Court of Justice of the European Communities (including Court of First Instance Decisions)

OPINION OF ADVOCATE GENERAL

RICHARD DE LA TOUR

delivered on 20 April 2023 (1)

Case C‑246/22

BW

intervening party:

Staatsanwaltschaft Köln,

Bundesamt für Güterverkehr

(Request for a preliminary ruling from the Amtsgericht Köln (Local Court, Cologne, Germany))

(Reference for a preliminary ruling – Transport operations – Combined transport of goods – Directive 92/106/EEC – International carriage of goods by road – Regulation (EC) No 1072/2009 – Transport of empty containers for the purposes of loading or unloading goods forming an inseparable part of the transport of loaded containers – Cabotage operations)

I.      Introduction

1.        This reference for a preliminary ruling concerns the interpretation of Council Directive 92/106/EEC of 7 December 1992 on the establishment of common rules for certain types of combined transport of goods between Member States (2) and Regulation (EC) No 1072/2009 of the European Parliament and of the Council of 21 October 2009 on common rules for access to the international road haulage market. (3)

2.        The request was made in proceedings between BW, the managing director of a transport undertaking established in Romania, and the Bundesamt für Güterverkehr (Federal Office for the Transport of Goods, Germany; ‘the Federal Office’), concerning an administrative fine issued for infringement of the rules on cabotage operations, in so far as BW exceeded the limit laid down in Article 8 of Regulation No 1072/2009 during the transport of empty containers which do not come within the scope of the privileged treatment afforded to combined transport.

3.        In that context, the Court will be required to decide whether the transport of empty containers to or from the loading or the unloading point of the goods, when it directly precedes the transport of loaded containers, carried out in the context of a combined transport operation, or when it directly follows it, falls within the concept of ‘combined transport operations’, or whether such an operation must be subject to the restrictions on cabotage operations set out in that regulation.

4.        In this Opinion, following my analysis, I will propose that the Court of Justice rule that Article 1 of Directive 92/106 and Article 8 of Regulation No 1072/2009 must be interpreted as meaning that the transport of empty containers to or from the loading or the unloading point of the goods is an inseparable part of the transport of the loaded containers, such that the transport of the empty containers benefits from the privileged treatment afforded to the transport of the loaded containers in so far as those empty containers are exempt from the cabotage rules laid down in Regulation No 1072/2009 in the context of combined transport.

II.    Legal framework

A.      European Union law

1.      Directive 92/106

5.        The third, fifth and sixth recitals of Directive 92/106 state:

‘Whereas the increasing problems relating to road congestion, the environment and road safety call, in the public interest, for the further development of combined transport as an alternative to road transport;

…

Whereas greater recourse to combined transport will be encouraged by freedom from all quantitative restrictions and by the elimination of various administrative constraints which still exist in the field of road transport;

Whereas for combined transport methods to result in a real reduction in road congestion, such liberalization should relate to road journeys of limited distance’.

6.        Article 1 of the directive provides:

‘This Directive shall apply to combined transport operations, without prejudice to Regulation (EEC) No 881/92 [(4)].

For the purposes of this Directive, “combined transport” means the transport of goods between Member States where the lorry, trailer, semi-trailer, with or without tractor unit, swap body or container of 20 feet or more uses the road on the initial or final leg of the journey and, on the other leg, rail or inland waterway or maritime services where this section exceeds 100 km as the crow flies and make the initial or final road transport leg of the journey;

–        between the point where the goods are loaded and the nearest suitable rail loading station for the initial leg, and between the nearest suitable rail unloading station and the point where the goods are unloaded for the final leg, or;

–        within a radius not exceeding 150 km as the crow flies from the inland waterway port or seaport of loading or unloading.’

7.        Article 4 of that directive provides:

‘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.’

2.      Regulation No 1072/2009

8.        Recitals 2, 13, 15 and 16 of Regulation No 1072/2009 state:

‘(2)      The establishment of a common transport policy entails, inter alia, laying down common rules applicable to access to the market in the international carriage of goods by road within the territory of the Community, as well as laying down the conditions under which non-resident hauliers may operate transport services within a Member State. Those rules must be laid down in such a way as to contribute to the smooth operation of the internal transport market.

…

(13)      Hauliers who are holders of Community licences provided for in this Regulation and hauliers authorised to operate certain categories of international haulage service should be permitted to carry out national transport services within a Member State on a temporary basis in conformity with this Regulation, without having a registered office or other establishment therein. …

…

(15)      Without prejudice to the provisions of the Treaty on the right of establishment, cabotage operations consist of the provision of services by hauliers within a Member State in which they are not established and should not be prohibited as long as they are not carried out in a way that creates a permanent or continuous activity within that Member State. …

(16)      This Regulation is without prejudice to the provisions concerning the incoming or outgoing carriage of goods by road as one leg of a combined transport journey as laid down in [Directive 92/106]. National journeys by road within a host Member State which are not part of a combined transport operation as laid down in [Directive 92/106] fall within the definition of cabotage operations and should accordingly be subject to the requirements of this Regulation.’

9.        Article 1 of the regulation, entitled ‘Scope’, reads as follows:

‘1.      This Regulation shall apply to the international carriage of goods by road for hire or reward for journeys carried out within the territory of the [Union].

…

4.      This Regulation shall apply to the national carriage of goods by road undertaken on a temporary basis by a non-resident haulier as provided for in Chapter III.

5.      The following types of carriage and unladen journeys made in conjunction with such carriage shall not require a Community licence and shall be exempt from any carriage authorisation:

…

(d) carriage of goods in motor vehicles …

…’

10.      Article 2 of that regulation, entitled ‘Definitions’, provides:

‘For the purposes of this Regulation:

…

2.      “international carriage” means:

(a)      a laden journey undertaken by a vehicle the point of departure and the point of arrival of which are in two different Member States, with or without transit through one or more Member States or third countries;

(b)      a laden journey undertaken by a vehicle from a Member State to a third country or vice versa, with or without transit through one or more Member States or third countries;

(c)      a laden journey undertaken by a vehicle between third countries, with transit through the territory of one or more Member States; or

(d)      an unladen journey in conjunction with the carriage referred to in points (a), (b) and (c);

3.      “host Member State” means a Member State in which a haulier operates other than the haulier’s Member State of establishment;

4.      “non-resident haulier” means a road haulage undertaking which operates in a host Member State;

…

6.      “cabotage operations” means national carriage for hire or reward carried out on a temporary basis in a host Member State, in conformity with this Regulation;

…’

11.      Chapter III of that regulation, entitled ‘Cabotage’, includes, inter alia, Article 8, which reads as follows:

‘1.      Any haulier for hire or reward who is a holder of a Community licence and whose driver, if he is a national of a third country, holds a driver attestation, shall be entitled, under the conditions laid down in this Chapter, to carry out cabotage operations.

2.      Once the goods carried in the course of an incoming international carriage have been delivered, hauliers referred to in paragraph 1 shall be permitted to carry out, with the same vehicle, or, in the case of a coupled combination, the motor vehicle of that same vehicle, up to three cabotage operations following the international carriage from another Member State or from a third country to the host Member State. The last unloading in the course of a cabotage operation before leaving the host Member State shall take place within 7 days from the last unloading in the host Member State in the course of the incoming international carriage.

…’

B.      German law

12.      Paragraph 13 of the Verordnung über den grenzüberschreitenden Güterkraftverkehr und den Kabotageverkehr (Regulation on the international carriage of goods by road and cabotage operations (5)) of 28 December 2011 provides:

‘International combined transport for hire or reward means the transport of goods for which:

1.      the motor vehicle, trailer, chassis and container with a length of at least 6 metres make part of the journey by road and another part of the journey by rail or by river or maritime vessel (with a maritime section of more than 100 kilometres as the crow flies),

2.      the journey takes place partly within the country and partly outside it, and

3.      the road transport leg of the journey is carried out within the country only between the point where the goods are loaded or unloaded and

(a)      the nearest suitable rail station or

(b)      an inland waterway port or seaport within a radius not exceeding 150 kilometres as the crow flies (loading or unloading).’

13.      Paragraph15(1) of that regulation provides:

‘An entrepreneur whose undertaking is established in a Member State … may, in the context of a combined transport operation within the meaning of Paragraph 13, carry out loading or unloading operations in the national territory if he meets the conditions of access to the occupation and access to the market for transport of goods by road between Member States.’

III. Facts of the dispute in the main proceedings and the question referred for a preliminary ruling

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

15.      The Federal Office accuses BW of having transported empty containers in at least 57 cases, which do not come within the scope of the privileged treatment afforded to combined transport and which were thus cabotage operations. Therefore, according to the Federal Office, BW, in her capacity as managing director, breached the limit of three cabotage operations in seven days laid down in Article 8 of Regulation No 1072/2009.

16.      BW submits that the transport of empty containers is part of the transport of loaded containers, which comes within the scope of the privileged treatment afforded to combined transport. She explains that her business consists of collecting full containers from an inland container terminal and transporting them to their consignees. Once the goods have been unloaded, the empty containers are transported to an inland container terminal. After reloading, the containers are again transported to an inland container terminal and from there to ports for shipment by sea. According to BW, it is therefore correct not to consider the transport of empty containers in isolation, but rather to regard it as part of the overall transport contract and thus allow it to benefit from the privileged treatment afforded to combined transport.

17.      By decision of 30 October 2020, the Federal Office issued BW with a fine of EUR 8 625 for infringing the rules on cabotage operations.

18.      BW appealed against that decision, submitting that the transport operations in question came within the exemption for combined transport. That was because the transport operations were to be considered not in isolation, but as part of a main contract.

19.      However, the Federal Office takes the view that the transport of empty containers before or after a loading or unloading operation does not benefit from the privileged treatment of combined transport, but must be considered in isolation. The transport of empty containers thus comes within the scope of Article 8 of Regulation No 1072/2009, which imposes restrictions on cabotage, in particular the obligation to carry out an international transport operation and the limit of three cabotage operations in seven days.

20.      In those circumstances, the Amtsgericht Köln (Local Court, Cologne, Germany) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

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

21.      Written observations were submitted by the Federal Office and the European Commission.

IV.    Analysis

22.      By its question, the referring court asks whether Article 1 of Directive 92/106 and Article 8 of Regulation No 1072/2009 must be interpreted as meaning that the transport of empty containers to or from the loading or the unloading point of the goods constitutes an inseparable part of the transport of the loaded containers, such that the transport of empty containers forms part of the privileged treatment afforded to the transport of loaded containers in so far as they are, in the context of combined transport, exempt from the cabotage rules laid down in that regulation.

23.      As a preliminary point, it is worth noting the link between Regulation No 1072/2009, which imposes certain restrictions on cabotage operations, and Directive 92/106, which contains the provisions on combined transport operations.

24.      First, Article 8(2) of Regulation No 1072/2009 provides that cabotage operations – in other words, national road haulage operations for hire or reward carried out temporarily by a non-resident haulier in a host Member State – are subject to certain restrictions. However, recital 16 of that regulation states that it is without prejudice to the provisions concerning the incoming or outgoing carriage of goods by road as one leg of a combined transport journey as laid down in Directive 92/106. National journeys by road within a host Member State which are not part of such a transport operation fall within the definition of cabotage operations and should accordingly be subject to the requirements of that regulation.

25.      Second, Article 1 of Directive 92/106 defines ‘combined transport’ as the transport of goods between Member States where the lorry or container uses the road on the initial or final leg of the journey and, on the other leg, rail or inland waterway or maritime services where this section exceeds 100 km as the crow flies and make the initial or final road transport leg of the journey between the point where the goods are loaded and the nearest suitable rail loading station for the initial leg, and between the nearest suitable rail unloading station and the point where the goods are unloaded for the final leg, or within a radius not exceeding 150 km as the crow flies from the inland waterway port or seaport of loading or unloading. Furthermore, that article states that the directive applies to combined transport operations, without prejudice to Regulation No 881/92. (6)

26.      In the light of that information, I note that, on the one hand, those two instruments apply without prejudice to each other, and on the other hand, neither Directive 92/106 nor Regulation No 1072/2009 refer explicitly or implicitly to the regime that applies to the transport of empty containers to or from the loading or the unloading point of the goods before or after a combined transport operation.

27.      Recital 16 of Regulation No 1072/2009 merely defines cabotage operations as national journeys by road which are not part of a combined transport operation as laid down in Directive 92/106.

28.      As I mentioned in point 25 of this Opinion, Article 1 of that directive defines combined transport by reference to the initial or final road transport leg of the journey, the former being understood as the leg between the point where the goods are loaded and the rail loading station and the latter as the leg between the rail unloading station and the point where the goods are unloaded. Article 4 of that directive also provides that hauliers have the right to carry out, in the context of a combined transport operation, initial and/or final road haulage legs which form an integral part of the combined transport operation. No reference is made to the transport of empty containers preceding the initial leg or following the final leg, nor is it specified whether such transport is an integral part of the combined transport operation.

29.      However, Article 2(2) of Regulation No 1072/2009 defines ‘international carriage’ as certain laden journeys undertaken by a vehicle and unladen journeys made in conjunction with them.

30.      In that respect, the Federal Office argues that, although that distinction between laden and unladen journeys is systematically made by the regulation, but not by Directive 92/106, that suggests that the EU legislature did not intend to include empty loads before loading or after unloading of goods in the definition of combined transport contained in Article 1 of the directive.

31.      First, I must point out that Regulation No 1072/2009 and Directive 92/106, although they refer to each other (7) and are the subject of a common transport policy, are separate instruments adopted at different times and with their own objectives. The regulation specifically refers to empty loads, since it seeks to reduce unladen journeys for vehicles by optimising their journeys through the liberalisation of cabotage transport, provided that they are not carried out in a way that creates a permanent or continuous activity within the Member State concerned. The reference to empty loads does not have the same relevance in the context of combined transport operations, where it is not a question of optimising the unladen journeys of vehicles, but of allowing a real reduction in road congestion and the reduction of polluting emissions by encouraging the use of maritime or rail transport.

32.      Second, it is clear from reading the preparatory documents for Directive 92/106 that the distinction between the transport of loaded containers and the transport of empty containers was not debated. Therefore, it cannot be said that the EU legislature took the view that empty loads before the loading or after the unloading of goods should not fall within the concept of ‘combined transport’.

33.      Moreover, a proposal for a directive amending Directive 92/106 (8) changed the wording of Article 3 of that directive, specifying that the ‘the transport of empty load units before and after the transport of goods’ was part of the road leg of a combined transport operation. (9)

34.      The European Parliament deleted the addition of this reference to empty loads. (10) It explained that authorising empty loads to be excluded from the road leg distance limit, so that – unlike laden journeys – they would not be included in the concept of ‘combined transport’, would have the effect of increasing polluting emissions, which would contradict the purpose of Directive 92/106, namely to reduce emissions by encouraging low-emission modes of transport .(11)

35.      The Parliament added, with regard to the new wording of the second subparagraph of Article 1(3) of Directive 92/106, that the road leg distance limit should also apply to the transport of an empty load unit, (12) which suggests that such transport would fall precisely within the concept of ‘combined transport’ and should be subject to the same distance limit, in so far as it is inherent to the laden part of the transport operation.

36.      The Council of the European Union, (13) for its part, proposed amending the new wording of Article 1(2) of Directive 92/106 by replacing the concept of ‘combined transport’ by the concept of ‘international combined transport’, which relates to the carriage of containers, whether loaded or empty. However, in the new wording of Article 1(3) of that directive, the Council clarified that ‘the transport of empty loading units before an initial or after a final road leg (such as from or to a container depot) is not considered as part of a combined transport operation’.

37.      I conclude from this that, when Directive 92/106 was adopted, the question of the transport of empty containers did not arise: the question that now arises is not so much whether the transport of empty containers before loading or after unloading of the goods in the context of a combined transport operation is intrinsically covered by the concept of ‘combined transport’, but rather whether the unladen journey should count towards the road leg distance limit, in order to encourage other more efficient and less polluting modes of transport.

38.      Third, even if the reference made by Regulation No 1072/2009 to empty loads were relevant, that would, in my view, support the idea that any empty load directly associated with a laden journey is part of the same transport operation, which must be recognised as a whole when assessing its status. The transport of empty containers before loading or after unloading of the goods in the context of a combined transport operation is inherent and necessary to that operation and is thus an integral part of it.

39.      The only exception would be a situation in which the empty containers themselves are goods – in other words, where containers are purchased or leased in a separate commercial transaction. The transport of empty containers would then form part of a separate operation, not directly associated with a transport operation involving full containers, and so would not fall within the concept of ‘combined transport operations’ within the meaning of Directive 92/106, but would be subject to the restrictions on cabotage operations set out in Regulation No 1072/2009.

40.      In that respect, I note that BW’s business consists of collecting full containers from an inland container terminal and transporting them to their consignees. Once the goods have been unloaded, the empty containers are transported to an inland container terminal. After reloading, the containers are again transported to an inland container terminal and from there to ports for shipment by sea. BW explains that the containers remains on the lorry chassis during loading and unloading.

41.      Thus, in so far as the empty containers are not regarded as goods in themselves, which it will be for the referring court to ascertain, the system put in place by BW is consistent with the objectives of Directive 92/106, which are to reduce road congestion.

42.      Like the Commission, it is my view that, if the transport of empty containers directly before or directly after the transport of full containers in the context of a combined transport operation were to be subject to the restrictions on cabotage operations, the empty containers would have to be removed by national transport operators under different transport contracts, which would entail an additional financial and administrative burden and would benefit road transport to the detriment of combined transport. I would add that, in so far as the purpose of the cabotage transport authorisation provided for in Regulation No 1072/2009 is to avoid vehicles returning empty when they pass through a host Member State, it would be contrary to that liberalisation to include the transport of empty containers in the maximum number of cabotage operations that the non-resident haulier is authorised to carry out in that host Member State.

43.      Admittedly, such a model presupposes that a non-resident haulier could carry out an infinite number of combined transport operations, since those operations are not subject to the restrictions set out in Regulation No 1072/2009.

44.      On that point, I recognise that it is important to ensure that transport undertakings cannot rely on Directive 92/106 for abusive ends to circumvent the cabotage rules.

45.      However, I do not believe those rules are circumvented by an interpretation of the concept of ‘combined transport’ in which the transport of empty containers to or from the loading or unloading point of the goods is an integral part of a combined transport operation.

46.      Regulation (EU) 2020/1055 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 (14) states, in recital 22, that it should be possible for Member States to derogate from Article 4 of Directive 92/106 and to apply the provisions relating to cabotage in Regulation No 1072/2009 to non-resident hauliers who use the road for the initial or final leg of the combined transport journey, in order to address such problems.

47.      In the light of this information, I propose that the Court of Justice rule that Article 1 of Directive 92/106 and Article 8 of Regulation No 1072/2009 must be interpreted as meaning that the transport of empty containers to or from the loading or the unloading point of the goods is an inseparable part of the transport of the loaded containers, such that the transport of the empty containers benefits from the privileged treatment afforded to the transport of the loaded containers in so far as those empty containers are exempt from the cabotage rules laid down in the regulation in the context of combined transport.

V.      Conclusion

48.      Having regard to the foregoing considerations, I suggest that the Court answer the question referred by the Amtsgericht Köln (Local Court, Cologne, Germany) as follows:

Article 1 of Council Directive 92/106/EEC of 7 December 1992 on the establishment of common rules for certain types of combined transport of goods between Member States and Article 8 of Regulation (EC) No 1072/2009 of the European Parliament and of the Council of 21 October 2009 on common rules for access to the international road haulage market

must be interpreted as meaning that the transport of empty containers to or from the loading or the unloading point of the goods is an inseparable part of the transport of the loaded containers, such that the transport of the empty containers benefits from the privileged treatment afforded to the transport of the loaded containers in so far as those empty containers are exempt from the cabotage rules laid down in the regulation in the context of combined transport.

1      Original language: French.

2      OJ 1992 L 368, p. 38.

3      OJ 2009 L 300, p. 72.

4      Council Regulation of 26 March 1992 on access to the market in the carriage of goods by road within the Community to or from the territory of a Member State or passing across the territory of one or more Member States (OJ 1992 L 95, p. 1). That regulation was repealed and replaced by Regulation No 1072/2009 (see Article 18 of that regulation).

5      BGBl. 2012 I, p. 42.

6      See footnote 4 to this Opinion.

7      See footnote 4 to this Opinion.

8      Proposal for a Directive of the European Parliament and of the Council amending Directive 92/106/EEC on the establishment of common rules for certain types of combined transport of goods between Member States [COM(2017) 648 final]. However, the proposal was never adopted.

9      See p. 22 of the proposal for a directive.

10      See Amendment 33 of the Report on the Proposal for a Directive of the European Parliament and of the Council amending Directive 92/106/EEC on the establishment of common rules for certain types of combined transport of goods between Member States (A8-0259/2018), p. 24.

11      See Amendments 48-268 tabled in the Committee on the Environment, Public Health and Food Safety, available at: https://www.europarl.europa.eu/doceo/document/TRAN-AM-622152_EN.pdf, p. 71.

12      See amendments cited in footnote 11 to this Opinion, p. 61.

13      See report of 30 November 2018 (13871/2/18 Rev 2), pp. 19-20.

14      OJ 2020 L 249, p. 17.

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