C-45/89

OPINION OF MR DARMON —CASE C-45/89

O P I N I O N O F ADVOCATE GENERAL D A R M O N Delivered on 28 February 1991 *

Mr President, more are transported by rail between the Members of the Court, nearest suitable rail loading station to the point of loading and the nearest suitable rail unloading station to the point of unloading'.

1. By the present action the Commission is 3. In its application, the Commission draws asking the Court to make a declaration that, attention to the Italian decree of 4 July by maintaining in force a system of author- 1985,3 which subjects to a system of quotas izations and/or quotas for combined and authorization the possibility of using a road/rail carriage of goods between tractor unit in isolation intended solely for Member States and by refusing authori- the transport of trailers and semi-trailers zations to private persons wishing to during international combined carriage. A undertake such carriage, the Italian later decree of 16 September 1986, * Republic has failed to fulfil its obligations referring to Directive 75/130, excluded under Council Directive 75/130/EEC of 17 from this system combined carriage between February 1975 on the establishment of Member States, but it was repealed by a common rules for certain types of combined decree of 24 October 1986.5 road/rail carriage of goods between Member States. '

premises to the rail loading station or from 79/5/EEC, in its listing of what is trans- the rail unloading station to the point of ported by rail does not necessarily include unloading when the tractor unit was not the tractor unit, and specifies, furthermore, transported by rail and one or other of these that the semi-trailer can be carried by rail journeys took place within a single Member with or without tractor unit. The first version State (non-accompanied carriage). The of this article, as drafted at the time of Italian Government relies essentially in adoption of Directive 75/130, was clearly order to support its view on Article 6 of more ambiguous. The tractor unit then Directive 75/130, which provides that the featured in the list and the expression '(with directive 'shall not affect the conditions in or without tractor unit)' did not appear in force in each Member State governing the wording. Following the amendment of admission to the occupation of road the article by Directive 79/5, there can be transport operator and access to the no room for doubt. Incidentally, the Court transport market'. Whilst it recognizes, in its has already ruled, in a judgment of 7 July rejoinder, that the road part of 1987 6 that international combined carriage 'non-accompanied carriage' is included in can occur whether or not the power unit is the concept of international combined transported with the trailer by rail.7 carriage given the wording of the amended Article 1 of the .Directive, it considers nonetheless that the legal rules governing non-accompanied carriage are different from those governing accompanied carriage. 8. The Italian Government does not deny this, but its argument is based on the view that the directive lays down two distinct sets of legal rules, according to whether or not the combined carriage is 'accompanied'. 6. I shall state forthwith that this interpret- However, there is nothing in the wording of ation does not seem to me to be possible. It the directive to suggest this. On the leads to undertakings being obliged to have contrary, according to Article 2, the the tractor unit travel by rail, with its load, liberalization of any system of authorization in order to take advantage of the liberal- and of quotas applies to all combined ization of international combined carriage. carriage mentioned in Article 1. If From an economic point of view, this obli- 'non-accompanied' combined carriage is gation leads to unjustifiable costs for the within the scope of the directive, it must traders concerned. It is therefore directly therefore benefit from the liberalization contrary to the aims of Directive 75/130, measures envisaged by Article 2. whose second recital specifies that 'the use of the road/rail method . . . is economically advantageous over long distances'.

transport must fulfil and, on the other hand, 11. In its rejoinder, the Italian Government to the general permits granted by the auth- reproduces a text in Italian which appears orities of Member States which enable an to be a working paper produced by undertaking effectively to carry on a the Commission in preparation for an business of road transport operator. It does amendment to Directive 75/130, from not, however, apply to that undertaking's which it would seem that the argument it right to carry out road transport which endorses is that considered by the forms part of combined international Commission to be the current state of carriage, which right must, under Article 2 Community Law. It should be pointed out of the Directive, be free from any first of all that a Community institution's requirement of authorization or of quota. opinion on the scope of a measure cannot Article 6 of Directive 75/130 must override the explicit provisions of that therefore be interpreted in the light of the measure. Furthermore, the document in aims of the directive and of its general question is an internal Commission structure, that is to say, having regard to its document which does not reflect that other provisions and, in particular, those of institution's official position. Only from the Article 2. Thus, even if the conditions of present infringement proceedings is it access for undertakings to the transport possible to ascertain the view which the market created by national legislation are Commission takes as a matter of principle not affected by the directive, the provisions on the questions at issue. Finally, even if this of Article 6 still cannot be interpreted in document were to be taken into such a way as to call into question the consideration, it is not clear that it entirely liberalization of international combined endorses the Italian Government's view. Far carriage. Contrary to the Italian from being merely a commentary on Government's arguments in its rejoinder, Directive 75/130, it states that, on the the interpretation which I recommend does contrary, despite the Directive 'The not render Article 6 meaningless. implementing measures adopted by the Member States have not given rise to the creation of a free market' and relates the outstanding obstacles remaining as a result of national legislation. As for Italy's situation, it refers to the present procedure ' . . . only Italy applies quantative restrictions 10. Finally, the Italian Government's for national road transport operators argument is not compatible with the Court's (before the Court)'. Therefore the case law according to which 'the carriage is document's existence does not preclude a regarded as a single operation from the finding that Italy has failed to fulfil its obli- point of departure to the point of arrival'.8 gations.

(ii) the Court orders the Italian Government to pay the costs, including those of the intervener.

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