403. In those circumstances, the other arguments put forward by the three Member States concerned and seeking to call into question the proportionality of the measure cannot in my view succeed.

404. The arguments derived, first, from the risks for the security of the goods and, therefore, the risk that hauliers would be held liable for the loss of the goods; second, from the risk that hauliers and drivers would incur penalties; and, third, from the alleged additional costs for hauliers resulting from the provision at issue, are also incapable of demonstrating a breach of the principle of proportionality by the EU legislature. First, since point 6(c) of Article 1 of Regulation 2020/1054 merely codified the law already in existence, its adoption could not in any way entail an increase in such risks and costs. In those circumstances, it cannot be maintained that the adoption of that provision has harmful effects for the operators concerned by comparison with the previous situation. Second, the Member States in question have not shown that, in accordance with the case-law referred to in point 57 above, the disadvantages for transport undertakings resulting from the adoption of that provision are disproportionate, so that the legislature’s choice to codify the existing law is manifestly incorrect.

405. Furthermore, as regards, in particular, penalties, it follows from point 16 of Article 1 of Regulation 2020/1054 that the legislature expressly stated that penalties must be proportionate. (212) In that regard, while it is true, as Romania observes, that Regulation 2020/1054 does not harmonise penalties, that does not mean that that choice by the legislature gives rise to legal uncertainty such as to entail a breach of the principle of proportionality. As may be seen from the case-law referred to in point 119  above, the EU legislature may indeed have recourse to a general legal framework that is, as necessary, to be made more precise at a later date, in particular by the Member States.

406. On the basis of similar reasoning, the argument raised by the Republic of Bulgaria, based on legal uncertainty with regard to the concept of ‘appropriate accommodation’, should in my view also be rejected, as the legislature is not required to define in detail every concept of a piece of legislation. Furthermore, by not defining that concept precisely, the EU legislature left a margin of flexibility in the application of the provision as regards the type of accommodation which drivers may use, which makes it possible to mitigate the potential consequences of any deficiencies in the European infrastructures.

407. As regards, first, the argument that the Commission has not published the list of all certified parking areas, which it is required to publish pursuant to the new Article 8a(1) of Regulation No 561/2006, as amended by point 7 of Article 1 of Regulation 2020/1054, although such an argument might perhaps serve to substantiate a possible failure by the Commission to fulfil its obligations, it cannot in any way demonstrate that the EU legislature manifestly exceeded its wide discretion by adopting point 6(c) of Article 1 of Regulation 2020/1054.

408. As for the special reporting obligation placed on the Commission, set out in Article 8a(4) of Regulation No 561/2006, as amended by Regulation 2020/1054, pursuant to which the Commission is to present, by 31 December 2024, a report to the Parliament and to the Council on, inter alia, the availability of suitable rest facilities for drivers and of secured parking facilities, it does not in any way demonstrate that the measure at issue is disproportionate. It shows only that the legislature indicated that this is a field in respect of which it wishes to be informed of any situation apt to require a fresh assessment.

409. As regards, next, the Republic of Bulgaria’s argument that a Member State might have an incentive not to increase the number of infrastructures, in order to limit the provision of transport services within its territory by foreign hauliers, I note that that argument is obviously hypothetical and is not based on any factor that would suggest that such a situation might arise. In any event, that argument relates to conduct by the Member States and not to whether the EU legislature manifestly exceeded its wide discretion.

410. Last, as regards the pleas relating to the examination of proportionality by the EU legislature, I note that the Council and the Parliament do not deny that, when it adopted point 6(c) of Article 1 of Regulation 2020/1054, the legislature was aware of the general issue of the lack of adequate infrastructure throughout the European Union. As Romania and Hungary observe, that problem had come to light during the legislative procedure, both in the impact assessment and in other studies, such as the 2019 Study.

411. However, it should be observed that, in spite of that problem, the Commission, in its proposal for a working time regulation, based on the results of the impact assessment, had prescribed a provision equivalent to that eventually set out in point 6(c) of Article 1 of Regulation 2020/1054, which also laid down a prohibition on taking longer rest periods, and therefore the regular weekly rest period, in the vehicle. (213)

412. In the meantime, the Court delivered the judgment in Vaditrans, which removed any uncertainty as to the scope of the former version of Article 8(8) of Regulation No 561/2006, and interpreted that provision, ex tunc, (214) in the sense referred to in point 370  above, making clear that a prohibition such as that prescribed in the Commission’s proposal – and eventually adopted in Regulation 2020/1054 – already existed in EU law.

413. In those circumstances, I consider that it cannot be maintained that, by adopting point 6(c) of Article 1 of Regulation 2020/1054 and thus codifying the existing law, in accordance, moreover, with the proposal for a working time regulation, based on an impact assessment, the EU legislature failed to take account of essential factors, namely the data relating to the shortage of safe and secure parking spaces, which had been highlighted during the legislative procedure.

414. It follows from all of the foregoing considerations that, in my view, all of the pleas claiming that point 6(c) of Article 1 of Regulation 2020/1054 does not comply with the requirements flowing from the principle of proportionality must be rejected.

(b)    Infringement of Article 91(2) and Article 94 TFEU

(1)    Arguments of the parties

415. Romania claims that point 6(c) of Article 1 of Regulation 2020/1054 breaches the requirements flowing from Article 91(2) and Article 94 TFEU and that it constitutes a serious interference with hauliers’ and drivers’ interests.

416. As regards, first, hauliers, their costs considerably exceed the cost of making accommodation available for drivers. Those costs must also cover route changes dictated by the availability of appropriate accommodation and parking areas, the rise in insurance premiums owing to the increase in risks connected with the security of the goods carried, the need for drivers to cover extra distances to find an appropriate parking area and the cost of transferring the driver from the parking area to the accommodation, which may be a considerable distance away, having regard to the situation described in the 2019 study. Furthermore, hauliers suffer a fall in revenues, since the shortage of infrastructures has repercussions on the real possibility of planning longer trips and travelling on certain itineraries in complete security.

417. Next, as regards drivers, the repercussions suffered by hauliers lead to job losses and to the need to emigrate to the States of Western Europe. In addition, the provision at issue, owing to the lack of infrastructures, increases driver fatigue and stress.

418. The Council, the Parliament and the interveners supporting them contend that this plea must be rejected.

(2)    Analysis

419. As regards the analysis of Article 91(2) and Article 94 TFEU and of the scope of those provisions, I refer to the considerations that I set out in points 281 to 293  above.

420. As for Romania’s complaints, I observed in point 394 above that, in adopting point 6(c) of Article 1 of Regulation 2020/1054, the legislature did not introduce the prohibition on taking regular weekly rest periods in the cabin into the EU legal order, but merely codified the existing law resulting from the former version of Article 8(8) of Regulation No 561/2006, as interpreted by the Court in the judgment in Vaditrans.

421. In those circumstances, as the prohibition on taking regular weekly rest periods in the cabin was already in force before point 6(c) of Article 1 of Regulation 2020/1054 was adopted, it cannot be maintained that the adoption of that provision entails an increase in costs or a fall in revenues for hauliers or harmful consequences for drivers.

422. It follows that the plea alleging that, as it seriously affects hauliers’ and drivers’ interests, the adoption of point 6(c) of Article 1 of Regulation 2020/1054 breaches the requirements flowing from Article 91(2) and Article 94 TFEU must be rejected.

(c)    Breach of the principles of equal treatment and non-discrimination

(1)    Arguments of the parties

423. In their actions, the Republic of Bulgaria (Case C‑543/20), and Romania (Case C‑546/20) claim that point 6(c) of Article 1 of Regulation 2020/1054 fails to fulfil the requirements flowing from the principle of non-discrimination, laid down in Article 18 TFEU. The Republic of Bulgaria also refers to Articles 20 and 21 of the Charter, to the principle of equality of the Member States, enshrined in Article 4(2) TEU, and to Article 95(1) TFEU.

424. The Republic of Bulgaria and Romania claim that the prohibition on taking regular weekly rest periods in the cabin breaches the principle of equal treatment and non-discrimination both for the transport undertakings on the geographic periphery of the European Union and for the drivers working for those undertakings. It is considerably easier for transport undertakings established in the Member States at the centre of the European Union and their drivers to comply with that prohibition than for hauliers established in the Member States on the periphery of the European Union and their drivers. Within the same Member State, the prohibition gives rise to discrimination between local drivers and those of other Member States. National drivers are not affected by the absence of appropriate accommodation and secure and safe parking areas, since they can sleep at home and park their heavy vehicles at the haulier’s operational centre. That is not the case for drivers employed by hauliers established in States at the periphery of the European Union, who, owing to the absence of appropriate accommodation and secure and safe parking areas, are forced to disregard that prohibition, increasing the costs of the hauliers, most of which are SMEs.

425. In addition, an assessment of the effects of the provisions of Regulation 2020/1054 on the transport market cannot be carried out without taking account of Regulation 2020/1055 and Directive 2020/1057, which also form part of the mobility package. A global assessment of the first mobility package thus shows that the legislation discriminates against hauliers as regards the actual possibility of providing transport services in the European Union.

426. The Council, the Parliament and the interveners supporting them contend that all of those pleas must be rejected.

(2)    Analysis

427. The Republic of Bulgaria and Romania claim that, in adopting point 6(d) of Article 1 of Regulation 2020/1054 and thus maintaining the prohibition on taking regular weekly rest periods in the cabin, the EU legislature breached the principles of equal treatment and non-discrimination, as that prohibition entails discrimination both between drivers and between hauliers.

428. In that regard, I observe at the outset that the prohibition on taking regular weekly rest periods in the cabin applies without distinction and in the same way to every transport undertaking carrying out road transport coming within the scope of Regulation No 561/2006 and to every driver covered by that regulation. (215) The provision is applicable irrespective of the nationality of the driver or the employer. It follows that that obligation, as such, does not explicitly draw a distinction, either between drivers or between transport undertakings.

429. Next, in my view, drivers who engage in international transport between different Member States and drivers who engage in national transport in the Member State of their employer’s establishment are not necessarily in comparable situations, specifically in relation to the objectives of the provision laying down the prohibition on taking regular weekly rest periods in the cabin.

430. In that regard, I observe, first, that, as is apparent from the case-law referred to in point 79 above, the comparability of different situations is assessed in the light of the purpose and the aim of the EU measure called into question. Second, it follows from point 373  above that the prohibition on taking regular weekly rest periods in the cabin has, essentially, the objective of improving drivers’ working conditions, which also contributes to improving road safety.

431. The purpose of the prohibition on taking regular weekly rest periods in the cabin is clearly to protect drivers who spend long periods away from their place of residence and who are thus required, because of their work, to spend their weekly rest periods away from that place. Where a driver is able to spend his or her weekly rest period at home, that prohibition is not relevant. From that perspective, the situations of the two types of drivers referred to in point 429 above are therefore not comparable.

432. In addition, I observe that, as stated in point 4 above, the distinction between, on the one hand, international transport and domestic transport and, on the other, resident hauliers and non-resident hauliers is explicitly laid down in Article 91(1), in particular subparagraph (a) and subparagraph (b) TFEU. EU law therefore prescribes at the level of primary law a different approach in the context of the common transport policy between the rules applicable to international transport and those applicable to domestic transport.

433. Furthermore, following the logic of the two abovementioned Member States, to allow drivers engaged in international transport to take their regular weekly rest periods in the vehicle would entail an even higher degree of discrimination between national drivers, who may take their regular weekly rest period at home, and drivers from other Member States, who would have to spend their regular weekly rest period in the cabin, namely in a place which is not appropriate for spending such long rest periods. (216)

434. Last, it is apparent from the arguments put forward by the two abovementioned Member States that the alleged discrimination on which they rely does not follow from the prohibition on taking regular weekly rest periods in the cabin as such, but rather from what may be the present state of the European infrastructure and, specifically, from the insufficient number of secure parking areas and the lack of appropriate accommodation close to those parking areas.

435. In the context of the limited judicial review which, in a field such as transport policy, the Court has also recognised with regard to respect for the principle of equal treatment, (217) the Court of the European Union may not substitute its own assessment for that of the EU legislature by casting doubt – on the ground of a possible current deficiency in the appropriate infrastructures – on the legislature’s choice not to amend the existing law and not to reduce drivers’ social rights by allowing them to take their regular weekly rest periods in a place that is not appropriate for rest periods that are so long.

436. In the light of all of the foregoing, I consider that the pleas raised against point 6(c) of Article 1 of Regulation 2020/1054 alleging breach of the principles of equal treatment and non-discrimination must be rejected.

(d)    Infringement of the provisions of EU law on freedom to provide transport services and on the single market

(1)    Arguments of the parties

437. Romania claims that point 6(c) of Article 1 of Regulation 2020/1054 infringes the provisions of European Union law on freedom to provide transport services and on the single market. It maintains that, as regards freedom to provide services in the field of transport, as provided for in Article 58(1) TFEU, the implementation of the prohibition on taking regular weekly rest in the cabin will result in a restriction on that freedom, since transport itineraries will, for an indeterminate period, be limited to trips that can be made within a period that does not require the driver to take a weekly rest period or that will be determined according to the presence of safe and secure parking areas. Because of that limitation, the measure entails de facto the fragmentation of the internal market. The result is a backwards step in the attainment of the objective of the sustainable development of that market, as provided for in Article 3 TEU, which is also one of the objectives defined by the Commission in its impact assessment. (218)

438. The Council, the Parliament and the interveners supporting them contend that this plea must be rejected.

(2)    Analysis

439. As is apparent from point 44 et seq. above, in the field of transport, the application of the principles of freedom to provide services must be attained, according to the FEU Treaty, by the implementation of the common transport policy, and the freedom to provide transport services is guaranteed solely to the extent that that right has been granted by means of measures of secondary law adopted by the EU legislature in the context of that common policy.

440. It follows that, even on the assumption that point 6(c) of Article 1 of Regulation 2020/1054 entails, as Romania asserts, a restriction on freedom to provide services, as the EU legislature is free, in the context of its wide discretion, to bring about, by the implementation of the common transport policy, the degree of liberalisation of that sector which it deems appropriate, that circumstance does not in any way entail an infringement of the provisions of EU law relating to freedom to provide transport services and to the single market. It follows that, in my view, this plea must also be rejected.

(e)    Conclusion on the pleas relating to the prohibition on taking the weekly rest in the cabin

441. It follows from all of the foregoing that all the pleas raised by the Republic of Bulgaria (Case C‑543/20), Romania (Case C‑546/20) and Hungary (Case C‑551/20) against point 6(c) of Article 1 of Regulation 2020/1054 should, in my view, be rejected.

3.      The pleas relating to point 2 of Article 2 of Regulation 2020/1054

442. In its action in Case C‑551/20, Hungary seeks annulment of point 2 of Article 2 of Regulation 2020/1054, whereby the date of entry into force of the obligation to install V2 tachographs, namely second generation smart tachographs, was brought forward.

443. Whereas, under the rules in force before Regulation 2020/1054 was adopted, the time limit for meeting the obligation to install V2 tachographs was 15 June 2034, (219) it follows from point 2 of Article 2 of that regulation, read in conjunction with point 8 of that article, which sets the time limits within which the Commission is to adopt the specifications relating to V2 tachographs, that, although the Commission is to adopt and apply within the prescribed periods the implementing regulation containing those specifications, vehicles fitted with digital or analogue tachographs will have to be fitted with V2 tachographs by no later than 31 December 2024 and those fitted with smart tachographs will have to be fitted with V2 tachographs by no later than 2025. The Commission adopted the specifications relating to smart tachographs on 16 July 2021 (220) and amended them on 16 May 2023. (221)

444. In support of its claim for annulment of point 2 of Article 2 of Regulation 2020/1054, Hungary puts forward three pleas, alleging, first, breach of the principle of proportionality; second, breach of the principles of protection of legitimate expectations and legal certainty; and, third, infringement of the second paragraph of Article 151 TFEU.

(a)    Breach of the principle of proportionality

(1)    Arguments of the parties

445. By its first plea, Hungary, supported by Romania, the Republic of Latvia and the Republic of Estonia, claims that, in adopting point 2 of Article 2 of Regulation 2020/1054, the EU legislature breached the principle of proportionality and made a manifest error of assessment by not assessing the economic consequences of significantly bringing forward the deadline for the installation of V2 tachographs. As that provision is not in the proposal for a working time regulation, no impact assessment was carried out on that point. The provisions amending the deadline for the installation of the tachograph were introduced into the draft text in application of the agreement concluded by the Parliament and the Council, without any impact assessment being carried out by those institutions either.

446. It follows from the case-law that it is possible to dispense with the impact assessment where the legislature has objective information allowing it to assess the proportionality of the measure. However, Hungary asserts that it is unaware of the existence of such information, or of an assessment carried out by the legislators.

447. Hungary also claims that the provisions proposed by the Parliament and the Council constituted significant amendments of the Commission proposal within the meaning of the interinstitutional agreement referred to in point 62  et seq. above and that there was therefore justification for carrying out a complementary impact assessment or for calling on the Commission to do so. Two studies carried out in February and March 2018 examined the costs of compliance but did not expressly address the question of proportionality, although the second study referred to the possibility of disproportion. In addition, Hungary considers it particularly problematic, in that regard, that the new technology (V2) is not yet on the market and that it is not known for certain when it will be.

448. The Council, the Parliament and the interveners supporting them contend that this plea must be rejected.

(2)    Analysis

449. In this plea, Hungary basically takes issue with the EU legislature for having adopted point 2 of Article 2 of Regulation 2020/1054 and, in doing so, having significantly brought forward the deadline for the installation of V2 tachographs, without having sought an impact assessment and without having sufficient information allowing the proportionality of the measure eventually adopted to be assessed.

450. In that regard, it should first of all be observed that it is common ground between the parties that the Impact assessment – social section, which the Commission carried out with a view to the revision of Regulations Nos 561/2006 and 165/2014, did not cover the deadline for the installation of V2 tachographs, as the Commission did not envisage, in its proposal for the amendment of the latter regulation, that the date of entry into force of the obligation relating to the installation of V2 tachographs would be brought forward.

451. However, it follows from the case-law referred to in points 65 and 72  above, first, that the omission of an impact assessment cannot be characterised as a breach of the principle of proportionality when the EU legislature has sufficient information allowing it to assess the proportionality of a measure adopted and, second, that in the effective exercise of its discretion the EU legislature may take account not only of the impact assessment but also of any other source of information.

452. In this instance, as the Council and the Parliament assert, although the measure at issue did not appear in the Commission’s proposal or in the Impact assessment – social section, in March 2018, the Commission published the final report of a study on measures fostering the implementation of the smart tachograph. It is not disputed by Hungary that the objective of that study was to evaluate different strategic options designed to speed up the implementation of the smart tachograph and, in particular, to evaluate the economic, social and road safety impacts requiring compliance by vehicles registered before June 2019. (222) That Commission study contained a detailed cost-benefit analysis that took account of the economic effects on hauliers and national authorities, of the effects on road safety, of the social effects and of the effects on the internal market. In addition, in 2018 the Parliament also carried out a study with a view to evaluating the costs and benefits of the installation, by January 2020, of a smart tachograph for heavy goods vehicles engaged in international transport. (223) It is also apparent from the case file that the legislature examined those studies and took them into account in the legislative procedure that resulted in the adoption of Regulation 2020/1054.

453. In those circumstances, I consider that the EU institutions which adopted the measure at issue have established before the Court that the measure at issue was adopted through an effective exercise of their discretion and that they have produced and explained clearly and unequivocally the basic data which they took into account as the basis for the contested measure.

454. The other arguments put forward by Hungary cannot call that assessment into question.

455. First, the fact, alleged by Hungary, that the two studies referred to above did not specifically examine compliance with the principle of proportionality is irrelevant. It is for the legislature to carry out, on the basis of the available data, the necessary balancing exercise between the different interests involved, in order to ensure equilibrium between them, taking account of the objectives pursued by the measure at issue. It cannot therefore be required that the basic data on which the exercise of the legislature’s discretion is based be presented in the context of a specific assessment of proportionality. In that regard, I also recall that, as is apparent from the case-law referred to in point 72 above, the form in which the basic data taken into account by the EU legislature are set out is irrelevant.

456. Second, the fact alleged by Hungary that the technology (V2) is not yet on the market, even on the assumption that it is substantiated – which is not the case – cannot call the proportionality of the measure at issue into question.

457. First, it should be borne in mind that, as is apparent from the Court’s settled case-law referred to in point 74 above, the validity of an EU act must be assessed by reference to the information which the EU legislature had at the time when it adopted the legislation at issue. The EU institutions have proved, without being contradicted by Hungary, that during the legislative procedure the information that the legislature had was that the technology in question would be ready in 2022 and that the installation of the V2 tachographs could be completed by the end of 2024. (224)

458. Second, the deadline for the installation of the V2 tachographs was defined in Regulation 2020/1054 in a somewhat untypical manner, in that it was fixed by reference not to a specific date, but to a period following the adoption by the Commission of the necessary detailed technical provisions, in such a way as to ensure that there would be sufficient time to develop those new tachographs. As I observed in point 443  above, the Commission adopted the technical specifications relating to smart tachographs on 16 July 2021 and it even amended them quite recently, in order to ensure the common functioning of those second version smart tachographs in spite of some delays for technical reasons. Those developments show, in my view, the appropriateness of the legislature’s choice as to the procedure for setting the deadline for the installation of V2 tachographs, which aimed to guarantee flexibility in the implementation of that obligation.

459. It follows from the foregoing considerations that, to my mind, the plea alleging that, in adopting point 2 of Article 2 of Regulation 2020/1054, the EU legislature breached the principle of proportionality, must be rejected.

(b)    Breach of the principles of protection of legitimate expectations and legal certainty

(1)    Arguments of the parties

460. By its second plea, Hungary maintains that the bringing forward of the deadline for the installation of V2 tachographs constitutes a breach of the legitimate expectations of economic operators and therefore of the principles of legitimate expectations and legal certainty. Under the rules in force before Regulation 2020/1054 was adopted, (225) economic operators could legitimately think that they had a period of 15 years, following the adoption of the implementing rules, to satisfy the requirement to install smart tachographs. Not only did the operators simply place their reliance on an existing situation being maintained, but the legislature, exercising its discretion, itself set a deadline on which operators were likely to base their economic decisions. That deadline can therefore be altered only for overriding reasons relating to the public interest. In Hungary, as a result of the deadlines being brought forward, the obligation to install the V2 tachograph affects around 60% of the fleet, at an estimated unitary cost of around EUR 2 000.

461. As the legislature adopted Regulation 2020/1054 on 15 July 2020, it was from that time that the new date of the compliance obligation could be known with certainty. Consequently, only that date could mark the starting point of the period available to economic operators to adapt, not the date of publication of the studies that first addressed the issue. Even if economic operators were aware of those studies, they could not know with certainty which solution would be adopted.

462. None of the reasons stated in recital 27 of Regulation 2020/1054 as justification for altering the deadlines for the introduction of V2 tachographs constitutes an overriding reason relating to a public interest. As regards, first, the cost-effectiveness of the enforcement of the social rules, that was not really examined during the legislative process. Second, the rapid development of new technologies and digitisation throughout the economy do not constitute overriding reasons relating to a public interest capable of justifying a breach of the legitimate expectations of economic operators. In addition, V2 tachographs have not yet been developed and the date on which they will be placed on the market is not known. As regards, third, the need to have a level playing field for companies in international road transport, it is difficult to understand why international undertakings from third countries are not subject to that obligation. The European Agreement concerning the work of crews of vehicles engaged in international road transport (‘the AETR Agreement’) currently requires the fitting of a digital tachograph.

463. The Council, the Parliament and the interveners supporting them contend that this plea must be rejected.

(2)    Analysis

464. I have already analysed in point 117 et seq. of this Opinion above, to which I refer, the principles set out by the Court in its case-law relating to the principle of legal certainty.

465. As regards the principle of protection of legitimate expectations, which is a corollary of the principle of legal certainty, it has consistently been held that the possibility of relying on that principle is open to any economic operator where an institution has caused it to entertain legitimate expectations. For the purposes of that case-law, information, in whatever form it is given, which is precise, unconditional and consistent and comes from authorised and reliable sources constitutes assurances capable of giving rise to such expectations. (226)

466. Conversely, if a prudent and alert economic operator can foresee that the adoption of an EU measure is likely to affect his or her interests, he or she cannot plead that principle if the measure is adopted. (227)

467. With regard to reliance on the principle of the protection of legitimate expectations due to the actions of the EU legislature, it must be noted that the Court has acknowledged that the EU legislature has a wide discretion where its action involves political, economic and social choices and where it is called on to undertake complex assessments and evaluations. (228)

468. The Court has also held that an economic operator may not place reliance on there being no legislative amendment whatever, but can call into question only the arrangements for the implementation of such an amendment. (229)

469. Likewise, the principle of legal certainty does not require that there be no legislative amendment, but only that the legislature take account of the special situations of economic operators and, where necessary, make adjustments to the implementation of the new legal rules. (230)

470. In addition, according to the Court’s settled case-law, the scope of the principle of protection of legitimate expectations cannot be extended to the point of generally preventing new rules from applying to the future effects of situations that arose under the earlier rules, (231) especially in fields the subject matter of which necessarily involves constant adjustment. (232)

471. In this instance, in my opinion, it cannot be considered that the economic operators concerned received precise, unconditional and consistent assurances, in the words of the case-law referred to above, that justified their having a legitimate expectation that the regulatory environment would remain unaltered and that, thus, they would in any event have a period of 15 years, following the adoption of the implementing rules, within which to meet the requirement to have smart tachographs installed.

472. It does not in any way follow that the legislature gave an unconditional undertaking in the sense that the regulatory framework applicable to tachographs would remain unchanged for 15 years. In that regard, it should be observed that it is not at all unusual for the regulatory framework to be adjusted on a number of occasions, particularly in fields involving rapidly developing technical and/or technological issues, which are characterised by rapid and continuous technical progress.

473. Furthermore, I share the institutions’ view that, in the light of the two documents referred to in point 452 above, which were based on consultation with representatives of the economic sector concerned and interested parties, a prudent and alert road transport operator could not be unaware, at least since the publication of those studies, that the EU legislature envisaged possible amendments of the rules relating to tachographs. Such an operator was therefore indeed in a position to take account of that possibility when taking its economic decisions.

474. Nor can it be considered that the provision at issue abolished with immediate effect, and without notice, a specific advantage that the regulations conferred on the operators concerned. Quite to the contrary, under Regulation 2020/1054 economic operators have a period of four or five years to comply with the new rules relating to smart tachographs.

475. Having regard to all of the foregoing, I consider that the plea raised by Hungary alleging that point 2 of Article 2 of Regulation 2020/1054 was adopted in breach of the principles of legitimate expectations and legal certainty must also be rejected.

(c)    Infringement of the second paragraph of Article 151 TFEU.

(1)    Arguments of the parties

476. Hungary maintains that point 2 of Article 2 of Regulation 2020/1054 breaches the obligation to maintain the competitiveness of the European Union economy, as laid down in the second paragraph of Article 151 TFEU. Although that regulation was adopted within the framework of the common transport policy and has as its legal basis Article 91(1) TFEU, it undoubtedly comes within social policy. An improvement of working conditions by means of the harmonisation of laws cannot take place unless at the same time account is taken of the need to maintain the competitiveness of the EU economy. At present, however, comparable requirements relating to the V2 tachograph do not apply to the vehicles of undertakings that are not established in a Member State, although under the AETR Agreement the vehicles of undertakings established in countries to which that agreement is applicable are required only to have a digital tachograph, which therefore confers a competitive advantage on them. Although the legislature itself recognised the need to maintain the competitiveness of the undertakings of the European Union, in recital 34 of Regulation 2020/1054, the regulation itself does not impose any actual obligation on the Commission or prescribe any specific period in that respect, so that there is no guarantee that the AETR Agreement will be amended accordingly or, at least, that negotiations to that effect may be entered into in the near future. While the legislature is not bound by an obligation of result, it has an obligation to exercise diligence, in the sense that it should do everything in its power to ensure that the European Union is not at a competitive disadvantage. In order to satisfy that obligation, it is not sufficient to adopt a recital that has no binding effect.

(2)    Analysis

477. Article 151 TFEU, which Hungary, by the present plea, claims has been infringed, is the first article of Title X of Part Three of the FEU Treaty, dedicated to ‘Social Policy’. In the words of its second paragraph, for the purposes of the social policy objectives set out in the first paragraph of that article, ‘the Union and the Member States shall implement measures which take account of the diverse forms of national practices, in particular in the field of contractual relations, and the need to maintain the competitiveness of the Union economy’.

478. It follows from the very wording of that provision that it lays down a mere obligation to ‘take account’. As is apparent from point 288  et seq. above – and as is the case, moreover, for Articles 91(1) and 94 TFEU – such an obligation does not have absolute value, but merely requires the EU legislature, for measures adopted in the field of social policy, to take account of the specific objectives and parameters referred to therein, and in particular of the need to maintain the competitiveness of the EU economy.

479. Hungary takes issue with the legislature for not having taken account of that need with regard to the fact that, under the AETR Agreement, the vehicles of undertakings established in third countries to which that agreement is applicable are not required to have a V2 tachograph, which in its submission confers a competitive advantage on them.

480. However, it is apparent from recital 34 of Regulation 2020/1054 that the legislature explicitly considered that ‘it is important that transport undertakings established in third countries are subject to rules which are equivalent to Union rules when performing road transport operations in the territory of the Union’ and that ‘the Commission should assess the application of this principle at Union level and propose adequate solutions to be negotiated in the context of the [AETR]’.

481. In those circumstances, it cannot be maintained that the legislature did not ‘take account’ of the differences in the rules, including those relating to tachographs, applicable, respectively, to EU transport undertakings, on the one hand, and to transport undertakings of third countries when they perform road transport operations on the territory of the European Union, on the other.

482. It follows from the foregoing considerations that, in my view, the third plea raised by Hungary against point 2 of Article 2 of Regulation 2020/1054 must be rejected, too, without there being any need to address the question whether Article 151 TFEU, a provision contained in Title X, concerning ‘Social Policy’, is applicable to a legislative act adopted in the context of the common transport policy set out in Title IV and having Article 91(1) TFEU as its legal basis.

483. In the light of all of the foregoing, I consider that the claim for annulment of point 2 of Article 2 of Regulation 2020/1054, submitted by Hungary in the context of Case C‑551/20, must be rejected in its entirety.

4.      The pleas relating to Article 3 of Regulation 2020/1054

484. In its action in Case C‑541/20, the Republic of Lithuania seeks annulment of Article 3 of Regulation 2020/1054, which provides that that regulation – apart from two exceptions which are not relevant in this context (233) – is to enter into force on the twentieth day following that of its publication in the Official Journal of the European Union. That regulation was published in the Official Journal on 17 July 2020 and therefore entered into force on 20 August 2020.

485. In support of its action, the Republic of Lithuania puts forward three pleas. Before I analyse those pleas, it is appropriate, as a preliminary step, to examine their effectiveness.

(a)    The effectiveness of the pleas relating to Article 3 of Regulation 2020/1054

486. By its three pleas, the Republic of Lithuania calls into question Article 3 of Regulation 2020/1054, which sets a time limit of 20 days for the entry into force of that regulation. The Council and the Parliament claim, however, that even if that article were annulled, then in any event, pursuant to the third subparagraph of Article 297(1) TFEU, the same date of entry into force would continue to apply for that regulation. (234)

487. In that regard, I recall that, under the third subparagraph of Article 297(1) TFEU, legislative acts are to ‘enter into force on the date specified in them or, in the absence thereof, on the twentieth day following that of their publication’.

488. As the Vice President of the Court observed in the interlocutory proceedings brought by the Republic of Lithuania, Article 3 of Regulation 2020/1054 is merely the implementation of the third subparagraph of Article 297(1) TFEU. (235)

489. However, that circumstance does not automatically mean that the annulment of Article 3 of that regulation would mean that, in any event, the same period of 20 days for entry into force would apply pursuant to the third subparagraph of Article 297(1) TFEU. That provision of the TFEU also provides that the legislature may, if it considers it appropriate, decide to apply a different period for the entry into force of a legislative act. In its pleas, the Republic of Lithuania puts into dispute the EU legislature’s choice to apply that ‘default’ period of 20 days from publication in the Official Journal for the entry into force of Regulation 2020/1054, without prescribing, on the other hand, a longer period for its entry into force, as expressly permitted by that provision of the TFEU. The Republic of Lithuania maintains that a sufficient transitional period is necessary to enable the Member States and the operators concerned to adapt to the new rules laid down in that regulation, in particular to the provisions relating to the prohibition on taking regular weekly rest periods in the cabin and to the obligation for drivers to return.

490. It follows that, contrary to the contention of the two EU institutions, if the Court were to uphold the Republic of Lithuania’s pleas and annul Article 3 of Regulation 2020/1054 on the ground that the application of the 20-day period prescribed therein is not consistent with EU law, the annulment of that provision could not in any way entail the application of the same period, which has been held to be illegal, and therefore the same date of entry into force, pursuant to the third subparagraph of Article 297(1) TFEU. Quite to the contrary, the entire entry into force of that regulation would be called into question.

491. Consequently, in my view, the pleas raised by the Republic of Lithuania concerning Article 3 of Regulation 2020/1054 are not ineffective.

(b)    Breach of the principle of proportionality

(1)    Arguments of the parties

492. By its first plea, the Republic of Lithuania maintains that, in providing in Article 3 of Regulation 2020/1054 for the obligation to apply within the prescribed period of 20 days the provisions relating to the prohibition on taking regular weekly rest periods in the cabin and to the obligation for drivers to return (laid down in point 6(c) and (d), respectively, of Article 1 of Regulation 2020/1054), the EU legislature did not take into account the fact that, in the absence of a transitional period, the Member States and hauliers were unable to adapt to those obligations, and did not present any argument to justify why their entry into force was so urgent. In choosing an inappropriate mechanism for the implementation of Regulation 2020/1054 (by not providing for its application to be postponed, or for a transitional period), the EU institutions thus created unsustainable legislation, compliance with which is particularly complicated to ensure, for various objective reasons, and thus breached the principle of proportionality.

493. First, the EU legislature did not take into account the fact that at present there are not sufficient adequate and safe parking areas, in which drivers might benefit from appropriate rest conditions outside the cabin. It follows that transport undertakings will have to take unjustified and disproportionate risks by instructing drivers to leave their lorries in parking areas where the security of the load is not ensured. In addition, in the impact assessment, the Commission itself confirmed the difficulties arising from the insufficiency of accommodation and secure parking areas. Point 6(c) of Article 1 of Regulation 2020/1054 is not a mere codification of the judgment in Vaditrans, as the obligation to take the prescribed rest period in suitable gender-friendly accommodation with adequate sleeping and sanitary facilities is a new obligation. In any event, even in order to codify a provision, the legislature must follow the ordinary legislative procedure, during which it must, inter alia, assess the proportionality of the proposed measure and ascertain whether it is easy to implement.

494. Second, the Republic of Lithuania refers to the 2019 study and to the data referred to in point 351 above.

495. Third, the Republic of Lithuania maintains that, in spite of being informed by the EESC and the Parliament’s Committees on Employment and Social Affairs and on Transport and Tourism of the difficulties in applying Regulation 2020/1054, the EU legislature disregarded that information.

496. Fourth, the Republic of Lithuania claims that the prohibition on taking regular weekly rest periods in the cabin also raises other important legal questions, concerning, for example, precautionary measures and insurance cover, since in most cases the driver will have to leave the load, unsupervised, in an insecure parking place.

497. Fifth, the Republic of Lithuania maintains that the unjustified nature of Article 3 of Regulation 2020/1054 is also demonstrated by the absence of any interpretative document by reference to which transport undertakings would be able to organise the drivers’ return to their place of residence or to the undertaking’s operational centre. Without those documents, the obligation for drivers to return is difficult to implement, giving rise to practices that differ between Member States and between transport undertakings.

498. The Council, the Parliament and the interveners supporting them contend that this plea must be rejected.

(2)    Analysis

499. In accordance with the case-law referred to in point 52 et seq. above, the examination of the plea raised by the Republic of Lithuania alleging breach of the principle of proportionality must seek to ascertain whether, in prescribing in Article 3 of Regulation 2020/1054 a period for the entry into force of that regulation of 20 days following that of its publication in the Official Journal of the European Union, and in not making provision for a transitional period specifically for the entry into force of the provisions relating to the prohibition on taking regular weekly rest periods in the cabin and the obligation for drivers to return, the EU legislature manifestly exceeded its wide discretion in common transport policy matters, by opting for a measure that is manifestly inappropriate by reference to the objectives which it intended to pursue or which causes disadvantages that are disproportionate to the aims pursued.

500. As regards, first of all, the objectives pursued by Regulation 2020/1054 and, specifically, by the provisions relating to the prohibition on taking regular weekly rest periods in the cabin and the obligation for drivers to return, I refer to point 196 et seq. and to point 373 of this Opinion.

501. Next, as regards, in the first place, the period for the entry into force of the obligation laid down in point 6(c) of Article 1 of Regulation 2020/1054, I observed in point 394 above that, in adopting that provision, the EU legislature did not introduce into the EU legal order the prohibition on taking the regular weekly rest period in the cabin, but merely codified the existing law resulting from the former version of Article 8(8) of Regulation No 561/2006, as interpreted by the Court in the judgment in Vaditrans.

502. It follows that the Republic of Lithuania’s complaint amounts, in essence, to taking issue with the EU legislature for not having prescribed a transitional period for a rule which was already in force in the EU legal order and with which the operators concerned were already required to comply.

503. I share the Republic of Lithuania’s view that, even when it codifies the existing law, the legislature is not relieved of its duty to assess the proportionality of the proposed measure. However, it follows from the considerations which I set out in point 398 et seq., first, that any different approach, even on a temporary basis, from that of maintaining the prohibition on taking the regular weekly rest period in the cabin would have resulted in allowing, by legislative means, drivers to take those rest periods in a place which, as the Court has explicitly recognised, (236) is not an appropriate place in which to spend such long rest periods. That would have led to a reduction in drivers’ social protection and thus to the deterioration of their working conditions, which is contrary to the objectives of the rules in question and to the judgment in Vaditrans.

504. Second, I have already explained in point 400 above that, to my mind, any current shortage of appropriate infrastructures cannot constitute justification for allowing, by legislative means, drivers to take their regular weekly rest periods in the vehicle, namely in such a place which is not appropriate for spending such long rest periods.

505. As regards the arguments relating to the information supplied by EESC and by the Parliament’s committees during the legislative procedure concerning the state of infrastructures in Europe, I refer to the considerations set out in points 261 and 410 above. Likewise, as regards the arguments relating to precautionary measures and insurance cover, as I explained in point 404  above, since point 6(c) of Article 1 of Regulation 2020/1054 merely codifies the existing law, its adoption did not in any way entail an increase in risks and costs for transport undertakings.

506. As regards, in the second place, the period prescribed for the entry into force of the obligation laid down in point 6(d) of Article 1 of Regulation 2020/1054, the Republic of Lithuania merely claims that the disproportionate nature of Article 3 of that regulation is demonstrated by the absence of an interpretative document by reference to which transport undertakings could organise the drivers’ return. It is apparent from the analysis carried out in point 125 et seq. of this Opinion that point 6(d) of Article 1 of Regulation 2020/1054 meets the requirements of legal certainty, while leaving a certain flexibility for its implementation to the transport undertakings. In those circumstances, as that provision is sufficiently clear to be implemented by the operators concerned, although interpretative documents capable of helping the operators concerned to comply with the obligation prescribed in that provision are certainly useful, the absence of such documents cannot in any way entail a breach of the principle of proportionality with regard to the date of entry into force of that provision.

507. It follows from all of the foregoing that the plea alleging that Article 3 of Regulation 2020/1054 was adopted in breach of the principle of proportionality must be rejected.

(c)    Breach of the obligation to state reasons

(1)    Arguments of the parties

508. By its second plea, the Republic of Lithuania claims that Article 3 of Regulation 2020/1054 is vitiated by a failure to state reasons within the meaning of Article 296 TFEU. It observes that, when examining the Commission proposal, the Parliament and the Council were aware, from the impact assessment and from other sources, first, that the prohibition on taking regular weekly rest periods in the cabin would give rise to practical problems in implementing that provision and, second, that the obligation for drivers to return would, without justification, limit freedom of movement for workers, and that there were no clear rules for the implementation of that obligation. Since that information was known, the EU institutions ought to have put forward arguments in support of the absence of a transitional period or of the deferment of the entry into force of the rules. Although the objectives set out in the Commission’s proposal are important, they do not justify the urgency of the entry into force of the new rules.

509. The Council, the Parliament and the interveners supporting them contend that this plea must be rejected.

(2)    Analysis

510. The second paragraph of Article 296 TFEU provides that the legal acts of the EU institutions are to state the reasons on which they are based. In that regard, it is clear from the Court’s case-law that the statement of reasons must be adapted to the nature of the legal act at issue and to the context in which it was adopted. (237)

511. As I pointed out in point 487 above, the 20-day period following publication of the act in the Official Journal is the ‘default’ period laid down in the third subparagraph of Article 297(1) TFEU for the entry into force of legislative acts, without prejudice to the EU legislature’s option to choose a different date, if it deems it appropriate.

512. To my mind, it follows from that provision that the ‘default’ period is, as a general rule and save in exceptions, intended, in accordance with the will of the authors of the FEU Treaty, to be prescribed for the entry into force of every legislative act.

513. In those circumstances, I am inclined to consider that, in principle, it is only where the EU legislature decides not to apply that ‘default’ period that it might be required to explain the reasons for its decision not to opt for that period and to apply a different period.

514. In spite of those considerations, I consider that, in any event, the arguments put forward by the Republic of Lithuania cannot demonstrate a breach in this instance by the EU legislature of the obligation to state reasons.

515. As regards the period prescribed for the entry into force of the obligation laid down in point 6(c) of Article 1 of Regulation 2020/1054, since that provision merely codified the existing law, and since the prohibition on taking regular weekly rest period in the cabin was therefore already in force at the time of its adoption, (238) that provision cannot ‘give rise’ to practical problems for its implementation, as claimed by the Republic of Lithuania, that would justify a specific obligation to state reasons. Any such practical problems would have already existed.

516. As regards the period for the entry into force of the obligation laid down in point 6(d) of Article 1 of Regulation 2020/1054, the argument alleging that the obligation for drivers to return limits, without justification, freedom of movement for workers is based on a misreading of that provision, as is clear from points 125 to 129  above. The argument alleging that there were no clear rules for the implementation of that obligation was analysed and rejected in point 506  above.

517. It follows from the foregoing that the plea alleging breach of the obligation to state reasons with respect to Article 3 of Regulation 2020/1054 must also be rejected.

(d)    Breach of the principle of sincere cooperation enshrined in Article 4(3) TEU

(1)    Arguments of the parties

518. By its third plea, the Republic of Lithuania takes issue with the Parliament and the Council, as co-legislators, for having breached the principle of sincere cooperation enshrined in Article 4(3) TEU by adopting Article 3 of Regulation 2020/1054. First, it is clear upon examining that regulation that not only did the EU institutions wholly fail to justify the need for the prohibition on spending the night in the cabin during the relevant periods and the obligation for drivers to return to their place of residence or to the undertaking’s operational centre to be brought into force without delay, but, in addition, they failed to examine how it would have been possible to create the appropriate conditions, by making provision for a transitional period, to allow the Member States and the transport undertakings to adapt to the new obligations. In particular, the EU institutions did not examine measures that would make it possible to attenuate the existing situation, by authorising the Member States to adapt to those new obligations gradually, and which would ensure that the transport undertakings will not be penalised because of the insufficiency of adequate accommodation. Second, they failed to take into account the fact that the appropriate implementation of the obligation for drivers to return was unclear and that, consequently, in order to ensure the coherent implementation of that obligation, it would be necessary to adopt further measures. Third, there is also a breach of the duty of mutual assistance, since it is obvious that the Member States cannot objectively guarantee a sufficient infrastructure. In addition, the EU institutions are in principle required to have a dialogue with the Member States and to state their reasons for rejecting the objections formulated by them.

519. The Council, the Parliament and the interveners supporting them contend that this plea must be rejected.

(2)    Analysis

520. As a preliminary point, it should be observed that, under Article 4(3) TEU, the European Union and the Member States are, in full mutual respect, to assist each other in carrying out tasks that flow from the Treaties.

521. As regards the scope of that principle in the context of the adoption of legislative acts, it follows from the case-law that in areas in which the EU legislature has a wide discretion, the Court need satisfy itself only that the institutions which adopted the contested measure are able to show that, in adopting the act, they actually exercised their discretion and, for that purpose, are able to set out clearly and unequivocally the basic facts which had to be taken into account as the basis of the contested measures of that act and on which the exercise of their discretion depended. The duty of sincere cooperation cannot have a wider scope, in the sense of requiring the EU legislature, in all circumstances, to produce, at the request of a Member State, documents and information that are allegedly missing or to correct information available to it before being able to adopt an act. Such an interpretation could prevent the institutions from exercising their discretion and block the legislative process. It is, admittedly, true that the duty of sincere cooperation includes the duty of mutual assistance, which entails, among other things, the exchange of relevant information between the institutions and the Member States during the legislative process. However, that duty cannot provide a means for one of those States, in the event of disagreement as to the adequacy, relevance or accuracy of the available data, to challenge the lawfulness of the decision-making process on that ground alone. (239)

522. In those circumstances, the Court has made clear that, as is apparent from settled case-law, the adoption of a legislative measure with due regard for the relevant provisions of the FEU Treaty, despite the opposition of a minority of Member States, cannot constitute a breach of the duty of sincere cooperation devolving on the Parliament and the Council. (240)

523. In this instance, it is not disputed that, within the Council, the proposal for a working time regulation and the Impact assessment – social section were discussed at several meetings. Nor is it disputed that the Republic of Lithuania had, during the legislative process, access to all the documents on which the EU legislature relied in order to adopt the regulation in question and was able to present its observations on the data contained in those documents and on the assumptions made. It follows that, in this instance, the exchange of information regarding the provisions that subsequently became Regulation 2020/1054, an exchange based on the duty of mutual assistance flowing from Article 4(3) TEU, proceeded correctly. That assertion cannot be called into question by the arguments raised by the Republic of Lithuania, all of which, moreover, relate to questions that have already been rejected in the context of the substantive analysis of the pleas relating to the provisions at issue. The existence of that duty of mutual assistance does not entail any obligation for the legislature to agree with every Member State on every point.

524. In the light of all of those considerations, I consider that the plea alleging breach of the principle of sincere cooperation enshrined in Article 4(3) TEU with regard to the adoption of Article 3 of Regulation 2020/1054 must also be rejected.

525. Having regard to all of the foregoing, I consider that the claim for annulment of Article 3 of Regulation 2020/1054, submitted by the Republic of Lithuania in the context of Case C‑541/20, must be rejected in its entirety.

5.      Conclusion on the actions relating to Regulation 2020/1054

526. In the light of the foregoing analysis, I propose that the Court should dismiss in their entirety the actions brought by the Republic of Bulgaria in Case C‑543/20, by Romania in Case C‑546/20 and by the Republic of Poland in Case C‑553/20, and dismiss the actions brought by the Republic of Lithuania in Case C‑541/20 and by Hungary in Case C‑551/20, in so far as those two actions relate to Regulation 2020/1054.

C.      Regulation 2020/1055 (Cases C‑542/20, C‑545/20, C‑547/20, C‑549/20, C‑551/20, C‑552/20 and C‑554/20)

527. These seven actions focus essentially on two provisions of Regulation 2020/1055, namely point 3(a) of Article 1, in so far as it introduces an obligation for vehicles to return home every eight weeks (Article 5(1)(b) of Regulation No 1071/2009 as amended by Regulation 2020/1055), and point 4(a) of Article 2, which introduces a waiting period of four days between two periods of permitted cabotage (Article 8(2a) of Regulation No 1072/2009 as amended by Regulation 2020/1055). In addition, the Republic of Poland alone contests the validity of two other provisions, namely point 3 of Article 1 of Regulation 2020/1055, in that it introduces the obligation for transport undertakings to have at their disposal a number of vehicles and drivers proportionate to the volume of transport operations carried out (Article 5(1)(g) of amended Regulation No 1071/2009) and point 5(b) of Article 2 of Regulation 2020/1055, on the possibility of subjecting combined transport operations to a waiting period (Article 10(7) of amended Regulation No 1072/2009).

528. I shall examine, in the first place, the pleas directed against the new conditions relating to the establishment requirement (Article 5 of Regulation No 1071/2009 as amended by Regulation 2020/1055), that is to say, the obligation for vehicles to return home every eight weeks and the obligation for transport undertakings to have at their disposal a number of vehicles and drivers proportionate to the volume of transport operations carried out, before dealing, in the second place, with the pleas relating to the cabotage operations regime directed against the four-day waiting period between two periods of permitted cabotage and then against the introduction of the possibility of subjecting combined transport operations to a waiting period.

1.      The obligation for vehicles to return home every eight weeks (point 3 of Article 1 of Regulation 2020/1055, in so far as it amends Article 5(1)(b) of Regulation No 1071/2009)

529. The Republic of Lithuania, the Republic of Bulgaria, Romania, the Republic of Cyprus, Hungary, the Republic of Malta and the Republic of Poland dispute the legality of point 3 of Article 1 of Regulation 2020/1055 in so far as it amends Article 5(1)(b) of Regulation No 1071/2009.

530. Article 5(1)(b) of Regulation No 1071/2009 is devoted to the conditions relating to the establishment requirement. It now provides, following the entry into force of Regulation 2020/1055, that ‘in order to satisfy the requirement laid down in point (a) of Article 3(1), ^[(241)^] in the Member State of establishment an undertaking shall … organise its vehicle fleet’s activity in such a way as to ensure that vehicles that are at the disposal of the undertaking and are used in international carriage return to one of the operational centres in that Member State at least within eight weeks after leaving it’. Thus, point 3 of Article 1 of Regulation 2020/1055 introduced into Regulation No 1071/2009 an obligation for vehicles to return home every eight weeks.

531. In essence, the pleas raised by the applicant Member States may be grouped around six principal themes, which are: compliance with essential procedural requirements; EU environmental policy; the principles of equal treatment and non-discrimination; the principle of proportionality; the specific obligations imposed on the EU legislature by Article 91(1) and Article 94 TFEU; and fundamental economic freedoms.

(a)    The pleas alleging infringement of Article 91(1) TFEU on the ground of failure to consult the EESC and the CoR

(1)    Arguments of the parties

532. The Republic of Bulgaria (242) maintains that, pursuant to Article 91(1) TFEU, which constitutes the legal basis of Regulation 2020/1055, the EU legislature was required to act in accordance with the ordinary legislative procedure and after consulting the EESC and the CoR. The Republic of Bulgaria maintains that by not consulting those two committees with regard to the amendments introduced during the legislative procedure, the Council and the Parliament infringed Article 91(1) TFEU and failed to comply with an essential requirement. Such an obligation to consult follows from the Court’s case-law on the advisory role of the European Parliament (243) when it was not yet a co-legislator, which applies mutatis mutandis with regard to the EESC and the CoR, and to the working documents concerning the functioning of the CoR. The obligation for vehicles to return home every eight weeks constitutes a substantial amendment and the failure to consult those two committees influenced the substance and the essence of the new legislation. At the stage of the reply, the Republic of Bulgaria maintains that the findings made in the judgment in Case C‑65/90 (244) can be applied to the procedure for consulting the CoR and the EESC, and that the provision interpreted by the Court in that case is worded in exactly the same way as Article 91(1) TFEU. The obligation to consult those two committees results from a clear and unequivocal essential procedural requirement. A substantial amendment introduced into the Proposal for a Regulation of the European Parliament and of the Council on health technology assessment and amending Directive 2011/24/EU (245) led the co-legislator to decide to consult the EESC again. The fact that the failure to consult has no significant impact on the content of the provision eventually adopted, although, contrary to the Parliament’s assertion, the absence of such an impact was not proved, cannot in any event affect the mandatory nature of the consultation. The Council wrongly maintained that the obligation to consult the committees did not concern the contested measure, as Article 91(1) TFEU does not draw a distinction of that type.

533. The Republic of Cyprus maintains a line of argument analogous on all points to that developed by the Republic of Bulgaria. (246)

534. The Parliament and the Council, and the interveners supporting them, contend that the pleas alleging infringement of Article 91(1) TFEU on the ground of failure to consult the EESC and the CoR must be rejected.

(2)    Analysis

535. It follows from Article 91(1) TFEU that the Parliament and the Council, when they act on the basis of that provision, are required to consult the EESC and the CoR. The opinions of the EESC and the CoR on the Commission’s proposal (247) were received on 18 January 2018 (248) and 1 February 2018, respectively. (249)

536. The Republic of Bulgaria and the Republic of Cyprus maintain, in essence, that the opinions of those two committees ought to have been obtained again following the substantial amendments consisting in the introduction, during the legislative procedure, of the obligation for vehicles to return home every eight weeks and, as regards the Republic of Bulgaria only, of a waiting period of four days between two periods of permitted cabotage.

537. I observe, at the outset, that such an obligation to consult those two committees again in the event that a substantial amendment is made to a legislative proposal does not flow either from Article 91 TFEU or from any other provision of primary law.

538. As regards, first, the working documents to which the Republic of Bulgaria and the Republic of Cyprus refer, the Practical guide on the infringement of the subsidiarity principle published by the CoR merely states that that committee should normally also be consulted in respect of substantial changes made to a legislative proposal on which that committee has already expressed its views, (250) without further detail concerning, in particular, the legal basis of such consultation. The rules of procedure of the CoR, to which reference is also made, merely lay down the conditions concerning follow-up to committee opinions and the possibility for the committee to monitor the progress of the legislative works following its opinion and, where appropriate, to adopt a revised draft opinion. (251) I would add that that regulation also provides for the possibility for that the CoR, where it considers that it has not been consulted in cases provided for by the FEU Treaty, to bring an action before the Court. (252) It must be stated that CoR clearly did not deem it appropriate to adopt a revised opinion following the introduction of the two measures referred to above, as the Parliament has observed, or to bring an action before the Court for a declaration that there was a breach of the Committee’s rights during the legislative procedure leading to the adoption of Regulation 2020/1055.

539. Second, the parties discussed in detail the question whether the lessons learnt from the judgment in Parliament v Council (253) could be applied to the conditions relating to consultation of the EESC and the CoR since Article 75 EEC, which was interpreted by the Court in that judgment, is worded identically to Article 91(1) TFEU.

540. Like the Parliament and the Council, I admit that I am not convinced that that judgment is applicable.

541. It cannot be overlooked that the conditions in which the Council was required to consult the Parliament again, at a time when the Parliament was merely consulted, were again clarified in another subsequent judgment in Parliament v Council, (254) from which it follows that ‘due consultation of the Parliament in the cases provided for by the Treaty constitutes an essential formal requirement, breach of which renders the measure concerned void. The effective participation of the Parliament in the legislative process of the Community, in accordance with the procedures laid down by the Treaty, represents an essential factor in the institutional balance intended by the Treaty. Such power reflects the fundamental democratic principle that the people should take part in the exercise of power through the intermediary of a representative assembly. The duty to consult the European Parliament in the course of the legislative procedure … implies the requirement that the Parliament should be reconsulted whenever the text finally adopted, viewed as a whole, departs substantially from the text on which the Parliament has already been consulted, except where the amendments essentially correspond to the wish of the Parliament itself’. (255)

542. It is not to disrespect the EESC and the CoR to point out that they are not institutions of the European Union, (256) within the meaning of Article 13(2) TEU, nor do they embody the participation of the people in the exercise of power, as was already the case of the European Parliament in 1995. Consequently, the obligation to consult those two committees again cannot be based on that case-law of the Court.

543. The EESC and the CoR were able – sufficiently, in my view – to give their opinions on the legislative proposals envisaged.

544. Thus, as the Council has correctly claimed, the EESC, in its opinion of 18 January 2018, expressed its support for the objectives of the proposal and, more generally, for the entire Mobility Package. (257) It also supported the objectives of the proposal to introduce establishment requirements that would prevent the use of letterbox companies for road transport operations (258) and welcomed the main thrust of all the proposed amendments of Regulation No 1072/2009 to simplify and clarify the rules on cabotage. (259) It was able to express its views on, and where appropriate express reservations about, the measures contained in the Commission’s proposal, as regards both the revision of Article 5 of Regulation No 1071/2009 and the amendment of Regulation No 1072/2009 in relation to cabotage. With regard to cabotage, the EESC regretted, in particular, that ‘the question of when a cabotage activity is no longer temporary but turns into such a continuous and permanent activity that the right to provide services in a Member State other than the one where the undertaking is established … no longer applies’, was not addressed in the proposal at all (260) and called for ‘a clear rule on what is temporary’ (261) that might consist in establishing a ‘cooling off period between batches of cabotage operations’, (262) which would be precisely the option eventually adopted by the EU legislature in the final text of Regulation 2020/1055.

545. As regards the CoR, it chose to focus, in its opinion of 1 February 2018, on the questions linked with work in the road transport sector, emphasising the main characteristics of the market for the carriage of goods by road within the European Union (263) and welcoming the clearer rules on cabotage. (264)

546. In any event, it is clear from the content of those two opinions that the introduction of the obligation for vehicles to return home every eight weeks and of a waiting period of four days between two periods of permitted cabotage follows on from what was stated in the Commission proposal on which the two committees were able to express their views and from which it does not depart in such a way as to make it necessary to obtain the opinions of those two committees again. In other words, the system of the proposal as a whole is not affected. (265)

547. I therefore propose that the pleas alleging infringement of Article 91(1) TFEU on the ground of failure to consult the EESC and the CoR should be rejected.

(b)    The pleas alleging breach of EU environmental and climate change policy

(1)    Arguments of the parties

548. By its first plea, the Republic of Lithuania claims that the obligation for vehicles to return home every eight weeks, introduced by point 3 of Article 1 of Regulation (UE) 2020/1055, infringes Article 3(3) TEU, Articles 11 and 191 TFEU, Article 37 of the Charter and, more generally, EU environmental and climate change policy. The Republic of Lithuania maintains that environmental protection is one of the essential objectives of the European Union and that the requirements of environmental protection must be integrated in the implementation of the common transport policy. The Treaty provisions referred to in the European Green Deal must be taken into consideration since, as environmental protection is a mandatory requirement, measures adopted by the EU legislature, even if they pursue other objectives, cannot be manifestly contrary to it.

549. The European Green Deal, presented during the procedure leading to the adoption of Regulation 2020/1055, set, for the European Union, the objective of achieving climate neutrality by 2050, an objective that was reconfirmed by the European Council. (266) In order to achieve such an objective, emissions from the transport sector by will have to be reduced by 90% by that date. (267) Furthermore, the objective of climate neutrality is also set out in Article 2(1) of Regulation (EU) 2021/1119. (268) Under paragraph 2 of that article the EU institutions and the Member States are required to take the necessary measures at EU and national level, respectively, to enable the collective achievement of that objective, taking into account the importance of promoting both fairness and solidarity among Member States and cost-effectiveness in achieving that objective. The Commission itself, moreover, regretted (269) that the political agreement reached by the Council and the Parliament includes elements, including the obligation for vehicles to return home, that are not in line with the ambitions of the European Green Deal and the objective of achieving a climate-neutral European Union by 2050. Furthermore, the Commission undertook, following the adoption of the Mobility Package, to assess the impact of that obligation on the climate and the environment and also to submit a targeted legislative proposal before the obligation for vehicles to return entered into force. (270) That impact assessment confirmed the important impacts on the environment of that obligation, so that the Parliament’s and the Council’s assertions that the contested provision will entail only a moderate increase in emissions is manifestly unfounded. (271)

550. The obligation for vehicles to return home every eight weeks runs counter to the European Green Deal and to the objective of neutrality, since such an obligation entails a considerable increase in the number of trips taken, the major part of which are taken empty. That results in a significant increase in the quantities of CO2 emitted by the transport sector, a sector in which two thirds of the total workforce requirement are concentrated in the central geographic region of the European Union, whereas most drivers come from the peripheral Member States of the European Union. (272)

551. In its reply, the Republic of Lithuania maintains that Article 3(3) TEU and Articles 11 and 191 TFEU cannot be interpreted as strictly as the Council and the Parliament propose in their defence and maintains that the legality of the obligation for vehicles to return home every eight weeks must be assessed in the light of those provisions. In addition, those institutions’ position vis-à-vis the European Green Deal is incoherent. The Republic of Lithuania observes that environmental protection is, in the Court’s case-law, an overriding requirement. Although the legislature may adopt measures that depart from the objectives of environmental protection, those measures cannot, as in this instance, be manifestly incompatible with or contrary to those objectives. The effect on the environment of the obligation at issue was clearly underestimated.

552. The Republic of Bulgaria claims, in its first plea, which is divided into two parts, that the obligation for vehicles to return home every eight weeks infringes, first, the combined provisions of Article 90 TFEU, Article 3(3) TEU, Article 11 TFEU and Article 37 of the Charter and, second, Article 3(5) TEU, Article 208(2) and Article 216 TFEU and the Paris Agreement ‘adopted by the Conference of the Parties to the United Nations Framework Convention on Climate Change (COP 21) in December 2015 and signed on 22 April 2016’. Whereas the common transport policy is of particular importance from an environmental viewpoint, the obligation for vehicles to return home every eight weeks, entailing a considerable increase in CO2 emissions and an increase in empty trips and road traffic, impedes the achievement of the objective of the European Green Deal, as the Commission has emphasised. It is also difficult for the Member States to comply with the obligations flowing from Regulation (EU) 2018/842. (273)

553. As regards the first part of the first plea, the Republic of Bulgaria maintains that the provisions relied on require the institutions to pursue the objectives laid down in the Treaties in the framework of a common transport policy. Article 11 TFEU is a horizontal clause, which underlines the transversal and fundamental nature of the objective of protecting the environment. The integration of the considerations relating to a high level of environmental protection in the EU’s policies is also confirmed by Article 37 of the Charter, thus emphasising the eminent place which environmental protection occupies in the EU legal order. Apart from the environmental damage which it causes and the increase in greenhouse gas emissions to which it gives rise, the obligation for vehicles to return home every eight weeks manifestly jeopardises the pursuit of the objectives pursued in environmental matters by the Treaties and renders otiose numerous other measures aimed at protecting the environment and reducing polluting emissions. The Council and the Parliament therefore infringed the abovementioned provisions by adopting a provision that does not in any way operate in favour of a high level of environmental protection or integrate the requirements linked with such protection.

554. As regards the second part, the Parliament and the Council themselves recognised that, in order to contribute to the objectives of the Paris Agreement, it was necessary to accelerate the transition of the entire transport sector to a zero level of emissions and to quickly and drastically reduce emissions of air pollutants from transport, as required by Articles 2 and 4 of the Paris Agreement. The obligation at issue is therefore contrary to the objectives of the Paris Agreement, and therefore constitutes an infringement of Article 208(2) TFEU. Likewise, the obligation infringes Article 216(2) TFEU, while the Commission, moreover, confirmed that the obligation was not in line with the objective of achieving a climate-neutral European Union by 2050. (274) As, under Article 3(5) TEU, the European Union is required to contribute to the strict observance and the development of international law as a whole when it adopts an act, the obligation for vehicles to return home every eight weeks is contrary to those provisions. The impact assessment carried out in 2021, that is, after Regulation 2020/1055 was adopted, confirmed the ecological tragedy caused by that regulation. It is not merely the fact that the obligation at issue has no positive repercussions for the environment that is criticised, but the fact that that obligation is clearly at odds with the ecological objectives that must be pursued.

555. The first plea in the action brought by the Republic of Cyprus alleges breach of the environmental objectives and of international commitments. The Republic of Cyprus develops a line of argument identical to that developed by the Republic of Bulgaria.

556. In Case C‑551/20, as regards the first plea, alleging a manifest error of assessment and breach of the principle of proportionality and of the precautionary principle, Hungary develops a number of arguments in connection with the theme of environmental protection and EU environmental policy which I shall examine here. It maintains, in particular, that point 3 of Article 1 of Regulation 2020/1055 is contrary to the precautionary principle, which is a general principle of EU law, arising under Article 11 TFEU, Article 168(1) TFEU, Article 169(1) and (2) TFEU and Article 191(1) and (2) TFEU. It follows from such a principle that the authorities concerned are required, in the exercise of the powers conferred on them, to take appropriate measures to prevent certain potential risks for public health, security and the environment, ensuring that the requirements linked with the protection of those interests prevail over economic interests. Owing to the very significant level of additional CO2 emissions which it entails, the obligation for vehicles to return clearly runs counter to the European Union’s commitment to reduce greenhouse gases and, in particular, to the European Green Deal, which, in accordance with the international commitments given by the European Union within the framework of the Paris Agreement, has as its objective a climate neutral European Union by 2050. It is also necessary to take account of Article 11 TFEU, which emphasises the transversal and fundamental nature of the objective of environmental protection and which should therefore serve as the standard against which the validity of EU legislation is reviewed where environmental interests have clearly not been taken into account or where they have been completely ignored. A measure which in many respects has negative effects for the environment owing to the superfluous heavy vehicle traffic which it causes – whether in terms of air pollution, the uncontrolled dumping of waste or wear and tear on the infrastructures – cannot be justified by mere control objectives. The data that emerge from the 2021 impact assessment mention the significant impacts of the obligation for vehicles to return home every eight weeks which contradict the negligible effects, by comparison with total emissions, alleged by the Council and the Parliament. The measures adopted, moreover, in relation to greenhouse gas reduction do not alter that conclusion, but the obligation for vehicles to return home every eight weeks significantly jeopardises the attainment of the objectives which those measures pursue. Those measures demonstrate, on the contrary, that the reduction of the amount of greenhouse gases in the atmosphere is a priority objective of the European Union from which it is possible to depart only in particularly justified cases, by reason of an objective which has at least equal status to the environmental interest and on condition that no other appropriate solution can be envisaged, which is not the case of the obligation for vehicles to return home every eight weeks.

557. In the context of Case C‑552/20, the Republic of Malta claims that the obligation for vehicles to return home every eight weeks infringes Article 11 TFEU and Article 37 of the Charter. According to that Member State, Article 91(2) TFEU, which is the legal basis of Regulation 2020/1055, should be interpreted in conjunction with other provisions of EU law that require the EU legislature to take into account other relevant circumstances, including those linked with environmental protection, which occupies a crucial place among the European Union’s objectives and policies and which is also an overriding requirement. Article 11 TFEU lays down a specific obligation to integrate environmental protection into the European Union’s policies and a duty to ensure that the environmental perspective is taken into account in all EU policies and activities, irrespective of the sector concerned and whether or not they have an immediate connection with the environment. Article 11 TFEU has been supplemented and reinforced by Article 37 of the Charter. That Article 11 entails both a procedural obligation to take environmental aspects into account before any decision is taken and a substantive obligation to ensure that EU action is aligned with the achievement of environmental objectives. Neither of those obligations has been fulfilled by the Council and the Parliament.

558. The procedural obligation arising from Article 11 TFEU read in conjunction with Article 37 of the Charter requires that impact assessments be drawn up in order to ensure the quality of proposals for EU legislative acts and their coherence with the environmental objectives pursued by the Treaty and to ensure that such proposals are in accordance with the principle of proportionality. However, the obligation for vehicles to return home every eight weeks was not the subject of such an impact assessment and was adopted without any prior consideration of its potential environmental impact.

559. The substantive obligation arising from Article 11 TFEU entails that all EU policy decisions that may have a negative impact on environmental objectives must be strictly necessary, proportionate and duly justified. Political decisions that hamper the achievement of EU environmental objectives when alternative measures exist or when the harm to the environment appears to be disproportionate are contrary to Article 11 TFEU. The negative environmental impacts of the obligation for vehicles to return home every eight weeks caused by the unnecessary empty runs of the vehicles jeopardises the achievement of environmental objectives otherwise pursued by the European Union, whether in the Paris Agreement itself or in Regulation 2018/842, which sets binding annual objectives for greenhouse gas emission reductions in the transport sector for each Member State. That obligation also breaches the objective of achieving a 60% reduction in transport-related greenhouse gas emissions (275) and the objectives of improving air quality fixed by the EU legislation and the objectives of preventing and reducing waste production set by Directive 2008/98/EC. (276) The failure to take all of those objectives into account in the definition of the obligation for vehicles to return home every eight weeks and the serious harm that such an obligation causes to those objectives infringe Article 11 TFEU and Article 37 of the Charter.

560. The Republic of Malta further maintains, in essence, that the Parliament and the Council have not demonstrated or explained how the environmental protection requirements had been integrated into the definition and the implementation of the obligation for vehicles to return home. The ex post assessment of the impacts of that obligation carried out by the Commission proves that the obligation for vehicles to return to the State of establishment has a very negative and a very heavy impact on climate change and air quality. Such an impact undermines the EU policies and rules on climate change and environmental protection.

561. Last, the Republic of Poland raises, in Case C‑554/20, a plea common to all the provisions that it contests alleging infringement of Article 11 TFEU and of Article 37 of the Charter, in that the requirements flowing from environmental protection were not taken into account. It submits that it follows from those two provisions that the EU institutions are required to refrain from taking measures that would be likely to compromise the achievement of the environmental protection objectives, apart from measures relating to Articles 191 and 192 TFEU. The principle that environmental requirements are to be integrated into the other EU polices, which follows from those provisions, allows the environmental protection objectives and requirements to be reconciled with the other interests and aims pursued by the European Union and also permits the pursuit of sustainable development. Such a principle constitutes in itself a ground for annulment of an EU act where the environmental interests were clearly not taken into account or were completely ignored. In the light of the broad horizontal nature of Article 11 TFEU, it is necessary, when examining whether a particular measure contributes sufficiently to environmental protection, not to consider that measure in isolation from the other EU measures adopted for that purpose and connected to the activity concerned; it is the body of measures adopted by the European Union in that field that provides the appropriate framework for such an assessment. Review by the Court in relation to the assessment of the conformity of the action of the EU legislature with that principle of integration should be analogous to the review carried out by the General Court when it was called upon to determine whether the action taken by the Commission was consistent with the principle of energy solidarity. (277) In those circumstances, the legislature was required to take the environmental requirements into account before adopting the obligation to return, which entailed in particular carrying out an assessment of the impact of the proposed rules on the environment and ensuring that those rules would not undermine the attainment of the objectives fixed in the other acts of secondary law adopted in the field of the environment. That absence of an assessment constitutes a manifest breach of their obligation to carry out such an assessment pursuant to Article 11 TFEU. (278)

562. The Parliament and the Council were required, next, to weigh up the competing interests and, where necessary, to make the appropriate changes. An interpretation of Article 11 TFEU as meaning that it applies only to areas of law and not to individual measures would have the effect of considerably reducing its importance. Environmental protection requirements should be taken into account, including in the determination of the different measures forming part of the relevant area of EU law. The argument that the other acts of secondary law on atmospheric pollution cannot constitute the framework for the assessment of Regulation 2020/1055 must be rejected, otherwise the effectiveness of Article 11 TFEU would again be undermined, as the institutions would then be able to adopt an act impeding or preventing the attainment of objectives fixed in the acts adopted in the field of the environment even though the climate crisis is the main challenge of the EU environmental policy and although the institutions should focus on pursuing coherently the attainment of the climate objectives adopted by the European Union. It is common knowledge that air pollution caused by emissions from transport is the cause of numerous health problems to which road transport is the main contributor. By forcing vehicles to return to the Member State of establishment every eight weeks, the obligation to return gives rise to additional journeys generating an increase in CO2 emissions and air pollutants, emissions which are capable of having a significant impact on the attainment of the European Union’s environmental objectives resulting, in particular, from the European Green Deal, from the objective of achieving a climate-neutral European Union by 2050 by means of a 90% reduction in overall emissions from transport by comparison with 1990 levels and from the objectives set for the Member States by the relevant EU legislation. The additional emissions of nitrogen oxide and dust caused by the application of the contested provisions are capable of undermining the effectiveness of the action defined by the Member States in air protection plans, in particular plans adopted for the zones and built-up areas near the major routes used by international transport. The obligation for vehicles to return home every eight weeks therefore breaches the principle of integration expressed in Article 11 TFEU and Article 37 of the Charter. The impact assessment of 2021 is sufficient to show that the EU legislature infringed those two provisions, since it confirms the negative effect on the environment of the obligation for vehicles to return home every eight weeks, contrary, in particular, to the European Green Deal.

563. The Council, the Parliament and the interveners supporting them contend that all of those pleas alleging breach of the EU environmental and climate change policy must be rejected.

(2)    Analysis

564. The arguments developed by the applicants may, in essence, be divided into three categories. (279) First of all, the obligation for vehicles to return home every eight weeks is alleged to contravene the provisions of primary law that establish the requirement to protect the environment; next, that obligation is also contrary to the international commitments that bind the European Union and the Member States in environmental protection matters; and, last, the obligation for vehicles to return is contrary to EU environmental policy in that it jeopardises the achievement of the objectives pursued in environmental matters by a whole series of acts of secondary law.

(i)    The alleged infringement of Article 3 TEU, Articles 11 and 191 TFEU and Article 37 of the Charter

565. As regards Article 37 of the Charter, it follows from the explanations regarding Article 37 that the principles set out in that article were based on Articles 2, 6 and 174 EC, now Article 3(3) TEU and Articles 11 and 191 TFEU. The Court has already held that as Article 52(2) of the Charter provides that rights recognised by the Charter for which provision is made in the Treaties are to be exercised under the conditions and within the limits defined by those Treaties, the right to a high level of environmental protection as provided for in the Charter must be understood and interpreted under the conditions and within the limits, as the case may be, laid down in Article 3(3) TEU and Articles 11 and 191 TFEU. (280) As the Parliament has observed, (281) and as I have already stated, (282) Article 37 of the Charter does not therefore constitute an autonomous legal norm, independent of those other provisions of primary law.

566. As regards Article 3(3) TEU, it is essentially a programmatic provision, which does not establish a hierarchy between the objectives that it assigns to the European Union. Thus, even if it were necessary to ask whether the obligation for vehicles to return home every eight weeks is compatible with the objective of a high level of protection and improvement of the quality of the environment, the answer must be that such an obligation also pursues the objective of achieving balanced economic growth within a social market economy. In my view, the programmatic dimension of Article 3(3) TEU precludes that provision from the parameters of legality for the purpose of assessing whether the obligation at issue is fully consistent with EU primary law. The implementation of the environmental objective must be the result of the policies and activities of the European Union and the Member States (283) and Article 3(3) TEU and cannot be applied independently from the specific provisions of the Treaty that implement the general objectives which it sets out. (284)

567. As regards Article 11 TFEU, the analysis of Advocate General Geelhoed, which is abundantly cited by the parties, seems to me to have retained all of its relevance and its topicality, even though it related to the former provision equivalent to Article 11. Thus, the Advocate General considered that, ‘although this provision is drafted in imperative terms …, it cannot be regarded as laying down a standard according to which in defining Community policies environmental protection must always be taken to be the prevalent interest. Such an interpretation would unacceptably restrict the discretionary powers of the Community institutions and the Community legislature. At most it is to be regarded as an obligation on the part of the Community institutions to take due account of ecological interests in policy areas outside that of environmental protection stricto sensu. It is only where ecological interests manifestly have not been taken into account or where they have been completely disregarded that Article 6 EC may serve as the standard for reviewing the validity of Community legislation. In addition, given the broad horizontal character of Article 6 EC, in considering whether a given measure contributes sufficiently to environmental protection, it should not be regarded in isolation from other Community measures adopted for this purpose in relation to the activity concerned. It is the totality of measures adopted by the Community in this field which provides the proper framework for assessment’. (285)

568. While the parties are agreed on that interpretation, which the Court did not have the opportunity to confirm, (286) they disagree as to the conclusions to be drawn in the context of the present actions.

569. I would recall the importance of the objective of the protection of the environment, as may be seen, moreover, from the case-law of the Court, which points out the essential character (287) and emphasises the fundamental and transversal nature (288) of that objective. There is no question of calling the importance of that objective into question here.

570. However, the question of the importance of the objective is distinct from that of the intensity of its justiciability. In that regard, I agree with Advocate General Geelhoed that, in spite of its ostensibly imperative wording, Article 11 TFEU is a transversal provision, the effect of which is, admittedly, to illuminate the more specific provisions relating to other policies and activities of the European Union, as the Court has already found, for example, in the context of the common agricultural policy, (289) the common fisheries policy (290) or in the nuclear energy sector, (291) but without clarifying the conditions, forms and intensity of that illumination. Thus, irrespective of the area in which it takes action, the legislature must integrate the requirements linked with environmental protection, although Article 11 TFEU does not further clarify the obligations placed on the legislature. (292) Without there being any need, at this stage, to adjudicate on the existence of an assessment, by the EU legislature, of the environmental impact of the obligation for vehicles to return home every eight weeks, and in the absence of detail about the scope of the requirement set out in Article 11 TFEU, the complaints put forward by the Republic of Poland and the Republic of Malta alleging infringement of Article 11 TFEU owing to the absence of an impact assessment must already be rejected.

571. Admittedly, as some of the applicants have submitted, Article 11 TFEU does indeed refer to the European Union’s policies and activities. However, such a reference cannot be interpreted as a systematic obligation, applicable when each individual provision is adopted, to integrate the environmental protection requirements, and indeed to make them prevail. First of all, the policies and activities referred to in Article 11 TFEU must be understood as those referred to in Part Three of the FEU Treaty by which it is specifically titled (293) and Article 11 TFEU cannot be used as a standard against which the compliance of each individual provision of an EU legislative act will have to be measured. Next, that provision has a transversal character, as environmental protection requirements are multidimensional. Last, it is the way in which the European Union integrates that provision into its policies that makes it possible to determine whether it acts in accordance with the requirements of Article 11 TFEU and whether the EU legislature exercised its powers in compliance with the objective set for it by that provision.

572. In that regard, the defendant institutions have contended that if every provision capable of having a negative impact on the environment had to be declared to be contrary to Article 11 TFEU without the wider normative context of the provision concerned being taken into account, every measure authorising the carriage of goods by road would, because of what is currently its eminently polluting nature, be at risk of being declared invalid on that basis.

573. The argument is undoubtedly intended to be somewhat provocative. Nonetheless, in my view, it reveals one fact: as Advocate General Geelhoed observed, it was not the intention of the drafters of the Treaties thus to steer the EU legislature to the risk of making the environmental protection objective a supra-objective when, as I have already stated, such a hierarchy between the objectives assigned to the European Union is not otherwise apparent from the Treaties.

574. As I have already observed, (294) it is, moreover, within the very nature of the legislative action to be required to arbitrate, in a given field, between diverging interests and to strike a balance between what may be contradictory objectives. It is an exercise the complexity of which is recognised in the case-law, when it leaves a wide margin to the discretion of the legislature, and that explains that review by the Courts of the European Union will be limited to a review of manifest error of assessment and misuse of powers and to ascertaining that the legislature has not exceeded the limits of its discretion. (295)

575. Thus, even if the obligation for vehicles to return to the State of establishment every eight weeks has negative consequences for the environment, (296) that sole fact cannot be sufficient for a finding of infringement of Article 11 TFEU since, in addition, the EU legislature has undertaken various actions to try to contain the negative effects of the carriage of goods by road. The obligation for vehicles to return home every eight weeks must thus be placed in the wider legislative context to which it belongs. At the time of the adoption of Regulation 2020/1055, Regulation 2018/842 required the Member States to reduce their greenhouse gas emissions by 2030 by a percentage fixed in that regulation. That regulation recalled that such an objective had been approved by the European Council on an economy-wide scale. (297) Directive 2004/107/EC (298) has the overall objective of maintaining and improving ambient air quality by setting, in particular, target values in respect of which the Member States must take the measures necessary to achieve them provided that they do not entail disproportionate costs. (299) Directive 2008/50/EC (300) defined and set objectives for ambient air quality, which must be assessed on the basis of common methods and criteria and ensuring that the relevant information is made available to the public. (301) Directive 2008/98 (302) has as its subject matter the prevention or reduction of the adverse impacts of the generation and management of waste, the reduction of overall impacts of resource use and the improvement of the efficiency of such use. (303) As regards, more specifically, the transport sector, Directive 1999/62/EC of the European Parliament and of the Council of 17 June 1999 on the charging of heavy goods vehicles for the use of certain infrastructures(304) was amended in 2011 by Directive 2011/76/EU (305) to integrate considerations linked with the promotion of sustainable transport, which was presented as the key element of the common transport policy, and the EU legislature considered that the contribution of the transport sector to climate change should be reduced, (306) although such an objective cannot be achieved by creating disproportionate obstacles, since the functioning of the internal market must also be maintained. (307) Directive 2011/76 inserts in Directive 1999/62, and as regards the transport sector, the ‘polluter pays’ principle, (308) the EU legislature having then been of the view that tolls constitute a fair and efficient economic instrument for a sustainable transport policy, since they allow the cost of pollution and congestion caused by the use of vehicles to be taken into account. (309) Furthermore, CO2 emissions were regulated, in the case of new light commercial vehicles, by Regulation (EU) 2019/631 (310) and, in the case of new heavy-duty vehicles, by Regulation (EU) 2019/1242. (311) The EU legislature had also adopted a directive aimed at requiring Member States to take the energy and environmental impacts of motor vehicles into account in public procurement procedures. (312) The labelling of tyres, as regulated by Regulation 2020/740, (313) is intended to reduce the fuel consumption of vehicles and thus greenhouse gas emissions and to contribute to the decarbonisation of the transport sector. (314)

576. Thus, at the time of the adoption of Regulation 2020/1055 and therefore of the adoption of the obligation for vehicles to return home every eight weeks, the EU legislature was to my mind entitled to consider, in the full exercise of its wide discretion, that any negative consequences for the environment of that obligation might be contained by applying the existing legislation relating more specifically to the environmental aspects of the activity in question and intended to accompany hauliers in the technological transition towards a less polluting mobility.

577. It is apparent from recital 8 of Regulation 2020/1055, moreover, that the EU legislature raised the question of reducing the risk that the vehicle will return only to fulfil that new establishment requirement.

578. Must the EU legislature be further criticised for not having made its environmental concerns more explicit in Regulation 2020/1055? I do not think so. Article 11 TFEU does not lay down the form that the integration of environmental protection requirements must take and, in any event, that integration must be effected at the level of the implementation of the policies of the European Union, which I have already proposed should be given a wide interpretation. In addition, I recall that the legal basis of Regulation 2020/1055 is Article 91(1) TFEU and that the objective pursued by the inclusion of the obligation to return in that regulation is not clearly immediately linked with the concerns expressed in Article 11 TFEU, since such an obligation constitutes a clarification of the provisions of Regulation No 1071/2009 relating to the existence of an effective and stable establishment, (315) the effect sought being the strengthening of the link between the haulier and its Member State of establishment in order to ensure a ‘real and continuous presence’ (316) in a context in which in the legislature’s view the weakening of that link threatens fair competition and a level playing field in the internal market. (317) It must be recognised that the Treaty provisions conferring powers on the European Union in the field of the environment leave intact the powers held by the European Union under other provisions. (318)

579. Accordingly, in view of the need to strike a balance between certain objectives and principles referred to in Articles 3 TEU and 11 TFEU, and of the complexity of the implementation of those criteria, (319) it does not appear that the Council and the Parliament made a manifest error of assessment, in the light of the two abovementioned provisions, by adopting the obligation for vehicles to return home every eight weeks.

580. That conclusion is not called into question by the reliance by the applicants on the 2021 Ricardo study, the purpose of which was to assess the impact of the obligation for vehicles to return home every eight weeks, because, even though that study reveals a significant increase in, inter alia, CO2 emissions, the fact remains that the validity of an EU act must be assessed on the basis of the facts and the law as they stood at the time when the act was adopted (320) and its validity cannot depend on retrospective assessments of its efficacy. (321) In any event, as I have already stated, such an increase should, in all cases, be compared with all the rules affecting the area concerned before it can be concluded that there was a manifest failure by the EU legislature to take the environmental protection requirements into account.

581. It is also because Regulation 2020/1055 has Article 91(1) as its legal basis that the relevance for the present actions of the arguments alleging infringement of Articles 191 and 192 TFEU must be rejected. That regulation is not a measure adopted on the basis of the EU environmental policy and it has not been maintained that the defendant institutions erred as to its legal basis. As Regulation 2020/1055 is not an action undertaken by the European Union under Article 191 TFEU, (322) the assertion that there has been an infringement of Article 192(2)(c) TFEU is irrelevant. (323) A measure cannot come within the field of the environment solely because it must take account of environmental requirements. (324)

582. Even if the Court wished to rule on the question of the breach of the precautionary principle alleged by Hungary, (325) it follows from the Court’s case-law that, while Article 191(2) TFEU provides that the policy on the environment is to be based, inter alia, on that principle, that principle is, admittedly, also applicable in the context of other EU policies, in particular the policy on the protection of public health and where the EU institutions adopt, under the common agricultural policy or the policy on the internal market, measures for the protection of human health. (326) That principle entails that, where there is uncertainty as to the existence or extent of risks to human health, protective measures may be taken without there being any need to wait until the reality and seriousness of those risks become fully apparent. Where it proves to be impossible to determine with certainty the existence or extent of the alleged risk because the results of the studies carried out are inconclusive, but the likelihood of real harm to public health in the event that the risk should materialise persists, the precautionary principle justifies the adoption of restrictive measures. (327) Even in relation to the conditions in which the precautionary principle must be implemented, the Court has recognised that, in view of the need to strike a balance between several objectives and principles, and of the complexity of the application of the relevant criteria, review by the Court must necessarily be limited to whether the EU legislature made a manifest error of assessment. (328) That is a fortiori the case when the legislature is required to assess the future effects of rules to be adopted and those effects cannot be accurately foreseen. (329)

583. I admit to being perplexed by the allegation of a breach of the precautionary principle because of the introduction of an obligation for vehicles to return home every eight weeks, because that would amount to deeming that only the part of the alleged additional emissions resulting from the implementation of that obligation would constitute a real risk for human health requiring the adoption of restrictive measures. In any event, while the legislature is required to take the precautionary principle into account when it adopts, in the context of the internal market, measures to protect human health, (330) the relationship between the additional emissions that may result from the obligation for vehicles to return home and the proven risks for health of pollution in general seems here to be too tenuous to call for criticism. In particular, point 3(a) of Article 1 of Regulation 2020/1055 is not a measure intended to protect human health, within the meaning of the Court’s case-law. For all of those reasons, the argument alleging breach of the precautionary principle should not succeed.

(ii) The alleged breach of the international commitments of the European Union and the Member States in the field of environmental protection

584. The Republic of Bulgaria and the Republic of Cyprus have both developed a line of argument according to which the obligation for vehicles to return home every eight weeks is contrary to the Paris Agreement and, in any event, the Council and the Parliament did not take account of the objectives of that agreement when adopting that obligation, which constitutes a breach of EU environmental policy.

585. As regards the complaint alleging that the EU legislature did not take account of the objectives set by the Paris Agreement, (331) I agree with the Parliament that, as stated in recital 7 of Council Decision (EU) 2016/1841 of 5 October 2016 on the conclusion, on behalf of the European Union, of the Paris Agreement adopted under the United Nations Framework Convention on Climate Change, (332) a binding target of at least a 40% domestic reduction in economy-wide greenhouse gas emissions by 2030 compared to 1990 was set in the conclusions of the European Council of 23 and 24 October 2014. The objective set in Article 2 of the Paris Agreement of holding the increase in the global average temperature to well below 2 °C above pre-industrial levels and pursuing efforts already made to limit the temperature increase to 1.5 °C above pre-industrial levels (333) must therefore be assessed in the light of all action taken by the European Union to that end. Accordingly, it cannot be maintained that, by reason of the possible additional emissions which it causes, an obligation for vehicles to return home every eight weeks is in itself contrary to that objective and therefore to the EU environmental policy.

586. As regards the complaint alleging breach by the EU legislature of the Paris Agreement, it follows from Article 26(2) TFEU that, where international agreements are concluded by the European Union, they are binding upon its institutions and, consequently, they prevail over acts of the European Union. (334) The validity of an act of the European Union may thus be affected by the incompatibility of that act with such rules of international law. The European Union must first of all be bound by those rules, which, so far as the Paris Agreement is concerned, is not in doubt. (335) Next, the provisions of an international agreement to which the European Union is a party can be relied on in support of an action for annulment of an act of secondary EU legislation only where, first, the nature and the broad logic of that agreement do not preclude it and, second, those provisions appear, as regards their content, to be unconditional and sufficiently precise, (336) which will be the case where the provision relied on contains a clear and precise obligation which is not subject, in its implementation or effects, to the adoption of any subsequent measure. (337)

587. While, admittedly, the Paris Agreement replaces the approach taken under the 1997 Kyoto Protocol, (338) it does not fundamentally alter the logic of that protocol. The Paris Agreement ‘aims to strengthen the global response to the threat of climate change, in the context of sustainable development and efforts to eradicate poverty’. (339) It sets a quantified target (340) at global level but it also makes provision for increasing the ability to adapt to the adverse impacts of climate change and foster climate resilience, which seems to me to be a concept the justiciability of which is not entirely evident. It also provides for making finance flows consistent with a pathway towards low greenhouse gas emissions and, again, climate-resilient development. (341) Its implementation will reflect equity and the principle of common but differentiated responsibilities and respective capabilities, in the light of different national circumstances. (342) The agreement requires the States Parties to undertake and communicate ambitious efforts (343) and those States are to aim to reach global peaking of emissions as soon as possible and to undertake rapid reductions so as to achieve a balance between anthropogenic emissions by sources and removals by sinks of greenhouse gases in the second half of this century, always taking the circumstances of developing countries into consideration. (344) In order to do so, each State Party is to prepare, communicate and maintain successive nationally determined contributions. (345)

588. Without its being necessary, for the purpose of dealing with the present complaint, to proceed further with the analysis of the agreement, and without there being any further need to take a view here on the unconditional and sufficiently precise nature of the two provisions of the Paris Agreement on which the Republic of Bulgaria and the Republic of Cyprus specifically rely, to my mind it is already apparent from the aspects which I have just described that, in the light of the Court’s findings in relation to the Kyoto Protocol, the nature and broad logic of the Paris Agreement also preclude its being integrated in the corpus of EU law. (346) The Paris Agreement cannot therefore be relied on for the purpose of challenging the legality of the obligation for vehicles to return home every eight weeks.

589. It follows that the reliance on Article 3(5) TEU, Article 208(2) TFEU and Article 216(2) TFEU is irrelevant.

590. The complaints alleging breach of the Paris Agreement and failure to take the objectives set for the European Union by that agreement into account must be rejected.

(iii) The alleged breach of EU environmental policy owing to the incompatibility of the obligation for vehicles to return home every eight weeks with secondary environmental law, the conclusions of the European Council and the European Green Deal

591. The applicants have also claimed that the obligation for vehicles to return home every eight weeks is incompatible with a whole range of climate and environmental objectives set by secondary law, such as, in particular, Regulations 2018/842 and 2021/1119 and Directives 2004/107, 2008/50 and 2008/98, and that such incompatibility constitutes a breach of EU environmental policy since the alleged additional emissions caused by that obligation jeopardise the attainment of the environmental objectives assigned by the European Union, individually or collectively, to the Member States.

592. As the Council and the Parliament have claimed, inter alia, in their written pleadings, I shall merely state, as I have already done, that the substantive legality of an act of secondary law cannot be examined by reference to another EU act of the same status, (347) unless it was adopted pursuant to the latter act or unless it is expressly provided, in one of those two acts, that one is to take precedence over the other. (348) That is not the case of Regulation 2020/1055.  In addition, any tensions on the part of the Member States between the objectives assigned to them by the various EU regulations which apply to them could lead only to a declaration that a Member State has failed to fulfil its obligations under one or other of those regulations, without one of those regulations being able to be declared contrary to another regulation of the same normative status. (349)

593. As regards the complaint alleging infringement of the conclusions of the European Council, the applicants maintain that the obligation for vehicles to return home every eight weeks contradicts the objectives set by the European Council in its Conclusions of 12 December 2019. However, since Article 15(1) TEU states that the European Council is not to exercise legislative functions, and since such conclusions have an exclusively political scope, no inference that would be useful for the outcome of the present actions for annulment could be drawn in the event that the alleged contradiction should be confirmed. (350) The same applies with regard to the statement by Commissioner Vălean on which the applicants rely, which, moreover, merely expresses doubts as to whether certain elements of the Mobility Package are in line with the objective set by the European Council and the ambitions of the European Green Deal. (351)

594. The same must also be said with regard to the argument that the obligation for vehicles to return home every eight weeks contravenes the EU environmental policy on the ground that it hinders the attainment of the objectives set out in the European Green Deal, since the latter is the result of a communication from the Commission which does not bind the EU legislature and which is not therefore among the parameters which the Parliament and the Council were required to observe when they adopted the obligation for vehicles to return home every eight weeks.

(iv) Conclusion of the analysis

595. Having regard to all of the foregoing considerations, all of the pleas alleging breach of EU environmental and climate change policy must be rejected as unfounded.

(c)    The pleas alleging breach of the principles of equal treatment and non-discrimination

(1)    Arguments of the parties

596. The Republic of Lithuania maintains that obligation for vehicles to return home every eight weeks is contrary to Article 26 TFEU and to the general principle of non-discrimination. In its submission, the obligation for vehicles to return home every eight weeks is a protectionist measure that gives rise to market fragmentation, restricts competition and establishes a regime that discriminates against hauliers from the Member States in the geographic confines of the European Union. The international road transport sector is discriminated against by comparison with other transport sectors.

597. The particular role which the transport sector plays in the functioning of the internal market has been emphasised by the Commission and the principle of non-discrimination was implemented in the field of the right of establishment by Article 49 TFEU, which is also applicable to legal persons. Instead of balanced rules and a compromise which would lead to the proper functioning of the internal market, the obligation for vehicles to return home every eight weeks is a restrictive, disproportionate and protectionist measure which gives rise to indirect discrimination against hauliers from the peripheral Member States.

598. First, the Council and the Parliament did not take account of the geographic specificities of the European Union and its transport market, as the obligation for vehicles to return home restricted the competitiveness of hauliers from the periphery of the European Union and their right to exercise the freedom to provide services, conferring an unjustified and unlawful advantage on haulers established in the central part of the European Union. Most transport operations are carried out in the Member States of the west and the centre of the European Union and the greatest demand for road freight comes from seven Member States. (352) The obligation to return therefore has less effect on hauliers from those Member States, and hauliers from the peripheral Member States are in a less favourable situation, having to cover significantly longer distances and negotiate greater natural obstacles, notably in the case of the island Member States. The obligation to return places a disproportionate burden on those hauliers that, owing to the distance, rest times and hazards, may extend to vehicles being taken out of service for a significant period of 8 to 14 days, which is incompatible with the fundamental objective of creating an efficient and competitive internal market. Although it applies to all hauliers, the obligation for vehicles to return home every eight weeks affects operators differently, depending on their place of establishment. Point 3 of Article 1 of Regulation 2020/1055 thus places the same requirements on operators in different situations and for that reason is discriminatory. Road transport also suffers discrimination, since other types of transport are under no comparable obligation for the means of transport to return home.

599. Second, the Republic of Lithuania puts forward the argument that combating letterbox companies does not justify the measure chosen when the real consequence of the obligation to return is discrimination against hauliers established in the peripheral Member States. The hostility of the Member States of the west and the centre of the European Union towards hauliers from the peripheral Member States is well known. Furthermore, the transport sector is characterised by a weak profit margin and the obligation to return has the effect of restricting the geographic territory within which the transport undertakings of the peripheral Member States can operate and therefore of artificially reorganising the market for the carriage of goods by road and fragmenting it by deterring operators from the periphery from operating in the other Member States.

600. Third, the Republic of Lithuania maintains that the obligation to return will have particularly severe negative consequences for the SMEs which make up the main part of the sector, since undertakings with only a few employees will be unable to function properly and offer their services on a continuous basis, whereas that obligation will globally have no impact on the large transport undertakings which represent scarcely 1% of all undertakings established and operating in the European Union. The competitiveness of the undertakings established in the Member States of the European Union by comparison with third country hauliers is also reduced.

601. Fourth, the Republic of Lithuania claims that the obligation for vehicles to return home every eight weeks has the effect of de facto closing the market, which is contrary to the Treaty on the Accession of the Republic of Lithuania to the European Union, which provided that any restriction on the provisions of services by Lithuanian hauliers in the field of freight was to be abolished within five years from the accession of the Republic of Lithuania to the European Union. That closure of the market is also incompatible with the roadmap to a single European transport area. (353)

602. In the reply, the Republic of Lithuania adds that the de facto discrimination introduced by point 3 of Article 1 of Regulation 2020/1055 is not only contrary to Article 18 TFEU, but is also contrary to the principle of the equality of Member States enshrined in Article 4(2) TEU.

603. The Republic of Bulgaria relies on an infringement of Article 18 TFEU, Articles 20 and 21 of the Charter, Article 4(2) TEU and possibly, should the Court deem it relevant, Article 95(1) TFEU or the freedom to provide services. The burden imposed by the obligation for vehicles to return home every eight weeks depends on the geographic situation of the Member State of establishment, as the return involves a much greater distance and a much longer period and higher costs for hauliers established in a peripheral or island Member State, since most international transport is carried out in the central Member States and not in the peripheral Member States. The geographic position is irrelevant as regards the objective of ensuring that there is a genuine link between hauliers and the Member State of establishment or the correct maintenance of vehicles, but if the geographic position were to be considered relevant, the situation of the central Member States and that of the peripheral and island Member States would become fundamentally different and could not be treated in the same way.

604. At the stage of the reply, the Republic of Bulgaria makes clear that even concealed forms of discrimination are problematic. It is common ground that demand for transport services is essentially in the centre of the European Union. The artificial requirement for vehicles to return home is a concealed form of discrimination on grounds of nationality and has no connection with the question whether hauliers are established in an effective and stable manner in their Member State of establishment, but creates a distinction, depending on the country of establishment, between hauliers wishing to provide transport services in the single market. The difference in the economic burden originates directly in the difference of the Member State of establishment and is a textbook case of unequal treatment.

605. Romania contends that the obligation to return breaches the principle of non-discrimination on grounds of nationality laid down in Article 18 TFEU. It maintains that, although prima facie non-discriminatory, the obligation for vehicles to return home has de facto a different impact depending on the Member States concerned and has a significant, unequal and disproportionate effect on the economic activities of hauliers established in the Member States on the periphery of the European Union, and contributes to the further widening of the economic gaps between Member States. Romania refers to the data relating to the sector that illustrate the greater proportion of vehicles registered in the EU-13 for international transport operations. The obligation for vehicles to return home every eight weeks makes the international carriage of goods to Western Europe by companies established at the periphery of the European Union, like Romania, more difficult and more onerous. Hauliers from the EU-15 benefit from more favourable conditions to carry out international transport operations even though they essentially carry out domestic transport operations. The activities of those hauliers is therefore not affected in the same way as those of the EU-15 hauliers. The obligation to return is part of rules that are contrary to the objectives of the convergence of the European Union, protectionist, restrictive and creating barriers to entry to the external markets for non-resident hauliers, essentially from the States at the periphery of the European Union. The effects of the obligation to return home should be envisaged together with those of the other provisions of the Mobility Package, which further highlights the discriminatory nature of those rules. Romania also wonders here whether the Mobility Package meets the requirements of Article 91(2) and Article 94 TFEU.

606. The Republic of Cyprus develops a line of argument identical to the Republic of Bulgaria’s. It adds that, for a Cypriot transport undertaking, the average length of a return trip from Cyprus to central Europe is a minimum of eight days without any delays connected with, inter alia, the vagaries of the climate, and that the proposal that Cypriot hauliers should not participate in international transport or should become established somewhere other than Cyprus demonstrates in itself the discriminatory nature of the obligation to return.

607. Hungary maintains that the obligation to return is contrary to Articles 18 and 49 TFEU. It refers to the geographic differences already mentioned that characterise the market for the carriage of goods by road and the distinction between EU-13 and EU-15 Member States and maintains that the obligation to return places undertakings established in the peripheral Member States at a disadvantage owing to the longer journey times and the higher costs to which that obligation gives rise. The EU-13 Member States, in which the international carriage of goods by road represents, on the employment market, a higher percentage than the EU average, are automatically affected less favourably than the more central Member States. Hungary maintains that around two thirds of road journeys of more than 1 000 km are made by peripheral States, generally to the most industrialised central and western regions of the European Union. The higher costs linked to the obligation to return affects much more those peripheral States than it does the other Member States of the European Union. That obligation therefore constitutes indirect discrimination vis-à-vis those Member States, which it places in a much more unfavourable situation. In the reply, Hungary rejects the relevance of judgment in Fédesa, (354) on which the Council and the Parliament rely in their defences, which concerned a difference between the rules of the Member States and not an objective criterion such as the remoteness of some Member States by comparison with the central regions. In creating unequal conditions of access to the market for the carriage of goods by road, the obligation for vehicles to return home every eight weeks would defeat the purpose supposedly pursued by Regulation 2020/1055 of ensuring a level playing field. Hungary also refers to the legislature’s obligations to take into consideration the risks of a serious effect on the standard of living and the level of employment in certain regions, according to Article 91(1) TFEU, and the economic circumstances of hauliers, when any measures are taken in connection with transport rates and conditions, according to Article 94 TFEU.

608. The Council, the Parliament and the interveners supporting them submit that all of those pleas must be rejected.

(2)    Analysis

609. The analysis that follows will be guided by the principles referred to in point 76 et seq. of this Opinion and by the limits of judicial review as recognised by the Court and referred to in point 80 of this Opinion.

610. As regards the complaints alleging infringement of Articles 26 and 49 TFEU and, more broadly, a barrier to the proper functioning of the internal market, developed by the Republic of Lithuania, the Republic of Bulgaria, the Republic of Cyprus and Hungary, I refer to the part of my analysis devoted to the pleas alleging breach of economic freedoms. (355)

611. As regards the complaints raised by Hungary in the context of the plea alleging breach of the principle of non-discrimination, and alleging infringement of Article 91(2) and Article 94 TFEU, they do not constitute a separate plea from the plea alleging breach of the principle of non-discrimination. However, at the close of its analysis in respect of that principle, Hungary claims, in paragraph 106 of its application, that the obligation for vehicles to return home every eight weeks should be annulled on the ground that it infringes ‘the abovementioned provisions of the FEU Treaty’, which include Article 91(1) and Article 94 TFEU. Although raised in a summary manner, (356) those arguments will be analysed, where necessary, in the part devoted to those provisions. The same applies to Romania’s reliance on those two articles in the context of its plea alleging breach of the principle of non-discrimination. (357)

612. As regards the complaint alleging infringement of Article 95(1) TFEU on which the Republic of Bulgaria and the Republic of Cyprus rely, I agree with the Council that it cannot succeed, since that article prohibits discrimination which takes the form of hauliers charging different rates and imposing different conditions for the carriage of the same goods over the same transport links depending on the country of origin or of destination of the goods in question, since neither the Republic of Bulgaria nor the Republic of Cyprus has established that that is the effect of the implementation of the obligation for vehicles to return home every eight weeks and since, nonetheless, Article 95(1) TFEU remains without prejudice to the possibility recognised to the Parliament and the Council by the second paragraph of that article to adopt measures, derogating from that prohibition of specific discrimination, pursuant to Article 91(1) TFEU, which is precisely – it will be recalled – the legal basis of Regulation 2020/1055.

613. For the remainder, the applicants maintain that the obligation for vehicles to return home every eight weeks constitutes discrimination between Member States (Romania and Hungary), discrimination between island Member States and continental Member States (Republic of Cyprus), discrimination between large and small Member States (Republic of Lithuania), indirect discrimination against hauliers from the peripheral Member States (Republic of Lithuania and Romania), discrimination between modes of transport (Lithuania), discrimination between SMEs and the other forms under which transport operators are constituted (Republic of Lithuania) and discrimination on grounds of nationality (Republic of Bulgaria, Romania, Republic of Cyprus and Hungary).

614. The obligation for vehicles to return home every eight weeks, as formulated in point 3 of Article 1 of Regulation (UE) 2020/1055, lays down, as a necessary but insufficient condition of pursuing the occupation of road transport operator, that the undertaking concerned must have ‘an effective and stable establishment in a Member State’, as laid down in Article 3(1)(a) of Regulation No 1071/2009. Thus, all undertakings – small, medium or large – irrespective of their Member State of establishment, which pursue that occupation must have an effective and stable establishment in a Member State, which means, inter alia, by the choice of the EU legislature, that their vehicles must return to that Member State every eight weeks. The obligation for vehicles to return home every eight weeks therefore aims to ensure the stable and effective nature in the Member State of establishment of transport undertakings coming within the scope of Regulation No 1071/2009, which appear, in that regard, to be treated in the same way. I would add that that regulation employs a particularly wide definition of the concept of ‘undertaking’ (358) capable of covering all the forms under which a transport operator may be set up. Point 3 of Article 1 of Regulation 2020/1055 therefore imposes on those transport operators, generally and without differentiation, an obligation to return.

615. It still remains to be ascertained that the obligation for vehicles to return home every eight weeks does not have the effect of treating different situations in the same way: it is necessary to examine whether the different situations referred to in the conditions set out in point 79 of this Opinion are or are not comparable. Special attention must thus be paid to the purpose and aim pursued by the obligation at issue and also to the principles and objectives of the transport policy.

616. As the Parliament and the Council have submitted in their written pleadings, the objective pursued by the obligation for vehicles to return home every eight weeks follows from recitals 6 and 8 of Regulation 2020/1055. On the basis of ‘experience’, to which attention had also been drawn in the impact assessment, it was necessary, according to the EU legislature, to clarify and strengthen the provisions regarding the existence of an effective and stable establishment so that the actual presence of transport operators in their Member State of establishment was guaranteed, which was to contribute to combating the phenomenon of so-called ‘letterbox companies’, guarantee fair competition and ensure a level playing field in the internal market. Recital 8 of Regulation 2020/1055 adds that the existence of a genuine link with the Member State of establishment contributes to reducing the risk of systematic cabotage and nomadic drivers organised from an undertaking to which the vehicles do not return. The obligation to return must also, in the legislature’s assessment, contribute to the correct maintenance of vehicles and facilitate controls. (359)

617. While it is likely that compliance with the obligation for vehicles to return home every eight weeks will have a cost, what will determine the intensity of that cost is not so much the geographic distance covered as prior respect for the effective nature of the establishment. An undertaking that never causes its vehicles to return will bear higher costs arising from the obligation to return than an undertaking that already ensures that its vehicles return regularly.

618. Even though return is more expensive when the distance to be covered when the vehicle returns home is greater, it must be stated that the EU rules do not require transport operators to operate on a market away from their place of establishment or prevent them from transferring their establishment closer to the market in which they operate. The Republic of Lithuania’s argument that the obligation for vehicles to return home every eight weeks may have the de facto consequence of closing the market must therefore be rejected, (360) as must the argument which it puts forward alleging inconsistency between the obligation for vehicles to return home every eight weeks and the Commission’s White Paper, having regard to the fact that such a document, already mentioned, is not normative in nature. (361) As stated above, the choice of the place of establishment is solely a matter for the commercial decision of the transport operators. The obligation to return will therefore have a greater effect on certain operators which, for commercial reasons, have decided to become established on the periphery of the European Union while operating, permanently or for the most part, contrary to the recommendations set out in the relevant EU rules, within the territory of faraway Member States in which they provide most of their transport services. That is precisely the desired effect.

619. The argument alleging discrimination based on the mode of transport must be rejected, as the Court has already held that not all transport sectors are in comparable situations (362) and that, consequently, the situations of undertakings operating in the sectors of activities of different modes of transport are not comparable. (363)

620. The applicants maintain, next, that hauliers from the periphery of Europe cannot be treated in the same way as the operators of ‘western’ Europe. If such an argument were to be accepted, it would result in different treatment, in the light of the requirement of effective and stable establishment, being afforded to hauliers that have chosen to become established far from the market in which they wish to provide services and in which they wish to base their vehicles permanently.

621. First, that argument amounts to calling into question the objective pursued by the legislature, which it is not for the Court to call into question. Second, the unequal effects produced or the asymmetry of the burdens (364) borne by hauliers as a result of the indiscriminate application of the obligation for vehicles to return home every eight weeks are not, in themselves, contrary to the principle of equal treatment (365) but are the result of different operating conditions. Third, the benefits derived from a situation in which EU rules are circumvented are not protected by that principle. Fourth, it is not the task of the EU legislature to guarantee the economic neutrality of the choice of the Member State of establishment. Fifth, the costs which the applicants allege to be caused by the obligation to return home clearly do not take into account the revenues foregone for the Member States on whose territory the operators are not established while guaranteeing a virtually permanent presence there, which the EU legislature is nonetheless clearly required to take into account, (366) so that the legislature did not intend to favour some Member States by comparison with others but undertook ‘a re-balancing of the factors affecting whether the undertakings established in the various Member States may compete with one another’. (367) Sixth, in requiring a genuine link with the Member State of establishment, which, according to the legislature, is manifested by, inter alia, the regular return of the vehicles to that State, the obligation for vehicles to return is intended, as the Parliament rightly asserts, to ensure the temporary nature of the freedom of non-resident hauliers to provide services within the territory of other Member States and to achieve a balance with the exercise of the right of establishment, which is a permanent right.

622. As regards the complaints alleging discrimination for geographic reasons, they raise a basic problem of definition, since the periphery of the European Union is not limited to its Eastern part, in particular. How is the centre to be characterised? What is a small State, if the criterion is no longer that of geographic situation but size? Is the situation of a small island State more distinct from that of a small continental State or from that of a large island State? The EU legislature cannot be required to treat Member States differently in accordance with those supposed particularities. The opposition which most of the applicants allege in support of proof of those particularities, involving a confrontation between two ‘geographic’ Europes, results in my view from an attempt to make geographic data artificially coincide with economic reality. What characterises the Member States at the ‘periphery’ of the European Union, as intended by the applicants, is not that they are peripheral, but rather that they have much lower operating costs by comparison with the ‘rest’ of the European Union. That is how the classification between EU-15 and EU-13 set out in the impact assessment must be understood. (368)

623. Last, as regards the 2021 Ricardo study, which confirms that hauliers established in the EU-13 Member States bear more of the negative consequences linked with the obligation to return, it must be stated, and on this point I am in agreement with the Parliament, that that analysis, first, recognises that the nature and the size of the costs of implementation are largely dependent on the market response (369) and, second, that the analysis of the impact of that measure suggests that hauliers ‘from the East’ will retain their competitive costs advantage over hauliers from the West. (370) That categorisation is based not on a geographic criterion but on the level of operating costs borne by the hauliers. (371) In those circumstances, it must be concluded that there is no discrimination on grounds of nationality.

624. As regards the allegation of a breach of the equality between Member States and an infringement of Article 4(2) TEU, (372) I have already stated that the obligation for vehicles to return home every eight weeks applies equally in all Member States of the European Union and that any diverging effects resulting from the implementation of Regulation 2020/1055 cannot constitute discrimination. (373)

625. For all of the foregoing reasons, the pleas alleging breach, by the obligation for vehicles to return home every eight weeks, of the principles of equal treatment and non-discrimination must be rejected as unfounded.

(d)    The pleas alleging breach of the principle of proportionality

626. All of the parties have developed, in their respective actions, a plea alleging that the obligation for vehicles to return home every eight weeks constitutes a breach of the principle of proportionality. I shall look first at the complaint that the Parliament and the Council did not carry out an impact assessment of that obligation before, if necessary, going on to examine the proportionality of that measure.

(1)    The examination by the EU legislature of the proportionality of the obligation for vehicles to return home every eight weeks

(i)    Arguments of the parties

627. The Republic of Lithuania relies, albeit in the context of a separate plea from that alleging breach of the principle of proportionality, on arguments connected with a breach of that principle owing to the absence of an impact assessment, (374) which should be examined here. The Republic of Lithuania maintains that the Commission’s initial proposal for a regulation did not include a rule relating to the return of heavy vehicles to an operational centre of the undertaking and that that requirement was therefore not examined by the Commission in its impact assessment. (375) It maintains that the Council and the Parliament introduced the obligation for vehicles to return home every eight weeks during the legislative procedure and that they ought, in accordance with the advice given in the interinstitutional agreement, to have carried out a new impact assessment. Such an obligation also follows from Article 11 TEU, from Articles 2 and 5 of Protocol (No 2) on the application of the principles of subsidiarity and proportionality and from the Court’s case-law. The Republic of Lithuania maintains that the introduction of that obligation constitutes a substantial amendment by comparison with the Commission’s initial proposal for a regulation and that it was therefore necessary to carry out an impact assessment. The substantial nature of the amendment is the consequence of the economic and environmental importance of the obligation to return. The Council and the Parliament have put forward no objective reason why it was neither useful nor necessary to carry out an impact assessment of that significant amendment. The need for such an assessment is evidenced both by the position consistently defended by the Commission with regard to the contested decision and by the 2021 Ricardo study prepared at the Commission’s initiative. The Parliament and the Council did not state the reasons for their choice to make an exception to the rule that they ought to carry out an impact assessment of the obligation for vehicles to return home and have adduced no evidence of a special situation that permitted that step to be omitted, nor have they provided sufficient information about the proportionality of the new proposal. The Member States and the other interested parties, on the other hand, publicly provided information to the Parliament and the Council during the legislative procedure that demonstrated the need to carry out an impact assessment. Thus, when the precise frequency of the obligatory return of heavy vehicles was still under discussion, the IRU sent an open letter (376) to the national and EU decision makers asking them to examine the consequences of the obligation for heavy vehicles to return and provided the results of its calculations relating to the harmful effects on the environment. The Parliament and the Council did not take account of that information. The elements set out in their defences, such as statements concerning what was alleged to be the reduced impact on the environment, the repeated reference to the impact assessment carried out by the Commission, which contained no assessment of the contested provisions, unfounded assumptions concerning other measures proposed by the Commission which were not set out in Regulation 2020/1055, hypothetical, and indeed incorrect, speculation about the cost of implementing the contested provisions and the complete failure to have regard to the negative effects on the economies of the peripheral Member States confirm, however, a manifest breach of the obligation to carry out an impact assessment.

628. The Republic of Bulgaria maintains that the obligation for vehicles to return home every eight weeks breaches the principle of proportionality enshrined in Article 5(4) TEU and in Article 1 of Protocol (No 2) on the application of the principles of subsidiarity and proportionality. In its submission, the Parliament and the Council had no economic assessments or other data capable of confirming the proportionality of that obligation, which was not part of the Commission’s initial proposal. It was therefore not the subject of an impact assessment, in spite of the repeated requests of certain Member States and the information brought to the knowledge of Parliament and the Council concerning the disproportionate impact of that measure. There was no consultation of the CoR or the EESC. The defendants are therefore unable to demonstrate that they actually exercised their discretion in relation to the adoption of an act or were in a position to take into consideration all the relevant circumstances of the situation which that act was intended to govern. They neither produced nor explained clearly and unequivocally the basic data that had to be taken into account to substantiate the measures at issue and on which the exercise of their discretion depended. The 2021 Ricardo study confirmed that the EU legislature did not have sufficient information for the purposes of adopting the obligation for vehicles to return, as may be seen from the considerable disparity between its conclusions and the figures put forward by the Council.

629. Romania maintains, in the context of the first part of the first plea in Case C‑547/20, that the obligation for vehicles to return home every eight weeks breaches the principle of proportionality. After defining that principle and the requirements to which it gives rise, Romania maintains that that obligation was not part of the measures envisaged in the Commission’s initial proposal and that it was not the subject of an impact assessment either in that proposal or subsequently, when the Council and the Parliament amended that proposal with a view to inserting the obligation to return. According to the Court’s case-law, the omission of an impact assessment constitutes a breach of the principle of proportionality when the legislature is not in a particular situation that justifies dispensing with an impact assessment and when it does not have sufficient information allowing it to assess the proportionality of a measure which is adopted. Paragraph 15 of the interinstitutional agreement also provides that those institutions are to carry out impact assessments when they consider it to be appropriate and necessary for the legislative process when they make substantial amendments to the Commission’s proposal. The obligation for vehicles to return home every eight weeks constitutes such an amendment. The impact assessment was all the more necessary in view of the specificity of the field of transport and the administrative and financial consequences experienced by hauliers as a result of the adoption of Regulation 2020/1055. Not only did the EU legislature fail to carry out an impact assessment, as it ought to have done, but it also failed to take into consideration the scientific documents used by the Member States during the procedure, in order to be able to exercise its discretion effectively. The adoption of the obligation to return, in spite of the absence of an impact assessment, of scientific data or of reports in support of the introduction of such an obligation constitutes a breach of the principle of proportionality, since the EU legislature exceeded the limits of its discretion.

630. The Republic of Cyprus develops a line of argument identical to that developed by the Republic of Bulgaria.

631. Hungary maintains that, in adopting the obligation to return, the legislature did not exercise its discretion correctly. It takes issue with the EU legislature for having failed to examine the impacts that the obligation for vehicles to return home every eight weeks would have on the costs borne by the undertakings, on the transport activity, on the entire sector and on the environment and the climate. Hungary is unaware of any study prepared by the Parliament or the Council that enabled them to assess all of those elements. The EU legislature was therefore not in a position either to assess the proportionality of the obligation to return or to ensure that it was not manifestly disproportionate. The absence of an impact assessment is borne out by the Commission’s statement in which it expressed reservations about that obligation. (377)

632. After referring to the Court’s case-law and to Article 5 of Protocol (No 2) on the application of the principles of subsidiarity and proportionality, the Republic of Malta maintains that, as no impact assessment had been carried out, the EU legislature did not have sufficient elements, within the meaning of the Court’s case-law, enabling it to assess the proportionality of the proposed measure. The Council and the Parliament did not assess the economic and environmental impact of the obligation for vehicles to return home every eight weeks, which was nonetheless a matter of concern for the Commission. (378)

633. The Republic of Poland maintains that point 3(a) of Article 1 of Regulation 2020/1055 breaches the principle of proportionality. After referring to the criteria for the assessment of proportionality that result from the Court’s case-law, the Republic of Poland claims that the obligation for vehicles to return home every eight weeks was not the subject of a Commission impact assessment. The interinstitutional agreement requires an assessment of the economic, social and environmental impact in an integrated and balanced manner, on the basis of both a qualitative and a quantitative analysis. In view of the significant influence of Regulation 2020/1055 on the activities of the road transport sector, the effects of the obligations which it contains ought to have been assessed, and the Council and the Parliament ought to have carried out such an assessment when they intended to depart from the Commission’s initial proposal, as provided for in paragraph 15 of the interinstitutional agreement. As it failed to carry out such an assessment, which is fundamental for the purposes of the assessment of the proportionality of the obligation to return, the EU legislature breached the principle of proportionality, as it was not in a particular situation in which it was required to dispense with that assessment or in which it did not have sufficient information to assess the proportionality of the measure adopted. (379) Contrary to the Council’s contention, the complaints do not relate to the failure to take into consideration the circumstances of a single Member State, but to the failure to consider the circumstances of several Member States, namely those on the periphery of the European Union. In addition, if the contested rules should be considered to prevent the actual practice of drivers who rarely return home, the additional journeys resulting from those rules, in particular the environmental consequences, deserved a detailed assessment.

634. The Council and the Parliament, and the interveners supporting them, contend that there is no breach of the principle of proportionality. The defendant institutions maintain that the concept of ‘particular situation’ referred to in paragraph 85 of the judgment in Czech Republic v Parliament and Council (380) should be read as a reference to the specific situation then at issue and that that judgment concerned a situation that was quite different from the situation in the present actions, since no impact assessment was carried out in that case. The Council refers to the case-law according to which the impact assessment does not bind the Parliament and the Council, which remain free to adopt measures other than those which were the subject of such an assessment, and that the mere fact that they adopted a different and, where appropriate, more restrictive measure than those envisaged by the Commission in the impact assessment is not capable of demonstrating that the EU legislature manifestly exceeded the limits of what was necessary in order to achieve the objective pursued. The interinstitutional agreement contains no obligation to carry out a new impact assessment, since it merely provides for the option for the legislature to carry out such an assessment if the Parliament and the Council deem it appropriate and necessary for the purposes of the legislative process, and the legislature is free to take account not only of the impact assessment but also of any other source of information. The legislature’s wide discretion thus covers both the nature and the scope of the provisions to be adopted and the determination of the basic data. There is no legal basis to support the Republic of Lithuania’s position that the legislature can dispense with an impact assessment only where that is explicitly justified. The EU legislature’s wide discretion should be interpreted as meaning that the legislature is not required to rely solely on the data that individually relate to the amendment at issue, or to draw the same conclusions as those reached in the reports and studies that it has at its disposal. The EU legislature was therefore entitled to rely on the information in the impact assessment concerning the state of the market and to decide to adopt measures that were partially different. The Court’s case-law recognises that the legislature may rely on global findings. Otherwise, if an impact assessment were to be required when the interinstitutional negotiations reached agreement concerning measures which pursue the same objective in a slightly different way from those envisaged by the Commission, there would be a risk that the adoption of the legislative acts would be delayed and the institutional balance would be upset, since there would be a strong incentive to adopt only the solutions assessed by the Commission, even though the impact assessment was not binding on the Parliament or the Council. In the Council’s submission, the purpose of the impact assessment is not to provide justification for the Commission’s proposal but to set out different solutions and, according to paragraph 12 of the interinstitutional agreement, that impact assessment is not a substitute for political decisions within the democratic decision-making process. The Parliament maintains that the failure to carry out an impact assessment does not constitute an infringement of the Treaties unless it is shown that the measure adopted by the legislature is manifestly inappropriate and that the provisions relied on cannot be interpreted as creating an autonomous procedural obligation requiring the EU legislature to carry out impact assessments.

635. Whether it is appropriate and necessary to carry out a supplementary impact assessment must be assessed in the context of the review of proportionality and therefore depends on the information otherwise available. The Commission’s impact assessment contains information about the problems requiring the strengthening of the establishment criteria set out in Article 5 of Regulation No 1071/2009 and on the need to avoid an unjustified competitive advantage by comparison with hauliers from Member States where the standards are stricter. That assessment examined seven distinct establishment criteria, some of which already required that the vehicles be present in the Member State of establishment. The obligation for vehicles to return home constitutes, in that regard, another means of achieving the same result.

636. The Commission’s impact assessment also provides an evaluation of the various new requirements proposed by the Commission, including the more restrictive requirement that the undertaking have a significant transport or operational activity in the country of establishment or at least one commercial contract in the country of establishment and the associated costs, as well as their allocation. It follows that hauliers whose presence in the country of establishment is already stable and effective would not have to bear much in the way of additional costs linked with the implementation of the new obligations provided for in Regulation 2020/1055, or even none. (381) The Parliament claims that one of the findings of the impact assessment argued in favour of a public policy solution, including the seven measures identified by the Commission in that assessment, aimed at ensuring a significant transport or operational activity in the Member State that was likely to entail 15 to 18% of additional costs for EU-15 hauliers and 33 to 36% additional costs for EU-13 hauliers, or EUR 1.09 billion per year for the sector for the period 2020-2035, that is to say, less than 0.03% of total operating costs. (382)

637. As regards the existence of a firm objective basis, the EU legislature had sufficient documents and information at its disposal. The impact assessment of the social section of the Mobility Package contains an evaluation of the duration of transport cycles, which led the EU legislature to take the view that the obligation for vehicles to return should be synchronised with the obligation for drivers to return, in order to limit the negative effects. That impact assessment also concluded that there would be no negative environmental impact connected with the more frequent return of drivers since, according to the Council, drivers already returned home regularly (more than once every four weeks), and the market structure would exercise pressure in favour of reducing empty trips. (383) Although it acknowledges that it was not in possession of all the documents used by the Member States to assess the precise impact of the obligation to return, the Council maintains that the documents that were available in the public domain allowed it to assess the impact of the obligation to return. The EU legislature also had various studies and reports at its disposal and organised various consultations, meetings and hearings. (384) Regulations No 1071/2009 and No 1072/2009 were also the subject of an ex-post REFIT assessment that called for a more precise definition of the concept of ‘operational centre’. The Member States carried out their own assessments, as did other interested parties.

638. The IRU disclosed its assessment (385) of the specific impact of the obligation to return every four weeks, (386) according to which such a return would give rise to between 80 and 135 million vehicle-kilometres per year (or an increase of between 45 and 75%) and up to 100 000 tonnes of CO2 emissions per year. Those figures should be further divided by two for an assessment of the obligation to return every eight weeks and the defendant institutions estimate that the additional cost created would be in the order of EUR 50 million. That result does not radically alter the order of things by comparison with the impact of the seven requirements examined by the Commission. From an environmental viewpoint, those 100 000 tonnes represent less than 0.014% of the total quantity of CO2 equivalent tonnes emitted by road transport in 2015 and an even smaller proportion of the reductions by comparison with 2005 levels required by Regulation No 2018/842.

639. It is therefore not manifestly inappropriate for the EU legislature to presume that the economic impacts would be of the same order as the cost of the related requirements examined by the Commission and that the allocation of those costs would be similar. The legislature also had a critical assessment drawn up by a Polish employers’ organisation (‘the Klaus report’) (387) and a positive reaction of the European Transport Workers’ Federation (ETF), (388) which is the IRU’s social partner at European level, highlighting the need to seek a compromise solution, which the legislature did, by maintaining the obligation for vehicles to return but reducing the frequency with which they were required to do so.

640. The evolution of the proposal during the legislative procedure (from an obligation to return every three or four weeks, with an obligation to carry out a transaction in the Member State of establishment, to a return every eight weeks without a corollary obligation) shows that the legislature did indeed take the negative effects of the strengthening of the establishment criteria into account and weigh them with the consequences for the Member States where numerous EU-13 hauliers pursue a permanent activity and the need to ensure fair competition.

641. The economic consequences on which the applicant States rely, on the basis of the 2021 Ricardo study, are based on the scenario of a significant market restructuring, whereas the environmental consequences on which they rely are based on the scenario of a failure of the market to adapt. Those two scenarios, and their effects, are mutually exclusive. The Council and the Parliament also observe that the Member States of Eastern Europe, feeling that they are more harshly affected by the forthcoming reform, were more inclined to participate in that study, which does not take account, moreover, of the synergies with the obligation for drivers to return and which concentrates only on certain operating costs. The Parliament maintains that the debate between the parties does not really relate to the availability of the essential facts, but rather to the question whether the choices made by the EU legislature on the basis of those facts are manifestly inappropriate, but mere disagreement on the final content of the act is not sufficient to conclude that the measure was manifestly inappropriate.

(ii) Analysis

642. It follows from the case-law referred to in point 62 et seq. of this Opinion that, although an impact assessment is recommended by the interinstitutional agreement, since the consequences of the proposed measure, from an economic, environmental or social viewpoint, are significant, (389) that agreement does not contain an obligation for the EU legislature to carry out an impact assessment in every circumstance. (390) Consequently, the absence of an impact assessment does not mean ipso facto that the EU legislation subsequently adopted is invalid (391) and, as the defendant institutions have emphasised, where such an assessment is available, it is not binding on the legislature, (392) which retains all the necessary scope to adopt a different and, as the case may be, more onerous measure than those envisaged in the Commission’s impact assessment, without permitting the automatic conclusion that the legislature manifestly exceeded the limits of what was necessary in order to achieve the objective pursued, (393) even where the amendment thus made proves to be substantial by reference to the initial proposal, since paragraph 15 of the interinstitutional agreement, which has no binding force, provides, moreover, for a mere option for the Parliament and the Council to update the impact assessment where they deem it appropriate and necessary to do so for the legislative process. (394) The complaints alleging breach of the interinstitutional agreement must therefore be rejected.

643. The absence of an impact assessment will, however, be capable of being characterised as a breach of the principle of proportionality when the EU legislature does not have sufficient information enabling it to assess the proportionality of an adopted measure, (395) in other words to exercise its discretion effectively (396) on the basis of all the relevant elements and circumstances of the situation which the act adopted is intended to govern, and is not in a particular situation requiring it to dispense with such an assessment. The form in which the data are recorded is irrelevant (397) and the EU legislature is not itself required to have all the documents containing the relevant data. (398)

644. As regards the adoption of the obligation for vehicles to return home every eight weeks, it is common ground that that measure was not part of the proposal for a regulation on establishment. (399) In essence, the Commission proposed to amend Article 5 of Regulation No 1071/2009 by reinforcing the list of documents to be kept at the haulier’s operational centre (proposal for Article 5(a)), while requiring the effective and continuous conduct of administrative and commercial activities with the appropriate administrative equipment and facilities at premises situated in the Member State of establishment (proposal for Article 5(c)) and the management of transport operations with the vehicles and appropriate equipment situated in the Member State of establishment (proposal for Article 5(d)) and the holding of assets and the employment of staff proportionate to the activity of the establishment (proposal for Article 5(e)).

645. The obligation for vehicles to return home every eight weeks did not form part of the measures covered by the Commission’s impact assessment in its initial proposal. (400) That marks a fundamental difference by comparison with the situation examined above in connection with the obligation for drivers to return. (401)

646. Among the measures listed in that impact assessment, Measure No 18, entitled ‘Review reference points for effective and stable establishment’, proposed, in order to ensure that the establishment is effective and stable, that hauliers be required to have significant operational or transport activity in the Member State of establishment or at least one commercial contract in the Member State of establishment. (402) Such measures do not seem to be comparable in any way to that eventually chosen at the end of the legislative process. It follows, in my view, that, contrary to the assertion of the Parliament and the Council, no conclusion taken from the evaluation of the impact of the measures assessed in the impact assessment (403) can be ‘transposed’ to the new requirement, once it was introduced by the Parliament during the legislative procedure, (404) in a formulation which was further amended in its final version.

647. I also note that no part of the impact assessment was devoted to an assessment of the environmental impact of the proposed measures.

648. Although the EU legislature was able to rely on the Impact assessment – establishment section with respect to the state of the market, the identification of the difficulties and the dysfunctions which its intervention was supposed to resolve, it must be stated that an amendment of Regulation 2020/1055 which would have introduced an obligation to make transnational journeys at regular intervals requiring the use of a road vehicle, was not envisaged by the Commission or covered in any way by the impact assessment.

649. The Council and the Parliament maintain that the EU legislature was entitled to rely on the conclusion contained in the Impact assessment – social section, (405) according to which the adoption of the obligation for drivers to return would have no environmental impact.

650. Apart from the fact that such an argument covers only one of the aspects of the potential impact of the obligation for vehicles to return home every eight weeks, the obligation for drivers to return, unlike the obligation for vehicles to return, does not require the use of a particular means of transport. Furthermore, in the light of what I have already said about that obligation, (406) the mere assertion in the impact assessment concerning the social section of the Mobility Package that the obligation for drivers to return would have no environmental impact cannot be sufficient to justify the assessment of the impact of the obligation for vehicles to return home every eight weeks in accordance with what is expected of the EU legislature in terms of the examination of proportionality.

651. The intensity of the discussion before the Court seems to me to demonstrate a real question as to the intensity of the impact of the obligation for vehicles to return. Some questions remain unanswered, such as, first, the question of the genuinely expected determination of the additional vehicle-kilometres per year and of the corresponding emissions, since, as the Parliament has observed in the context of other pleas, if vehicles do not have to satisfy the obligation to return they will not remain stationary; second, the question of the impact on the evaluation of the obligation to return of developments expected as a result of the implementation of the European rules affecting, more broadly, the transport sector; third, the question of the determination of the expected overall economic consequences on the market and of the more specific consequences by reference to the obligations relied on; fourth, the question of the potential effects of the proposed obligation on the economic situation of States providing transport services from a place far from the centre of demand for such services; fifth, the question as to how the legislature ultimately opted for a frequency of return to the Member State of establishment every eight weeks.

652. Although, as I have pointed out, the EU legislature enjoys a wide discretion as to the form and the nature of the data on which it bases its action, having regard to the importance of the policy in question, the profoundly fragmented nature of the market and the radically opposed interests involved, to my mind it is not sufficient for the legislature to claim to have considered the consequences, in particular the environmental consequences, of the measure in question by relying essentially on a letter from the IRU, in which that body provides its own estimate of the number of additional vehicle-kilometres per year and of the annual additional volume of CO2 emitted that would be caused by the implementation of an obligation for vehicles to return every three to four weeks, without providing any methodology with regard to the calculations thus obtained and without that letter being genuinely capable of constituting objective information. The same conclusion must be reached as regards what is alleged to be the positive response of the ETF to the obligation to complete one loading or one unloading in the Member State of establishment every four weeks. (407) Nor can any objective and substantial economic information be derived from that letter and from that response. As for the Klaus report, it is a document produced at the request of a group of interests and in response to the amendment in the ongoing legislative procedure of the proposal for a regulation. It does not shed light on the reasons for the legislature’s choice.

653. Although I am prepared to find a breach of the principle of proportionality resulting from the absence of an impact assessment of the obligation for vehicles to return home every eight weeks, it is still necessary to respond to the objection that the absence of an impact assessment undermines the institutional balance of the European Union and interferes with policy.

654. In my view, it therefore seems important to make clear that the EU legislature, in its function, clearly remains free to take the decisions which it wishes to take, but it is important for it to so in an enlightened and enlightening manner, which it must be in a position to establish. The same applies to the capacity of the forthcoming measure to be understood and accepted by all the interested parties, a fortiori in an area that, as in relation to Regulation 2020/1055, crystallises the tensions between diverging interests.

655. For all of the foregoing reasons, I invite the Court to find that, by not carrying out an assessment of the economic, social and environment impact of the obligation for vehicles to return home every eight weeks, the Parliament and the Council breached the principle of proportionality, since they have not shown that, at the time of the adoption of that obligation, they had sufficient information enabling them to assess the proportionality of that obligation in the light of the objectives which they intended to pursue and since they did not claim to be in a particular situation that made it necessary to dispense with an impact assessment.

656. Consequently, the fourth plea in Case C‑542/20, (408) the second plea in Case C‑545/20, the first plea in Case C‑547/20, the second plea in Case C‑549/20, the first plea directed against Article 1(3)(c) of Regulation 2020/1055 in Case C‑551/20, the second plea in Case C‑552/20 and the first plea in Case C‑554/20 must be upheld as well founded.

(2)    Examination of the proportionality of the measure

657. As breach of the principle of proportionality has just been established owing to the failure of the EU legislature to examine the proportionality of the obligation for vehicles to return home every eight weeks, there is no need to examine the complaints alleging that that obligation is disproportionate.

(e)    The pleas alleging infringement of Article 91(2) TFEU and of Article 94 TFEU

(1)    Arguments of the parties

658. The Republic of Lithuania maintains that, as Regulation 2020/1055 was adopted on the basis of Article 91(1) TFEU, the legislature was also required to comply with the requirements of the second paragraph of that provision and to take account of cases where the application of the adopted measure ‘might seriously affect the standard of living and level of employment in certain regions, and the operation of transport facilities’. The same applies to Article 94 TFEU, under which the legislature is required to take account of the economic circumstances of hauliers when taking, within the framework of the Treaties, any measures in respect of transport rates and conditions. The Republic of Lithuania submits that the EU legislature adopted point 3 of Article 1 of Regulation (UE) 2020/1055 without examining its effects on hauliers at the periphery of the European Union, on their economic circumstances, on their viability and, therefore, on employment in that sector, although that sector plays a significantly greater role in the economy of those States than it does in the economies of the States of Central and Western Europe. (409) Thus, the repercussions which Regulation 2020/1055 is expected to have on the economies of those peripheral Member States, in particular in terms of undertakings closing down or relocating and loss of employment, are greater, although they were not taken into consideration. Those repercussions were confirmed by the 2021 Ricardo study, according to which the obligation for vehicles to return home every eight weeks affects 29% of drivers from eastern Europe and gives rise to particularly significant costs, put at EUR 3 000 million per year. (410) As the labour market in those Member States is much more sensitive to developments in transport policy, the legislature ought to have taken that circumstance into account. The EU legislature therefore manifestly disregarded the obligations arising under Article 91(2) and Article 94 TFEU. In so far as it is a provision inserted in the Title of the Treaty devoted to transport, the EU legislature was required to comply with Article 94 TFEU when it adopted Regulation 2020/1055 and, in particular, point 3 of Article 1.

659. The Republic of Bulgaria (411) maintains that the Council and the Parliament ought to have taken the serious repercussions for the economies of the peripheral States caused by the adoption of Regulation 2020/1055 into consideration and that, in not doing so, those institutions infringed Article 91(2) TFEU. That provision allows the sensitive nature of certain measures adopted within the framework of the transport policy that have a significant impact – measures that, until the entry into force of the FEU Treaty, were adopted unanimously – to be recognised and taken into consideration, and allows particular attention to be given to them. The Republic of Bulgaria refers to the line of argument which it developed in the context of the plea alleging breach of the principle of proportionality to demonstrate the harmful effects on the standard of living and level of employment of Bulgarian hauliers and, more generally, on the economic circumstances of hauliers from the Member States of peripheral Europe. The Republic of Bulgaria also maintains that point 3 of Article 1 of Regulation 2020/1055 is a measure ‘in respect of transport rates and conditions’ within the meaning of Article 94 TFEU, the adoption of which requires that the economic circumstances of hauliers be taken into account. In addition, as Article 90 TFEU refers to the objectives referred to by Article 3(3) TEU, particular attention should be given to economic, social and territorial cohesion and solidarity between Member States when measures coming within the transport policy are adopted, which was not the case when point 3 of Article 1 of Regulation 2020/1055 was adopted. No impact assessment was carried out, nor was there any consultation or supplementary assessment for the purpose of understanding the extent to which the standard of living and level of employment in certain regions would be affected by the measure in the process of being adopted.

660. The Republic of Cyprus develops a line of argument which is similar on every point to that developed by the Republic of Bulgaria, and also emphasises the particular situation of the island States and the significant consequences for the Cypriot economy and employment.

661. Hungary maintains that the asymmetry of the negative consequences for hauliers from the Member States on the periphery of the European Union by comparison with the consequences for hauliers of Central and Western Europe shows that the obligation for vehicles to return infringes Article 91(2) and Article 94 TFEU, (412) since the EU legislature did not take account of the particular situation of the former hauliers.

662. The Republic of Malta maintains that the failure to take into account the environmental impact of the obligation for vehicles to return home every eight weeks infringes Article 91(2) read in conjunction with Article 11 TFEU and Article 37 of the Charter, as that obligation has a particularly seriously effect on the standard of living and the level of employment in an island State such as Malta. The fact that that impact of the obligation for vehicles to return was not given the attention that it deserved constitutes a failure the substantive implications of which (413) should also be assessed in the light of Article 91(2) TFEU. The repercussions of that obligation on the operation of transport facilities are clearly shown, in particular in an island Member State whose transport routes entail sea legs and considerable distances by comparison with the European continent. Because of the significant distance between Malta and the continent, the entire Maltese transport system is based on the constraints imposed by geography and by the existing maritime transport facilities and not on commercial decisions. Those operations are revolutionised by the obligation for vehicles to return, which requires Maltese hauliers to radically adjust vehicle logistics and to incur considerable costs. That obligation therefore seriously undermines the operation of transport facilities in Malta. In spite of the concerns that the Maltese Government expressed to the Council on many occasions, no account was taken of the repercussions that that obligation would have on the operation of transport facilities in Malta. The adoption of that obligation, without any technical argument capable of justifying its impact, confirms that the Parliament and the Council did not fulfil their obligation under Article 91(2) TFEU.

663. The Republic of Poland maintains that the limitations on the provision of cabotage services and cross trade between third countries arising from the application of the obligation for vehicles to return home every eight weeks substantially alters the model of the provision of road transport services, which has negative repercussions on the standard of living and level of employment in certain regions and on the operation of transport facilities, repercussions that were not taken into account, contrary to the requirements of Article 91(2) TFEU. The obligation to return obliges operators to return empty rather than carry out a cabotage operation or a cross trade transport operation, thus affecting the profitability of the activity of hauliers. The EU legislature did not take account of the fact that the restrictions on cabotage and cross trade operations may result in hauliers leaving the market and have a significant impact on employment in that sector. Nor was any account taken of the fact that those consequences would be particularly felt by hauliers from the Member States at the periphery of the European Union. Ninety percent of transport undertakings are SMEs employing 55% of the persons occupied in the transport sector. Those undertakings are particularly exposed to the negative consequences linked with the obligation for vehicles to return home every eight weeks. The fall in employment in the transport sector that will inevitably follow from the obligation for vehicles to return home every eight weeks must represent a particular blow for those Member States and weaken them, something that the EU legislature did not take into account. That obligation also entails additional pointless trips which will be harmful to the operation of existing transport facilities, the deterioration of which linked with those trips was not assessed. The same applies to the rise in the at-risk behaviour of drivers. Last, the Republic of Poland takes issue with the legislature for having adopted a measure that makes the pursuit of the activity of hauliers more difficult when the COVID-19 pandemic had already thrown them into a period of crisis.

664. As regards the alleged infringement of Article 94 TFEU, the Republic of Poland reiterates that the scope of activity of transport undertakings from the different regions of the European Union is not homogeneous and that international transport plays a more important role in the structure of road transport in the Member States on the periphery of the European Union, while hauliers established in the Member States of the centre of the European Union carry out more domestic or bilateral transport operations. High costs will therefore be borne essentially by hauliers established in the Member States of the periphery of the European Union, which are mainly SMEs, in order to comply with the obligation for vehicles to return home every eight weeks, which thus particularly weakens them. The EU legislature ought to have taken the particular nature of the market into consideration, a fortiori in a period that was already marked by the particular vulnerability of hauliers, owing to the crisis linked with Covid-19. In failing to take the hauliers’ economic circumstances into account, the EU legislature infringed Article 94 TFEU.

665. The Parliament and the Council, and the interveners supporting them, submit that the pleas alleging infringement of Article 91(2) TFEU and Article 94 TFEU must be rejected.

(2)    Analysis

666. The complaints raised by the applicants frequently refer to those set out in the pleas in the actions alleging breach, by the obligation for vehicles to return home every eight weeks, of the principle of proportionality. On a number of occasions the Parliament and the Council are also criticised for not having carried out an assessment of the impact of that obligation on the criteria referred to in Article 91(2) TFEU and Article 94 TFEU.

667. That indeed confirms the relationship of proportionality established by the obligations arising under those two articles as I interpreted them in point 292 of this Opinion. In those circumstances, since it has already been concluded that the obligation for vehicles to return home every eight weeks constitutes a breach of the principle of proportionality, (414) there is no need to examine the pleas alleging infringement of those articles.

(f)    The pleas alleging breach of fundamental freedoms guaranteed by the FEU Treaty

(1)    Arguments of the parties

668. The Republic of Lithuania maintains that the obligation for vehicles to return home every eight weeks is contrary to Article 26 TFEU. In its submission, that obligation is a protectionist measure that entails the fragmentation of the market, restricts competition and establishes a discriminatory regime vis-à-vis hauliers from the Member States in the geographic confines of the European Union.

669. The obligation to return constitutes an unjustified restriction on the exercise of the freedoms of the internal market. That obligation was adopted without consideration of whether the aims pursued were capable of justifying the significant negative consequences for certain operators and without any attempt to ensure that the burden placed on operators would be the least possible. The particular place of the transport sector for the functioning of the internal market has been emphasised by the Commission (415) and the principle of non-discrimination was implemented in the field of the right of establishment by Article 49 TFEU, which is also applicable to legal persons. The fact that the aspiration to an internal market, set out in Article 26 TFEU, is implemented by other Treaty provisions does not deprive that provision of relevance, and measures that substantively breach the objectives referred to in Article 26 TFEU cannot be considered to be compatible with that article. The adverse effects on the aspiration to an internal market are confirmed by the Impact assessment – establishment section and the 2021 Ricardo study.

670. The Republic of Bulgaria claims that point 3 of Article 1 of Regulation 2020/1055 constitutes, first, a breach of the freedom to exercise an occupational activity, the freedom of establishment provided for in Article 49 TFEU and Articles 15 and 16 of the Charter (sixth plea in the application in Case C‑545/20); second, a breach of the freedom of movement of transport services on the basis of Article 58(1) TFEU and Article 91 TFEU and, in the alternative, of Article 56 TFEU (first part of the seventh plea in the application in Case C‑545/20); and, third, a breach of the free movement of goods under Articles 34 and 35 TFEU (second part of the seventh plea in the application in Case C‑545/20).

671. First, in placing additional constraints on hauliers, the obligation for vehicles to return home every eight weeks constitutes an interference with the freedom to conduct a business and the right of establishment, as recognised in Article 49 TFEU and Article 15(1) and Article 16 of the Charter, of hauliers from the island and peripheral Member States, since some are required to cease their activities, while others are required to become established in a more central Member State. In excluding various hauliers situated in peripheral or island Member States from the economic activity, Regulation 2020/1055 threatens the very existence of freedom to pursue an occupational activity. Such an interference cannot be justified, since it is disproportionate. Measures that impede or render less attractive the exercise of freedom of establishment must be considered to be a barrier to that freedom. The obligation to return makes establishment in the peripheral or island Member States less attractive for international hauliers, although the international transport sector is completely liberalised.

672. Second, the Republic of Bulgaria maintains that the obligation to return considerably restricts freedom to provide transport services, as returning prevents hauliers from continuing to provide transport services even though they are guaranteed freedom to provide those services by primary law. The activities of transport service providers will lose much of their attraction and their advantage. The obligation for vehicles to return home every eight weeks irrespective of whether they are carrying freight at a given time fundamentally undermines the overall economic model of certain hauliers. That amounts to an infringement of Article 58(1) TFEU in conjunction with Article 91 TFEU. The imposition of the obligation to return reintroduces a form of discrimination and constitutes a retrograde step in the establishment of a common transport policy ensuring freedom to provide services. If the Court should hold that Article 56 TFEU is applicable, that provision must also be considered to be infringed. In the reply, the Republic of Bulgaria observes that the Court has already analysed the establishment requirement, in so far as it is a necessary condition of the provision of transport services, as constituting a restriction contrary to the right of establishment.

673. Third, the Republic of Bulgaria maintains that the obligation to return will have serious consequences that will affect the free movement of goods and will have effects equivalent to quantitative restrictions, which are prohibited under Articles 34 and 35 TFEU.

674. The Republic of Cyprus develops the same line of argument as that developed by the Republic of Bulgaria.

675. Romania maintains that the obligation for vehicles to return home every eight weeks constitutes a significant barrier to the formation of companies in Romania by nationals of other EU Member States, since it gives rise to considerable operating costs and reduced revenues for a company established in a peripheral Member State of the European Union, such as Romania. Such an obligation therefore infringes Article 49 TFEU by making the exercise of freedom of establishment more difficult and less attractive. The profitability, and therefore the attractiveness, of setting up a transport company in Romania are affected by that obligation. More than 45% of transport companies established in Romania envisage setting up a company or a branch or relocating their activity in other Member States of Western Europe in order to contain the negative effects of the Mobility Package. Thus, even though the obligation to return does not have the effect of prohibiting persons not resident in Romania from setting up transport companies, the fact nonetheless remains that that measure makes the setting up of companies in Romania more onerous and less attractive and constitutes an unjustified and disproportionate restriction on freedom of establishment.

676. In the reply, Romania underlines the divergence in views between the Council, which maintains that Regulation No 1071/2009 is an important measure for ensuring freedom of establishment, and the Parliament, which maintains that Regulation No 1071/2009 does not regulate freedom of establishment, as Article 5 of that regulation only lays down a condition of the exercise of freedom to provide services. Romania disputes the Parliament’s assertion that only national measures can constitute restrictions on freedom of establishment, when the Court has already held that the prohibition on restrictions on the free movement of goods and freedom to provide services applies not only for national measures but also for measures adopted by the EU institutions.

(2)    Analysis

677. I have already referred to the specific nature and the special place of the transport sector in the Treaties, (416) a sector that is subject to a special legal regime in the context of the internal market. I would note in particular that the special status of transport in the normative organisation of the internal market is distinguished by the combination of a right of establishment in every Member State, based on the Treaty, and the hauliers’ right to freedom to provide services, guaranteed solely in so far as that right has been recognised through measures of secondary law adopted by the EU legislature in the context of the common transport policy. Thus, international transport is wholly liberalised. The position is otherwise for domestic transport operations, which are still subject to restrictions when they are carried out by non-resident hauliers.

678. As regards Article 26 TFEU, the general principles which it sets out in its first and second paragraphs refer each time to the other relevant provisions of the Treaties, so that, as the Parliament claims, an EU act governing the field of transport, as is the case of Regulation 2020/1055, cannot be examined by reference to that provision alone without disregarding its precise scope and without ignoring the other relevant provisions of the Treaty, in particular Article 58(1) TFEU.

679. Transport services are liberalised only in so far as the EU legislature relies, for its action, on Article 91 TFEU, which functions as a lex specialis. The Treaty states that the legislature is to lay down ‘common rules applicable to international transport to or from the territory of a Member State or passing across the territory of one or more Member States’. Article 5 of Regulation No 1071/2009, before being amended by Regulation 2020/1055, is one of those common rules, or conditions, with which every haulier must comply in order to be authorised to provide transport services in the European Union. I recall that the purpose of Regulation No 1071/2009, as stated in Article 1(1), is to govern ‘admission to, and the pursuit of, the occupation of road transport operator’. (417) The fact that the pursuit of the occupation of road transport operator is made subject to compliance with rules and conditions does not, de facto, entail a breach of the freedom to provide services. I am of the view that those rules and conditions relate more to the question of the procedures for the liberalisation of the market for transport services, in regard to which the legislature has a wide discretion, as the Parliament claims.

680. As regards the allegation of infringement of Article 49 TFEU, I again assert, as Romania claims, that the prohibition on restrictions on the fundamental freedoms guaranteed by the Treaty applies not only to national measures, but also to measures adopted by the EU institutions (418) and that freedom of establishment is no exception in that regard. The analysis will be guided, moreover, by point 159 et seq. of this Opinion and reasoning analogous to that followed with respect to the obligation for drivers to return may be followed. The obligation for vehicles to return home every eight weeks is imposed without distinction on every transport undertaking wishing to carry out road transport operations within the European Union. It is intended to ensure the stable and effective nature of the establishment of road hauliers. As such, that obligation does not regulate, or in any way limit, the freedom – which remains intact – of the economic operators of a Member State to become established in the host Member State, to take up activities as self-employed persons and to set up undertakings under the conditions laid down for its own nationals by the laws where such establishment is effected. (419) As the Council observes, the obligation to return is not intended to be taken into consideration during the process of the authorisation of transport companies, as those companies are required to comply with that obligation after they have become established and as soon as they begin to provide their services. The obligation for vehicles to return home every eight weeks therefore has no effect on freedom of establishment.

681. The obligation for vehicles to return home every eight weeks does not prevent hauliers from exercising their freedom of establishment, since it is not disputed that they are free to relocate the seat of their activities, if they so wish. The assertion that the establishment of companies in the peripheral Member States is discouraged because of the significant increase in the costs associated with the obligation to return must be rejected, since it is based on the continuation of a commercial model which is within the sole responsibility of those hauliers. The increase in costs is even more significant when a haulier chooses to operate within the territory of a Member State at a distance from the Member State in which it is established. It is not for the EU legislature to compensate for any complications linked to the geographic separation between the seat of the operator and the effective place of its activities.

682. As regards reliance on the Charter, Article 15(1) and Article 16 protect, respectively, the right to engage in work and to pursue a freely chosen or accepted occupation and freedom to conduct a business, in accordance with EU law and national laws and practices. The Republic of Bulgaria and the Republic of Cyprus maintain, in connection with the allegation of infringement of Article 49 TFEU, that the obligation for vehicles to return home every eight weeks jeopardises the very existence of freedom to pursue an occupation.

683. First, the pursuit of any occupation necessarily entails acceptance of the rules and conditions applicable to its pursuit. Second, even on the view that the obligation constitutes a restriction on the occupational activity of the economic operators concerned, Article 52(1) of the Charter provides that limitations may be made by law and in compliance with the essence of the rights and freedoms enshrined in the Charter. It must be stated, in this instance, that the obligation does not in any way impinge on the actual substance of the right to pursue freely the occupation of road transport operator. (420) Third, it follows from that provision that any limitation must be necessary and must genuinely meet objectives of general interest recognised by the European Union. Since the legislature, in the context of the wide discretion conferred on it, deemed it necessary to intervene in order to ensure, in particular, fair competition and a level playing field in order to guarantee the proper functioning of the internal transport market, it must be concluded that there is no infringement of Articles 15 and 16 of the Charter.

684. As regards the alleged interference with freedom to provide services, I recall that Article 58(1) and Article 91 TFEU provide that freedom to provide services in the field of transport is to be implemented by the EU legislature. The obligation for vehicles to return home every eight weeks cannot therefore be examined separately under Article 56 TFEU, without, once again, disregarding the specificity of transport with respect to freedom to provide services. As I have already stated, (421) the EU legislature is therefore entitled to alter the conditions in which freedom to provide services in the field of road transport is exercised, in order, inter alia, to ensure the proper functioning of the internal market, since the degree of liberalisation of those services is defined by the legislature itself in the context of the implementation of the common transport policy. I recall that the Court has already held that a measure taken by the EU legislature with the aim of ensuring the freedom to provide services on a fair basis, that is to say, within a framework of rules guaranteeing competition that should not be based on the application, in one and the same Member State, of terms and conditions of employment at substantially different levels, is lawful. (422) The purpose of the imposition of an obligation for vehicles to return home every eight weeks is to ensure that the haulier has a stable and effective establishment, in order to ensure a genuine link with the Member State of establishment, which is the State which will define, in particular, the fiscal and social rules that will apply to that haulier. The EU legislature clearly stated in recital 8 of Regulation 2020/1055 that the objective was to combat letterbox companies and reduce the risk of systematic cabotage and nomadic drivers in order to ensure the proper functioning of the internal market in the field of transport. In those circumstances, the complaints alleging infringement of Article 56 and Article 58(1) TFEU must be rejected as unfounded.

685. As regards reliance on a breach of the free movement of goods, the Republic of Bulgaria and the Republic of Cyprus have not in my view demonstrated to the requisite standard the effects of the obligation on the free movement of goods, as they have merely made general assertions. Proof of such effects is all the more difficult because what are alleged to be the restrictive effects of the obligation for vehicles to return home every eight weeks clearly seem to be too random and too indirect for point 3 of Article 1 of Regulation 2020/1055 to be deemed capable of impeding trade between Member States and, therefore, of constituting a restriction within the meaning of Articles 34 and 35 TFEU. (423)

686. Accordingly, the pleas alleging infringement of Articles 15 and 16 of the Charter and Articles 26, 34, 35, 49, 56 and 58(1) TFEU must be rejected as unfounded.

(g)    Conclusion

687. For the reasons set out in point 642 et seq. of this Opinion, the actions brought by the Republic of Lithuania (C‑542/20), the Republic of Bulgaria (C‑545/20), Romania (C‑547/20), the Republic of Cyprus (C‑549/20), Hungary (C‑551/20), the Republic of Malta (C‑552/20) and the Republic of Poland (C‑554/20), in that they are directed against point 3 of Article 1 of Regulation 2020/1055 in so far as that provision amended Article 5(1)(b) of Regulation No 1071/2009 by inserting in that provision an obligation for vehicles to return home every eight weeks, must be upheld and point 3 of Article 1 of Regulation 2020/1055 must be annulled.

2.      The obligation for an undertaking to have at its disposal a number of vehicles and drivers proportionate to the volume of transport operations carried out by the undertaking (point 3 of Article 1 of Regulation 2020/1055, in that it added point (g) to Article 5(1) of Regulation No 1071/2009)

688. The Republic of Poland is the only Member State to dispute the legality of point 3 of Article 1 of Regulation 2020/1055 in that it added point (g) to Article 5(1) of Regulation No 1071/2009, and raises two pleas in that regard, the first alleging breach of the principle of proportionality and the second alleging breach of the principle of legal certainty. In addition, by means of the common plea developed transversally against the provisions of Regulation 2020/1055 which it contests in its application in Case C‑554/20, the Republic of Poland claims that there is an infringement of Article 11 TFEU and Article 37 of the Charter.

(a)    First plea, alleging breach of the principle of proportionality

(1)    Arguments of the parties

689. As regards the plea alleging breach of the principle of proportionality, the Republic of Poland maintains that the obligation for the undertaking to have at its disposal, on an ongoing basis, in the Member State of establishment, a number of vehicles that comply with the requisite conditions (424) and of drivers who are normally based at an operational centre in that Member State, proportionate to the volume of transport operations carried out by the undertaking, is based on arbitrary criteria, that it is not appropriate for achieving the objectives of Regulation 2020/1055, which, moreover, are not clearly stated, and that it has disproportionate negative consequences for operators by comparison to any positive effects that it might have. The need to have recourse to such a measure was not sufficiently evaluated in the impact assessment and the reasons underlying its introduction remain vague, as do the objectives pursued. Regulation 2020/1055 already lays down an obligation for vehicles to return and an obligation for drivers to return, so that the new Article 5(1)(g) of Regulation No 1071/2009 constitutes an additional measure further limiting the mobility of the vehicles available to the undertakings. The obligation constitutes a totally arbitrary requirement, which does not take account of the specificity of international road transport activities, and an absurd obstacle to the pursuit of such activities. The Republic of Poland expresses its concern at the absence of an objective link between the requirement introduced in Article 5(1)(g) of Regulation No 1071/2009 and the question of an effective and stable establishment and maintains that such a requirement does not in reality relate to the rules that determine the place of establishment but regulates the detailed rules governing the actual organisation of the transport activity. In addition, the Republic of Poland claims that that requirement obliges hauliers to organise additional empty journeys, while recognising that it is difficult to evaluate the number of additional trips owing to the imprecise nature of that provision. Compliance with such a requirement exposes the undertakings to costs, whether they are linked with the additional empty trips, the increase in their vehicle fleets or the number of drivers. Those additional costs are difficult for SMEs, which make up the major part of the sector, to bear and lead to bankruptcies and relocations. The impact assessment did not take those factors into account. As the legality of an EU act must be assessed at the time when it is adopted, the Republic of Poland observes that the new Article 5(1)(g) of Regulation No 1071/2009, as amended by Regulation 2020/1055, was adopted during a period when undertakings active in the transport sector were already weakened as a result of the COVID-19 pandemic. It was therefore not appropriate, when the EU legislature had at its disposal the data relating to the impact of the outbreak on the transport sector, that it should subject undertakings to unjustified additional expenditure.

690. The Council and the Parliament submit that the present plea must be rejected.

(2)    Analysis

691. I recall that the new Article 5(1)(g) of Regulation No 1071/2009, as amended by Regulation 2020/1055, lays down a new condition relating to the establishment requirement by providing that, in order to be considered to have an effective and stable establishment in the Member State of establishment, within the meaning of Article 3(1)(a) of Regulation No 1071/2009, an undertaking must, on an ongoing basis, have at its regular disposal a number of vehicles and of drivers who are normally based at an operational centre in that Member State, in both cases proportionate to the volume of transport operations carried out by the undertaking.

692. At the outset, I note that Article 1(3)(d) of the Proposal for an amendment of Commission Regulation No 1071/2009 proposed the addition to Article 5 of that regulation of an obligation to hold assets and employ staff proportionate to the activity of the establishment. Such an obligation was the subject of a global impact assessment, envisaged with the other six measures listed by the Commission, in the impact assessment accompanying the Commission’s initial proposal. (425) Although the formulation eventually settled on by the EU legislature is slightly different from that proposal, (426) it is clear that the EU legislature had at its disposal sufficient data to apprehend the impact caused by the adoption of the obligation now laid down in Article 5(1)(g) of Regulation No 1071/2009, as amended by Regulation 2020/1055. As the Council has observed, that provision is not among the provisions of the Mobility Package about which the Commission has expressed reservations. (427)

693. This new Article 5(1)(g) clearly contributes, in my view, to the pursuit of the objectives set out in recital 6 of Regulation 2020/1055, namely combating the phenomenon of letterbox companies and guaranteeing fair competition and a level playing field in the internal market, which make it necessary to ensure that road transport operators have a real and continuous presence in the Member State of establishment and conduct their transport business from there. To that end, the EU legislature wished to ‘clarify and strengthen the provisions regarding the existence of an effective and stable establishment while avoiding the imposition of a disproportionate administrative burden’. The objectives pursued seem to me, as the Parliament and the Council claim, to be readily identifiable.

694. The clarification and strengthening of those provisions were achieved by the adoption of several key measures, including that concerning the obligation for vehicles to return and that concerning the obligation for drivers to return. In that regard, it is not correct to maintain that Article 5(1)(g) of Regulation No 1071/2009, as amended by Regulation 2020/1055, duplicates those two preceding obligations. As the Council and the Parliament have emphasised, that article lays down a quantitative requirement of available material and human resources, but is not concerned with either the degree of mobility of vehicles and drivers or of the frequency with which they return, which continues to be governed by Article 5(1)(b) of Regulation No 1071/2009, as amended by Regulation 2020/1055, for vehicles and by Article 8(8a) of Regulation No 561/2006, as amended by Regulation 2020/1054, for drivers. Nor does it follow from Article 5(1)(g) of Regulation No 1071/2009 as thus amended that an ongoing presence of vehicles or drivers in the Member State of establishment is required.

695. The requirements associated with that obligation do not appear to be disproportionate. First of all, the number of vehicles and drivers must be proportionate to the volume of transport operations carried out by the undertaking. It seems difficult at first sight to conclude that a provision that includes an express reference to a proportionate relationship is disproportionate. Next, Article 5(1) (g) of Regulation No 1071/2009 as amended by Regulation 2020/1055, merely requires the use of material and human assets without imposing, for example, the type of legal relationships that must bind the undertaking to its drivers. The Republic of Poland’s criticism regarding the unjustified economic consequences connected with the purchase of vehicles or the recruitment of drivers seems to be unfounded, since it may reasonably be expected of a large majority of hauliers that their activities be already based on material and human resources in sufficient proportions. Last, the argument that Article 5(1)(g) of the amended Regulation No 1071/2009 arbitrarily governs the detailed rules of the organisation of the transport activity is based on a misreading of that article, since, as the Council maintains, that article does not in any way regulate the place where the transport service will be carried out, but tends only to reinforce, for the reasons set out, in particular, in recitals 6 and 8 of Regulation 2020/1055, the link between the undertaking and the Member State of establishment from which it operates. It follows in particular from recital 8 of that regulation that the EU legislature expressly rejected any amendment that had the effect of requiring hauliers to carry out a specific number of operations in the Member State of establishment or of limiting the opportunity for those hauliers to provide services throughout the entire internal market. That being so, it is clear that the obligation laid down in Article 5(1)(g) of Regulation No 1071/2009, as amended by Regulation 2020/1055, according to which, in order to be able to be considered to have an effective and stable establishment in a Member State, an undertaking must, on an ongoing basis, have at its regular disposal a number of vehicles and drivers who are normally based at an operational centre in that Member State, in both cases proportionate to the volume of transport operations carried out by the undertaking, is the result of the implementation by the legislature of its wide discretion in a field in which a balance between diverging interests must be struck.

696.  Last, the EU legislature cannot be accused of having chosen to force hauliers to incur additional expenditure at a time when they were already weakened by the economic consequences linked with the COVID-19 pandemic. First, Regulation 2020/1055 provided that it was to be applicable from 21 February 2022, or more than 18 months after it was adopted at the end of the first wave linked with the outbreak and, second, the condition laid down in Article 5(1)(g) of Regulation No 1071/2009 as amended by Regulation 2020/1055 ultimately merely expresses a condition normally expected of any undertaking operating on the road transport market, with which most such undertakings already complied.

697. Consequently, the plea alleging breach of the principle of proportionality must be rejected as unfounded.

(b)    The plea alleging breach of the principle of legal certainty

(1)    Arguments of the parties

698. After referring to the Court’s case-law, the Republic of Poland maintains that Article 5(1)(g) of Regulation No 1071/2009, as amended by Regulation 2020/1055, because of its vagueness, does not satisfy the requirements of the principle of certainty. The terms contained in that provision are too vague, so that the scope of the obligation that it entails is affected. Undertakings are placed in a situation of legal uncertainty as to whether their actions are consistent with the obligation to have, on an ongoing basis and at their regular disposal, a number of vehicles and drivers who are normally based at an operational centre in that Member State, in both cases proportionate to the volume of transport operations carried out by the undertaking. The fact that it is impossible for undertakings to know whether they satisfy one of the conditions of the pursuit of their activity exposes them to serious legal consequences.

699. First, the criterion relating to drivers and vehicles being normally based at an operational centre in the Member State of establishment is very vague and open to interpretation. As the return of vehicles and drivers is already governed by other provisions, that criterion constitutes a separate requirement, the scope of which is impossible to determine. Second, the criterion relating to the proportionate nature is also very vague and it is impossible to determine specifically the number of vehicles and of drivers to which the provision refers.

700. Last, there is a fundamental difference between Article 5(1)(g) of Regulation No 1071/2009, as amended by Regulation 2020/1055, and Article 5(c) of Regulation No 1071/2009, which provided that the haulier was to conduct its operations from an operational centre situated in the Member State of establishment using the ‘necessary administrative equipment’ and the ‘appropriate technical equipment and facilities’, since that equipment and those facilities are, according to the Republic of Poland, secondary for the transport activity, whereas the question of the number of vehicles and of drivers is critical from the viewpoint of the management of the undertaking. It is therefore particularly essential that the obligation be formulated precisely.

701. The Parliament and the Council submit that this plea must be rejected.

(2)    Analysis

702. It follows from the case-law referred to in point 117 et seq. of this Opinion that in reviewing whether a provision respects the principle of legal certainty it must be ascertained whether that provision displays such ambiguity as to make it difficult for those to whom it is addressed to remove, with sufficient certainty, any doubts as to its scope or its meaning of such a kind that they are unable to resolve unambiguously their rights and obligations.

703. In that regard, I recall that Article 5(1)(g) of Regulation No 1071/2009, as amended by Regulation 2020/1055, lays down one of the conditions of access to the occupation of road transport operator by strengthening the requirement of an effective and stable establishment in the Member State of establishment.

704. First, transport undertakings must have vehicles and drivers at their regular disposal on an ongoing basis. At this stage, I do not identify any difficulty such that those undertakings would not be in a position to understand that they are required to have at their disposal – not to own – the material and human resources necessary for their activity (namely, vehicles and drivers). The meaning of the reference to the human resources being normally based at the operational centre may, if necessary, be made clear by a reading of the Court’s case-law. (428)

705. Second, those undertakings must have those material and human resources at their disposal in numbers ‘proportionate to the volume of transport operations carried out by the undertaking’. It is required of those undertakings that their vehicle fleet be commensurate with the level of their activities, just like their workforce, these being, as the Republic of Poland emphasises, two elements inherent in the activity of road transport operator. The Republic of Poland maintains that the reference to proportionality makes it impossible to determine the number of vehicles and drivers which the undertakings must actually have at their disposal. I think, on the contrary, that as professionals, road transport operators manage the flow of vehicles, on an ongoing basis, by reference to the availability of drivers and have a sufficiently precise idea of the number of vehicles and drivers necessary for their activities. If the EU legislature had framed the obligation laid down in Article 5(1)(g) of Regulation No 1071/2009, as amended by Regulation 2020/1055, in more precise terms, for example by setting a number of vehicles and drivers which undertakings were required to have at their disposal by reference, for example, to their turnover, those undertakings, and the authorities responsible for monitoring compliance with the requirements of Article 5 of Regulation No 1071/2009, as amended by Regulation 2020/1055, would not have had the necessary discretion, and therefore the flexibility, to be able to take any circumstances other than turnover into account. In any event, I recall that it follows from the Court’s case-law that the requirements of the principle of legal certainty cannot be understood as requiring that a norm always refer to the various specific hypotheses in which it applies, given that not all of those hypotheses can be determined in advance by the EU legislature. (429)

706. It thus follows from the analysis that Article 5(1)(g) of Regulation No 1071/2009, as amended by Regulation 2020/1055, appears to be sufficiently clear and precise, and predictable in its effects, for those concerned to be able to ascertain their position in situations and legal relationships governed by EU law.(430) The plea alleging breach of the principle of legal certainty must be rejected as unfounded.

(c)    The plea alleging infringement of Article 11 TFEU and of Article 37 of the Charter

(1)    Arguments of the parties

707. As regards the last plea, and in so far as it is a plea common to all of the contested provisions which has already been summarised, (431) I shall merely state here, in essence, that the Republic of Poland relies on an infringement of Article 11 TFEU and of Article 37 of the Charter owing to the fact that the EU legislature did not take into account the requirements deriving from environmental protection and maintains that the new obligation plays a part in the significant increase in empty journeys, which are not justified from an economic viewpoint. The Republic of Poland maintains that the impact of the implementation of the contested provision was not assessed by the EU legislature, which was thus unable to weigh up the objectives pursued by Regulation 2020/1055 and those derived from environmental protection.

708. The Council and the Parliament contend that this plea must be rejected.

(2)    Analysis

709. As regards the plea alleging infringement of Article 11 TFEU and of Article 37 of the Charter, I shall merely state that the Republic of Poland has not established, beyond the mere assertion of principle, how compliance with the obligation for an undertaking to have at its regular disposal in the Member State of establishment, on an ongoing basis, a number of vehicles that comply with the conditions laid down in point (e) of Article 5 of Regulation No 1071/2009, and of drivers who are normally based at an operational centre in that Member State, proportionate to the volume of transport operations carried out by that undertaking, would require additional journeys, unladen where relevant.

710. The position developed by the Republic of Poland appears to be somewhat contradictory, moreover, in two respects. First, after maintaining that such an obligation would give rise to a significant number of empty journeys, which has a negative effect on the environment, it then maintains at the same time that the purpose of such an obligation is to ensure that the vehicles and their drivers remain in their operational centre and constitutes an ‘absurd obstacle to the pursuit of the transport activity in the light of the underlying logic of that activity’. (432) Second, it seems somewhat paradoxical to maintain an argument that means that, if those empty journeys were economically justified, the compatibility of the provision giving rise to them with Article 11 TFEU and Article 37 of the Charter would no longer be called into question.

711. Furthermore, as regards the alleged absence of an assessment of the impact of point 3 of Article 1 of Regulation 2020/1055, inserting point (g) in Article 5 of Regulation No 1071/2009, which according to the Republic of Poland constitutes an infringement of Article 11 TFEU and of Article 37 of the Charter, I refer to point 570 of this Opinion. I also observe, in the interest of completeness, that the figures provided by the Republic of Poland to demonstrate the negative environmental impact resulting from that new provision relate in fact, virtually exclusively, to an estimate of the environmental impacts resulting from the implementation of the obligation for vehicles to return home every eight weeks.

712. Ultimately, the Republic of Poland’s line of argument seems to be based, as the Council and the Parliament have emphasised, on a misreading of the Article 5(1)(g) of Regulation No 1071/2009, as amended by Regulation 2020/1055, as that provision does not regulate the frequency of the presence of vehicles and drivers at the operational centres, but only the number of vehicles and of drivers based at those centres. In those circumstances, the plea alleging infringement of Article 11 TFEU and of Article 37 of the Charter (433) must be rejected.

(d)    Conclusion

713. The action brought by the Republic of Poland in Case C‑554/20, in that it is directed against point 3 of Article 1 of Regulation 2020/1055 in so far as it introduced Article 5(1)(g) into Regulation No 1071/2009, is rejected.

3.      The waiting period of four days between two periods of cabotage (point 4(a) of Article 2 of Regulation 2020/1055, which introduced paragraph 2a into Article 8 of Regulation No 1072/2009)

714. The Republic of Lithuania, the Republic of Bulgaria, Romania, (434) the Republic of Malta and the Republic of Poland dispute the legality of point 4(a) of Article 2 of Regulation 2020/1055, which, in introducing paragraph 2a into Article 8 of Regulation No 1072/2009, now establishes an obligation for hauliers to observe a waiting period of four days between two periods of permitted cabotage.

(a)    The pleas alleging breach of EU environmental and climate change policy

(1)    Arguments of the parties

715. The Republic of Lithuania develops a line of argument similar to that which it developed in relation to the obligation for vehicles to return home every eight weeks. Thus, it maintains that the imposition of a waiting period of four days infringes Article 3(3) TEU, Articles 11 and 191 TFEU, Article 37 of the Charter and, more generally, EU environmental and climate change policy. Point 4(a) of Article 2 of Regulation 2020/1055 was adopted in breach of the principles governing EU environmental policy, without any impact assessment being carried out and without the negative consequences for environmental protection being assessed. The obligation to ensure that the vehicle leaves the country in which the cabotage operation took place leads to an increase in the number of heavy vehicles travelling empty and therefore in CO2 emissions, as confirmed by studies which put those additional emissions at around 4 million tonnes. (435)

716. Article 3(3) TEU and Articles 11 and 191 TFEU cannot be interpreted as strictly as the Council and the Parliament propose in their defence. Although the legislature may take measures that depart from the environmental protection objectives, those measures cannot, as in this instance, be manifestly incompatible with or contradictory to those objectives, when environmental protection is an imperative requirement. The effect on the environment of the obligation at issue was manifestly underestimated, as evidenced by the conclusions of the impact assessment carried out at the Commission’s initiative after Regulation 2020/1055 entered into force. Having omitted to assess the impact of the provision at issue, the EU legislature did not take account of the fact that, since the requirement to wait must entail a drop in the efficiency of the logistics chain, an increase in the number of heavy vehicles travelling empty, in fuel consumption and in the volume of CO2 discharged would follow. The vehicle waiting time thus clearly constitutes an irrational use of resources and contributes to the negative repercussions of the return of vehicles identified in the impact study carried out by the Commission. Although the Council denies that the waiting period has any effect on the environment, it provides no figures, which shows that the defendant institutions did not have sufficient data available at the time when point 4(a) of Article 2 of Regulation 2020/1055 was adopted.

717. The Republic of Bulgaria has developed a line of argument common to both of the provisions that it has contested on this topic. (436) It maintains that what it designates as the rest period between cabotage operations increases the number of empty trips and limits the cabotage operations, which are nonetheless known to help to reduce empty trips, as the Commission emphasised in its White Paper entitled ‘Roadmap to a Single European Transport Area – Towards a competitive and resource efficient transport system’, (437) calling for the removal of restrictions on cabotage. The waiting period does not bring about a high level of protection and improvement of the quality of the environment, nor does it integrate the requirements linked with environmental protection. Point 4(a) of Article 2 of Regulation2020/1055 is therefore contrary, on the one hand, to Article 90 TFEU, read in conjunction with Article 3(3) TEU and Article 11 TFEU and with Article 37 of the Charter, and, on the other, to Article 3(5) TEU, Article 208(2) TFEU and to Article 216(2) TFEU and to the Paris Agreement.

718. The Republic of Poland has developed a line of argument common to the four provisions that it contests as regards the infringement of Article 11 and Article 37 of the Charter. After referring to the significant part that road transport plays in CO2 emissions and in the discharge of atmospheric pollutants, and to the worrying context of the climate crisis, the Republic of Poland highlights the risks of pollution for human health. It maintains that the defendant institutions ought to have assessed the impact of the provision introducing a waiting period after the end of a cabotage operation carried out in a Member State and ought to have ensured that the proposed measure did not undermine the attainment of the objectives laid down in other acts of secondary law in environmental matters. Where an action is capable of entailing negative environmental consequences, the defendant institutions ought to have weighed up the competing interests and made appropriate amendments or, at least, ensured that that legislative measure will not jeopardise the attainment of the objectives set in the other acts of secondary law adopted in the sphere of the environment. In the Republic of Poland’s submission, the additional restriction placed on cabotage by point 4(a) of Article 2 of Regulation 2020/1055 entails an increase in empty journeys, and therefore an increase in CO2, emissions which is the logical consequence of limiting the advantages in optimising transport operations that cabotage operations bring. The connection between cabotage operations and the reduction of empty trips is also recognised by the legislature itself.

719. The Council, the Parliament and the interveners supporting them submit that these pleas must be rejected.

(2)    Analysis

720. The argument that the waiting period of four days between two periods of permitted cabotage is contrary to environmental policy for the sole reason that such a period reduces the possibility of having recourse to cabotage, although cabotage makes it possible to optimise road transport operations, as the legislature recognised in recital 21 of Regulation 2020/1055, and therefore of limiting its impact on the environment, cannot be upheld, unless it must be considered that the requirements resulting from environmental protection must always prevail over the European Union’s other objectives, which does not follow from either Article 3(3) TEU or Article 11 TFEU, and unless the legislature is to be denied the possibility, within the framework of its wide discretion, of regulating an activity which it has quite consciously refused to liberalise completely, (438) as may be seen from that recital, according to which cabotage operations ‘should be allowed as long as they are not carried out in a way that creates a permanent or continuous activity within the Member State concerned’. I would add that the actual definition of cabotage contains a reference to its temporary nature (439) and that, as the Council has observed, the gains in environmental efficiency linked with cabotage as referred to in Regulation No 1072/2009 make sense only as long as the cabotage activity is not fully liberalised and continues to be linked to international transport, which itself entails a return: cabotage not linked with international transport – that is to say, the possibility for a transport operator established in State A to provide domestic transport services freely in State B – therefore does not play a part in the logistic efficiency of transport or in the effort to rationalise return trips.

721. In addition, the waiting period in itself cannot, contrary to the Republic of Lithuania’s contention, be interpreted as an obligation for the vehicle to return to the Member State in which it is based. If hauliers intend to comply with their obligation to observe a waiting period of four days by having the vehicle return to the haulier’s Member State of establishment, such a choice would be based on considerations linked with the economic efficiency of their activity, but is not as such dictated by Regulation 2020/1055. (440)

722. Last, I note a certain paradox in the line of argument put forward by the Republic of Poland, which complains of the costs of applying the provision resulting from the enforced empty trips made by heavy vehicles, which, moreover, according to the Republic of Poland, if they were not subject to a waiting period of four days between two periods of permitted cabotage, would be carrying out cabotage operations and transport operations between third countries. (441) From a strictly environmental viewpoint, I find it difficult to see how such a situation has the slightest effect on the environment. (442)

723. In any event, as I have already stated, as regards the allegation of an infringement of Article 11 TFEU, the contested provisions of Regulation 2020/1055 cannot be analysed in isolation, but it must follow from an analysis of the entire transport policy that the environmental interests were duly taken into account. I refer here to my reasoning on that point, which applies, mutatis mutandis, to the analysis relating to the waiting period. (443)

724. Otherwise, as regards the scope of Article 37 of the Charter, I refer to point 565 of this Opinion; as regards the complaint based on the absence of an impact assessment, I refer to point 570 of this Opinion; as regards the irrelevance of reliance on Article 191 TFEU, I refer to point 581 of this Opinion; as regards the complaint alleging breach of the Paris Agreement and infringement of Article 3(5) TEU and of Article 208 and Article 216(2) TFEU, I refer to point 586 et seq. of my analysis; last, as regards the question of the relationship with the other acts of secondary law, I refer to point 594 of this Opinion.

725. Having regard to all of the foregoing considerations, it must be concluded that the pleas alleging breach of the EU environmental policy must be rejected as unfounded.

(b)    The pleas alleging breach of the principle of proportionality

(1)    Arguments of the parties

726. The Republic of Lithuania maintains that Article 8(2a) of Regulation No 1072/2009, as amended by Regulation 2020/1055, breaches the principle of proportionality, since the EU legislature adopted that provision without having at its disposal sufficient information about the impact of that provision and without establishing the extent to which the negative effects for economic operators caused by that provision might seem justified.

727. The Republic of Lithuania puts forward, first of all, albeit in the context of a plea distinct from that alleging breach of the principle of proportionality, a number of arguments in connection with a breach of that principle owing to the absence of an impact assessment (444) which should be examined here. It asserts that neither the Commission, nor the Council, nor the Parliament carried out an impact assessment of the amendment introduced by point 4(a) of Article 2 of Regulation 2020/1055. Such a measure did not appear in the Commission’s initial proposal, as the waiting period was added only during the legislative procedure, which constituted a substantial amendment of the Commission’s proposal requiring a new impact assessment. (445)

728. As regards the proportionality of the measure itself, first, the Republic of Lithuania again maintains that the provision is contrary to EU environmental protection policy and to the European Green Deal in the light of the increase in the number of empty trips which the obligation to observe a waiting period of four days entails. Second, Article 8(2a) of Regulation No 1072/2009, as amended by Regulation 2020/1055, is incompatible with the single market and the market for transport services in that it entails the fragmentation of the market, discriminates indirectly against the peripheral and small Member States and did not take account of the significant deterioration of the economic situation of those States. Third, the Commission had identified in its impact assessment a difficulty linked to the vagueness and lack of clarity of the provisions relating to cabotage that were in force before Regulation 2020/1055 was adopted. However, when the Council and the Parliament rejected the provision proposed by the Commission, they did not provide any further information of such a kind as to justify the choice of that measure rather than the measure proposed by the Commission. The objective of adjusting the rules on cabotage and improving the monitoring of their application should be achieved through measures that do not lead to either the creation of artificial barriers to the provision of transport services or an unjustified increase in the administrative and financial burden on undertakings.

729. While it must be recognised that the legislature has a wide discretion, the freedom of the EU legislature is neither absolute nor unlimited. Although the legislature may, in the words of paragraph 15 of the interinstitutional agreement, decide to carry out an impact assessment when it appears to be necessary and appropriate, such an assessment should be based on existing data which objectively ensure that the legislature does not misuse its discretion by adopting unfounded measures, which the Council and the Parliament have not succeeded in establishing.

730. The Republic of Bulgaria maintains that the obligation laid down in Article 8(2a) of Regulation No 1072/2009, as amended by Regulation 2020/1055, breaches the principle of proportionality enshrined in Article 5(4) TEU and in Article 1 of Protocol (No 2) on the application of the principles of subsidiarity and proportionality. In its submission, the Parliament and the Council did not have at their disposal any economic assessments or other data capable of confirming the proportionality of that obligation, which was not part of the Commission’s initial proposal. It was therefore not the subject of an impact assessment, in spite of the repeated requests of certain Member States and the evidence submitted to the Parliament and the Council concerning the disproportionate impact of that measure. There was no consultation with the CoR or the EESC. The defendants are therefore not in a position to show that they effectively exercised their discretion when they adopted an act or were in a position to take into consideration all the relevant elements and circumstances of the situation which that act was intended to govern. The Commission’s impact assessment of 2017 (446) on which the defendant institutions rely is not capable of establishing that the waiting period was proportionate, since it follows from that assessment that such a measure was rejected, not for reasons linked with its technical feasibility but because it was not recognised as making a direct contribution to resolving the dysfunctions then identified.

731. Furthermore, according to recital 20 of Regulation 2020/1055, the waiting period is supposed to maintain the level of liberalisation achieved so far, which cannot be the case since new limits are imposed on cabotage, contrary to the Commission’s recommendation. According to recital 21 of that regulation, cabotage operations would help to increase the load factor of vehicles and reduce empty runs. However, the waiting period introduced in Article 8(2a) of Regulation No 1072/2009, as amended by Regulation 2020/1055, has the opposite effect. That recital also emphasises the objective of ensuring the effectiveness of the establishment, since Regulation 2020/1055 is intended to combat letterbox companies. However, the organisation of a system of nomadic drivers by an undertaking to which vehicles do not return can be distinguished from such fraudulent or abusive practices, as the economic reality of transport services is marked by a high degree of mobility. The restriction of that activity caused by the implementation of the obligation for vehicles to return home every eight weeks does not in any way contribute to a legitimate objective, but calls into question the very essence of economic reality and of the common market for transport. Such an obligation even compels a number of transport undertakings established in the peripheral or island Member States to relocate to a more central Member State or to a third country. The requirements of Article 5 of Regulation No 1071/2009 are already sufficient to ensure the stable and effective nature of the establishment and the limitation of the number of cabotage operations to three over a period of seven days makes it possible to avoid a permanent and continuous activity of the haulier within the territory of the Member State where the cabotage takes place. The waiting period is neither relevant nor necessary in the light of the intrinsically transitional nature of cabotage and of the objective of liberalisation. The Republic of Bulgaria claims that the restrictions on cabotage were lifted in 1993 for air transport, leading to an increase in pilots’ remuneration. The direction taken by regulatory evolution should be towards increased liberalisation. According to the Republic of Bulgaria, the waiting period is a protectionist measure and its effect on the market will be negative. (447) Drivers performing cabotage operations are considered to be posted, and increased liberalisation is therefore not to be feared in terms of social coherence. Cabotage operations represent a very low percentage of domestic transport operations, moreover, and there is thus no objective evidence indicating a noteworthy impact on heavy vehicle drivers if fewer restrictions were applied. (448) Last, the negative environmental consequences of the waiting period exceed the expected beneficial effects of the measure.

732. Romania maintains that point 4(a) of Article 2 of Regulation 2020/1055 (449) does not meet the requirements of the principle of proportionality. In the first place, Romania develops, with respect to that provision, a line of argument analogous to that which it developed with respect to the obligation for vehicles to return home every eight weeks, concerning the absence of an impact assessment. (450)

733. In the second place, Romania maintains that the additional restriction introduced by point 4(a) of Article 2 of Regulation 2020/1055 is neither appropriate nor necessary in order to attain the objective pursued and that it is not the least restrictive measure that could be chosen. Its application causes harm that is disproportionate to the objectives pursued.

734. As regards the objective pursued, it is apparent from recitals 20 and 21 of Regulation 2020/1055. However, point 4(a) of Article 2 of that regulation represents a retrograde step by comparison with the present level of the liberalisation of the market and is liable to create major imbalances in the organisation of the logistics chains of transport companies, increase down time and the number of empty runs and reduce the efficiency of the supply chain, as the Commission report on the state of the road transport market found. Cabotage operations are down by 30%, according to an analysis cited in a report of Transport & Mobility Leuven. (451) So far as the Romanian transport sector is concerned, an increase of 5% of empty runs is expected as a result of the additional restriction. (452) In those circumstances, point 4(a) of Article 2 of Regulation 2020/1055 does not contribute to the objective of increasing the load factor of vehicles and reducing empty runs.

735. As regards the objective of ensuring that cabotage operations are not carried out in a way that creates a permanent or ongoing activity, various assessments have shown that unlawful cabotage represents 0.56% of overall cabotage operations in the European Union but continues to affect certain countries more, with the rates varying between almost zero and 6.4%. (453) Unlawful cabotage results not from the opening of the market but from discrepancies in the application of the existing rules, and the monitoring of compliance with those rules, by the Member States. A legislative initiative aimed at achieving that objective might have consisted in clarifying and facilitating the application of the existing rules by eliminating the restrictions or improving the effectiveness of monitoring. Point 4(a) of Article 2 of Regulation 2020/1055 is manifestly inappropriate and the normative choice is manifestly incorrect.

736. Nor is that provision a necessary measure and it is unjustified owing to its negative impact on, in particular, undertakings in the Member States at the periphery of the European Union (454) owing to the increase in operating costs, limited access to the transport market, a reduction in the number of hauliers and the relocation of companies to the States of the west. Those effects are increased by the coexistence of point 4(a) of Article 2 of Regulation 2020/1055 with the obligation for vehicles to return home every eight weeks. With more particular regard to the Romanian transport sector, which represents one third of total Romanian exports of services, since 46% of the total external trade surplus in services and 77% of total exports of transport services originate in the road freight sector, Romania refers to the estimates in the analysis carried out by the UNTRR and concludes that there is an increase in operating costs and a fall in revenues, an intensification of the crisis of professional drivers, a risk that 8% of companies will cease to trade, a risk that 5% of companies will leave the international transport market, an increase in CO2 emissions, a reduction in the number of employees and pointless additional administrative burdens. Those consequences are even more serious, since the UNTRR analysis preceded the COVID-19 pandemic. The new restriction on cabotage operations indirectly affects a much more significant part of the economies in the Member States of central and Eastern Europe by comparison with the economies of the Member States of Western Europe and, within the former, has a greater effect on SMEs. Those consequences greatly exceed the expected positive effects of that provision and run counter to the objectives of the 2011 White Paper ‘Roadmap to a Single European Transport Area – Towards a competitive and resource efficient transport system’. (455) Romania also maintains that the adoption of point 4(a) of Article 2 of Regulation 2020/1055 is disproportionate by comparison with the considerable number of Member States that are negatively affected by those measures and with the intensity of the negative effects on the situation of citizens and hauliers established in those States.

737. Furthermore, the Council and the Parliament have not described systematic cabotage in similar terms and that practice is not shown to be unlawful. Systematic cabotage is a consequence connected with the large number of cabotage operations carried out by EU-13 hauliers because of the actual structure of the market, but those operations do not constitute a negative element requiring the adoption of restrictive measures. Cabotage operations were initially conceived as types of operations that contribute to the development of the sector, to economic growth and to the efficiency of transport. Cabotage operations that entail a longer presence of the vehicle on the territory of the host Member State meet a genuine demand. In any event, a high number of cabotage operations cannot be treated as the loss of the temporary nature of cabotage since those operations are carried out in accordance with existing, and sufficient, restrictions (one operation in three days or three operations in seven days). Without an analysis of the real impact of systematic cabotage, and without its systematic nature having been established, it cannot be maintained that the waiting period meets a need for balanced regulation at EU level, the advantages of which would exceed the disadvantages caused. The low level of unlawful cabotage (0.56%) does not justify either the need for overregulation or the adoption of additional restrictions. Contrary to the objective of facilitating and clarifying the implementation of rules, the measure creates difficulties for hauliers in terms of compliance and proof.

738. The Republic of Malta maintains that point 4(a) of Article 2 of Regulation 2020/1055 breaches the principle of proportionality because it is not the least onerous measure capable of attaining the objective pursued. That provision also seriously harms Maltese hauliers. The waiting period is not the least onerous measure available in the light of the objective identified in recital 21 of that regulation. The Republic of Malta suggests that Article 2(5) of the Commission’s proposal did not entail a serious limitation on the ability of hauliers to organise their logistics and ensure the proper functioning of their fleet on the continent that point 4(a) of Article 2 of Regulation 2020/1055 entails. The Republic of Malta emphasises that Maltese international hauliers operate on the continent provided that they are not required to take their vehicles to Malta by sea. On the continent, they make use of their freedom of movement without having a specific permanent or ongoing link with other Member States, such as Italy, for example. The physical absence from Malta of Maltese hauliers’ vehicles is attributable to Malta’s situation as an island. The alternative proposed by the Commission, that the last unloading during a cabotage operation takes place within five days of the first loading carried out in in the host Member State during the international transport operation to that State, would make it possible to achieve the same objectives as those pursued by Regulation 2020/1055, but without requiring Maltese hauliers to interrupt all of their operations, artificially and on a regular basis, without a clear and reasonable objective, during the four-day waiting period. The singular geographic characteristics of the island territories were not taken into account. The ex-post assessment of Regulation No 1072/2009 cannot be a substitute for an impact assessment of the waiting period, particularly since some of the assertions that it contains have since been contradicted, notably as regards the limitation of the additional costs entailed by a clarification of the cabotage provisions. In the absence of an impact assessment, the EU legislature has not established how the waiting period is more appropriate, although it is manifestly more restrictive, than the measure initially proposed by the Commission and which, according to the impact assessment, would have made it possible to reduce cabotage operations by 20%. The Republic of Malta is still unaware of the extent to which a balance between the various interests involved was ensured. The waiting period was introduced at a late stage in the legislative procedure, in spite of the absence of an impact assessment, in spite of the fact that some Member States regularly objected to the adoption of such a measure and without the defendant institutions having ever consulted or engaged in a dialogue with the Republic of Malta.

739. The Republic of Poland maintains that point 4(a) of Article 2 of Regulation 2020/1055 introduces an additional limitation on the provision of cabotage services that is based on arbitrary criteria, is not justified by the objectives pursued by that regulation and has negative consequences that largely prevail over the expected beneficial effects.

740. According to the Republic of Poland, there was already a sufficient legal basis, in the form of Article 8(2) of Regulation No 1072/2009 before it was amended, to ensure that the cabotage operation is not carried out in a permanent and continuous manner, and that point 4(a) of Article 2 of Regulation 2020/1055 therefore goes beyond the objective set out in recital 21 of that regulation. It already follows from Article 8(2) of Regulation No 1072/2009 that the provision of cabotage services is precluded if the vehicle enters the territory of the host Member State unladen in the course of an international carriage operation. That provision is sufficient to prevent cabotage operations being carried out in such a way as to create a permanent and continuous activity in the Member States concerned. Without justification in the light of the objective concerned, point 4(a) of Regulation 2020/1055 makes the conditions of cabotage disproportionately more severe and is more the consequence of the EU legislature’s desire to limit cabotage operations as such than of their misuse. Nor is that limitation justified in the light of the advantages of cabotage and its contribution to improving the efficiency of transport referred to in recital 21 of Regulation 2020/1055. The restriction on cabotage is also not justified in the light of the significant negative consequences that it generates for employment, the infrastructures and the environment, owing in particular to the increase in the number of empty runs to which it leads. The real extent of that increase cannot be stated accurately, since the impact assessment did not take such an assessment into account. The EU legislature also failed to take into consideration the particular structure of the market for hauliers, which is composed essentially of SMEs situated at the periphery of the European Union, which feel the full force of the increase in costs created by the limitation of cabotage operations implemented by point 4(a) of Article 2 of Regulation 2020/1055 and are thus more exposed to the risk of bankruptcy. The increase in operating costs also has the effect of increasing the price of goods.

741. The Council and the Parliament and the interveners supporting them submit that these pleas must be rejected.

(2)    Analysis

(i)    The examination by the EU legislature of the proportionality of the waiting period between two periods of cabotage

742. As already observed, the effective exercise of the EU legislature’s discretion presupposes that all the relevant factors and circumstances of the situation that the act which it adopted was intended to regulate were taken into consideration. As regards the EU legislature’s examination of the proportionality of the waiting period between two periods of cabotage, an outline of the history of that arrangement is called for.

743. In the words of Article 91(1)(b) TFEU, the EU legislature, when implementing the common transport policy, must lay down ‘the conditions under which non-resident hauliers may operate transport services within a Member State’. Those conditions, which had thus far been defined by Regulation (EEC) No 3118/93, (456) were amended by Regulation No 1072/2009, recital 15 of which defines cabotage services as ‘the provision of services by hauliers within a Member State in which they are not established’ and authorises those services, in principle, ‘as long as they are not carried out in a way that creates a permanent or continuous activity within that Member State’. (457) For that purpose, the frequency of cabotage operations and the period during which they may be carried out were defined more clearly in Regulation No 1072/2009, when the EU legislature already pointed out the difficulty in ascertaining and guaranteeing the temporary nature of the supply of such services. (458) As the Council has observed, that difficulty had already made it necessary, when Regulation No 3118/93 was in force, for the Commission to adopt an interpretative communication on the temporary nature of road cabotage in the movement of freight. (459) Article 8(2) of Regulation No 1072/2009 thus limited cabotage operations to a period of seven days from the international transport operation and to three operations involving the supply of ‘national’ services during that period.

744. Regulation No 1072/2009 was the subject of an ex-post evaluation (460) that allowed systematic cabotage, consisting in a foreign undertaking spending the majority of its time in another EU country, as long as the haulier carries out an international trip every week, to be identified as an unexpected and unintended consequence of Regulation No 1072/2009. (461) The analysis showed that the definition of temporary cabotage given by Regulation No 1072/2009 did not allow systematic cabotage to be excluded. (462)

745. As the defendant institutions have observed, it follows from those facts, which were well known to the EU legislature when Regulation 2020/1055 was adopted, that the regime established by Regulation No 1072/2009 with respect to cabotage had not sufficiently ensured that cabotage services were provided on a temporary basis.

746. Those factors were duly taken into consideration by the Commission in its Impact assessment – establishment section, which also provided an analysis of the evolution of cabotage operations from a quantitative and geographic viewpoint. In that analysis, the Commission also established a link between the increase in cabotage operations and the systematic, even unlawful, nature of those operations and the risks to fair competition between resident and non-resident hauliers. (463) Although the Commission’s choice finally settled, in its proposal, on a reduction of the period during which cabotage operations, following an international transport operation, were permitted and the removal of the indication of the maximum number of cabotage operations that could be carried out during that period, (464) I note, and agree with the Council and the Parliament, that the Commission had also envisaged the possibility of amending Article 8 of Regulation No 1072/2009 by introducing a waiting period between two periods of cabotage, before rejecting such a possibility owing to the Commission’s doubts as to its political and technical feasibility, (465) doubts which the EU legislature may not have shared. In addition, the Commission stated that it had not identified any particular problems that such a measure would have raised in terms of proportionality (466) and then finally recognised that Article 8(2a) of Regulation No 1072/2009, as amended by Regulation 2020/1055, ‘should improve enforceability of the cabotage rules when compared with the present situation’. (467)

747. It thus follows from the foregoing factors that the EU legislature had at its disposal, when it adopted point 4(a) of Article 2 of Regulation 2020/1055, sufficient information to allow it to assess the proportionality of that obligation in the light of the objective which it intended to pursue, which the Council and the Parliament have established to the requisite standard before the Court. The complaints alleging breach of the principle of proportionality owing to the absence of an impact assessment or the insufficiency of the documentary basis available to the legislature when it exercised its discretion must therefore be rejected as unfounded.

(ii) The proportionate nature of the waiting period of four days between two periods of permitted cabotage

748. Respect for the principle of proportionality requires that point 4(a) of Article 2 of Regulation 2020/1055 must be capable of attaining the objective pursued by that regulation and must not exceed the limits of what is necessary in order to attain that objective, it being understood that the EU legislature is required to have recourse to the appropriate measure that is least restrictive and that the disadvantages caused must not be disproportionate by comparison with the aim pursued. Given the wide discretion that the EU legislature is recognised as having in the areas in which it is called upon to undertake operations and complex evaluations, it is only if that provision is manifestly inappropriate that it can be declared invalid.

749. As regards the objective pursued, I recall that point 4(c) of Article 2 of Regulation 2020/1055 clarified the conditions of the pre-existing cabotage regime laid down in Regulation No 1072/2009 because of its limits and the unexpected and unintended consequences to which it gave rise. According to recital 20 of Regulation 2020/1055, the EU legislature intended to make the rules on national transport performed on a temporary basis by non-resident hauliers in a host Member State clear, simple and easy to enforce, ‘while maintaining the level of liberalisation achieved so far’. Recital 21 of that regulation stated that cabotage operations ‘should be allowed as long as they are not carried out in a way that creates a permanent or continuous activity within the Member State concerned’ and that, in order to ensure that they were not carried out in that way, ‘hauliers should not be allowed to carry out cabotage operations in the same Member State within a certain time after the end of a period of cabotage operations’. First, cabotage operations are not fully liberalised. Second, precise conditions must be defined so that the provision of such operations remains temporary, which point 4(a) of Article 2 of Regulation 2020/1055 was specifically intended to ensure. Like the Council and the Parliament, I recall that the Court has already had occasion to emphasise the necessarily temporary nature of cabotage activities. (468)

750. The Parliament has illustrated the reasons why, according to the legislature, in the exercise of its wide discretion, cabotage operations must still be subject to restrictions. Relying on the Impact assessment – establishment section, that institution has submitted in its written pleadings that the cabotage market is characterised by a significant increase in cabotage operations carried out by EU-13 hauliers, essentially in the EU-15 Member States. That increase appears to be linked to the fact that hauliers from the Member States with low operating costs have a competitive advantage over the national hauliers of the EU-15, which are required to comply with stricter legislation and to bear higher operating costs. The temporary nature of cabotage must therefore be maintained and ensured in order to protect EU-15 hauliers from unfair competition. Thus, the EU legislature made the political choice to strengthen the conditions of temporary cabotage, by seeking a fair balance between access to the national transport markets by non-resident hauliers and the protection of national hauliers exposed to higher operating costs.

751. As regards the necessary and appropriate nature of the waiting period between two periods of cabotage, it is necessary to take account, as the Council and the Parliament have submitted, of the fact that the data at the disposal of the EU legislature indicated that Article 8 of Regulation No 1072/2009 had ultimately allowed non-resident hauliers to organise their operations in such a way as to ensure a permanent or continuous presence in the host Member State. (469) Such an application of that provision placed those operations in a ‘grey area’, as the Parliament describes it, and was clearly contrary to the objective sought that was already emphasised in recitals 13 and 15 of Regulation No 1072/2009.

752. In that regard, the Council points out that, in the Commission’s interpretative communication on the temporary nature of cabotage in the movement of freight, (470) the Commission set out four criteria for ensuring its temporary nature, namely duration, frequency, periodicity and continuity. The Council explains that Regulation No 1072/2009 regulated the duration of the service, cabotage being possible during a period of seven days. The frequency of cabotage operations during that period was also determined, but not the frequency of those seven-day periods. The legislature, in the exercise of its wide discretion, thus considered, without making a manifest error of assessment, that to allow a haulier to begin a new period of seven days during which three cabotage operations would be authorised immediately after the end of a period of that type limited the effectiveness of the cabotage regime and ran counter to the temporary nature of cabotage operations which the legislature wished to continue to ensure. The obligation to observe a ‘cool-off’ period during which no cabotage activity can be carried out appears to be appropriate for the achievement of the objective pursued, which is to ensure the temporary nature of cabotage operations.

753. As regards necessity, both the ex-post assessment of Regulation No 1072/2009 and the Impact assessment – establishment section have been invoked by the Council and the Parliament to shed light on the principal characteristics of the cabotage operations market and identify the problems linked with systematic cabotage, as cabotage operations are not fully liberalised but must be organised in the circumstances defined by the EU legislature, as provided for in Article 91(1)(b) TFEU. It is thus within the wide discretion of the legislature to consider that its intervention is necessary in order to contain the abusive practices of certain hauliers based on the vague or incomplete nature of the existing rules which threaten fair competition, as resident hauliers are faced with what is no longer the temporary but the permanent presence of non-resident hauliers on the domestic transport market.

754. The duration of the waiting period now imposed (four days) does not appear to be excessive since the Council explains that that period must be devoted to organising international transport operations that are the prerequisite of any cabotage operation, as the latter is permitted only because it is linked to the former. In the Impact assessment – establishment section, the Commission had considered that a haulier would still be able to complete 3.33 cabotage periods of seven days during which cabotage operations are authorised, but limited, in a period of 30 days. (471) The Council maintains that the obligation to observe a waiting period of four days should bring that figure down to three periods of seven days in a period of 29 days. (472) Cabotage activities therefore remain possible.

755. Furthermore, it is clear from the wording of point 4(a) of Article 2 of Regulation 2020/1055 that only cabotage operations are prohibited during the four-day waiting period, which is consistent with the objective pursued. Hauliers are not required to immobilise their vehicles during that period, or to bring their activities to a standstill. They are required only to devote those four days to types of transport other than cabotage operations and the interference by the EU legislature with the hauliers’ organisation of their activities therefore does not, contrary to the applicants’ contention, appear to be of such magnitude that point 4(a) of Article 2 of Regulation 2020/1055 is disproportionate.

756. As regards the existence of alternative, less onerous, measures, Article 5 of Regulation No 1071/2009 suggested by the Republic of Bulgaria cannot be accepted, since the objective pursued is that of ensuring that the establishment is effective and stable. The Republic of Bulgaria also suggests the complete liberalisation of cabotage services, in the light of what has already been done in the air transport sector. First, the rules applicable to a sector involving a particular mode of transport cannot be transposed, for the sole reason that it is a transport-related sector, to other modes of transport, as each market is characterised by aspects which are particular to it. (473) Second, in the light of the information contained, in particular, in the impact assessment, it is difficult to imagine how complete liberalisation would be appropriate for ensuring that the interests of EU-15 hauliers are taken into account in the same way as those of EU-13 hauliers. (474) Third, the degree of liberalisation of cabotage operations expresses a political choice, which comes within the wide discretion of the legislature. Last, to suggest the complete liberalisation of the sector as an alternative measure to the waiting period between two periods of cabotage amounts, in fact, to calling into question the very essence of the cabotage regime defined in Regulation No 1072/2009 and disputing its temporary nature.

757. Romania suggests improving the efficiency of the monitoring of the existing limits on the provision of cabotage services. However, as the Council and the Parliament have observed, as systematic cabotage is in a grey area caused by the lack of sufficient precision of Regulation No 1072/2009, the strengthening of controls would not be capable of attaining with the same effectiveness the objective of clarifying, including for the authorities responsible for monitoring, the temporary nature of cabotage.

758. The Republic of Malta maintains that the Commission’s proposal should have been followed. However, that proposal consisted in reducing the period during which cabotage operations were authorised to five days and in removing the reference to the number of cabotage operations that could be carried out during that period. Such an amendment would not have prevented hauliers from linking periods of cabotage and combating systematic cabotage, and would therefore not have been apt to pursue the objective sought.

759. Last, the Republic of Poland’s argument that Article 8(2) of Regulation No 1072/2009 was sufficient as it stood must be rejected, as it manifestly fails to take account of the difficulties associated with systematic cabotage identified, in particular, in the Impact assessment – establishment section, and that it is within the wide discretion of the EU legislature to decide when its intervention is necessary.

760. The applicants have therefore failed to establish the existence of less onerous alternative measures.

761. As regards the disadvantages caused by point 4(a) of Article 2 of Regulation 2020/1055, I recall, as do the defendant institutions, that the only aspect of the cabotage regime examined today is that relating to the obligation to observe a waiting period of four days between two periods of cabotage, so that any argument attempting to widen the debate to the restrictions on cabotage provided for in Article 8 of Regulation No 1072/2009 before it was amended by Regulation 2020/1055 must be considered inadmissible. What falls to be examined here is therefore only the environmental, economic and social impact of the waiting period.

762. From an environmental viewpoint, as stated above, point 4(a) of Article 2 of Regulation 2020/1055 requires hauliers not to organise cabotage operations during that period but does not otherwise govern the use or non-use of vehicles during that period. The wording of that provision does not disclose an obligation to return to the Member State of establishment. The obligation to leave the territory of the host Member State before a new period of cabotage begins following an international transport operation is the consequence of the existing regime put in place by Regulation No 1072/2009.

763. Some of the applicants have maintained that an additional limitation on cabotage operations limits the environmental efficiency of such operations as recognised in recital 21 of Regulation 2020/1055. The limitation of cabotage services entails, in their submission, an increase in empty runs and therefore an unjustified increase, in particular, in CO2 emissions. However, such efficiency cannot prevail over every other consideration, which recital 21 reflects by itself stating that those operations should be allowed as long as they do not lead to a permanent or continuous activity within the Member State concerned. In addition, cabotage operations help to increase the load factor of vehicles and reduce empty runs only in so far as they follow an international transport operation. As the Council has emphasised, the efficiency gains flowing from cabotage are generated only because those operations are associated with a return run. It is therefore wrong to assert that the regime put in place by point 4(a) of Article 2 of Regulation 2020/1055 undermines those efficiency gains, since that provision maintains Article 8(2) of Regulation No 1072/2009, while clarifying it, and its sole effect is that hauliers must refrain from carrying out cabotage operations during a four-day period following the seven-day period during which such operations are authorised. The obligation to observe a waiting period of four days between two periods during which cabotage operations are authorised therefore does not cause manifestly disproportionate harm to the environment.

764. The same must be said with regard to the examination of the economic consequences of point 4(a) of Article 2 of Regulation 2020/1055. Those consequences will clearly be greater for hauliers that did not already comply with the requirements of Regulation No 1072/2009 in relation to cabotage, as seems to be the case, for example, of the Maltese hauliers, as illustrated in the Republic of Malta’s written pleadings. Those consequences therefore do not have their origin in the new obligation laid down in Regulation 2020/1055 but are the consequence of the economic choices of operators to carry out systematic cabotage operations in spite of a clear reference to the temporary nature of those activities that was already set out in Article 2(6) of Regulation No 1072/2009 and of the need, emphasised by the Parliament, to bring their operations in line with the EU rules. Nemo auditur propriam turpitudinem allegans (no one can take advantage of his own turpitude).

765. Furthermore, since the waiting period only requires that hauliers do not organise cabotage operations, they may plan other types of transport operations, so that the economic activity will not be suspended during the four days for which that period lasts. In addition, the impact assessment considered that any impact of the proposed measures would be passed on to the users of the transport services without that impact affecting the final prices of goods, of which transportation represents, still according to the impact assessment, only a small proportion. (475)

766. From a social viewpoint, the impact assessment considered that the reduction to four days of the period during which cabotage operations are authorised and the removal of the maximum limit on cabotage operations authorised during that period, as proposed by the Commission, which were supposed to entail a fall of 20% in cabotage activities, (476) would not have had a major impact on the overall level of transport activity, since that reduction in cabotage activities would enable the balance to tilt in favour of national hauliers, whereas hauliers which had thus far engaged in systematic cabotage would redirect their operations either to national transport in their Member State of establishment or to international transport. (477) It is apparent from the impact assessment that none of the proposed measures should have an impact on the number of jobs available in the road freight transport sector. (478) Such a conclusion may be transposed in the case of point 4(a) of Article 2 of Regulation 2020/1055 since that provision is not a more restrictive measure than that proposed and assessed by the Commission.

767. Last, if the argument developed by some of the applicants must indeed be interpreted as taking issue with the EU legislature for not having taken their particular situations into account, I wish to make three sets of remarks. First, the Court has repeatedly held that the legislature is not required to take into consideration the particular situation of a Member State if the EU measure concerned has an impact in all Member States and requires that a balance between the different interests involved should be ensured and the attempt to strike such a balance, taking into account not the particular situation of a single Member State but that of all EU Member States, cannot, in itself, be regarded as contrary to the principle of proportionality. (479) Second, there is even less need for the legislature to take the particular situation of a Member State into account when that situation is based on a flagrant breach of the EU rules, as is apparent from the Republic of Malta’s description of the activities of the majority of its hauliers. Third, Regulation 2020/1055 did not alter the requirement that the period of permitted cabotage should begin only if there has previously been an international transport operation justifying the vehicle’s presence within the territory of the host Member State and should end with the vehicle leaving that territory, so that the question of Malta’s insularity being taken into account is irrelevant in the context of an action brought against a provision introduced by that regulation.

768. It follows from all of the foregoing considerations that the applicants have not succeeded in establishing the manifestly disproportionate nature of point 4(a) of Article 2 of Regulation 2020/1055. The pleas alleging breach of the principle of proportionality must therefore be rejected as unfounded.

(c)    The pleas alleging infringement of Article 91(2) TFEU and of Article 94 TFEU

(1)    Arguments of the parties

769. The Republic of Lithuania maintains, first, that the institutions did not properly evaluate the situation of the EU transport market and the geographic particularities of the relevant Member States with respect to that market and did not take proper account of the deterioration of the economic situation of hauliers operating from the centre and the periphery of the European Union. It is established that the introduction of the waiting period has, for example, no effect for French hauliers, since their share of cabotage operations in the entire European Union represents less than 1%, in contrast to Polish hauliers (which carry out 40% of cabotage operations in the entire European Union), Romanian hauliers (8.8%) or Lithuanian hauliers (9.2%). The impact assessment puts the fall in the number of cabotage operations at 31% in 2035. (480) Each day of the prohibition on cabotage has a cost, estimated, for example, at EUR 679 for a Belgian haulier, or EUR 96 million per year for the entire Belgian sector. The introduction of the waiting period has the effect of market foreclosure for hauliers from the peripheral and small Member States, market fragmentation and the closure of the market to hauliers established in those Member States.

770. Second, the Republic of Lithuania takes issue with the Council and the Parliament for not having taken account of the fact that the observance of a waiting period between two periods of cabotage would affect the standard of living and level of employment, threatening 35 000 Lithuanian jobs and increasing the gap between the economically least developed Member States and the most developed Member States situated in Western Europe, since the former employ more persons in the transport sector than the latter, which is not disputed by the Council and the Parliament. Those institutions have confirmed that the objective pursued was precisely to reduce the present volume of operations carried out by hauliers established at the centre or the periphery of the European Union.

771. The Republic of Bulgaria raises a plea alleging infringement of Article 91(2) TFEU and Article 90 TFEU in conjunction with Article 3(3) TEU and Article 94 TFEU, common to the obligation for vehicles to return home every eight weeks and to the waiting period of four days between two periods of permitted cabotage. I therefore refer here to point 659 of this Opinion for a summary of the arguments developed by that applicant.

772. The Republic of Malta takes issue with the Parliament and the Council for not having initiated discussions when they introduced point 4(a) of Article 2 of Regulation 2020/1055 capable of shedding light on the reality of the impact of that new obligation on island States like Malta, which are heavily dependent on maritime communications and combined transport itineraries. Compliance with that obligation nonetheless has a serious impact on Maltese hauliers, since they are obliged to freeze their activities arbitrarily. The serious consequences are illustrated in the KPMG (481) report: more onerous logistical measures, increase in unused resources and/or empty runs and therefore costs, damage to the efficiency of operations and increase of the economic pressure on Maltese operators. By threatening the activity of the Maltese international transport sector, point 4(a) of Article 2 of Regulation 2020/1055 fails to comply with the requirements of Article 91(2) TFEU.

773. The Republic of Poland maintains that by limiting cabotage operations on the basis of arbitrary factors without taking account of the situation of hauliers established in the peripheral Member States of the European Union, the EU legislature infringed Article 91(2) TFEU. It refers to the arguments developed in the context of the plea alleging infringement, by the obligation for vehicles to return home every eight weeks, of Article 91(2) TFEU. It does likewise with regard to the plea alleging infringement of Article 94 TFEU, to which I refer.

774. The Council, the Parliament and the interveners supporting them submit that all of those pleas must be rejected.

(2)    Analysis

775. I observe that it follows from point 281 et seq. of this Opinion that Article 91(2) TFEU and Article 94 TFEU required that the EU legislature would take into account the specific parameters and objectives which it pursued and assumed a weighing up of those objectives and the interests involved when adopting point 4(a) of Article 2 of Regulation 2020/1055. Thus, the legislature was required to take account of the harmful effects which the obligation to observe a waiting period of four days between two periods during which cabotage operations are authorised would have on the parameters set out in those two provisions (namely, first, the risk that their application might seriously affect the standard of living and level of employment in certain regions and the operation of transport facilities, and, second, the economic situation of hauliers).

776. It follows from point 742 et seq. of this Opinion that the EU legislature had at its disposal sufficient information to know the structure of the transport market and of cabotage services and to assess the impact of the proposed measure. As the Council, in particular, claims, the profoundly imbalanced nature of the transport market is already clear from a reading of the first page of the impact assessment. That assessment also refers to the asymmetrical effects of the proposed measures. (482) I also observe that the permanent presence of a non-resident haulier within the territory of a host Member State for the purpose of providing national transport services there has never been accepted by the EU legislature, which, at least when Regulation No 1072/2009 was adopted, emphasised the non-permanent nature of such an activity. The Republic of Lithuania’s complaint relating to the absence of an adequate assessment of the situation of the market and of its geographic particularities, the Republic of Malta’s complaint concerning the absence of any discussion and the Republic of Poland’s complaint concerning the arbitrary nature of the elements on which the EU legislature relied must therefore be rejected as unfounded.

777. Furthermore, precisely because the permanent presence of a non-resident haulier within the territory of a host Member State for the purpose of providing national transport services there has never been accepted by the EU legislature, the alleged serious economic consequences will in fact concern only hauliers which engaged in an activity that clearly went beyond the aims pursued by Regulation No 1072/2009. In addition, as the Council observes with respect to the argument put forward by the Republic of Lithuania and based on the additional costs which Belgian hauliers have to bear, most of the serious consequences alleged are based on a misreading of point 4(a) of Article 2 of Regulation 2020/1055, as meaning that no transport activity is authorised during the four-day waiting period, which is not the case. (483) Likewise, the estimate provided by the Commission, on which the Republic of Lithuania also relies, of a reduction of 31% of cabotage activities in 2035 concerns not the addition of a waiting period to the existing regime defined in Regulation No 1072/2009 but, on the contrary, the hypothesis in which the period during which cabotage operations are authorised would be reduced to four days (instead of seven days under Regulation No 1072/2009). (484)

778. As regards the allegation of an effect on the standard of living and the level of employment in certain regions, the applicants have frequently relied on their individual situation, as is the case, in particular, of the Republic of Malta. According to case-law to which ample reference has already been made, the EU legislature is not obliged to take into consideration the particular situation of a Member State if a balance between the different interests involved must be sought. (485) The negative consequences linked with the obligation to observe a waiting period of four days have no connection with Malta’s situation as an island, as the Parliament observes and as I have already stated. (486)

779. In addition, it follows from the information which the Council and the Parliament had at their disposal when they adopted the legislation that they were able, in the exercise of their wide discretion as co-legislators, to consider that the costs linked with the implementation of the obligation to observe a waiting period of four days, even if they would be heavier for hauliers situated at the periphery of the European Union, would be offset by the socio-economic advantages that would result for the entire European Union. The substantial alteration of the model for the provision of road freight services to which the Republic of Poland refers is precisely the effect sought by the EU legislature, not in order to favour EU-15 hauliers but in order to correct a market trend consisting in operating on the basis of profoundly imbalanced structures. The impact assessment emphasised that the expected effect of the obligation of the amendments of the cabotage regime was not a fall in demand for cabotage services but a redeployment of transport services. The argument which the Republic of Poland bases on some incentive for businesses to emigrate against their will must be firmly rejected: relocation is simply a commercial choice made by an undertaking and the obligation to observe a four-day waiting period between two periods during which cabotage operations are authorised does not in any way constitute an incentive to relocate.

780. As regards the Republic of Poland’s complaint alleging failure to take account of the risk of a serious effect on the operation of transport facilities as a result of an increase in empty runs that damage the infrastructures and serve to increase conduct presenting a risk, it must be stated that the existence of such a risk has not been demonstrated. The causal link between the obligation to observe a waiting period of four days and the matters to which the Republic of Poland refers seems to be particularly tenuous and somewhat hypothetical, since it is for each haulier to organise its activities as it sees fit (apart from cabotage activities) during that period.

781. Last, as regard the Republic of Poland’s allegation concerning the EU legislature’s failure to take account of the COVID-19 pandemic, the defendant institutions have properly observed, first, that political agreement on the content of Regulation 2020/1055 was reached on 12 December 2019, or before the crisis connected with that outbreak occurred; second, that the object of that regulation therefore was not and could not be to manage that crisis, which was the subject of specific interventions on the part of the EU legislature; (487) and, third, that Regulation 2020/1055 provided that it was to be applicable only from 21 February 2022. (488) In those circumstances, the complaint alleging failure to take into account the particular situation of hauliers because of the COVID-19 pandemic cannot be upheld.

782. Accordingly, for all of the reasons set out above, the pleas alleging infringement, by point 4(a) of Article 2 of Regulation 2020/1055, of Article 91(2) TFEU and/or Article 94 TFEU must be rejected as unfounded.

(d)    The pleas alleging breach of the principles of equal treatment and non-discrimination

(1)    Arguments of the parties

783. The Republic of Lithuania claims that there is an infringement of Article 26 TFEU and a breach of the general principle of non-discrimination with regard to the waiting period of four days between two periods during which cabotage operations are authorised, because it impedes the functioning of the internal market and limits the efficiency of the logistics chains. It results in a reorganisation of the road transport market that indirectly discriminates against the small peripheral Member States of the European Union and affords the large central Member States of the European Union an unlawful and unjustified advantage solely because of their geographic position.

784. First, the waiting period does not contribute to the attainment of the objective of preventing the distortion of competition and is fundamentally contrary to the principles of the free market. The Republic of Lithuania expected, and it was agreed in the Treaty of Accession of the Republic of Lithuania to the European Union, that its membership of the European Union would result in the market for the carriage of goods by road being opened up to hauliers established in Lithuania. The waiting period is also incompatible with the objectives set by the Commission in its ‘Roadmap to a Single European Transport Area’ (489) of pursuing the abolition of restrictions on cabotage, and fundamentally impedes the proper functioning of the single market and freedom to provide services in the transport sector, while at the same time constituting indirect discrimination against the small peripheral Member States.

785. Second, all restrictions on cabotage in the air sector were lifted in order to stimulate the development of the Community air transport sector and improve the service offered to users. In the road transport sector, on the contrary, the introduction of a waiting period contributes to a retrograde step and to the closing of the market to non-resident hauliers.

786. Third, natural factors were not taken into account, resulting in demand for transport being concentrated in the central and western part of the European Union. The restriction imposed by the waiting period is a deterrent to providing services where, objectively, a larger market and a stronger demand for those services are found. The artificial redistribution to which the waiting period leads and the limitation of hauliers’ commercial opportunities in other Member States give rise to indirect discrimination against the small peripheral Member States.

787. In the reply, the Republic of Lithuania submits that the waiting period is, in its view, contrary to Article 26 TFEU in so far as it reduces the level of liberalisation already achieved, although the Commission had emphasised in the Impact assessment – establishment section that the objective pursued was simply to improve the enforcement of the rules and that it rejected the possibility of introducing a waiting period on the ground that such a period was not a suitable means of resolving the existing problems. The Republic of Lithuania also maintains that the waiting period is contrary to Article 4(2) TEU.

788. Romania has developed a line of argument common to the obligation for vehicles to return home every eight weeks and the waiting period of four days as regards the allegation of a breach of the principle of non-discrimination on grounds of nationality laid down in Article 18 TFEU. I therefore refer, for a summary of those arguments, to point 605 et seq. of this Opinion.

789. The Republic of Malta claims that there is an infringement of Articles 20 and 21 of the Charter and of the principle of non-discrimination in so far as the waiting period treats different situations in the same way, owing to Malta’s island status and its geographic location. Maltese hauliers have no need to return their vehicles to Malta after carrying out three cabotage operations and the waiting period requires them to travel to another Member State or to suspend their activities. The waiting period imposes on those hauliers a de facto suspension of their economic activities. Malta’s singular characteristics were ignored. The Republic of Malta also claims that the waiting period is not to be regarded as a technical measure subject to complex scientific proof and to disputed political choices that justify the recognition of a wide discretion, but constitutes a general rule applicable to all Member States that tends to disregard the specific geographic characteristics of a particular Member State and of its transport sector, imposing unreasonable constraints on the provision of an essential service and giving rise to unfairness as it is imposed on a Member State which is known to be unable, for objective reasons, to comply with it. The Republic of Malta has thus been treated in a discriminatory manner by the Parliament and the Council, without reason and disproportionately. In disregarding the potentially discriminatory effects of the waiting period, the Parliament and the Council infringed Articles 20 and 21 of the Charter and the principle of non-discrimination. In the reply, the Republic of Malta further submits that it is manifestly incorrect to apply to hauliers established in an island Member State the same treatment as that applied to hauliers which are not dependent on a sea leg to conduct their operations, as the situation of island hauliers is not comparable to that of continental hauliers.

790. The Council, the Parliament and the interveners supporting them submit that all of those pleas must be rejected.

(2)    Analysis

791. As regards the arguments alleging infringement of Article 26 TFEU raised by the Republic of Lithuania, I refer to point 678 et seq. of this Opinion.

792. As regards the line of argument developed by Romania, since it is common with the line of argument that it developed in the context of its plea alleging breach, by the obligation for vehicles to return home every eight weeks, of the principles of equality and non-discrimination, I refer to point 609 et seq. of this Opinion.

793. As regards the Republic of Lithuania’s arguments alleging, first, foreclosure of the market, contrary to the requirements of the Accession Treaty, and, second, the incompatibility of the waiting period with the requirements of the Commission’s White Paper to which that applicant refers, (490) I refer to point 618 of this Opinion. As for the argument alleging a difference in treatment by comparison with the treatment afforded to the air transport sector and based on Article 4(2) TEU, I refer to points 619 and 624 of this Opinion.

794. As regards the level of judicial review applicable, as the Republic of Malta disputes the recognition of a wide discretion to the European Union in such matters, such an argument must be rejected, with reference to the case-law already referred to in point 80 of this Opinion.

795. For the remainder, I recall that the implementation of a waiting period of four days between two periods of permitted cabotage pursues the objective of strengthening the temporary nature of cabotage, by seeking a fair balance between access to the domestic transport market by non-resident hauliers, which is still subject to Article 91(1)(b) TFEU, and the protection of national hauliers exposed to higher operating costs. That measure affects all EU hauliers without distinction. It therefore remains to ascertain that the EU legislature did not treat different situations in the same way.

796. The Republic of Malta maintains that its particular situation as an island State was not taken into account by the EU legislature. It must be borne in mind, however, that the legislature was not bound to take that situation into account, since it is the situation of all of the Member States of which the European Union consists that must be taken into account. (491) The Republic of Malta also maintains that the waiting period will have a more serious effect on the island States and that hauliers established on the territory of those States, since they are dependent on a sea leg in order to conduct their operations, cannot be treated in the same way as hauliers established on the territory of a Member State of the ‘continental’ European Union. In that regard, since the waiting period merely reinforces the temporary nature of cabotage operations carried out by non-resident hauliers by requiring that they suspend only their cabotage activity for four days, it is difficult to understand how the island location of a Member State necessarily operates to the disadvantage of hauliers established within its territory. For the reasons set out in point 618 of this Opinion, the EU legislature cannot be criticised for not having taken the specific geographic characteristics of certain Member States into account, since hauliers that will be most affected are those that already circumvented the obligation to respect the temporary nature of cabotage operations. In addition, part of the Republic of Malta’s line of argument is based on a misreading of point 4(a) of Article 2 of Regulation 2020/1055, since that provision does not entail an obligation for the vehicle to return to Malta.

797. The argument put forward by the Republic of Lithuania alleging failure to take account of the natural factors of the market and the allocation of supply and demand on the market must also be rejected, for similar reasons. Since domestic transport is not entirely liberalised, it is difficult to understand why hauliers established in a Member State ‘remote’ from the national market in which they wish to operate should not also be subject to a condition the objective of which is to ensure the temporary nature of cabotage operations. Likewise, the argument alleging an artificial redistribution of the market and the alleged limitation of commercial opportunities for hauliers established in a ‘peripheral’ or ‘small’ Member State are not convincing. First, the question of the definition of such States arises again. (492) Second, the temporary nature of cabotage operations was already established under Regulation No 1072/2009, and that clearly did not prevent those States from having access to the ‘central’ market. Last, in order to avoid the differentiated treatment of non-resident hauliers, which is compatible with primary law, hauliers still have the possibility to make full use of their freedom of establishment and become established in a stable and effective manner within the territory of another Member State.

798. For all of the foregoing reasons, the pleas alleging breach of the principles of equal treatment and non-discrimination must be rejected as unfounded.

(e)    The pleas alleging infringement of Articles 26, 34 to 36 and 58(1) TFEU

(1)    Arguments of the parties

799. The Republic of Lithuania claims that there is an infringement of Article 26 TFEU with regard to the waiting period of four days between two periods during which cabotage operations are authorised, because it impedes the functioning of the internal market and limits the efficiency of the logistics chains. The waiting period is fundamentally contrary to the principles of the free market and fundamentally hinders the proper functioning of the single market and freedom to provide services in the transport sector.

800.  The Republic of Bulgaria maintains that the four-day waiting period between two periods of permitted cabotage considerably restricts the hauliers’ freedom to provide transport services guaranteed to them by the common transport policy, which gives rise to concern given the intrinsically transitory nature of the restrictions imposed on cabotage operations. That period infringes Article 58(1) TFEU in conjunction with Article 91 TFEU. The Council and the Parliament failed to fulfil their obligation to ensure the application of the principles of freedom to provide services through the common transport policy. If the Court should deem it relevant, the Republic of Bulgaria also claims that there is an infringement of Article 56 TFEU. The restriction on freedom to provide transport services represented by the four-day waiting period cannot be justified. Since the Parliament has accepted that international transport was completely liberalised, its position of maintaining that the rules governing the conditions of the liberalisation of that sector cannot infringe freedom to provide services must be rejected.

801. Furthermore, the Republic of Bulgaria maintains that the introduction of a waiting period of four days between two periods of permitted cabotage has serious consequences that will affect the free movement of goods and therefore have effects equivalent to quantitative restrictions prohibited under Articles 34 to 36 TFEU.

802. The Parliament and the Council, and the interveners supporting them, submit that these pleas must be rejected.

(2)    Analysis

803. As regards the complaint alleging infringement of Article 26 TFEU, I recall that point 4(a) of Article 2 of Regulation 2020/1055 cannot be examined by reference to that provision alone. (493) The Republic of Lithuania claims that the introduction of a waiting period of four days between two periods of permitted cabotage treats the small Member States at the periphery of the European Union less favourably. I refer here to my analysis of those arguments in the context of the part devoted to the principles of equal treatment and non-discrimination. (494) As for the Republic of Lithuania’s argument that the waiting period constitutes a barrier to the internal market and is contrary to those principles and hinders the proper functioning of the single market and freedom to provide transport services, it manifestly fails to have regard to the scope of Article 91(1)(b) TFEU.

804. As regards cabotage operations, that is to say, access to the market for national transport operations, the Treaty itself admits differentiated treatment between resident hauliers and non-resident hauliers. The specific purpose of Point 4(a) of Article 2 of Regulation 2020/1055 is to subject non-resident hauliers to a new requirement in order to ensure the temporary nature of cabotage activities, (495) in accordance with the definition given in Article 2(6) of Regulation No 1072/2009, which Regulation 2020/1055 has not amended.

805. The restriction on hauliers’ freedom to provide transport services of which the Republic of Bulgaria complains arises, in fact, from Regulation No 1072/2009 and, even further upstream, from primary law, which authorises the EU legislature to provide for a differentiated regime.

806. I note that the argument which the Republic of Bulgaria derives from the Parliament’s position ignores the fundamental difference between international transport operations and national transport operations. Thus, even if the Parliament considers that international transport operations are completely liberalised, that is clearly not the case with regard to national transport operations, which are at the heart of cabotage operations.

807. As regards the complaint based on infringement of Articles 34 to 36 TFEU, once again, (496) the Republic of Bulgaria merely makes general and vague allegations. In any event, what are alleged to be the restrictive effects of the four-day waiting period between two periods of permitted cabotage clearly appear to be too random and too indirect (497) to substantiate a finding of infringement of those provisions.

808. For all of the foregoing reasons, the pleas alleging infringement of Articles 26, 34 to 36 and 58(1) TFEU must be rejected as unfounded.

(f)    Conclusion

809. The actions brought by the Republic of Lithuania (C‑542/20), the Republic of Bulgaria (C‑545/20), Romania (C‑547/20), (498) the Republic of Malta (C‑552/20) and the Republic of Poland (C‑554/20), in that they are directed against point 4(a) of Article 2 of Regulation 2020/1055, are rejected.

4.      The possibility of making combined transport operations subject to a waiting period (point 5(b) of Article 2 of Regulation 2020/1055 in that it adds paragraph 7 to Article 10 of Regulation No 1072/2009 or the ‘safeguard clause’)

810. The Republic of Poland is the only applicant to challenge the legality of point 5(b) of Article 2 of Regulation 2020/1055, which adds a paragraph 7 to Article 10 of Regulation No 1072/2009. It raises, in that regard, three pleas, the first alleging breach of the principle of proportionality, the second alleging infringement of Article 91(2) TFEU, and the third alleging infringement of Article 94 TFEU. In addition, by means of a common plea developed transversally against all of the provisions of Regulation 2020/1055 contested in the context of its action in Case C‑554/20, the Republic of Poland submits that there is an infringement of Article 11 TFEU and of Article 37 of the Charter.

811. Article 10(7) of Regulation No 1072/2009, as amended by Regulation 2020/1055, provides that, by way of derogation from Article 4 of Directive 92/106/EEC, (499) Member States may, where necessary to avoid misuse of the latter provision through the provision of unlimited and continuous services consisting in initial or final road legs within a host Member State that form part of combined transport operations between Member States, provide that Article 8 of Regulation No 1072/2009, as amended by Regulation 2020/1055, is to apply to hauliers when they carry out such initial and/or final road haulage legs within that Member State, while Member States may provide for a longer period during which cabotage is authorised than the seven-day period provided for in that provision and a shorter waiting period than the four-day period provided for in Article 8.

(a)    The plea alleging breach of the principle of proportionality

(1)    Arguments of the parties

812. As regards the first plea, alleging breach of the principle of proportionality, the Republic of Poland maintains that the limitation of cabotage operations in combined transport constitutes a reversal of the acquis of liberalisation in the provision of services which made it possible, until then, to carry out without limit, subject to compliance with the conditions of access to the occupation and to the market, initial and/or final road haulage legs forming an integral part of combined transport pursuant to Article 4 of Directive 92/106. Such a limitation is based on arbitrary criteria, is not justified by the objectives supposedly pursued by Regulation 2020/1055 and has negative consequences that are disproportionate by comparison with any expected beneficial effects.

813. Recital 22 of Regulation 2020/1055 refers to social dumping, but there is no objective factor capable of justifying differences in economic development between the Member States and the ensuing wage differentials being treated as social dumping, that is to say, an activity carried out at below cost. The considerable room for manoeuvre left to the Member States allows the Member States where demand for transport services is most concentrated to generalise recourse to the safeguard clause and thus to make more stringent the conditions of cabotage laid down in Article 8(2a) of Regulation No 1072/2009, which in the Republic of Poland’s submission is already disproportionate, thus exposing hauliers from the Member States with a weaker level of economic development, which are most frequently constituted in the form of SMEs, to fundamental negative consequences resulting from the limitation of cabotage operations, such as bankruptcy. The impact assessment did not take account of the provision encompassing the safeguard clause and the Commission expressed doubts in that respect. (500) The objective of Directive 92/106, according to Article 3, is to combat road congestion and pollution. The introduction of a derogation such as the safeguard clause is harmful to the road infrastructures and to the environment, since it is common knowledge that cabotage helps to reduce the number of empty runs and optimises the use of hauliers’ fleets. The legislature did not take account of those negative effects and the objective of combating social dumping cannot justify such a limitation of freedom to provide cabotage operations. The legislature did not take the situation of hauliers established at the periphery of the European Union into consideration. The Commission has drawn up a study of the impact of cabotage restrictions on combined transport, (501) which shows that 8% of rail/road operations could be transferred to the road and that a drop of 5% in employment in that sector could be expected. Last, the Republic of Poland maintains that recourse to cabotage was already limited in the pre-existing legislation and makes clear that it is not opposed to combating any abuse, but to the imposition of new restrictions on the exercise of lawful cabotage operations, including in combined transport.

814. The Parliament and the Council contend that this plea must be rejected.

(2)    Analysis

815. I note that this measure was not, as such, the subject of the impact assessment devoted to the proposal for an amendment of Regulation No 1072/2009 contained in Regulation 2020/1055 and was not among the measures set out in the Commission’s proposal for a regulation. However, as the Council has claimed, the Commission had proposed an amendment of Directive 92/106 in 2017, (502) or several months after presenting its proposal for an amendment of Regulations No 1071/2009 and No 1072/2009. Although recital 16 of Regulation No 1072/2009 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 [Regulation No 1072/2009]’, the Commission considered that the definition of combined transport of goods was ‘ambiguous and unclear’ (503) and proposed that it be clarified. The Commission also stated that it took account of the fact that certain participants considered that Directive 92/106 allowed the cabotage rules to be circumvented, because of the difficulty in proving that the operation is part of an international combined transport operation. Difficulties with the transposition of Article 4 of Directive 92/106 and the non-application of the cabotage rules to combined transport operations had been referred to in the REFIT ex-post evaluation of Directive 92/106. (504) Twenty two Member States then completely exempted those operations from compliance with the cabotage rules while five Member States applied the restrictions relating to cabotage to combined transport operations. (505)

816. It follows from those elements that, at the time when it adopted the safeguard clause consisting in Article 10(7) of Regulation No 1072/2009, the EU legislature’s attention had already been drawn to the interlinking problems between the rules laid down in that regulation and Article 4 of Directive 92/106, as may also be seen from recital 22 of Regulation 2020/1055. That recital clearly expresses the EU legislature’s intention that the further liberalisation established by Article 4 of Directive 92/106 should not be misused, although in certain parts of the European Union that provision had been used to ‘circumvent the temporary nature of cabotage and as the basis for the continuous presence of vehicles in a Member State other than that of the establishment of the undertaking’. It is clear upon reading that recital that combating social dumping is not the objective pursued, since that recital does not characterise the competition resulting from that misuse of Article 4 of Directive 92/106 as social dumping, but merely refers to the risk that the practices in question will lead to social dumping. Thus, contrary to the Republic of Poland’s contention, the EU legislature did not consider that the differences in economic development between the Member States of the European Union and the resulting wage differentials constitute social dumping. On the contrary, the EU legislature found that there were unfair practices that, moreover, had the effect of circumventing the rules on cabotage and considered that action was necessary in order to clarify that point and to render the rules coherent.

817. Article 10(7) of the Regulation No 1072/2009, as amended by Regulation 2020/1055, pursues a legitimate objective. It remains to be ascertained whether that provision is appropriate for ensuring the attainment of the objective pursued and does not go beyond what is necessary in order to attain it. In that regard, it must be stated that that Article 10(7) introduces an option for Member States to have recourse to a safeguard clause in well defined circumstances. That option will be exercised only where there is an identified risk of misuse of Article 4 of Directive 92/106. The safeguard measure will consist in making combined transport operations subject to the regime laid down in Article 8(2a) of Regulation No 1072/2009, as amended by Regulation 2020/1055, while the legislature gives the Member States the opportunity to provide for a more favourable regime: the period during which cabotage is authorised may be longer and the waiting period during which cabotage is no longer possible may be shorter than the periods provided for in that Article 8(2a). Each Member State is therefore in a position to adapt its response to the intensity of the problem encountered, in circumstances, as the case may be, that are just as restrictive as the conditions laid down for non-combined transport operations.

818. At the hearing, the defendant institutions informed the Court that three Member States had notified to the Commission their intention to implement the safeguard clause provided for in Article 10(7) of Regulation No 1072/2009, as amended by Regulation 2020/1055. As it is an optional measure, its real effects are therefore particularly difficult to estimate (506) but, even if all the Member States wished to have recourse to it, the implementation of such a clause requires compliance with a number of conditions which act as so many safeguards against any protectionist temptation on the part of any particular country. The safeguard clause as formulated in that Article 10(7) therefore appears to be appropriate for attaining the objective pursued without going beyond what is necessary in order to attain it.

819. Accordingly, for all of the foregoing reasons, the plea alleging breach of the principle of proportionality must be rejected as unfounded.

(b)    The pleas alleging infringement of Article 91(2) and Article 94 TFEU

(1)    Arguments of the parties

820. As regards the second plea, alleging infringement of Article 91(2) TFEU, and the third plea, alleging infringement of Article 94, TFEU, which should be examined together, the Republic of Poland reiterates the argument which it developed in the context of the pleas alleging infringement, by the obligation for vehicles to return home every eight weeks, of Article 91(2) and Article 94 TFEU, in particular as regards the negative impact of the safeguard clause on the operation of transport facilities. With respect to the alleged infringement of Article 94 TFEU, the Republic of Poland claims that the expression ‘social dumping’ underlying the contested provisions also demonstrates the failure to take the situation of hauliers situated in the Member States at the periphery of the European Union into account and maintains that the desire to ensure absolute equality between the conditions of competition is logically contrary to the very concept of competition. The EU legislature’s efforts to limit the participation of undertakings established in the less developed Member States in the provision of cabotage services demonstrates the failure to take into consideration, in the light of competition law, the undertakings’ economic situation.

821. The Parliament and the Council submit that those pleas must be rejected.

(2)    Analysis

822. By merely reiterating the line of argument which it developed in the context of its pleas alleging infringement, by the obligation for vehicles to return home every eight weeks, of Article 91(2) and Article 94 TFEU, the Republic of Poland has not established how, seen in isolation, the mere opportunity afforded to the Member States to make combined transport operations subject to the obligation to observe a waiting period is capable of seriously affecting the standard of living and the level of employment in certain regions or the operation of transport facilities (Article 91(2) TFEU), or constitutes a ‘measure taken … in respect of transport rates and conditions’, the adoption of which required that the circumstances of hauliers be taken into account (Article 94 TFEU).

823. As regards the serious effect on the standard of living and level of employment and the operation of transport facilities, such complaints must be rejected, since it has already been established that point 5(b) of Article 2 of Regulation 2020/1055 established only a mere option for Member States, the exercise of which is subject to clear and precise conditions. On the day of the hearing, only three Member States had, according to the oral submissions of the defendant institutions, manifested their intention of implementing that option. The increase in the number of empty runs, the overburdening and deterioration of the road infrastructures to which the Republic of Poland refers are merely unsubstantiated speculation when the real scope of that provision is considered.

824. As regards the circumstances of hauliers being taken into account, while point 5(b) of Article 2 of Regulation 2020/1055 enshrined a measure relating to the circumstances of transport, it must be stated that it follows from points 815 and 816 of this Opinion that the EU legislature was sufficiently informed of the implications of a clarification of the rules applicable to combined transport operations to ensure that such operations would not be used to circumvent the temporary nature imposed on cabotage operations by Regulation No 1072/009 and that, in the exercise of its wide discretion, it took precisely the circumstances of all hauliers into account.

825. Last, as regards the argument derived from the reference to social dumping in recital 22 of Regulation 2020/1055, I refer to point 816 of this Opinion. As for the argument that the EU legislature employs its efforts with the aim of limiting the participation of undertakings established in the less developed Member States in the provision of cabotage services, it should again be borne in mind that the only undertakings to which point 5(b) of Regulation 2020/1055 refers are those which, in having recourse to combined transport operations, took advantage of those operations to circumvent the prohibition on systematic cabotage and that the EU legislature’s sole intention is to provide the market with the necessary instruments to correct any dysfunctions.

826. The pleas alleging infringement of Article 91(2) and Article 94 TFEU must be rejected as unfounded.

(c)    The plea alleging infringement of Article 11 TFEU and Article 37 of the Charter

(1)    Arguments of the parties

827. By means of a common plea developed transversally for all the contested provisions of Regulation 2020/1055 in its action in Case C‑554/20, the Republic of Poland also maintains that point 5(b) of Article 2 of that regulation infringes Article 11 TFEU and Article 37 of the Charter and contradicts the European Green Deal. The Republic of Poland maintains that the 2021 Ricardo study and the study on the provision introducing a restriction on the supply of cabotage services in the context of combined transport operations (507) both confirm that the environmental impact of the latter provision had not been assessed at the time when it was adopted and that its impact was negative.

828. The Council and the Parliament submit that all of those pleas must be rejected as unfounded.

(2)    Analysis

829. I recall that the new paragraph 7 introduced by Regulation 2020/1055 to Article 10 of Regulation No 1072/2009 provides that Member States may, where necessary to avoid misuse of Article 4 of the amended Directive 92/106 through the provision of unlimited and continuous services consisting in initial or final road legs within a host Member State that form part of combined transport operations between Member States, provide that Article 8 of Regulation No 1072/2009 defining the general principles of cabotage is to apply also to combined transport operations, while Member States may provide for a longer period than the seven-day period during which cabotage is authorised following an international transport operation and a shorter period than the four-day waiting period during which cabotage operations are prohibited. (508) Member States that choose to implement with regard to combined transport operations the safeguard provided for in Article 10(1) of Regulation No 1072/2009, as amended by Regulation 2020/1055, must notify the Commission beforehand and are required to review the measures adopted for that purpose at least every five years. They are also required to make those measures public.

830. The new paragraph 7 of Article 10 of Regulation No 1072/2009 therefore has the immediate effect of permitting the Member States, where they deem it necessary but with a view to attaining a precisely defined purpose, to extend the application of the waiting period during which hauliers must refrain from carrying out transport operations internal to the Member States on whose territory they have arrived. (509) At the hearing before the Court, the defendant institutions stated that only three Member States had, on the day of the hearing, notified to the Commission their intention to make use of that opportunity. The fact that paragraph 7 of Article 10 of Regulation No 1072/2009 establishes an option – the extent to which it will be implemented being impossible to know in advance – and leaves to the Member States a certain discretion as to the definition of the circumstances in which that limitation on cabotage will be applied, renders its examination by reference to Article 11 TFEU and Article 37 of the Charter somewhat uncertain. (510) Nonetheless, that new provision illustrates, in the light of the problems identified and the legislative solution proposed, that the EU legislature weighed up the diverging interests, as it permits a differentiated answer to a problem that does not arise with the same intensity throughout the European Union.

831. In any event, I refer to the following points of this Opinion: on the question of the scope of Article 37 of the Charter, to point 565 of this Opinion; on the scope of the examination under Article 11 TFEU, to point 567 et seq; on the complaint based on the absence of an impact assessment, to point 570; on the complaint alleging a contradiction with the objectives pursued by the European Green Pact, to point 594; and on the complaint based on the probative character of the studies carried out after the adoption of point 5(b) of Article 2 of Regulation 2020/1055, to point 580.

832. Accordingly, the plea alleging infringement, by point 5(b) of Article 2 of Regulation 2020/1055, of Article 11 TFEU and of Article 37 of the Charter, and a contradiction with the objectives of the European Green Deal must be rejected as unfounded.

(d)    Conclusion

833. The action brought by the Republic of Poland in Case C‑554/20, in that it is directed against point 5(b) of Article 2 of Regulation 2020/1055, is rejected.

 5.      Conclusion on the actions concerning Regulation 2020/1055

834. In the light of the foregoing analysis, I propose that the Court uphold, in so far as they seek annulment of Article 1(3) of Regulation No 2020/1055 in so far as it amends Article 5(1)(b) of Regulation No 1071/2009, the action brought by the Republic of Lithuania in Case C‑542/20, the action brought by the Republic of Bulgaria in Case C‑545/20, the action brought by the Republic of Romania in Case C‑547/20, the action brought by the Republic of Hungary in Case C‑551/20, the action brought by the Republic of Malta in Case C‑552/20 and the action brought by the Republic of Poland in Case C‑554/20. The action brought by the Republic of Cyprus in Case C‑549/20 should be upheld in its entirety.

D.      Directive 2020/1057

1.      Preliminary observations

835. The actions brought by six Member States, namely the Republic of Lithuania (Case C‑541/20), the Republic of Bulgaria (Case C‑544/20), Romania (Case C‑548/20), the Republic of Cyprus (Case C‑550/20), Hungary (Case C‑551/20) and the Republic of Poland (Case C‑553/20) are directed against Directive 2020/1057. Those Member States ask the Court to annul either that directive in its entirety (primarily or in the alternative) or certain provisions of that directive.

836. Thus, first, by their actions, the Republic of Bulgaria and the Republic of Cyprus ask the Court to annul Directive 2020/1057 in its entirety.

837. Second, the actions brought by the Republic of Lithuania, Romania, Hungary and the Republic of Poland seek annulment of Article 1 of Directive 2020/1057, relating to specific rules on the posting of drivers. More specifically, Hungary seeks, primarily, annulment of that article in its entirety; the Republic of Lithuania, Romania and the Republic of Poland, and Hungary in the alternative, seek – as will be described in detail in point 869 below – annulment of certain paragraphs of that article. In the alternative, the Republic of Lithuania, Romania and the Republic of Poland seek annulment of Directive 2020/1057 in its entirety.

838. Third, and last, the Republic of Poland seeks annulment of Article 9(1) of Directive 2020/1057, concerning the period prescribed for the transposition of that directive.

839. Before analysing the various pleas raised by those six Member States in support of their actions, I consider it appropriate, first of all, by way of introduction, to present the provisions of Directive 2020/1057 and, in particular, those relating to the specific rules on the posting of drivers, set out in Article 1 of that directive. Next, it will also be necessary, still by way of introduction, to clarify the scope of the actions brought by the Republic of Bulgaria and the Republic of Cyprus, in Cases C‑544/20 and C‑550/20, respectively.

(a)    Directive 2020/1057 and the rules laid down therein on the posting of drivers

840. As may be seen from its title, Directive 2020/1057 is intended, in essence, to regulate two main subjects: first, it lays down specific rules with respect to Directive 97/61/EC (511) and Directive 2014/67/EU (512) for posting drivers in the road transport sector; and, second, it amends, as regards enforcement requirements, Directive 2006/22/EC (513) laying down the minimum conditions to be fulfilled concerning social legislation relating to road transport activities, and Regulation 1024/2012 (514) on administrative cooperation through the Internal Market Information System. As the actions in question brought by the six Member States do not relate to the second subject covered by Directive 2020/1057, it is appropriate to focus on the analysis of the first subject.

841. As is apparent from paragraph 1 thereof, Article 1 of Directive 2020/1057 establishes specific rules as regards the posting of drivers in the road transport sector as regards certain aspects relating to administrative requirements and control measures for the posting of those drivers.

842. Recital 1 of that directive states that the establishment of such specific rules aims to ‘ensure adequate working conditions and social protection for drivers, on the one hand, and suitable conditions for business and for fair competition for road transport operators … on the other’, in order to ‘create a safe, efficient and socially responsible road transport sector’. Those sector-specific rules are thus designed to ‘ensure a balance between the freedom of operators to provide cross-border services, free movement of goods, adequate working conditions and social protection for drivers’, taking into account the ‘high degree of mobility of the workforce in the road transport sector’.

843. As I observed in points 38 to 51 above, the transport sector is characterised by special aspects, one of them, among the most important, being the extreme mobility of the workforce. Thus, in that sector, contrary to the situation in other sectors, workers, namely drivers, are generally not posted to another Member State under service contracts for long periods of time, (515) but pursue an occupation characterised by almost continuous mobility.

844. In those circumstances, as stated in recital 8 of Directive 2020/1057, in the light of the particularities of the road transport sector, the sector-specific rules established by Directive 2020/1057 are intended to clarify the circumstances in that drivers are not subject to the general rules on the posting of workers in the context of the provision of services, established by Directive 96/71, that apply, as a general rule, in all economic sectors. (516)

845. It follows from recital 9 of Directive 2020/1057 that the EU legislature decided to base those sector-specific rules on posting on the criterion of the existence of a ‘sufficient connection’ between the driver and the service provided within the territory of a host Member State. To that end, ‘to facilitate enforcement of those [sector-specific] rules’, the legislature drew a distinction between ‘different types of transport operations depending on the degree of connection with the territory of the host Member State’.

846. Thus, Article 1 of Directive 2020/1057, in paragraphs 3 to 7, read in the light of recitals 7 to 13 of that directive, differentiates, for the purposes of determining the posting of drivers, between five types of international road transport operations, and specifically between: bilateral transport operations; transit; combined transport operations; cabotage; and non-bilateral international transport operations (also called ‘cross trade’).

847. As regards, in the first place, ‘bilateral transport’ operations, these are transport operations from the Member State where the transport undertaking is established to the territory of a Member State or a third country or, conversely, transport operations from a Member State or a third country to the Member State of establishment of the transport undertaking. (517)

848. In the words of the first subparagraph of paragraph 2 and the first subparagraph of paragraph 3 of Article 1 of Directive 2020/1057, when performing bilateral transport operations in respect of goods and passengers, respectively, a driver is not to be considered to be posted for the purposes of Directive 96/71.

849. Recital 10 of Directive 2020/1057 explains that ‘when a driver engages in bilateral transport operations from the Member State where the undertaking is established (the “Member State of establishment”) to the territory of another Member State or a third country or back to the Member State of establishment, the nature of the service is closely linked with the Member State of establishment. It is possible that a driver undertakes several bilateral transport operations during one journey. It would be a disproportionate restriction to the freedom to provide cross-border road transport services if the posting rules, and therefore the terms and conditions of employment guaranteed in the host Member State, would apply to such bilateral operations’.

850. In subsequent subparagraphs of paragraphs 3 and 4 of Article 1, Directive 2020/1057 then sets out exemptions for additional activities, both for bilateral transport operations in respect of goods and bilateral transport operations in respect of passengers. (518)

851. As regards, in the second place, transit, this involves transport operations in which the driver crosses the territory of a Member State without loading or unloading goods and without picking up or setting down passengers. (519) Owing to the absence of a significant link between the driver’s activities and the Member State transited, (520) Article 1(5) of Directive 2020/1057 provides that when the driver transits through the territory of a Member State without loading or unloading freight and without picking up or setting down passengers, a driver is not to be considered to be posted for the purposes of Directive 96/71.

852. As regards, in the third place, combined transport, it is defined in the second subparagraph of Article 1 of Directive 92/106/EEC, (521) to which Directive 2020/1057 makes express reference. It consists, in essence, in the transport of goods between Member States where the lorry, or the other means of transport connected to the lorry, uses the road for the initial or final leg of the journey and, on the other leg, rail or inland waterway or maritime services. (522)

853. For this type of transport operation, as is clear from recital 12 of Directive 2020/1057, the legislature considered that ‘when a driver is engaged in a combined transport operation, the nature of the service provided during the initial or final road leg is closely linked with the Member State of establishment if the road leg on its own is a bilateral transport operation. By contrast, when the transport operation during the road leg is carried out within the host Member State or as a non-bilateral international transport operation, there is a sufficient connection with the territory of a host Member State and therefore the posting rules should apply’.

854. Thus, paragraph 6 of Article 1 of Directive 2020/1057 provides that a driver is not to be considered to be posted when performing the initial or final leg of a combined transport operation if the road leg on its own consists of bilateral transport operations.

855. As regards, in the fourth place, cabotage, as is apparent from point 742 et seq. of this Opinion, Regulation No 1072/2009, in recital 15, defines cabotage operations as ‘the provision of services by hauliers within a Member State in which they are not established’ (523) and authorises them in principle ‘as long as they are not carried out in a way that creates a permanent or continuous activity within that Member State’. (524) To that end, the frequency of cabotage operations and the duration of the period during which they may be carried out were defined more clearly in Article 8(2) of Regulation No 1072/2009 before it was amended, in the circumstances examined above, (525) by Regulation 2020/1055.

856. It follows from recital 13 of Directive 2020/1057 that the legislature considered that where a driver performs cabotage operations, there is a sufficient connection to the territory of the host Member State, since the entire transport operation takes place in that Member State and the service is thus closely linked to the territory of that Member State.

857. Thus, paragraph 7 of Article 1 of Directive 2020/1057 provides that a driver performing cabotage operations is to be considered to be posted under Directive 96/71.

858. As regards, in the fifth place, ‘non-bilateral international transport operations’ (also called ‘cross trade operations’), it follows from recital 13 of Directive 2020/1057 that they are characterised by the fact that the driver performs international transport operations outside the Member State of establishment of the undertaking making the posting. The transport operations are therefore performed from a Member State that is different from the transport undertaking’s Member State of establishment or from a third country, to the territory of another Member State that is also different from that Member State of establishment or to the territory of a third country.

859. In recital 13 the legislature explained that where a driver performs non-bilateral international transport operations, since that type of operations is characterised by the fact that the driver is engaged in international carriage outside the Member State of establishment of the undertaking making the posting, the services performed are linked with the host Member States concerned rather than with the Member State of establishment. The legislature thus considered that in those cases sector-specific rules are required only with regard to the administrative requirements and control measures. Consequently, unlike the situation regarding the other types of transport operations referred to above, as regards cross trade operations, Article 1 of Directive 2020/1057 does not contain a paragraph regulating the posting of drivers for that type of transport operation.

(b)    The scope of the actions brought by the Republic of Bulgaria and the Republic of Cyprus in Cases C‑544/20 and C‑550/20, respectively 

860. As a preliminary point, it is further necessary to clarify the scope of the actions in Cases C‑544/20 and C‑550/20 – actions that are virtually identical – brought by the Republic of Bulgaria and the Republic of Cyprus. In those actions, those two Member States ask the Court to annul Directive 2020/1057 in its entirety.

861. The Parliament and the Council contend, however, that the actions brought by those two Member States raise arguments that address only Article 1 of that directive and do not concern the rest of the directive.

862. In that regard, it should be borne in mind that it follows from the case-law that annulment of a measure in its entirety is not acceptable where it is obvious that, being directed only at a specific part of the contested measure, a plea can provide a basis for only a partial annulment. The mere fact that the Court of the European Union finds that a plea relied on by the applicant in support of an action for annulment is well found does not automatically enable it to annul the contested measure in its entirety. (526)

863. However, partial annulment of an act of EU law is possible only if the elements that it is sought to have annulled can be severed from the remainder of the measure. That requirement is not satisfied where the partial annulment of a measure would cause the substance of that measure to be altered, a point that must be determined based on an objective criterion and not of a subjective criterion linked to the political intention of the authority that adopted the measure at issue. (527)

864. In this instance, in their two actions in Cases C‑544/20 and C‑550/20, the Republic of Bulgaria and the Republic of Cyprus contest what they call the ‘hybrid model’ put in place by Directive 2020/1057. As is apparent from their actions, that hybrid model consists ‘in applying to cross trade, without a time threshold, the rules on posting, while exempting bilateral transport from those rules’. (528)

865. In support of their actions, those two Member States raise five pleas alleging, first, breach of the principle of proportionality; second, breach of the principle of equal treatment; third, infringement of Article 91(1) TFEU; fourth, infringement of Article 91(2) TFEU, Article 90 TFEU in conjunction with Article 3(3) TEU and Article 94 TFEU; and, fifth, infringement of the Treaty provisions on the free movement of goods and services and the common transport policy.

866. As stated in point 840 above, Directive 2020/1057 aims, in essence, to regulate two main subjects. In particular, in the context of the first of those subjects, as I observed in point 845 et seq. above, Directive 2020/1057, specifically in Article 1(3) to (7), read in the light of recitals 10 to 13, is intended to establish specific rules with respect to the posting of drivers in the road transport sector, by distinguishing between different types of transport operations depending on the degree of connection with the territory of the host Member State.

867. In those circumstances, it must be stated that the actions brought by the Republic of Bulgaria and the Republic of Cyprus are aimed exclusively at the first subject regulated by Directive 2020/1057 and at only two of the five types of transport operations referred to in Article 1 of that directive. It follows that, even if the Court were to uphold one or all of the pleas that those two Member States raise in their actions, the consequence would, at most, be the annulment of Directive 2020/1057 in so far as it regulates posting for the two types of transport referred to in the arguments put forward by those two Member States, namely bilateral transport and cross trade operations. In accordance with the case-law referred to in points 862 and 863 above, such annulment cannot be extended to the regulations laid down in the directive concerning the other types of transport, still less to the other provisions of Directive 2020/1057. (529) It follows that, as concerns the latter aspects, the actions brought by the Republic of Bulgaria and the Republic of Cyprus must be dismissed.

2.      The pleas relating to the specific rules on the posting of drivers

(a)    Preliminary observations

868. All six Member States that have challenged Directive 2020/1057 contest the provisions of that directive relating to the specific rules, contained in particular in Article 1 of that directive, on the posting of drivers.

869. More specifically, in Case C‑541/20, the Republic of Lithuania seeks annulment of Article 1(3) and (7) of Directive 2020/1057, concerning, respectively, bilateral transport operations with respect to goods and cabotage. In Case C‑548/20, Romania seeks annulment of Article 1(3) to (6) of Directive 2020/1057, concerning, respectively, bilateral transport operations with respect to goods and passengers, transit and combined transport. In Case C‑551/20, Hungary seeks, primarily, annulment of that article in its entirety and, in the alternative, annulment of Article 1(6) of Directive 2020/1057, concerning combined transport. In Case C‑555/20, the Republic of Poland requests annulment of Article 1(3), (4), (6) and (7) of Directive 2020/1057, concerning, respectively, bilateral transport operations with respect to goods and with respect to passengers, combined transport and cabotage. As regards the actions brought by the Republic of Bulgaria and the Republic of Cyprus, respectively, in Cases C‑544/20 and C‑550/20, as was made clear in points 860 to 867 above, they are aimed at the rules of Directive 2020/1057 concerning bilateral transport operations and cross trade.

870. In order to be able to analyse the various pleas raised by those Member States against those specific rules, it is appropriate to present the jurisprudential framework to which those rules belong.

(b)    The Court’s case-law on the posting of drivers in the road transport sector

871. As I observed in point 845 above, within the framework of Directive 2020/1057, the EU legislature based the sector-specific rules on the posting of drivers in the road transport sector on the criterion of the existence of a ‘sufficient connection’ between the driver and the service provided on the territory of a host Member State.

872. In doing so, the legislature applied the criterion developed by the Court in its case-law concerning the applicability of Directive 96/71.  In the judgment of 19 December 2019, Dobersberger (C‑16/18, EU:C:2019:1110), the Court stated that a worker cannot, in the light of Directive 96/71, be considered to be posted to the territory of a Member State unless the performance of his or her work has a ‘sufficient connection’ with that territory. (530) On the other hand, a worker cannot be considered to be ‘posted’, within the meaning of Directive 96/71, if the provision of services by that worker in the territory of the Member State to which he or she is sent is very limited. (531)

873. The Court then provided clarification with respect to the analysis that must be carried out in order to determine whether that ‘sufficient connection’ exists. Thus, that analysis presupposes that an overall assessment of all the factors, that characterise the activity of the worker concerned, is carried out. Furthermore, the existence of such a connection with the territory concerned may become apparent, in particular, from the characteristics of the provision of services to which the worker in question is assigned. The nature of the activities carried out by that worker in the territory of the Member State concerned also constitutes a relevant factor for the purposes of determining whether such a connection exists. (532)

874. In the subsequent judgment, of 1 December 2020, Federatie Nederlandse Vakbeweging – delivered after Directive 2020/1057 was adopted and while the written procedure in the cases forming the subject matter of this Opinion was in progress – the Court, in addition, provided a whole series of significant clarifications concerning the legal regime relating to the posting of mobile workers such as drivers working in international transport under Directive 96/71.

875. Thus, in that judgment, the Court, in the first place, made clear that Directive 96/71 is applicable to the transnational provision of services in the road transport sector, with the exception of the provision of services involving merchant navy seagoing personnel – which is expressly excluded by Article 1(2) of Directive 96/71, and that the directive applies, as a rule, to any transnational provision of services involving the posting of workers, irrespective of the economic sector to which that provision of services relates, including, therefore, in the road transport sector. (533)

876. In the second place, in that judgment the Court clarified the criteria for determining the existence of a ‘sufficient connection’ with the territory of a Member State for mobile workers, such as drivers working in international road transport. (534) Thus, as regards those workers, the Court considered that the degree of connection between the activities carried out by such a worker, in the framework of the provision of the transport service to which that worker has been assigned, and the territory of each Member State concerned is relevant for the purposes of the existence of a ‘sufficient connection’ with the territory. It then considered that the same is true of the proportion represented by those activities in the entire service provision in question and that, in that regard, operations involving loading or unloading goods, maintenance or cleaning of transport vehicles are relevant provided that they are actually carried out by the driver concerned, and not by third parties.

877. In the third place, in the judgment in Federatie Nederlandse Vakbeweging, the Court also laid down precise criteria as to the existence of a ‘sufficient connection’ for certain specific types of international road transport operations. Thus, first, the Court considered that a driver who, in the course of goods transport by road, merely transits through the territory of a Member State, cannot be regarded as ‘posted’ within the meaning of Directive 96/71, since he or she provides very limited services in the territory of the Member State to which he or she is sent. (535) The Court therefore precluded the existence of a ‘sufficient connection’ with the territory of the host Member State with respect to transit,  as referred to in point 851 above.

878. Second, the Court considered that the same applies to a driver carrying out only cross-border transport operations from the Member State where the transport undertaking is established to the territory of another Member State or vice versa. (536) The Court therefore held that a driver carrying out ‘bilateral transport’ operations, as referred to in point 847 above, cannot be regarded as being ‘posted’.

879. Third, the Court also held that the fact that cabotage transport operations take place entirely within the territory of the host Member State permits the inference that the driver’s performance of his or her work in the course of such operations has a sufficient connection with that territory. (537) The Court therefore held that a driver carrying out cabotage operations, as referred to in point 855 above, must, as a general rule, be considered to be posted to the territory of the host Member State for the purposes of Directive 96/71.

880. In the same context, the Court also considered that the duration of the cabotage operations is not capable, as such, of calling into question the existence of a sufficient connection between the performance of the work of the driver carrying out those operations and the territory of the host Member State. (538)

881. It is therefore against the background of that case-law that the pleas relating to the specific rules of Directive 2020/1057 concerning the posting of drivers must be analysed.

(c)    The plea relating to the non-applicability of Directive 96/71 to drivers in the road transport sector

(1)    The parties’ arguments

882. In the form of order that it primarily seeks in Case C‑551/20, namely annulment of Article 1 of Directive 2020/1057 in its entirety, Hungary, supported by the Republic of Estonia, the Republic of Latvia and Romania, claims that the ‘specific rules’ referred to in that article are unlawful, in that drivers carrying out international transport operations by road generally do not come within the scope of Directive 96/71 on the posting of workers, having regard to the particular characteristics of the activity that they carry out.

883. In the first place, under Article 1(3)(a) of Directive 96/71 – to which Directive 2020/1057 refers in Article 1(2) – the applicability of the posting regime to drivers carrying out an international transport activity by road can be envisaged only where there is a contractual relationship between the transport undertaking that employs them and the person to whom the consignment is sent. Such a contractual relationship is not usual in the context of contracts for transport. In accordance with Directive 2020/1057, there is no need whatsoever for a contract to be concluded between the expediting undertaking and the recipient undertaking in order for a posting to exist. It is sufficient for the driver to cross a national border. It follows that the rules on posting are based on a logic that is wholly alien to the logic of international transport activities, so that, according to the Hungarian Government, they are not applicable to those activities.

884. In the second place, posting, within the meaning of Directive 96/71, is closely linked to a provision of services performed by the employer in the host Member State. In the context of the transport activity, however, the emphasis is placed not on the service provided by the driver, but on the movement of goods between the Member States. There is therefore not an activity of such a kind as to justify the application of the rules on posting laid down in Directive 96/71. That argument is supported by the European Union’s response to the crisis caused by the COVID-19 breakout. Following the introduction of restrictions on movement by various Member States, the Commission intervened almost immediately in order to ensure that the transport of goods functioned as smoothly as possible.

885. In the third place, owing to the high degree of mobility of workers employed in the international transport of goods by road, Hungary, referring to the abovementioned judgment in Dobersberger, maintains that those drivers cannot be considered to be performing their work temporarily in another Member State, but, rather, are constantly moving between several Member States. A stay of short duration – even of a few hours – in another Member State cannot create a sufficient connection with the territory of that Member State.

886. The Council, the Parliament and the interveners supporting them submit that this plea must be rejected.

(2)    Analysis

887. In the single plea that it raises in support of its main claim seeking annulment of Article 1 of Directive 2020/1057, Hungary claims, in essence, that, since the posting regime established by Directive 96/71 cannot apply to the road transport sector, the provisions set out in Article 1 of Directive 2020/1057, that explicitly refer to Directive 96/71 when defining their scope, are unlawful.

888. In that regard, however, I observed in point 875 above that, in the judgment in Federatie Nederlandse Vakbeweging, (539) which was delivered after Hungary’s action in Case C‑551/20 (540) had been lodged, the Court held that Directive 96/71 is applicable to the provision of transnational services in the road transport sector. It follows from that finding that the very premiss of the plea raised by Hungary is absent, since the plea is based on the alleged inapplicability of Directive 96/71 to the road transport sector. In that regard, this plea must in my view be rejected.

889. Furthermore, in its reply, which was lodged after the judgment in Federatie Nederlandse Vakbeweging (541) had been delivered, Hungary itself observed that the Court had held in that judgment that Directive 96/71 is applicable in the road transport sector. The arguments, already raised in the application and subsequently developed in the defence, that, owing to the unusual nature of the conclusion of a contract between the transport undertaking that employs the international drivers and the person to whom the consignment is sent, in numerous cases the transport services do not meet the conditions of a situation of posting coming within the scope of Directive 96/71, so that drivers carrying out international transport operations can generally not be considered to be persons implementing one of the transnational measures referred to in Directive 96/71, are to my mind inoperative.

890. Even on the view that the circumstances put forward were made out, they could not in any event show that the provision at issue is unlawful. The fact that a rule is of limited scope, (542) so that several cases are not covered by it, is not capable of showing that it is in any way unlawful.

891. It follows from all of the foregoing that, in my view, the single plea raised in support of the form of order primarily sought by Hungary in Case C‑551/20 seeking annulment of Article 1 of Directive 2020/1057 must be rejected.

(d)    The infringement of Article 91(1) TFEU 

(1)    The parties’ arguments

892. The Republic of Bulgaria and the Republic of Cyprus maintain that Article 91(1) TFEU, which is the legal basis of Directive 2020/1057, required the EU legislature to legislate in accordance with the ordinary legislative procedure and after consulting the EESC and the CoR. Those two applicants maintain that by not consulting those two committees, although the hybrid model (543) was introduced in the course of the legislative procedure and was not part of the Commission’s initial proposal, the Council and the Parliament infringed Article 91(1) TFEU. Such an obligation to consult following a substantial modification of the initial proposal follows from the Court’s case-law relating to the consultative role of the European Parliament (544) when it was not yet a co-legislator, which applies mutatis mutandis with respect to the EESC and the CoR, and also to the working documents relating to the functioning of the CoR. The findings made in the judgment in Case C‑65/90 (545) can be transposed to the procedure for the consultation of the CoR and the EESC, and the provision that was then interpreted by the Court is worded in identical terms to Article 91(1) TFEU. The hybrid model goes to the very core of the directive. The application in their entirety of the rules on the posting of workers, irrespective of the time spent in a Member State, to cross trade places a substantially altered obligation on the hauliers concerned. Cross trade operations are no longer on an equal footing with bilateral transport operations, which distorts competition and gives rise to unjustified differences between drivers. The hybrid model introduced in the course of the legislative procedure thus undermines the structure of the initial proposal. The failure to consult those committees is capable of influencing the basis and the essence of the measure and led to a lack of diligence when the measure was drafted. The obligation to consult those two committees is the result of an essential, unambiguous and clear procedural requirement to which the CoR’s working documents also refer. A substantial modification introduced in the proposal for a Regulation of the Parliament and of the Council concerning the evaluation of health technologies and amending Directive 2011/24/EU (546) led the co-legislator to decide to consult the EESC again. The absence of a significant impact of the failure to consult on the content of the measures eventually adopted, although, contrary to the Parliament’s assertion, not made out, cannot in any event affect the mandatory nature of the consultation. The Council recognised the crucial role of Directive 2020/1057 in its own press release. (547)

893. The Council and the Parliament, and the interveners supporting them, submit that the plea alleging infringement of Article 91(1) TFEU on the ground of failure to consult the EESC and the CoR must be rejected.

(2)    Analysis

894. As already stated in point 526 of this Opinion, it follows from Article 91(1) TFEU that when they act on the basis of that provision, the Parliament and the Council are required to consult the EESC and the CoR. The opinions of the EESC and the CoR on the Commission’s proposal for a directive were received on 18 January 2018 (548) and 1 February 2018 (549) respectively.

895. The Republic of Bulgaria and the Republic of Cyprus put forward, in essence, a line of argument comparable to that put forward in the context of Article 1(3)(a) of Regulation 2020/1055. (550) Those two parties then take issue with the Council and the Parliament for not having obtained the opinions of the EESC and the CoR again after the amendments introduced during the legislative procedure to the proposal for a directive on which those two committees had expressed their views. The parties maintain that, whereas the Commission’s proposal was based on the criterion of the time spent on the territory of a Member State to trigger the application of the rules on posting, the Council and the Parliament chose a different criterion and neither the EESC nor the CoR was therefore consulted about the substantial amendment consisting of the hybrid model.

896. I already said above that the obligation to consult those committees again where there is a substantial amendment to the text during the legislative procedure does not follow from either Article 91 TFEU or from any other provision of primary law. (551) I also rejected the argument that the principles flowing from the judgment in Parliament v Council apply to cases of consultation of the EESC and the CoR. (552) As regards the content of the working documents of the CoR to which the Republic of Bulgaria and the Republic of Cyprus refer, I refer to point 538 of this Opinion.

897. That leads me to conclude that the EESC and the CoR had, in my view, sufficient opportunity to give their opinions on the proposed legislation.

898. In particular, I observe that the CoR has already expressed its reservations ‘about the broad inclusion of international transport services in the scope of the posting directive’. (553) In addition, I note that the hybrid model, as defined by the applicants themselves, consists in the exemption of bilateral transport from the application of the rules on posting, (554) and may therefore be regarded as satisfying, at least in part, the concerns expressed by the CoR.

899. As regards the EESC, it had the opportunity to express its opinion that the proposal to amend the legislation on the posting of drivers did not make it possible to resolve the problems identified efficiently, because it did not make the rules simpler, clearer and more enforceable. (555) Nonetheless, the EESC welcomed the EU-wide application of the rules on posting in road transport, (556) which it considered to be of key importance in maintaining a level playing field for workers and businesses alike, (557) and was able to express its views on the question of the application of those rules according to the type of operations envisaged. (558) The EESC stated that it ‘fully agree[d] that, for cabotage, the Posting of Workers Directive should continue to be applicable from day one’. (559)

900. It seems to me, therefore, that, as regards the principle that transport operations should be subject to the rules on posting, Directive 2020/1057 follows on from the Commission’s proposal. Both the EESC and the CoR were able to express their views in that regard. The question of the determination of the element that triggers the application of those rules, namely the qualification deemed relevant by the EU legislature of the ‘sufficient connection’ with the Member State of establishment (a stay of more than three days according to the Commission’s proposal for a directive or the taking into account of the type of operations) falls, for the remainder, within the wide discretion of the EU legislature, and it cannot be considered that the opinions of the EESC and the CoR were required again after the Council and the Parliament amended that proposal.

901. As for the allegation that what happened during the legislative procedure that led to the adoption of Regulation 2021/2282 should serve as a precedent, I refer to footnote 265 of this Opinion and reiterate that the addition of a legal basis to the measure that is in the process of being adopted, which was then at issue, which may itself give rise to the obligation to consult a committee, is not comparable to the adjustment of the conditions of application of the rules on the posting of workers in the transport sector that is at issue here.

902. I therefore propose that the pleas alleging infringement of Article 91(1) TFEU on the ground of failure to consult the EESC and the CoR should be rejected.

(e)    The breach of the principle of proportionality 

903. In their actions, all six Member States that have contested Directive 2020/1057, supported by the Republic of Latvia and the Republic of Estonia, claim that the provisions of that directive relating to the specific rules, contained in particular in Article 1, on the posting of drivers do not comply with the requirements flowing from the principle of proportionality defined in Article 5(4) TEU.

904. First, five of those Member States dispute the proportionality as such of those rules. They claim, in particular, that the contested provisions of that directive are not appropriate for attaining the stated objectives, that they go beyond what is necessary in order to attain those objectives and that their negative effects are disproportionate in relation to the expected advantages.

905. Second, all six Member States also dispute the EU legislature’s examination of proportionality and, in particular, the absence of an impact assessment of the final version of the provision as eventually adopted.

906. Those two aspects should be examined separately.

(1)    The pleas relating to the breach of the principle of proportionality

(i)    The parties’ arguments

907. In their pleas, five of the six applicant Member States claim that the various provisions concerning the specific rules relating to the posting of drivers that they dispute (560) do not comply with the requirements flowing from the principle of proportionality, first, owing to the inappropriate nature of those rules and, second, owing to the disproportionate negative effects to which those rules give rise.

–       The inappropriate nature of the criterion based on the type of transport operations

908. A number of the applicant Member States maintain, and are supported in that regard by the Republic of Latvia and the Republic of Estonia, that the criterion chosen by the legislature based on the type of transport operations is inappropriate for the application of the rules on the posting of drivers in international road transport.

909. In the first place, the criterion based on the type of transport operations is inappropriate because when choosing that criterion the EU legislature did not take account of the existence of a real connection between the driver and the territory of the Member State concerned in relation to the specificities of transport services.

910. Thus, the Republic of Lithuania maintains that applying the rules relating to posting according to the nature of the transport operations is an inappropriate measure that does not reflect the concept of posting. In particular, paragraphs 3 and 7 of Article 1 of Directive 2020/1057 – which the Republic of Lithuania disputes – were adopted without an appropriate examination of the nature of international transport operations. In principle, the rules relating to posting are intended to offset the additional costs that the worker must bear because he or she performs his or her work obligations in a different State from the one in which he or she is habitually resident. However, the specificity of lorry drivers’ work is quite different: in cases of short-term cabotage and cross-border transport operations, drivers usually have no connection with the host Member State, generally spend only very little time in that State and therefore bear only minimal costs in that State.

911. In Romania’s submission, it is necessary to establish the criteria for the implementation of the posting regime in the field of transport with particular attention, in order to ensure a fair balance between the improvement of drivers’ social and working conditions and the protection of the freedom to provide road transport services. It is thus necessary to identify the elements that reveal the existence of a sufficient connection between the driver and the host Member State. The sufficient connection, as a key element that makes it possible to establish the hypotheses of implementation of the posting regime, should be based on objective, invariable and readily applicable criteria, that are adapted to the specificities of the field of road transport. Thus, in the field of transport, which is characterised by a high degree of mobility, the sufficient connection with the territory of the host Member State cannot be precisely determined by the transport operation, which is itself defined by the same degree of mobility. The impact assessment and several other documents (561) were not produced in support of the criterion of the transport operation in the determination of the sufficient connection.

912. The Republic of Poland maintains that the criterion based on the type of transport operations is inappropriate for the application of the rules on posting to drivers as regards bilateral operations, cabotage and cross trade because it does not take sufficiently into account the specific character of transport services, or the real connection between the driver and the host Member State.

913. Thus, first, generally in international transport, drivers carry out operations of varied types, combining bilateral operations, cross trade, transit operations and cabotage. Frequently, new orders are accepted while the transport is already under way, in order to make maximum use of the cargo space of the means of transport used, allowing transport undertakings to optimise the available resources, which enhances the overall efficiency of transport. The decision on the applicable working and employment conditions should therefore take account of both the connection between the driver and the State whose territory he or she passes through and the practical difficulties and the administrative and financial burdens linked with the application of a considerable number of varying regulations and formal requirements during a brief time. Those factors were ignored by the EU legislature.

914. Second, according to the Republic of Poland, the criterion based on the type of transport operations is inappropriate because it does not take sufficient account of the real connection between the driver and the territory of the State concerned. On the one hand, as regards the ‘close connection’ with the State of establishment – on which recital 10 of Directive 2020/1057 is based for the non-application of the rules on posting to bilateral transport operations – the Republic of Poland observes that it was not defined, nor was it taken into account in the case of cabotage and cross trade operations, for which the EU legislature focused on the connection with the host Member State (recitals 9 and 13). On the other hand, as regards the other element considered by that recital – namely the fact that a driver may carry out several bilateral transport operations in the course of a single journey – the Republic of Poland observes that several operations may also be carried out during a single journey in the context of cabotage and cross trade transport operations.

915. In addition, the recitals of Directive 2020/1057 do not justify the exemptions for isolated cross trade transport operations, provided for in Article 1(3) and (4) of Directive 2020/1057, the introduction of which constitutes a break in the logic thus defined that underlies the application of the rules on posting.

916. In their statements in intervention, the Republic of Latvia and the Republic of Estonia reiterate, in essence, those same arguments. In particular, the Republic of Latvia takes issue with the institutions of the European Union for not having taken into account, when adopting the provisions at issue, the specificities of international transport operations or the exceptionally high degree of mobility of workers in the international transport sector. The Republic of Estonia submits that a classification based on the criterion of the transport operation does not allow any room for manoeuvre when it is necessary to assess the existence of a real link between the driver and the territory of the host Member State in the context of an international transport operation. Except in the case of transit and cabotage, in the case of all other types of transport operations, it is necessary either to carry out a case-by-case assessment of the existence of a connection, or to examine at the same time the condition of the duration of the service provided and the quantitative indicators, such as the nature and the number of transport operations, which clearly relate to the work carried out in the host Member State.

917. In the second place, a number of Member States maintain that there are other more appropriate criteria or parameters than that based on the type of transport operations for the purpose of determining the rules relating to the posting of drivers. In particular, one such criterion is that based on the duration of the drivers’ stay in the host Member State, a criterion that had initially been used by the Commission in the proposal for a directive on posting.

918. Thus, the Republic of Lithuania maintains that the criterion of the duration of the driver’s stay in the host Member State constitutes an example of objective criteria that a establish a factual connection with the State in which the work is actually performed, even though other criteria might be applied if they are objectively justified, ensure a sufficient connection with the Member State in which the work is performed and are consistent with the principle of proportionality. The Republic of Lithuania emphasises that when the Court assessed the temporal criterion in the judgment in Federatie Nederlandse Vakbeweging, it ruled only on cabotage operations, but did not evaluate bilateral transport operations and cross trade transport operations in the light of that criterion.

919. According to the Republic of Bulgaria and the Republic of Cyprus, an appropriate and less restrictive measure than the use of the criterion based on the type of transport operation consists in wholly exempting international transport. Such an exemption is justified, having regard to the particular situation of international transport and its extremely mobile nature, which has the effect that there is not a sufficient connection with the territory of the Member States other than the Member State of establishment. A complete exemption attains all the objectives pursued. The application to the entire international transport sector of the rules on posting, together with a temporal threshold, is more appropriate than the hybrid model, but raises serious problems, since its impact is always disproportionate in terms of cost, the administrative burden placed on SMEs and difficulties in interpreting and applying the rules. A further alternative that would provide clarity and ensure a sufficient connection would be the performance, in the framework of cross trade, of a minimum of specific and enumerated tasks, in a specific Member State and in a particular month, for example freight loading or unloading, maintenance or cleaning of lorries.

920. Romania maintains that the relevance of the application of the temporal element (the minimum duration of the activity) for the purpose of identifying the sufficient connection with the territory of the host Member State results equally well from the general legal framework applicable to the posting and from the impact assessment.

921. Thus, first, the fact that posting is regulated in the field of transport without the temporal criterion being taken into consideration produces, first, effects contrary to the objective pursued, namely that of attaining a balance between the improvement of drivers’ social and working conditions and the facilitation of the exercise of freedom to provide road transport services based on fair competition, and, second, constitutes an infringement of Article 5 of Protocol (No 2) on the application of the principles of subsidiarity and proportionality, (562) which provides that any burden must be minimised and commensurate with the objective to be achieved.

922. Second, the Impact assessment – social aspect specifically mentions the excessive costs for hauliers by reference to the advantages for drivers, where the posting regime is applied to transport operations that are not carried out frequently or where the work is not substantial or significant. The Impact assessment – social aspect concludes that a fair balance between administrative costs and the improvement of drivers’ social and working conditions may be achieved only when a driver works in the host Member State for a longer period.

923. Romania refers to the judgment of the Court of 15 March 2011, Koelzsch (C‑29/10, EU:C:2011:151; ‘the judgment in Koelzsch’), in which the Court established the criteria for identifying ‘the State with which the work has a significant connection’, when the transport activities are carried out in several Member States, for the purposes of the application of the Convention on the law applicable to contractual obligations, opened for signature in Rome on 19 June 1980. (563) The Court observed that, in the light of the nature of work in the international transport sector, it is necessary, when determining the State with which the work has a significant connection, to take account of all the factors that characterise the activity of the worker, and in particular the place from which the worker carries out his or her transport tasks, receives instructions concerning his or her tasks and organises his or her work, and also the place where his or her work tools are situated. It is also necessary to determine the places where the transport is principally carried out, where the goods are unloaded and the place to which the worker returns after completion of his or her tasks.

924. The Republic of Poland claims that the EU legislature omitted the other factors demonstrating the link between the driver and the host State, in particular the duration of the driver’s stay on the territory of the host State. In its submission, the temporal criterion must be taken into account in order to ensure the proportionate nature of the measures relating to the application of the rules on the posting of workers. The proposal for a directive on posting was based specifically on that temporal criterion and the impact assessment prepared by the Commission confirmed that that criterion best corresponds to the mobile nature of transport services, taking into account both the situation of drivers and that of hauliers, and also existing and proposed legal measures.

925. The Republic of Poland emphasises that the duration of the stay in the host State may also be comparable in the context of all the transport operations that it considers, namely bilateral transport operations, cross trade and cabotage operations. Thus, the duration of the driver’s stay in the host State may be very short in the case of both cross trade and cabotage operations. In carrying out those operations, the driver may indeed spend less time in the host State than he does in the context of bilateral or transit transport operations. It is therefore difficult to rely on a sufficient connection of such a kind as to justify the application of the rules on posting. The judgment in Federatie Nederlandse Vakbeweging is not binding on the EU legislature, in so far as that judgment does not preclude either a stronger derogation with respect to cabotage or the adoption of a temporal criterion as the criterion that determines the scope of the rules on posting to international transport operations.

926. In that context, the Republic of Poland refers to the judgment of the Court of 15 March 2001, Mazzoleni and ISA (C‑165/98, EU:C:2001:162; ‘the judgment in Mazzoleni’). Since the obligation to ensure that drivers receive remuneration corresponding to the wages of the host State will be one of the most significant consequences of the application of the rules on posting to drivers, that judgment is relevant for the purpose of assessing the proportionality of the contested provisions of Directive 2020/1057. In that judgment, the Court held that it was incumbent on the competent authorities of the host Member State, for the purpose of determining whether the application of its rules imposing a minimum wage was necessary and proportionate, to evaluate all the relevant factors. That evaluation means, first, that the authorities must take account, in particular, of the duration of the provision of services, of their predictability, and of whether the employees have actually been sent to work in the host Member State or continue to be attached to the operational base of their employer in the Member State in which the employer is established. Second, it must be ensured that the protection enjoyed by employees in the Member State of establishment is equivalent to that of the host Member State.

927. The Republic of Poland maintains that Article 3(2) to (5) of Directive 96/71 took those criteria into account in part, by making provision for possible exemptions from the application of the working and employment conditions of the host State owing to the short duration of the posting, the nature of the services provided or the nature of the work carried out. However, none of those exemptions is applicable to drivers. Nonetheless, the wording of the provisions in question, which was retained, disregards both the temporal criterion and other elements of connection of the driver to the State of establishment, such as the criteria set out in the judgment in Koelzsch, referred to above.

928. In addition, the link between the operation and loading and/or unloading on the territory of the haulier’s State of establishment is also decisive for the purpose of determining whether the rules on posting are applicable. Loading and/or unloading in the host State took place in the context of all the transport operations referred to. Last, the driver’s journey must be seen as a whole. Even though the entire cabotage operation is carried out within the territory of the host State, it is possible only after an international road transport operation.

929. In the third place, the inappropriate nature of the criterion based on the type of transport operations arises from the uncertainties and the difficulties relating to the implementation of that criterion.

930. Thus, the Republic of Lithuania claims that it follows from the impact assessment that, owing to the very high degree of mobility in the international road transport sector, the implementation of the directive on the posting of workers gives rise to particular legal difficulties.

931. Romania maintains that the application of the criterion of the type of transport operation gives rise to uncertainties in terms of the identification of the host Member State and, consequently, of the applicable legislation. Those uncertainties are the direct consequence of the regulation of a criterion that does not allow a sufficient connection with the host Member State to be established. Thus, the application of the criterion of the type of transport operation and of the variables relating to the loading/unloading of freight and the picking up/setting down of passengers is difficult. The operator of the Member State of establishment must be in a position to qualify its employee’s situation before the beginning of every transport operation. Under Article 1(11)(a) of Directive 2020/1057, the operator is required to submit a posting declaration to the national competent authorities of the Member State to which the driver is posted at the latest at the commencement of the posting. Thus, legal certainty and clarity in the identification of the situations of posting and the applicable social legislation constitute a precondition of compliance, by operators, with the obligations arising under EU law.

932. However, the application of the criterion of the type of transport operation does not provide a clear solution in terms of the identification of the host Member State and the applicable legislation. Thus, it is not clearly established whether the application of the transport operation criterion presupposes the identification of a single host Member State with which the driver has a sufficient connection in the general context of the transport operation concerned, or whether the legal provisions in force in all the Member States in which loading/unloading takes place will be applicable cumulatively, as they do not come within the exceptions laid down in Article 1(3) and (4) of Directive 2020/1057. The application of only the transport operation criterion does not allow the question of the identification of the applicable legislation to be resolved, in so far as the conditions of the sufficient connection between the driver and one or all of the Member States involved in the transport operations are not established in law.

933. Furthermore, in Romania’s submission, the use of the loading/unloading factor in Directive 2020/1057 for the purpose of determining the sufficient connection between the driver and the territory of a host Member State is not optimal. Drivers are not competent to load/unload freight and in most cases they are not asked to perform such activities. Only occasionally do drivers carry out loading/unloading operations. Romania maintains that the application of the transport operation criterion is of such a kind as to affect the flexibility and speed specific to that field, which, as is apparent from the Impact assessment – social aspect, gives rise to situations in which the legislation is not complied with. Thus, in the event of a change, during the transport activity, of the number of additional activities associated with a bilateral transport operation of goods or persons, of such a kind as to render the posting regime applicable, it seems impossible for the haulier to submit a posting declaration to the competent national authorities of the Member State to which the driver is posted at the latest at the commencement of the posting, as required under Article 1(11)(a) of Directive 2020/1057.

934. The Republic of Poland maintains that the exemptions provided for in Article 1(3) and (4) of Directive 2020/1054 give rise to doubts as to their interpretation, which suggest that they are based on criteria which are constructed inappropriately. As regards Article 1(3) of Directive 2020/1057, in view of the fact that loading/unloading can, in principle, take place only in the State crossed by the driver, it seems that the only States concerned are those situated on the route of the bilateral transport operation. Furthermore, in the event of an exemption, it is unclear when the application of the rules of the host State must commence when the driver carries out an additional loading/unloading activity, which is not covered by the exemption. Similar doubts exist as regards the interpretation of Article 1(4) of Directive 2020/1057, as regards the picking up of passengers. In addition, it is difficult to understand the reasons why two exemptions have been authorised as regards the carriage of goods while there are no exemptions in the case of the carriage of persons. Nor is there any objective justification in that respect.

935. In the fourth place, Romania claims that the regulation of posting in the field of transport by reference to the criterion of the transport operation has direct consequences for the market. Both non-bilateral transport operations (carried out in whole or as additional activities) and combined transport operations are discouraged. In that context, Romania draws attention of the specificities of the EU transport market, which is made up primarily of SMEs.

–       The inappropriate and unnecessary nature of the ‘hybrid model’ for the purpose of contributing to the objectives pursued

936. The Republic of Bulgaria and the Republic of Cyprus claim that, having chosen the ‘hybrid model’, referred to in point 864 above, the measures provided for in Directive 2020/1057 are not appropriate in that they do not succeed in maintaining a balance between the objectives which they pursue and do not permit such a balance between them to be achieved.

937. Thus, as regards, first, the objective of achieving satisfactory working conditions and social protection for drivers, the higher remuneration that drivers might receive relates, most frequently, to only brief periods spent in the country of loading or unloading, so that drivers’ working conditions and social protection would be only very slightly improved.

938. As regards, second, the objective of creating suitable conditions for business and fair competition for road transport operators engaged in cross trade, the hybrid model is synonymous with unfair competition. The comparative advantage of hauliers established in the peripheral Member States lies in their lower costs, which result, inter alia, from a lower cost of living and therefore from lower wages. Owing to the application of the hybrid model, hauliers engaged in cross trade are placed in a less competitive position than carriers carrying out bilateral transport operations. That distorts competition between the centre of the European Union, where hauliers engage primarily in bilateral transport operations, and the Member States, such as Bulgaria, where hauliers engage primarily in cross trade operations. As regards, third, the objective of facilitating freedom to provide cross-border services, the hybrid model restricts that freedom in that it leads to increased costs.

939. The hybrid model is thus neither appropriate nor necessary. There is no sufficiently strong link with any of the countries that the driver passes through. Apart from the Member State of departure or destination, workers carrying out bilateral transport operations perform the same work as drivers carrying out cross trade operations. The Member State of departure or destination has no impact on the link between the driver and the host Member State. Conversely, there is a clear link to a territory in the context of cabotage operations.

940. There is no valid reason why a worker assigned to a cross trade operation should enjoy better working conditions and better social protection while a worker assigned to a bilateral transport operation does not. The country of departure or destination of the cargo is not a relevant criterion for the purpose of applying different levels of social protection to drivers.

–       The disproportionate negative effects

941. A number of the applicant Member States maintain that the provisions of Directive 2020/1057 relating to the posting of drivers are contrary to the principle of proportionality in that they give rise to negative effects that are disproportionate by comparison with the advantages that they present.

942. Thus, the Republic of Lithuania claims that the rules relating to posting place a particularly heavy administrative burden on hauliers, which discourage the provision of services in other Member States. When performing cabotage operations or short-term cross trade operations, the service provider is required to adapt to the requirements of the Member State in which the service is provided. Applying the rules relating to posting each time, solely because of the nature of the operation, entails indirect discrimination for transport undertakings established in the peripheral States, discourages the short-term provision of services and, in essence, restricts competition. That affects, in particular, SMEs, which represent 99% of the entire EU transport market. It is likely, moreover, that the SMEs will cease to carry out cabotage operations and cross-border transport operations or that they will decide to transfer their activity to the Member States at or around the centre of the European Union. Until Directive 2020/1057 was adopted, there was no administrative burden in connection with those activities. Thus, it cannot be considered that Directive 96/71 entailed an administrative burden, since there was no unanimity to bring drivers within the scope of that directive.

943. The Republic of Bulgaria and the Republic of Cyprus claim that the application to cross trade operations of the rules on posting will have a significant impact and harmful effects on the hauliers concerned. The rules on posting will give rise to additional workforce costs and especially to very significant administrative costs that relate to at least two aspects. First, they include the costs of compliance with the administrative requirements and control measures of the various Member States (which are higher than the costs of traditional posting). Second, they include the costs associated with the documentation of each posting and the application of the rules of the host State. Having regard to the multitude of countries and of transport operations, and the discrepancies between national laws, it will be very complicated for hauliers to assess when there is a posting and when there is not.

944. That assessment is further complicated because Directive 2020/1057 lacks clarity with respect to the rules on posting that should be applied to cross trade operations. The calculation for determining which days, and for what duration, a driver has been posted, which hauliers will have to carry out, distinguishing between cross trade operations and bilateral transport operations, and understanding and then applying the various national rules of each Member State, constitute a heavy burden for those hauliers, most of which are SMEs. That lack of clarity also gives rise to diverging interpretations between Member States, which further inflates the administrative burdens and the costs. The European Committee of the Regions (564) and various studies have warned that the rules on posting will lead to an increase in operators’ administrative costs. (565)

945. The burden placed on cross trade hauliers is so onerous that it can lead to a change to other types of activity, relocation to third countries, a fall in turnover, even bankruptcy. It is likely, moreover, that that burden causes inefficiencies and increases the environmental impact. It is also likely to distort competition, in so far as the contested directive places no obligation on, and does not apply to, hauliers from States that are not members of the European Union.

946. Romania also claims that, having regard to the problems referred to in points 931 to 933 above, concerning respect for the principle of legal certainty (the difficulties in terms of identifying the host Member State, speed and flexibility), that the regulations at issue are of such a kind as to disrupt the provision of transport services by SMEs and to place obligations on them that are disproportionate by comparison with the advantages for drivers.

947. The Republic of Poland maintains that, following the implementation of the provisions of Directive 2020/1057 on the posting of drivers, hauliers will have to bear higher costs. Those costs result, in the first place, from the need to adjust drivers’ remuneration to the rates in force in the States through which they pass and, in the second place, from the administrative burdens.

948. As regards, in the first place, drivers’ remuneration, according to the information in the Impact assessment – social aspect, there are fundamental differences between the Member States as regards the levels of drivers’ wages. In view of the fact that wage-related costs represent around 30% of hauliers’ operating costs, such a significant change in wages constitutes a huge burden for undertakings and is decisive for their competitiveness. As the Commission states, in that sector, competition is mainly based on price. It should also be noted that the market for transport services is dominated by SMEs, which have limited capital. Such significant expenditure may therefore exceed those undertakings’ financial capacities, which therefore leads to their bankruptcy and to an increase in unlawful practices and bogus self-employment.

949. Comparing those costs with the advantages for drivers, the Republic of Poland states that, as the Commission pointed out, as regards combating unlawful employment and the undervaluing of wages, only drivers spending more time in the State through which they pass will see their situation improve. The short period of stay of the other drivers will prevent effective control. Accordingly, the application to them of the rules of the State of transit must be regarded as an unreasonable requirement.

950. As regards, in the second place, the administrative burdens, they give rise to additional costs. In spite of a limited application to drivers of the requirements laid down in Directive 2014/67/EU, it is necessary to produce and translate additional documents for each driver covered by the rules on posting. More importantly, hauliers are compelled to analyse the transport operations on a permanent basis in order to determine the applicable regulations. If the applicable regulations are those of the State of transit, it will be necessary to translate and alter the employment and working conditions. It follows from the calculations submitted by the sector that the administrative costs associated with the application of the regulations of the host State relating to drivers’ wages may reach up to EUR 14 000 per year for a single haulier. Those costs do not even include the costs associated with controls and any fines.

951. The Council, the Parliament and the interveners supporting them submit that all of those pleas must be rejected.

(ii) Analysis

–       Preliminary observations

952. It follows from the case-law referred to in point 52 et seq. above that, in this instance, in order to be able to respond to the pleas alleging breach of the principle of proportionality, the Court must ascertain whether, in laying down, in Article 1(3) to (7) of Directive 2020/1057, read in the light of recitals 7 to 13 of that directive, the specific rules on the posting of drivers in the international road transport sector, the EU legislature manifestly exceeded the wide discretion which it exercises in common transport policy matters, (566) by opting for measures which are manifestly inappropriate by reference to the objectives which it intended to pursue or which cause disproportionate disadvantages by comparison with the aims pursued.

953. In that regard, I note that the Court has also recognised that the legislation, at EU level, relating to the posting of workers in the framework of the provision of services falls within an area in which the action of the EU legislature involves political, economic and social choices and in which it is called upon to undertake complex assessments and evaluations and that, thus, within such an area, the legislature has a wide discretion. (567)

954. Before analysing proportionality, I must further note, still by way of preliminary observation, that, as is apparent from recital 8 of Directive 2020/1057, referred to in point 844 above, the provisions of that directive concerning the specific rules on the posting of drivers supplement the general rules on the posting of workers laid down in Directive 76/91. In precluding the existence of a posting in the case of certain types of transport operations and in recognising the applicability of that directive in certain other cases, the rules of Directive 2020/1057, on the one hand, limit and, on the other hand, clarify the scope in which Directive 76/91 is to apply. By comparison with the rules contained in the latter directive, the rules of Directive 2020/1057 thus constitute a lex specialis. In those circumstances, those rules must be analysed in the legal and jurisprudential context relating to Directive 96/71 within which they fall.

955. In that context, it should be observed, in the first place, that, as set out in point 874 et seq. above, in the judgment in Federatie Nederlandse Vakbeweging the Court, in essence, implicitly confirmed an approach in relation to the posting of drivers in the road transport sector based on a differentiation according to the type of transport operation, in so far as it considered in that judgment that the rules on posting arising under Directive 96/71 applied differently to distinct types of transport operations in application of the criterion of a ‘sufficient connection’, developed in its previous case-law and, in particular, in the abovementioned judgment in Dobersberger.

956. In the second place, the Court, in the judgment in Federatie Nederlandse Vakbeweging, already laid down specific criteria concerning the existence of a ‘sufficient connection’, on the basis of the case-law, for certain types of transport operation. Thus, as I observed in points 877 to 880 above, it held, first, that a driver who, in the course of goods transport by road, merely transits through the territory of a Member State or carries out only bilateral transport operations cannot be regarded as ‘posted’ within the meaning of Directive 96/71 and, second, that a driver carrying out cabotage operations must, in principle, be regarded as being posted to the territory of the host Member State within the meaning of Directive 96/71.

957. Conversely, the Court did not lay down specific criteria with respect to the existence of a ‘sufficient connection’ for the other two types of transport operations forming the subject matter of the rules laid down in Directive 2020/1057, namely combined transport operations and cross trade operations.

958. Although the judgment in Federatie Nederlandse Vakbeweging was delivered after Directive 2020/1057 was adopted, it follows from the ex tunc effect of the Court’s judgments (568) that the rules on the posting of international drivers in the case of transit, bilateral transport operations and cabotage in the words of Directive 96/71 as interpreted by that judgment constitute the rules that were in force before Directive 2020/1057 was adopted.

959. It follows, first, that apart from a few aspects – such as the exemptions provided for in the third and fourth subparagraphs of Article 1(3) and the third subparagraph of Article 1(4) of Directive 2020/1057 – for those three types of transport operations Directive 2020/1057 did not alter the rules on the posting of drivers by comparison with the situation existing under Directive 96/71.

960. Second, and consequently, the annulment of the provisions of Directive 2020/1057 relating to those three types of transport would not entail – save in certain respects – any change in the rules on the posting of drivers.

961. Because the adoption of Directive 2020/1057 preceded the delivery of the judgment in Federatie Nederlandse Vakbeweging, it is impossible, in this instance, to consider – as is the case for Article 1(6)(c) of Regulation 2020/1054, as I observed in point 394  above – that, in adopting that directive, the EU legislature really ‘codified’ the existing law as regards those three types of international transport operations. (569) Nonetheless, the Court must take account in its analysis of the proportionality of the measures at issue that the previous rules and those subsequent to the adoption of the directive at issue are, at least for those three types of international transport operations, the same.

962. In those circumstances, in accordance with the case-law referred to in point 52 et seq.  and in keeping with point 952 above, in this instance, examination of the pleas alleging breach of the principle of proportionality with respect to Article 1(3), (4), (5) and (7) of Directive 2020/1057 will have to seek to ascertain whether, in adopting a normative measure which does not alter, by reference to existing law, the rules on the posting of drivers as regards bilateral, transit and cabotage transport operations, the EU legislature manifestly exceeded the wide discretion which it enjoys in common transport policy matters by opting for a measure which is manifestly inappropriate by comparison with the objectives which it was intended to pursue or which gives rise to disadvantages disproportionate to the aims pursued.

963. It is therefore from that perspective that the different pleas put forward by the applicant Member States seeking to call into question the proportionality of Article 1(3) to (7) of Directive 2020/1057 should be examined.

–       The objectives of the specific rules on the posting of drivers laid down in Directive 2020/1057

964. In order to be able to analyse the pleas alleging breach of the principle of proportionality, it is necessary, first of all, to determine the objectives pursued by the legislation at issue, the legitimacy of which is not disputed by the applicant Member States.

965. As is apparent from points 841 to 844 above, and from the recitals of Directive 2020/1057 referred to in those points, the general objective of the rules on the posting of hauliers is to facilitate freedom to provide services by determining in a coordinated manner which is the Member State whose working and employment conditions are to apply to a worker in a cross-border situation. The specific objective of Directive 2020/1057 is to take account of the particularities of the road transport sector by exempting certain categories of operations from the rules on posting while maintaining appropriate protection for workers. Those objectives must be assessed in the light of the special aspects of the transport sector described above.

966. It also follows from those recitals that the legal framework of posting is based on a balance between two interests, namely, on the one hand, ensuring that undertakings are able to provide services within the internal market by posting workers from the Member State in which they are established to the Member State in which they will provide services and, on the other, protecting the rights of the posted workers. In adopting Directive 2020/1057 the EU legislature thus endeavoured to ensure freedom to provide services on an equitable basis, namely in a regulatory framework guaranteeing competition that is not based on the application, in the same Member State, of working and employment conditions at a substantially different level, depending on whether the employer is established in that Member State.

–       The inappropriate nature of the criterion based on the type of transport operations

967. As regards, first of all, the arguments raised by the Member States alleging that the criterion based on the type of transport operations is inappropriate, I note that the wide discretion which the EU legislature enjoys both in common transport policy matters (570) and in regulatory matters at EU level, relating to the posting of workers in the context of a provision of services, (571) undoubtedly also covers the choice of the criterion whereby the existence of a ‘sufficient connection’ with the territory of a Member State is determined, in compliance with the criteria stated by the Court in its case-law.

968. Each type of transport taken into consideration in Article 1(3) to (7) of Directive 2020/1057 has a different connection either with the transport undertaking’s Member State of establishment or with the territory of one or more host Member States. Thus, for example, in the case of cabotage, as the transport operation takes place exclusively within the territory of a host Member State different from the Member State of establishment, it may be considered that the driver’s performance of his or her work in the course of such operations has a sufficient connection with that territory, the sufficient connection. (572) In the case of bilateral transport operations, the transport operation has as a point of departure or of arrival the Member State of establishment, whereas in the case of transit the transport operation takes place in the host Member State, although the point of departure or of arrival of the transport is not situated in that State, which permits the view that the driver provides limited services on the territory of the Member State to which he or she is sent. (573) In the case of non-bilateral transport operations (cross trade), on the other hand, the transport operation takes place between two host Member States, which permits the inference that the driver’s provision of services has no relationship with the territory of the haulier’s Member State of establishment.

969. Those considerations show, in my view, that since each of the different types of transport operations has a different connection with the territory either of the Member State of establishment or of the host Member States, a criterion which is based on the type of transport for the purpose of the existence of a ‘sufficient connection’ between the provision of that service and the territory of the Member State does not appear to be manifestly inappropriate. In addition, contrary to the contention of some of the applicant Member States, such a criterion, in differentiating the regulation according to the connection with the provision of the service and the territory of the Member State concerned, does indeed take account of the specificities of each of those types of transport service. Instead of focusing solely on the territory on which the worker is present, the EU legislature compared the connection between the type of service provided and the host Member State and the connection with the Member State of establishment, in order to facilitate the provision of those services by the undertakings without seriously undermining the protection of workers’ rights which drivers enjoy.

970. It follows, in my view, that, in the context of the wide discretion that it enjoys in that area, the EU legislature was indeed entitled to choose such a criterion.

971. Furthermore, as I observed in point 955 above, in the judgment in Federatie Nederlandse Vakbeweging the Court, in essence, implicitly established an approach in relation to the posting of drivers in the road transport sector based on a differentiation according to the type of transport operation. In that judgment, the Court interpreted the rules on posting flowing from Directive 96/71 as applying differently to different types of transport operations in application of the ‘sufficient connection’ criterion.

972. In addition, as I observed in point 956 above, the Court, in the judgment in Federatie Nederlandse Vakbeweging, already prepared specific criteria with respect to the existence of a ‘sufficient connection’ for bilateral transport operations, for transit and for cabotage. In those circumstances, the applicant Member States cannot claim that for those types of transport operations the criterion based on the type of transport operation is inappropriate on the ground that it does not take sufficiently into account the real connection between the driver and the territory of the Member State concerned.

973. As regards combined transport, although the Court has not provided specific indications with respect to that type of transport operation, in the judgment in Federatie Nederlandse Vakbeweging, referred to above, it clearly stated that cross-border transport operations from the Member State where the transport undertaking is established to the territory of another Member State or vice versa does not fall within the scope of the directive on the posting of workers. (574) That reasoning covers and therefore does indeed apply to the operations referred to in Article 1(6) of Directive 2020/1057 which now wholly excludes the existing of a posting for the initial or final road leg of a combined transport operation consisting, taken in isolation, of bilateral transport operations.

974. As regards non-bilateral transport operations, I observed in points 858 and 859 above that, unlike the position for the other types of transport operations referred to above, Directive 2020/1057 does not provide in Article 1 any paragraph that regulates normatively the posting of drivers for that type of transport operation. It merely states in recital 13 that, where that type of operation is characterised by the fact that the driver is engaged in international carriage outside the Member State of establishment of the undertaking making the posting, the services performed are linked with the host Member States concerned rather than with the Member State of establishment.

975. Consequently, Directive 2020/1057 makes clear only that in cases of cross trade operations there is still a posting of the driver, in so far as, since the service is provided outside the Member State of establishment, there is not a sufficient connection with that State. It does not make clear, however, precisely which legislation will be applicable to the posting, or more precisely with which of the host Member States concerned the provision of services will have a sufficient connection.

976. In that regard, I note that it follows from the case-law that a recital does not in itself constitute a legal rule and thus has no binding legal force of its own, but it may cast light on the interpretation to be given to a legal rule or concept provided for in the act in which it is contained. (575) It follows that the host Member State with which there is a sufficient connection between the provision of the service and its territory and whose legislation will therefore be applicable, must be determined in application of the criteria indicated in the case-law, as set out in point 876 above. (576)

977. As regards cross trade, it must also be observed, however, that the legislature decided to facilitate the conduct of efficient transport operations by undertakings by excluding certain cross trade operations, linked with bilateral transport operations, from the scope of the posting regime, as provided for by the exemptions within the meaning of the third and fourth subparagraphs of Article 1(3) and the third subparagraph of Article 1(4) of Directive 2020/1057. For all of those cross trade operations there is no posting and the rules of the transport operator’s Member State of establishment therefore apply.

978. It follows from all of the foregoing considerations that, in adopting sector-specific rules on the posting of drivers in the road transport sector that are based on the existence of a sufficient connection between the driver and the service provided and the territory of a Member State which are based on a criterion which distinguishes between the different types of transport operations according to the degree of connection with the territory of that Member State, the EU legislature, in the context of the wide discretion which it enjoys in that area, did not apply a criterion that was manifestly inappropriate by reference to the objectives which it intended to pursue by means of the rules at issue.

979. That assessment cannot be called into question by the arguments put forward by the applicant Member States.

980. In the first place, the applicant Member States claim that other criteria or parameters exist which are more appropriate than the criterion based on the type of transport operations for the purpose of determining the rules on the posting of drivers.

981. In that regard, as concerns, first, the argument put forward by the Republic of Bulgaria and the Republic of Cyprus, that an appropriate and less onerous measure than the use of the criterion based on the type of transport operation would consist in completely exempting international transport from the rules on posting and the working and employment conditions in the host Member State would not allow a balance to be struck between the various interests involved, in that such a solution would clearly not meet the primary objective of Directive 2020/1057 of ensuring the social protection of workers, nor would it contribute to making competition fairer, of ensuring freedom to provide services on an equitable basis, namely in a regulatory framework ensuring competition. Such a solution, moreover, had already been considered and rejected by the Commission during the legislative procedure. (577)

982. As regards, second, the use of a criterion based on the length of the drivers’ stay in the host State, it might, in the abstract, have been a criterion which the EU legislature could have considered in order to establish the rules on the posting of drivers. In fact, as will be analysed in greater detail in point 1024 et seq. below, the Commission had employed that criterion in the proposal for a directive on posting.

983. However, as is apparent from points 53 and 56 above and from the case-law referred to in those points, it is not for the Court to substitute its own assessment for that of the EU legislature in the exercise of a power involving choices of a political, economic and social nature and complex assessments. It is incumbent on the Court to ascertain whether the EU legislature manifestly exceeded the wide discretion conferred on it in relation to the complex assessments and evaluations that it was called upon to carry out, by opting for measures that were manifestly inappropriate by reference to the obligation pursued. Thus, it is not a question of knowing whether a measure adopted in such an area was the only or the best possible measure, as only the manifestly inappropriate nature of that measure by reference to the objective that the competent institutions intend to pursue can affect the legality of that measure.

984. It follows from the analysis that I developed in points 967 to 978 above that the criterion based on the type of transport operation that was used by the EU legislature in Directive 2020/1057 is not manifestly inappropriate by reference to the objectives that the legislature intended to pursue in the legislation at issue.

985. In addition, as was observed in the analysis of the other measures of the mobility package, (578) it is for the legislature, within the framework of the wide discretion which it enjoys in common transport policy matters, to weigh up the different objectives and interests involved, choosing the specific measure designed to improve drivers’ working conditions which it deems appropriate, provided that that measure is appropriate for attaining the obligations which the legislature intends to pursue. Seeking that balance is essentially a political decision, for the purposes of which the legislature must, as the Court has already held, have a wide discretion. (579)

986. In those circumstances, even though other measures laying down the rules on the posting of drivers, such as measures applying a criterion based on the length of the drivers’ stay in the host Member State, might have been envisaged, that does not amount to a breach of the principle of proportionality by the EU legislature, in so far as the measure chosen by the legislature is not manifestly inappropriate.

987. It follows from those considerations that all the other arguments raised by the Member States, including those based on precedents in the Court’s case-law, (580) seeking to demonstrate that the criterion based on the length of stay would be more appropriate than the criterion ultimately applied in Directive 2020/1057 are inoperative and must therefore be rejected.

988. In the second place, certain Member States maintain that the criterion based on the type of transport operation is inappropriate in that it gives rise to uncertainty as to the identification of the host Member State and, accordingly, of the legislation applicable.

989. In that regard, I would make the general observation that, as follows expressly from recital 7, the approach followed by the legislature aimed to facilitate the application of the sector-specific rules on the posting of drivers. From that perspective, applying the criterion based on the type of transport operation, Directive 2020/1057 exempts certain transport operations from the application of Directive 96/71 and, conversely, the operations that are not exempted continue to be subject to that directive with regard to the posting of workers.

990. Thus, as regards bilateral transport operations, transit and parts of combined transport operations as determined by reference to Article 1(6), Directive 2020/1057 clearly establishes that the driver is not posted and that therefore the law of the Member State of establishment of the transport undertaking is to apply. As regards cabotage, on the other hand, the directive clearly establishes that the driver is posted to the host Member State within whose territory the transport operations take place. Consequently, the legislation of that Member State applies to the posting. Last, as regards non-bilateral transport operations (cross trade), as I observed in points 858, 859 and 974 above, Directive 2020/1057 makes clear that there is a posting, but does not specify the host Member State in which the posting takes place. That State must therefore be determined on a case-by-case basis, based on an analysis using the criteria developed in the case-law, which it is for the undertaking to carry out.

991. In that context, I see no uncertainty to which Directive 2020/1057 gives rise as regards the identification of the Member State concerned and, accordingly, of the legislation applicable as regards the transport operations referred to in the preceding point. On the contrary, Directive 2020/1057 eliminated the uncertainty resulting from the fact that the provisions of Directive 76/91 were applied differently in the different Member States before the new rules were adopted.

992. Romania and, especially, the Republic of Poland refer, however, to the exemptions set out in the third and fourth subparagraphs of paragraph 3 and the third subparagraph of paragraph 4 of Article 1 of Directive 2020/1057.

993. In that respect, as regards the question of the time from which the rules on posting are to apply, I share the Council’s view that it is clear from the actual wording of Article 1(3) of Directive 2020/1057 that where more than one additional operation is carried out in the course of the outward leg of a particular bilateral operation, the bilateral operations exemption cannot be applied by the Member State concerned. As regards the doubts relating to Article 1(4) of Directive 2020/1057, it must be stated that the Republic of Poland does not explain what doubts it has. As regards the reason why a single additional operation is authorised while more such operations are not, that is the legislature’s choice for striking a fair balance between the interests involved, in the context of which the legislature has a wide discretion, as observed, inter alia, in point 985 above. Last, as regards the reason why an additional operation is authorised within the framework of a bilateral journey beginning in the Member State of establishment, but two operations are authorised on the return leg if no additional operation was carried out during the journey from the Member State of establishment, the Court has explained that it is linked with the possibility of applying the rules referred to in recital 9. When the driver leaves the Member State of establishment, it is impossible for the control authorities to know how many additional operations the driver will subsequently carry out on the return leg. However, during the return leg, the control authorities can know what the driver has previously done.

994. In the third place, Romania claims that Directive 2020/1057 has direct consequences on the market and is liable to discourage certain transport activities.

995. In that regard, as I observed in points 841 to 844 and 964 to 966 above, the stated objective of Directive 2020/1057 is to achieve a fair balance in order to ensure satisfactory working conditions and social protection for drivers, on the one hand, and suitable conditions for undertakings and fair competition for road haulage operators, on the other hand. It follows that by ensuring enhanced protection for posted workers, Directive 2020/1057 is intended to ensure the achievement of the freedom to provide services within the European Union within the framework of competition that does not depend on excessive differences in the working and employment conditions applied, within the same Member State, to undertakings from different Member States.

996. In such a context, the validity of Directive 2020/1057 cannot be called into question on the ground that the EU legislature did not favour certain activities on the market to the detriment of the reduction of workers’ social protection. As I have just observed in point 985 above, such a balancing exercise falls entirely within the discretion that the EU legislature enjoys in such matters.

–       The inappropriate and unnecessary nature of the ‘hybrid model’ for contributing to the objectives pursued

997. As regards the pleas and arguments put forward by the Republic of Bulgaria and the Republic of Cyprus with respect to the inappropriate and unnecessary nature of the ‘hybrid model’ for contributing to the obligations pursued by the directive, I refer first of all to the considerations set out, inter alia, in point 985 above, from which it follows, first, that it is for the EU legislature to weigh up the various obligations and interests involved, choosing the specific measure that is appropriate for finding a fair balance between those objectives and interests, and, second, that seeking that balance falls within a political choice in which the legislature has a wide discretion.

998. In that regard, I have already observed in point 60 above that the legislature must find a balance between the different interests, basing its choice on the situation that prevails in the European Union as a whole and not on the particular situation of a single Member State. Furthermore, I also observed in points 219 and 220 above that it follows from the Court’s case-law that the EU legislature cannot be deprived of the possibility of adapting a legislative measure, in particular in the common transport policy sector, to any change in circumstances or to any development of knowledge, having regard to its task of ensuring the protection of the general interests recognised by the FEU Treaty and taking into account the transversal objectives of the European Union enshrined in Article 9 TFEU, which include the requirements linked with promoting a high level of employment and guaranteeing adequate social protection. (581)

999. In particular, the Court has already recognised in that regard that, taking into account the significant developments that have affected the internal market, foremost among which are the successive enlargements of the European Union, the EU legislature was entitled to adapt a legislative measure in order to re-balance the interests involved with the aim of increasing drivers’ social protection by amending the conditions in which they exercise freedom to provide services. (582)

1000. From that perspective, as regards the assertion that the road transport operators situated at the periphery of the European Union are now affected by the rules on the posting of drivers adopted in Directive 2020/1057, the posting regime will apply more frequently to undertakings which most often post workers to provide services which have no connection with the Member State of establishment. The EU measures inevitably have unequal effects in the different Member States and on the different economic operators, in accordance with the choices that those operators make as to the orientation of their commercial activities and their place of establishment. However, the rules in question apply equally to all Member States.

–       The disproportionate negative effects

1001. A number of the applicant Member States maintain that the provisions on driver posting in Directive 2020/1057 are contrary to the principle of proportionality in that they give rise to negative effects that are disproportionate to the advantages that they bring. Those Member States consider, first, the costs incurred in complying with the new legislation (such as the need to adjust drivers’ remuneration to the rates in force in the States through which they travel) and, second, the costs linked with administrative burdens.

1002. In that regard, I observe, however, that, as regards bilateral transport operations, transit operations and cabotage operations, Directive 2020/1057 cannot be characterised as a newly created, more onerous regulatory framework. As is apparent from point 959 above, the rules on posting correspond to those already in force before Directive 2020/1057 was adopted. In those circumstances, for those types of transport operations it cannot be asserted that the burdens placed on those operators are increased in any way since, at most, they already resulted from Directive 96/71 itself, even before Directive 2020/1057 was adopted.

1003. As regards, next, the rules laid down in Article 1(6) of Directive 2020/1057, concerning combined transport, they constitute an exemption from the application of the rules of Directive 96/71, for the journeys to which it refers, which would normally fall within the scope of Directive 96/71. It follows that that provision, too, cannot give rise to additional costs linked with the posting of drivers by comparison with the preceding discipline.

1004. As regards non-bilateral transport operations, I note that, while it is true that, as is apparent from point 975 above, Directive 2020/1057 makes clear that there will, in principle, be a posting of the driver, that directive provides in the third and fourth subparagraphs of paragraph 3 and the third subparagraph of paragraph 4 of Article 1, exemptions for a whole series of cross trade operations connected with a bilateral transport operation.

1005. In addition, it should be observed that the removal of the uncertainty attributable to the provisions being applied differently in the different Member States is liable to reduce generally the costs borne by the undertakings. Furthermore, the legislature also adopted special, less onerous, administrative rules for all types of transport operations that contribute to reducing the burdens placed on road transport operators that post drivers by comparison with the legal framework that was applicable before Directive 2020/1057 was adopted.

1006. In any event, the Member States in question have not shown that, in accordance with the case-law referred to in point 59 above, the disadvantages for transport undertakings arising from the rules laid down in Directive 2020/1057 for cross trade operations are disproportionate to the advantages which they otherwise bring.

1007. In conclusion, in the light of all of the foregoing considerations, I consider that all of the pleas alleging that, in adopting Article 1(3) to (7) of Directive 2020/1057, read in the light of recitals 7 to 13 of that directive, which lays down the specific rules on the posting of drivers in the international road transport sector, the EU legislature manifestly exceeded its wide discretion, must be rejected.

(2)    The pleas relating to the examination of proportionality carried out by the EU legislature

(i)    The parties’ arguments

1008. All six Member States which have challenged Directive 2020/1057 contest the EU legislature’s examination of proportionality and, in particular, the absence of an impact assessment relating to the final version of the provisions laying down the specific rules on the posting of drivers in the road transport sector contained in Article 1(3) to (7) of that directive.

1009. The Republic of Lithuania maintains that the adoption of Article 1(3) and (7) of Directive 2020/1057 is vitiated by a breach of essential procedural requirements in that the effects of those provisions were not properly evaluated. In that regard, it refers to Article 11(3) TEU, Articles 2 and 5 of Protocol (No 2) on the application of the principles of subsidiarity and proportionality and the Interinstitutional Agreement.

1010. In its Proposal for a Posting Directive, the Commission suggested, among the most relevant criteria relating to the posting of workers, the length of stay in another Member State. However, the Parliament and the Council gave priority to the nature of the transport operation, thus proposing substantially new criteria and, consequently, substantially modifying the very essence of the provisions in question. Those institutions ought therefore to have carried out an impact assessment and set out the reasons why the new proposed criteria constituted a more appropriate measure than that set out in the proposal for a directive.

1011. In this instance, there were no objective reasons not to carry out an impact assessment and the EU institutions did not state the reasons on which their decision not to carry out such an assessment was based. In that regard, the Republic of Lithuania emphasises that it contests the provisions in question not because the EU legislature did not carry out a supplementary impact assessment, but because the impact of those provisions was not assessed at all.

1012. In the Republic of Lithuania’s submission, the appropriate and necessary nature of the impact assessments cannot be interpreted as coming within a wholly subjective assessment, depending solely on the will of the EU legislature. On the contrary, that assessment must be based on existing objective data, since that is the only way of ensuring that the EU legislature does not abuse its power of assessment.

1013. The Republic of Bulgaria and the Republic of Cyprus maintain that, in adopting the hybrid model without having any impact assessment, the Parliament and the Council breached the principle of proportionality. Those two institutions did not have any impact assessment, although such an assessment was requested by the Member States on a number of occasions, or any other information that might have confirmed that the measure was proportionate. The Commission’s initial proposal for a posting directive set out a fundamentally different approach to the posting of workers.

1014. Romania maintains that, in this instance, the solution consisting in referring to the criterion of the type of transport operation in order to identify the hypotheses of implementation of the rules on posting in the area of road transport was not the subject of the impact assessment carried out by the Commission and is not based on a report, an assessment or scientific data. No report or any assessment of that type was relied on, communicated or discussed during the negotiations.

1015. In Romania’s submission, in order to comply with the principle of proportionality, the EU legislature ought to have based its legislative choice on assessments, reports and evaluations aimed specifically at determining the circumstances in which the rules on posting may be applied to drivers, in the area of road transport, including the criterion of the transport operation chosen, in so far as such documents assessing solely the need for legislative intervention in relation to posting are insufficient. The identification of the necessary and appropriate solutions for combating the deficiencies found to exist cannot be based solely on an evaluation of the pre-existing situation of the transport market. It is also necessary to carry out a real and exhaustive evaluation of the expected consequences of the proposed measures.

1016. In that context, scientific evaluations and data are all the more important, having regard to the specificities of the matter and to the difficulties in terms of establishing a sufficient connection with the host Member State. In addition, the co-legislators were able, in accordance with paragraph 15 of the Interinstitutional Agreement, to carry out impact assessments of the substantial amendments that they made to the Commission’s proposal, particularly the new criterion for identifying cases of posting in the sphere of transport. In that regard, the mere fact that the legislature’s approach ensures, according to the Commission, the same objective as its proposal does not make up for the absence of the impact assessment that ought to have been carried out. The objective pursued by an EU legislative measure is a separate issue from the identification of measures suitable for ensuring the attainment of that objective, and from the assessment of the effects that such measures are liable to produce.

1017. Hungary claims that the absence of an impact assessment in relation to posting in the context of combined transport operations governed by Article 1(6) of Directive 2020/1057 constitutes a manifest error of assessment by the EU legislature and a breach of the principle of proportionality. The Commission’s proposal for a directive on posting did not cover combined transport operations and the rules relating to those operations were introduced following the agreement of the Council and the Parliament, without their effects on the intermodal transport of goods being examined by those institutions. In addition, the Commission considered, in a communication of 15 April 2020, (583) that the restrictions applicable to combined transport operations were problematic, in particular the fact that those restrictions might reduce the efficiency of the support for multimodal goods transport operations.

1018. The Republic of Poland also observes that, as regards the effects of the provisions contained in Article 1(3), (4), (6) and (7) of Directive 2020/1057 which it disputes, the Impact assessment – social aspect concerned measures based on a temporal criterion. Conversely, the effects of the measures that were eventually adopted were not evaluated. Accordingly, in that Member State’s submission, it cannot be maintained that the decisions of the EU legislature are based on objective data and that the legislature was capable of assessing their consequences rationally.

1019. According to the Republic of Poland, in this instance the EU legislature was not in a particular situation requiring that it dispense with a supplementary impact assessment and it did not have sufficient information to allow it to assess the proportionality of the measures eventually adopted. There is nothing to indicate that the Council and the Parliament had the necessary data to enable them to assess the effects that the contested provisions would have on the environment, on the economic situation of the various hauliers and on the road transport sector as a whole.

1020. The Council, the Parliament and the interveners supporting them submit that all of those pleas must be rejected.

(ii) Analysis

–       Preliminary observations

1021. By way of preliminary point, I must observe that, as I stated in point 61  of this Opinion, it follows from the case-law that the question whether the legislature took into consideration all the relevant elements and circumstances of the situation which the measure was intended to govern and whether it was required to carry out or supplement an impact assessment is governed by the principle of proportionality. It follows that the plea raised by the Republic of Lithuania alleging breach of essential procedural requirements aims, in reality, to claim that there is a breach of the principle of proportionality and must therefore be examined in the context of the analysis of the pleas relating to breach of that principle.

1022. Next, it should be observed that, in this instance, it is common ground that the EU legislature did indeed have an impact assessment available to it when it adopted Directive 2020/1057 and that that impact assessment covered the introduction of provisions establishing specific rules on the posting of drivers in the road transport sector. (584) Thus, the proposal for a posting directive adopted by the Commission contained in Article 2 provisions introducing specific rules for the posting of drivers in the sector.

1023. However, in the final version of those provisions – notably in paragraphs 3 to 7 of Article 1 of Directive 2020/1057, which form the subject matter of the present actions – the EU legislature adopted rules that were different from those contained in the Commission’s proposal for a posting directive. In that regard, it is also common ground that the final version of those provisions was not the subject of any specific additional impact assessment.

1024. More precisely, in the proposal for a directive on posting, and specifically in Article 2(2) of that proposal, (585) the Commission proposed a system in the context of which, proceeding from the premiss that Directive 96/71 applied to the road transport sector, two of the nine elements of the working and employment conditions of the host Member State listed in Article 3(1) of Directive 96/71 (586) – namely the minimum duration of paid annual leave and remuneration – did not apply to postings of less than three days per month where drivers carried out international transport operations within the meaning of Regulations 1072/2009 and 1073/2009.

1025. According to that proposal, periods of less than three days would however have continued to constitute a posting to which the other seven elements listed in Article 3(1) of Directive 96/71 would apply and, in particular, the administrative requirements, notably the presentation of a posting declaration before the posting takes place.

1026. As cabotage operations were excluded from the concept of ‘international transport operations’, since the entire transport operation takes place in a host Member State, those operations ought, according to the Commission’s proposal, to have been covered in full by the posting rules laid down in Directive 96/71. Consequently, according to that proposal, the minimum salary rate and the minimum duration of paid annual leave in force in the host Member State ought to have applied to cabotage, irrespective of the frequency and the duration of the operations carried out by a driver.

1027. It follows from the analysis of the specific rules on the posting of drivers contained in the Commission proposal, first, that that proposal recommended a different criterion from that laid down in Directive 2020/1057 for the purpose of determining the applicability of the rules on posting to drivers in the road transport sector. Although the proposal for a directive used a temporal criterion based on the duration of the posting, Directive 2020/1057 does not refer to duration, but applies a criterion based exclusively on the type of transport operations.

1028. Second, although Directive 2020/1057, as is apparent from points 846 to 859 above, precludes the very existence of a posting and thus the application of the rules on posting for certain types of transport operations (namely, bilateral transport operations, transit operations and certain cross trade operations linked with a bilateral transport operation, and also the road leg in the context of a combined transport operation within the meaning of Article 1(6) of that directive), according to the Commission proposal for a directive on posting, every international transport operation would have given rise to a posting. In application of the temporal criterion referred to above, only the rules of the host Member State on the minimum duration of paid annual leave and remuneration – the two elements referred to above of the nine elements listed in Article 3(1) of Directive 96/71 – would not be applied if the period of posting was less than or equal to three days. (587) All the other seven elements listed in that paragraph would be applied to every international transport operation.

1029. Third, as regards cabotage transport operations, both the Commission proposal for a directive on posting and the final version of Directive 2020/1057 provided that the rules on posting laid down in Directive 96/71 are to apply in full. For that type of transport operation, as regards posting, there is thus no difference between the rules contained in the proposal for a directive on posting and the rules adopted in the final version of Directive 2020/1057.

–       The absence of an additional impact assessment for the final version of the provisions relating to the posting of drivers set out in Directive 2020/1057

1030. It is in the context set out in the preceding points that it must be ascertained, in the light of the complaints put forward in the pleas raised by the applicant Member States, and of the case-law referred to in points 71 to 74  of this Opinion, whether the EU legislature breached the principle of proportionality in this instance because of the absence of an additional impact assessment on the final version of the provisions laying down specific rules on the posting of drivers in the road transport sector, ultimately adopted in Directive 2020/1057.

1031. In that regard, first of all, the complaints raised by the Republic of Lithuania and the Republic of Poland – the only Member States to challenge Article 1(7) of Directive 2020/1057 – alleging that, with regard to cabotage transport operations, the EU legislature did not carry out an impact assessment and did not have the necessary data to assess the effects of that provision must be rejected. As I noted in point 1029 above, there is no difference as regards that type of transport operations between the rules on the posting of drivers contained in the Commission proposal for a directive on posting, which was based on the Impact assessment – social aspect, and the rules eventually adopted in Directive 2020/1057. In those circumstances, those two Member States cannot rely on a failure to carry out an additional impact assessment with regard to cabotage.

1032. Next, it is necessary to determine whether the EU legislature was required to carry out a supplementary impact assessment because of the fact that, as I observed in point 1027 above, the final version of Directive 2020/1057 ultimately applied a different criterion by reference to the proposal for a directive on posting for the purpose of determining whether the rules on posting were applicable to drivers in the road transport sector. In that case, and having adopted that directive in the absence of such an additional impact assessment, the EU legislature breached the principle of proportionality.

1033. In that regard, I note, as a preliminary point, that, as I stated in points 66 and 70 above, it follows from the case-law that an impact assessment carried out by the Commission is not binding on either the Parliament or the Council. Furthermore, it follows from the Court’s case-law that the Parliament and the Council, in their capacity as co-legislators, are free, in accordance with Article 294 of the TFEU and within the limits imposed by respect for the Commission’s right of initiative, to arrive at a different assessment of the situation from that made by the Commission and, accordingly, to adopt a different policy position in the process for the adoption of an EU legislative measure. It follows that, even where the Parliament and the Council, departing from the Commission’s proposal and from the underlying impact assessment, modify substantial elements of that proposal, the fact that they did not update the impact assessment does not automatically and necessarily result in the EU legislation adopted being invalid. That is confirmed, moreover, by point 15 of the interinstitutional agreement, from which it is apparent, as I observed in point 66  above, that the Parliament and the Council may themselves, where they deem it appropriate and necessary, carry out impact assessments of the substantial modifications that they make to a Commission proposal. (588)

1034. Nonetheless, as I observed in point 71 above, an effective exercise of its discretion by the EU legislature assumes that all the relevant elements and circumstances of the situation which that measure was intended to govern were taken into consideration.

1035. The applicant Member States claim, in essence, that the legislature ought to have carried out a supplementary impact assessment, first, in order to evaluate the appropriateness of the new criterion eventually applied, based on the type of transport operation, and, second, in order to evaluate the expected effects of the measures envisaged in application of that new criterion.

1036. As regards, first, the possible need for a supplementary impact assessment for the purpose of evaluating the appropriateness of the new criterion, I do not think that, in this instance, the EU legislature was required to carry out such a supplementary assessment.

1037. First, as is apparent from points 42  and 953 of this Opinion, for the adoption of specific rules relating to the posting of drivers in the road transport sector, the EU legislature had a wide discretion to adopt the political choice that would make it possible to weigh up the various objectives and interests involved, notably in order to strike a balance between drivers’ social protection and freedom for transport undertakings to provide cross-border transport services. In that context, the EU legislature thus had a wide discretion in the choice of the criterion which it considered most appropriate for that purpose and on the basis of which, in accordance with the case-law referred to in point 872 et seq. of this Opinion, it would be possible to determine the existence of a ‘sufficient connection’ with the territory of the Member State concerned in order to establish whether a driver was posted.

1038. It is apparent from points 967 to 996 above that the criterion based on the type of transport operation is not manifestly inappropriate for determining the existence of such a ‘sufficient connection’ and for achieving the objectives pursued by Directive 2020/1057.

1039. Furthermore, I observe that, in explicitly precluding cabotage from the application of the sector-specific rules relating to the posting of drivers in the road transport sector, the Commission’s proposal for a directive on posting itself drew a distinction between types of transport operations for the purposes of the applicability of those rules. The criterion based on the type of transport operation applied in Directive 2020/1057 therefore does not appear to be as novel by comparison with the proposal for a directive as the applicant Member States maintain.

1040. As regards, second, the possible need for a supplementary impact assessment in order to evaluate the effects expected of the measures envisaged in application of that new criterion, it should first of all be observed that the Impact assessment – social aspect contained an analysis which, contrary to the contentions of certain Member States, was not confined to explaining why the Commission’s legislative initiative was necessary. It also contained, on the other hand, calculations and estimates of the quantitative impact in terms of costs of the Commission’s proposal based on the temporal criterion and, specifically, on the period of three days of the posting referred to in points 1024, 1025 and 1027 above. (589) In particular, that impact assessment distinguished between ‘administrative costs’, such as the costs relating to the posting declarations, and ‘compliance costs’, such as the costs arising from the need to pay the remuneration applicable in the host Member State. (590)

1041. Those calculations and estimates in the impact assessment were based on a reference economic scenario in which, when applying the rules as envisaged in the proposal for a directive on posting, all cross-border transport operations (including bilateral transport operations, transit and all cross trade operations) would be treated in the same way from a legal standpoint and would be covered by Directive 96/71. Thus, as noted in point 1028 above, the proposal for a directive on posting recommended a system in which every international transport operation would give rise to a posting.

1042. By comparison with that reference scenario taken into consideration in the impact assessment, first, the reduction of the administrative costs seems to be fundamentally linked to the measures that, by derogation from Directive 2014/67, reduce the administrative requirements as regards the posting of drivers and facilitate the posting declarations. (591) Those measures were set out in the proposal for a directive (592) and, in essence, reproduced in Directive 2020/1057. (593) In addition, as the Council maintains, the use of the internal market information system, provided for in that directive, permits the administrative costs to be further reduced by comparison with the system provided for in the Commission proposal for a directive on posting. (594)

1043. Second, as I observed in point 1028 above, in the system envisaged by Directive 2020/1057 the EU legislature, in application of the criterion based on the type of transport, excluded in their entirety a number of international transport operations from the application of the posting regime provided for in Directive 96/71 and from the administrative requirements laid down in Directive 2014/67. Those exclusions mean that the costs, both administrative costs and compliance costs, arising from the application of the regime on posting would no longer be incurred for those types of international transport operations. In particular, a posting declaration is no longer necessary for that type of international transport operations, nor are other compliance costs incurred, since in any event the legislation of the host Member State will be applied for those international transport operations.

1044. Thus, as regards those types of transport operations (referred to in point 1028 above), Directive 2020/1057 undoubtedly gives rise to an integral reduction in the costs of posting by comparison with the Commission’s proposal for a directive on posting, which provided that every international transport operation, and therefore all the transport operations now excluded in the context of Directive 2020/1057, would have given rise to a posting, and which exempted only transport operations of a duration below a certain threshold from certain aspects of the rules applicable to posted workers.

1045. Admittedly, as regards cross trade operations which are not connected with a bilateral operation, the fact that Directive 2020/1057 no longer provides, as did the Commission’s proposal for a directive on posting in the case of a period of posting equal to or less than three days, for an exemption of the application of the legislation of the host Member State in relation to the minimum duration of paid annual leave and remuneration, will in some cases give rise to an increase in costs, notably compliance costs, by comparison with the system envisaged by the Commission’s proposal for a directive on posting. (595)

1046. However, the applicant Member States have put forward no evidence – or, indeed, any argument – that might be capable of showing in any way that a possible increase in costs for that type of transport operations could have counterbalanced or offset the reductions in costs, referred to in point 1044 above, resulting from the application of Directive 2020/1057 to the other types of transport operations and that there was thus a risk that the disadvantages resulting from the normative choice made by the EU legislature are disproportionate to its benefits, (596) so that a supplementary impact assessment in that regard was required.

1047. Furthermore, the EU institutions refer to a whole range of documents and information in the public domain, such as data by Member State published by Eurostat which, together with the impact assessment, made it possible to estimate the effects and the costs arising from the application of the regulation reviewed in Directive 2020/1057, such as estimates of the proportion of goods forming the subject matter of bilateral transport operations or cross trade operations, or making it possible to estimate wage differentials between various Member States. (597)

1048. As regards, specifically, the alleged absence of an impact assessment relating to the rules on posting in combined transport operations set out in Article 1(6) of Directive 2020/1057 and referred to in Hungary’s action, and also by Romania and the Republic of Poland, it should first of all be observed that the rules contained in the Commission’s proposal for a directive on posting contained no specific rules on combined transport.

1049. However, it is apparent from the case file that, within the framework of the legislative procedure, following questions put by delegations within the Council, the Commission stated that ‘the initial or final road leg forming an integral part of a combined transport operation may be regarded as an international transport operation within the meaning of Article 2(2) of the proposal [for a directive on posting]. However, in order to ensure sufficient legal clarity, further clarification must be given of the way in which the road leg of a combined transport operation should be treated in the context of the lex specialis on posting in the road transport sector.’ (598)

1050. It follows from that clarification provided by the Commission, first, that those legs came under the rules on posting provided for in the proposal for a directive on posting. Second, it follows that, in the system of the proposal for a directive on posting, those initial or final road legs of a combined transport operation consisting, on its own, of bilateral transport operations, would therefore have been considered like all other transport operations which, as is apparent from points 1024, 1025 and 1028 above, would have given rise to a posting, within the framework of which only the legislation of the host Member State on the minimum duration of paid annual leave and remuneration would not apply in the event of a posting equal to or less than three days per month.

1051. Whereas Article 1(6) of Directive 2020/1057 now excludes in full the existence of a posting for the initial or final road legs of a combined transport operation composed, on its own, of bilateral transport operations, just as for the other types of transport operation (referred to in point 1028 above), Directive 2020/1057 also gives rise to an overall reduction of the costs of posting by comparison with the rules set out in the Commission’s proposal for a directive on posting. In so far as, for those transport operations, there is no longer a posting, there will also no longer be costs associated with the posting. From that aspect, it cannot be maintained that the EU legislature breached the principle of proportionality by not carrying out a specific supplementary impact assessment for that type of transport operation.

1052. Furthermore, the Parliament and the Council claim that the EU legislature had a significant amount of information on combined transport originating in the preparatory work relating to the proposed modifications of Directive 92/106/EEC, which include the impact assessment concerning the review of that directive (599) and other relevant documents. (600)

1053. It follows from all of the foregoing considerations that in not carrying out a further impact assessment for the final version of the provisions relating to the posting of drivers in Directive 2020/1057, the Parliament and the Council did not breach the principle of proportionality, as the legislature had sufficient information both to evaluate the modifications made to the contested decision by comparison with the Commission’s initial impact assessment and to assess the likely impact of the measures.

1054. It follows that the pleas relating to the EU legislature’s examination of proportionality and, consequently, all the pleas relating to breach of the principle of proportionality must in my view be rejected.

(f)    The infringement of Article 90 TFEU (read in conjunction with Article 3(3) TEU), Article 91(2) TFEU and Article 94 TFEU

(1)    The parties’ arguments

1055. The Republic of Bulgaria, Romania, the Republic of Cyprus and the Republic of Poland raise a number of pleas in which they claim that there has been an infringement of Article 90 TFEU (read in conjunction with Article 3(3) TEU), Article 91(2) TFEU and Article 94 TFEU.

1056. The Republic of Bulgaria and the Republic of Cyprus maintain that the contested directive infringes Article 91(2) TFEU, Article 90 TFEU read in conjunction with Article 3(3) TEU and Article 94 TFEU, owing to the harmful effects flowing from that directive for the standard of living and employment in Bulgaria and Cyprus, generally, in the Member States at the periphery of the European Union and the economic circumstances of hauliers. In particular, the application of the rules on posting makes cross trade impracticable. There is also a negative impact for the environment, and an increase in congestion. However, no impact assessment was carried out with respect to the hybrid model and there was no consultation on that topic, either with the European Committee of the Regions or with the Economic and Social Committee.

1057. Romania also expresses doubts as to the compatibility of the first package of mobility measures with Article 94 TFEU and with the objectives laid down in Article 91(2) TFEU, since the competitiveness of operators on the periphery of the European Union is affected by those measures. Romania maintains that there cannot be any genuine social protection if those operators are excluded from the market. Social protection should be accompanied by measures appropriate for maintaining freedom to provide services.

1058. The Republic of Poland maintains, in the first place, that, in adopting an arbitrary criterion for the application of the rules on posting to transport operations, the EU legislature infringed Article 91(2) TFEU, since it did not take account of the fact that that criterion is liable to have a serious effect on the standard of living and employment in certain regions, and on the operation of transport teams. Although the EU legislature has a wide discretion, that does not mean that the obligation to take account of certain effects is confined to taking note of them. Depending on their interpretation, the EU legislature would be entitled to adopt any legislation whatsoever, which would be contrary to the Court’s settled case-law. In particular, no account was taken, when the contested provisions were adopted, of the effect of the increase in the number of empty runs made by vehicles which would otherwise take part in cabotage transport operations and cross trade. The economic justification for using vehicles in cross trade lies, moreover, in the fact that hauliers can respond flexibly, taking account of the geographic aspect, to changes in needs in transport matters, by reducing the number of empty runs to a minimum and avoiding the inefficient wait for an order to carry goods again to the Member State of establishment. Cabotage transport operations present comparable qualities in terms of the efficiency of transport operations.

1059. The restrictions on the exercise of cabotage and cross trade, to which the provisions of Directive 2020/1057 which the Republic of Poland challenges give rise, might mean the withdrawal from the market of hauliers who would not be in a position to carry out a profitable activity in the context of a transport services model that implies less efficient transport operations. Those consequences are particularly felt by hauliers in the Member States situated at the periphery, whose activities are mainly based on cabotage transport operations and cross trade.

1060. The impact assessment is confined to a superficial evaluation relating to the impact of the contested provisions on the level of employment in certain regions and concerns, in any event, the application of a temporal criterion for the purposes of the application of the rules on posting which is different from the criterion ultimately employed in the contested directive and not entailing the same effects on the markets of the peripheral States. The increase in road traffic also has negative consequences on standard of living in areas close to the main transport hubs. In that context, it is worth noting, in particular, the risk that the changes would entail for road safety.

1061. In the second place, the Republic of Poland claims that, in adopting the contested provisions, the EU legislature did not take the economic circumstances of hauliers into account, thus infringing Article 94 TFEU. In this instance, contrary to the requirements of that article, the impact assessment did not take account of the economic circumstances of hauliers from the Member States at the periphery having a lower level of economic development, whose international road transport activities are focused to a greater extent on cabotage operations and cross trade. The additional costs incurred by hauliers from the Member States situated at the periphery, resulting from the application of the rules on posting, place those operators in a less advantageous position than competing undertakings situated at the geographic centre of the European Union.

1062. The adoption of the contested provisions during a period of serious economic disruption attributable to the COVID-19 pandemic also shows that the economic circumstances of hauliers was not taken into account. The economic effects of the pandemic are particularly felt in the transport sector, which is particularly exposed not only to the fall in demand in international trade, but also to the restrictions on crossing internal borders, which had been put in place by the various Member States. Those effects were already present when Directive 2020/1057 was in the process of being adopted.

1063. The Council, the Parliament and the interveners supporting them contend that all of those pleas must be rejected.

(2)    Analysis

1064. As regards the scope of Articles 91(2) and 94 TFEU, I refer to the considerations set out in points 281 to 293 above, from which it is apparent that those provisions lay down mere obligations to ‘take account’ and therefore do not have absolute value.

1065. I consider that the arguments put forward in those pleas by the Republic of Bulgaria and the Republic of Cyprus, Romania and the Republic of Poland are covered by the considerations which I set out in the analysis of the pleas alleging breach of the principle of proportionality, including the considerations relating to the alleged failure to carry out an impact assessment, and by the considerations set out when I dealt with the pleas alleging breach of the EU environmental provisions.

1066. Last, as regards the arguments put forward by the Republic of Poland concerning the COVID-19 pandemic, I refer to the considerations set out in point 306 above.

1067. In that context, I consider that the pleas alleging infringement of Article 90 TFUE (read in conjunction with Article 3(3) TUE), of Article 91(2) TFEU and of Article 94 TFUE must be rejected.

(g)    The breach of the principle of equal treatment

(1)    The parties’ arguments

1068. The Republic of Lithuania maintains that Article 1(3) and (7) of Directive 2020/1057 breaches the principle of equal treatment as established in the Court’s case-law and in Article 20 of the Charter, since those provisions lay down different rules and social guarantees for workers that are determined solely on the basis of the nature of the international transport operation (bilateral or non-bilateral), although the work itself is of the same nature. The distinction between those transport operations gives rise to different standards of remuneration for workers employed by the same undertaking and doing the same work. Thus, the same situations are treated differently without objective justification.

1069. According to the Republic of Lithuania, if a driver carries goods from Vilnius to Paris, via Warsaw and Berlin, the rules on the posting of drivers would not apply. However, another driver (travelling to the same destination, namely Paris, but who carries out separate transport operations, first delivering goods in Warsaw, then delivering goods in Berlin, then proceeding to Paris) would already be regarded as a posted worker for the part of the journey from Warsaw to Berlin and for the part from Berlin to Paris.

1070. The Republic of Lithuania maintains that the position of the Council and the Parliament, which consider that bilateral transport operations and cross-border transport operations are not comparable and give rise to a different connection between the driver, on the one hand, and the territory of the Member State where the transport operation is carried out, on the other, is irrational. The Republic of Lithuania maintains that, even if the criteria on which Article 1(3) and (7) of Directive 2020/1057 is based are prima facie based on objective justifications, they are conceived in a wholly artificial manner, as those criteria bear no relation to the reality of transport operations and are therefore unjustified. In practice, the drivers will perform the same work but will be treated in a substantially different fashion. The criteria for distinction applied by the EU legislature, notably in Article 1(3) and (7) of Directive 2020/1057, create artificial conditions for drivers subject to different remuneration even though the transport operations in which they take part are similar in nature. There is thus a breach of the principle of equal treatment.

1071. The Republic of Bulgaria and the Republic of Cyprus maintain that the hybrid model resulting from Directive 2020/1057 is contrary to Article 18 TFEU, Articles 20 and 21 of the Charter, Article 4(2) TEU and, if the Court should deem it relevant, Article 95(1) TFEU. That model results in different treatment being given to situations that are nonetheless similar. First, it distinguishes between drivers carrying out international transport operations depending on whether those operations involve cross trade or bilateral trade and provides better social protection according to the nationality of their employer and the place where the operations take place, and even gives rise to discrimination between drivers employed by the same haulier. Second, the hybrid model draws a distinction between cross trade operations and bilateral transport operations and between hauliers carrying out each of those activities. Hauliers engaged in cross trade are in a less favourable situation than those engaged in bilateral transport operations, since those two activities are two of the components of the international transport activity and are two extremely mobile activities, so that the connection with the host Member States is wholly comparable in both cases. Third, the effect of the hybrid model is that the negative impact is more significant for certain Member States, and therefore for the hauliers established in those States, since the EU-13 hauliers almost exclusively carry out cross trade operations, whereas the EU-15 hauliers are mainly active in bilateral transport operations. The impact assessment already confirmed that the application of the rules on posting would have much more significant economic effects for Member States such as Bulgaria. Such a conclusion is reinforced in the case of the hybrid model, since that model, unlike the model examined in the impact assessment, is applied without any temporal threshold. Last, in subjecting hauliers to different wage-related and administrative costs depending on the country of loading or unloading, the hybrid model is contrary to Article 95(1) TFEU, since it provides hauliers with an incentive to charge different rates for the carriage of the same goods over the same transport links on grounds of the country of origin or of destination of the goods in question.

1072. The Republic of Bulgaria and the Republic of Cyprus further maintain that Directive 2020/1057 makes an artificial distinction between cross trade operations without a sufficient connection with the host Member State and bilateral transport operations. They reject the justification put forward, in particular, by the Parliament in its defence after it acknowledged that a difference in treatment might arise in certain comparable cases and maintain that the difference in financial charges imposed on hauliers results directly from the difference of the Member State of establishment, which clearly constitutes a prohibited discrimination. The unequal impact of the hybrid model is also illustrated by the fact that hauliers mainly engaged in bilateral transport operations could carry out certain cross trade operations without complying with the rules on posting.

1073. Romania submits that Article 1(3) to (6) of Directive 2020/1057 infringes Article 18 TFEU and maintains that, having regard to the structure of the transport market, operators established at the periphery of the European Union are impacted more heavily by the administrative and financial costs flowing from the obligations laid down in the abovementioned provisions and are therefore deterred from carrying out operations governed by Article 1(3) to (6) of Directive 2020/1057. Their competitiveness is eliminated. Furthermore, those effects should be seen as a whole, that is to say, in combination with those produced by other measures of the Mobility Package, in particular those relating to cabotage, the return of the vehicle every eight weeks, the driver’s return every four weeks and the prohibition on taking normal weekly rest periods in the cabin. Romania observes that it has already stated in its actions against Regulations 2020/1054 and 2020/1055 that those measures create commercial barriers and are damaging, in particular, to hauliers established at the periphery of the European Union and, in turn, to the workforce employed by those hauliers. Romania maintains that the situation of hauliers situated at the periphery of the European Union cannot be treated as equivalent to ‘the particular situation of a single Member State’ within the meaning of the Court’s case-law and that, consequently, the EU legislature ought indeed to have taken the circumstances of those hauliers into account when it adopted the Mobility Package. The EU rules should take account of the difference in terms of geography, the degree of development of the economies, the markets and the infrastructures and should endeavour to reduce the discrepancies and pursue a more homogeneous allocation of the costs and benefits of membership of the European Union.

1074. Romania also expresses doubts as to the compatibility of the first Mobility Package with Article 94 TFEU and with the objectives laid down in Article 91(2) TFEU, since the competitiveness of operators located at the periphery of the European Union is affected by those measures. Romania maintains that there can be no genuine social protection if those operators are excluded from the market. Social protection should be accompanied by appropriate measures to maintain freedom to provide services.

1075. As regards, in particular, Article 1 of Directive 2020/1057, Romania submits that the Council acknowledged that it facilitated bilateral operations but not cross trade operations, that is, those carried out by the undertakings of Eastern Europe, since they are situated outside the area where EU international road transport is concentrated. The disproportionate impact produced for hauliers of only some of the Member States goes well beyond the effect inherent solely in the difference in treatment between residents and non-residents.

1076. Hungary maintains that Article 1(6) of Directive 2020/1057 runs counter to the principle of equal treatment. It submits that, as regards combined transport, there are two types of transport operations: accompanied operations (the driver accompanies the vehicle during the entire transport operation) and unaccompanied operations (the driver accompanies the vehicle only for the road leg of the transport operation).

1077. As regards accompanied operations, Hungary claims that, since the driver is present throughout the operation and for the entire duration of the transport operation, the combined transport operation is comparable in every way with a bilateral transport operation. The comparability of those situations should require, under the principle of equal treatment, that the exemption provided for in Article 1(3) of Directive 2020/1057 should cover the entire operation, that is to say, both road legs. In Hungary’s submission, the change in the mode of transport does not justify a difference in treatment and should not affect the applicability of the rules on posting. The fact that the EU legislature did not envisage extending to accompanied combined transport operations the exemption available for bilateral transport of goods operations constitutes a breach of the principle of equal treatment. Hungary maintains that the EU legislature artificially split combined transport operations into two road legs (the initial leg and the final leg), one of which does not meet the conditions relating to bilateral transport operations. If the combined operation begins in the country of establishment, the road leg is not a bilateral transport operation and, in the case of a return, the initial leg is not a bilateral transport operation. Nor did the EU legislature assess the impact of Article 1(6) of Directive 2020/1057.

1078. Hungary further submits that the scope of Article 1(6) of Directive 2020/1057 is wider than is strictly necessary to attain the objective invoked by the Council, since that article brings within the scope of the directive on the posting of drivers those who carry out a bilateral operation and accompany the vehicles on the non-road leg. Article 1 of Directive 92/106 might be interpreted as meaning that the two limbs of the alternative that it sets out are not necessarily mutually exclusive and that the concept of combined operation might include a situation in which the driver carries out the initial and final road leg. Should that not be the case, Hungary maintains that the legislature ought to have made provision in the directive for an exception for such situations and that Article 1(6) of Directive 2020/1057 is unlawful in that it has too narrow a scope, which breaches the principle of equal treatment.

1079. The Council and the Parliament, and the interveners supporting them, contend that the pleas alleging breach of the principle of equal treatment and of the principle of non-discrimination should be rejected, on the ground that they are unfounded.

(2)    Analysis

1080. The following analysis will be guided by the principles set out in point 75 et seq. of this Opinion and by the limits on judicial review as recognised by the Court and set out in point 80 of this Opinion.

(i)    Preliminary observations

1081. As regards Romania’s arguments relating to Article 91(2) and Article 94 TFEU, since they concern, at least in part, the other measures of the Mobility Package, they must be declared inoperative, as Romania’s action in Case C‑542/20 seeks annulment of Article 1(3) to (6) of Directive 2020/1057. Otherwise, I refer to the part of the analysis of Directive 2020/1057 devoted to the examination of Article 91(2) TFEU and Article 94 TFEU. (601)

1082. As regards the complaint alleging infringement of Article 95(1) TFEU put forward by the Republic of Bulgaria and the Republic of Cyprus, I observe, in agreement with the Council, that it is already clear that it cannot succeed, since that article prohibits discrimination consisting in hauliers charging different rates and imposing different conditions for the carriage of the same goods over the same transport links on grounds of the country of origin or destination of the goods in question, since neither the Republic of Bulgaria nor the Republic of Cyprus has shown that that would be the effect of the implementation of the obligation for vehicles to return every eight weeks and that even if that were the case, Article 95(1) TFEU continues to apply without prejudice to the possibility recognised by the Parliament and the Council by the second paragraph of that article to adopt measures derogating from that specific prohibition, on the basis of Article 91(1) TFEU, which – it will be recalled – is the specific legal basis of Directive 2020/1057.

(ii) The alleged breach of the principle of equal treatment of bilateral transport operations and cross trade operations (Republic of Lithuania, Republic of Bulgaria, Romania and Republic of Cyprus (602))

1083. As regards the allegation of a breach of the principle of equal treatment between bilateral transport operations and cross trade operations, in particular the plea put forward by the Republic of Lithuania, (603) by the Republic of Bulgaria and by the Republic of Cyprus, it is useful to note, as the Council has done, that the general rules on posting have as their general objective to facilitate freedom to provides services by determining in a coordinated manner the national legislation governing the conditions of work and employment that should apply to a worker in a cross-border situation. The specific objective of Directive 2020/1057 is to lay down specific rules to take account of the particularities of the transport sector. The criterion chosen by the EU legislature is that of the type of operations.

1084. The argument that the application of distinct rules to situations in which the nature of the work is the same constitutes a breach of the principle of non-discrimination, such as that put forward by the Republic of Lithuania, ignores the reality of the situation of a posting which, by definition, entails the performance of the same work but on the territory of another Member State. It is clear that, in itself and in principle, what the driver in the course of a bilateral transport operation does is not really different from what he or she does in the context of a cross trade operation. Thus, as the Council claims, the proper criterion for deciding whether the situations are comparable clearly cannot be just the criterion of the nature of the work, as such an overgeneralised approach would result in the elimination of the objective inherent differences between the two types of transport operations.

1085. Thus, the difference in treatment between bilateral transport operations and cross trade operations is based on the fact that, in the latter case, the worker carries out operations from one Member State to another and that neither of those States is the Member State of establishment. In the light of the criterion of the link between the Member State of establishment and the services, (604) those two situations therefore do not appear to be comparable. Such a difference has already been confirmed by the Court in the context of Directive 96/71. (605) The premiss on which the Republic of Bulgaria and the Republic of Cyprus relied is therefore fundamentally flawed, since the criterion chosen by the EU legislature, in the exercise of its wide discretion, derives from a comparison between the connection between the type of services provided in the host Member State and the connection with the Member State of establishment, and since the bilateral transport operations and cross trade operations are not comparable in the light of the objective pursued by the EU legislature and set out in point 952 et seq. of this Opinion.

1086. It clearly follows that, contrary to the Republic of Bulgaria’s and the Republic of Cyprus’s assertions, the drivers themselves are not placed in a comparable situation according to whether they are connected to a bilateral transport operation or a cross trade operation. Nor can the Republic of Bulgaria and the Republic of Cyprus claim that the situation of hauliers engaged in cross trade operations is less favourable than that of hauliers engaged in bilateral transport operations when they are two sub-categories of international transport, since, as I have just observed, and in the light of the objective pursued by Directive 2020/1057, the comparability of the situations must be seen from the viewpoint of the type of operations, according to the resulting connection with the Member State of establishment.

1087. In answer to the arguments alleging breach of the principle of equal treatment of Member States, it must be considered that the Member States appear to be treated in a perfectly equal manner.

1088. In that regard, I observe, as does the Parliament, that the contested directive does not draw any formal distinction between Member States or operators on grounds of their nationality.

1089. Romania nonetheless maintains that, since the centre of that market is in the West of the European Union, the proportion of cross trade operations in the activity of undertakings on the periphery of the European Union is necessarily much higher. It maintains that those operations are more costly for those operators owing to the regime laid down in Directive 2020/1057 in terms of the posting of workers. The Republic of Bulgaria and the Republic of Cyprus put forward a similar argument.

1090. First, in the light of the illustration provided by the Council, (606) I still find it difficult to define precisely what is the centre of the European Union and what constitutes its periphery; (607) yet in order to establish the comparability of the situations, a precise criterion must be established.

1091. Second, at the time when Directive 2020/1057 was adopted, the objective of the legislature, as the Council and the Parliament have observed, was to coordinate the regulations capable of impeding freedom to provide services. The legislative initiative was guided by the constant desire to strike a balance between improving drivers’ social and employment conditions and facilitating the freedom to provide services based on fair competition. Thus, the directive aims to attain freedom to provide services within the framework of competition that does not give rise to excessive differences in terms of the conditions of employment and work. The objective sought is that of a genuinely integrated and competitive internal market which also seeks to be the instrument of genuine social convergence. To my mind, it is important to observe, as the Parliament has done, that the elimination of competition on cost is not the objective of Directive 2020/1057. Nor does Directive 2020/1057 give rise to a distortion of competition. (608) Furthermore, the search for a balance, referred to above, means that it is not the particular situation of a single Member State, but the situation of all the Member States of the European Union, that must be taken into account. (609)

1092. It must also be borne in mind, as I have already observed on various occasions throughout this Opinion, that the Court has already recognised that the EU legislature is entitled to adapt a legislative measure, in order to rebalance the interests involved with the aim of increasing drivers’ social protection by amending the conditions in which the freedom to provide services is exercised. In addition, an EU harmonisation measure inevitably has different effects in the different Member States. (610) The legislature cannot be required to compensate for the differences in costs between economic operators arising from their choices of economic model and the different circumstances in which they are placed (611) as a result of that choice. The choice to become or remain established far from what is alleged to be the heart of the market in order to take advantage of lower costs, including social costs, while sending drivers, sometimes for long periods, into the Member States where costs are high is a commercial choice which has no greater claim to favourable treatment by the EU legislature than any other commercial choice.

1093. In particular, the Court has already recognised in that regard that, as the internal market has significantly changed, not least because of the successive enlargements of the European Union, the EU legislature was entitled to adapt a legislative measure in order to re-balance the interests involved with the aim of increasing drivers’ social protection by altering the conditions in which freedom to provide services is exercised. Where a legislative act has already coordinated the legislation of the Member States in a given EU policy area, the EU legislature cannot be denied the possibility of adapting that act to any change in circumstances having regard to its task of safeguarding the general interests recognised by the FEU Treaty and of taking into account the overarching objectives of the European Union laid down in Article 9 of that Treaty, including the requirements relating to the promotion of a high level of employment and the guarantee of adequate social protection. (612)

1094. The social consequences of the implementation of Directive 2020/1057 are not substantiated by Romania but they should, in all cases, be weighed up against the social advances that Directive 2020/1057 achieves for drivers. Furthermore, it seems to be clearly inevitable that the rules laid down in Directive 2020/1057 will affect more frequently the undertakings that post drivers most frequently. Those unequal effects seem inevitable, yet the equal application of the rules cannot be called into question. (613)

1095. Finally, like the Parliament, I note that the example used by the Republic of Lithuania to illustrate a difference in treatment arising from the application of the rules of Directive 2020/1057 to operations of the same nature (614) lacks conviction. As I understand it, the first component of the hypotheses might come within a transit situation, governed by Article 1(5) of Directive 2020/1057, which is not covered by the Republic of Lithuania’s action. In addition, for the reasons stated by the Council, to which I refer, (615) the differences in remuneration to which the Republic of Lithuania refers are not a probative element for the purposes of asserting the existence of discrimination.

(iii) The alleged breach of the principle of equal treatment of combined transport operations and bilateral transport operations (Hungary)

1096. As regards combined transport operations, it follows from Article 1(6) of Directive 2020/1057 that, notwithstanding Article 2(1) of Directive 96/71, a driver is not to be considered to be posted for the purposes of that directive when performing the ‘initial or final road leg’ of a combined transport operation as defined in Directive 92/106, if the road leg on its own consists of bilateral transport operations, as defined in paragraph 3 of Article 1.

1097. Hungary maintains, in essence, that Article 1(6) of Directive 2020/1057 constitutes a breach of the principle of equal treatment, since certain combined transport operations are comparable with bilateral transport operations and are nonetheless subject to a different legal regime in application of the rules on posting, and are therefore treated differently without objective justification.

1098. As regards the complaints which Hungary derives, first, from the absence of an impact assessment and, second, from the fact that the scope of Article 1(6) of Directive 2020/1057 is wider than required by the objective pursued, they clearly do not relate to respect for the principle of equal treatment and will therefore not be examined here.

1099. Hungary focuses its argument, in essence, on the fact that the accompanied combined transport operation is comparable to a bilateral transport operation, so that the exemption provided for in Article 1(3) of Directive 2020/1057 should in fact apply to the entire operation, that is to say, to both road legs. Hungary thus proceeds on the assumption that the driver’s situation in both cases is comparable, an assumption which must now be verified.

1100. It follows from my analysis of the proportionality of the contested provisions of Directive 2020/1057 that the criterion based on the type of operations for the application of the rules on posting to drivers engaged in international transport is appropriate and that each of the different types of transport operations has a different connection with the territory of either the Member State of establishment or the host Member State. The situation is no different, in my view, in the case of combined transport operations. I also consider it important to note that the transport operations governed by Directive 2020/1057 entail the crossing of borders.

1101. Let us take the hypothesis of a combined transport operation commencing in State A. The first section is by road, to a railway station in that State A. The lorry is loaded on to the train and the driver accompanies it. It is unloaded from the train in State B, where the driver resumes his route to the destination in State B. The first road section is not a bilateral operation, nor is the final section. If only the arrival and departure points of the operation (the movement of goods from State A to State B) are taken into account the operation as a whole seems to be comparable to a bilateral operation. However, as what is involved is in principle a cross-border provision of services, from the viewpoint of the service, the situation no longer appears to be comparable.

1102. In the case of a unimodal bilateral operation, the driver provides the entire service, including the international transport aspect. To return to the working hypothesis that I have just described, the time spent by the driver and the lorry is not necessarily time to be credited to the haulier: the lorry and the driver are ‘passive’, the transport service is (generally) provided by another intervener from the modal chain (railway transporter, sea-going transporter, etc.). Furthermore, time itself is not the criterion adopted by the legislature in Directive 2020/1057. Accordingly, the situation of a driver carrying out an entire combined transport operation does not seem to me to be comparable with the situation of a driver performing a bilateral transport operation. I am therefore unable to support Hungary’s assertion that accompanied combined transport operations are ‘of a piece’. Contrary to Hungary’s contention, the differentiated treatment is the result not of the change in the mode of transport, but of the objective differences between the types of transport as regards the methods used for the actual supply of the services. I am therefore inclined to consider, as does the Parliament, that the legislature’s choice is explained by the need to take account of the particularities of a transport operation of that type and of the specific nature of the problem that the legislature addressed when it adopted Directive 2020/1057.

1103. Having regard to the profoundly polymorphic nature of combined transport operations, it seems to me to be scarcely avoidable that the application of Article 1(6) of Directive 2020/1057 can be made essentially only on a case-by-case basis according to the criteria that it lays down. Furthermore, it follows from the case-law referred to in point 80 of this Opinion that, including with respect to the principle of equal treatment, the Courts of the European Union cannot substitute their own assessment for that of the legislature.

1104. Last, I note, as does the Parliament, that Hungary does not deny that it is lawful to separate combined transport operations into initial or final road legs where the combined transport operation is not accompanied. That distinction between initial or final road legs was not created from nothing by the EU legislature when it adopted Directive 2020/1057, but it employs the terms of the definition (which Hungary cannot seek to call into question in the part of its action that is directed against Directive 2020/1057) provided by Directive 92/106 in Article 1, to which Article 1(6) therefore makes express reference.

1105. The Republic of Hungary’s plea cannot therefore be upheld.

(iv) Conclusion

1106. The pleas alleging breach by Article 1(1), (3), (4), (5), (6) and (7) of Directive 2020/1057 of the principle of equal treatment and of the principle of non-discrimination must be rejected in their entirety.

(h)    The breach of the principles of free movement of goods and freedom to provide services

(1)    Arguments des parties

1107. First, as regards the free movement of goods, the Republic of Bulgaria and the Republic of Cyprus, using the same line of argument, maintain that the application of the hybrid model has serious economic consequences that affect the free movement of goods. Such a model constitutes a measure having equivalent effect to quantitative restrictions prohibited by Article 34 and 35 TFEU that cannot be justified under Article 36 TFEU. The Commission recognised that the application of the national legislation to all international transport operations entailing a loading and/or unloading on the national territory, without consideration of the sufficient connection with the Member State concerned, would constitute a disproportionate restriction on freedom to provide services and on the free movement of goods and would not be justified since it would give rise to disproportionate administrative constraints preventing the proper functioning of the internal market. (616)

1108. Second, as regards the free movement of services and the common transport policy, the Republic of Bulgaria and the Republic of Cyprus maintain that the hybrid model restricts the free movement of transport services, contrary to Article 58(1) TFEU read in conjunction with Article 91 TFUE. They maintain that it follows from the Court’s case-law that the application of the principle of freedom to provide services should be achieved by the implementation of the common transport policy. The hybrid model reintroduces a form of discrimination on the ground of the nationality of the service provider or of its place of establishment and constitutes a retrograde step in the establishment of a common transport policy guaranteeing freedom to provide services. Since it also follows from the case-law that in such matters the EU legislature does not have the discretion on which it may rely in other areas of the common transport policy, the Parliament and the Council failed to fulfil their obligation to ensure the application of the principles of freedom to provide services across the common transport policy.

1109. In case the Court should deem it relevant, the Republic of Bulgaria and the Republic of Cyprus maintain that, for the same reasons, there has been an infringement of Article 56 TFEU. They recall, last, that they reject the idea that Directive 2020/1057 introduces derogations from the stricter legal regime of Directive 96/71.

1110. The Council and the Parliament, and the interveners supporting them, contend that these pleas must be rejected.

(2)    Analysis

1111. As regards the first part of this plea, the Republic of Bulgaria and the Republic of Cyprus maintain that the ‘hybrid model’ is a measure having equivalent effect to the quantitative restrictions prohibited under Articles 34 and 35 TFEU that cannot be justified on the basis of Article 36 TFEU.

1112. Those applicants have not in my view demonstrated to the requisite standard that that is the effect of the implementation of the hybrid model on an EU-wide scale but have merely made general and unsubstantiated assertions. Such proof is even more difficult because what are alleged to be the restrictive effects on the free movement of goods of the application of the rules on posting to international road transport operations in the conditions laid down in Directive 2020/1057 clearly seem to be too random and too indirect for the ‘hybrid model’ to be able to be regarded as being capable of impeding trade between Member States and therefore as constituting a restriction within the meaning of Articles 34 and 35 TFEU. (617)

1113. The citation from the Commission’s press release dated 27 April 2017 (618) did not allow the applicants to consolidate their position. First, the Commission was expressing its views not on Directive 2020/1057 but on the case of the application of national legislation to international transport operations in conditions unilaterally decided by the Member State concerned. Second, while the Commission then regretted that the triggering factor of the national legislation was the sole fact that the international transport operation concerned entailed a loading or an unloading on the national territory, it must be stated that that is specifically not the criterion employed by the EU legislature in Directive 2020/1057 for the purpose of determining whether or not there is a situation of posting. Furthermore, the Commission stated in that press release that it found no justification for applying the national legislation to international transport operations without a sufficient connection with the Member State concerned.

1114. The first part of the present plea must therefore be rejected as unfounded.

1115. As regards the second part of the present plea, I have already referred to the specific character and the special place of the transport sector in the Treaties, (619) where it is subject to a special legal regime in the context of the internal market. I recall in particular that the special status of transport in the regulatory organisation of the internal market is distinguished by the combination of a right of establishment in any Member State on the basis of the Treaty and a right of hauliers to freedom to provide services which is guaranteed only in so far as that right has been recognised by measures of secondary law adopted by the EU legislature within the framework of the common transport policy.

1116. As regards the alleged interference with freedom to provide services, I note at the outset that neither the Republic of Bulgaria nor the Republic of Cyprus has in any way substantiated its assertion that the ‘hybrid model’ restricts freedom to provide transport services.

1117. If the Court should however examine that part of the present plea, I observe that Article 58(1) TFEU and Article 91 TFEU provide that freedom to provide services in the field of transport is to be implemented by the EU legislature.

1118. As I have already said, the EU legislature is perfectly entitled, in adapting a legislative measure in order to increase the social protection of the workers concerned, to alter the conditions in which freedom to provide services is exercised in the field of road transport, since the degree of liberalisation, under Article 58(1) TFEU, is to be determined not directly by Article 56 TFEU but by the EU legislature itself within the framework of the implementation of the common transport policy.

1119. In those circumstances, the second part of the present plea must in any event be rejected as unfounded.

(i)    The infringement of Article 11 TFEU and of Article 37 of the Charter

(1)    The parties’ arguments

1120. According to the Republic of Poland, Article 11 TFEU and Article 37 of the Charter were infringed by the provisions contained in Article 1(3), (4) (6) and (7) of Directive 2020/1057, since environmental protection requirements were not sufficiently taken into account.

1121. It follows from those two provisions that the EU institutions are required to refrain from taking measures capable of undermining the attainment of the environmental protection objectives, not just measures relating to Articles 191 and 192 TFEU. The principle of the integration of environmental requirements in the other EU policies that flows from those provisions allows the objectives and requirements of environmental protection to be reconciled with the other interests and aims pursued by the European Union and the pursuit of sustainable development. Such a principle constitutes in itself a ground for annulment of an EU act where environmental interests manifestly have not been taken into account or where they have been completely disregarded, as is apparent from Advocate General Geelhoed’s interpretation of Article 6 EC. (620)

1122. Having regard to the broad horizontal character of Article 11 TFEU, in considering whether a given measure contributes sufficiently to environmental protection, it should not be regarded in isolation from other EU measures adopted for that purpose in relation to the activity concerned; it is the totality of the measures adopted by the European Union in that field that provides the proper framework for assessment. Judicial review of the assessment of whether the action taken by the EU legislature is in conformity with that principle should be analogous to that carried out by the General Court when it has been required to assess whether action taken by the Commission observed the principle of energy solidarity. (621) In those circumstances, it was for the EU legislature to take the environmental requirements into account before it adopted the contested measures, which entailed, in particular, carrying out an assessment of the impact of the proposed rules on the environment and ensuring that those rules would not jeopardise the attainment of the objectives laid down in the other acts of secondary law adopted in the area of the environment.

1123. The Parliament and the Council were required to weigh up the competing interests and, if appropriate, to make appropriate amendments. An interpretation of Article 11 TFEU as meaning that it related only to areas of law and not to individual measures has the effect of considerably reducing its importance. The environmental protection requirements should be taken into account, including in the determination of the different measures forming part of the relevant area of EU law. The argument that the other acts of secondary law aimed at combating atmospheric pollution cannot be taken into consideration must be rejected, if the effectiveness of Article 11 TFEU is not to be undermined again, as the institutions would then be able to adopt an act impeding or preventing the attainment of objectives adopted in the field of the environment when the climate crisis is the main challenge facing the EU environmental policy and the institutions should work consistently to achieve the climate objectives adopted by the European Union. It is well known that air pollution caused by emissions from transport gives rise to numerous health problems, to which road transport is the main contributor. In applying the rules on posting to drivers carrying out cabotage operations and operations between third countries, the application of Directive 2020/1057 gives rise, according to the Republic of Poland, to additional journeys, including empty trips, and thus to an increase in CO2 emissions and emissions of atmospheric pollutants, whereas the institutions, conversely, are required to refrain from taking action that undermines the effectiveness of the rules already adopted to reduce emissions of pollutants and CO2 and the attainment of the EU environmental objectives arising, in particular, from the European Green Deal, from the objective of a climate-neutral European Union by 2050 by a reduction of 90% of overall emissions from transport by comparison with 1990 levels by 2050 and from the objectives assigned to the Member States by the relevant EU legislation.

1124. Furthermore, the effects of Directive 2020/1057 on the environment should also be assessed in the light of the fact that they are added to the effects attributable to the other acts that make up the Mobility Package, namely Regulations 2020/1054 and 2020/1055. The negative effects on the environment of the obligation for vehicles to return are borne out by various analyses.

1125. The potential conflict between the contested measures and the EU climate objectives has also given rise to the fears expressed by Commissioner Vălean that the Mobility Package, in particular the mandatory return of the vehicle every eight weeks and the restrictions applicable to combined transport operations, is not consistent either with the ambitions of the European Green Deal or with the objective fixed by the European Council of a climate neutral European Union by 2050. (622) The Republic of Poland also emphasises that the Commission raised the level of the EU climate ambition in 2020 (623) and that CO2 emissions from the additional trips required by the contested measures are liable to further impede the attainment of that enhanced objective.

1126. The negative effects for the environment caused by the contested measures undermine the attainment by the Member States of the objectives of reducing greenhouse gas emissions set by Regulation 2018/842, (624) the objectives in terms of emissions of certain atmospheric pollutants set by Directive 2016/2284 (625) and the air quality objectives set by Directive 2008/50. (626) The additional emissions of nitrogen oxide and of dust to which the contested provisions give rise are liable to undermine the effectiveness of the action defined by the Member States in the air protection plans, in particular the plans adopted for the zones and built-up areas near the major routes used by international transport.

1127. In spite of all of those negative effects, the defendant institutions failed to fulfil their obligation to carry out a proper assessment of the impact of those measures on the attainment of the EU environmental objectives and respect for the obligations placed on the Member States under the acts relating to the environment. None of the measures that go to make up the Mobility Package addresses the environmental questions in its statement of reasons, nor were those questions examined in the impact assessment prepared before the Mobility Package was adopted, as the Commission merely stated that it had not identified any impact on the environment of the options envisaged. (627)

1128. The defendant institutions therefore did not assess the impact of the contested measures on the environmental requirements, although their effects were inconsistent with the objectives set in the acts adopted in relation to the environment. Nor did those institutions weigh those objectives against the interests pursued by the Mobility Package. The environmental protection requirements and the objective of ensuring a high level of environmental protection and improving the quality of the environment were manifestly not taken into account. As regards Directive 2020/1057, that is apparent in particular from the fact that the application of the rules on posting to the initial or final legs of combined transport operations makes their implementation in central Europe more difficult for hauliers from the peripheral States and, moreover, makes it less attractive to engage in combined transport operations. Bilateral journeys carried out exclusively by road are ultimately favoured, contrary to the objective sought and even though they are ‘non-ecological’. The assessment prepared for the Commission of the impact of the restrictions on cabotage on combined transport operations confirmed that the restrictions on the provision of cabotage services within the framework of combined transport operations will harm the environment and are contrary to the assumptions relating to the European Green Deal. (628)

1129.  Accordingly, Article 1(3), (4), (6) and (7) of Directive 2020/1057 breaches the principle of integration expressed in Article 11 TFEU and Article 37 of the Charter.

1130. The Council, the Parliament and the interveners supporting them contend that this plea must be rejected.

(2)    Analysis

1131. Most of the arguments put forward by the Republic of Poland in the context of this plea merely reiterate the arguments put forward in the context of the pleas alleging infringement of Article 11 TFEU and Article 37 of the Charter that it submitted in its actions against Regulation 2020/1054 and Regulation 2020/1055. Thus, as regards the arguments relating to the interpretation of Article 11 TFEU and its scope, and to the interpretation and scope of Article 37 of the Charter, the scope of the principle of integrating environmental concerns expressed in Article 11 TFEU and review by the Courts, the need to take into account the other actions of the EU legislature concerning environmental policy also affecting transport policy, the question of the absence of an impact assessment as constituting an infringement of Article 11 TFUE and that of the relationship between the directive and the European Green Deal, I refer to point 565 et seq. and to point 591 et seq. of this Opinion.

1132. Thus, in line with the conclusion which I drew from the analysis of the pleas alleging breach of EU environmental and climate change policy in the context of the actions brought against Regulation 2020/1055, it should be stated that, at the time when it adopted Directive 2020/1057, the EU legislature was entitled to consider, in the unfettered exercise of its wide discretion, that any negative consequences for the environment arising from the implementation of the obligations flowing from Directive 2020/1057 could be contained in application of the existing legislation relating more specifically to the environmental aspects of the activity in question and intended to accompany hauliers in the technological transition to a less polluting mobility.

1133. I would add that that, to my mind, is all the more true in the case of Directive 2020/1057 since, as the Parliament has claimed, the question whether it is really the source of additional polluting emissions is open to discussion, for a number of reasons.

1134. First, I recall that, according to the very objective of Directive 2020/1057, ‘sector-specific rules are needed to ensure a balance between the freedom of operators to provide cross-border services, free movement of goods, adequate working conditions and social protection for drivers’ (629) and that Article 1 of that directive lists a number rules the application of which will enable hauliers to determine which legislation, in particular social legislation, will be applicable to drivers, according to the characteristics deemed by the EU legislature to be relevant for the purposes of that determination. Thus, the impact of the determination of the social law applicable to a worker on the themes connected with the EU environmental policy is not immediately apparent. They might more readily appear to be solely the consequence of the hauliers’ intention to reorganise their operations in such a way as to avoid the application of more costly obligations for them in application of Directive 2020/1057.

1135. Second, in any event, since the Court held, in its judgment in Federatie Nederlandse Vakbeweging, (630) that Directive 96/71 was applicable to transnational provisions of services involving the posting of workers, including in the road transport sector, (631) and since the interpretation thus provided by the Court is the interpretation that had to be given of Directive 96/71 from its entry into force, the rules on posting which it lays down were therefore applicable in the road transport sector. One of the rare arguments put forward by the Republic of Poland that are specifically aimed at Directive 2020/1057 consists in maintaining that the application of the rules on posting to combined transport operations (632) in the circumstances set out in Article 1(6) of that directive discourages engagement in such operations, the environmentally favourable effect of which, moreover, is known and recognised. Hauliers thus decline to carry out multimodal operations and engage only in road transport, thus eliminating the environmental benefits of the use of combined transport.

1136. However, since the rules on posting already applied under Directive 96/71 alone, and according to the criteria to which the Court referred in the judgment in Federatie Nederlandse Vakbeweging, the application of the rules on the posting of workers to such operations is not, as the Parliament maintains, of such a kind as to revolutionise the pre-existing legal regime. I would add that Article 1(6) of Directive 2020/1057 specifies the circumstances in which those rules are to apply and ‘a driver shall not be considered to be posted … when performing the initial or final road leg of a combined transport operation … if the road leg on its own consists of bilateral transport operations, as defined in paragraph 3’ of Article 1 of that directive. It is therefore not in every situation that the rules on posting laid down in Directive 2020/1057 will apply in cases of combined transport operations.

1137. As regards the Republic of Poland’s allegation that there will be an increase in emissions because cabotage operations are subject to the rules on the posting of workers, I recall that recital 17 of Regulation No 1072/2009 already provided that ‘the provisions of Directive [96/71] apply to transport undertakings performing a cabotage operation’. Therefore, as the Parliament has claimed, the possible effects on the environment described by the Republic of Poland, even on the assumption that they exist, cannot be attributable to Directive 2020/1057.

1138. Last, as regards the argument that the alleged effects on the environment of Directive 2020/1057 should be assessed in the light of the fact that they are combined with the effects alleged to flow from the other components of the Mobility Package, it cannot be upheld, since those effects are in any event not attributable to the directive itself.

1139. For all of the foregoing reasons, the plea alleging infringement of Article 11 TFEU and of Article 37 of the Charter must be rejected as unfounded.

3.      The pleas relating to Article 9(1) of Directive 2020/1057

1140. The Republic of Poland is the only party to challenge the legality of Article 9(1) of Directive 2020/1057, whereby the EU legislature decided to make the measures contained in that directive applicable from 2 February 2022. It relies on three pleas for that purpose: breach of the principle of legal certainty, breach of the principle of proportionality and infringement of Article 94 TFEU. The latter two pleas will be examined together.

(a)    The breach of the principle of legal certainty

(1)    The parties’ arguments

1141. Since the provisions of Directive 2020/1057 which the Republic of Poland seeks to have annulled are imprecise and raise problems of interpretation and practical difficulties in determining the law applicable to the conditions of employment and work of drivers performing transport operations, the introduction of those provisions at national level will require the adoption of measures of a higher rank, entailing, for example, in Poland, extensive legislative work. The 18 months fixed by the directive are not sufficient to ensure the development of the national provisions, and then awareness of those provisions by hauliers for the purpose of complying with them. Hauliers must also take account of the collective agreements governing the sector and of the different national laws. Apart from the fact that Directive 2020/1057 also contains, in itself, a number of new obligations and that it also made Directive 96/71 applicable in the transport sector, its entry into force also entails the application of Directive 2018/957 (633) in the road transport sector, (634) which, again, requires a certain time for hauliers to adapt. In those circumstances, the setting of 2 February 2022, scarcely 18 months after Directive 2020/1057 was adopted, undermines the principle of legal certainty, which, according to settle case-law, requires that rules of law must be clear, precise and foreseeable in their effects, so that those concerned may be guided in situations and relationships coming within the EU legal order and respect for which is particularly pressing in the case of legislation which is liable to entail financial burdens. The absence of an obligation for the EU legislature to set a specific transitional period cannot be treated as an unfettered discretion on the part of the legislature in that respect. Although the judgment in Federatie Nederlandse Vakbeweging (635) clarified the scope of Directive 96/71, it was not delivered until 2020 and left a number of issues unresolved, so that, contrary to the defendant institutions’ contention, Directive 2020/1057 does not constitute a slight amendment of the pre-existing situation of hauliers. Allowing hauliers more time to assimilate the new normative framework would have enabled them to adapt more appropriately to that framework.

1142. The Parliament and the Council and the interveners supporting them contend that this plea is unfounded.

(2)    Analysis

1143. As regards the analytical framework relating to the principle of legal certainty, I refer to point 108 et seq. of this Opinion and shall merely observe that judicial review consists, in essence, in examining whether a provision is so ambiguous that it prevents those to whom it is addressed from raising with sufficient certainty any doubts as to its scope or meaning so that they are not in a position to determine unequivocally their rights and obligations under that provision.

1144. In that regard, it is sufficient in my view to state that Article 9(1) of Directive 2020/1057 requires Member States to adopt and publish the measures necessary to comply with that directive by 2 February 2022, the date from which they are to apply those measures. The date of 2 February 2022 is clearly established by the EU legislature, from the time of publication of the directive. There was therefore no doubt as to the date on which the addressees of the directive – the Member States – were required to prepare their respective national legal orders in order to fulfil their obligations under Directive 2020/1057. The Member States, like the hauliers, therefore had 18 months to prepare for the transposition of Directive 2020/1057.

1145. The Republic of Poland attempts to convince that Article 9 of Directive 2020/1057 is affected, indirectly in some way, by the imprecise and uncertain nature of the provisions alleged to be newly laid down by Directive 2020/1057. The present plea therefore appears to be a new attempt to put in discussion arguments that have already been dealt with. (636) I would add that, as the Council has claimed, the line of argument developed by the Republic of Poland in relation to Article 9 of Directive 2020/1057 is also based on the flawed assumption that Directive 96/71 was not applicable to the transport sector and that Directive 2020/1057 had the effect of making a whole new sector, which was unprepared, subject to the new complex rules relating to the posting of workers. In fact, I have already had the opportunity to observe that that was not the case, as is apparent in particular from the judgment in Federatie Nederlandse Vakbeweging.

1146. The plea alleging breach of the principle of legal certainty must therefore be rejected as unfounded.

(b)    The breach of the principle of proportionality and infringement of Article 94 TFEU

(1)    The parties’ arguments

1147. The Republic of Poland maintains that the requirements flowing from the principle of proportionality were disregarded by the EU legislature, since it did not present any objective grounds to justify setting a transposition period of 18 months when the period adopted for acts of the same type is generally two years, as was the case for Directives 2014/67 and 2018/957, while Directive 96/71 provided for an even longer period. The specificities of the road transport sector required that undertakings be allowed sufficient time to comply with the new legislation, at least equal to that allowed for other service sectors. The EU legislature ought also have taken account of the fact that the hauliers were also required to make preparations, within the same time frame, to apply the requirements flowing from Regulations 2020/1054 and 2020/1055, which will require hauliers to make significant changes to the way in which they provide services. Nor did the EU legislature take account of the fact that the transport market is dominated by small and medium-sized enterprises, which need more time to familiarise themselves with and adjust to the new legislation, particularly in the light of the costs which that represents for them. The situation of hauliers is made even more difficult owing to the measures adopted as a result of the COVID-19 pandemic. Furthermore, the Republic of Poland claims that some Member States have laid down particularly harsh penalties in the event of failure to comply with the conditions of employment and work and the associated procedural requirements. Those penalties take effect on expiry of the period prescribed by the legislature and thus do not allow sufficient time for the hauliers to adapt to the new rules. The setting of a period of 18 months therefore does not meet the requirements of the principle of proportionality.

1148. The setting of such a period is also contrary to Article 94 TFEU, since it does not take account of the economic circumstances of hauliers. The Republic of Poland refers to the observations that it developed within the framework of the plea alleging breach of the principle of proportionality. It also refers to the arguments which it developed within the framework of the plea alleging infringement by Article 1(3), (4) (6) and (7) of Directive 2020/1057 of Article 94 TFEU, from which it follows, in essence, that the amendments flowing from the application of the rules on posting to drivers will entail considerable costs for transport undertakings, leading to the bankruptcy of a proportion of them and that the vulnerability of those undertakings is further increased, since Directive 2020/1057 was introduced in a period of economic crisis marked by the COVID-19 pandemic. The failure to take those elements into account proves the infringement of Article 94 TFEU in the light of the negative effects that Article 1 of Directive 2020/1057 is expected to have for transport undertakings.

1149. The Council and the Parliament, and the interveners supporting them, contend that both of these pleas must be rejected as unfounded.

(2)    Analyse

1150. As regards the plea alleging breach of the principle of proportionality, I shall merely recall, as does the Council, that it follows from the case-law that, as the Governments of the Member States participate in the preparatory works for directives, they must therefore be in a position to prepare within the prescribed period the legislative provisions necessary for their implementation. (637) The EU legislature has a wide discretion to set the deadline for the transposition of directives and is not required to present specific grounds to justify setting a deadline of 18 months.

1151. As regards the alleged infringement of Article 94 TFEU, the Republic of Poland’s argument must be understood to mean that Article 9(1) of Directive 2020/1057 infringes that provision not so much in itself as because it has the effect of rendering the obligations laid down in that directive binding in particular on hauliers subject to that provision, from the date which it sets. The applicant is of the view that those obligations infringe Article 94 TFEU.

1152. I note at the outset that the Republic of Poland has not established that Article 9(1) of Directive 2020/1057 is a measure ‘in respect of transport rates and conditions’ within the meaning of Article 94 TFEU, which, moreover, may be legitimately doubted since Article 9, on its own, merely sets a date for the adoption and publication of the national provisions necessary for the transposition of Directive 2020/1057. If the Court should share my doubts, that would already be sufficient ground to reject the present plea.

1153. For the remainder, the Republic of Poland’s argument calls for the same response as that formulated in the context of the analysis of the plea alleging breach of the principle of legal certainty by Article 9(1) of Directive 2020/1057. As the Council has observed, the arguments relating to the share of small and medium-sized enterprises in the road transport sector, to the costs arising from the submission of that sector to the rules on the posting of workers, to the lack of justification for the measures laid down in Directive 2020/1057 and to the effects of the COVID-19 pandemic have already been put forward in the context of the examination of the plea alleging infringement of Article 94 TFEU by Article 1(3), (4), (6) and (7) of Directive 2020/1057, the Republic of Poland clearly intending to put into discussion again questions which have already been discussed and settled. Since it has already been established that Article 1(3), (4), (6) and (7) of Directive 2020/1057 does not infringe Article 94 TFEU, (638) the same finding must be made with regard to Article 9(1) of Directive 2020/1057.

1154. For all of the foregoing reasons, I suggest that the Court should reject the pleas alleging breach by Article 9(1) of Directive 2020/1057, first, of the principle of proportionality and, second, of Article 94 TFEU as unfounded.

4.      Conclusion on the actions relating to Directive 2020/1057

1155. The actions in Cases C‑541/20 and 551/20, in so far as they relate to Directive 2020/1057, and the actions in Cases C‑544/20, C‑548/20, C‑550/20 and C‑555/20 are dismissed.

V.      Costs

1156. Under Article 138(1) of the Rules of Procedure of the Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

1157. Article 138(3) of the Rules of Procedure provides that, where each party succeeds on some and fails on other heads, the parties are to bear their own costs. However, if it appears justified in the circumstances of the case, the Court may order that one party, in addition to bearing its own costs, pay a proportion of the costs of the other party.

1158. In the light of those considerations, and having regard to the particular configuration of the actions in Joined Cases C‑541/20 to C‑555/20, I propose that the Court should make an order for costs as follows.

1159. The Republic of Lithuania is ordered to pay the costs in Case C‑541/20.

1160. The Republic of Bulgaria is ordered to pay the costs in Cases C‑543/20 and C‑544/20.

1161. Romania is ordered to pay the costs in Cases C‑546/20 and C 548/20.

1162. The Parliament and the Council are ordered to pay the costs in Case C‑549/20.

1163. The Republic of Cyprus is ordered to pay the costs in Case C‑550/20.

1164. The Republic of Poland is ordered to pay the costs in Case C‑553/20 and C‑555/20.

1165. In Cases C‑542/20, C‑545/20, C‑547/20, C‑551/20, C‑552/20 and C‑554/20, the parties shall bear their own costs.

1166. Furthermore, in accordance with Article 140(1) of the Rules of Procedure of the Court, the Republic of Lithuania and Romania, where they have taken part in the present joined actions as interveners, the Republic of Estonia, the Republic of Latvia, the Kingdom of Belgium, the Kingdom of Denmark, the Federal Republic of Germany, the Hellenic Republic, the French Republic, the Italian Republic, the Grand Duchy of Luxembourg, the Kingdom of the Netherlands, the Republic of Austria and the Kingdom of Sweden shall bear their own costs.

VI.    Conclusion

1167. Having regard to the foregoing considerations, I propose that in Joined Cases C‑541/20 to C‑555/20 the Court should:

(1)      Uphold the action brought by the Republic of Cyprus in Case C‑549/20.

(2)      Uphold the actions brought by the Republic of Lithuania in Case C‑542/20, by the Republic of Bulgaria in Case C‑545/20, by Romania in Case C‑547/20, by Hungary in Case C‑551/20, by the Republic of Malta in Case C‑552/20 and by the Republic of Poland in Case C‑554/20, in so far as they are directed against Article 1(3) of Regulation (EU) 2020/1055.

(3)      Consequently, annul Article 1(3) of Regulation (EU) 2020/1055 in so far as it amends Article 5(1)(b) of Regulation No 1071/2009.

(4)      Dismiss the actions referred to in paragraph 2 for the remainder.

(5)      Dismiss the actions brought by the Republic of Lithuania in Case C‑541/20, by Bulgaria in Cases C‑543/20 and C‑544/20, by Romania in Cases C‑546/20 and C‑548/20, by the Republic of Cyprus in Case C‑550/20 and by the Republic of Poland in Cases C‑553/20 and 555/20.

(6)      Order the Republic of Lithuania to pay the costs in Case C‑541/20.

(7)      Order the Republic of Bulgaria to pay the costs in Cases C‑543/20 and C‑544/20.

(8)      Order Romania to pay the costs in Cases C‑546/20 and C‑548/20.

(9)      Order the Parliament and the Council to pay the costs in Case C‑549/20.

(10)      Order the Republic of Cyprus to pay the costs in Case C‑550/20.

(11)      Order the Republic of Poland to pay the costs in Cases C‑553/20 and C‑555/20.

(12)      Order the parties to bear their own costs in Cases C‑542/20, C‑545/20, C‑547/20, C‑551/20, C‑552/20 and C‑554/20.

(13)      Order the Republic of Lithuania and Romania, where they took part in the present actions as interveners, the Republic of Estonia, the Republic of Latvia, the Kingdom of Belgium, the Kingdom of Denmark, the Federal Republic of Germany, the Hellenic Republic, the French Republic, the Italian Republic, the Grand Duchy of Luxembourg, the Kingdom of the Netherlands, the Republic of Austria and the Kingdom of Sweden to bear their own costs.

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1      Original language: French.

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2      Regulation of the European Parliament and of the Council of 15 July 2020 amending Regulation (EC) No 561/2006 as regards minimum requirements on maximum daily and weekly driving times, minimum breaks and daily and weekly rest periods and Regulation (EU) No 165/2014 as regards positioning by means of tachographs (OJ 2020 L 249, p. 1).

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3      Regulation of the European Parliament and of the Council of 15 July 2020 amending Regulations (EC) No 1071/2009, (EC) No 1072/2009 and (EU) No 1024/2012 with a view to adapting them to developments in the road transport sector (OJ 2020 L 249, p. 17).

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4      Directive of the European Parliament and of the Council of 15 July 2020 laying down specific rules with respect to Directive 96/71/EC and Directive 2014/67/EU for posting drivers in the road transport sector and amending Directive 2006/22/EC as regards enforcement requirements and Regulation (EU) No 1024/2012 (OJ 2020 L 249, p. 49).

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5      OJ 1992 L 368, p. 38.

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6      Impact assessment accompanying the proposal for a working time regulation and the proposal for a posting directive (‘Impact assessment – social section’), and impact assessment accompanying the proposal for an establishment regulation (‘Impact assessment – establishment section’).

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7      Granted leave to intervene by decisions of the President of the Court of 27 April 2021.

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8      Granted leave to intervene by decisions of the President of the Court of 27 April 2021.

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9      Granted leave to intervene by decisions of the President of the Court of 21 April 2021.

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10      Granted leave to intervene by decisions of the President of the Court of 29 April 2021.

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11      Granted leave to intervene by decisions of the President of the Court of 3 May 2021.

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12      Granted leave to intervene by decisions of the President of the Court of 29 April 2021.

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13      Granted leave to intervene by decisions of the President of the Court of 22 April 2021.

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14      Granted leave to intervene by decisions of the President of the Court of 22 April 2021.

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15      Granted leave to intervene by decisions of the President of the Court of 12 May 2021.

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16      Granted leave to intervene by decisions of the President of the Court of 29 April 2021.

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17      Granted leave to intervene by decisions of the President of the Court of 13 April 2021.

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18      Granted leave to intervene by decisions of the President of the Court of 22 April 2021.

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19      Although the head of claim is worded in those terms, the complaints in the action are directed against point 4(a) of Article 2 of Regulation 2020/1055 (see paragraph VIII of the application in Case C‑552/20).

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20      Granted leave to intervene by decisions of the President of the Court of 27 April 2021.

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21      Granted leave to intervene by decisions of the President of the Court of 27 April 2021.

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22      Granted leave to intervene by decisions of the President of the Court of 27 April 2021.

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23      See Opinion of Advocate General Szpunar in Joined Cases Trijber and Harmsen (C‑340/14 and C‑341/14, EU:C:2015:505, point 29). See also judgment of 1 October 2015, Trijber and Harmsen (C‑340/14 et C‑341/14, EU:C:2015:641, paragraph 48).

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24      See Opinion 2/15 (EU-Singapore Free Trade Agreement) of 16 May 2017 (EU:C:2017:376, point 61 and the case-law cited).

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25      Among the special aspects of the transport sector, mention is traditionally made of, inter alia, the necessary link between transport services and a specific infrastructure, the extremely mobile nature of the means of production and the high degree of substitutability between commercial transport services and ‘self-production’ (namely individualised motorised transport). Several other aspects are also referred to in the literature.

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26      See, to that effect, judgment of 22 May 1985, Parliament v Council (13/83, EU:C:1985:220, paragraphs 49 and 50).

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27      Judgment of 9 September 2004, Spain and Finland v Parliament and Council (C‑184/02 and C‑223/02, EU:C:2004:497, paragraph 56 and the case-law cited).

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28      See, to that effect, judgment of 18 March 2014, International Jet Management (C‑628/11, EU:C:2014:171, paragraph 36). See also judgment of 4 April 1974, Commission v France (167/73, EU:C:1974:35, paragraph 27).

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29      Judgment of 8 December 2020, Hungary v Parliament and Council (C‑620/18, EU:C:2020:1001, paragraphs 159). See also judgment of 22 December 2010, Yellow Cab Verkehrsbetrieb (C‑338/09, EU:C:2010:814, paragraph 29 and the case-law cited).

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30      Judgment of 22 December 2010, Yellow Cab Verkehrsbetrieb (C‑338/09, EU:C:2010:814, paragraph 30 and the case-law cited).

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31      See, to that effect, for example, judgments of 5 October 1994, Commission v France (C‑381/93, EU:C:1994:370, paragraph 13) and of 6 February 2003, Stylianakis (C‑92/01, EU:C:2003:72, paragraph 24).

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32      See, to that effect, judgments of 8 December 2020, Hungary v Parliament and Council (C‑620/18, EU:C:2020:1001, paragraph 160) and of 20 December 2017, Asociación Profesional Elite Taxi (C‑434/15, EU:C:2017:981, paragraph 48).

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33      Judgment of 22 December 2010, Yellow Cab Verkehrsbetrieb (C‑338/09, EU:C:2010:814, paragraph 33). See also Opinion of Advocate General Szpunar in Prestige and Limousine (C‑50/21, EU:C:2022:997, point 4).

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34      See Chapter III of Regulation No 1072/2009. See also Impact assessment – establishment section, Part 1.2, p. 2.

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35      See Impact assessment – social section, Part 1.2, p. 4.

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36      Judgment of 16 February 2022, Hungary v Parliament and Council (C‑156/21, EU:C:2022:97, paragraph 340 and the case-law cited).

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37      See point 42 of this Opinion.

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38      See, inter alia, judgment of 8 December 2020, Hungary v Parliament and Council (C‑620/18, EU:C:2020:1001, paragraph 112 and the case-law cited). To that effect, see also judgment of 16 February 2022, Poland v Parliament and Council (C‑157/21, EU:C:2022:98, paragraph 354 and the case-law cited).

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39      Judgments of 8 December 2020, Hungary v Parliament and Council (C‑620/18, EU:C:2020:1001, paragraph 114 and the case-law cited); of 3 December 2019, Czech Republic v Parliament and Council (C‑482/17, EU:C:2019:1035, paragraph 78 and the case-law cited); and of 21 June 2018, Poland v Parliament and Council, (C‑5/16, EU:C:2018:483, paragraph 151).

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40      Judgments of 8 December 2020, Hungary v Parliament and Council (C‑620/18, EU:C:2020:1001, paragraph 115) and of 3 December 2019, Czech Republic v Parliament and Council (C‑482/17, EU:C:2019:1035, paragraph 79 and the case-law cited).

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41      Judgments of 21 June 2018, Poland v Parliament and Council, (C‑5/16, EU:C:2018:483, paragraph 170 and the case-law cited) and of 3 December 2019, Czech Republic v Parliament and Council (C‑482/17, EU:C:2019:1035, paragraph 118).

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42      Judgment of 3 December 2019, Czech Republic v Parliament and Council (C‑482/17, EU:C:2019:1035, paragraphs 118 et 119). See, also, judgment of 12 May 2011, Luxembourg v Parliament and Council (C‑176/09, EU:C:2011:290, paragraph 62, and, to that effect, the case-law referred to in point 66).

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43      Judgments of 21 June 2018, Poland v Parliament and Council, (C‑5/16, EU:C:2018:483, paragraph 170 and the case-law cited) and of 17 October 2013, Billerud Karlsborg and Billerud Skärblacka (C‑203/12, EU:C:2013:664, paragraph 35 and the case-law cited).

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44      Judgments of 8 December 2020, Hungary v Parliament and Council (C‑620/18, EU:C:2020:1001, paragraph 116) and of 3 December 2019, Czech Republic v Parliament and Council (C‑482/17, EU:C:2019:1035, paragraph 81 and the case-law cited).

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45      See, to that effect, judgment of 21 June 2018, Poland v Parliament and Council, (C‑5/16, EU:C:2018:483, paragraph 177 and the case-law cited).

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46      See judgments of 21 June 2018, Poland v Parliament and Council, (C‑5/16, EU:C:2018:483, paragraph 167), and of 13 March 2019, Poland v Parliament and Council (C‑128/17, EU:C:2019:194, paragraph 106).

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47      See footnote 6 of this Opinion.

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48      See, to that effect, judgment of 3 December 2019, Czech Republic v Parliament and Council (C‑482/17, EU:C:2019:1035, paragraphs 76 to 81, as well as 84 and 85).

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49      OJ 2016 L 123, p. 1.

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50      See paragraph 13 of the interinstitutional agreement, and also judgment of 3 December 2019, Czech Republic v Parliament and Council (C‑482/17, EU:C:2019:1035, paragraph 83).

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51      Judgment of 3 December 2019, Czech Republic v Parliament and Council (C‑482/17, EU:C:2019:1035, paragraph 84).

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52      See point 96 of the Opinion of Advocate General Sharpston in in Czech Republic v Parliament and Council (C‑482/17, EU:C:2019:321), expressly mentioned in paragraph 82 of the judgment of 3 December 2019, Czech Republic v Parliament and Council (C‑482/17, EU:C:2019:1035).

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53      See point 96 of the Opinion of Advocate General Sharpston in Czech Republic v Parliament and Council (C‑482/17, EU:C:2019:321), expressly mentioned in paragraph 82 of the judgment of 3 December 2019, Czech Republic v Parliament and Council (C‑482/17, EU:C:2019:1035).

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54      Judgment of 3 December 2019, Czech Republic v Parliament and Council (C‑482/17, EU:C:2019:1035, paragraph 82).

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55      Judgment of 3 December 2019, Czech Republic v Parliament and Council (C‑482/17, EU:C:2019:1035, paragraph 85).

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56      See paragraph 14 of the interinstitutional agreement and judgment of 3 December 2019, Czech Republic v Parliament and Council (C‑482/17, EU:C:2019:1035, paragraph 83).

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57      Judgments of 21 June 2018, Poland v Parliament and Council, (C‑5/16, EU:C:2018:483, paragraph 159) and of 8 July 2010, Afton Chemical (C‑343/09, EU:C:2010:419, paragraph 57).

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58      See paragraph 15 of the interinstitutional agreement and judgments of 3 December 2019, Czech Republic v Parliament and Council (C‑482/17, EU:C:2019:1035, paragraph 83) and of 13 March 2019, Poland v Parliament and Council (C‑128/17, EU:C:2019:194, paragraph 43).

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59      See point 97 of the Opinion of Advocate General Sharpston in Czech Republic v Parliament and Council (C‑482/17, EU:C:2019:1035), expressly mentioned in paragraph 82 of the judgment of 3 December 2019, Czech Republic v Parliament and Council (C‑482/17, EU:C:2019:1035).

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60      See point 98 of the Opinion of Advocate General Sharpston in Czech Republic v Parliament and Council (C‑482/17, EU:C:2019:1035).

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61      Judgment of 4 May 2016, Pillbox 38 (C‑477/14, EU:C:2016:324, paragraphs 64 and 65).

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62      See, to that effect, judgment of 13 March 2019, Poland v Parliament and Council (C‑128/17, EU:C:2019:194, paragraph 43).

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63      Judgment of 13 March 2019, Poland v Parliament and Council (C‑128/17, EU:C:2019:194, paragraph 31 and the case-law cited).

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64      Judgment of 3 December 2019, Czech Republic v Parliament and Council (C‑482/17, EU:C:2019:1035, paragraph 86 and the case-law cited). See also, to that effect, judgment of 21 June 2018, Poland v Parliament and Council, (C‑5/16, EU:C:2018:483, paragraphs 160 to 163).

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65      See, to that effect, judgment of 8 July 2010, Afton Chemical (C‑343/09, EU:C:2010:419, paragraph 39).

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66      Judgments of 22 February 2022, Stichting Rookpreventie Jeugd and Others (C‑160/20, EU:C:2022:101, paragraph 67) and of 3 December 2019, Czech Republic v Parliament and Council (C‑482/17, EU:C:2019:1035, paragraph 80 and the case-law cited).

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67      Judgment of 3 February 2021, Fussl Modestraße Mayr (C‑555/19, EU:C:2021:89, paragraph 95 and the case-law cited).

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68      See, inter alia, judgment of 14 July 2022, Commission v VW and Others (C‑116/21 P to C‑118/21 P, C‑138/21 P and C‑139/21 P, EU:C:2022:557, paragraph 140 and the case-law cited).

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69      See, inter alia, judgment of 8 December 2020, Hungary v Parliament and Council (C‑620/18, EU:C:2020:1001, paragraph 110 and the case-law cited).

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70      Judgment of 24 February 2022, Glavna direktsia ‘Pozharna bezopasnost i zashtita na naselenieto’ (C‑262/20, EU:C:2022:117, paragraph 58 and the case-law cited).

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71      Judgment of 3 February 2021, Fussl Modestraße Mayr (C‑555/19, EU:C:2021:89, paragraph 99). See judgment of 12 May 2011, Luxembourg v Parliament and Council (C‑176/09, EU:C:2011:290, paragraph 32).

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72      See point 42 of this Opinion.

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73      See judgment of 12 May 2011, Luxembourg v Parliament and Council (C‑176/09, EU:C:2011:290, paragraphs 34 and 35).

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74      Judgments of 13 September 2005, Commission v Council (C‑176/03, EU:C:2005:542, paragraph 41 and the case-law cited); of 15 November 2005, Commission v Austria (C‑320/03, EU:C:2005:684, paragraph 72); of 22 December 2008, British Aggregates v Commission (C‑487/06 P, EU:C:2008:757, paragraph 91); of 16 July 2009, Horvath (C‑428/07, EU:C:2009:458, paragraph 29); and of 21 December 2011, Commission v Austria (C‑28/09, EU:C:2011:854, paragraph 120.

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75      See, inter alia, judgments of 13 September 2005, Commission v Council (C‑176/03, EU:C:2005:542, paragraph 42); of 15 November 2005, Commission v Austria (C‑320/03, EU:C:2005:684, paragraph 73 and the case-law cited); and of 21 December 2011, Commission v Austria (C‑28/09, EU:C:2011:854, paragraph 121).

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76      See judgment of 13 March 2019, Poland v Parliament and Council (C‑128/17, EU:C:2019:194, paragraph 128 and the case-law cited).

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77      See Opinion of Advocate General Geelhoed in Austria v Parliament and Council (C‑161/04, EU:C:2006:66, points 59 and 60).

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78      See judgment of 13 March 2019, Poland v Parliament and Council (C‑128/17, EU:C:2019:194, paragraphs 130 and 131, and the case-law cited).

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79      See, to that effect, judgments of 31 March 1971, Commission v Council (22/70, EU:C:1971:32, paragraph 40), and of 9 September 2015, Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro v Commission (C‑506/13 P, EU:C:2015:562, paragraph 17). See also Opinion of Advocate General Jacobs in Commission v EIB (C‑15/00, EU:C:2002:557, paragraph 82).

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80      Judgment of 31 March 2022, Commission v Poland (Taxation of energy products) (C‑139/20, EU:C:2022:240, paragraphs 55 and 56 and the case-law cited).

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81      See, to that effect, judgment of 9 September 2015, Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro v Commission (C‑506/13 P, EU:C:2015:562, paragraphs 17 and 18).

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82      The Republic of Lithuania puts forward its arguments in the context of the first plea which it has raised in Case C‑541/20, alleging breach of the principle of proportionality by point 6(d) of Article 1 of Regulation 2020/1054. In the light of their content, however, those arguments should be examined in the context of the analysis of the pleas relating to breach of the principle of legal certainty.

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83      At the hearing the Republic of Lithuania also referred to penalties imposed at national level on the basis of an interpretation of the provision at issue which differs from that indicated by the EU institutions.

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84      Judgments of 16 February 2022, Hungary v Parliament and Council (C‑156/21, EU:C:2022:97, paragraph 223 and the case-law cited) and of 16 February 2022 Poland v Parliament and Council (C‑157/21, EU:C:2022:98, paragraph 319 and the case-law cited).

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85      Judgment of 21 June 2018, Poland v Parliament and Council (C‑5/16, EU:C:2018:483, paragraph 100 and the case-law cited).

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86      Judgments of 16 February 2022, Hungary v Parliament and Council (C‑156/21, EU:C:2022:97, paragraph 224 and the case-law cited), and of 16 February 2022, Poland v Parliament and Council (C‑157/21, EU:C:2022:98, paragraph 320 and the case-law cited).

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87      Judgment of 30 January 2019, Planta Tabak (C‑220/17, EU:C:2019:76, paragraph 32 and the case-law cited).

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88      Judgments of 16 February 2022, Hungary v Parliament and Council (C‑156/21, EU:C:2022:97, paragraph 225 and the case-law cited), and of 16 February 2022 (Poland v Parliament and Council, C‑157/21, EU:C:2022:98, paragraph 321 and the case-law cited).

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89      See, to that effect, judgment of 14 April 2005, Belgium v Commission (C‑110/03, EU:C:2005:223, paragraph 31).

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90      Emphasis added.

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91      In that regard, I note that there is no doubt that driving time to the place of return constitutes working time. See Article 9(2) of Regulation No 561/2006, as amended by Article 1(8)(b) of Regulation 2020/1054. See also, by analogy, judgment of 10 September 2015, Federación de Servicios Privados del sindicato Comisiones obreras (C‑266/14, EU:C:2015:578, paragraph 50).

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92      See judgments of 11 November 2004, Adanez-Vega (C‑372/02, EU:C:2004:705, paragraph 37), and of 25 February 1999, Swaddling (C‑90/97, EU:C:1999:96, paragraph 29 and the case-law cited).

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93      See judgment of 12 April 2018, Commission v Denmark (C‑541/16, EU:C:2018:251, paragraphs 28 and 31 and the case-law cited). See also Article 291(1) TFEU.

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94      See, to that effect, by analogy, judgment of 30 January 2019, Planta Tabak (C‑220/17, EU:C:2019:76, paragraph 33 and the case-law cited).

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95      See, to that effect, Opinion of Advocate General Bot in Case Commission v Council (C‑196/12, EU:C:2013:549, point 85).

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96      See judgment of 12 April 2018, Commission v Denmark (C‑541/16, EU:C:2018:251, paragraph 47).

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97      See paragraph 25 of that reply.

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98      See, as regards restrictions on freedom of movement for workers, judgment of 2 September 2021, Commission v Germany (Transposition of Directives 2009/72 and 2009/73), C‑718/18, EU:C:2021:662, paragraph 60) and, as regards restrictions on freedom to provide services, judgment of 8 December 2020, Hungary v Parliament and Council (C‑620/18, EU:C:2020:1001, paragraph 104 and the case-law cited).

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99      See, inter alia, judgment of 8 June 2023, Prestige and Limousine (C‑50/21, EU:C:2023:448, paragraph 61 and the case-law cited).

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100      Judgment of 8 June 2023, Fastweb and Others (Time frame for billing) (C‑468/20, EU:C:2023:447, paragraph 82 and the case-law cited). See also Opinion of Advocate General Szpunar in Prestige and Limousine (C‑50/21, EU:C:2022:997, point 50 and the case-law cited in footnote 19).

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101      See, to that effect, judgment of 5 October 2004, CaixaBank France (C‑442/02, EU:C:2004:586, paragraph 14).

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102      See, to that effect, in situations in which both freedom of establishment and freedom to provide services were at issue, judgments of 29 March 2011, Commission v Italy (C‑565/08, EU:C:2011:188, paragraph 51 and the case-law cited) and of 7 March 2013, DKV Belgium (C‑577/11, EU:C:2013:146, paragraphs 35 and 36).

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103      See Opinion of Advocate General Szpunar in Prestige and Limousine (C‑50/21, EU:C:2022:997, point 50 and the case-law cited in footnote 20).

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104      See, inter alia, judgment of 2 September 2021, Institut des Experts en Automobiles (C‑502/20, EU:C:2021:678, paragraph 32 and the case-law cited).

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105      See, inter alia, judgment of 8 June 2023, Prestige and Limousine (C‑50/21, EU:C:2023:448, paragraph 64 and the case-law cited).

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106      See Articles 2 and 3 of Regulation No 561/2006. ‘Transport undertaking’ is defined in Article 4(p) of that regulation.

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107      See, to that effect, judgment of 8 December 2020, Hungary v Parliament and Council (C‑620/18, EU:C:2020:1001, paragraph 105).

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108      See point 42 of this Opinion.

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109      Those developments are described, in particular, in the Impact assessment – social section, in particular in Part 1.2, p. 1 to 11, 26 and 49, and in the Impact assessment – establishment section, in particular in Part 1.2, p. 7 to 22.

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110      Impact assessment – social section, Part 1.2, paragraphs 2.1.1 and 2.2.2.

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111      Impact assessment – social section, p. 39.

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112      Impact assessment – social section, Part 1.2, p. 20. In particular, the Commission had found that the risk of deterioration in working conditions, including inadequate rest periods, time constraints and driver stress, had not been properly dealt with owing to infringements of and deficiencies in the earlier rules, the stringent enforcement of the rules and market pressures.

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113      See recital 2 of Regulation 2020/1054. According to the Impact assessment – social section (See Part 1.2, p. 5 and 6), the main causes of ineffectiveness of the social legislation include unclear and inadequate rules and discrepancies in their implementation and enforcement by the national authorities.

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114      See recital 1 of Regulation 2020/1054.

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115      See Impact assessment – social section, Part 1.2, p. 19.

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116      See recitals 3, 6 and 36 of Regulation 2020/1054.

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117      For the same reason, the complaint put forward by the Republic of Poland, alleging that the obligation for drivers to return would infringe Article 4(f) of Regulation No 561/2006, must also be rejected.

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118      Article 9(2) of Regulation No 561/2006, before the entry into force of Regulation 2020/1054, provided that ‘any time spent travelling to a location to take charge of a vehicle falling within the scope of this Regulation, or to return from that location, when the vehicle is neither at the driver’s home nor at the employer’s operational centre where the driver is normally based, shall not be counted as a rest or break unless the driver is on a ferry or train and has access to a bunk or couchette’. Paragraph 3 of that article also referred to the ‘driver’s home or … the employer’s operational centre where the driver is normally based’.

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119      See judgment of 29 April 2010, Smit Reizen (C‑124/09, EU:C:2010:238, paragraph 27). From a linguistic viewpoint, the concept of ‘operational centre’ corresponds to that of ‘operating centre’ used in that judgment and in the judgment of 18 January 2001, Skills Motor Coaches and Others (C‑297/99, EU:C:2001:37), and also in the original version of Article 5(c) of Regulation No 1071/2009.

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120      See judgment of 29 April 2010, Smit Reizen (C‑124/09, EU:C:2010:238, paragraph 31).

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121      The expression ‘EU-13’ refers to all the States which became Members of the European Union after 2004 and which were added to the 15 States which were already Members (‘EU-15’).

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122      The impact assessment refers, in that regard, to a survey carried out among Polish drivers by the Polish employers’ association, from which it is apparent that 23% of them spend 15 days on the road, 15% spend more than 30 days away from home/base and 7% spend less than 5 days away from home/base. See Impact assessment – social section, Part 1.2, p. 20.

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123      See, specifically, paragraph 193 of this Opinion.

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124      Judgment of 8 December 2020, Hungary v Parliament and Council (C‑620/18, EU:C:2020:1001, paragraphs 41 and 42 and the case-law cited).

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125      See, to that effect, judgment of 8 December 2020, Hungary v Parliament and Council (C‑620/18, EU:C:2020:1001, paragraphs 41, 42, 61, 62, 64 and 128).

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126      Impact assessment – social section, Part 1.2, p. 51.

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127      See footnote122 of this Opinion.

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128      Impact assessment – social section, Part 1.2, p. 20.

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129      Impact assessment – social section, Part 1.2, Chapter 6.2.1 p. 63.

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130      See Article 16 of Regulation No 561/2006 and Article 33 of Regulation (EU) No 165/2014.

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131      See point 132 of this Opinion.

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132      See point 47 of this Opinion.

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133      See points 219 and 220 of this Opinion.

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134      See the case-law referred to in point 56  of this Opinion.

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135      See point 179 of this Opinion.

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136      Impact assessment – social section, Part 1.2, p. 49. Although the measures examined in that context were connected with the possible prohibition on taking planned rest periods in the vehicle, the same type of difficulties exists when it comes to determining whether the driver was put in a position by the transport undertaking to return home or to the operating centre, but chose not to do so, or whether he or she was under pressure aimed at dissuading him from returning.

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137      Opinion EESC 2017/02852, paragraph 1.7.

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138      Article 1(5)(c) of the proposal for a working time regulation provided for the insertion in Article 8 of Regulation No 561/2006 of paragraph 8b, worded as follows: ‘A transport undertaking shall organise the work of drivers in such a way that the drivers are able to spend at least one regular weekly rest period or a weekly rest of more than 45 hours taken in compensation for reduced weekly rest at home within each period of three consecutive weeks’.

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139      The legislature adopted the three-week calendar applicable to return solely for drivers who have taken two consecutive reduced weekly rest periods (the second subparagraph of Article 8(8a)) and who will therefore take, after the third working week, a normal rest period to compensate for the two reduced weekly rest periods.

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140      The Republic of Poland also refers to the harmful effects relating to the road infrastructures. Those arguments are dealt with in the part relating to the pleas alleging infringement of Article 91(2) TFEU, in point 281 et seq. of this Opinion.

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141      See Impact Assessment – social section, Part 1.2, p. 48.

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142      See Impact assessment – social section, Part 1.2, p. 20 and points 217, 229, 236 and 260 of this Opinion.

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143      That figure comes from a comparison between, on the one hand, the assessment contained in the open letter of 26 October 2018 from the International Road Transport Union (IRU), in which it was estimated that the obligation for vehicles to return every three to four weeks could increase the mileage of heavy goods vehicles by 80 to 135 million vehicle-kilometres per year, and, on the other hand, data from Eurostat, which indicated that, in 2016, goods vehicle traffic had accounted for a total of 135 725 million vehicle-kilometres. The Council observed that the obligation for drivers to return applies not to vehicles but to drivers, who do not always necessarily return with the vehicle and who, as is clear from the impact assessment (see footnote 122 of this Opinion) in most cases already return every three or four weeks.

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144      Impact assessment – social section, Part 1.2, Chapter 2.3.1.1.

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145      Drawn up by the American standardisation body AASHTO (American Association of State Highway and Transportation Officials), demonstrating the impact of vehicles on road infrastructures.

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146      See, as regards Article 74 EC, Opinion of Advocate General Stix-Hackl in Joined Cases Spain and Finland v Parliament and Council (C‑184/02 and C‑223/02, EU:C:2004:194, point 162).

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147      Council Regulation (EEC) No 4058/89 of 21 December 1989 on the fixing of rates for the carriage of goods by road between Member States (OJ 1989 L 390, p. 1).

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148      See, as regards Article 74 EC, Opinion of Advocate General Stix-Hackl in Joined Cases Spain and Finland v Parliament and Council (C‑184/02 and C‑223/02, EU:C:2004:194, point 163).

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149      See Opinion of Advocate General Stix-Hackl in Joined Cases Spain and Finland v Parliament and Council (C‑184/02 et C‑223/02, EU:C:2004:194, point 164).

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150      See, as regards Article 9 TFEU, judgment of 8 December 2020, Hungary v Parliament and Council (C‑620/18, EU:C:2020:1001, paragraph 46).

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151      See, to that effect, Opinion of Advocate General Stix-Hackl in Joined Cases Spain and Finland v Parliament and Council (C‑184/02 et C‑223/02, EU:C:2004:194, point 164).

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152      See point 42 of this Opinion.

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153      See, by analogy with Article 191(3) TFEU, judgment of 13 March 2019, Poland v Parliament and Council (C‑128/17, EU:C:2019:194, paragraph 135 and the case-law cited).

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154      See footnote 143 of this Opinion.

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155      See point 284  of this Opinion.

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156      In that regard, see also point 222  of this Opinion.

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157      See points 291 and 292 of this Opinion.

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158      Impact assessment – social section, Part 1.2, in particular pp. 60 and 61.

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159      Impact assessment – social section, Part 1.2, in particular p. 63 et seq.

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160      Communication from the Commission to the European Parliament, the European Council, the Council, the European Economic and Social Committee and the Committee of the Regions of 11 December 2019, ‘The European Green Deal’, COM(2019) 640 final (‘the European Green Deal’).

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161      Green Deal, paragraph 2.1.5.

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162      Conclusions of the European Council meeting of 12 December 2019, EUCO 29/19 CO EUR 31 CONCL 9.

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163      Statement by Commissioner Vălean on the final adoption of the Mobility Package I by the European Parliament, Brussels, 9 July 2020, https://ec.europa.eu/commission/presscorner/detail/en/statement_20_1319.

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164      See paragraph 45 of the reply in Case C‑553/20.

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165      See point 564 et seq. of this Opinion.

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166      See judgment of 13 March 2019, Poland v Parliament and Council (C‑128/17, EU:C:2019:194, paragraphs 129 to 131). A provision which is deemed to be compatible with Article 191 TFEU will necessarily be deemed to be compatible with Article 37 of the Charter: see judgment of 21 December 2016, Associazione Italia Nostra Onlus (C‑444/15, EU:C:2016:978, paragraphs 61 to 64).

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167      See, by analogy, judgment of 11 March 1992, Compagnie commerciale de l'Ouest and Others (C‑78/90 to C‑83/90, EU:C:1992:118, paragraph 18).

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168      That complaint is not in my view to be understood as referring solely to the obligation for vehicles to return every eight weeks, since an obligation for the driver to return every three weeks was already present in the proposal for a regulation on establishment, which was the subject of an impact assessment: see Article 1(5)(c) of the ‘proposal for a working time regulation’, and ‘Impact assessment – social section’ accompanying that proposal.

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169      I must state that at this stage of the analysis I shall not enter into the debate concerning the potential or actual additional emissions created by the obligation for drivers to return, since, first, it is not necessary to do so in order to deal with the arguments alleging infringement of the EU environmental policy and, second, that debate will have to be addressed when I deal with the arguments relating to breach of the principle of proportionality.

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170      See point 575 et seq. of this Opinion.

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171      The legislature merely envisaged the situation in which the driver’s return might, where appropriate, be arranged at the same time as the vehicle returns to the Member State of establishment: see recital 8 of Regulation 2020/1055.

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172      To that effect, see Opinion of Advocate General Kokott in Joined Cases Commission v Council (Antarctic MPAs) (C‑626/15 and C‑659/16, EU:C:2018:362, point 88) and judgment of 15 April 2021, Netherlands v Council and Parliament (C‑733/19, EU:C:2021:272, paragraph 48).

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173      See judgment of 15 April 2021, Netherlands v Council and Parliament (C‑733/19, EU:C:2021:272, paragraph 44).

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174      See judgment of 8 December 2020, Hungary v Parliament and Council (C‑620/18, EU:C:2020:1001, paragraph 119).

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175      See, to that effect, judgment of 20 September 2017, Elecdey Carcelen and Others (C‑215/16, C‑216/16, C‑220/16 and C‑221/16, EU:C:2017:705, paragraph 40).

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176      See judgment of 21 June 2018, Poland v Parliament and Council (C‑5/16, EU:C:2018:483, paragraph 86).

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177      See point 47 of this Opinion.

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178      See point 197 of this Opinion.

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179      See, to that effect, judgments of 13 November 1990, Fédesa and Others (C‑331/88, EU:C:1990:391, paragraphs 19 and 20) and of 17 July 1997, SAM Schiffahrt and Stapf (C‑248/95 et C‑249/95, EU:C:1997:377, paragraphs 52, 63 and 64).

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180      See, to that effect, judgment of 21 June 1958, Wirtschaftsvereinigung Eisen- und Stahlindustrie and Others v High Authority (13/57, EU:C:1958:10, p. 292).

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181      In that regard, see, to that effect, judgment of 13 November 1973, Werhahn Hansamühle and Others v Council and Commission (63/72 to 69/72, EU:C:1973:121, paragraph 17).

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182      See point 80  of this Opinion.

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183      See points 148 to 150 of this Opinion.

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184      Judgment of 13 November 1990, Fédesa and Others (C‑331/88, EU:C:1990:391, paragraph 20).

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185      See point 90  of this Opinion.

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186      See p. 18 of that impact assessment.

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187      Final report of the study on safe and secure parking places for trucks (https://ec.europa.eu/transport/sites/transport/files/2019-study-on-safe-and-secure-parking-places-for-trucks.pdf), pp. 8 and 18 to 20.

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188      Regulation (EU) No 1315/2013 of the European Parliament and of Council of 11 December 2013 on Union guidelines for the development of the trans-European transport network and repealing Decision No 661/2010/UE (OJ 2013 L 348, p. 1; ‘the TEN-T Regulation’).

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189      In the words of paragraph 3 of that provision, ‘all parking areas that have been certified may indicate that they are certified in accordance with Union standards and procedures. In accordance with point (9) of Article 39(2) of [the TEN-T] Regulation …, Member States are to encourage the creation of parking space for commercial road users’. In the words of paragraph 4 of that provision, ‘by 31 December 2024, the Commission shall present a report to the European Parliament and to the Council on the availability of suitable rest facilities for drivers and of secured parking facilities, as well as on the development of safe and secure parking areas certified in accordance with the delegated acts referred to in paragraph 2. That report may list measures to increase the number and quality of safe and secure parking areas.’

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190      Impact assessment – social section, Part 1.2, p. 64.

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191      Impact assessment – social section, Part 1.2, p. 70.

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192      Impact assessment – social section, Part 1.2, p. 18.

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193      Judgment of 20 December 2017 (C‑102/16, ‘the judgment in Vaditrans’, EU:C:2017:1012).

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194      Impact assessment – social section, Part 1.2, p. 46.

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195      Impact assessment – social section, Part 1.2, p.18.

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196      In the words of Article 4(g) of Regulation No 561/2006, for the purposes of that regulation ‘“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”’. In the words of the first indent of that provision, ‘“regular daily rest period” means any period of rest 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. In the words of the second indent of that provision, ‘“reduced daily rest period” means any period of rest of at least nine hours but less than 11 hours’.

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197      In the words of Article 4(h) of Regulation No 561/2006, for the purposes of that regulation, ‘“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”’. In the words of the first indent of that provision, ‘“regular weekly rest period” means any period of rest of at least 45 hours’. In the words of the second indent of that provision, ‘“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’.

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198      Judgment in Vaditrans (paragraphs 31, 32 and 48).

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199      See point 42 of this Opinion.

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200      In the words of recital 13 of Regulation 2020/1054, ‘in order to promote social progress, it is appropriate to specify where the weekly rest periods may be taken, ensuring that drivers enjoy adequate rest conditions. The quality of accommodation is particularly important during the regular weekly rest periods, which the driver should spend away from the vehicle’s cabin in a suitable accommodation, at the cost of the transport undertaking as an employer. In order to ensure good working conditions and the safety of drivers, it is appropriate to clarify the requirement for drivers to be provided with quality and gender-friendly accommodation for their regular weekly rest periods if they are taken away from home’.

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201      Judgment in Vaditrans (paragraphs 31, 32 and 48).

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202      Judgment in Vaditrans (paragraph 43).

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203      Judgment in Vaditrans (paragraph 44).

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204      Judgment in Vaditrans (paragraph 45).

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205      Judgment in Vaditrans (paragraphs 46 and 47).

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206      Judgment in Vaditrans (paragraph 44).

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207      Judgment in Vaditrans (paragraph 44).

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208      Judgment in Vaditrans (paragraphs 44 and 45).

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209      Judgment in Vaditrans (paragraph 42).

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210      Judgment in Vaditrans (paragraph 44). See point 379 of this Opinion. See also order of the Vice-President of the Court of 13 April 2021, Lithuania v Parliament and Council (C‑541/20 R, not published, EU:C:2021:264, paragraph 38).

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211      See Article 8(6) of Regulation No 561/2006, as amended by Regulation 2020/1054.

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212      In the words of that provision, Article 19(1) of Regulation No 561/2006 is replaced by the following: ‘1. Member States shall lay down rules on penalties applicable to infringements of this Regulation … and shall take all measures necessary to ensure that they are implemented. Those penalties shall be effective and proportionate to the gravity of the infringements, as indicated in Annex III to Directive 2006/22/EC …. No infringement of this Regulation and … shall be subject to more than one penalty or procedure. The Member States shall notify the Commission of those rules and measures, along with the method and criteria chosen at national level for assessing their proportionality. The Member States shall notify without delay any subsequent amendment affecting them. The Commission shall inform Member States of those rules and measures, and of any amendments thereto. The Commission shall ensure that this information is published on a dedicated public website in all official languages of the Union, containing detailed information on such penalties applicable in Member States.’

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213      See the proposal for a working time regulation, Article 1(5)(c), cited in point 11 of this Opinion.

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214      See, in particular, judgment of 20 December 2017, Erzeugerorganisation Tiefkühlgemüse (C‑516/16, EU:C:2017:1011, paragraph 88 and the case-law cited).

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215      The concept of ‘driver’ is defined in Article 4(c) of Regulation No 561/2006.

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216      Judgment in Vaditrans, (paragraph 44). See also point 379 of this Opinion. See also order of the Vice President of the Court of 13 April 2021, Lithuania v Parliament and Council (C‑541/20 R, EU:C:2021:264, paragraph 38).

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217      See point 80 of this Opinion.

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218      Impact assessment – social section, Part 1.2, p. 39.

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219      Pursuant to Article 3(4) of Regulation No 165/2014, read in conjunction with the third sentence of Article 6 of Implementing Regulation 2016/799, vehicles travelling in a Member State other than their Member State of registration were initially required to be fitted with a smart tachograph, governed by Articles 8 to 10 of Regulation No 165/2014, within 15 years from the date of entry into force, on 15 June 2019, of the rules relating to those tachographs laid down in Annex IC to that regulation, namely by no later than 15 June 2034.

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220      Commission Implementing Regulation (EU) 2021/1228 of 16 July 2021 amending Implementing Regulation (EU) 2016/799 (OJ 2021 L 273, p. 1).

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221      Commission Implementing Regulation (EU) 2023/980 of 16 May 2023 amending Implementing Regulation (EU) 2016/799 (OJ 2023 L 134, p. 28).

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222      Commission, ‘Study regarding measures fostering the implementation of the smart tachograph’, 2018, p. 9.

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223      European Parliament (EPRS): Retrofitting smart tachographs by 2020: Costs and benefits, 2 February 2018 (https://www.europarl.europa.eu/thinktank/en/document.html?reference=EPRS_STU%282018%29615643), p. 7.

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224      See letter from the Commission to the Council of 4 October 2018, Annex B4 in Case C‑551/20.

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225      See footnote 219  of this Opinion.

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226      Judgments of 3 December 2019, Czech Republic v Parliament and Council (C‑482/17, EU:C:2019:1035, paragraph 153), and of 21 June 2018, Poland v Parliament and Council (C‑5/16, EU:C:2018:483, paragraphs 100 and 110).

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227      Judgments of 3 December 2019, Czech Republic v Parliament and Council (C‑482/17, EU:C:2019:1035, paragraph 153) and of 21 June 2018, Poland v Parliament and Council (C‑5/16, EU:C:2018:483, paragraph 111).

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228      Judgment of 21 June 2018, Poland v Parliament and Council (C‑5/16, EU:C:2018:483, paragraph 112).

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229      Judgment of 20 December 2017, Global Starnet (C‑322/16, EU:C:2017:985, paragraph 47 and the case-law cited).

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230      See, to that effect, judgment of 20 December 2017, Global Starnet (C‑322/16, EU:C:2017:985, paragraph 48 and the case-law cited).

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231      See, among many authorities, judgment of 8 September 2022, Ministerstvo životního prostředí (Hyacinth macaws) (C‑659/20, EU:C:2022:642, paragraph 69 and the case-law cited).

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232      See, to that effect, judgment of 20 September 1988, Spain v Council (203/86, EU:C:1988:420, paragraph 19 and the case-law cited).

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233      That article lays down, as exceptions, point 15 of Article 1 and point 12 of Article 2, which are to apply only from 31 December 2024. Those two provisions are not the subject matter of the actions brought in the present cases.

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234      According to those two institutions, only the deferred date for the two provisions referred to in the preceding footnote of this Opinion would be brought forward to the date of entry into force of the entire regulation.

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235      Order of the Vice-President of the Court of 13 April 2021, Lithuania v Parliament and Council (C‑541/20 R, not published, EU:C:2021:264, paragraph 31).

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236      Judgment in Vaditrans (paragraph 44).

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237      See, inter alia, judgment of 15 July 2021, Commission v Landesbank Baden-Württemberg and SRB (C‑584/20 P and C‑621/20 P, EU:C:2021:601, paragraph 104 and the case-law cited).

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238      See point 394  of this Opinion.

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239      See judgment of 13 March 2019, Poland v Parliament and Council (C‑128/17, EU:C:2019:194, paragraphs 73 to 75).

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240      See judgment of 13 March 2019, Poland v Parliament and Council (C‑128/17, EU:C:2019:194, paragraph 76).

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241      That provision, devoted to the requirements for engagement in the occupation of road transport operator, provides that ‘undertakings engaged in the occupation of road transport operator shall … have an effective and stable establishment in a Member State’.

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242      This plea in the application in Case C‑545/20 is developed by the Republic of Bulgaria in regard to both point 3 of Article 1 of Regulation 2020/1055 and point 4(a) of Article 2 of that regulation. For reasons of procedural economy, I shall only examine the plea here, on the understanding that the conclusions drawn from my analysis in respect of point 3 of Article 1 of Regulation 2020/1055 apply, mutatis mutandis, in respect of point 4(a) of Article 2 of that regulation.

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243      Judgment of 16 July 1992, Parliament v Council (C‑65/90, EU:C:1992:325).

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244      Judgment of 16 July 1992, Parliament v Council (C‑65/90, EU:C:1992:325).

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245      COM(2018) 51 final of 31 January 2018.

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246      The Republic of Cyprus has not challenged, in its action in Case C‑549/20, point 4(a) of Article 2 of Regulation (EU)) 2020/1055, so that its plea alleging infringement of essential procedural requirements arising under Article 91(1) TFEU relates solely to the obligation for vehicles to return home every eight weeks.

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247      See point 11 of this Opinion.

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248      OJ 2018 C 197, p. 38.

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249      OJ 2018 C 176, p. 57.

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250      See CoR, Practical guide on the infringement of the subsidiarity principle, available at https://portal.cor.europa.eu/subsidiarity/Publications/Documents/Guide%20on%20SubsidiarityFINAL.pdf.

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251      See Articles 56 and 57 of the Rules of Procedure of the CoR (OJ 2014 L 65, p. 41, in the version applicable at the time of the entry into force of Regulation 2020/1055).

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252      See Article 59 of the Rules of Procedure of the CoR, in the version applicable at the time of the entry into force of Regulation 2020/1055.

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253      Judgment of 16 July 1992 (C‑65/90, EU:C:1992:325).

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254      Judgment of 5 July 1995 (C‑21/94, EU:C:1995:220).

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255      Judgment of 5 July 1995, Parliament v Council (C‑21/94, EU:C:1995:220, paragraphs 17 and 18).

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256      See order of the President of the Court of 17 March 2004, Commission v Council (C‑176/03, EU:C:2004:158, paragraphs 9 to 11).

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257      See paragraph 1.1 of the Opinion of the EESC of 18 January 2018.

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258      See paragraphs 1.4 and 3.2 of the Opinion of the EESC of 18 January 2018.

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259      See point 1.6 of the Opinion of the EESC of 18 January 2018.

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260      See point 5.2 of the Opinion of the EESC of 18 January 2018.

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261      See point 5.2 of the Opinion of the EESC of 18 January 2018.

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262      See point 5.2 of the Opinion of the EESC of 18 January 2018.

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263      See, in particular, paragraphs 6 to 8 of the Opinion of the CoR of 1 February 2018.

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264      See paragraph 9 of the Opinion of the CoR of 1 February 2018.

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265      See, by analogy, judgment of 5 July 1995, Parliament v Council (C‑21/94, EU:C:1995:220, paragraph 27). The position would be otherwise if, during the legislative procedure, a legal basis were added which fully justified the EESC being consulted again, as was the case, as the Republic of Bulgaria and the Republic of Cyprus have observed, at the time of the adoption of Regulation (EU) 2021/2282 of the European Parliament and of Council of 15 December 2021 on health technology assessment and amending Directive 2011/24/EU (OJ 2021 L 458, p. 1). For the two Opinions of that Committee during the same legislative procedure, see OJ 2018 C 283, p. 38, and OJ 2021, C 286, p. 95.

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266      See, in that regard, conclusions of the European Council of 12 December 2019 (EUCO 29/19 CO EUR 31 CONCL 9).

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267      The European Green Deal, paragraph 2.1.5.

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268      Regulation of the European Parliament and of the Council of 30 June 2021 establishing the framework for achieving climate neutrality and amending Regulations (EC) No 401/2009 and (EU) 2018/1999 (‘European Climate Law’) (OJ 2021 L 243, p. 1).

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269      See Communication from the Commission to the European Parliament pursuant to Article 294(6) TFEU concerning the position of the Council on the adoption of a Regulation amending Regulation (EC) No 1071/2009, Regulation (EC) No 1072/2009 and Regulation (EU) No 1024/2012 with a view to adapting them to developments in the sector; a Regulation amending Regulation (EC) No 561/2006 on minimum requirements on maximum daily and weekly driving times, minimum breaks and daily and weekly rest periods, and Regulation (EU) 165/2014 as regards positioning by means of tachographs, and a Directive amending Directive 2006/22/EC as regards enforcement requirements and laying down specific rules with respect to Directive 96/71/EC and Directive 2014/67/EU for posting drivers in the road transport sector and amending Regulation (EU) No 1024/2012 (COM(2020) 151 final).

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270      Mobility Package I on road transport – Declaration by the Commission (OJ 2020 C 252 p. 1).

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271      Assessment of the impact of a provision in the context of the revision of Regulation (EC) No 1071/2009 and Regulation (EC) No 1072/2009, Final report, MOVE/C1/SER/2050-557/SI2.830443 (‘the 2021 Ricardo study’).

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272      Namely, according to the Republic of Lithuania, Lithuania, Poland, Hungary, Bulgaria, Romania, Latvia and Estonia. The Republic of Lithuania claims that the heavy goods fleet of those seven Member States will emit an extra 3.2 million tonnes of CO2 per year and that 570 000 unladen heavy goods vehicles will have to return to their base every eight weeks, which represents 780 million empty kilometres and 188 million litres of fuel needlessly consumed every year. The Republic of Lithuania relies here on figures in an article published on the website www.trans.info.

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273      Regulation of the European Parliament and of the Council of 30 May 2018 on binding annual greenhouse gas emission reductions by Member States from 2021 to 2030 contributing to climate action to meet commitments under the Paris Agreement and amending Regulation (EU) No 525/2013 (OJ 2018 L 156, p. 26).

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274      See the Statements by the Commission and the Member States concerning the provisional agreement on the Mobility Package I reached by the Council and the Parliament reproduced in the Council document of 11 February 2020 (ST 5424 2020 ADD 4, p. 2).

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275      The Republic of Malta relies here on the stated projections of the effects of the EU legislation in force at the time of the adoption of the Commission Communication of 28 November 2018, ‘A Clean Planet for all – A European strategic long-term vision for a prosperous, modern, competitive and climate neutral economy’ (COM(2018) 773 final, pp. 5 and 6).

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276      Directive of the European Parliament and of Council of 19 November 2008 on waste and repealing certain Directives (OJ 2008 L 312, p. 3).

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277      The Republic of Poland refers here to the judgment of 10 September 2019, Poland v Commission (T‑883/16, EU:T:2019:567, paragraphs 77 and 78).

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278      See paragraph 48 of the reply in Case C‑554/20, Poland v Parliament and Council.

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279      The Republic of Malta’s arguments relating to Article 91(2) TFEU, in conjunction with Article 11 TFEU and Article 37 of the Charter, will not be dealt with in this part.

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280      See judgment of 13 March 2019, Poland v Parliament and Council (C‑128/17, EU:C:2019:194, paragraphs 129 to 131). A provision deemed to be compatible with Article 191 TFEU will necessary be deemed to be compatible with Article 37 of the Charter: see judgment of 21 December 2016, Associazione Italia Nostra Onlus (C‑444/15, EU:C:2016:978, paragraphs 61 to 64).

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281      Notably in paragraph 30 of its defence in Case C‑542/20.

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282      See point 314 of this Opinion.

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283      See, by analogy, judgment of 23 November 1999, Portugal v Council (C‑149/96, EU:C:1999:574, paragraph 86). See also judgment of 26 June 2019, Craeynest and Others (C‑723/17, EU:C:2019:533, paragraph 33).

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284      See, by analogy, judgment of 11 March 1992, Compagnie commerciale de l'Ouest and Others (C‑78/90 to C‑83/90, EU:C:1992:118, paragraph 18).

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285      Opinion of Advocate General Geelhoed in Austria v Parliament and Council (C‑161/04, EU:C:2006:66, points 59 and 60).

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286      See order of removal from the register of the President of the Court of 6 September 2006, Austria v Parliament and Council (C‑161/04, EU:C:2006:512).

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287      See, inter alia, judgments of 13 September 2005, Commission v Council (C‑176/03, EU:C:2005:542, paragraph 41 and the case-law cited); of 15 November 2005, Commission v Austria (C‑320/03, EU:C:2005:684, paragraph 72); of 22 December 2008, British Aggregates v Commission (C‑487/06 P, EU:C:2008:757, paragraph 91); of 16 July 2009, Horvath (C‑428/07, EU:C:2009:458, paragraph 29); and of 21 December 2011, Commission v Austria (C‑28/09, EU:C:2011:854, paragraph 120).

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288      See, in particular, judgments of 13 September 2005, Commission v Council (C‑176/03, EU:C:2005:542, paragraph 42); of 15 November 2005, Commission v Austria (C‑320/03, EU:C:2005:684, paragraph 73 and the case-law cited); and of 21 December 2011, Commission v Austria (C‑28/09, EU:C:2011:854, paragraph 121).

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289      See judgment of 16 July 2009, Horvath (C‑428/07, EU:C:2009:458, paragraph 29).

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290      See judgment of 15 April 2021, Netherlands v Council and Parliament (C‑733/19, not published, EU:C:2021:272, paragraph 46).

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291      Judgment of 22 September 2020, Austria v Commission (C‑594/18 P, EU:C:2020:742, paragraphs 42 and 100). Concerning Article 11 TFEU, the Court has held that ‘the Union must comply with that provision when it exercises one of its competences’ (judgment of 20 November 2018, Commission v Council (Antarctic MPAs) (C‑626/15 and C‑659/16, EU:C:2018:925, paragraph 101), but without providing further detail of the obligation borne by the legislature in that regard.

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292      As to what Article 11 TFEU does not require, see judgment of 15 April 2021, Netherlands v Council and Parliament (C‑733/19, EU:C:2021:272, paragraph 49).

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293      The title of that Part 3, to be perfectly accurate, refers refers to European Union policies and internal action.

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294      See point 318 of this Opinion.

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295      See, for example, judgment of 15 April 2021, Netherlands v Council and Parliament (C‑733/19, EU:C:2021:272, paragraph 50).

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296      I note that at this stage of the analysis I shall not enter into the debate concerning the figures linked with potential or actual additional emissions caused by the obligation to return, since, first, it is not necessary to do so in order to deal with the arguments alleging breach of the EU environmental policy and, second, that debate will have to be settled, if necessary, when I deal with the arguments relating to breach of the principle of proportionality.

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297      See recital 1 of Regulation 2018/842. On the EU legislature’s ambitions for the transport sector, see recital 12 of that regulation.

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298      Directive of the European Parliament and of the Council of 15 December 2004 relating to arsenic, cadmium, mercury, nickel and polycyclic aromatic hydrocarbons in ambient air (OJ 2005 L 23, p. 3), as amended by Regulation (EC) No 219/2009 of the European Parliament and of the Council of 11 March 2009 (OJ 2009 L 87, p. 109) and by Commission Directive (EU) 2015/1480 of 28 August 2015 (OJ 2015 L 226, p. 4) (‘Directive 2004/107’).

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299      See Article 3(1) of the amended Directive 2004/107.

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300      Directive of the European Parliament and of the Council of 21 May 2008 on ambient air quality and cleaner air for Europe (OJ 2008 L 152, p. 1), as amended by Commission Directive (EU) 2015/1480 of 28 August 2015 (OJ 2015 L 226, p. 4) (‘Directive 2008/50’).

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301      See Article 1 of Directive 2008/50.

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302      Amended most recently by Directive (EU) 2018/851 of the European Parliament and of the Council of 30 May 2018 (OJ 2018 L 150, p. 109).

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303      See Article 1 of Directive 2008/98, as amended by Directive 2008/851.

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304      OJ 1999 L 187, p. 42.

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305      Directive of the European Parliament and of the Council of 27 September 2011 amending Directive 1999/62 (OJ 2011 L 269, p. 1).

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306      See recital 1 of Directive 2011/76.

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307      See recital 2 of Directive 2011/76.

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308      See recital 3 of Directive 2011/76.

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309      See recital 7 of Directive 2011/76.

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310      Regulation of the European Parliament and of the Council of 17 April 2019 setting CO2 emission performance standards for new passenger cars and for new light commercial vehicles, and repealing Regulations (EC) No 443/2009 and (EU) No 510/2011 (OJ 2019 L 111, p. 13).

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311      Regulation of the European Parliament and of the Council of 20 June 2019 setting CO2 emission performance standards for new heavy-duty vehicles and amending Regulations (EC) No 595/2009 and (EU) 2018/956 of the European Parliament and of the Council and Council Directive 96/53/EC (OJ 2019 L 198, p. 202). See also, as regards the improvement of the energy efficiency of those vehicles, Commission Regulation (EU) 2019/1892 of 31 October 2019 amending Regulation (EU) No 1230/2012 as regards type-approval requirements for certain motor vehicles fitted with elongated cabs and for aerodynamic devices and equipment for motor vehicles and their trailers (OJ 2019 L 291, p. 17), in particular recital 6.

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312      See Directive 2009/33/CE of the European Parliament and of the Council of 23 April 2009 on the promotion of clean and energy-efficient road transport vehicles in support of low-emission mobility  (OJ 2009 L 120, p. 5), as amended by Directive (EU) 2019/1161 of the European Parliament and of the Council of 29 June 2019 (OJ 2019 L 1888, p. 116).

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313      Regulation of the European Parliament and of the Council of 25 May 2020 on the labelling of tyres with respect to fuel efficiency and other parameters, amending Regulation (EU) 2017/1369 and repealing Regulation (EC) No 1222/2009 (OJ 2020 L 177, p. 1).

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314      See recital 4 of Regulation 2020/740.

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315      See recital 6 of Regulation 2020/1055.

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316      See recital 6 of Regulation 2020/1055.

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317      See recital 6 of Regulation 2020/1055.

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318      See, concerning Article 130 R and 130 S of the EC Treaty, judgment of 24 November 1993, Mondiet (C‑405/92, EU:C:1993:906, paragraph 26), and Opinion of Advocate General Kokott in Joined Cases Commission v Council (Antarctic MPAs) (C‑626/15 and C‑659/16, EU:C:2018:362, point 88).

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319      See, by analogy, judgments of 21 December 2016, Associazione Italia Nostra Onlus (C‑444/15, EU:C:2016:978, paragraph 46), and of 1 October 2019, Blaise and Others (C‑616/17, EU:C:2019:800, paragraph 50).

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320      See judgments of 18 July 2013, Schindler Holding and Others v Commission (C‑501/11 P, EU:C:2013:522, paragraph 31 and the case-law cited), and of 3 December 2019, Czech Republic v Parliament and Council (C‑482/17, EU:C:2019:1035, paragraph 80).

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321      See judgment of 6 September 2017, Slovakia and Hungary v Council (C‑643/15 and C‑647/15, EU:C:2017:631, paragraph 221).

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322      See Article 192(1) TFEU.

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323      It will be recalled that Article 192(2)(c) provides that measures significantly affecting a Member State’s choice between different energy sources and the general structure of its energy supply must be adopted unanimously.

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324      To that effect, see Opinion of Advocate General Kokott in Joined Cases Commission v Council (Antarctic MPAs) (C‑626/15 and C‑659/16, EU:C:2018:362, point 88) and judgment of 15 April 2021, Netherlands v Council and Parliament (C‑733/19, EU:C:2021:272, paragraph 48).

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325      Hungary relies on a precautionary principle, a general principle of law, which in its submission follows globally from Article 11 TFEU, Article 168(1) TFEU, Article 169(1) and (2) TFEU and Article 191(1) and (2) TFEU. I shall therefore not analyse Articles 168 and 169 TFEU separately.

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326      See judgment of 1 October 2019, Blaise and Others (C‑616/17, EU:C:2019:800, paragraph 41 and the case-law cited).

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327      See judgment of 1 October 2019, Blaise and Others (C‑616/17, EU:C:2019:800, paragraph 43 and the case-law cited).

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328      See judgment of 1 October 2019, Blaise and Others (C‑616/17, EU:C:2019:800, paragraph 50).

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329      See judgment of 9 June 2016, Pesce and Others (C‑78/16 and C‑79/16, EU:C:2016:428, paragraph 50).

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330      See judgment of 12 July 2005, Alliance for Natural Health and Others (C‑154/04 and C‑155/04, EU:C:2005:449, paragraph 68).

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331      The arguments of the Republic of Bulgaria and the Republic of Cyprus evolved somewhat during the written procedure (see paragraph 8 of the reply in Case C‑545/20 and paragraph 10 of the reply in Case C‑549/20).

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332      OJ 2016 L 282, p. 1.

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333      See Article 2(1)(a) of the Paris Agreement.

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334      See judgments of 21 December 2011, Air Transport Association of America and Others (C‑366/10, EU:C:2011:864, paragraph 50 and the case-law cited); of 11 April 2013, HK Danmark (C‑335/11 and C‑337/11, EU:C:2013:222, paragraph 28); of 18 March 2014, Z. (C‑363/12, EU:C:2014:159, paragraph 71); of 13 January 2015, Council and Others v Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht (C‑401/12 P to C‑403/12 P, EU:C:2015:4, paragraph 52); of 13 January 2015, Council and Commission v Stichting Natuur en Milieu and Pesticide Action Network Europe (C‑404/12 P and C‑405/12 P, EU:C:2015:5, paragraph 44); of 8 September 2020, Recorded Artists Actors Performers (C‑265/19, EU:C:2020:677, paragraph 62); and of 3 December 2020, Région de Bruxelles-Capitale v Commission (C‑352/19 P, EU:C:2020:978, paragraph 25).

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335      The Paris Agreement entered into force on 4 November 2016.

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336      See judgment of 13 January 2015, Council and Others v Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht (C‑401/12 P to C‑403/12 P, EU:C:2015:4, paragraph 54 and the case-law cited).

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337      See judgment of 21 December 2011, Air Transport Association of America and Others (C‑366/10, EU:C:2011:864, paragraphs 52 to 55 and the case-law cited).

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338      See recital 4 of Decision 2016/1841.

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339      See Article 2(1) of the Paris Agreement annexed to Decision 2016/1841.

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340      See point 585 of this Opinion.

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341      See Article 2(1)(c) of the Paris Agreement annexed to Decision 2016/1841.

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342      See Article 2(2) of the Paris Agreement, annexed to Decision 2016/1841.

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343      Article 3 of the Paris Agreement annexed to Decision 2016/1841.

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344      Article 4(1) of the Paris Agreement annexed to Decision 2016/1841.

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345      Article 4(2) of the Paris Agreement annexed to Decision 2016/1841.

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346      Those reasons are relatively analogous to those employed by the Court when it held that the Kyoto Protocol cannot be relied on in the context of a reference for a preliminary ruling calling for an assessment of validity: see judgment of 21 December 2011, Air Transport Association of America and Others (C‑366/10, EU:C:2011:864, paragraphs 73 to 78).

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347      See judgment of 15 April 2021, Netherlands v Council and Parliament (C‑733/19, EU:C:2021:272, paragraph 44).

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348      See judgment of 8 December 2020, Hungary v Parliament and Council (C‑620/18, EU:C:2020:1001, paragraph 119).

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349      See, to that effect, judgment of 20 September 2017, Elecdey Carcelen and Others  (C‑215/16, C‑216/16, C‑220/16 and C‑221/16, EU:C:2017:705, paragraph 40).

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350      See judgment of 21 June 2018, Poland v Parliament and Council (C‑5/16, EU:C:2018:483, paragraph 86).

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351      See the second paragraph of the Statement by Commissioner Vălean of 9 July 2020 on the final adoption of the Mobility Package I by the European Parliament.

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352      Namely Germany, France, United Kingdom, Spain, Italy, Netherlands and Belgium.

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353      White paper ‘Roadmap to a Single European Transport Area – Towards a competitive and resource efficient transport system’ (COM(2011) 144 final of 28 March 2011).

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354      Judgment of 13 November 1990 (C‑331/88, EU:C:1990:391).

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355      See point 677 et seq. of this Opinion.

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356      See point 607 of this Opinion.

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357      See paragraph 131 of the application in Case C‑547/20.

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358      See Article 2(4) of Regulation No 1071/2009.

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359      See recital 8 of Regulation 2020/1055.

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360      For the remainder, the Republic of Lithuania has not made clear which provision of the Accession Treaty in its view provided for the abolition, within five years, of any restriction on freedom to provide services by Lithuanian hauliers in other Member States. As the Parliament has correctly asserted, that Treaty did not provide that Lithuania would benefit from a derogation regime and would be dispensed from applying secondary law in the field of transport. I would add that, at the time of the Republic of Lithuania’s entry into the European Union, Article 71(1) EC already emphasised, inter alia, the special aspects of transport and the separate treatment of non-resident hauliers.

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361      See point 594 of this Opinion.

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362      Judgment of 17 July 1997, SAM Schiffahrt and Stapf (C‑248/95 and C‑249/95, EU:C:1997:377, paragraph 55).

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363      See judgment of 26 September 2013, ÖBB-Personenverkehr (C‑509/11, EU:C:2013:613, paragraph 47).

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364      The Impact assessment – establishment section already referred to such asymmetry in the event of a strengthening of the establishment criteria (see Part 1.2, p. 37).

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365      See judgment of 13 November 1990, Fédesa and Others (C‑331/88, EU:C:1990:391, paragraphs 19 and 20).

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366      The legitimacy of the adaptation of the legislation to developments in the context in which it has its effects cannot be called into question. It is thus well known that the participation in the transport market of undertakings of Member States where, in general, conditions of work and employment that diverge greatly from those applicable in other Member States following the successive enlargements may require, depending on its assessment, the intervention of the EU legislature (see judgment of 8 December 2020, Poland v Parliament and Council (C‑626/18, EU:C:2020:1000, paragraph 67). On the need for the situation of all Member States of the European Union to be taken into consideration, see, inter alia, judgment of 29 May 2018, Liga van Moskeeën en Islamitische Organisaties Provincie Antwerpen and Others (C‑426/16, EU:C:2018:335, paragraph 74).

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367      Judgment of 8 December 2020, Hungary v Parliament and Council (C‑620/18, EU:C:2020:1001, paragraph 128).

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368      See the definition of those two categories given in the Impact assessment – establishment section, Part 1.2, p. 1, footnote 3.

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369      See the 2021 Ricardo study, pp. XI and 91.

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370      See the 2021 Ricardo study, pp. XI and 91.

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371      See the 2021 Ricardo study, p. 6.

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372      The Council and the Parliament dispute the admissibility of that complaint as developed by the Republic of Lithuania in Case C‑542/20, since it appeared only at the stage of the reply. Even if it should be declared inadmissible, the Court would be required to examine a complaint of the same type, since it is also raised by the Republic of Bulgaria and the Republic of Cyprus.

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373      See, by analogy, see judgment of 13 November 1990, Fédesa and Others (C‑331/88, EU:C:1990:391, paragraph 20).

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374      See the application in Case C‑542/20, in particular the plea alleging unwarranted breach of the ordinary legislative procedure owing to the absence of an impact assessment.

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375      See Impact assessment – establishment section, Part 1.2.

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376      IRU, ‘Open letter on the potential consequences of obligatory return of the truck’, 26 October 2018.

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377      Annex 9 to the application in Case C‑551/20.

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378      The Republic of Malta refers here to the Statement by Commissioner Vălean.

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379      The Republic of Poland refers here to the judgment of 3 December 2019, Czech Republic v Parliament and Council (C‑482/17, EU:C:2019:1035, paragraph 85).

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380      Judgment of 3 December 2019 (C‑482/17, EU:C:2019:1035).

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381      Impact assessment – establishment section, Part 1.2, p. 37.

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382      Impact assessment – establishment section, Part 1.2, p. 49.

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383      Impact assessment – establishment section, Part 1.2, pp. 20 and 21.

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384      The Council draws a parallel with the judgment of 4 May 2016, Pillbox 38 (C‑477/14, EU:C:2016:324, paragraph 66).

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385      In reaction, according to the Council, to the Report of the European Parliament of 7 June 2018 on the proposal for an establishment regulation, a report which envisaged the obligation for all vehicles to perform one loading or one unloading of goods every three weeks in the Member State of establishment (see amendment 18 of Report A8-0204/2018).

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386      IRU, ‘Open letter on the potential consequences of obligatory return of the truck’, 26 October 2016.

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387      P. Klaus, Mobility Package I – Impact on the European road transport system (see in particular Annex D.3 to the Council’s rejoinder in Case C‑542/20).

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388      Available at https://www.etf-europe.org/vehicle-activity-in-the-home-country-the-real-problem/.

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389      See paragraph 13 of the interinstitutional agreement.

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390      See judgment of 3 December 2019, Czech Republic v Parliament and Council (C‑482/17, EU:C:2019:1035, paragraph 82).

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391      See, to the same effect, the Opinion of Advocate General Sharpston in Czech Republic v Parliament and Council (C‑482/17, EU:C:2019:321, point 98).

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392      See judgments of 8 July 2010, Afton Chemical (C‑343/09, EU:C:2010:419, paragraph 57) and of 21 June 2018, Poland v Parliament and Council (C‑5/16, EU:C:2018:483, paragraph 159).

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393      See judgment of 4 May 2016, Pillbox 38 (C‑477/14, EU:C:2016:324, paragraphs 64 and 65).

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394      Judgment of 13 March 2019, Poland v Parliament and Council (C‑128/17, EU:C:2019:194, paragraph 43).

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395      Judgment of 3 December 2019, Czech Republic v Parliament and Council (C‑482/17, EU:C:2019:1035, paragraph 85).

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396      See, to that effect, judgment of 13 March 2019, Poland v Parliament and Council (C‑128/17, EU:C:2019:194, paragraph 45).

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397      See judgment of 13 March 2019, Poland v Parliament and Council (C‑128/17, EU:C:2019:194, paragraph 31 and the case-law cited).

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398      See judgments of 21 June 2018, Poland v Parliament and Council (C‑5/16, EU:C:2018:483, paragraphs 160 to 163), and of 3 December 2019, Czech Republic v Parliament and Council (C‑482/17, EU:C:2019:1035, paragraph 86 and the case-law cited).

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399      See, for comparison, Article 1(3) of the proposal for a regulation on establishment.

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400      Impact assessment – establishment section. That is confirmed by the Commission itself in its declaration following the political agreement reached by the Parliament and the Council on 12 December 2019, also reproduced in the Communication from the Commission to the European Parliament pursuant to Article 294(6) TFEU concerning the position of the Council on the adoption of Regulation 2020/1055 (COM(2020) 151 final of 15 April 2020, p. 7).

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401      See point 251 of this Opinion.

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402      See the Impact assessment – establishment section, pp. 30 and 31.

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403      See p. 36, Part 5.1.1 ‘Impacts on business’, dedicated to ‘policy package 3’, of which the measures at issue of the Impact assessment – establishment section form part, and, more widely, Part 5 of that impact assessment.

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404      See amendment 128 of the European Parliament legislative resolution of 4 April 2019 on the proposal for an establishment regulation (document P8_TA-PROV(2019)0341). That amendment proposed the insertion in Regulation No 1071/2009 of Article 5(a)a, which would have required that vehicles perform, in the framework of a transport contract, at least one loading or one unloading of goods every three weeks in the Member State of establishment. See also report of the European Parliament of 7 June 2018 (document A8-0204-2018).

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405      See Part 6 of the Impact assessment – establishment section, Part 1.2.

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406      See point 263 of this Opinion.

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407      Consulted at https://www.etf-europe.org/vehicle-activity-in-the-home-country-the-real-problem/.

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408      Since a part of the complaints has been dealt with here.

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409      According to the data supplied by Eurostat on the volume of carriage of freight by reference to GDP per country (2018).

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410      The Republic of Lithuania refers here to the 2021 Ricardo study.

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411      The Republic of Bulgaria raises a single plea, alleging infringement of Article 91(2) TFEU and of Article 90 TFEU in conjunction with Article 3(3) TEU and Article 94 TFEU, within which it develops a common line of argument against point 3 of Article 1 of Regulation 2020/1055 and point 4(a) of Article 2 of that regulation.

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412      With respect to the latter provision, Hungary asserts that point 3 of Article 1 of Regulation 2020/1055 constitutes a measure relating to ‘transport conditions’.

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413      As regards the claim that the absence of an impact assessment constitutes a breach of the essential procedural requirements provided for in Article 91(2) TFEU read in conjunction with Article 11 TFEU and Article 37 of the Charter, I refer to point 571 of this Opinion.

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414      See point 655 of this Opinion.

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415      Communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions – ‘Towards a Single Market Act – For a highly competitive social market economy – 50 proposals for improving our work, business and exchanges with one another’ (COM(2010) 608 final).

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416      See point 38 et seq. of this Opinion.

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417      Emphasis added.

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418      See point 159 of this Opinion.

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419      See, for example, judgment of 23 February 2006, CLT-UFA (C‑253/03, EU:C:2006:129, paragraph 13).

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420      See judgment of 8 October 1986, Keller (234/85, EU:C:1986:377, paragraph 9).

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421      See point 177 of this Opinion.

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422      See, concerning Article 56 TFEU, judgment of 8 December 2020, Hungary v Parliament and Council (C‑620/18, EU:C:2020:1001, paragraph 107).

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423      See, by analogy, judgments of 21 September 1999, BASF (C‑44/98, EU:C:1999:440, paragraph 16), and of 17 September 2020, Hidroelectrica (C‑648/18, EU:C:2020:723, paragraph 29 and the case-law cited).

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424      That is to say, those defined in Article 5(e) of Regulation No 1071/2009, namely those registered or put into circulation and authorised to be used in conformity with the legislation of the Member State of establishment.

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425      See, in particular, p. 30 and the last paragraph on p. 36 of the Impact assessment – establishment section, Part 1.2 (see also p. 18 of Part 2.2 of that assessment).

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426      In a sense that, to my mind, is less restrictive.

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427      See p. 6 of the Commission Communication pursuant to Article 294(6) TFEU (COM(2020) 151 final) of 15 April 2020), according to which the Commission considers that the Council’s position is intended to contribute to a sufficient staffing of what is supposed to be a be stable and effective establishment and that it leaves enough margin so as to not unduly restrict the freedom of operators when hiring personnel.

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428      See judgment of 29 April 2010, Smit Reizen (C‑124/09, EU:C:2010:238, paragraph 31).

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429      See point 118 of this Opinion.

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430      See judgment of 3 December 2019, Czech Republic v Parliament and Council (C‑482/17, EU:C:2019:1035, paragraph 148).

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431      See point 40 et seq. of this Opinion.

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432      See paragraph 111 of the application in Case C‑554/20, Poland v Council and Parliament.

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433      On the scope of those two articles, I refer to points 565 and 567 of this Opinion.

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434      Romania also seeks annulment of point 4(b) and (c) of Article 2 of Regulation 2020/1055, which amended paragraph 3 and inserted paragraph 4a in Article 8 of Regulation No 1072/2009, but does not develop a separate line of argument from that directed at point 4(a) of Article 2 of Regulation 2020/1055.

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435      The Republic of Lithuania refers here to pp. 19 and 20 of the policy brief of the European Centre for International Political Economy (ECIPE), ‘Discrimination, Exclusion and Environmental Harm: Why EU Lawmakers Need to Ban Freight Transport Restrictions to Save the Single Market’, No 3/2020 (‘the ECIPE policy brief’).

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436      See paragraph 11 of the application in Case C‑545/20. For a summary of that line of argument, see point 552 et seq. of this Opinion.

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437      COM(2011) 144 final of 28 March 2011. The Republic of Bulgaria refers in particular to p. 6 of that White Paper.

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438      Since that is an option envisaged by the Commission in its impact assessment (see Impact assessment – establishment section, Part 2.2).

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439      See recital 20 of Regulation 2020/1055. See also Article 2(6) of Regulation No 1072/2009, as amended by Regulation 2020/1055.

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440      Unlike, clearly, the obligation imposed by point 3 of Article 1 of Regulation 2020/1055, which amended Article 5(1)(b) of Regulation No 1071/2009.

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441      See paragraph 78 of the Republic of Poland’s application in Case C‑554/20.

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442      Furthermore, a route with a loading is indeed economically justified, to take the Republic of Poland’s argument, but the heavier the vehicles, the more they consume, and therefore emit CO2 and put wear on the infrastructures.

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443      See point 571 of this Opinion.

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444      See the plea alleging unwarranted breach of the ordinary legislative procedure owing to the absence of an impact assessment developed against point 4(a) of Article 2 of Regulation 2020/1055 in the application in Case C‑542/20.

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445      As regards the basis, according to the Republic of Lithuania, of the obligation for the EU legislature to carry out an impact assessment in the event of a substantial amendment, I refer to the line of argument put forward by the Republic of Lithuania in the context of the plea alleging breach by point 3 of Article 1 of Regulation 2020/1055 of the principle of proportionality when the legislature examined the proportionality of the obligation for vehicles to return home every eight weeks.

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446      Impact assessment – establishment section.

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447      The Republic of Bulgaria refers here to p. 13 of the Commission report to the Parliament and the Council on the state of the Union road haulage market (see Annex A.28 to the Republic of Bulgaria’s application in Case C‑545/20).

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448      The Republic of Bulgaria refers here to p. 18 of the Commission report to the Parliament and the Council on the state of the Union road haulage market (see Annex A.28 to the Republic of Bulgaria’s application in Case C‑545/20).

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449      Although the plea is directed against point 4(a), (b) and (c) of Article 2 of Regulation 2020/1055, the arguments relate exclusively to the additional restriction of cabotage operationsthat point 4(a) of Article 2 of that regulation represents.

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450      I therefore refer here to the summary of Romania’s line of argument (point 619 of this Opinion).

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451      Romania refers here to Bauer, M., ‘Discrimination, Exclusion and Environmental Harm: why EU lawmakers need to ban freight transport restrictions to save the single market’, policy brief No 3/2020, ECIPE (Brussels).

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452      According to the figures of the National Union of Road Hauliers from Romania (UNTRR) (see paragraph 78 of Romania’s application in Case C‑547/20).

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453      Romania refers here to paragraph 1.2.1 of the Impact assessment – establishment section.

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454      According to the Eurostat data cited by Romania (see paragraph 99 of the application in Case C‑547/20), Polish hauliers carried out 40% of the total cabotage transport within the European Union, Lithuanian hauliers 5.7% and Romanian hauliers 8.7%.

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455      COM(2011) 144 final of 28 March 2011.

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456      Council Regulation of 25 October 1993 laying down the conditions under which non-resident hauliers may operate national road haulage services within a Member State (OJ 1993 L 279, p. 1).

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457      Recital 15 of Regulation No 1072/2009.

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458      See the penultimate sentence of recital 15 of Regulation No 1072/2009.

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459      OJ 2005 C 21, p. 2.

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460      ‘Ex-post evaluation of Regulation (EC) No 1071/2009 and Regulation (EC) No 1072/2009 – Final report’, Ricardo, 2015.

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461      ‘Ex-post evaluation of Regulation (EC) No 1071/2009 and Regulation (EC) No 1072/2009 – Final report’, Ricardo, 2015 (p. 137).

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462      See ‘Ex-post evaluation of Regulation (EC) No 1071/2009 and Regulation (EC) No 1072/2009 – Final report’, Ricardo, 2015 (p. 137, paragraph 6.7.3).

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463      See paragraph 1.2.1 of the Impact assessment – establishment section, Part 1.2.

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464      See Article 2(5)(a) of the proposal for a regulation on establishment.

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465      See the Impact assessment – establishment section, Part 2.2, p. 41. See also p. 48. As regards the Republic of Bulgaria’s argument relating to failure to consult the EESC and the CoR, I refer to point 535 et seq. of this Opinion. Having regard to the content of the Impact assessment – establishment section, it is clear that both of those committees had the opportunity to express their views sufficiently on the draft regulation (the waiting period of four days).

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466      See the Impact assessment – establishment section, Part 2.2, p. 41, last column.

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467      See document COM(2020) 151 final, p. 6.

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468      See judgments of 12 April 2018, Commission v Denmark (C‑541/16, EU:C:2018:251, paragraph 53), and of 14 September 2023, Staatsanwaltschaft Köln and Bundesamt für Güterverkehr (Transport of empty containers) (C‑246/22, EU:C:2023:673, paragraphs 25, 28 and 29).

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469      It was sufficient to carry out an international transport operation to the host Member State in order for a period of seven days to be opened, during which cabotage operations were permitted. At the end of that period, transporters could immediately organise another international transport operation and a return to the host Member State in order for a new period of seven days to opened for cabotage operations.

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470      OJ 2005 C 21, p. 2. See point 3.1.1 of that communication.

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471      See Impact assessment – establishment section, Part 1.2, p. 40 (footnote 96).

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472      3.14 periods of seven days, according to the Parliament.

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473      See judgment of 26 September 2013, ÖBB-Personenverkehr (C‑509/11, EU:C:2013:613, paragraph 47).

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474      The Commission examined the question of the effects of the abolition of all restrictions on cabotage and concluded that the economic and social differences between the Member States prevented such abolition from being envisaged: see Impact assessment – establishment section, Part 2.2, p. 40.

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475      See Impact assessment – establishment section, Part 1.2, p. 49.

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476      See Impact assessment – establishment section, Part 1.2, p. 40.

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477      See Impact assessment – establishment section, Part 1.2, p. 50.

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478      See Impact assessment – establishment section, Part 1.2, p. 50.

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479      See judgment of 13 March 2019, Poland v Parliament and Council (C‑128/17, EU:C:2019:194, paragraph 106).

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480      See p. 40 of the impact assessment.

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481      See point 301 of this Opinion.

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482      See Impact assessment – establishment section, Part 1.2, pp. 37 and 54.

---

483      See point 755 of this Opinion.

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484      See Impact assessment – establishment section, Part 1.2, pp. 39 and 40.

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485      See, inter alia, judgment of 13 March 2019, Poland v Parliament and Council (C‑128/17, EU:C:2019:194, paragraph 106).

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486      See point 767 of this Opinion.

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487      Regulation 2020/698 of the European Parliament and of the Council of 25 May 2020 laying down specific and temporary measures in view of the Covid-19 outbreak concerning the renewal or extension of certain certificates, licences and authorisations and the postponement of certain periodic checks and periodic training in certain areas of transport legislation (OJ 2020 L 165, p. 10), and Regulation (EU) 2021/267 of the European Parliament and of the Council of 16 February 2021 laying down specific and temporary measures in view of the persistence of the Covid-19 crisis concerning the renewal or extension of certain certificates, licences and authorisations, the postponement of certain periodic checks and periodic training in certain areas of transport legislation and the extension of certain periods referred to in Regulation 2020/698 (OJ 2021 L 60, p. 1) are cited as examples by the Council in its defence in Case C‑554/20.

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488      Pursuant to Article 4 of Regulation 2020/1055.

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489      White paper ‘Roadmap to a Single European Transport Area – Towards a competitive and resource efficient transport system’ (COM(2011) 144 final of 28 March 2011).

---

490      White paper ‘Roadmap to a Single European Transport Area – Towards a competitive and resource efficient transport system’ (COM(2011) 144 final of 28 March 2011).

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491      See judgment of 13 March 2019, Poland v Parliament and Council (C‑128/17, EU:C:2019:194, paragraph 106).

---

492      See point 622 of this Opinion.

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493      See point 678 et seq. of this Opinion.

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494      See point 791 et seq. of this Opinion.

---

495      See judgment of 8 July 2021, Staatsanwaltschaft Köln and Bundesamt für Güterverkehr (C‑937/19, EU:C:2021:555, paragraph 51).

---

496      See point 685 of this Opinion.

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497      See the case-law cited in footnote 423 of this Opinion.

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498      Romania also seeks annulment of point 4(b) and (c) of Article 2 of Regulation 2020/1055, which amended paragraph 3 and inserted paragraph 4a in Article 8 of Regulation No 1072/2009, but without developing a separate argument from that directed at point 4(a) of Article 2 of Regulation 2020/1055.

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499      That Article 4 provides that ‘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’. Directive 92/106 was last amended by Council Directive 2013/22/EU of 13 May 2013 adapting certain directives in the field of transport policy, by reason of the accession of the Republic of Croatia (OJ 2013 L 158, p. 356).

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500      The Republic of Poland refers here to the Statement by Commissioner Vălean.

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501      Mobility Package 1 – Data gathering and analysis of the impacts of cabotage restrictions on combined transport road legs, final report, TRT, November 2020 (available at https://op.europa.eu/en/publication-detail/-/publication/a6718302-72a1-11eb-9ac9-01aa75ed71a1/language-en) (‘the TRT study’).

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502      COM(2017) 648 final of 8 November 2017.

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503      See the detailed explanation of proposal COM(2017) 648 final (p. 13).

---

504      Commission working document, REFIT ex-post evaluation of combined transport directive 92/106, final report (SWD(2016) 141 final of 20 April 2016).

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505      See paragraph 4.1 of the Commission working document, REFIT ex-post evaluation of combined transport directive 92/106, final report (SWD(2016) 141 final of 20 April 2016).

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506      In those circumstances, the TRT study on which the Republic of Poland relies, which proceeds from the premiss that all Member States will have recourse to the safeguard clause in order to assess its impact, is based on a false assumption.

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507      See TRT study.

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508      See paragraphs (2) and (2a) of Article 8 of Regulation No 1072/2009, as amended by Regulation 2020/1055.

---

509      The meaning of which also becomes clear upon reading recital 22 of Regulation 2020/1055.

---

510      The TRT study confirms the uncertainty about the real scope of future restrictions in the combined transport sector (see p. 11 of that study).

---

511      Directive 96/71/CE of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services (OJ 1997 L 18, p. 1).

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512      Directive 2014/67/UE of the European Parliament and of the Council of 15 May 2014 on the enforcement of Directive 96/71/EC concerning the posting of workers in the framework of the provision of services and amending Regulation (EU) No 1024/2012 on administrative cooperation through the Internal Market Information System (‘the IMI Regulation’) (OJ 2014 L 159, p. 11).

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513      Directive 2006/22/CE of the European Parliament and of the Council of 15 March 2006 on minimum conditions for the implementation of Council Regulations (EEC) No 3820/85 and (EEC) No 3821/85 concerning social legislation relating to road transport activities and repealing Council Directive 88/599/EEC (OJ 2006 L 102, p. 35).

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514      Regulation (EU) No 1024/2012 of the European Parliament and of the Council of 25 October 2012 on administrative cooperation through the Internal Market Information System and repealing Commission Decision 2008/49/EC (‘the IMI Regulation’) (OJ 2012 L 316, p. 1).

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515      See recital 8 of Directive 2020/1057.

---

516      In that regard, see judgment of 1 December 2020, Federatie Nederlandse Vakbeweging (C‑815/18, EU:C:2020:976, paragraph 33; ‘the judgment in Federatie Nederlandse Vakbeweging’).

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517      See recital 10 of Directive 2020/1057. The second subparagraph of Article 1(3) of Directive 2020/1057 defines bilateral transport operations in respect of goods; the second subparagraph of Article 1(4) of that directive defines bilateral transport operations in respect of passengers.

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518      See, respectively, the third and fourth subparagraphs of paragraph 3 and the third subparagraph of paragraph 4 of Article 1 of Directive 2020/1057.

---

519      Recital 11 of Directive 2020/1057.

---

520      Recital 11 of Directive 2020/1057.

---

521      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).

---

522      In the words of the second subparagraph of Article 1 of Directive 92/106 ‘“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 makes 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’.

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523      Recital 15 of Regulation No 1072/2009.

---

524      Recital 15 of Regulation No 1072/2009.

---

525      See the analysis in this Opinion devoted to the pleas in the actions directed against point 4(a) of Article 2 of Regulation 2020/1055.

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526      See, to that effect, judgments of 11 December 2008, Commission v Département du Loiret (C‑295/07 P, EU:C:2008:707, paragraph 104) and of 6 December 2012, Commission v Verhuizingen Coppens (C‑441/11 P, EU:C:2012:778, paragraph 37).

---

527      Judgment of 6 December 2012, Commission v Verhuizingen Coppens (C‑441/11 P, EU:C:2012:778, paragraph 38).

---

528      See paragraph 9 of the application of the Republic of Bulgaria and paragraph 8 of the application of the Republic of Cyprus, which uses the expression ‘system of differentiation’.

---

529      At least in that those provisions do not concern the two types of transport operations referred to by those two Member States.

---

530      See, to that effect, judgment of 19 December 2019, Dobersberger (C‑16/18, EU:C:2019:1110, paragraph 31); see also judgment in Federatie Nederlandse Vakbeweging, paragraph 45.

---

531      See, to that effect, judgment of 19 December 2019, Dobersberger (C‑16/18, EU:C:2019:1110, paragraph 31), and judgment in Federatie Nederlandse Vakbeweging, paragraph 49.

---

532      See judgment in Federatie Nederlandse Vakbeweging, paragraphs 45 and 46.

---

533      See judgment in Federatie Nederlandse Vakbeweging, paragraphs 32, 33 and 41.

---

534      See judgment in Federatie Nederlandse Vakbeweging, paragraphs 47 and 48.

---

535      See judgment in Federatie Nederlandse Vakbeweging, paragraphs 47 and 48.

---

536      See judgment in Federatie Nederlandse Vakbeweging, paragraphs 47 and 48.

---

537      See judgment in Federatie Nederlandse Vakbeweging, paragraph 62.

---

538      See judgment in Federatie Nederlandse Vakbeweging, paragraph 64.

---

539      Judgment in Federatie Nederlandse Vakbeweging, paragraphs 31 to 41. More recently still, the Court has had occasion to refer to that case-law in the case that gave rise to the judgment of 8 July 2021, Rapidsped (C‑428/19, EU:C:2021:548, paragraphs 34 to 36).

---

540      Hungary lodged its application on 26 October 2020, while that judgment was delivered on 1 December 2020.

---

541      Hungary lodged its reply in Case C‑551/20 on 26 March 2021.

---

542      Article 1(2) of the contested directive provides that that article is to apply to drivers employed by undertakings established in a Member State which take the transnational measure referred to in point (a) of Article 1(3) of Directive 96/71. The main conclusion that can be drawn is that it is only where a situation comes within Article 1(3)(a) of Directive 96/71 that the contested directive will be relevant. In that regard, I note that the Council has observed that it must be considered that the provisions of Article 1(3) to (7) of Directive 2020/1057 limit the scope of Directive 96/71, in that they extend the situations in which the conditions of work and employment of the host Member State do not apply.

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543      It will be recalled that the Republic of Bulgaria and the Republic of Cyprus designate under that name the fact of applying to cross trade operations, without a time threshold, the rules on posting, while exempting bilateral transport operations (or, in their view, a model that draws a distinction between the two types of transport) from those rules: see paragraph 8 of the application in Case C‑544/20 and paragraph 8 of the application in Case C‑550/20.

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544      Judgment of 16 July 1992, Parliament v Council (C‑65/90, EU:C:1992:325).

---

545      Judgment of 16 July 1992, Parliament v Council (C‑65/90, EU:C:1992:325).

---

546      COM(2018) 51 final of 31 January 2018.

---

547      See Annex C2 to the application in Case C‑544/20.

---

548      OJ 2018 C 197, p. 45.

---

549      OJ 2018 C 176, p. 57.

---

550      See point 532 et seq. of this Opinion.

---

551      See point 537 et seq. of this Opinion.

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552      Judgment of 16 July 1992 (C‑65/90, EU:C:1992:325). See point 540 et seq. of this Opinion.

---

553      See paragraph 1 of the explanatory memorandum of the CoR opinion.

---

554      See paragraphs 8 and 9 of the application in Case C‑544/20.

---

555      See paragraph 1.4 of the EESC opinion.

---

556      See paragraph 1.15 of the EESC opinion.

---

557      See paragraph 5.12 of the EESC opinion.

---

558      See paragraph 1.16 of the EESC opinion.

---

559      See paragraph 1.17 of the EESC opinion. Emphasis added. See also paragraph 5.9 of that opinion.

---

560      See point 869 above.

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561      Romania refers to the ex-post evaluation study, to the Parliament’s study ‘Social and Working Conditions of Road Transport Hauliers’, to the Commission’s study on the situation of the transport market in the European Union, to the Commission’s initial public consultations and to the working groups organised by the Commission.

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562      EU Treaty, consolidated version of 9 May 2008 – Protocol (No 2) on the application of the principles of subsidiarity and proportionality (OJ 2008 C 115, p. 206).

---

563      OJ 1980 L 266, p. 1.

---

564      Opinion of the European Committee of the Regions – Europe on the Move: labour aspects of road transport (OJ 2018 C 176, p. 57, recitals 23, 24 and 26).

---

565      The Republic of Bulgaria refers to a KPMG survey of 8 October 2019 entitled ‘The EC’s Mobility Package I: Impact on the European Road Transport System’.

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566      See point 42 above.

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567      See judgment of 8 December 2020, Hungary v Parliament and Council (C‑620/18, EU:C:2020:1001, paragraphs 112 and 113).

---

568      See judgment of 13 April 2010, Bressol and Others (C‑73/08, EU:C:2010:181, paragraph 90). See also point 412 above.

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569      In that regard, it should be observed that, as a number of parties have emphasised, at the time when that directive was adopted there was a great deal of uncertainty about the very applicability of Directive 96/71 to the road transport sector, as the Member States took diametrically opposite positions on that subject.

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570      See point 42 above.

---

571      See point 953 above.

---

572      Judgment in Federatie Nederlandse Vakbeweging, paragraph 62.

---

573      Judgment in Federatie Nederlandse Vakbeweging, paragraph 49.

---

574      Judgment in Federatie Nederlandse Vakbeweging, paragraph 49.

---

575      In that regard, see my Opinion in Joined Cases Hessischer Rundfunk (C‑422/19 and C‑423/19, EU:C:2020:756, paragraph 114 and the case-law cited).

---

576      See judgment in Federatie Nederlandse Vakbeweging, paragraphs 47 and 48.

---

577      See Impact assessment – social section, Part 2.2, p. 107.

---

578      See, inter alia, points 222 and 240 of this Opinion.

---

579      See, in that regard judgment of 8 December 2020, Hungary v Parliament and Council (C‑620/18, EU:C:2020:1001, paragraphs 112 and 113).

---

580      Romania and the Republic of Poland refer to the judgment in Koelzsch  and to the judgment in Mazzoleni.

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581      Judgment of 8 December 2020, Hungary v Parliament and Council (C‑620/18, EU:C:2020:1001, points 41 et 42 and the case-law cited).

---

582      See, to that effect, judgment of 8 December 2020 (Hungary v Parliament and Council, C‑620/18, EU:C:2020:1001, paragraphs 41, 42, 61, 62, 64 and 128).

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583      See Communication from the Commission to the European Parliament pursuant to Article 294(6) TFEU concerning the position of the Council on the adoption of a Regulation amending Regulation (EC) No 1071/2009, Regulation (EC) No 1072/2009 and Regulation (EU) No 1024/2012 with a view to adapting them to developments in the sector, a Regulation amending Regulation (EC) No 561/2006 on minimum requirements on maximum daily and weekly driving times, minimum breaks and daily and weekly rest periods and Regulation (EU) 165/2014 as regards positioning by means of tachographs, and a Directive amending Directive 2006/22/EC as regards enforcement requirements and laying down specific rules with respect to Directive 96/71/EC and Directive 2014/67/EU for posting drivers in the road transport sector and amending Regulation (EU) No 1024/2012 (COM(2020) 151 final).

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584      See Impact assessment – social section, Part 1.2, inter alia, pp. 43 and 45.

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585      In the words of Article 2(2) of the Commission Proposal for a directive on posting, ‘Member States shall not apply points (b) and (c) of the first subparagraph of Article 3(1) of Directive 96/71/EC to drivers in the road transport sector employed by undertakings referred to in Article 1(3)(a) of that Directive, when performing international carriage operations as defined by Regulations 1072/2009 and 1073/2009 where the period of posting to their territory to perform these operations is shorter than or equal to three days during a period of one calendar month’. In the words of the second subparagraph of that paragraph, ‘when the period of posting is longer than three days, Member States shall apply points (b) and (c) of the first subparagraph of Article 3 (1) of Directive 96/71/EC for the entire period of posting to their territory during the period of one calendar month referred to in the first subparagraph’.

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586      In the words of Article 3(1) of Directive 96/71, ‘Member States shall ensure that, whatever the law applicable to the employment relationship, the undertakings referred to in Article 1(1) guarantee workers posted to their territory the terms and conditions of employment covering the following matters which, in the Member State where the work is carried out, are laid down: – by law, regulation or administrative provision, and/or – by collective agreements or arbitration awards which have been declared universally applicable within the meaning of paragraph 8, in so far as they concern the activities referred to in the Annex: (a) maximum work periods and minimum rest periods; (b) minimum paid annual holidays; (c) the minimum rates of pay, including overtime rates; this point does not apply to supplementary occupational retirement pension schemes; (d) the conditions of hiring-out of workers, in particular the supply of workers by temporary employment undertakings; (e) health, safety and hygiene at work; (f) protective measures with regard to the terms and conditions of employment of pregnant women or women who have recently given birth, of children and of young people; (g) equality of treatment between men and women and other provisions on non-discrimination; (h) the conditions of workers’ accommodation where provided by the employer to workers away from their regular place of work; (i) allowances or reimbursement of expenditure to cover travel, board and lodging expenses for workers away from home for professional reasons’.

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587      See preceding footnote.

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588      See judgments of 3 December 2019, Czech Republic v Parliament and Council (C‑482/17, EU:C:2019:1035, paragraph 83), and of 13 March 2019, Poland v Parliament and Council (C‑128/17, EU:C:2019:194, paragraph 43).

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589      Impact assessment – social section, pp. 65 et seq., 74 and 75.

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590      Impact assessment – social section, pp. 65 to 69.

---

591      By comparison with the requirements laid down in Article 9(1) and (2) of Directive 2014/67.

---

592      See Article 2(4) of the Proposal for a directive on posting.

---

593      See Article 1(11) to (15) of Directive 2020/1057 and Article 9(1) and (2) of Directive 2014/67.

---

594      The Commission itself confirmed that in its communication concerning the Council’s position on first reading, COM(2020) 151, p. 4.

---

595      It is not apparent that that situation entails an increase in administrative costs, since both in application of the proposal for a directive on posting and in application of Directive 2020/1057 it is still a situation of posting, the only difference being that in the former case the rules of the host Member State on the minimum period of paid annual leave and remuneration are not applicable.

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596      See, by analogy, the case-law referred to in point 59 above.

---

597      See Eurostat, Road freight transport by journey characteristics, December 2019; Eurostat, Road freight transport statistics – cabotage, August 2018; Eurostat, Eurostat statistics, cabotage and international transport by Polish hauliers.

---

598      Council Document ST 12087/17, p. 13 (passage translated for the purposes of the present defence, as the document was not translated into French).

---

599      Commission impact assessment accompanying proposal COM(2017) 648, SWD(2017) 362.

---

600      KombiConsult, 2015, Analysis of the EU Combined Transport; ISL/KombiConsult, 2017, Updating EU combined transport data; TRT Trasporti e Territorio srl, 2017, Gathering additional data on EU combined transport; KombiConsult, 2017, Consultations and related analysis in the framework of impact assessment for the amendment of Combined Transport Directive (92/106/EEC); the last four studies are all published by the Commission at the following address: https://ec.europa.eu/transport/themes/logistics/studies_en.

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601      See point 1064 et seq. of this Opinion.

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602      I note that initially Romania maintains that operators established at the periphery of the European Union will bear the administrative and financial costs linked with posting and will be deterred from carrying out operations such as those governed by Article 1(3) to (6) of Directive 2020/1057. However, the contested provisions treat all Member States in the same way, while the difference in treatment resulting from those provisions is defined by reference to the particular transport operation in question. I shall therefore analyse here the arguments which Romania puts forward in the second place, which focus on a difference in treatment between bilateral operations and cross trade operations.

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603      This plea relates only to the alleged breach of the principle of equal treatment and of Article 20 of the Charter owing to the alleged difference in treatment between bilateral transport operations and cross trade operations and does not relate to cabotage.

---

604      See recital 10 of Directive 2020/1057.

---

605      Judgment in Federatie Nederlandse Vakbeweging (paragraph 49).

---

606      See footnote 26 of the Council’s rejoinder in Case C‑548/20.

---

607      See point 622 of this Opinion.

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608      See, by analogy, judgment of 8 December 2020, Hungary v Parliament and Council (C‑620/18, EU:C:2020:1001, paragraph 125).

---

609      See judgment of 4 May 2016, Poland v Parliament and Council (C‑358/14, EU:C:2016:323, paragraph 103 and the case-law cited).

---

610      See, to that effect, judgment of 13 November 1990, Fédesa and Others (C‑331/88, EU:C:1990:391, paragraphs 19 and 20), and judgment of 17 July 1997, SAM Schiffahrt and Stapf (C‑248/95 and C‑249/95, EU:C:1997:377, paragraphs 52, 63 and 64).

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611      See, to that effect, judgment of 21 June 1958, Wirtschaftsvereinigung Eisen- und Stahlindustrie and Others v High Authority (13/57, EU:C:1958:10, p. 265).

---

612      See, to that effect, judgment of 8 December 2020 (Hungary v Parliament and Council, C‑620/18, EU:C:2020:1001, paragraphs 41, 42, 61, 62, 64 and 128).

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613      See judgments of 13 November 1990, Fédesa and Others (C‑331/88, EU:C:1990:391), and, by analogy, of 17 July 1997, SAM Schiffahrt and Stapf (C‑248/95 and C‑249/95, EU:C:1997:377, paragraph 64).

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614      See point 1069 of this Opinion.

---

615      See paragraph 7 of the Council’s rejoinder in Case C‑541/20.

---

616      See Annex A9 to the application in Case C‑544/20.

---

617      See, by analogy, judgments of 21 September 1999, BASF (C‑44/98, EU:C:1999:440, paragraph 16), and of 17 September 2020, Hidroelectrica (C‑648/18, EU:C:2020:723, paragraph 29 and the case-law cited).

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618      See Annex A.9 to the Republic of Bulgaria’s application in Case C‑544/20 and Annex A.7 to the Republic of Cyprus’s application in Case C‑550/20.

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619      See point 38 et seq. of this Opinion.

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620      See the Opinion of Advocate General Geelhoed in Austria v Parliament and Council (C‑161/04, EU:C:2006:66, points 59 and 60). On that Opinion, see point 567 et seq. of this Opinion.

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621      The Republic of Poland refers here to the judgment of 10 September 2019, Poland v Commission (T‑883/16, EU:T:2019:567, paragraphs 77 and 78).

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622      Statement by Commissioner Vălean on the final adoption of the Mobility Package I by the European Parliament, Brussels, 9 July 2020 (https:// https://ec.europa.eu/commission/presscorner/detail/en/statement_20_1319).

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623      See Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions ‘Stepping up Europe’s 2030 climate ambition Investing in a climate-neutral future for the benefit of our people’ (COM(2020) 562 final of 17 September 2020).

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624      See footnote 273 of this Opinion.

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625      Directive (EU) 2016/2284 of the European Parliament and of the Council of 14 December 2016 on the reduction of national emissions of certain atmospheric pollutants, amending Directive 2003/35/EC and repealing Directive 2001/81/EC (OJ 2016 L 344, p. 1).

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626      See footnote 300 of this Opinion.

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627      Impact assessment– social section, paragraph 6.

---

628      European Commission, Directorate-General for Mobility and Transport ‘Mobility Package 1 – Data gathering and analysis of the impacts of cabotage restrictions on combined transport road legs – Final report’, Publications Office, 2021 (available at https://data.europa.eu/doi/10.2832/701828).

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629      Recital 1 of Directive 2020/1057.

---

630      Judgment of 1 December 2020 (C‑815/18, EU:C:2020:976).

---

631      See judgment in Federatie Nederlandse Vakbeweging (paragraph 33).

---

632      Although the Council notes that the argument was raised by the Republic of Poland only in the reply, it does not seem to dispute its admissibility. In the interest of completeness, I shall therefore respond to the argument.

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633      Directive (UE) 2018/957 of the European Parliament and of the Council of 18 June 2018 amending Directive 96/71/EC concerning the posting of workers in the framework of the provision of services (OJ 2018 L 173, p. 16).

---

634      As that follows from Article 3(3) of Directive 2018/957.

---

635      Judgment of 1 December 2020 (C‑815/18, EU:C:2020:976).

---

636      See point 952 et seq. of this Opinion.

---

637      See judgment of 1 March 1983, Commission v Belgium (301/81, EU:C:1983:51, paragraph 11).

---

638      See point 1064 et seq. of this Opinion.