C-113/83
ECLI:EU:C:1984:395
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J U D G M E N T OF T H E C O U R T 11 DECEMBER 1984 1
Commission of the European Communities v Italian Republic
(Transport authorizations — Community quota)
Case 113/83
Transport — Road transport — Community quota for carriage ofgoods between Member- States — Transport authorizations issued as part of the quota — Coupled vehicles — Requirement of two authorizations — Prohibition (Council Regulation No 3164/76, Art. 2 (1) and (3))
Under the Community quota system combination of vehicles, consisting of provided for by Regulation No 3164/76, parts registered in two different Member a Member State may not require two States, effects international carriage by transport authorizations when a coupled road.
In Case 113/83
COMMISSION OF THE EUROPEAN COMMUNITIES, represented by its Legal Adviser, Giuliano Marenco, acting as Agent, with an address for service in Luxem- bourg at the office of Oreste Montako, a member of its Legal Service, Jean Monnet Building, Kirchberg,
applicant, v
ITALIAN REPUBLIC, represented by Arnaldo Squillante, Divisional President of the State Council, Head of the Department for Contentious Diplomatic Affairs, acting as Agent, assisted by Ignazio Francesco Caramazza, Avvocato dello Stato, with an address for service in Luxembourg at the Italian Embassy,
defendant, 1 — Language of the Case: Italian.
JUDGMENT OF 11. 12. 1984 — CASE 113/83
APPLICATION for a declaration under the second paragraph of Article 169 of the EEC Treaty that, in requiring two transport authorizations under the Community quota system when a coupled combination of vehicles, consisting of parts registered in two different Member States, effects international carriage by road, the Italian Republic has failed to fulfil its obligations under Council Regulation (EEC) N o 3164/76 on the Community quota for the carriage of goods by road between Member States,
THE COURT
composed of: Lord Mackenzie Stuart, President, G. Bosco and C. Kakouris (Presidents of Chambers), A. O'Keeffe, U. Everling, Y. Galmot and R. Joliét, Judges,
Advocate General: C. O. Lenz Registrar: D. Lou terman, Administrator
gives the following
JUDGMENT
Facts and Issues
The facts of the case, the course of the States, effected international carriage by procedure and the conclusions, sub- road, commencing in, with its des- missions and arguments of the parties tination in or in transit through Italy. It may be summarized as follows : took the view that that requirement was incompatible with the Community I — Facts and procedure provisions on the subject and, by letter dated 4 November 1981, invited the 1. The Commission found that the Italian Government to submit its obser- Italian authorities required two transport vations. authorizations when a coupled com- bination of vehicles, consisting of parts 2. In its letter the Commission ex- registered in two different Member plained that pursuant to Article 2 (1) of
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Council Regulation (EEC) No 3164/76 to a trailer or semi-trailer belonging of 16 December 1976 (Official Journal to another undertaking and that the L 357, 29. 12. 1976, p. 1) Community provision had been adopted to facilitate authorizations entitled their holders to international traffic. Finally the Italian effect the carriage of goods by road as Government maintained that Regulation specified therein and that Article 2 (3) of No 3164/76 and Directive 65/269, in that regulation stated that Community providing for the use of a single authorizations were to be made out in transport authorization even for carriage the name of a carrier, they could not be effected by a coupled combination of transferred by the carrier to third parties, vehicles were obviously based on the each authorization could be used for assumption that the parts making up the only one vehicle at a time, it was to be combination all belonged to the under- carried on the vehicle and "vehicle" taking holding the authorization. meant a single vehicle or a coupled combination of vehicles. Since the regu- lation made no distinction in relation to the State where the vehicles or the parts of a coupled combination of vehicles 4. The Commission considered that were registered, the Commission took those observations were not capable of the view that Council Regulation No affecting its view for the following 3164/76 provided no basis for requiring reasons : two transport authorizations when a coupled combination of vehicles, con- sisting of parts registered in different Member States effected international carriage by road. The fact that the Italian provisions were adopted to facilitate international traffic and that they thus constituted a dero- gation from a stricter rule applying to In its letter the Commission also main- domestic traffic could not justify tained that the practice was incompatible disregard of the Community provisions. with Directive 65/269/EEC of 13 May 1965 concerning the standardization of certain rules relating to authorizations for the carnage of goods by road The view that Regulation No 3164/76 between Member States (Official was based on the assumption that the Journal, English Special Edition 1965- parts making up a combination of 1966, p. 64), other than Community coupled vehicles all belonged to the authorizations. undertaking holding the authorization had to be rejected because, although it was true that an authorization was made out in the name of a carrier and could 3. In its answer of 27 January 1982 the not be transferred, the Community rules Italian Government challenged the in no way specified that the vehicle or all Commission's view. It explained that the the parts thereof had to belong to the national provision which the Commission carrier holding the authorization. was contesting constituted a derogation from a much stricter rule applying to Italian domestic traffic to the effect that a towing vehicle registered in the name The contested Italian rule did not of one undertaking could not be coupled provide that the parts of a coupled
JUDGMENT OF 11. 12. 1984 — CASE 113/83
combination of vehicles had to belong to The written procedure followed the the carrier holding the authorization but normal course. that the authorization was valid only if the two parts were registered in the same Member State, whereas Regulation No 3164/76 did not provide that the auth- Upon hearing the report of the Judge orization was valid only for the carriage Rapporteur and the views of the by a vehicle registered in the carrier's Advocate General the Court decided to State of residence or that the parts of a open the oral procedure without any coupled combination of vehicles had to preparatory inquiry. It did, however, be registered in the same State. invite the Italian Government to supply information concerning its national rules and the Commission of the European Communities to answer a question On the basis of those considerations the concerning the position adopted in the Commission concluded that the aforesaid present case. requirement of the Italian Government was incompatible with the right of the holder of the Community authorization to effect the carriage of goods in so far as it imposed additional conditions which were, not provided for and that the II — C o n c l u s i o n s of t h e p a r t i e s requirement of two authorizations was moreover contrary to the objectives of the Community regulation in so far as it reduced . the value of the Community authorization. 1. The Government of the Italian Republic contends that the Court should dismiss the action and make all consequent ancillary orders since the Italian Republic has not failed to fulfil its 5. On 27 October 1982 the Com- obligations under Regulation. No mission therefore delivered a reasoned 3164/76. opinion which left aside the question of the compatibility of the Italian practice with Directive 65/629 and restricted the failure with which the Italian Republic was charged to the incompatibility of the 2. The Commission of the European national practice with Regulation No Communities claims that the Court 3164/76 and in particular Article 2 (1) should: and (3) thereof and requested the Italian Government to take the measures necessary to comply with the opinion within a period of two months. Declare that, in requiring two authoriz- ations under the Community quota system when a coupled combination of vehicles, consisting of parts registered in 6. Since the Italian Government did not different Member States, effects inter- adopt the appropriate measures within national carriage by road commencing the period so prescribed, the Commission in, with its destination in, or in transit brought the present action registered at through Italy, the Italian Republic has the Court Registry on 17 June 1983. failed to fulfil its obligations under Regu-
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lation (EEC) No 3164/76 and in amended by Regulation (EEC) No particular Article 2 (1) and (3) thereof; 3515/82 of 21 December 1982 (Official Journal L 369, 29. 12. 1982, p. 2). Order the Italian Republic to pay the costs. The Commission adds that a Council Directive of 23 July 1962 (Official Journal, English Special Edition 1959- III — S u b m i s s i o n s and argu- 1962, p. 267), as most recently amended m e n t s of t h e p a r t i e s on 19 January 1982 (Official Journal L 27, 4. 2. 1982, p. 22), liberalized transport effected on the carrier's own behalf and certain transport for hire or 1. The Commission in its application reward, and that further certain traffic is puts forward the following arguments unrestricted by decision of the Member and submissions: States concerned (for example between Belgium and the Netherlands). A — It starts by outlining the system established by Regulation No 3164/76 and the system of which those provisions (c) It emphasizes that the carriage of form part. goods between Member States is still not free of restrictions. It is conducted by means of authorizations issued by each (a) It emphasizes that the Treaty Member State as part of bilateral quotas separated the free movement of services (transport between the two Member in transport from that of other services States concerned) or as part of by providing that it should be governed Community quotas (bilateral or multi- by the provisions of the title relating to lateral transport between the Member transport (Article 61 (1)) and that Article States) and once the quotas are 75 (1) (a) provides for the adoption of exhausted another form of transport "common rules applicable to inter- must be chosen, such as by rail or national transport to or from the waterway, or the owner of the goods territory of a Member State". must transport them himself since that is liberalized. (b) It observes that the Council did not follow all the Commission's proposals for the gradual abolition of existing (d) The Commission states that the bilateral quotas and the creation of a implementation of the Community quota Community quota for road transport system is effected by Council regulations during the transitional period, but had annually fixing the amount which has confined itself to providing for the steadily increased but represents only creation of a Community quota some 5 % of all authorized international alongside the bilateral quotas drawn up traffic (bilateral and Community quotas) between the Member States. That system and it is for each Member State to issue was set up by Regulation (EEC) No Community authorizations in accordance 1018/68 of the Council of 19 July 1968 with its own procedure and within the (Journal Officiel L 175, 23. 7. 1968, limits of the total number of authoriz- p. 13) and is at present governed by ations allocated to it for the current year Regulation (EEC) No 3164/76 of (Article 2 (6) of Regulation (EEC) No 16 December 1976 as most recently 3164/76.
JUDGMENT OF 11. 12. 1984 — CASE 113/83
(e) Finally the Commission points out carriers from different Member States or that although the Community institutions the case of transport over a particular do not intervene in fixing and applying journey having special geographical the bilateral quotas, the aforesaid features (transport between Ireland and Council Directive of 13 May 1965 stan- the United Kingdom, on the one hand, dardized certain rules relating to auth- and Italy, on the other) where the profit- orizations granted thereunder and a ability depends on the possibility of Council Decision of 20 December 1979 changing towing vehicles to avoid their fixed certain rules for determining them immobilization (for example when they (Official Journal L 18, 24. 1. 1980, p. cross the Channel). 21).
C — To demonstrate how the practice B — The Commission then analyses the of the Italian administration is in- practice of the Italian administration in compatible with the provisions of Regu- requiring two authorizations instead of lation No 3164/76, the breach of which, one for a vehicle composed of two parts according to the Commission, is the sole (for example towing vehicle and trailer) issue in the present proceedings, the registered in two different Member Commission puts forward the following States. submissions and arguments.
It states that that requirement (which does not apply to authorizations issued (a) It emphasizes that the first sentence by the Italian authorities for an even of the second subparagraph of Article 2 stricter rule in Italy prohibits a towing (3) of Regulation No 3164/76 provides vehicle registered in the name of one that "Each authorization may be used undertaking from being coupled to a for only one vehicle at a time", and that trailer belonging to another undertaking) the third . subparagraph states that applies to authorizations issued by other " 'Vehicle' means a single vehicle or Member States; according to the second a coupled combination of vehicles" sentence of the second subparagraph of without any distinction being made Article 2 (3) of Regulation No 3164/76, according to whether the parts of the which provides that the authorization vehicle are registered in a single Member must be carried on the vehicle and State or two different Member States. produced at the request of any auth- orized inspecting officer, such author- izations are subject to inspection by the That being so, the effect of the Italian Italian authorities when the vehicles requirement is to reduce the value of enter Italian territory. every authorization because it limits the possibilities that holders have in respect of a particular vehicle and at the same T o show the economic impact of that time reduces the total value of the requirement the Commission refers to Community quota. certain examples illustrating the value of the possibility of coupling vehicles to trailers or semi-trailers registered in different Member States such as in the (b) The Commission also refers to the case of undertakings established in arguments of the Italian Government to several Member States, the case of a pool the effect that the contested measure is of trailers purchased by an association of a derogation from the stricter rule
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applying to domestic traffic and that In the Commission's view the rule that Regulation No 3164/76 implicitly as- the authorization is to be made out in sumes that both parts of the combination the name of a carrier is intended to belong to the undertaking which is the specify what the Member State may do holder of the authorization as is apparent with its part of the quota, that is to say from Article 2 (3) which states that issue authorizations directly to specific "Community authorizations shall be carriers who may not transfer them to made out in the name of a carrier" and third parties so that the rule merely that "They may not be transferred by a confirms that trade in authorizations is carrier to third parties". prohibited.
It observes first of all that quite apart from the question whether the measure 2. In its defence the Italian Government applicable to carriers established in Italy puts forward the following arguments or its application to carriers of other and submissions. Member States is lawful under Com- munity law, the disregard of Community provisions cannot be justified on the ground that the contested national measure constitues a derogation from a A — Referring to the third subpara- stricter rule applying to domestic traffic. graph of Article 2 (3) of Regulation No 3164/76, which defines a vehicles as "a single vehicle or a coupled combination of vehicles", it points out that the second With regard to the Italian Government's subparagraph of Article 2 (3) shows that second argument, the Commission a given vehicle in the course of its observes that there is no connection journey exhausts for the time being the between the alleged assumption by the rights granted it since "Each authoriz- regulation that the coupled parts must ation may be used for only one vehicle at belong to the undertaking holding the a time" and "It shall be carried on the authorization and the Italian measure vehicle . . .". requiring two authorizations when the coupled parts are registered in two different Member States. Further the Italian Government observes that according to point 4 of the General Provisions in Annex II referred to in Further the Commission observes that Article 4 of Regulation No 3164/76 each the fact that the authorization is made vehicle has a place where it "is usually out in the name of a carrier and may not based" and although the vehicle may be transferred to third parties does not consist of parts it has a precise identity mean that all the parts of the vehicle which may not be altered during a must belong to the carrier holding the "journey". authorization and that, on the contrary, it allows the carrier holding the authoriz- ation to use for any journey either several parts belonging to himself or parts that he has hired or that he has It maintains that it follows from those been permitted to use by other carriers. considerations that the authorization
JUDGMENT OF 11. 12. 1984 — CASE 113/83
granted to a national carrier is con- B — Further, the Italian Government ditional in more than one respect not considers that the examples cited by the only on the identity and nationality of Commission in its application to stress the vehicles used but also, clearly, on the the economic importance of the case do title giving the carrier the right to use it, not support the Commission's argument. which is normally ownership (according to Commission Recommendation No 69/191/EEC of 9 June 1969, point (b), Journal Officiel L 165, 5. 7. 1969, p. 7), with the nationality of the carrier and of the vehicle consequently being the same. It observes that in relation to the case of multinational undertakings and pools of trailers which should make it possible to couple parts of vehicles under a single Finally, according to the Italian Govern- authorization without regard to their ment, the quota system weighted in registration, that argument would make respect of each country pursuant to it possible for multinational transport Article 3 of Regulation N o 3164/76 as undertakings or consortiums of under- successively amended, presupposes not takings of various nationalities to alter only that the carriers holding an authoriz- the balance of the national quotas, fixed ation be national carriers (the aforesaid at Community level, by an appropriate Recommendation, point (c)), but that the redistribution of the "couplings" and State of registration should coincide with thus affect the respective economic the State of the carrier and the possibility advantages from each journey. that the authorization could apply to a vehicle consisting of parts registered in different Member States is out of question.
As regards the third example cited by the Commission, namely a sea crossing The Italian Government considers that during the journey with the substitution that is the effect of the provision in of the towing vehicle, the Italian Article 1 of the aforesaid Council Government considers that a change of Directive of 13 May 1965, to which identity of the vehicle during the reference is made for purposes of inter- "journey" would be contrary to the pretation since it is not applicable in the aforesaid point 4 of Annex II to Regu- present case, and which reads as follows : lation No 3164/76.
"Member States shall take the necessary measures to ensure that, from 1 January 1966, authorizations required for the The Italian Government thus concludes international carriage of goods by road that the Commission's view is in- to or from the territory of a Member compatible with positive law because it is State or passing across the territory of contrary to the principle of functionality one or more Member States shall be for if it were accepted it would allow issued by the competent authorities of each Member State to choose at its own the Member State in which the vehicle to discretion for which part of a coupled be used for such carriage is registered." combination of vehicles (towing vehicle
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or trailer) it would require an authoriz- grant authorizations is not the national- ation; that would lead to various results ity of the carrier but his establishment in which would be incompatible with the the territory of the Member State in spirit of Community law. question.
Finally, according to the Italian Government, the Commission's view It cites the wording of Article 2 (6) of applies only as regards a possible Regulation No 3164/76 which provides alteration in the present Community that "Community authorizations shall, in legislation and not as positive law as is accordance with the relevant national apparent from the fact that the procedures, be issued by the competent Commission submitted a proposal to the authorities of the Member States, in Council to amend the regulation in respect of carriers established in their question so that authorizations would be territory, within the limits of the total required only in respect of the towing number of authorizations allocated to vehicle (Council document No 12532/80 each Member State". Official Journal C 350, 31. 12. 1980, p. 18). It points out that in support of the argument to the contrary the Italian Government cites the aforementioned 3. In its reply the Commission observes Recommendation of 9 June 1969, point that the Italian Government's argument (c) of which recommends the Member is in effect as follows : States:
When a Member State issues authoriz- ations which form part of its Community "If they do not allow their own carriers quota it can do so only to national to use hired vehicles, to allow the holder carriers : of a Community authorization from another Member State where such auth- orization is allowed, to effect carriage by The State of registration must be the means of hired vehicles throughout their same as the carrier's State, that is to say territory under a Community authoriz- that the authorized carrier may use his ation." authorization only for vehicles registered in the State of which he is a national which, according to the foregoing, The Commission observes that that Re- would be the State which issued the commendation in no way affects the authorization. criterion for the power to issue authoriz- ations as defined in Regulation No 3164/76, because its aim is simply to Accordingly the authorization may not exclude generally (independently of the be granted in respect of a vehicle made use of a Community authorization) the up of parts registered in different application of national provisions which Member States. deny carriers holding Community auth- orizations the right to use hired vehicles. The Commission disputes that deductive reasoning with the following arguments. B — The Commission then observes that the central theme of the Italian A — It observes that the criterion for Government's case is that according to the power of each Member State to Regulation No 3164/76 the authoriz-
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ation is dependent on the identity of the II. As regards the second subparagraph vehicles and the idea that the nationality of Article 2 (3) which provides that: of the vehicles used should be the same "Each authorization may be used for as that of the carrier holding a only one vehicle at a time. It shall be Community authorization which he may carried on the vehicle and produced at use only for vehicles registered in the the request of any authorized inspecting State of which he is a national. officer", the Commission agrees with the Italian Government that the rights attaching to the authorization are ex- hausted during the journey so that the authorization may be used for only one (a) It observes that all the arguments vehicle at a time and not for several, but put forward by the Italian Government that does not preclude the vehicle being relate to the identity and not the national- replaced during a journey because of ity of the vehicle. To that extent those changes in the load or a breakdown, for arguments tend to establish, not so much example. an obligation to use the authorization for the same vehicle during the year as to use it during a single journey only in respect of one particular vehicle. It III. With regard to point 4 of the maintains that even if those arguments General Provisions in Annex II to Regu- were well founded, they would show at lation No 3164/76 from which the most only that during a given journey Italian Government draws the conclusion the authorization should be used for one that each vehicle must have a place particular vehicle and do not support the where it is usually based and a precise view that the vehicle must be of a identity that cannot change during a particular nationality. journey, the Commission observes that although there is assumed to be a place where a vehicle is usually based, it does not constitute an obligation. Even if there were an obligation it would not be (b) The Commission then analyses the possible to infer that the vehicle had to provisions cited by the Italian Govern- have a precise identity because the ment. description of a journey contained in that provision is only the description of a standard journey as is apparent from the use of the word "normally" and the note at the foot of the model record sheet contained at letter (e) of Annex II which I. It emphasizes that the third subpara- is worded as follows : graph of Article 2 (3) of Regulation N o 3164/76, which defines a vehicle as "a single vehicle or a coupled combination of vehicles", provides no support for the view that the authorization is dependent "If the journey did not begin or end at on the identity and nationality of the the place where the vehicle is normally vehicles used; what is more, it confirms based. . ." the flexibility which the Community legislature intended to give the use of the Community authorization and unequivo- cally excludes the possibility of requiring In the Commission's view the possibility two authorizations for one vehicle. that an authorization may cover another
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vehicle during one journey is confirmed authorization covers solely the vehicle or by that model record sheet from which it a part thereof registered in the State of is apparent that the carrier holding the authorization.
not only is identification of the vehicle by its registration number not required, (d) As regards Article 1 of the Council Directive of 13 May 1965, also cited by the Italian Government, the Commission observes that that provision relates to bilateral quotas and corresponds to the but it contains a Column 2 in which must provisions, in the field of Community be shown the type of vehicle used for quotas, of Article 2 (6) of Regulation No each stage of the journey (Explanatory 3164/76. Notes under letter (c) of Annex II) which would have no meaning if it were not possible to use different vehicles during one journey. It explains that the aim of those provisions is to specify the criterion for determining which Member State has The Commission thus concludes that jurisdiction to issue authorizations but according to Regulation No 3164/76 the the criterion is not the same in both cases use of the authorization is unrestricted, it because under the regulation the State in is not dependent on the identity of the which the carrier is established is vehicle and it is not necessary that the competent whereas under the directive it vehicle should be the same during the is the State in which the vehicle is whole of the journey. It stresses that registered. In view of the differences in none of the Italian Government's scope and in the approach adopted by arguments based on Regulation No the Community legislature, the Com- 3164/76 relates to the question of the mission believes that the provisions of the nationality of the vehicle which is the directive cannot be transposed to the only factor to be taken into account in present case. determining whether it is lawful to require two authorizations where parts of a vehicle having different nationalities are coupled together. The Commission states, however, that the problem raised by the differences between the said provisions is which of the two coupled parts, the towing vehicle (c) As regards the Italian Government's or the trailer, determines the State which reference to the aforesaid Commission is competent to issue the authorization, Recommendation of 9 June 1969 (point where those parts are registered in 3 (b)) to show the connection between different States. It adds that it was for the authorization and ownership of the the purpose of providing a uniform vehicle as being the right to dispose of it, solution to that question, and not to the Commission observes that in that amend a rule — which does not in fact provision ownership is not regarded as exist — requiring two authorizations in an obligatory factor in a legal sense but the event of coupled parts registered in as a normal factor in statistical terms so different Member States that it submitted that it is not possible to infer that the the above-mentioned proposal (Official
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Journal C 350, of 31. 12. 1980, p. 19) to discretion in choosing to which of the the Council. Finally the Commission two parts of the vehicle the authorization states that its proposal was intended also should attach, the Commission observes to amend the regulation in order to that the problem does not arise in resolve the actual practical problems relation to the regulation on the Com- confronting the authorities of the munity quotas because under that regu- Member States. lation each Member State allocates auth- orizations to carriers established in its territory, but the problem does arise under the aforesaid directive in relation C — As regards the Italian Govern- to bilateral quotas. ment's objections to the examples cited by the Commission to show the effects of the Italian measure in practice, the Commission observes that the argument It repeats that there is indeed a margin that under the Commission's interpret- of uncertainty which gives rise to ation multinational undertakings and different practices which the Commission trailer pooling arrangements would be has sought to harmonize but that does able to alter the equilibrium in the quotas not mean that it is possible to accept the allocated by the Council, presupposes interpretation proposed by the Italian that the problem has been resolved and Government which is contrary to the that the quotas are fixed on the basis that wording of the provisions. the authorizations cover only vehicles, both parts of which are registered in the State issuing the authorization. D — Finally, the Commission empha- Furthermore, the Commission points out sizes that if there is uncertainty about the that the quotas are fixed on the basis not interpretation which it proposes of Regu- of the vehicles but of the carriers lation No 3164/76, a solution should be established in the territory of each State. adopted that consolidates the freedom to provide services, which is one of the foundations of the common market. As to its third example of transport over a route possibly entailing a sea crossing which according to the Italian Government would be contrary to point It points out that pursuant to Article 59 4 in Annex II to Regulation No of the EEC Treaty restrictions on the 3164/76, the Commission observes that freedom to provide services had to be the Italian Government assumes that the abolished during the transitional period, same authorization is used for the but that Article 61 (1) states that duration of the carriage, but that is not freedom to provide services in the field the case because in the example cited for of transport is to be governed by the each of the two towing vehicles used in provisions of the Title relating to succession, there is a separate authoriz- transport. ation and a separate record sheet must be completed for each journey effected. It observes however that Article 75 (2) As regards the Italian Government's states that the provisions referred to in argument that the Commission's in- Article 75 (1) (a) and (b) (which concern terpretation is unreasonable inasmuch as the freedom to provide services) were to it would allow each Member State a be laid down during the transitional
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period and the aim of Regulation No of Article 2 (3) of Regulation No 3164/76 was to reduce restrictions on 3164/76 and point 4 in Annex II thereto the freedom to provide services in that the authorization must be carried on question. the vehicle during the "journey".
In view of the fact that the transitional period has long since expired, any doubt In the Italian Government's view a about interpretation must be resolved in "journey" can mean nothing other than a way that gives the freedom to provide the movement of a person (or thing) services as wide a range as is compatible from a point of departure to the point of with the provisions in force and arrival. If the person (or thing) who therefore confers on the authorizations leaves is not the same as the person (or in question the widest scope possible. thing) who arrives, that does not constitute a journey. It thus maintains that where a series of successive stages is effected under the same authorization by 4. The Italian Government, in its means of different vehicles, there is rejoinder, maintains that the basic and no journey by a vehicle but at most essentially the only problem that must be a journey by the authorization ac- resolved for the purposes of the present companied on the various stages by case is whether the Commission's view is different vehicles, which is contrary not correct that the road transport authoriz- only to the spirit but also to the wording ation on behalf of a third party issued of the regulation which provides that it is by a Member State as part of the for the vehicle and not the authorization Community quota puts the carrier to complete the journey and that it is the holding the authorization in a legal authorization which accompanies the position which is not dependent in any vehicle and not the vehicle which way on the nature, identity and national- accompanies the authorization. ity of the vehicle or whether on the contrary what the Italian Government alleges about the identity and nationality of the vehicle is correct because of the The Italian Government therefore em- inseparable connection between the three phasizes that even if the "vehicle" is a factors: authorization, vehicle and composite thing ex inter se distantibus, it journey. has its identity which cannot change and a connection which is necessarily only with one country because it is provided The Italian Government maintains that that there is a place where the "vehicle is there is no foundation in the Com- usually based". It considers that that is a mission's arguments to the effect that the concept which with regard to a motor same authorization may cover, during a vehicle can mean nothing other than a single journey, not only changes in the place in the territory of the State where composition of the vehicle but also the vehicle is registered and it is not complete changes of vehicles and that possible to object, as the Commission the problem of the identity of the vehicle does, that the place where the vehicle does not exist so that there is also no is usually based is only "normally" problem of its nationality. required (with the result that there may be exceptions because the limiting word "normally" in point 4 of Annex II refers According to the Italian Government it is to the concept of "journey" and there is apparent from the combined provisions no ground for assuming that the concept
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of "place where the vehicle is usually The Italian Government therefore based" can be subject to exceptions. concludes that according to the Commission's own proposal and con- The Italian Government contends that its trary to what the latter has maintained in argument is confirmed by the view its application and its reply, a problem of expressed by the Commission when it determining which of the vehicles is presented to the Council the afore- accompanied by the authorization arises mentioned proposal for a regulation to also . with regard to the Community amend Regulation No 3164/76, Article 1 quota and as the provisions now stand, of which is worded as follows : and that the aforesaid proposal for a regulation amending Regulation No "Regulation (EEC) N o 3164/76 is 3164/76 constitutes cogent evidence in hereby amended as follows : support of its interpretation of the proposed regulation and consequently of the existing rules. 1. The following is added to Article 2 (3): IV — Oral p r o c e d u r e 'In the case of a coupled combination of vehicles, the Community authoriz- At the sitting on 10 July 1984 the Italian ation shall be issued in respect of the Government, represented by I. F. tractor; it may also be used to cover Caramazza, Avvocato dello Stato, and haulage of a trailer or semi-trailer the Commission of the European Com- which is not registered in the name of munities, represented by G. Marenco, the holder of the Community authoriz- acting as Agent, presented oral argument ation or which is registered in a and answered questions put by the different Member State. Such auth- Court. orization shall cover the coupled The Advocate General delivered his combination of vehicles.' " opinion at the sitting on 4 October 1984.
Decision
1 By application lodged at the C o u r t Registry o n 17 J u n e 1983, the Commission of the E u r o p e a n Communities b r o u g h t an action u n d e r Article 169 of the E E C T r e a t y for a declaration t h a t the Italian Republic has failed t o fulfil its obligations u n d e r Council Regulation ( E E C ) N o 3 1 6 4 / 7 6 of 16 D e c e m b e r 1976 o n the C o m m u n i t y q u o t a for the carriage of g o o d s by r o a d between M e m b e r States (Official J o u r n a l 1976, L 357, p . 1).
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2 Regulation No 3164/76 provides that the Community quota of authoriz- ations, fixed each year by the Council, is to be allocated between the Member States. Each Member State is to issue the authorizations forming part of its share to the carriers established in its territory. Article 2 (1) of the regulation provides that the Community authorizations entitle their holders to effect, over all transport links between the Member States, the carriage of goods by road for hire or reward, with the exception of internal transport operations within the territory of a Member State, and to effect journeys unladen throughout the Community.
3 Article 2 (3) provides that Community authorizations are to be made out "in the name of a carrier", they may not be transferred by the carrier to third parties, each authorization may be used for only one vehicle at a time, it must be carried on the vehicle and produced at the request of any authorized inspecting officer and " 'vehicle' means a single vehicle or a coupled combination of vehicles".
4 Article 5 provides that the Member States are to assist one another with a view to applying the regulation and supervising its implementation.
5 In the exercise of those powers given to each Member State for the purpose of applying and supervising the regulation, when two parts of a coupled combination of vehicles effecting international carriage of goods by road to, from, or passing through Italy are registered in different Member States, the Italian authorities require two authorizations, one for the towing vehicle and one for the trailer.
6 The Commission considered that requirement incompatible with the provisions of Regulation No 3164/76. It maintained that Article 2 entitled holders of Community authorizations to effect the carriage of goods subject to certain conditions and no provision of the regulation made a distinction as to the State of registration of a single vehicle or the parts of a coupled combination of vehicles.
7 The Italian Government advocated a different interpretation of Regulation No 3164/76, arguing that, in providing for a single authorization even in
JUDGMENT OF 11. 12. 1984 — CASE 113/83
respect of carriage effected by a coupled combination of vehicles, the regu- lation covered only cases where the two parts making up the combination belonged to the same undertaking holding the authorization and consequently were registered in one Member State and that it thus did not cover cases where each part of the coupled combination of vehicles was registered in a different Member State. It maintained that Regulation N o 3164/76 implicitly recognized a connection between each transport authoriz- ation and the State of registration of the vehicles used under that authoriz- ation. It basically contended that although the regulation did not expressly refer to registration, it did establish a connection between the authorization and, on the one hand, the identity of the vehicle and, on the other, its owner from which it was to be inferred that it established a connection with the State of registration.
8 The Italian Government admitted that the regulation did not expressly refer either to the identity of the vehicle or its owner. It nevertheless maintained that the importance of those two factors was to be inferred inter alia from the interpretation of certain provisions of the regulation in question and its annexes.
9 Thus, according to the Italian Government, the identity of the vehicle, as a condition for the grant of the authorization, was to be inferred from the second subparagraph of Article 2 (3) of Regulation N o 3164/76 which provided that "Each authorization may be used for only one vehicle at a time" and that it must "be carried on the vehicle". The same condition was also to be inferred from point 4 of the General Provisions of Annex II referred to in Article 4 of the regulation which required a record sheet for each journey travelled by each vehicle which "starts and finishes at the place where the vehicle is usually based" and for that purpose referred precisely to the "place where the vehicle is usually based".
10 As regards the importance of the owner of the vehicle, the Italian Government maintained that authorizations were issued by each Member State to its nationals even if the wording of Article 2 (6) of the regulation in question referred only to carriers "established in their territory" and consequently concerned vehicles which they owned and which were "naturally" registered in that Member State. It also maintained that point (c) of Commission Recommendation N o 69/191/EEC of 9 June 1969 (Journal Officiel 1969, L 165, p. 7) providing that the holder of the authorization could use it for vehicles of which he was the owner, or for vehicles on hire, showed the importance of ownership and consequently of the State of registration of the vehicle. It put forward an argument based on Council
COMMISSION / ITALY
Directive 65/269/EEC of 13 May 1965 concerning the standardization of certain rules relating to authorizations for the carriage of goods by road between Member States (Official Journal, English Special Edition 1965-1966, p. 64), Article 1 of which provided that authorizations were to be issued by the Member State in which the vehicle was registered. It added that Council Directive 82/50/EEC of 19 January 1982 amending the first Council Directive, of 23 July 1962, on the establishment of common rules for certain types of carriage of goods by road between Member States (Official Journal 1982, L 27, p. 22) concerned cases of the replacement of a vehicle which had become "unserviceable in a Member State other than that in which it is registered".
1 1 Finally, the Italian Government maintained that the Commission, in its proposal of 15 December 1980 for a regulation amending Regulation No 3164/76, provided that the authorization should in future be issued in respect of the tractor and that it could also be used to cover "haulage of a trailer or semi-trailer . . . registered in a different Member State", which would not have been necessary if that rule had already followed from Regu- lation No 3164/76.
12 The Commission refuted all those arguments. It stated that under the system established by Regulation No 3164/76 the grant of authorizations was not linked to the identity of the owner of a vehicle or the nationality of the holder. More particularly it observed that neither the second subparagraph of Article 2 (3) of the regulation nor point 4 of the General Provisions of Annex II (repealed by Regulation No 3024/77 of 21 December 1977 (Official Journal 1977, L 358, p. 4) imposed conditions for the issue of auth- orizations but only for their use and that the "place where the vehicle is usually based" was not necessarily the place of registration of the vehicle.
1 3 It further observed that according to Article 2 (6) of Regulation No 3164/76 authorizations were to be issued by each Member State not to its nationals but to carriers established in its territory. According to the Commission, Recommendation No 69/191 of 9 June 1969, apart from the fact that it concerned not the grant but the use of authorizations, showed that they could also be used for hired vehicles. It stated that Directive 65/269 of 13 May 1965 did not relate to the Community quota but to bilateral quotas
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between Member States and that Council Directive 82/50 of 19 January 1982 confirmed its view.
1 4 Finally the Commission stated that its proposal of 15 December 1980 was intended to resolve the problem which had appeared because in the case of coupled vehicles certain Member States required an authorization issued in the name of the undertaking operating the towing vehicle, whereas others required an authorization in the name of the undertaking operating the trailer and that at the same time as resolving that problem an ancillary clause concerning the problem in the present case was added, the object of which was to clarify Regulation N o 3164/76 rather than to amend it.
15 The Commission's view must be accepted. None of the arguments of the Italian Government can be upheld. As the Commission rightly observed, in the system established by Regulation No 3164/76, as is apparent from its provisions, each authorization is issued in the name of a carrier and not for a particular vehicle, so that the holder of the authorization may choose which vehicle to use to effect the carriage and is not bound by any condition as to ownership or the State of registration.
16 It should further be noted that although the second subparagraph of Article 2 (3) of Regulation N o 3164/76 provides that "Each authorization may be used for only one vehicle at a time", the third subparagraph of Article 2 (3) expressly provides, without any exception or distinction on the basis of registration, that " 'Vehicle' means a single vehicle or a coupled combination of vehicles", which precludes the requirement of two authorizations for coupled vehicles. Consequently, the argument of the Italian Government based on the Commission's submission of a proposal for a regulation of 15 December 1980 cannot affect that interpretation.
17 It is true that the regulation leaves open the question for which of the two coupled parts the one authorization must be issued. However, that lacuna cannot justify the requirement by a Member State of two authorizations for a coupled combination of vehicles.
COMMISSION / ITALY
18 It is therefore necessary to declare that in requiring two transport authoriz- ations under the Community quota system when a coupled combination of vehicles, consisting of parts registered in two different Member States, effects international carriage by road, the Italian Republic has failed to fulfil its obligations under Council Regulation No 3164/76 of 16 December 1976.
Costs
19 Under Article 69 (2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been asked for. Since the defendant has been unsuccessful it must be ordered to pay the costs.
On those grounds,
THE COURT
hereby:
1. Declares that in requiring two transport authorizations under the Community quota system when a coupled combination of vehicles, consisting of parts registered in two different Member States, effects international carriage by road, the Italian Republic has failed to fulfil its obligations under Council Regulation No 3164/76 of 16 December 1976;
2. Orders the defendant to pay the costs.
Mackenzie Stuart Bosco Kakouris
O'Keeffe Everling Galmot Joliét
Delivered in open court in Luxembourg on 13 December 1984.
For the Registrar D. Louterman A. J. Mackenzie Stuart Administrator President