Provisional text

delivered on 6 March 2025 (1)

Case C-482/23

European Commission

Kingdom of Denmark

( Failure of a Member State to fulfil obligations – Regulation (EC) No 1073/2009 – Access to the international market for coach and bus services – Article 2(7) – Concept of ‘cabotage operations’ – Article 15(b) – Cabotage operations in the context of occasional services – National implementing measures – Requirement that operations must be carried out during a period of seven consecutive days in one calendar month – Discretion – Proportionality )

Introduction

1.By its action for failure to fulfil obligations, the European Commission asks the Court of Justice to declare that the Kingdom of Denmark has failed to fulfil its obligations under the provisions of EU law relating to the freedom to provide road transport services set out in Article 15(b) of Regulation (EC) No 1073/2009, (2) which authorises cabotage operations for ‘occasional services’, by introducing an administrative practice which, with the aim of clarifying the concept of cabotage operations carried out ‘on a temporary basis’ contained in Article 2(7) of that regulation, limits cabotage operations by coach and bus on Danish territory to a period of seven consecutive days in one calendar month (‘the contested administrative practice’).

2.The present case raises the question, first, whether the Member States are entitled to adopt implementing measures concerning the concept of cabotage operations carried out ‘on a temporary basis’, in accordance with the definition contained in Article 2(7) of that regulation, and, if so, whether the contested administrative practice is proportionate.

Legal framework

E uropean U nion law

3.Article 1 of Regulation No 1073/2009, entitled ‘Scope’, provides, in paragraph 1 thereof:

‘This Regulation shall apply to the international carriage of passengers by coach and bus within the territory of the Community by carriers for hire or reward or by own-account carriers established in a Member State in accordance with its law, using vehicles which are registered in that Member State and are suitable and intended, by virtue of their construction and equipment, to carry more than nine persons, including the driver, and to the movement of such vehicles when empty in connection with such carriage.

A change of vehicle or an interruption of carriage to enable part of a journey to be made by another means of transport shall not affect the application of this Regulation.’

4.Article 2 of that regulation, entitled ‘Definitions’, provides, in points 4 and 7 thereof:

‘4. “occasional services” means services which do not fall within the definition of regular services, including special regular services, and the main characteristic of which is the carriage of groups of passengers constituted on the initiative of the customer or the carrier himself;

…

7. “cabotage operations” means either:

– national road passenger services for hire and reward carried out on a temporary basis by a carrier in a host Member State, or

– the picking up and setting down of passengers within the same Member State, in the course of a regular international service, in compliance with the provisions of this Regulation, provided that it is not the principal purpose of the service.’

5.Chapter V of that regulation, which concerns cabotage, contains, inter alia, Articles 14 and 15. Article 14 of that regulation, entitled ‘General principle’, reads as follows:

‘Any carrier who operates road passenger transport services for hire or reward and who holds a Community licence shall be permitted, under the conditions laid down in this Chapter and without discrimination on grounds of the carrier’s nationality or place of establishment, to operate the cabotage operations as specified in Article 15.’

6.Article 15 of the same regulation, entitled ‘Authorised cabotage operations’, provides:

‘Cabotage operations shall be authorised for the following services:

(a) special regular services provided that they are covered by a contract concluded between the organiser and the carrier;

(b) occasional services;

(c) regular services, performed by a carrier not resident in the host Member State in the course of a regular international service in accordance with this Regulation with the exception of transport services meeting the needs of an urban centre or conurbation, or transport needs between it and the surrounding areas. Cabotage operations shall not be performed independently of such international service.’

Danish law

7.As is apparent from the press release issued by the Danish Ministry of Transport on 11 October 2019, entitled ‘Danmark strammer fortolkningen af EU’s regler om cabotage for busser’ (‘Denmark tightens interpretation of EU rules on cabotage by coach and bus’), with effect from 1 November 2019 the Danish authorities have implemented the contested administrative practice, pursuant to which the words ‘on a temporary basis’ contained in Article 2(7) of Regulation No 1073/2009 (3) have been interpreted as meaning ‘for a period of seven consecutive days in one calendar month’.

Background to the dispute and pre-litigation proceedings

8.Finding the contested administrative practice implemented with effect from 1 November 2019 to constitute a restriction on the freedom to provide transport services, the Commission commenced infringement proceedings against the Kingdom of Denmark.

9.Further to a meeting and an exchange of letters, in the course of 2020, between the Commission and the Danish Government, the Commission sent the Danish Government a letter of formal notice on 9 June 2021 and a reasoned opinion on 19 May 2022, to which that government responded by letters of 2 August 2021 and 1 July 2022.

Procedure before the Court and forms of order sought

10.By application of 4 March 2022, the Commission, unconvinced by the arguments put forward at each stage of the infringement proceedings by the Danish Government, brought the present action for failure to fulfil obligations.

11.Written observations were submitted to the Court by the Kingdoms of Denmark and Norway and by the Commission. Those parties, together with the Republic of Iceland and the EFTA Surveillance Authority, also presented oral argument at the hearing held on 5 December 2024.

12.The Commission, supported by the EFTA Surveillance Authority, claims that the Court should:

– declare that, by not authorising cabotage operations by coach and bus in the context of occasional services unless the operations are carried out in a period of seven consecutive days in one calendar month, the Kingdom of Denmark has failed to fulfil its obligations under Article 15(b) of Regulation No 1073/2009;

– order the Kingdom of Denmark to pay the costs.

13.The Kingdom of Denmark, supported by the Republic of Iceland and the Kingdom of Norway, contends that the Court should:

– dismiss the action;

– order the Commission to pay the costs.

Analysis

14.In its action for failure to fulfil obligations, the Commission alleges that the Kingdom of Denmark has failed to fulfil its obligations under Article 15(b) of Regulation No 1073/2009 by adopting the contested administrative practice, which, with the aim of clarifying the concept of cabotage operations carried out ‘on a temporary basis’ contained in Article 2(7) of that regulation, limits cabotage operations by coach and bus on Danish territory to a period of seven consecutive days in one calendar month.

15.In order to resolve this issue, I will begin, in the first place, by providing some clarifications vis-à-vis the concept of cabotage operations carried out ‘on a temporary basis’ within the meaning of that regulation, before examining, in the second place, whether the Member States have discretion that allows them to adopt, on the basis of that same regulation, implementing measures intended to clarify that concept and, in the third and final place, considering the proportionality of the contested administrative practice.

The concept of cabotage operations carried out ‘on a temporary basis’ within the meaning of Regulation No 1073/2009

16.As a preliminary point, I observe that the free movement of services in the transport sector is governed not by Article 56 TFEU, which concerns the freedom to provide services in general, but by a specific provision, namely Article 58(1) TFEU, according to which ‘freedom to provide services in the field of transport shall be governed by the provisions of the Title relating to transport’. Application of the principle of the freedom to provide services must therefore be achieved, according to the FEU Treaty, through the introduction of a common transport policy. (4)

17.On the basis of Article 71(1)(a) EC (now Article 91(1)(a) TFEU), which empowered the Council of the European Union to establish, in accordance with the procedure laid down in that provision, common rules applicable to international transport to or from the territory of a Member State or crossing the territory of one or more Member States, the Council adopted Regulation (EEC) No 684/92, (5) which was initially amended by Regulation (EC) No 12/98 (6) and thereafter by Regulation No 1073/2009, which is the subject of the present case.

18.Article 14 of Regulation No 1073/2009 essentially states that any carrier who operates road passenger transport services for hire or reward and who holds a Community licence is to be permitted to operate cabotage operations and, inter alia, cabotage operations for ‘occasional services’, which are authorised under Article 15(b) thereof.

19.Article 2(7) of the same regulation defines ‘cabotage operations’ as covering, inter alia, national road passenger services for hire and reward performed ‘on a temporary basis’ by a carrier in a host Member State. More specifically, the words used in the Danish-language version of Article 2(7) of Regulation No 1073/2009 (‘for a limited period’) differ from those used, in essence, in all the other language versions of that provision (‘on a temporary basis’). (7) That said, I agree with the Commission that, in the light of all the language versions of the provision and with a view to ensuring that it is applied uniformly, the words ‘for a limited period’ must be interpreted as equivalent to the expression ‘on a temporary basis’. (8)

20.With regard to the interpretation of the words ‘on a temporary basis’, I note that, in principle, as follows from the case-law of the Court on the provision of services, the temporary nature of activities within the meaning of Article 57 TFEU has to be determined in the light not only of the duration of the provision of the service, but also of its regularity, periodicity or continuity, (9) and that no provision of the FEU Treaty affords a means of determining, in an abstract manner, the duration or frequency beyond which the supply of a service or of a certain type of service in another Member State can no longer be regarded as the provision of services within the meaning of that treaty. (10)

21.That being said, it is necessary to examine the discretion enjoyed by the Member States as regards the interpretation and the application of the concept of cabotage operations performed ‘on a temporary basis’.

Member States’ discretion to adopt implementing measures concerning the concept of cabotage operations carried out ‘on a temporary basis’ within the meaning of Regulation No 1073/2009

22.According to the Court’s settled case-law, pursuant to Article 288 TFEU and by virtue of the very nature of regulations and of their function in the system of sources of EU law, the provisions of those regulations generally have immediate effect in the national legal systems without its being necessary for the national authorities to adopt measures of application. Nonetheless, some of those provisions may necessitate, for their implementation, the adoption of measures of application by the Member States. (11)

23.In that regard, while the Member States are not generally denied the right to adopt procedural rules governing the implementation of directly applicable rules of EU law, the fact remains that EU law prohibits them from laying down additional conditions on the implementation of a provision of a regulation or from adopting supplementary measures affecting the substance of a regulation. In that context, the institutional and procedural autonomy of the Member States is limited, in accordance with the principle of sincere cooperation, by the need to ensure that EU law is effective and, in particular, that it is applied uniformly across the Member States. (12)

24.Therefore, in so far as the implementation of certain provisions of a regulation so require, Member States may adopt implementing measures for a regulation provided that (i) they do not thereby obstruct its direct applicability or conceal its nature as an act of EU law, (ii) they specify that they are acting in exercise of a discretion conferred on them under that regulation, and (iii) they adhere to the parameters laid down thereunder. (13)

25.More specifically, indefinite concepts contained in acts of EU law must be interpreted in the context of the role and the objectives of the particular provision. (14) Accordingly, it is by referring to the relevant provisions of Regulation No 1073/2009, interpreted in the light of its objectives, that it may be determined whether they prohibit, require or allow Member States to adopt certain implementing measures and, in the latter case, whether the measure concerned comes within the scope of the discretion that each Member State is recognised as having. (15)

26.In the following points, I will examine the scope of the relevant provisions of that regulation taking into account, in accordance with settled case-law of the Court, both the terms in which they are couched and their context, as well as the objectives pursued by the legislation of which they form part and, in the present case, the origin of that legislation. (16)

27.In the first place, with regard to the wording of the relevant provisions of Regulation No 1073/2009 (namely, in the present case, Article 2(7) and Articles 14 and 15 thereof), none of those provisions expressly authorises the Member States to adopt national implementing measures concerning the interpretation of the concept of ‘cabotage operations’, nor indeed prohibits the adoption of such measures by them.

28.As I noted in point 19 of this Opinion, Article 2(7) of that regulation defines the concept of ‘cabotage operations’ as covering, inter alia, ‘national road passenger services for hire and reward carried out on a temporary basis by a carrier in a host Member State’. (17) It is therefore necessary to ascertain whether the concept of ‘cabotage operations’, as defined in that regulation, is insufficiently precise, in particular as regards the extent to which such an operation is carried out ‘on a temporary basis’, such that it appears necessary or justified to adopt national implementing measures to clarify the scope of that concept.

29.In that regard, while it follows from the words ‘on a temporary basis’ that the cabotage operations cannot be carried out permanently, that provision gives no other indication, inter alia, looking back to the criteria used in the Court’s case-law cited in point 20 of this Opinion, as to the duration, regularity, periodicity or continuity of the provision of the service, which would mean that its provision complies with the limits authorised under the same regulation.

30.While EU legislation can use indefinite or open-ended concepts, which require interpretation on a case-by-case basis, (18) the Court has already held that the fact that a provision is worded in general or imprecise terms is an indication that domestic measures of application are required. (19) It is therefore my view that, given the general nature of Article 2(7) of Regulation No 1073/2009, implementing measures may, in principle, be adopted, in so far as such measures are justified in the light of the context or the objectives of that regulation.

31.In the second place, turning to the context of Regulation No 1073/2009 and to its origin, it should be observed inter alia that that regulation relating to the international carriage of passengers by coach and bus was adopted as part of the same legislative ‘package’ as Regulation (EC) No 1072/2009, (20) which contains an especially precise definition of the concept of ‘cabotage’ in relation to the international carriage of goods by road. The first subparagraph of Article 8(2) of the latter regulation permits hauliers for hire or reward, once the goods carried in the course of an incoming international carriage have been delivered, to carry out, with the 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, provided that the last unloading in the course of a cabotage operation before leaving the host Member State takes place within seven days from the last unloading in the host Member State in the course of the incoming international carriage. (21)

32.It follows, in my view, that, while Regulation No 1072/2009 does provide for a precise definition of ‘freight transport cabotage’, whereas Regulation No 1073/2009 does not contain any identical or similar provision in relation to passenger transport cabotage, it is reasonable to consider that the EU legislature knowingly adopted different rules in such matters. (22)

33.However, that finding, even though it may point to the need, as perceived by the EU legislature, to define the concept of a ‘freight transport cabotage’ more precisely than that of a ‘passenger transport cabotage’, inter alia in the light of the lessons learned from the implementation of the preceding regulation, (23) cannot, on its own, preclude the right of Member States to adopt implementing measures, in so far as such measures prove necessary or justified.

34.It would, admittedly, be simplistic to infer from the existence of a highly detailed provision of EU law relating to the definition of the concept of ‘freight transport cabotage’ that, under national law, that definition is also necessary and justified in connection with passenger transport cabotage. After all, it should be observed that, while Article 8(2) of Regulation No 1072/2009 offers a more precise (and restrictive) definition of the concept of ‘cabotage operations’ than that set out in Article 2(7) of Regulation No 1073/2009, the adoption of such a provision was, firstly, entirely consistent with the authorisation granted to the Council on the basis of Article 71(1)(a) EC (now Article 91(1)(a) TFEU) and, second, introduced a harmonised framework applicable across the European Union, whereas the adoption of national legislation or a national administrative practice which specifies in detail how that concept is applied within a single Member State inevitably runs the risk of heterogeneous national rules being applied within the European Union. (24)

35.Nevertheless, the existence of that risk cannot, per se, preclude the Member States from being entitled to adopt national implementing measures, since any national implementation of a provision of a regulation by definition entails such a risk. (25)

36.In the third and final place, the parties disagree as to the objectives pursued by Regulation No 1073/2009 in relation to cabotage operations. In the Commission’s view, the aim of that regulation is to liberalise – and therefore to allow – certain types of passenger transport by road to be carried out and to lay down the conditions under which non-resident carriers are authorised to operate, on a temporary basis, national passenger transport services in a Member State in the context of the EU common transport policy. That regulation thus affords a right to such carriers which is limited only by establishment in the Member State in which the service is provided, in accordance with the Court’s case-law on the traditional distinction between the freedom to provide services and the freedom of establishment. (26) If viewed from that perspective, any restrictive clarification would limit the right of carriers to carry out cabotage operations and would, therefore, be contrary to the objective of allowing the freedom to provide the service in question to be exercised as widely as possible. For its part, the Danish Government argues that the same regulation restricts the right of carriers to provide cabotage operation services, with the result that Member States are required to penalise cabotage operations carried out beyond a ‘limited period’.

37.In that regard, I share the view expressed by the Commission that Regulation No 1073/2009 promotes, albeit in a limited fashion, the freedom to provide cabotage services. However, since that regulation does not specifically state the period during which cabotage operations may be carried out, the Member States must be recognised as having a degree of discretion in that regard. (27) Indeed, as the Danish Government contends, Member States must be able to guarantee that EU law is applied effectively by the national authorities, a fortiori in a situation such as that at issue here in which the rules on road traffic, including cabotage operations, are actively monitored and subject to the power of the police to impose penalties. (28)

38.In that regard, the principle of legal certainty requires, first, that the rules of law must be clear and precise and, second, that their application must be predictable for the persons subject to them, in particular where those rules may have unfavourable consequences – especially of a punitive nature – for individuals and undertakings, (29) and that EU law allows those concerned to ascertain unequivocally what their rights and obligations are and to take steps accordingly. (30) In the present case, it should be observed that the contested administrative practice establishes criteria which render the requirements laid down in Regulation No 1073/2009 more foreseeable and which, in so doing, contribute both to the economic operators concerned complying with those requirements as well as to the efficiency and objectivity of the controls by the competent authorities. (31)

39.In conclusion, I consider that the Kingdom of Denmark cannot be criticised for having adopted, by means of the contested administrative practice, national implementing measures for Regulation No 1073/2009 concerning the concept of cabotage operations carried out ‘on a temporary basis’ contained in Article 2(7) of that regulation.

40.It is therefore necessary to determine whether those national implementing measures are consistent with the principle of proportionality, in the light of the case-law of the Court cited in point 24 of this Opinion.

The proportionality of the contested administrative practice

41.It follows from settled case-law of the Court that, when adopting measures to implement a regulation, the Member States are required to comply with the principle of proportionality, which applies to their legislative and regulatory authorities when they apply EU law and requires that measures implemented by means of a provision must be appropriate for attaining the objective pursued by the EU legislation and must not go beyond what is necessary to achieve it. (32)

42.It is therefore necessary, in the first place, to assess the compatibility of the contested administrative practice in the light of the objectives pursued by Regulation No 1073/2009.

43.The main purpose of that regulation is to ensure a coherent framework for the international carriage of passengers by coach and bus throughout the European Union, inter alia by guaranteeing the freedom to provide services in the field of passenger transport and by laying down the conditions under which non-resident carriers are permitted to carry out cabotage operations. (33) That regulation therefore allows cabotage services to be provided, whilst drawing attention to the temporary nature of such services.

44.The objective pursued by the Danish authorities by means of the contested administrative practice is to restrict cabotage operations or, at the very least, to curtail the abuse of such operations by preventing that activity from ceasing to be a temporary activity and becoming a permanent and continuous activity, (34) thereby making the conditions for carrying out cabotage operations clear, foreseeable and easy to observe as a matter of law. In addition, as the Danish Government confirmed at the hearing, in establishing the contested administrative practice, the Danish authorities drew inspiration from the definition adopted in relation to freight transport cabotage in Article 8(2) of Regulation No 1072/2009. (35)

45.In that regard, I consider that, in principle, the contested administrative practice is consistent with the objective pursued by Regulation No 1073/2009 in so far as, by establishing a time limit for cabotage operations by coach and bus on Danish territory over the course of a calendar month, it appears capable of meeting the requirement that that service is provided only ‘on a temporary basis’ and of ensuring that that requirement is foreseeable and observed.

46.It therefore remains, in the second place, to examine whether the contested administrative practice goes beyond what is necessary to attain that objective. The answer to that question is not, in my opinion, clear from the outset.

47.In that regard, it is true that that practice establishes a very significant restriction on the exercise of the activity at issue in these proceedings and that less restrictive means could allow the stated objective to be achieved. (36) For example, restricting the duration of cabotage operations to two weeks in one month or limiting the number of operations authorised in one week could also have prevented that activity from becoming permanent or continuous, whilst being a less restrictive arrangement. (37) In addition, the fact that the contested administrative practice does not take into account the frequency of the service also makes that practice inconsistent, in that, while that practice does allow a carrier to make a potentially unlimited number of trips within one calendar week, it does however mean that a carrier providing a national passenger transport service in Denmark can no longer provide national passenger transport services at an interval of eight or more days in the same month. (38)

48.That said, it is likewise true that the very imprecise nature of the concept at issue in the present case is not conducive to its unambiguous application. Therefore, without a point of reference, it appears very difficult to arrive at a solution which does not have a less restrictive alternative. (39) Moreover, in the absence of such a point of reference, the contested administrative practice introduced a rule similar to that set out, in respect of freight transport cabotage, in Article 8(2) of Regulation No 1072/2009, which is part of the same legislative ‘package’ as Regulation No 1073/2009. Although, for the reasons set out in points 32 and 33 of this Opinion, that consideration alone cannot establish that the contested administrative practice is proportionate, the fact remains that the reference to similar EU legislation is an indication of the Danish authorities’ intention to introduce a rule that is as consistent as possible with EU law. (40)

49.In addition, the Commission, which bears the burden of proving the existence of the alleged infringement, (41)

simply raised general points in its pleadings, without producing any specific evidence to support its action. (42) The only solution envisaged by the Commission involves prohibiting any measure to implement the concept of cabotage operations carried out ‘on a temporary basis’ and to leave its application to a case-by-case assessment, based not only on the duration of the provision of the service but also its regularity, periodicity or continuity, in accordance with the judgment of 30 November 1995, <i>Gebhard</i> (C‑55/94, EU:C:1995:411). (43)

50.However, in my view, that case-law, which draws a distinction between the provision of services in a Member State other than that in which the service provider is established and the exercise of the freedom of establishment in that Member State, simply cannot be transposed in the present case. Regulation No 1073/2009 does not provide for the complete liberalisation of cabotage operations; rather, it permits them inter alia as transport provided ‘on a temporary basis’ pursuant to Article 2(7) of that regulation, in particular in relation to ‘occasional services’ within the meaning of Article 15(b) thereof. Otherwise, the clarification that cabotage operations include, inter alia, transport provided ‘on a temporary basis’ would be superfluous. (44)

51.In the light of all the foregoing considerations, I consider that the Commission has not demonstrated that, in adopting the contested administrative practice, under which the concept of cabotage operations carried out ‘on a temporary basis’, as provided for in Article 2(7) of Regulation No 1073/2009, is to be interpreted as referring to cabotage operations by coach and bus in Danish territory over a period of seven consecutive days in one calendar month, the Kingdom of Denmark has failed to fulfil its obligations under Article 15(b) of that regulation.

Costs

52.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. Since the Kingdom of Denmark has applied for costs and the Commission has been unsuccessful in its submissions, the Commission should be ordered to pay the costs.

Conclusion

53.In the light of the foregoing, I propose that the Court of Justice dismiss the action and order the European Commission to pay the costs.

Original language: French.

Regulation of the European Parliament and of the Council of 21 October 2009 on common rules for access to the international market for coach and bus services, and amending Regulation (EC) No 561/2006 (OJ 2009 L 300, p. 88).

For clarification purposes, I note that the Danish-language version of Article 2(7) of Regulation No 1073/2009 uses the expression ‘i en begrænset periode’ (‘for a limited period’), as opposed to the expression ‘midlertidigt’ (‘on a temporary basis’) which is used, in essence, in all the other language versions of that provision and in all the language versions (including the Danish-language version) of Article 1(4) of that regulation, which specifies that the regulation ‘shall apply to national road passenger services for hire or reward operated <i>on a temporary basis</i> by a non-resident carrier as provided for in Chapter V’ (emphasis added). By way of example, for those two provisions, the French-language version uses the words ‘à titre temporaire’, the Greek-language version ‘σε προσωρινή βάση’, the English-language version ‘on a temporary basis’, the Italian-language version ‘a titolo temporaneo’ and the German-language version ‘zeitweilig’.

See, inter alia, judgment of 22 December 2010, <i>Yellow Cab Verkehrsbetrieb</i> (C‑338/09, EU:C:2010:814, paragraphs 29 and 30).

Council Regulation of 16 March 1992 on common rules for the international carriage of passengers by coach and bus (OJ 1992 L 74, p. 1).

Council Regulation of 11 December 1997 laying down the conditions under which non-resident carriers may operate national road passenger transport services within a Member State (OJ 1998 L 4, p. 10).

See footnote 3 to this Opinion.

The Court has explained that the necessity for uniform application and, accordingly, for uniform interpretation of an EU measure makes it impossible to consider one language version of the text in isolation, but requires that it be interpreted on the basis of both the real intention of its author and the aim the latter seeks to achieve, in the light, in particular, of the versions in all languages (see, inter alia, to that effect, judgment of 15 May 2014, <i>Timmel</i>, C‑359/12, EU:C:2014:325, paragraph 63 and the case-law cited).

See, to that effect, judgment of 30 November 1995, <i>Gebhard</i> (C‑55/94, EU:C:1995:411, paragraph 27).

See, to that effect, judgment of 11 December 2003, <i>Schnitzer</i> (C‑215/01, EU:C:2003:662, paragraph 31). In my view, that case-law, which concerns the provision of services in general, is, in principle, relevant for the purpose of interpreting the expression ‘on a temporary basis’ in the sector-specific legislation concerning international carriage within the European Union, without prejudice to the need to take account of the specific features of that legislation.

See, inter alia, judgments of 12 April 2018, <i>Commission</i> v <i>Denmark</i> (C‑541/16, EU:C:2018:251, paragraph 27 and the case-law cited), and of 30 May 2024, <i>Expedia</i> (C‑663/22, EU:C:2024:433, paragraph 40 and the case-law cited).

The Court has inter alia clarified that the direct applicability of a regulation precludes, unless otherwise provided, the Member States from taking steps which are intended to alter the scope of the regulation itself. Accordingly, the Member States cannot, unless otherwise provided, restrict the scope of a regulation and thereby limit the scope of the obligations laid down by that regulation (see judgment of 21 March 2024, <i>Remia Com Impex</i>, C‑10/23, EU:C:2024:259, paragraph 53 and the case-law cited).

See, to that effect, judgment of 30 May 2024, <i>Expedia</i> (C‑663/22, EU:C:2024:433, paragraph 41 and the case-law cited). Furthermore, even in the case of an explicit authorisation or where a power of derogation is afforded to Member States, that power must be exercised taking into account the objectives of the legislation by which it is conferred, as well the general principles of EU law (see, inter alia, to that effect, judgment of 27 September 1979, <i>Eridania</i>, 230/78, EU:C:1979:216, paragraph 32).

See, to that effect, judgment of 30 May 2024, <i>Expedia</i> (C‑663/22, EU:C:2024:433, paragraph 42 and the case-law cited).

See judgment of 1 July 2015, <i>Bund für Umwelt und Naturschutz Deutschland</i> (C‑461/13, EU:C:2015:433, paragraph 30 and the case-law cited).

Emphasis added.

By way of example, Article 57 TFEU refers to the ‘temporary’ pursuit of an activity in a Member State other than that in which the person providing the service is established.

See, inter alia, judgment of 12 April 2018, Commission v Denmark (C‑541/16, EU:C:2018:251, paragraph 39).

Regulation of the European Parliament and of the Council of 21 October 2009 on common rules for access to the international road haulage market (OJ 2009 L 300, p. 72).

Former Council Regulation (EEC) No 3118/93 of 25 October 1993 laying down the conditions under which non-resident carriers may operate national road haulage services within a Member State (OJ 1993 L 279, p. 1) did not impose such restrictions. Restrictions were introduced by Regulation No 1072/2009 on account of the difficulties experienced in controlling the ‘temporary’ nature of cabotage operations (see recital 15 of that regulation) and by the finding that the work of harmonising the haulage market was not yet complete (see recitals 4 to 6 of that regulation).

In accordance with the axiom ‘<i>ubi lex voluit dixit, ubi noluit tacuit</i>’.

In its interpretative communication on the temporary nature of road cabotage in the movement of freight (OJ 2005 C 21, p. 2), the Commission, in order to justify this inconsistency between the two regulations, observed that, unlike in Regulation No 12/98 (the predecessor of Regulation No 1073/2009), Regulation No 3118/93 (which preceded Regulation No 1072/2009) had raised problems of interpretation and application. In the same way, according to the Commission, the consultation on the proposal for a Regulation of the European Parliament and of the Council on common rules for access to the international road haulage market (COM(2007) 265 final) emphasised the fact that goods transport and passenger transport by road are two different types of transport and that they do not have sufficient commonalities to be incorporated into one legislative act.

This finding also includes, moreover, the market of the European Economic Area, as is apparent from the differing concepts of passenger transport cabotage applied in Iceland and Norway, to which the governments of those countries referred at the hearing.

Only a measure adopted by the EU legislature could avoid the risk of that provision being applied differently.

See, inter alia, judgment of 30 November 1995, <i>Gebhard</i> (C‑55/94, EU:C:1995:411).

Furthermore, as far as concerns Regulation No 1072/2009, the Court has held that, given the objective of ensuring a coherent framework for international road haulage throughout the European Union (an objective expressed in recital 26 of that regulation in identical fashion to that set out in recital 21 of Regulation No 1073/2009), Regulation No 1072/2009 does not preclude a Member State from adopting certain implementing measures for that regulation (see, to that effect, judgment of 12 April 2018, <i>Commission</i> v <i>Denmark</i>, C‑541/16, EU:C:2018:251, paragraph 40).

As set out in recital 19 and Article 27 of Regulation No 1073/2009, it falls to the Member States to take the necessary measures to implement that regulation, in particular as regards penalties.

See, to that effect, judgment of 4 October 2024, <i>Staatssecretaris van Financiën (Interest in respect of an intra-group loan)</i> (C‑585/22, EU:C:2024:822, paragraph 90 and the case-law cited).

See, to that effect, judgment of 25 November 2021, <i>Aurubis</i> (C‑271/20, EU:C:2021:959, paragraph 69 and the case-law cited). For related legal literature, see, inter alia, Paunio, E., ‘Legal certainty – form and substance’, <i>Legal Certainty in Multilingual EU Law: Language, Discourse, and Reasoning at the European Court of Justice</i>, London, 2016, pp. 51-99. Furthermore, the principles of legal certainty and the protection of legitimate expectations must be observed not only by the EU institutions but also by Member States in their exercise of their powers to implement EU measures (see, by analogy, with regard to the application of directives, Opinion of Advocate General Kokott in <i>UP CAFFE</i>, C‑171/23, EU:C:2024:417, point 66 and the case-law cited).

Moreover, while the uniform application of that regulation in all the Member States is affected by the adoption of national implementing measures, the very general concept of cabotage operations ‘on a temporary basis’, as set out in Article 2(7) of that regulation, unaccompanied by any explanatory provision, also entails such a risk, both amongst Member States and within one Member State.

See, to that effect, judgments of 12 April 2018, <i>Commission</i> v <i>Denmark</i> (C‑541/16, EU:C:2018:251, paragraphs 49 and 50 and the case-law cited), and of 30 May 2024, <i>Expedia</i> (C‑663/22, EU:C:2024:433, paragraph 43).

See, inter alia, recitals 2 to 4, 10 and 21 of Regulation No 1073/2009.

As the Commission notes, according to the press release issued by the Ministry of Transport on 11 October 2019 (see point 7 of this Opinion), the objective pursued by the contested administrative practice is to combat social dumping, whereas, in the course of the pre-litigation procedure, the Danish Government explained that the purpose of that practice was to clarify the rules for cabotage by coach or bus so that they could actually be applied.

At the hearing, the Danish Government stated that, before the contested administrative practice was adopted, that provision was applied without any reference period and was deemed to be observed if the carriage had not lasted for more than a few months, which allowed carriers to initiate a new transport cycle a short distance from the first one, which complicated the controls by the police authorities.

Especially since the objective stated by the Danish Government in its written observations is to ensure that cabotage by coach and bus does not take place continually and to such an extent that, in practice, the non-resident undertaking never, or only very rarely, leaves the territory of the host State.

These options are provided for illustrative purposes only; other conceivable options do exist, irrespective of their proportionality.

It is difficult to explain why, for example, the provision of just two types of transport service carried out with an eight-day interval would prevent the activity from being regarded as carried out on a temporary basis, whereas the provision of a far higher number of transport services in one week would mean that the activity could be regarded as being carried out on a temporary basis. Furthermore, the frequency of the service is just one of the criteria pointed to in the Court’s case-law on the provision of services in general with a view to interpreting the word ‘temporarily’ contained in Article 57 TFEU (see point 20 of this Opinion).

Furthermore, the Court has held that, even where a Member State invokes an imperative requirement as justification for a hindrance to the free movement of goods and must demonstrate that its rules are appropriate and necessary to attain the legitimate objective being pursued, that burden of proof cannot be so extensive as to require that Member State to prove, positively, that no other conceivable measure could enable that objective to be attained under the same conditions (see judgment of 10 February 2009, <i>Commission</i> v <i>Italy</i>, C‑110/05, EU:C:2009:66, paragraph 66 and the case-law cited).

If the Council opted for the seven-day solution as being appropriate and compatible with EU law, it is hard to regard that solution in comparable circumstances as a choice incompatible with EU law. Even though, in accordance with the Commission’s written and oral submissions, the words ‘on a temporary basis’ in Regulation No 3118/93 on the carriage of goods (which preceded Regulation No 1072/2009) may have raised difficulties of interpretation or application (see footnote 23 to this Opinion), unlike Regulation No 12/98 on the carriage of passengers (which preceded Regulation No 1073/2009), this does not however prevent the adoption of a comparable solution from also being satisfactory in order to determine what is covered by that indefinite concept.

According to settled case-law of the Court, in proceedings for failure to fulfil obligations, it is for the Commission to prove the existence of the alleged infringement and to provide the Court with the information necessary for it to determine whether there has indeed been an infringement, and the Commission may not rely on any presumption for that purpose (see, inter alia, judgment of 21 December 2023, <i>Commission</i> v <i>Denmark (Maximum parking time)</i> (C‑167/22, EU:C:2023:1020, paragraph 47 and the case-law cited).

The Commission simply observes that the contested administrative practice is stricter than necessary to attain the stated objective, that is, to prevent cabotage operations from being carried out on a permanent or continuous basis. It did not, in its written submissions or at the hearing, point to any specific measure which, in its view, could satisfy the criteria of proportionality.

See, in particular, paragraphs 25 to 27 of that judgment. In other words, in the Commission’s view, cabotage operations should, in any event, be authorised as ‘services’, that is to say, in so far as the service provider is not availing itself of its right of establishment.

In other words, a cabotage operation is not a service like other services which can be provided in another Member State as long as it does not fall within the scope of the freedom of establishment, but is rather a service which, by definition (in accordance with Article 2(7) of Regulation No 1073/2009), is provided ‘on a temporary basis’.