(Reference for a preliminary ruling from the Oberlandesgericht Köln)

(Foreign and security policy – Common commercial policy – Embargo on the Republics of Serbia and Montenegro – Regulation (EEC) No 1432/92 – Carriage of persons)

Summary of the Judgment

Common commercial policy – Trade with non-member countries – Embargo measures against the Federal Republic of Yugoslavia (Serbia and Montenegro) – Regulation No 1432/92

(Council Regulation No 1432/92, Art. 1(d))

Article 1(d) of Regulation No 1432/92 prohibiting trade between the European Economic Community and the Republics of Serbia and Montenegro must be interpreted as meaning that the commercial carriage of persons to or from Serbia and Montenegro in the form of split transport was prohibited.

‘Split transport’ is to be understood as meaning the carriage of persons to or from the territory covered by the embargo, organised by means of a joint operation between an undertaking established in a Member State and an undertaking established in the territory covered by the embargo whereby the former provides carriage to or from the area bordering the territory covered by the embargo and the latter provides carriage from that point into the territory covered by the embargo or from inside that territory to that point (with passengers changing vehicles).

(see para. 36, operative part)

9 March 2006 (*)

(Foreign and security policy – Common commercial policy – Embargo on the Republics of Serbia and Montenegro – Regulation (EEC) No 1432/92 – Carriage of persons)

In Case C-371/03,

REFERENCE for a preliminary ruling under Article 234 EC from the Oberlandesgericht Köln (Germany), made by decision of 21 August 2003, received at the Court on 1 September 2003, in the proceedings

Bundesrepublik Deutschland,

THE COURT (Third Chamber),

composed of A. Rosas, President of the Chamber, J. Malenovský, J.‑P. Puissochet (Rapporteur), S. von Bahr and U. Lõhmus, Judges,

Advocate General: F.G. Jacobs,

Registrar: C. Strömholm, Administrator,

having regard to the written procedure and further to the hearing on 12 October 2005,

after considering the observations submitted on behalf of:

– Mr Aulinger, by R. Karpenstein, Rechtsanwalt,

– the Bundesrepublik Deutschland, the defendant in the main proceedings, by A. Frieser, Rechtsanwalt,

– the German Government, by W.D. Plessing, and subsequently by A. Tiemann and C. Schulze-Bahr, acting as Agents, and by A. Frieser, Rechtsanwalt,

– the Commission of the European Communities, by G. zur Hausen and subsequently by F. Hoffmeister, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 17 November 2005,

gives the following

This reference for a preliminary ruling concerns the interpretation of Council Regulation (EEC) No 1432/92 of 1 June 1992 prohibiting trade between the European Economic Community and the Republics of Serbia and Montenegro (OJ 1992 L 151, p. 4).

This reference has been made in the course of proceedings between Mr Aulinger and the Bundesrepublik Deutschland (Federal Republic of Germany), which obliged him to give up his employment as a bus operator transporting individuals travelling to Serbia and Montenegro on the basis of what he considers to be an incorrect interpretation of Regulation No 1432/92.

Legal context

European Union law

Directive 2011/92

Recitals 7 to 9 of Directive 2011/92 state:

‘(7) Development consent for public and private projects which are likely to have significant effects on the environment should be granted only after an assessment of the likely significant environmental effects of those projects has been carried out. …

(8) Projects belonging to certain types have significant effects on the environment and those projects should, as a rule, be subject to a systematic assessment.

ECLI:EU:C:2025:140

(9) Projects of other types may not have significant effects on the environment in every case and those projects should be assessed where the Member States consider that they are likely to have significant effects on the environment.’

Article 2(1) of that directive provides:

‘Member States shall adopt all measures necessary to ensure that, before development consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects on the environment. Those projects are defined in Article 4.’

Under Article 3(1) of that directive:

‘The environmental impact assessment shall identify, describe and assess in an appropriate manner, in the light of each individual case, the direct and indirect significant effects of a project on the following factors:

…

(b) biodiversity, with particular attention to species and habitats protected under [Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7), as amended by Council Directive 2013/17/EU of 13 May 2013 (OJ 2013 L 158, p. 193) (“Directive 92/43”)] and Directive 2009/147/EC [of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (OJ 2010 L 20, p. 7)];

…’

Article 4 of Directive 2011/92 provides:

‘1. Subject to Article 2(4), projects listed in Annex I shall be made subject to an assessment in accordance with Articles 5 to 10.

(a) a case-by-case examination;

(b) thresholds or criteria set by the Member State.

Member States may decide to apply both procedures referred to in points (a) and (b).

Where a case-by-case examination is carried out or thresholds or criteria are set for the purpose of paragraph 2, the relevant selection criteria set out in Annex III shall be taken into account. Member States may set thresholds or criteria to determine when projects need not undergo either the determination under paragraphs 4 and 5 or an environmental impact assessment, and/or thresholds or criteria to determine when projects shall in any case be made subject to an environmental impact assessment without undergoing a determination set out under paragraphs 4 and 5.

Where Member States decide to require a determination for projects listed in Annex II, the developer shall provide information on the characteristics of the project and its likely significant effects on the environment. The detailed list of information to be provided is specified in Annex IIA. The developer shall take into account, where relevant, the available results of other relevant assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The developer may also provide a description of any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

The competent authority shall make its determination, on the basis of the information provided by the developer in accordance with paragraph 4 taking into account, where relevant, the results of preliminary verifications or assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The determination shall made available to the public and:

(a) where it is decided that an environmental impact assessment is required, state the main reasons for requiring such assessment with reference to the relevant criteria listed in Annex III; or

(b) where it is decided that an environmental impact assessment is not required, state the main reasons for not requiring such assessment with reference to the relevant criteria listed in Annex III, and, where proposed by the developer, state any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

Member States shall ensure that the competent authority makes its determination as soon as possible and within a period of time not exceeding 90 days from the date on which the developer has submitted all the information required pursuant to paragraph 4. In exceptional cases, for instance relating to the nature, complexity, location or size of the project, the competent authority may extend that deadline to make its determination; in that event, the competent authority shall inform the developer in writing of the reasons justifying the extension and of the date when its determination is expected.’

Annex II.A of that directive contains the list of ‘information to be provided by the developer on the projects listed in Annex II’. That list reads as follows:

‘1. A description of the project, including in particular:

(a) a description of the physical characteristics of the whole project and, where relevant, of demolition works;

(b) a description of the location of the project, with particular regard to the environmental sensitivity of geographical areas likely to be affected.

(a) the expected residues and emissions and the production of waste, where relevant;

(b) the use of natural resources, in particular soil, land, water and biodiversity.

Annex III to that directive sets out the ‘criteria to determine whether the projects listed in Annex II should be subject to an environmental impact assessment’.

Directive 2014/52

Recitals 11 and 29 of Directive 2014/52 state:

‘(11) The measures taken to avoid, prevent, reduce and, if possible, offset significant adverse effects on the environment, in particular on species and habitats protected under [Directive 92/43] and Directive 2009/147 …, should contribute to avoiding any deterioration in the quality of the environment and any net loss of biodiversity, in accordance with the [European] Union’s commitments in the context of the [United Nations Convention on Biological Diversity, signed in Rio de Janeiro on 5 June 1992,] and the objectives and actions of the Union Biodiversity Strategy up to 2020 laid down in the [Communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions] of 3 May 2011 entitled ‘Our life insurance, our natural capital: an EU biodiversity strategy to 2020’ [(COM(2011) 244 final)]

…

(29) When determining whether significant effects on the environment are likely to be caused by a project, the competent authorities should identify the most relevant criteria to be considered and should take into account information that could be available following other assessments required by Union legislation in order to apply the screening procedure effectively and transparently. In this regard, it is appropriate to specify the content of the screening determination, in particular where no environmental impact assessment is required. Moreover, taking into account unsolicited comments that might have been received from other sources, such as members of the public or public authorities, even though no formal consultation is required at the screening stage, constitutes good administrative practice.’

Directive 92/43

Article 6(3) of Directive 92/43 provides:

‘Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.’

Article 12(1) of that directive provides:

‘Member States shall take the requisite measures to establish a system of strict protection for the animal species listed in Annex IV(a) in their natural range, prohibiting:

(a) all forms of deliberate capture or killing of specimens of these species in the wild;

(b) deliberate disturbance of these species, particularly during the period of breeding, rearing, hibernation and migration;

(c) deliberate destruction or taking of eggs from the wild;

(d) deterioration or destruction of breeding sites or resting places.’

Point (a) of Annex IV to that directive mentions ‘all species’ of bats belonging to the suborder of ‘microchiroptera’.

Irish law

Observations submitted to the Court

15It was submitted on behalf of Mr Aulinger that the question of whether split transport to or from the territory covered by the embargo was prohibited must be distinguished from that of whether the provision of services covering only part of such transport, such as those which he himself provided, was equally prohibited. It was pointed out that he did not organise the split transport but merely provided a travel agency with services in territories that were not subject to the embargo.

16Examples were provided to illustrate his view that Regulation No 1432/92 could not have prohibited services such as those he provided without leading to the absurd conclusion that any act which made it possible for split transport to take place would have been banned. Thus, the person who sold the single through tickets to passengers, the passengers themselves who contributed by paying the ticket price and the petrol pump attendant who filled the bus petrol tank would have been breaching the embargo. The embargo, he adds, was economic in nature and was not designed to prohibit travel or the carriage of persons.

17According to Mr Aulinger, the same conclusion must be drawn in relation to split transport taken as a whole. The question of whether that was prohibited by Article 1(d) of Regulation No 1432/92 must be considered in the light of Resolution 757 (1992). Paragraph 5 of that resolution merely prohibits making funds or any other ‘economic resources’ available to the authorities or any other undertaking established in the Federal Republic of Yugoslavia. Whilst the notion of ‘economic resources’ would undoubtedly encompass the supply of services to the abovementioned bodies, the carriage of passengers to a place where responsibility for them was taken over by Serbian or Montenegrin transport undertakings cannot be regarded as a supply of services to those undertakings or, therefore, as making economic resources available to them. Only the passengers were the recipients of the services in question.

18Regulation No 1432/92 was not intended to impose any further sanctions in addition to those laid down by Resolution 757 (1992). Its sole purpose was to ensure uniform implementation throughout the Community of the sanctions decided on by the Security Council of the United Nations. Mr Aulinger bases his argument on the 10th recital in the preamble to that regulation and on the judgment in Case C-124/95 Centro-Com [1997] ECR I-81. Accordingly, the regulation could not of itself prohibit the carriage of persons to a place where responsibility for them was taken over by Serbian or Montenegrin bus operators in the course of split transport.

19The Bundesrepublik Deutschland, the German Government and the Commission refer firstly to the wording of Article 1(d) of Regulation No 1432/92. They argue that the commercial carriage of persons is a ‘service’ within the meaning of that provision. It is immaterial whether such a service is provided by means of direct transport or split transport. The Bundesrepublik Deutschland submits that the terms used in that provision demonstrate the broad scope of the ban being imposed. More specifically, journeys undertaken by means of split transport would have had the effect of promoting, at least indirectly, the economy of the Republics of Serbia and Montenegro.

20The Bundesrepublik Deutschland and the Commission base their argument on the premiss that direct transport to and from the territory covered by the embargo constituted a breach of the embargo since the effect of such transport was to make Community vehicles available to the economies of the countries under embargo and to enable hard currency to be imported there by the persons being transported. They consider that the same analysis must apply to split transport. According to the German Government and the Commission, the only exception to this would be in the case of journeys undertaken in private cars on a non-commercial basis, which would be acceptable on humanitarian grounds and also because, in such cases, there would not be a supply of ‘services’ within the meaning of Article 1(d) of Regulation No 1432/92.

21The Bundesrepublik Deutschland and the German Government also argue that the literal interpretation summarised above is supported by the spirit and the purpose of Regulation No 1432/92.

22The German Government also refers to Council Regulation (EEC) No 990/93 of 26 April 1993 concerning trade between the European Economic Community and the Federal Republic of Yugoslavia (Serbia and Montenegro) (OJ 1993 L 102, p. 14), which replaced Regulation No 1432/92.

23It notes that Article 1(e) of Regulation No 990/93 prohibits the provision of non-financial services and provides for derogations from this rule, set out in Article 2 of that regulation, concerning, inter alia, transits through the territory of the Federal Republic of Yugoslavia and entry into its territorial sea. According to the German Government, those derogations would have been meaningless if transport to and from the area covered by the embargo had not been prohibited. That regulation thus supports its interpretation of Regulation No 1432/92.

24The Bundesrepublik Deutschland submits that there is no need to ascertain whether Resolution 757 (1992) itself prohibited split transport since the Community legislature could, if necessary, have decided to impose a more severe embargo, given the geographical proximity of the Community to the territory covered by the embargo. Regulation No 1432/92 must therefore be interpreted autonomously and, in essence, this argument is also advanced on the same grounds by the Commission.

25The Bundesrepublik Deutschland and the German Government further contend that the obligation to ensure that Regulation No 1432/92 is effective necessarily entails regarding it as prohibiting split transport. Otherwise, the Bundesrepublik Deutschland takes the view that the provisions of that regulation could have been easily circumvented and at the same time cooperation with undertakings (bus operators) established in Serbia and Montenegro promoted. The German Government refers in particular to the judgment in Case C-84/95 Bosphorus [1996] ECR I‑3953, paragraphs 3 and 18.

26Lastly, in reliance on that judgment, the Bundesrepublik Deutschland states that the prohibition of split transport did not infringe the fundamental rights of the undertakings in question.

27The Commission, however, takes the view that if carriage had been provided only as far as the border with the territory covered by the embargo, without any provision being made for the further carriage of passengers into that territory, it would have been impossible to prove that the effect of such an operation was to promote the Serbian and Montenegrin economies. In that case, the latter would not have benefited from the provision of a means of Community transport and such an operation would not of itself have led to the persons concerned being transported into Serbia and Montenegro.

28While the Commission acknowledges that the carriage of such persons as far as the border would have made it possible for them subsequently to enter the territory covered by the embargo by their own means and for the hard currency they were carrying to have bolstered that territory’s economy, it considers that that is too broad an interpretation of the embargo: the provision of services by a ‘Community’ carrier would merely be a preliminary operation and the economies of the republics subject to the embargo would be bolstered as a result of the passengers themselves and not as a result of the carriers transporting them as far as the areas bordering the territory covered by the embargo.

29In the context of actual split transport, such as that at issue in the main proceedings, it is for the national court to establish who provided the prohibited service. It is for the national court to determine to what extent a subcontractor such as Mr Aulinger, who cooperated in the implementation of split transport without necessarily being directly responsible for the planning and management of it, breached Article 1(d) of Regulation No 1432/92.

The Court’s reply

30The 10th recital in the preamble to Regulation No 1432/92 states that the purpose of the regulation is, inter alia, to ensure a uniform implementation throughout the Community of certain of the measures in Resolution 757 (1992). Consequently, account must be taken of the wording and the purpose of that resolution (see, to that effect, Bosphorus, paragraphs 13 and 14) in order to interpret that regulation. Regulation No 1432/92 cannot therefore be interpreted in a manner that is contrary to Resolution 757 (1992).

31No provision in Regulation No 1432/92, or indeed in Resolution 757 (1992), prohibits the movement of persons between the Member States of the Community and the Republics of Serbia and Montenegro.

32However, as the German Government and the Commission rightly submitted, Article 1(d) of Regulation No 1432/92 prohibits direct commercial transport of persons between a location in the territories of the Member States and a location in Serbia or Montenegro by carriers established in one of those Member States. Such a provision of non-financial services falls within that measure in so far as it corresponds partly to an ‘economic activity carried out in … the Republics of Serbia and Montenegro’ and partly to a provision of services to ‘natural person[s] in the Republics of Serbia and Montenegro’, as expressly referred to in Article 1(d) of Regulation No 1432/92 as examples of provisions of non-financial services that are prohibited.

33The same conclusion must hold in relation to the provision of transport between the same points of arrival and departure, organised by means of a joint operation between an undertaking established in a Member State and an undertaking established in the territory covered by the embargo, the former providing carriage to or from the area bordering the territory covered by the embargo, the latter providing carriage from that point into the territory covered by the embargo or from inside that territory to that point (the passengers changing vehicles). In that regard, it matters little whether the service is provided by, or subcontracted to, a succession of different carriers.

34In the absence of such an interpretation, the effectiveness of Regulation No 1432/92 could, moreover, easily be undermined by means of cooperation agreements concluded between Community undertakings and Serbian or Montenegrin undertakings.

35Therefore, if, at the time when Regulation No 1432/92 was in force, a bus operator was involved, even as a subcontractor, in the split transport of passengers between the territory of a Member State of the Community and the territory of the Republics of Serbia and Montenegro, he would have been in breach of the provisions of that regulation. He could, on the other hand, have continued to provide a commercial service carrying persons to the area bordering the territory covered by the embargo, provided that that service did not form part of a split transport operation.

36The answer to the first question must therefore be that Article 1(d) of Regulation No 1432/92 must be interpreted as meaning that the commercial carriage of persons to or from Serbia and Montenegro in the form of split transport was prohibited. ‘Split transport’ is to be understood as meaning the carriage of persons to or from the territory covered by the embargo, organised by means of a joint operation between an undertaking established in a Member State of the Community and an undertaking established in the territory covered by the embargo whereby the former provides carriage to or from the area bordering the territory covered by the embargo and the latter provides carriage from that point into the territory covered by the embargo or from inside that territory to that point (with passengers changing vehicles).

The second question

37In view of the answer to the first question, there is no need to answer the second question.

Costs

38Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Third Chamber) hereby rules:

Article 1(d) of Council Regulation (EEC) No 1432/92 of 1 June 1992 prohibiting trade between the European Economic Community and the Republics of Serbia and Montenegro must be interpreted as meaning that the commercial carriage of persons to or from Serbia and Montenegro in the form of split transport was prohibited.

‘Split transport’ is to be understood as meaning the carriage of persons to or from the territory covered by the embargo, organised by means of a joint operation between an undertaking established in a Member State of the Community and an undertaking established in the territory covered by the embargo whereby the former provides carriage to or from the area bordering the territory covered by the embargo and the latter provides carriage from that point into the territory covered by the embargo or from inside that territory to that point (with passengers changing vehicles).

[Signatures]

*

Language of the case: German.